The
applicants seek an amended order in the following terms:
“It
is ordered that:
1.
The eviction of the applicants by the respondents jointly and severally from
their land namely Plot Number Lot 32 and 33 Essexvale be and is hereby declared
to be unlawful.
2.
The 1st respondent's occupation of land without a lawful court order
evicting the applicants be and is hereby declared to be unlawful.
3.
The respondents jointly and severally be and are hereby interdicted from
interfering with the applicants' occupation, use and possession of the piece of
land namely Plot 32 and 33 Essexvale, without a lawful court order authorizing
the confiscation of their land.
4.
The 1st and 7th respondents be and are hereby ordered to
pay costs of suit.”
The
salient facts of this case are, briefly, the following.
The
applicants were allocated plots in the disputed land by the office of the
District Administrator, Esigodini, in July 2001. These plots are part of the 7th
respondent (“Willsgrove Farm”). This allocation was done after Willsgrove Farm
was acquired by the 5th respondent, the acquiring authority. After
acquisition, the Willsgrove Farm was sub-divided into several contained units
in 2001. As alluded to…, the two applicants, together with several others, were
given offer letters to take up the units.
By
letter dated 19 September 2001, the Provincial Administrator for Matabeleland
South wrote a letter to the District Administrator, Esigodini (Umzingwane)
recommending the delisting of Willsgrove Farm.
The lands committee for the area met to consider, inter alia, the delisting of Willsgrove Farm. At that meeting,
held on 7 March 2003, the importance of Willsgrove Farm to the nation was
emphasized and it was recommended that it be delisted and that those allocated
units on the farm, including the two applicants, should be relocated elsewhere.
By letter dated 20 January 2004 the applicants and other people settled at
Willsgrove Farm were ordered to vacate by the Umzingwane District Lands
Committee. By letter dated 26 March
2004, the applicants and other plot holders were advised that Willsgrove Farm
was delisted in 2002. By letter dated 19 September 2005, the applicants were
advised to vacate Willsgrove Farm before 21 October 2005. The 5th
respondent offered the affected plot holders, including the applicants,
alternative plots in South Lyn in the same district. They were given offer
letters for the latter pieces of land. From that date, the 7th
respondent has been in factual judicial possession and in use of the
improvements and the land known as Willsgrove Farm. Of the plot holders, the
two applicants were apparently not happy with their relocation from Willsgrove
Farm to South Lynn Farm. On 2 February 2007, they filed this court application.
The following averments appear in their founding affidavits-
“2.13
We are currently at South Lyn Farm where there are no proper facilities
for us to engage in our agricultural activities and we are there without offer letters,
either from the District Administrator or the Minister of Lands. We are
insecure because of any supporting documents of our stay at the new place.
[sic] We are also angry because none of the relevant authorities has come up
with any document terminating our occupation of Essexvale Farm….,.
2.14
….,.
3.
I am accordingly seeking an order that we be reinstated to our
respective plots at Lot 32-33 of Essexvale Farm [Willsgrove Farm] with the
assistance and aid of the perpetrators of our eviction….,.
I
am seeking an order, further, that the Honourable Minister of Lands after
compliance with all the necessary formalities issue us with the relevant and
further security of tenure documents at Essexvale Farm. As far as the
Governor, clearly she must stop any direct or indirect authorization of our
evictions from our land.
4.
We went to war to fight as war veterans so that we could get our land and we
have respected the courts…, and we hereby do seek an order for our
reinstatement and our land [sic] and for our continued protection against
unlawful, arbitrary, unjust and malicious eviction.” ….,.
It
is beyond dispute that the applicants were never issued with offer letters
signed by the 5th respondent in respect of Willsgrove Farm. All they
are relying upon are letters from the local District Administrator. In respect
of the first applicant, the letter reads -
“RE:
ALLOCATION OF SELF CONTAINED PLOT: FARM NAME: LOT 32 & 33 ESSEXVALE: PLOT
(200 HAC)
The
above refers.
I
have pleasure to inform you that the Umzingwane Land Identification and
Resettlement Committee has allocated you the above self-contained plot at the
above farm, under Government's Fast Track resettlement programme.
It
is hoped that you will fully utilize this opportunity to improve both your…,
and Zimbabwe's Agricultural Economy.
Yours
sincerely
W
M Dhewa
For:
DISTRICT ADMINISTRATOR”
In
respect of the second applicant, the letter reads:
“RE:
ALLOCATION OF SELF CONTAINED UNITS: LOT – 32-33 ESSEXVALE
The
above refers.
Please
be advised that you were selected and offered a self contained unit.
You
are now required to report to the office of the District Administrator,
Esigodini on Thursday 12 July 2001 at 9.00 am where details will be revealed.
Thank
you
W
M Dhewa
For:
DISTRICT ADMINISTRATOR”
The
applicants deserted their plots allocated to them by the fifth respondent at
South Lynn Farm via offer letters issued pursuant to the provisions of the
Agricultural Land Settlement Act [Chapter 20:01]. They defied the allocation by
the acquiring authority and went back to the plots at Willsgrove Farm that were
allocated to them by the District Administrator in terms of the above-mentioned
letters.
It
is trite that once the land is gazetted and acquired by the fifth respondent
ownership rests with it. It follows that the applicants cannot dictate the
manner in which the fifth respondent chose to utilize or exercise the rights of
ownership in respect of the land – Airport Game Park (Pvt) Ltd & Anor v K
Karodza & Anor SC18-04 and
Airfield Investments (Pvt) Ltd v Minister of Lands and Ors SC36-04. The acquiring authority resettled the applicants at South
Lynn Farm.
This
is in terms of the offer letters signed by the fifth respondent.
The
applicants, as his invitees, cannot unilaterally defy this allocation and go to
a piece of land of their own choice. In this case, it is clear that the
applicants initially complied with the decision to move them to South Lynn
Farm. During the period that the applicants were at South Lynn Farm the first
and seventh respondents had quiet and undisturbed possession of the land and
improvements forming the entire Willsgrove Farm. When they returned to
Willsgrove Farm, for whatever reason, they took the law into their own hands
and settled themselves in what they believed to be their plots. They have
refused to listen to the fifth respondent's agents that they return to South
Lynn Farm where they were lawfully settled in terms of the fifth respondent's
offer letters. Their action is unlawful in the context that the dispossession
took place without the first and seventh respondents' consent or without due
legal process – Chisveto v Minister of Local Government and Town Planning 1984
(1) ZLR 248 (H)….,.
From the foregoing, the application is devoid of
merit and should be dismissed. Accordingly, I dismiss the first and second
applicants' application with costs.
