BHUNU
J: On 12 June 2007 the applicant was issued with an offer letter under the Land
reform and Resettlement Programme (Model A2 Phase II) authorizing him to
lawfully hold, occupy and use the whole of subdivision 8 of Welston in Harare
in the District of Mashonaland East Province approximately 42.07 hectares in
extent. The applicant has since taken occupation of that land on the strength
of the offer letter.
The
first respondent is the former owner of the land in question. Aggrieved by the
applicant's conduct in taking occupation of the land he sued and obtained a
spoliation order under case number HC 612/09 authorizing him to eject the
applicant from the land. Dissatisfied
with that judgment the applicant appealed to the Supreme Court under case
number SC 43/09.
This
court later ruled that the initial judgment being an interlocutory judgment
could not be appealed against without leave of the court. As a result no heads
of argument were filed with the Supreme Court. On 16 October 2009 the Supreme
Court ruled in terms of r 44 of its Rules that the appeal had been abandoned.
Despite
that ruling the first respondent did not seek to enforce the spoliation order
granted to him by this Court until almost two years later when he issued a writ
of
execution. The
spoliation order was issued before the Supreme Court had clarified the law in
respect of land disputes of this nature. Since then the Supreme Court has
clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister Of Lands and Rural Resettlement & 6 Ors SC 31/10. In that case the LEARNED CHIEF JUSTICE
had this to say" at pp 21 and 23 of the cyclostyled judgment:
"On the other
hand, s 3 of the Act criminalizes the continued occupation of acquired land by
the owners or occupiers of land acquired in terms of s 16 B of the Constitution
beyond the prescribed period. The Act is very explicit that failure to vacate
the acquired land by the previous owner after the prescribed period is a
criminal offence. It is quite clear from the language of s 3 of the Act that
the individual applicants as former owners or occupiers of the acquired land
have no legal rights of any description in respect of the acquired land once
the prescribed period has expired.
.
The holders
of the offer letters, permits or land settlement leases have the right of
occupation and should be assisted by the courts, the police and other public
officials to assert their rights. The individual applicants as former owners or
occupiers of acquired land lost all rights to the acquired land by operation of
the law The lost rights have been acquired by the holders of offer letters,
permits or land settlement leases. Given this legal position it is the holders
of offer letters, permits and land settlement leases and not the former owners
or occupiers who should be assisted by public officials in the assertion of
their rights." (My underlining.)
The applicant now seeks an order staying execution while
he seeks leave to appeal out of time. It appears to me that there is merit in
this application. On the strength of the law as now articulated by the Supreme
Court it would appear that the first respondent may have been divested of any
right to own, occupy and use the land in dispute. His intended occupation of
the land now constitutes a criminal offence and the court cannot sanction an
illegality. That being the case, the application can only succeed. In saying this I am mindful of the first respondent's
argument that peri-urban land is not susceptible to compulsory acquisition.
That position however, needs to be clarified by the Supreme Court before the first
respondent can lawfully occupy the disputed land.
It is
accordingly ordered:
1.
That the execution of the Provisional Order issued
under case number HC612/09 be and is hereby stayed pending an
application for leave to appeal out of time to be lodged by the applicant in
the Supreme Court in respect of case number HC 1020/09.
2.
That such leave to appeal shall be lodged in the
Supreme Court within seven days of granting this order.
3.
That in the event that such appeal is not lodged within
the time-frame aforesaid, this order shall automatically cease to be of any
force or effect. With the result that execution of the Provisional Order issued
under case number 612/09 shall proceed
without the need for further application by the first respondent.
4.
That this order shall not be construed as authorizing
the first respondent to occupy or use the disputed land without a Court Order
as such occupation might constitute an illegality.
5.
There shall be no order as to costs, but in the event
that execution proceeds pursuant to para 3 above, the applicant shall bear the
first respondent's costs on a legal practitioner and client scale in respect of
these proceedings and the resultant costs, if any of the subsequent execution
aforesaid.
SERVICE OF THE
ORDER
That leave be
and is hereby granted to the applicant's legal practitioners or the Deputy
Sheriff /Messenger of Court to attend to the service of this Order forthwith
upon the respondents in accordance with the rules of the High Court of
Zimbabwe."
G N Mlotshwa & Company, applicant's legal practitioner
Musunga &
Associates, 1st respondent's legal practitioners
