GARWE JCC:
[1] After
perusing the papers filed with the court and hearing oral submissions from
counsel, this Court dismissed the application with no order as to costs and
indicated that the reasons for the order would be made available in due course.
[2] The
reasons follow hereunder.
FACTUAL BACKGROUND
[3] The
applicants were employed by one Archie Black, a white commercial farmer, who
owned a property known as Mgutu of Great B Farm, Mazowe (“the farm”). A notice of acquisition of the farm was
gazetted on 8 September 2000. The farm
was subsequently acquired by the State pursuant to the promulgation of the
Constitution of Zimbabwe Amendment Act (No 17).
It was then divided into thirty three plots and allocated to various
beneficiaries under the land reform programme.
Following the acquisition of the farm by the Government, Archie Black
left the farm. The applicants however
remained on the farm and continued to use the farm compound, house and storage
sheds situate on land allocated to one of the beneficiaries. The applicants were not formally engaged to
provide services for any of the resettled farmers who had been allocated land
on the farm.
[4] The
applicants were consequently charged by the State with the crime of
contravening s 3 (2) (a) as read with s 3 (3) of the Gazetted Lands
(Consequential Provisions) Act, [Chapter
20:28] (“the Gazetted Lands Act”), it being alleged that as “former
occupiers of gazetted land” they had continued to use and occupy the farm
without lawful authority. The
Magistrates Court, Harare, then placed them on remand. Thereafter the applicants filed an
application with the court for various issues to be referred to the Supreme
Court.
THE APPLICATION
FOR REFFERAL
[5] In their
founding papers, the applicants requested that the matter be referred to the
Supreme Court in terms of s 24 (2) of the former Constitution. They alleged that they had either migrated to
Zimbabwe a long time ago or had been born and bred on the farm and had worked
for Mr Archie Black for many years. As
part of their conditions of employment, Mr Black had provided them with
accommodation, clean and safe drinking water, electricity, sanitary facilities
and food rations.
[6] Whilst
accepting that title in the farm now vested with the Government, they however
maintained that the acquisition of the farm had not signified the automatic
termination of their contract of employment.
They submitted that the acquisition had resulted in a transfer of the
farming undertaking and consequently, in terms of s 16 of the Labour Act [Chapter 28:01], the beneficiaries or
holders of offer letters had assumed the position of employer, with the
concomitant responsibility of employing them, on terms and conditions similar
to those they previously enjoyed. They
further submitted that their prosecution and possible eviction at a time when
their employment had not been lawfully terminated violated their right to the
protection of the law and in particular their labour rights and the right not
to be subjected to inhuman and degrading treatment.
[7] During
oral submissions before the Magistrates' Court, the applicants requested the
court to refer the following questions to the Supreme Court:
(a) whether
the intention to evict the applicants, who have valid and subsisting contracts
of employment and claim occupation through such employment, is a breach of
their right to the protection of the law guaranteed under s 18 of the former
Constitution.
(b) whether
the facts alleged constitute a criminal offence and, if not, whether the
prosecution is not a breach of their right to liberty.
(c) whether
the prosecution and consequent eviction of the applicants is not a violation of
their right to life and, in particular, livelihood.
(d) whether
the ejectment of the applicants would violate s 11 of the former Constitution,
and
(e) whether
the conduct of the State in seeking to eject its own people who have valid
employment contracts entitling them to occupy premises at their place of
employment is not in breach of s 15 of the former Constitution.
[8] At
the hearing of the application Counsel for the respondent made the following
submissions. Section 16B of the former
Constitution provided for the compulsory acquisition of agricultural land for
resettlement and such land would vest in the State with full title therein. Section 16B (6) provided that an Act of
Parliament may make it a criminal offence for any person to continue to
possess, occupy or use acquired land without lawful authority. The prosecution of former owners or occupiers
of gazetted land is therefore derived directly from the Constitution. As the applicants had no lawful authority to
occupy a portion of the farm, they were liable to prosecution in terms of the
Act. Further, it being common cause that
they were residing on the farm, the applicants were therefore in occupation of
acquired land. They had ceased being
employees. Their employment had been
terminated following the acquisition of the farm. The Labour Relations (Terminal Benefits and
Entitlement of Agricultural Employees affected by Compulsory Acquisition)
Regulations S.I 6/2002 was applicable to them.
[9] In a
terse judgment, the Magistrates'Court ruled that “these issues” often arise in
the lower courts and “have far-reaching implications on the rights of former
employees of (sic) all gazetted
lands”. Consequently the court found
that the application was neither frivolous nor vexatious and accordingly
referred the matter to the Supreme Court in terms of s 24 (2) of the former
Constitution.
SUBMISSIONS BEFORE
THIS COURT
[10] In
submissions before this Court, counsel for the applicants has argued that the
matter turns squarely on the protection of the law guarantee enshrined in s 18
(1) and 18 (1a) of the former Constitution.
In this regard the first question was whether the facts alleged, namely
that the applicants, being former occupiers of gazetted land, had continued to
use and occupy the farm in question, constitute a criminal offence. The applicants, their employment not having
been terminated and in fact having been transferred to another undertaking, remained
employees of the new beneficiaries and by virtue of such employment, are
entitled to continue to reside at the farm.
Counsel also relied on the applicants' submissions made before the
Magistrates' Court at the time of the application for referral.
[11] In his
submissions, the respondent has taken the preliminary point that no
constitutional issue arises from the prosecution of the applicants in this
matter. Section 3 (2) of the Gazetted
Lands Act refers to “every former owner or occupier” of gazetted land. Clearly applicants are occupiers and any
suggestion to the contrary is untenable.
Further, and in any event, a number of decisions of the Supreme Court,
sitting as a Constitutional Court, have held that the prosecution of former
owners or occupiers is not a violation of the right to the protection of the
law or any other right under the Declaration of Rights. On the merits the respondent has submitted
that the acquisition of land is not a contractual transaction and, therefore,
the employment of the applicants was not transferred to the beneficiaries of
the land redistribution programme. In
any event, Statutory Instrument 6/2002 caters for the terminal benefits of farm
workers, which are payable by the former owner upon acquisition of the farm.
ISSUES FOR
DETERMINATION
[12] Flowing from the submissions made by counsel,
a number of issues arise before this Court.
These are, firstly, whether a constitutional issue arises before this
Court. If not, then that is the end of
the matter. Only if it does, would it be
necessary to consider the second issue, namely, whether the facts as alleged
disclose a criminal offence. If not,
then the applicants would be entitled to the declaratur they seek that they have been denied the right to the
protection of the law. If the facts
disclose an offence, the third issue that would rise is whether the applicants
remain employees of the holders of the offer letters who are currently entitled
in terms of the law to occupy and engage in farming activities on the farm.
WHETHER THE
APPLICATION RAISES A CONSTITUTIONAL ISSUE
[13] The
question is whether the prosecution of the applicants in the Magistrates Court
under s 3 (2) (a) as read with s 3 (3) of the Gazetted Lands Act is a
violation of the applicants' rights to the protection of the law.
[14] The
application was referred on 7 June 2012 to the then Supreme Court sitting as a
Constitutional Court in terms of s 24 (2) of the former Constitution of
Zimbabwe. It was however only heard by
the Constitutional Court on 21 January 2015. The application was therefore “a pending constitutional
case” that fell to be determined by the Constitutional Court in terms of the
new Constitution – paragraph 18 (1) and 18 (9) of part 4 of the Sixth Schedule to
the Constitution.
[15] Section
3 of the Gazetted Lands Act has been held in a number of decisions of the
Supreme Court sitting as a Constitutional Court to be constitutional.
15.1 In Commercial Farmers Union & Ors v The
Minister of Lands and Rural Resettlement
& Ors 2010 (2) ZLR 576 (S), 589 C-D, the Court remarked:-
“As regards the
complaint that the individual applicants are being unfairly or illegally
prosecuted for contravening s 3 of the Act, the answer is to be found in the
case of Tom Beattie Farms (Pvt) Ltd and
Anor v Ignatious Mugova and Anor Civil Application No. SC 32/09 in which
this Court issued the order cited above. There is nothing in Mr de Bourbon's submissions that persuades
this Court to revisit the order issued in Tom
Beattie's case supra. This Court
has determined that s 3 of the Act is Constitutional. It is not open to the
applicants to contend that prosecutions in terms of s 3 of the Act are unconstitutional.”
15.2 At
p 592 A, the Court continued:
“…… 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 right of any
description in respect of the acquired land once the prescribed period has
expired.”
15.3 By way of summary the Court further
remarked at p 595 D-G:
“In conclusion, I
would summarise the legal position as follows –
(1)
…….
(2)
…….
(3)
Every former owner or occupier of
acquired or
gazetted land who has no lawful authority is legally obliged to cease occupying
or using such land upon the expiry of the prescribed period …….By operation of
law, former owners or occupiers of acquired land lose all rights to the
acquired land ……….”
[16] The
new Constitution in s 72 (6) provides that an Act of Parliament may make it a
criminal offence for any person, without lawful excuse, to possess or occupy
agricultural land. In effect therefore
the new Constitution has not tampered in any way with the law as it existed
under the former Constitution and in fact re-affirms that the provision remains
the same.
[17] The
applicants' case is predicated on their understanding that as former employees
of an undertaking that was transferred to the newly resettled farmer, they
remained employees by virtue of s 12 (b) as read with s 16 of the Labour Act.
[18] I
agree with the respondent that the question whether the applicants remain
employees in terms of s 16 of the Labour Act is a question of
interpretation. It is not an issue
involving a breach of the declaration of rights.
[19] Under
both the old and new Constitutions an occupier of gazetted or acquired land is
liable to prosecution in the event that he or she does not have lawful
authority for such occupation, a position conceded by Mr Uriri.
DISPOSITION
[20] In the
circumstances, the referral of this matter to this Court was not proper as the
application raised no constitutional issue.
[21] Even
on the merits, it is clear that there was no transfer of an undertaking
following the acquisition of the farm and its subsequent allocation to a number
of beneficiaries. The Constitution
itself makes it clear that anyone who possesses or occupies gazetted land
without lawful authority may be guilty of a criminal offence. What constitutes lawful authority is defined in
the Act. The applicants have no such
authority. In these circumstances, there
can be no question of the applicants having remained employees of, or the farming
operations having been transferred to, the new beneficiaries.
[22] For
the above reasons the matter was dismissed with no order as to costs.
CHIDYAUSIKU
CJ: I
agree
MALABA
DCJ: I agree
ZIYAMBI
JCC: I agree
GWAUNZA
JCC: I agree
GOWORA
JCC: I agree
HLATSHWAYO
JCC: (comments not received)
PATEL
JCC: I agree
MAVANGIRA
AJCC: I agree
Zimbabwe Lawyers
for Human Rights,
applicant's legal practitioners
National Prosecuting Authority, respondent's legal practitioners
