CHIWESHE JP: In this urgent chamber application, the
applicant seeks in the main the eviction of the first respondent and all those
claiming through him from a certain piece of land known as plot 2, of
subdivision A of Hunyani East, popularly known as Malaba Farm ("the farm").
The
facts of the matter according to the applicant are as follows. He was allocated the piece of land the subject
matter of the present dispute by the second respondent by means of an offer
letter dated 8 of the second
respondent. He was to hold on to the
offer letter until such a time as a lands officer would be assigned to
accompany him to view the farm. In
September 2008 a lands officer took him to the farm. He found that the first respondent was in
occupation of the land allocated to him, which included the farm house, tobacco
barns and grading sheds. The first
respondent requested of the lands officer a grace period of one year during
which time he would be winding up his farming operations. The first respondent had said he could not abandon his operations
at that stage because he was servicing on agricultural loan obtained from a
bank. The lands officer then instructed the
applicant to allow the first respondent a year's grace period up to the end of
September 2009. The applicant says he
agreed to do so and left the farm.
In
September 2009 the applicant approached first respondent who flatly refused to
move out as agreed saying he had
the District Administrator's authority to stay on. On checking with the DA's office, the
applicant was advised that no such authority had been given.
Since
then all attempts by the applicant to take occupation of the farm have met with
resistance including physical violence.
The applicant states that despite lodging reports with Darwendale Police
Station no action was taken. To date he
is unable to take occupation of the farm.
For this reason he has approached this court for urgent relief.
The
second respondent filed an affidavit sworn to by Marius Dzinoreva, the Director
of Acquisition in the Ministry of Lands, and Rural Resettlement in which it is
stated inter alia that :-
"3. Applicant
has a valid offer letter for the property in question.
4. 1st
respondent does not have lawful authority to occupy or utilise the property.
5. The
Supreme Court has indeed indicated in SC 31/10 that holders of offer letters
should be assisted to take occupation of
the land they are offered.
6. In
the premise, the application is not opposed."
The first
respondent opposed the application. He
raised a point in limine, namely
that the application should not be heard
on an urgent basis. I will return to
this issue later.
On the merits
the first respondent avers as follows. He
is improperly cited as the first respondent in this matter as he is in
occupation not in his own right but as an employee of Sagar Farming (Pvt) Ltd
("the company"). The company leases the
farm from L.D. Harvey (Pvt) Ltd. The
lease agreement, copy of which is filed of record, has been in place since 1997. His parents own Sagar. The first respondent and his brother have
equity in that company. His father
however, has since been offered plots 2 and 6 of the farm and "to that limited
extent" Sagar claims occupation through his father. To the extent that Sagar occupies the land
through Harvey (Pvt) Ltd, the correct respondents, so argues the first
respondent ought to be Harvey (Pvt) Ltd and Sagar (Pvt) Ltd. For this reason, the first respondent argues
that the claim against him must be dismissed.
The first
respondent denies being violent towards the applicant. He states that Sagar's occupation of the farm has been "with the
blessings of the State" citing a letter from the Ministry of Local Government
dated 26 October 2010 addressed to the Provincial Lands Officer, Mashonaland
West wherein it is recommended that applicant's father, A.D. Swales, and eleven
other "white farmers", be allowed to remain on their respective farms and
further that offer letters in their favour be processed. Assurances according to the first respondent
have also come from the District Administrator who has confirmed that the stay
of Sagar is lawful. Sagar was also
assured of its stay by the support it received from the local lands
committee. It was told that it could
continue farming notwithstanding the applicant's purported possession of an
offer letter.
The first
respondent chronicled a number of incidents involving the applicant's
misdemeanours at the farm during the year 2010 such as break-ins, violence and
malicious injury to property.
The
first respondent states that they presently grow 55 hectares of tobacco. They have tobacco barns and curing
facilities. There are sheep and goats
numbering 70. 6 hectares of eucalyptus
has been planted and more hectares will be planted next year. There are 250 permanent employees on the
farm. The first respondent further
states that there is a loan facility to the tune of $480 715.00 to finance the
current season. A new centre pivot, new
shed and other infrastructure was put up during the last two years at a total
cost of $160 000.00. A further 55 hectares of tobacco was planted
on 14 September and a similar hectrage will be planted on 17 October 2011. Stopping all these operations at short notice
would mean financial disaster on Sagar, he states.
I agree with the
applicant that the first respondent has no valid defence to the applicants'
claim. Firstly, it is not in issue that the farm was acquired by the State. It therefore falls into that category of
property commonly referred to as "gazetted land". Secondly, the applicant is in
possession of a valid offer letter to occupy and utilize the farm or such
portion thereof. The second respondent,
the acquiring authority, has confirmed this fact. Thirdly, the first respondent, as confirmed
by the second respondent, has not been authorised by means of an offer, a land
settlement lease or a permit issued by a competent authority to occupy or
utilise the farm.
On the face of
it therefore the first respondent is in occupation of gazetted land without
lawful authority. It is a criminal
offence to do so. He has in open
defiance of the law held on to such occupation since 2007, a period of four
years.
The first
respondent avers that he has the authority of the District Administrator to
remain in occupation. He also has the
support of the local land committees.
However, none of these persons or structures are competent authorities
in the allocation of gazetted land. That
is the preserve of the acquiring authority, the second respondent. The DA or land committees can only make
recommendations to the acquiring authority as to who they wish considered for
resettlement in their area. In this case
the second respondent has not acceded to such request, if any, with regards the
first respondent. On the contrary, the
second respondent has categoricarily stated that the first respondent has not
been authorised to occupy this farm or portion thereof. Clearly the first respondent has no leg to stand
on. His legal position may be summarised
by reference to certain pronouncements by the Supreme Court in the case Commercial Farmers Union and 9 Others v The Minister of Lands and 6 Others SC
31/10 wherein it was held at pages 21 and 23 of the cyclostyled judgment that:
"On
the other hand, s 3 of the Act criminalises the continued occupation of
acquired land by 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 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."
And it was held
further that:
"The
holders of offer letters, permits or land settlements 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."
The first
respondent argues that he is wrongly cited in the application as he is not the
owner of the farm but merely an employee of a tenant company. I disagree.
The first respondent is in physical occupation of the farm and therefore
an "occupier" in terms of the land laws of the country. In his personal
capacity he has no authority to occupy the farm neither has Sagar the tenant company
for which he works. The "landlord"
Harvey (Pvt) Ltd is a former owner. It
no longer holds any rights over the farm and as such cannot lease it to
anyone. I would accordingly dismiss the
first respondent's defence in that regard.
I now return to
the issue of the point in limine
raised by the first respondent, namely, that the application is devoid of
urgency. The applicant is a self-actor. He filed under his own hand a certificate of
urgency in his own case. In terms of the
rules, only a legal practitioner by virtue of his position as an officer of
this court, is competent to issue a certificate of urgency in a matter in which
he has no interest. The applicant is not
a legal practitioner and worse still his interest in the outcome of the matter
is obvious. A certificate of urgency
issued under his hand would be incompetent for conflict of interest.
However, this
court has previously held that matters pertaining to land disputes should be
heard on an urgent basis. I agree
with BHUNU J when he held in Hudson Zhanda and Anor v T.J. Greaves (Pvt) Ltd and 2 Ors HH - H - 11
(HC 6257/11) as follows:
"Having
regard to the importance of land disputes, the need to provide order, peace and
tranquility and the restoration of legality on the land, there is need to resolve
such disputes with a measure of urgency."
And further the learned judge observed that "A perusal of land cases in
this court will show that the bulk of land cases are dealt with on an urgent
basis."
It was for these
reasons that notwithstanding the applicant's failure to strictly abide by the
rules of the court, I condoned that failure in the wider interests of public
policy. In any event this is not a case
in which the applicant had sat back over the years doing nothing about his
occupation of the farm. It has been
shown that the applicant worked in cooperation with the lands office whose advice
he followed. It was the first
respondent's intransigence and resistance that prevented the applicant's timely
occupation. Indeed the first respondent
was actively encouraged by the District Administrator and the Lands Committee
to defy the applicant's legitimate demands.
Sight must not be lost of the fact that it is the first respondent who
is on the wrong side of the law. It
would be wrong and improper for this court to prolong this illegality on the
part of the first respondent merely because the technical requirements of a
certificate of urgency have not been met.
For these
reasons this application must succeed.
The applicant wishes to have the first respondent evicted
forthwith. I do not think that it would
be fair or prudent to do so. The first
respondent moral's blameworthiness is somewhat reduced by the encouragement he
received from the Ministry of Local Government (DA's office) and the lands
committee. He has planted about 100
hectares of tobacco which crop is at different stages of maturity. The applicant has not disputed this
fact. I am therefore inclined to the view
that it would be just and equitable to give the first respondent reasonable
time to wind up his activities on the farm.
In view of the illegality of his occupation he should not expect to be
given anything more than the minimum reasonable time.
Accordingly to
that extent the application succeeds and it is ordered as follows:
1. That the first respondent and all those
claiming through him be and is hereby ordered to vacate the farm, namely a
certain piece of land known as plot 2 of subdivision A of Hunyani East,
popularly known as Malaba Farm, on or before 30 April 2012, failing which the
Deputy Sheriff be and is hereby authorised to evict the said first respondent
and all those claiming through him from the said property.
2. The
Deputy Sheriff may enlist the assistance of the Zimbabwe Republic Police in the
enforcement of this order.
3. The
first respondent shall pay the costs of this application.
Messrs Wintertons, first respondent's
legal practitioners
