NDOU J: These
two applications were argued together as they involve the same parties and
arose from the same facts.
Under HC 2491/08 the applicants
obtained against the respondent a provisional order in the following terms:
“Terms of final order sought
That you show cause to this honourable court why a final
order should not be made on the following terms:
1.
That
the applicants and all farm workers under the applicant who reside at the
remaining extent of Lot 1 of Lindmill Farm are hereby declared to have
exclusive and undisturbed possession and control of the above described farm.
2.
That
the respondent, in person or his agents or servants or any person whatsoever
acting for or through the respondent be and are hereby permanently restrained
from interfering with the applicant's crops or vegetable farming or other
farming operation being undertaken by applicant's agents or servants on the
remaining extent of Lot 1 of Lindmill Farm.
3.
That
the respondent pays the costs of this application on an attorney and client
scale.
Interim relief granted
Pending the final determination of this mater, the applicants
are granted the following relief:
1.
That
the respondent is hereby ordered to immediately surrender back to applicants or
applicants' agents and for servants, the farm's foreman residence or lodgings.
2.
That
the respondent is herein immediately ordered to vacate any portion of the
remaining extent of Lot 1 of Lindmill Farm.
3.
That
the respondent is immediately interdicted from interfering with any or all
farming operations of applicants' being undertaken by the applicants or its
agents or servants on the remaining extent of Lot 1 of Lindmill Farm.
4.
That
the respondent be and is hereby ordered to keep the peace with any or all of
applicants' agents, servants found at the remaining extent of Lot 1 of Lindmill
Farm, and especially that the respondent is herein interdicted from using
insults or threats of any kind against any of the applicants' agents or
servants found at the above described farm.”
The provisional order was granted by this court on 19
December 2008. On 26 February 2009,
under HC 318/09 the respondent instituted his own application for a provisional
order against the applicants. He
obtained a provisional order in the following terms:
“Terms of the final order sought
1.
That
all plant and equipment on Lot 1 of Lindmill Farm in Umzingwane District of
Matabeleland South Province in extent approximately 35371 hectares escheat
[sic] to the State for use by the cross-applicant herein in terms of
Government's Land Acquisition Policy.
2.
That
upon vacation of Lot 1 Lindmill Farm aforesaid respondents and/or their servants,
agents, contractors, assigns or successors in title shall not vandalize or make
away with plant or equipment or crop or vegetables belonging to the
cross-applicant herein situate thereon.
3.
That
the first respondent in the cross-application pay [sic] the costs of the
cross-application and the main application, the latter on the legal
practitioner and own client scale.
4.
That
the failure by the respondent in the main application to file his
cross-application simultaneously with the notice of opposition be and is hereby
condoned.
5.
That
the withdrawal of the admission made by the respondent of paragraph 1 of the
main applicant's founding affidavit be allowed and that paragraph 1 of his
original opposing affidavit be amended by and as appears in paragraph 3 of his
supplementary affidavit.
6.
That
the late filing of respondent's heads of argument be and is hereby condoned.
Terms of interim relief granted
1.
That
pending the determination of the main application and the cross-application the
respondents, their servants, agents, assigns, contractors or successors in
title be and are hereby refrained from making away with or vandalizing any and
all plants and equipment and the cross-applicant's growing crop or vegetables
on Plot 1 Lindmill Farm aforesaid.
2.
That
as interlocutory relief this chamber cross-application be consolidated and
heard together with the main chamber application under case number HC 2491/08
and the same be set down for final determination within ten calendar days after
service of this provisional order.
3.
That
the filing of the supplementary affidavit of the respondent in the main
application, together with annexures thereto be and is hereby allowed.”
I propose to deal with these applications in turn.
Main application under HC 2491/08
The first issue raised by the
applicants is that the disputed land was neither lawfully designated nor
acquired by the acquiring authority. The
respondent initially furnished inadequate papers to prove such acquisition. However, with the leave of the court given
under HC318/09 supra, he provided
further documentation to establish that the land in question was lawfully
acquired. The respondent produced a copy
of the Government Gazette Extraordinary of 1 February 2008 which evinces such
acquisition. The notice by the acquiring
authority describes the land as “Deed of Transfer 3283/83, registered in the
name of Terence Michael Kenny, in respect of certain pieces of land situate in
the district of Umzingwane, being Lot 1 of Lindmill, measuring thirty-six comma
one six zero zero (36,1600) hectares.”
Section 5(iii) of Act 1 of 2004 which amends section 8 of principal Act,
i.e. Land Acquisition Act [Chapter 20:10] (“the Act”) provides that acquisition
shall “be by notice in the Gazette specifying,
(a)
The
land that is being acquired; and
(b)
The
name of the registered owner of the land.”
The above notice meets these requirements. The land was, therefore, lawfully acquired by
the acquiring authority. This piece of
land was offered to the respondent by offer letter dated 16 September 2008. In the offer letter the land is described as
follows:
“2. You
are offered subdivision whole of Lot 1 of Lindmill in Umzingwane District of
Matabeleland South.”
This description sufficiently indicates that the disputed
land was offered to the respondent for agricultural purposes.
The respondent's papers evince that
the above-mentioned notice was also published in a newspaper on 1 February
2008. The later publication drew
criticism from the applicants. There is
no legal basis for such criticism. Section
5 of the Act, as amended by Act 1 of 2004 has a proviso to the effect that the
publication of acquisition “in the Gazette and in the newspaper circulating in
the area where the land is situate, notice to the registered holder of such
agricultural land is deemed to have given.”
With these findings, it is clear
that ownership of this farm vests in the acquiring authority. The applicants are not in lawful occupation
of the farm. The applicants do no occupy
the land in question by lawful authority, but by defiance of the law and the
acquiring authority. This being gazette
land, the parties position on the farms is determined by what the law allows
the acquiring authority and farmer owner to do on the farm after acquisition – Ferrera & Anor v Nhandara HC 3995/08 (unreported). 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 section 2 “lawful authority” is defined as “(a) an offer letter, (b)
a permit or (c) a land settlement lease.”
The applicants do not hold any of these. As far as the dwelling homestead is
concerned, the applicants, through their defiance, would be entitled to be
evicted by due process of the law – section 3 of the Gazetted Land
(Consequential Provisions) Act [Chapter 20:28].
The applicants, however, have no locus
standi to challenge acquisition authority's invitee's use and occupation of
the farm land as long as it does not interfere with former owner's living
quarters – Airfield Investment v Min of Lands, Agriculture & Rural
Settlement & Ors SC 36-04. So I
will only confirm the provisional order partially.
The issue of locus
standi of the applicants should have been raised in the opposing
affidavit. Instead the respondent
replied to the merits and he cannot raise it now. In any event as a beneficiary 1st
applicant has a right to institute the application. In light of the foregoing, the applicants are
only entitled to protection in respect of the dwelling house until they are
evicted after due process of law. The
other prayers sought cannot be confirmed.
Accordingly, the provisional order is confirmed in the
following terms:
1.
That
the respondent is hereby ordered not to interfere with applicant's residence or
lodgings in Lot 1 of Lindmill Farm.
2.
The
respondent is ordered to pay costs of this application on the ordinary scale.
Cross-application under HC 318/09
It is clear that the
cross-application seeks to acquire farm equipment by virtue of a court
order. This application is clearly
misguided. This is so because the
acquisition of farm equipment or farm material is governed by the provisions of
the Acquisition of Farm Equipment or Material Act [Chapter 18:23].
In terms of this Act, the only
person who can acquire such items is the acquiring authority. An individual cannot embark on a self help
exercise, even is the farm equipment or material is situated on the farm which he
has been allocated.
Section 2 of this Act clearly
defines the meaning of and makes a distinction between farm equipment and farm
material. Farm equipment, on the one
hand, is defined as movable property used for agricultural purposes such as
tractors, ploughs, irrigation equipment not embedded in the ground, pumps not
permanently attached to the ground amongst other things. Farm material, on the other hand, is defined inter alia as seed, fertilizer and
pesticides. None of the above
distinctions and definitions are given in the order that is sought by the
cross-applicant. Consequently the order
sought does not have any legal basis as there is no existing law which
sanctions the cross-applicant's claim.
Sections 4 to 9 of this Act further set out in detail the provisions for
the acquisition of farm equipment and farm material by the state/acquiring
authority. In summary the procedure is
the following. First, the equipment and
material is identified by duly authorized representatives of the acquiring
authority who enter the farm with the written authority of the acquiring
authority for such purposes and thereafter compile an inventory of items
found. Second, after identification, the
farm equipment and farm material is then valuated by a duly authorized
official. Third, after the valuation
process the equipment or material is, subject to an agreement on the value and
the purchase of such, then compulsorily acquired and an acquisition order
issued. The owner may contest the
valuation of the equipment or material.
Significantly, section 10 of this
Act provides that any farm equipment or farm material acquired in terms of the
Act shall vest in the State for the benefit of the land reform
programme. The State is authorized to
dispose the property in any manner it deems fit for valuable
consideration. The cross-applicant has
not shown that any of the above-mentioned procedures have been followed or that
he is even authorized by the acquiring authority to make such an
application. The cross-applicant has,
therefore, not established a clear or prima
facie right for the final interdict sought.
Accordingly, the cross-application
is dismissed with costs on the ordinary scale.
Munjanja & Associates, applicants' legal practitioners
Khumalo & Co Attorneys, respondent's
legal practitioners
