NDOU J: The
applicant is the Chief Lands Officer for Matabeleland North. On 8 November 2006 he was allocated by the
Minister of Lands a piece of land known as R/E of Three Fountains in Umguza
measuring approximately 929 hectares under land reform programme. He took occupation in November 2006 and he is
still there. He occupies the main farm
house. The farm owner at the time the
applicant was allocated was one William Ernest McNair. Upon acquisition of the farm by the applicant
the said Mr McNair moved out of the farm “for fear of being arrested” for
remaining in the land after its acquisition.
The 1st respondent moved his cattle on the farm. There is a dispute as to when he did so. It is applicant's case that he did so after
he (i.e. applicant) had taken occupation of the farm. The 1st respondent's case is that
he did so before the applicant took occupation.
Be that as it may, in paragraphs 5.5 to 5.6 of the opposing affidavit
the 1st respondent avers:
“5.5 However
Mr McNair moved off his farm for fear of arrest.
5.6 I
became aware of this situation and spoke to Mr McNair as I wanted to be settled
on his farm.”
It is clear that the 1st
respondent came into the picture after the applicant had surrendered his
possession of the farm. It is not clear
how he allegedly acquired the farm. What
can be discerned from the opposing papers is that by some arrangement with Mr
McNair he ended up on the land. 1st
respondent does not disclose the nature of this arrangement. It is not stated whether it was sale or
lease. It is not averred whether the
transfer from Mr McNair to 1st respondent was done in terms of the
relevant statutory provisions. In his
“To whom it may concern” letter dated 20 October 2006, Mr McNair states-
“…
We have appointed Mr George Graham to act on our behalf [sic] in the resuscitating of farming operations and to ensure the
security of the above farm and due operations.”
This implies that 1st
respondent was acting as an agent of Mr McNair.
It can be discerned from paragraph 6 of his opposing affidavit that the
1st respondent was on the farm at the behest of Mr McNair whilst he
waited for his application to be settled on the farm to be determined by the
Minister of Lands, Land Reform and Resettlement. This was not to be as the latter in his
wisdom allocated the disputed land to applicant. The 1st respondent is clearly not
satisfied by the turn of events. He has
however, not bothered to seek remedy by way of a review of the decision of the
Minister. Instead he has chosen to
defiantly remain on the farm because he believes that the applicant used his
office to corruptly and clandestinely have the farm allocated to him.
On the above facts, it is clear that
Mr McNair left the farm on his own accord fearing his arrest and possible
prosecution and eviction under section 3 of the Gazetted Land (Consequential Provisions)
Act [Chapter 20:28]. This being gazetted
land, the parties' position on the farm is determined by what the law allows
the acquiring authority and former owner to do on the farm after the
acquisition – Ferrera & Anor v Nhandara HC3995/08. Section 3(1) of the Gazetted Land Act
provides that:
“Subject to this section, no person may hold, use or occupy,
gazetted land without lawful authority”.
In terms of section 2 “lawful
authority” means –
(a)
An
offer letter; or
(b)
A
permit or
(c)
A
land settlement lease”
It is common cause that the 1st respondent (and by
extension his principal, Mr McNair) does not occupy the land in question by
lawful authority, but by defiance of the law and the acquiring authority. In the circumstances, Mr McNair through that
defiance would be entitled to be evicted from the homestead by due process of
the law. The acquiring authority is
entitled to use the farm as it pleases as long as it does not interfere with
the former owner's living quarters (homestead).
The former owner has no locus
standi to challenge the acquiring authority's invitee's (i.e. applicant's)
use and occupation of the farm land as long as it does not interfere with the
living quarters – see also Airfield
Investments v Min of Lands,
Agriculture & Rural Resettlement & Ors SC 36-04. In casu,
the former owner, Mr McNair, removed himself from the living quarters. The applicant then occupied the living
quarters. Mr McNair did not seek to
evict the applicant from the living quarters.
Instead, he brought the 1st respondent into the picture via
the letter alluded to above. Mr McNair
had no lawful authority after its acquisition to allocate the land to the 1st
respondent. The application for
settlement by the 1st respondent does not give him lawful authority
to be on the farm. He has no lawful
authority in terms of the Act to be on the farm.
On the allegations levelled against
the applicant, it is beyond dispute that there is no law preventing employees
of the acquiring authority from being beneficiaries of the land reform
programme. The acquiring authority would
be expected to have known that the applicant was one of its senior employees in
Matabeleland North at the time it allocated him the farm. Even if it is accepted that the applicant
clandestinely and corruptly manipulated his acquisition of the farm, (I make no
such finding), this would not give 1st respondent a right to occupy
the farm. In any event, the allocation
to the applicant was never formally challenged by the 1st respondent
or his principal, Mr McNair.
In light of the above I agree with
applicant that there is no material dispute of facts. Issues raised by the 1st
respondent and supported by a Mr Gibson Siziba are not material for the
resolution of the dispute before me. In any event, Mr Siziba's status in this
matter is not clear. He claims to be a
chairperson of “anti-corruption unit of war veterans audit unit in Matabeleland
South.” The land in dispute is in
another province i.e. Matabeleland North with its own similar structures. If there was merit in these allegations of
applicant's corruption in the allocation it is the latter province's structures
which would have dealt with the matter.
But the bottom line is that the issues here are of a legal and not
factual nature. The applicant has
established his case and I accordingly order as follows:
(a)
That
the 1st respondent and all those claiming through him be and are
hereby ordered to forthwith vacate applicant's allocated land known as
sub-division R/E of Three Fountains measuring approximately 929 hectares
together with his cattle and all his other livestock that may be thereat.
(b)
That
should the 1st respondent fail to comply with paragraph (a) above within
48 hours of the service of this order on him, 2nd respondent with or
without the aid of the 3rd respondent be and is hereby ordered to
proceed to applicant's farm and thereat drive out 1st respondent,
his workers and his livestock there from.
(c)
That
1st respondent be and is hereby barred and interdicted from entering
or in any way interfering or disturbing applicant's occupation of his allocated
farm stated in paragraph (a) above, unless with the express written consent of
the applicant.
(d)
That
1st respondent be and is
hereby barred and interdicted from fetching firewood, digging manure or taking
anything mentioned in paragraph (a) above except with the express written
consent of the applicant.
(e)
That
1st respondent to pay costs of this application on the ordinary
scale.
Moyo & Nyoni, applicant's legal practitioners
James, Moyo-Majwabu & Nyoni, 1st
respondent's legal practitioners
