KAMOCHA J: The
parties in these two farming matters agreed to have them consolidated and argued
at the same time as the facts of both matters are identical. Both were gazetted
for compulsory acquisition in terms of subsection (1) of section 5 of the Land
Acquisition Act [Chapter 20:10].
Thereafter they reached an agreement with the Minister of
State for National Security, Land, Land Reform and Resettlement in the
President's Office – hereinafter referred to as “the Minister” whereby the
respective farms surrendered part of their agricultural holdings and the
Minister agreed to withdraw his application to the Administrative Court (which
at that time had jurisdiction in such disputes) for confirmation of the
acquisition. The agreement in each case
was then taken to the Administrative Court for it to be made into a court order
which was accordingly done. The effect
of that was that the particular pieces of land were delisted and that ownership
of the respective pieces of land reverted to the original owners i.e. the respective
applicants.
After the respective agreements had been made into consent
orders of the Administrative Court the farms were gazetted and both appear in
the 7th Schedule of Constitutional Amendment number 17 which came
into effect on 14 September 2005.
Constitutional Amendment Number 17 introduced section 16B in terms of
which the two farms were acquired. The relevant
provisions recite as follows:
“16B Agricultural
land acquired for resettlement and other purposes
(2)Notwithstanding anything contained in this chapter –
(a) all agricultural land –
(i) that was identified on or before the 8th
July 2005, in the Gazette or Gazette Extraordinary under section 5(1) of the
Land Acquisition Act [Chapter 20:10], and which is itemized in Schedule 7,
being agricultural land required for resettlement purposes; or
(ii) that is identified after the 8th
July 2005, but before the appointed day, in the Gazette or Gazette
Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10],
being agricultural land required for resettlement purposes; or
(iii) …
is acquired by and vested in the State with full title therein with
effect from the appointed day or in the case of land referred to in (iii) with
effect from the date it is identified in the manner specified in that
paragraph.”
Both farms were itemized in Schedule
7 as pieces of land which constituted land referred to in section 16B (2)(a)(i)
above. They were acquired through
General Notice 144A of 2002 and were itemized as 44.
It accordingly admits of no doubt
that the two farms were identified before 8 July, 2005, and itemized in
schedule 7 and were acquired by and vested in the State with full title therein
with effect from 14 September, 2005 – the appointed day.
The law is now settled that once a
farm has been acquired then the rights over it vest in the State. That being the case the former owner and
title holder has no locus standi to
approach the court for an interdict because he or she cannot establish a clear
right. The lack of locus standi prevails even if a matter is pending before the
Administrative Court because the right would merely be speculative. See Airfield
Investment (Pvt) Ltd v Minister of
Land & Ors 2004(1) ZLR 511(5) and Airport
Game Park (Pvt) Ltd v Kambidza &
Anor 2004(1) ZLR 391(5).
In
casu, the orders by consent were
issued by the Administrative Court in 2003.
The one relating to Felton Farm, for instance, was issued on 5 August
2003. The orders therefore preceded the
appointed day id est 14 September,
2005.
However, it was strenuously argued
by the applicants that their case was completely different because their pieces
of land had been returned to them by orders by consent which were made into
court orders by the Administrative Court.
It was then contended that the Constitutional Amendments set out in
section 16B(2)(a)(i) and (ii) above did not vest their pieces of land to the acquiring
authority. They reasoned that, since the
court orders returned their pieces of land to them, they had acquired real
rights in the properties. The Minister
had in fact withdrawn the applications to confirm. The properties were restored to them in terms
of the law. No legislation can act
retrospectively to take away acquired rights that have vested in the right
holders. They went on to submit that
they had worked on and improved the farms on the understanding that the pieces
of land were theirs to do as they wished.
It was their belief that contrary to
popular belief the recent amendment to the Constitution did not make all
farming land State land. Their belief is
indeed true. Not all farming land was
made State land. However, the applicants
were ignoring the fact that the Constitutional Amendment, especially section
16B thereof, provides that agricultural land identified in the gazettes
itemized in Schedule 7 of the Constitution, had been acquired. Their pieces of land were identified in General
Notice 144A of 2002 gazetted on 5 April, 2002 and appear as item 44 in Schedule
7 of the Constitution. It, therefore,
admits of no doubt that the legislature took a deliberate effort to acquire the
two farms and vested rights in them to State.
The provisions of section 16B(2)(a)(i) expressly stipulate that the
particular farms were acquired and vested in the State with full title.
The applicants still persisted that
their rights over the farms were not retrospectively affected by the provisions
of section 16B(2)(a)(i) of the Constitution and cited the case of Nkomo and Another vs The A.G and Others 1993(2) ZLR 422 (5)
at 429A-C and 433C. At 429A-C GUBBAY CJ had this to say –
“It
is a cardinal rule in our law, dating probably from Codex 1:14:7, that there is
a strong presumption against a retrospective construction. See Agere
v Nyambuya 1985 (2) ZLR 336(5) at
338G-339G. Even where a statutory
provision is expressly stated to be retrospective in its operation, it is not
to be treated as in any way affecting acts and transactions which have already
been completed, or which stand to be completed shortly, or in respect of which
action is pending or has been instituted but not yet decided, unless such a
construction appears clearly from the language used or arises by necessary
implication. … Care must always be taken to ensure that the retrospectivity
is confined to the exact extent which the section of the Act provides …” Emphasis added.
The learned Chief Justice continued
at page 433C as follows:-
“This conclusion is underscored when account is taken of the
well established rule that a statute should be interpreted, where possible, so
as not to impair or extinguish substantive rights actually vested at the time
of its promulgation. Courts will only find
that such an inequitable result was intended when compelled to do so by
language so clear as to admit of no other inference. … The supposition is that the legislature
intends to deal with future events and circumstances and not with those
pertaining to the past.” Emphasis added
When discussing the fundamental rule
of construction in our law in the case of Agere
v Nyambuya 1985 (2) ZLR 336 (SC) GUBBAY JA as he then was stated that retrospective operation
may only be given to an enactment so as to remove or in any way impair existing
rights where the enactment is expressly retrospective. At page 339A-C he quoted with approval the
remarks by STRATFORD JA in Principal Immigration Officer v Purshotam
1928 AD 435 at 450.
“STRATFORD JA succinctly set out this general rule as follows:
The rule of interpretation is well established; it is that
where in express terms or by necessary implication (which is much the same
thing) the enactment is to have a retrospective effect, that effect must be
given to it whatever the consequences maybe. If, on the other hand, the clear intention to
have retrospective effect cannot be extracted from the words used in their
context, then the enactment must not be taken to effect pre-existing rights.
Emphasis added
These words echo what INNES CJ said many years earlier in Curtis' case, supra at
311 namely:
“The general rule is that, in the absence of express
provision to the contrary, statutes should be considered as affecting
future matters only; and more especially that they should if possible be
interpreted as not to take away rights actually vested at the time of
promulgation. The legislature is
virtually omnipotent, but the courts will not find that it intended so
unequitable a result as the destruction of existing rights unless forced to do
so by language so clear as to admit no other conclusion.” Emphasis added
The applicants also cited a recent
case of Route Toute B V and Others vs
The Minister of National Security
Responsible for Land Reform and Resettlement and Others HH 128/2009 in
which it was stated that a later statute will only be construed as affecting or
taking away rights accrued in a previous statute if the later enactment
expressly intends to take away the prior existing rights. It was indeed held to the effect in, Vice Chancellor, University of Zimbabwe
& Another v Musasah & Another
1993(1) ZLR 162 (5), that the removal of an existing right has to be done
expressly and not indirectly.
Emphasis added
The Constitution of Zimbabwe recites
to the same effect in section 52 thus:
“(52) Alteration of the Constitution
(1)
Parliament
may amend, add to or repeal any of the provisions of this Constitution:
Provided that, except as provided in
subsection (6), no law shall be deemed to amend, add to or repeal any provision
of this Constitution unless it does so in express terms.” Emphasis added
What is conspicuous in all the case
authorities and the Constitution of Zimbabwe is a common thread running through
all of them. Where the legislature
wishes an enactment to have a retrospective effect it must expressly say so.
In
casu section 16B(2)(a)(i) quoted at page 2 supra expressly states that notwithstanding anything contained in
this chapter all agricultural land that was identified on or before the 8th
July, 2005 in the Gazette or Gazette Extraordinary under section 5(1) of the
Land Acquisition Act [Chapter 20:10] and which is itemized in Schedule 7, being
agricultural land required for resettlement purposes is acquired by and vested
in the State with full title therein from the appointed day. Chapter III of the Constitution is The
Declaration of Rights and section 16 protects property from any
deprivation. But the provisions of
section 16B are expressly instructing all citizens of Zimbabwe that despite the
protection enshrined in the Declaration of Rights all agricultural land that
was identified prior to 8 July would be compulsorily acquired for resettlement
purposes. Schedule 7 contains 107 items
of pieces of land that constitute the land referred to in section 16B(2)(a)(i). As has already been mentioned elsewhere in
this judgment the two farms that are under consideration herein are reflected
as item 44.
It therefore admits of no doubt that
the provisions of 16B(2)(a)(i) were deliberately intended to take away the prior
existing rights of all the owners of agricultural land itemized in Schedule
7. The suggestion by the applicants,
that the legislature should have specifically stated the provisions were also
meant to overrule orders of court made by consent, is clearly untenable. The applicants were just being pedantic. Their rights in those pieces of land were
extinguished with effect from the appointed day which was 14 September 2005.
The effect of that was that from
that date they had no rights over the said pieces of land as the rights were
vested in the State. They, in the
result, had no locus standi to
approach this court for an interdict because they cannot establish clear
rights.
In terms of section 3 of the Gazetted Land (Consequential
Provisions) Act [Chapter 20:28], they are now occupying, holding or using
gazetted land without lawful authority.
They have now held, occupied or used those pieces of land more than 45
days after the fixed date. They have
also remained in occupation of the living quarters for a period in excess of 90
days after their pieces of land had been identified.
However, although they are occupying gazetted land illegally
they may not be ejected there from without due process of law. In order to evict them the state needs to
take them before the courts for prosecution, if convicted, the courts would
issue eviction orders in addition to sentences to be imposed in terms of
section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter
20:28]. In my view, evicting them without
following the procedure laid down in section 3(5) of the Act would be
improper. In Gordon Charles Spencer and Another v The Minister of Land, Land Reform and Resettlement and Ors HB-11-10
at pages 5 to 6 I had this to say,
“Evicting them without following the procedure laid down in
section 3(5) of the Act would, in my view, be improper as the law protects even
unlawful possessors. The legislature was
alive to this that is why it laid down the procedure to be followed in order to
avoid self help and anarchy. The respondents should not take the law into their
own hands as such conduct cannot be countenanced or condoned. This is a well established principle. When dealing with the principle ROBINSON J in Mutsotso & Ors v Commissioner
of Police & Anor 1993(2) ZLR 329(H) at 333B to H had this to say about
the general principle as stated by INNES
CJ in Nino Bonino v de Lange 1906 TS 120 at 122 as follows:
“It is a fundamental principle that no man is allowed to take
the law into his own hands; no one is permitted to dispossess another forcibly
or wrongfully and against his consent of the possession of property, whether
movable or immovable. If he does so, the
court will summarily restore the status
quo ante, and will do that as a preliminary to any inquiry or investigation
into the merits of the dispute.”
As explained by MILLIN
J in De Jager & Ors v Farah & Nestadt 1947(4) SA 28 (W) at
35, a case where demolition of premises was undertaken without legal process:
“What the court is doing is to insist on the principle that a
person in possession of property, however, unlawful his possession may be
and however exposed he may be to ejectment proceedings, cannot be interfered
with in his possession except by the due process of law, and if he is
interfered with the court will restrain such interference pending the taking of
action against him for ejectment by those who claim that he is in wrongful
possession. The fact that the applicants
have no legal right to continue to live in this slum and would have no defence to
proceedings for ejectment, does not mean that proceedings for ejectment can be
dispensed with, nor does it make any difference to the illegality of the
respondent's conduct that the occupation by the applicant carried with it penal
consequences.” Emphasis added
The learned judge went on to explain that in that case the
court held that the conduct of the respondents to demolish certain premises,
which were dilapidated, verminous and generally unsanitary, without legal
process in order to secure the ejectment of the occupiers, they had committed
acts of spoliation and they were therefore interdicted from further demolishing
those premises.
The applicants in casu
are now illegal occupiers of the farm and the living quarters and it admits of
no doubt that they would have no defence at all to an action for their
ejectment there from but that does not mean that respondents can interfere with
their possession without due process of law.
The applicants are liable to a fine equal to level seven or to
imprisonment for a period not exceeding two years. The penalty is indeed a severe one but it
still does not mean the respondents, in particular the third respondent, can
just occupy part of the farm thereby despoiling the applicants. The respondents should not take the law into
their hands. That is forbidden by law
and the court cannot condone that. ROBINSON J in Mutsotso
& Ors v Commissioner of Police
& Ors supra at 33H to 334A continued thus:
“As stated by DIEMONT
J in Fredericks & Anor v Stellenbosh Divisional Council 1977(3)
SA 113(c) at 117C.
“This court is not concerned with the nature of the
applicants' occupation. What it is
concerned with is that the respondent should not take the law into its own
hands … Such conduct cannot be
countenanced or condoned.”
As far as the costs are concerned I hold a view that this is
a proper case for each party to bear its own costs for the following
reasons. Firstly, applicants ought to
have realized that the provisions of section 16B(2)(a)(i) were couched in a
language so clear as to admit no other conclusion but failed to do so because
they chose to be pendatic. Secondly, the
respondents ought to have proceeded in terms of section 3(5) as soon as the
applicants became illegal occupiers, holder or users of gazette land. In the result, I would issue the following
order.
It is ordered that:-
1.
the
applicants shall be entitled to remain on their respective pieces of land until
they are lawfully evicted pursuant to an order of a court of competent
jurisdiction in terms of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28];
2.
unless
the applicants are ejected from the respective farms in terms of section 3(5)
of the Act no new settlers shall be settled on the said farms.
3.
in
the event that new settlers have already been settled thereon they shall be
evicted forthwith until the applicants are lawfully removed there from in terms
of section 3(5) of the Act; and
4.
each
party shall bear its own costs.
Webb, Low & Barry, applicants' legal practitioners
Civil Division of the Attorney-General's Office,
respondent's legal practitioners
