BHUNU
J: The plaintiff company is the former
owner of Mount Shannon Estates commonly known as Mount Lothian Estates
measuring 572.67 hectares in extent situate in the district of Goromonzi.
The
plaintiff's representative, Mr Christopher Geoffrey Tracy is a respectable grand
old man of 83 years of age. He is the Chairman of Plaintiff Company and former
occupier of the farm in dispute He has held positions of honour in various
corporate bodies during his hay days. He is the former director of the
Agricultural Marketing Authority, the former chairman of T S L and Zimbank.
The
plaintiff has unfortunately lost its land owing to the on going land reform
programme much to the chagrin of Mr Tracey.
His
main protagonist Colonel Godfrey Mutemachani is an equally honourable middle
aged gentleman with an impressive record of having relentlessly fought for the
liberation of this country from colonial bondage. He is the beneficiary of the
agrarian land reform programme who was allocated a potion of the plaintiff's
farm together with an honourable former judge president of this court.
The
second defendant is a company in the business of manufacturing seed maize that
was contracted to grow seed maize at the material time by the plaintiff.
The third defendant is the acquiring authority
responsible for the acquisition of the plaintiff's farm in terms of the land
Acquisition Act [Chapter 20:10] in
pursuit of the Government's land reform programme.
The
justification and rational of the land reform programme was amply articulated
by the then minister for Lands and Agriculture and Rural development Mr Made in
his founding affidavit at page 72 of exhibit one where he says:
"2. Mt Shannon Estate,
measuring five - hundred and seventy - two
comma six seven
(572. 67) Hectares, situate in the district of Goromonzi owned by the
respondent has been acquired by the applicant in terms of s 8 (1) of the said
Act. An order acquiring the said land was served on the respondent, a copy of which
is annexed hereto and marked hereto annexture "A".
3.
The respondent has lodged a
written objection to the acquisition of the land in terms of section 5 (1) (a)
(iii) A of the said Act.
4.
The acquisition of this land is
reasonably necessary for its utilization for resettlement for agricultural
purposes.
5.
The acquisition is also in
accordance with Government's Resettlement Programme. The land concerned is
suitable for resettlement under model A2 which is described in annexture "B".
6. At Independence
in 1980, the Government of Zimbabwe
inherited a racially oriented agricultural and land ownership structure. About
6 000 whites owned 15 million hectares of land. This represented about 45% of
the total agricultural land of 33 million hectares. 50% of this land is in the
high agro-ecological region 1, II and III. The smallholder farming subsection,
comprising 8 500 indigenous farmers held 5 % (1.65 million hectares) of the
agricultural land located mostly in the drier marginal agro-ecological regions
1V and V. The Tribal Trust lands (now communal lands), home to about 700 000
farming families occupied less than 50% of the agricultural land 75% of which
is located in agro- ecological regions 1V and V with poor soil fertility.
7.
The problems arising out of
this colonially engineered inequity in land distribution and ownership in the
communal areas are common, these include land degradation, low productivity,
over-stocking and over- grazing. The majority of black Zimbabweans still live
precariously on less than an average of 3 hectares of rain fed agricultural
land compared to an average of 2000 hectares in the white dominated commercial
farming areas. This is a reflection of a colonial legacy of racial and class
monopoly over forcefully alienated land, and remains a threat to national peace
and stability. There is need therefore to address the inherited land ownership
disparity in the land reform programme.
The Commercial Farmers'
Union, the umbrella body of the commercial
Farmers who own almost all the viable land aforesaid and most of their national
peace and stability. There is need therefore to address the inherited land
ownership disparity in the land reform programme. The Commercial Farmers'
Union, the umbrella body of the Commercial Farmers who own almost all the viable land aforesaid
and most of their membership have indeed acknowledged this need to resettle the
landless black population. (My emphasis)
9. The
overall aim of the land reform programme as a component of the National
agrarian Agenda is therefore to create a just, democratic and efficient land
economy and to evolve consensus around the drive for national economic
development. The key components of this agenda are:
(a)
to ensure
equitable and just access to all types of land;
(b)
to ensure
optimum and environmentally sustainable utilization of the land;
(c)
to ensure
adequate supplies of raw materials to other sectors of the economy like
manufacturing and services;
(d)
to generally
create more employment opportunities in agriculture and related sectors and
increase exports; and
(e)
pursuant to
the above, create the necessary conditions for the indigenization of the
Zimbabwean economy as the premise upon which to predicate durable national
stability and peace.
10.
The
government of Zimbabwe
has since carried out analyses that
yielded strategic patterns of land holdings
and ownership consistent with the foregoing vision."
Given
the historical background in which the acrimonious acquisition and allocation
of the plaintiff's land occurred, it is hardly surprising that it generated
intense resentment and hatred between Mr Tracy and the two new farmers. Having
taken legal advice, Mr Tracy appears to have realized that the land reform
programme was an irreversible reality which he had to live with. He therefore sought
to make the best out of an untenable situation by enlisting the services of his
two adversaries to try and at least salvage a portion of the farm for himself.
Thus despite the initial animosity the three protagonists
eventually sat down at a round table conference where they hammered out an
agreement in which they agreed that the two new farmers would support the
plaintiffs application to government to be allowed to retain a portion of the land on condition
Mr Tracy assisted them in their farming activities. The agreement which was
drafted by the plaintiff's lawyers at his instance and request and duly signed
by the parties reads in part:
"WHEREAS:
- The company is normally the registered owner of a
farm in the Enterprise Valley of the Goromonzi District commonly called
'Mount Lothian'
but registered as mount
Shannon of the
meadows ['the farm'];
- The farm is however subject to a s 8 acquisition
order and a s 7 court application through which Government seeks to
confirm the acquisition of the farm by Court Order under the land
acquisition Act although those proceedings are yet to be determined.
- The First and second (Read colonel Mutemachani.)
parties have been given the right by Government to occupy the farm but
- CGT (Read Christopher Geoffrey Tracey.) seeks to
retain part of the farm for his own use and that of the company. CGT is
endeavouring to negotiate the right to continue to remain in occupation of
part of the farm and the first and Second parties require the assistance
of CGT to carry out their own farming operations on the subdivisions of
the Farm upon which the parties agree.
- CGT has the equipment and manpower to attend to
farming operations on the whole Farm and the First and Second Parties need
assistance to farm their own subdivision.
- The full and final rights of the parties are yet to
be determined by the courts but the First and second Parties wish in the
interim to utilize parts of the Farm and the company and CGT wish to be
able to the other parts of the Farm and to occupy and use certain
accommodation and facilities on the farm.
- The parties have come to an interim agreement in
terms of which they agree to co-exist on the Farm which agreement they
wish to set out in written form.
NOW THEREFORE
THE PARTIES AGREE AS FOLLOWS:
1.
Subdivision
1.1.1
Subject to the provisions of clause 4.6 the company and
CGT will not object to the First and Second Parties having access to and using
that part of the farm which is outlined in red on the accompanying diagram
[herein called 'the Western Portion'].
1.1.2
The First and Second Parties will support the Company
and CGT in their endeavours to retain ownership and control of that part of the
farm that is outlined in yellow [Herein after called 'the Eastern Portion'] and
will support and protect them and their workers in their endeavours to regain
and obtain occupation of their homes on the Farm and their ongoing use of the
Eastern portion in the confident belief that there is no reasonable necessity
for the Company or CGT to be deprived of its land holding and that the parties
by their joint and individual endeavours will be able to secure the approval of
this arrangement by the Acquiring Authority."
Following the above agreement all the parties concerned
performed their respective obligations calumniating in a joint submission of a
request to the provincial land committee to endorse the terms of the agreement.
Unfortunately for the plaintiff and Mr Tracy the provincial
land committee did not accede to the request. On 28 January 2004 the Provincial
administrator wrote to Mr Tracy saying:
"Reference is made
to the heads of agreement reached between you Mr ... and Mr Mutemachani, a copy
of which was forwarded to this office in March 2003.
The heads of
agreement have been considered by the provincial land committee. It is the view
of the committee that the heads of agreement are in no way binding on the
Government and that they represent nothing more than a recommendation to the
Government to allocate a portion of Mount Lothian
Farm to you.
Having carefully
considered the matter the provincial land Committee does not accept the
recommendation that a portion of the farm which was already allocated under the
A2 model scheme be allocated to you. The farm was allocated to Mr . and Mr T
Mutemachani. (My emphasis)
The Committee takes
this opportunity to remind you that Mount
Lothian farm is the
subject of a s 8 notice, which is binding,"
The
unexpected turn of events was understandably of great disappointment to Mr
Tracy thereby reviving the old rivalries over the ownership and occupation of
the farm. It so happened that during the acquisition and occupation of the farm
colonel Mutemachani because of his military background played a prominent role
in displacing the plaintiff and Mr Tracy from the farm whereas the honourable
Judge because of the sensitivity of his judicial mantle chose to keep a low
profile. This apparently explains why the plaintiff has elected to sue only the
colonel to the exclusion of the honourable judge.
In his grief Mr. Tracy has now through the
plaintiff company initiated proceedings in this court challenging the legality
of the acquisition of the farm prior to 14 September 2006 when the farm was finally
acquired in terms of constitutional amendment number 17. The plaintiff
therefore seeks a declaration against third defendant to the effect that prior
to that date the land was not lawfully acquired by the state in terms of the
laws of the land at the material time.
As
against the first and second defendants the plaintiff seeks compensation for
alleged unlawful occupation and use of its land during that period.
In
respect of the legality or otherwise of the acquisition of the farm during the
period under review the plaintiff and third defendant have filed a statement of
agreed facts in the following terms:
"1. The parties agree that a
preliminary notice was published in the Gazette as General Notice 65 of 2002 on
8 February 2002 for the acquisition of Mount Shannon Estate measuring 572.67
hectares situated in the district of Goromonzi.
2. The parties agree that an
acquisition order in respect of Mount Shannon Estate was issued on 29 June
2002.
3.
The parties agree that the said acquisition order was
served on one HANDSO LIBERRETO, an employee of the plaintiff on 29 June 2002 at
the farm.
4. The
parties further agree that an application for confirmation of the acquisition
of Mt. Shannon Estate was lodged with the administrative Court on 29 July 2002."
I
take the robust view that once the acquisition order was issued and served on
Handso Liberreto an employee of the plaintiff in respect of Mount Shannon
Estate the farm was compulsorily acquired according to law and the plaintiff
understood and accepted the position as such.
It
is pertinent to note that in the above Heads of Agreement the plaintiff through
its chairman unequivocally acknowledged that government had acquired the farm
in question. He further acknowledged that the defendant had been given
authority to occupy the farm. On a proper reading of the agreement one gets the
unmistakable impression that the plaintiff had no quarrel with the legality of
the acquisition of his farm. Its major concern was to be allowed to retain a
portion of the farm with the assistance of the defendant and the learned judge.
Thus
the defendant and his Lordship proceeded to assist the plaintiff in its
endeavour to retain a portion of the farm on the understanding that it was not
challenging the legality of the acquisition of the land by government as well
as their right to occupy the farm. Had the plaintiff indicated otherwise, the
two were unlikely to have assisted the plaintiff in its bid to retain a portion
of the farm.
It is trite and a matter of elementary law
that agreement is of the essence of contract. Lawful agreements are sacrosanct
and have the full backing of the law. Thus both parties stand firmly bound and
held unto their Heads of Agreement dated 18 February 2003.
By
supporting the plaintiff's bid to retain a portion of the farm, the defendant
undoubtedly discharged his part of the bargain. Having performed his part he was
entitled to hold the plaintiff to its part of the bargain. That the plaintiff's
bid to retain a portion of the farm did not find favour with the authorities is
not the defendant's problem.
It is also important to note that the Heads of
Agreement were not binding on the acquiring authority as he was not privy to
that arrangement or agreement. That being the case the acquiring authority was
within his rights in refusing to honour the agreement to which he was not a
party.
It
is therefore untenable at this juncture for the plaintiff to turn around and
begin to challenge the legality of the acquisition of Mount Shannon Estate and
the defendant's right to occupy the same at any stage after the 29th
June 2002.
The
plaintiff's Chairman gave the Court the impression that he was bitter and
confused about the loss of the land coupled with his failure to retain a
portion of the farm. In his evidence he confused the portion of the farm
occupied by the learned judge for that which is occupied by the defendant. The
unfortunate result is that the plaintiff is suing the first defendant for
wrongful occupation of a portion of the farm which he has never occupied.
It
also later emerged during the trial and Mr ... unreservedly conceded that the
plaintiff had infact been adequately compensated for all the acquired immovables
for which compensation was being claimed. That being the case the plaintiff had
no option but to withdraw all its claims for compensation based on all
immovable property.
It
also transpired at the trial that the plaintiff had infact no claim against the
second defendant Pioneer Seeds Company (Pvt) Ltd for the simple reason that it
occupied and cultivated the farm in terms of a valid agreement with the
plaintiff. In the circumstances it boggles the mind why the plaintiff ever took
the trouble to sue the second defendant. The plaintiff's irrational conduct in
this respect merely serves to illustrate the extent of plaintiff's confusion.
On
the other hand the first defendant was an honest and reliable witness whose
evidence was consistent with all the proven facts. I believe him.
As
regards costs counsel for the plaintiff sought costs at the higher scale debonis propriis against Mrs Hove who initially represented the first
defendant as punishment for some alleged improper conduct during the course of
pleadings. By the time these submissions were made Mrs Hove had already withdrawn from the trial and was no longer present
to answer the allegations against her. No attempt was made to secure her
presence to deal with the question of costs. It is again trite and a matter of
elementary law that the Audi Alteram
Partem rule, that is to say, no one should be condemned without being heard
is the bedrock foundation of the justice of our legal system There is no need
to rely on any authorities for that elementary proposition of law, but if any
is required one need not look further than Techniquip
(Pvt) Ltd v Allan Cameron Engineering (Pvt) Ltd 1994 ZLR 246.
Having
said that, I am convinced beyond question, that there is absolutely no merit in
plaintiff's claims which are accordingly dismissed with costs.
Coghlan, Welsh & Guest, plaintiff's Legal Practitioners
Hove and Associates, and Magwaliba Matutu and Kwirira, 1st
defendant's legal practitioners
Civil Division of The
Attorney General's Office, 3rd defendant's
legal practitioners