TAKUVA J: This is an appeal
against the decision of a magistrate evicting the appellant and anyone claiming
through him from Lot 2 of Kilworth, Zvimba District in Mashonaland West
Province. A synthesis of the grounds of appeal is as follows:
(a)
that the lower court erred by entertaining an application for eviction when s11
(1) (b) (iii) of the Magistrates' Court Act expressly states that ejectment
shall be by way of an action.
(b)
that the lower court failed to note that respondent being a beneficiary to
state land, had no right to eject another beneficiary.
(c)
that the lower court erred at law by failing to uphold the offer letter given
in favour of respondent could not oust appellant's official letter of
settlement on the land in question.
(d)
that the issue was res judicata after respondent withdrew case No.
260/10 in which the High Court under case No. CIV (A) 423/11 ordered to be
heard de novo.
The appeal was opposed on the following
grounds:
(a)
that appellant has no legal rights over the land in question in that any rights
he may have had prior to acquisition by the state were extinguished.
(b)
that appellant cannot lawfully challenge any acquisition of land done in terms
of s 16B (2) (a) (iii) of the Constitution of Zimbabwe.
(c)
that in terms of s 3 (2) of the Gazetted Land (Consequential Provisions) Act [Cap
20:28], the appellant as a former occupier of gazetted land shall cease to
occupy it within a certain period.
(d)
that by continuing to occupy the land, appellant is committing a criminal
offence in terms of s 3 (3) of [Cap 20:28].
(e)
that s 11 (1) (b) (iii) of the Magistrates' Court Act is inapplicable.
The facts of this matter are common cause.
Briefly they are as follows; On 8 May 2006, the District
Administrator, Zvimba District issued a letter to the appellant. The
letter reads;
“This minute
serves to confirm that JERIPHANOS MUGAVIRI I.D. Number 32-053835227 was
officially allocated land at Kilworth II farm plot number 04 under resettlement
programme.”
On 27 October 2006, the Government of Zimbabwe acquired a piece of land being
Lot 2 of Kilworth measuring two hundred and seventy four coma zero nine one
three zero (274,09130) hectares. Subsequently, on 8 November 2006, the
Ministry of Land Reform and Resettlement addressed an offer letter to the
respondent under the Model A2 Scheme. The offer letter related to the
entire farm area of Lot 2 Kilworth Estate.
Respondent discovered that prior to his occupation of the farm the District
Administrator had allowed ten families to settle on a section of Lot 2 Kilworth
Estate. The Zvimba District Lands Committee decided to relocate the 10
famers to Sunnyside Central Farm. Nine of those farmers left but
appellant refused to relocate. Effectively, the decision of the Zvimba
District Lands Committee amounted to a withdrawal of the original letter and
its replacement with a new offer letter in respect of Sunnyside Central Farm.
Frustrated by appellant's refusal to
vacate the farm, respondent instituted proceedings by way of an application for
eviction in the Magistrates' Court. The application was granted.
The magistrate in his ruling reasoned as follows:
“Whereas the
applicant is the holder of the offer letter for Lot 2 Kilworth Estate acquired
in terms of section 16B (2)(a)(iii) of the Constitution of Zimbabwe, the
respondent has none except an official letter from the District Administrator
which is not an offer letter, per se. Respondent has
therefore no legal basis to remain at the property …” (my emphasis)
In my view the court a quo did
not err at all in so reasoning as I shall demonstrate shortly. Despite
the numerous grounds of appeal, the sole issue crystalises to; what are the
legal consequences of land acquisition by the state on the parties? In
order to answer this question it is necessary to examine the law as enshrined
in the relevant statutes. Section 16B (2) (a) (iii) provides as follows:
“16B Agriculturalland acquired for
resettlement and other purposes
(1)
In this section;
“Acquiring
authority” means the Minister responsible for lands or any other Minister whom
the President may appoint as an acquiring authority for the purposes of this
section;
“Appointed day”
means the date of commencement of the Constitution of Zimbabwe Amendment (No.
17) Act, 2005.
(2)
Notwithstanding anything contained in this Chapter
(a)
All agricultural land
(iii)
that is identified in terms of this section by the acquiring authority after
the appointed day in the Gazette or Gazette Extraordinary for whatever purpose,
including but not limited to
A.
settlement for agricultural or other purposes; or
B.
the purposes of land re-organisation, forestry, environmental conservation or
the utilization of wildlife or other natural resources; or
C.
The relocation of persons dispossessed in consequence of the utilization of
land for a purpose referred to in subparagraph A or B;
Is acquired
by and vested in the State with full title therein with effect from the
appointed dayor, in the case of land referred to in
subparagraph (iii) with effect from the date it is identified in the manner
specified in that paragraph.” (my emphasis)
Quite clearly from the above provisions, the state becomes the owner of
acquired land from the date of publication in the gazette. In casu,
the state acquired ownership rights on the 27th of October
2006. The respondent acquired rights on 8 November 2006 when the land was
offered to him by the Minister of State for National Security, Lands, Land
Reform and Resettlement in the President's office. On the other hand, the
appellant certainly did not acquire any lawful rights of occupation in that at
the time his “permit” or whatever “authority” was given to him, the land had
not yet been lawfully acquired by the State. Therefore, unfortunately,
the appellant did not acquire any legal rights on 8 May 2006 as the District
Administrator's Office did not have any lawful rights to pass on to the
appellant.
The letter issued to the appellant was not issued pursuant to gazette
land. It was not issued by the relevant Minister. It does not
require the appellant to accept or reject the offer. It was not given in
terms of section 8 of the Agricultural Land Resettlement Act [Cap 20:01].
In short, it is not an offer letter as defined in s 2(1) of the Gazetted Land
(Consequential Provisions) Act [Cap 20:28]. It also does not fit
into the definition of a “land resettlement permit” in the same Act.
The appellant who admits occupying the
land during the “land invasion” was employed by the former white commercial
farmer as a builder. He used to occupy what he referred to as a
“bungalow” before the farm was gazetted. Consequently, the appellant is a
former occupier of gazette land whose rights are prescribed by section 3 of the
Gazetted Land (Consequential Provisions) Act supra. The section
states:
“3. Occupation of Gazetted land without
lawful authority
(1)
Subject to this section, no person may hold, use or occupy Gazetted land
without lawful authority.
(2)
Every former owner or occupier of Gazetted land –
(b)
Referred to in paragraph (b) of the definition of “Gazetted land” in section
2(1) shall cease to occupy, hold or use that land forty-five days after the
date when the land is identified in accordance with section 16B(2)(a)(iii) of
the Constitution, unless the owner or occupier is lawfully authorized to
occupy, hold or use that land …”.
As regards res judicata, it is
clear that the appellant does not understand what it means in that when a
matter is referred to the court a quo for proceedings to commence de novo,
the issue of res judicata does not arise and cannot be available to a
party as a defence in that there are no two actions to talk about as the
original action was set aside – see Herbstein & Van Winsen: The Civil
Practice of the Supreme Court of South Africa 4 ed by Van Winsen, Cilliers
and Loots at p 249 and O'Shea v Chiunda 1999(1) ZLR 333 (S).
Similarly the raising of the provisions of
s 11(1) (b) (iii) of the Magistrates' Court Act is as a result of a misreading
of the section. It is totally inapplicable. In any case, if the
criticism's epicenter is that the court a quo should not have dealt
with the matter as a court application, the magistrate's explanation that where
there are no material disputes of fact in a matter involving eviction, a party
may be allowed to proceed by way of a court application rather than by way of
summons, is a sound explanation. In any case even on this point, it has
not been shown that the choice of which procedure to follow prejudiced the
appellant in any form. It has not been argued that there are disputes of
fact in this matter.
In the circumstances, the appeal is devoid
of merit and is dismissed.
Musakwa J I
Agree:____________________
Kawonde
and Company, respondent's legal practitioners
