CHIDYAUSIKU CJ: This
application is made in terms of s 24(1) of the Constitution of Zimbabwe
(hereinafter referred to as "the Constitution"). The applicants seek the relief set out in
the draft order.
The
applicants 2 to 10 (hereinafter referred to as "the individual applicants")
are former owners or occupiers of land that has been acquired by the State in
terms of s 16B of the Constitution.
In terms of s 16B of the Constitution, former owners or occupiers
of land that has been acquired must cease occupation of the acquired land
within ninety days. The ninety days
have since expired. Despite the expiry
of the ninety days, the individual applicants have remained in occupation of
the acquired land. Section 3(2) of
the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] (hereinafter
referred to as "the Act") explicitly provides that a former owner or
occupier who does not cease to occupy acquired land on the expiry of the period
prescribed shall be guilty of an offence.
The applicants allege that their constitutional rights,
as guaranteed in Chapter III of
the Constitution, have been violated in a number of respects. They have detailed the respects in which
their rights have been violated in para 16 of the founding affidavit,
which reads as follows:
"16. The
object of this application is generally to seek and secure the protection by
the Courts of the applicants in terms of section 24 of the
Constitution. The individual applicants
and the CFU acting on behalf of its general membership complain that:
a) they
are being improperly treated because of their race in contravention of
section 23 of the Constitution;
b) they
are being denied protection of the law and equality before the law under
section 18 of the Constitution; and that
c) they
are being unfairly tried on charges of contravening section 3 of the
Gazetted Lands (Consequential Provisions) Act; and that
d) the
racial imbalance sought to be addressed in the land reform programme has been
achieved rendering any further evictions of white farmers unlawful; and that
e) the
Ministers, Ministry officials, magistrates, public prosecutors, court
officials, police and military (all being public officials) mentioned in the
body of the application and affidavits have breached their duties in terms of
section 18(1a) of the Constitution to uphold the rule of law and to act in
accordance with the law."
On the
basis of the alleged violations of their rights set out above, the applicants
seek the relief set out in para 20 of the founding affidavit as read with
the draft order. Paragraph 20 of
the founding affidavit reads as follows:
"20. The
applicants seek the protection of the law as provided for in subsections (1)
and (1a) of section 18 of the Constitution by placing a moratorium on:
20.1 the
occupation by holders of offer letters for agricultural land which is still or
already occupied by third persons particularly those white farmers who may have
been in occupation at the time of enactment of the Gazetted Lands
(Consequential Provisions) Act [Chapter 20:28].
20.2 the
institution and pursuit of prosecutions against such people under
section 3(3)(a) of the (a)foresaid Act.
20.3 the
seizure of farm equipment and material by the holders of offer letters and the
acquisition of such property in the name of the first respondent.
20.4 the
institution and pursuit of proceedings in the Administrative Court in applications by
the Minister of Lands for confirmation of the acquisition of movable items so
acquired.
The applicants pray that the moratorium remains operative pending an
application by the respondents to show cause why they contend the racial
imbalance as envisaged in the Land Reform Programme has not been
addressed."
The draft order reads:
"1. That it be and
is hereby declared that:
(a) The
prosecutions and criminal proceedings in respect of the applicants referred to
in PART VIII of this application for allegedly contravening
section 3(2) as read with section 3(3) of the Gazetted Lands
(Consequential Provisions) Act [Chapter 20:28]
are invalid and of no force and effect in that they are in conflict with
sections 16A, 18(1), 18(1a), 18(9) and 23 of the Constitution of Zimbabwe; and
(b) The
purported attempts of whatsoever nature or kind by the first respondent to
acquire farm equipment and material of the applicants referred to in
PART VIII of this application are invalid and of no force and effect in
that they are in conflict with sections 18(1), 18(1a), 18(9) and 23 of the
Constitution.
2. That
a moratorium be and is hereby ordered in respect of any attempt or intention by
any of the respondents:
i) to
evict any white farmer from any farm referred to in PART VIII and of any
member of the first applicant presently in occupation of their properties who
have not been evicted by order of a competent court having final effect and who
were conducting farming operations as at the date of the filing of this
application; and
ii) to
acquire any farm equipment or material of any of the applicants referred to in
PART VIII of this application.
3. The
moratorium referred to in paragraph 2 above shall remain in force until:
a) the
respondents show good cause why, by application to this Court, that the alleged
racial imbalance in redistribution of land for resettlement as referred to in
the programmes of land reform produced by the first respondent has not been
redressed; and
b) the
first respondent has complied with its programme of land reform.
4. The
respondents shall pay the costs of this application jointly and severally the
one paying the other to be absolved."
Mr Machaya, the Deputy Attorney-General,
represented the first respondent. He
initially raised a number of preliminary objections to the application and filed
a written application for the preliminary points raised to be determined before
consideration of the merits of this case.
The preliminary points raised by the Deputy Attorney-General may be
summarised as follows –
1. The
allegation that the criminal prosecutions of the applicants in terms of
s 3(3) of the Gazetted Lands Act
[Chapter 20:28] are unlawful by
reason of the fact that they contravene s 18(1) of the Constitution is
devoid of merit as that issue has been decided in the matter of Tom Beattie and Ano v Ignatius Mugova
and Ano Supreme Court appeal no. 32/09.
The Court order issued in that case reads in relevant part:
"IT IS DECLARED THAT:
(1) …
(2) …
(3) Sections
3(2) and 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08] are consistent with
section 18(1) of the Constitution of Zimbabwe. Consequently the prosecution of the
applicants under section 277(3), as read with section 277(5), of the Criminal
Law (Codification and Reform) Act [Chapter 9:23]
and sections 3(2) and 3(3) of the Gazetted Lands (Consequential Provisions) Act
[Chapter 20:08] is lawful.
(4) The
Workshop held at Chegutu on 6 February 2009 and its deliberations did not
violate the applicants' rights protected in terms of section 18(2) of the
Constitution of Zimbabwe.
(5) …."
The reasons for that judgment are yet to be given. However, the order explicitly declares
s 3(2) and s 3(3) of the Act as constitutional and the prosecution of
formers owners and occupiers is lawful;
2. The
issue of the alleged unfair trials in contravention of s 18(1a) of the
Constitution and s 18(9) of the Constitution in court proceedings
following a workshop held at Chegutu was similarly determined in the case of Tom Beattie
and Ano supra;
3. The
issue of discrimination against the applicants in contravention of s 23 of
the Constitution is not justiciable in terms of s 16B(3) of the
Constitution;
4. The
issue of whether or not enough land for resettlement has been acquired is a
policy issue and not a legal issue and therefore not justiciable;
5. The
alleged contraventions of ss 18(1), 18(9), 18(1a) and 23 of the
Constitution in respect of the acquisition of equipment are too vague for this
Court to make a determination; and
6. No
case has been made out for the granting of the moratorium sought.
In my
view, there is substance in all the above preliminary points taken by the
Deputy Attorney-General. However, at
the commencement of the hearing in this Court, the Deputy Attorney-General
advised the Court that he did not wish to persist with his written application that
the preliminary issues be determined before the merits of the case. He indicated that his new stance is that the
preliminary issues he raised be considered as part of his submissions on the merits.
I will
deal with the applicants' complaints, as set out in para 16 of the
founding affidavit, seriatim.
(a) Are
the applicants being treated in a discriminatory manner in contravention of
s 23 of the Constitution?
The applicants
allege that the discrimination against them is in the following three respects
–
(i) They
allege that it is only land belonging to white commercial farmers that has been
compulsorily acquired;
(ii) It
is only white commercial farmers who are being prosecuted in terms of s 3
of the Act; and
(iii) White commercial farmers are not being allocated land in terms
of the Land Reform Programme.
It is
common cause that the land in casu,
which the individual applicants occupy, was acquired by the State in terms of
ss 16A and 16B of the Constitution.
Sections 16A and 16B of the Constitution, in relevant part, provide
as follows:
"16A Agricultural land acquired for resettlement
(1) In regard to the compulsory acquisition
of agricultural land for the resettlement of people in accordance with a
programme of land reform, the following factors shall be regarded as of
ultimate and overriding importance –
(a) under
colonial domination the people of Zimbabwe were unjustifiably
dispossessed of their land and other resources without compensation;
(b) the
people consequently took up arms in order to regain their land and political
sovereignty, and this ultimately resulted in the Independence of Zimbabwe in
1980;
(c) the
people of Zimbabwe
must be enabled to reassert their rights and regain ownership of their land;
and accordingly –
(i) the
former colonial power has an obligation to pay compensation for agricultural
land compulsorily acquired for resettlement, through an adequate fund
established for the purpose; and
(ii) if
the former colonial power fails to pay compensation through such a fund, the
Government of Zimbabwe has no obligation to pay compensation for agricultural
land compulsorily acquired for resettlement.
(2) In view of the overriding considerations
set out in subsection (1), where agricultural land is acquired
compulsorily for the resettlement of people in accordance with a programme of
land reform, the following factors shall be taken into account in the
assessment of any compensation that may be payable –
(a)- (g) … .
16B Agricultural land acquired for resettlement
(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 –
(i) that
was identified on or before the 8th July, 2005, in the Gazette or Gazette Extraordinary under section 5(1) of the Land
Acquisition Act [Chapter 20:10],
and which is itemised in Schedule 7, being agricultural land required for
resettlement purposes; or
(ii) that
is identified after the 8th July, 2005, but before the
appointed day, in the Gazette or Gazette Extraordinary under
section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in Schedule 7,
being agricultural land required for resettlement purposes; or
(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 reorganisation, forestry, environmental conservation or the
utilisation of wild life or other natural resources; or
C. the
relocation of persons dispossessed in consequence of the utilisation 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 day or, 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; and
(b) no
compensation shall be payable for land referred to in paragraph (a) except
for any improvements effected on such land before it was acquired.
(3) The provisions of any law referred to in
section 16(1) regulating the compulsory acquisition of land that is in
force on the appointed day, and the provisions of section 18(1) and (9),
shall not apply in relation to land referred to in subsection (2)(a)
except for the purpose of determining any question related to the payment of
compensation referred to in subsection (2)(b), that is to say, a person
having any right or interest in the land –
(a) shall
not apply to a court to challenge the acquisition of the land by the State, and
no court shall entertain any such challenge;
(b) may,
in accordance with the provisions of any law referred to in section 16(1)
regulating the compulsory acquisition of land that is in force on the appointed
day, challenge the amount of compensation payable for any improvements effected
on the land before it was acquired.
(4) …
(5) …
(6) An Act of Parliament may make it a
criminal offence for any person, without lawful authority, to possess or occupy
land referred to in this section or other State land.
(7) This section applies without prejudice
to the obligation of the former colonial power to pay compensation for land
referred to in this section that was acquired for resettlement purposes."
In
terms of s 16B of the Constitution, the individual applicants have been
stripped of all the rights to the land they previously owned or occupied. Section 16B of the Constitution vests all
the rights of previous owners and occupiers in the State. In casu,
the only link the individual applicants have to the land is their continued
occupation of the acquired land, which continued occupation has been rendered a
criminal offence by an Act of Parliament authorised by s 16B(6) of the
Constitution.
Section 16B
of the Constitution contains a non
abstante clause. Consequently s 16B prevails over all
other sections of the Declaration of Rights provisions of the Constitution. All other sections in the Declaration of
Rights or Chapter III of the
Constitution are subject to s 16B of the Constitution. In other words, any rights conferred on
anybody in terms of the Declaration of Rights or Chapter III of the Constitution can be derogated in terms of
s 16B of the Constitution. Such
derogation would not constitute a violation of the Constitution. In terms of s 16B of the Constitution,
a litigant cannot successfully contend that the acquisition of his or her land is
unlawful because it violates a right conferred on the litigant in terms of the
Declaration of Rights, contained in Chapter III
of the Constitution. It follows that a
litigant whose land was acquired in terms of s 16B of the Constitution
cannot seek to set aside the acquisition of that land on the basis that such
acquisition violated the rights conferred on the litigant by a provision
contained in the Declaration of Rights or Chapter III
of the Constitution, such as ss 18 and 23 of the Constitution.
Apart
from the non abstante clause, s 16B(3)
of the Constitution ousts the jurisdiction of the courts to enquire into the
legality or otherwise of the acquisition of land in terms of s 16B(2)(a)
of the Constitution. In the case of Mike Campbell (Pvt) Ltd and Ors v
Minister of National Security Responsible for Land, Land Reform and
Resettlement and Ano SC 49/07 MALABA JA (as he then was), who
delivered the unanimous judgment of this Court, had this to say at pp 36-38
of the cyclostyled judgment:
"By the clear and unambiguous language of
s 16B(3) of the Constitution the Legislature, in the proper exercise of
its powers, has ousted the jurisdiction of courts of law from any of the cases
in which a challenge to the acquisition of agricultural land secured in terms
of s 16B(2)(a) of the Constitution could have been sought. The right to protection of law for the
enforcement of the right to fair compensation in case of breach by the
acquiring authority of the obligation to pay compensation has not been taken
away. The ouster provision is limited
in effect to providing protection from judicial process to the acquisition of
agricultural land identified in a notice published in the Gazette in terms of s 16B(2)(a). An acquisition of the land referred to in
s 16B(2)(a) would be a lawful acquisition.
By a fundamental law the Legislature has unquestionably said that such
an acquisition shall not be challenged in any court of law. There cannot be any clearer language by
which the jurisdiction of the courts is excluded.
The right to
protection of law under s 18(1) of the Constitution, which includes the
right of access to a court of justice, is intended to be an effective remedy at
the disposal of an individual against an unlawful exercise of the legislative,
executive or judicial power of the State.
The right is not meant to protect the individual against the lawful
exercise of power under the Constitution.
Once the state of facts required to be in existence by s 16B(2)(a)
of the Constitution does exist, the owner of the agricultural land identified
in the notice published in the Gazette has no right not to have the land
acquired. The conduct and circumstances
of the owner of the agricultural land identified for compulsory acquisition
would be irrelevant to the question whether or not the expropriation of his or
her property in the land in question is required for any of the public purposes
specified in s 16B(2)(a) of the Constitution. In the circumstances there is no question of
prejudice to the rights of the individual since his personal conduct or
circumstances are irrelevant to the juristic facts on which the lawful
acquisition depends. No purpose would be
served in giving the expropriated owner the right to protection of law under s
18(1) and (9) of the Constitution when an attempt at the exercise of the right
would amount to no more than its abuse."
In the
face of the clear language of s 16B(3) of the Constitution, a litigant can
only approach the courts for a review and for a remedy relating to
compensation. In this regard, the
learned JUDGE OF APPEAL in the same judgment had this to say at p 38 of
the cyclostyled judgment:
"Section 16B(3)
of the Constitution has not however taken away for the future the right of
access to the remedy of judicial review in a case where the expropriation is,
on the face of the record, not in terms of s 16B(2)(a). This is because the principle behind
s 16B(3) and s 16B(2)(a) is that the acquisition must be on the
authority of law. The question whether
an expropriation is in terms of s 16B(2)(a) of the Constitution and
therefore an acquisition within the meaning of that law is a jurisdictional
question to be determined by the exercise of judicial power. The duty of a court of law is to uphold the
Constitution and the law of the land.
If the purported acquisition is, on the face of the record, not in
accordance with the terms of s 16B(2)(a) of the Constitution a court is
under a duty to uphold the Constitution and declare it null and void. By no device can the Legislature withdraw
from the determination by a court of justice the question whether the state of
facts on the existence of which it provided that the acquisition of agricultural
land must depend existed in a particular case as required by the provisions of
s 16B(2)(a) of the Constitution."
Mr de Bourbon cited the decision of
the SADC Tribunal in Mike Campbell (Pvt)
Ltd and Ors v The Republic of Zimbabwe SADC (T) case 2/2007, which he
submitted was in stark contrast to this Court's decision in the Mike Campbell case supra.
It is not clear why this judgment was cited. Mr de Bourbon
in his submission made the point that his clients reserve the right to benefit
from the decision of the SADC Tribunal.
For the
avoidance of doubt, I wish to make the following observations regarding the
status and the relationship between this Court and the SADC Tribunal.
The legal system of Zimbabwe consists of the following
courts in their order of ranking. At
the base are the small claims courts, established in terms of the Small Claims
Act [Chapter 7:12], and the
local courts, established in terms of the Customary Law and Local Courts Act [Chapter 7:05]. Above these are the magistrates courts,
established in terms of the Magistrates Court Act [Chapter 7:10]. Above
the magistrates courts are the labour courts and the administrative courts,
established in terms of the Labour Act [Chapter 28:01]
and the Administrative Court Act [Chapter 7:01]
respectively. Above the labour courts
and the administrative courts is the High Court, established in terms of the
High Court Act [Chapter 7:06]. At the apex of the legal system of Zimbabwean
courts is the Supreme Court of Zimbabwe, established in terms of the Supreme
Court Act [Chapter 7:13].
Section 26
of the Supreme Court Act provides as follows:
"26 Finality of decisions of Supreme Court
(1) There shall be no appeal from any
judgment or order of the Supreme Court.
(2) The Supreme Court shall not be bound by
any of its own judgments, rulings or opinions nor by those of any of its
predecessors."
The decisions of the Supreme Court are final. No appeal lies from the Supreme Court to any
other Court. No appeal lies to the
SADC Tribunal from the Supreme Court.
The decisions of the SADC Tribunal are at best persuasive but certainly
not binding.
The SADC Tribunal has not been domesticated by any municipal
law and therefore enjoys no legal status in Zimbabwe. I believe the same obtains in all SADC
States, that is, that there is no right of appeal from the South African
Constitutional Court, the Namibian Supreme Court, the Lesotho Supreme Court,
the Swaziland Supreme Court, the Zambian Supreme Court and the Supreme Courts
of other SADC countries to the SADC Tribunal.
I now
turn to deal with the complaint that the Attorney-General is being
discriminatory, in that only white commercial farmers are being prosecuted for
contravening s 3 of the Act. The
applicants contend that because of this discrimination the Attorney-General
should be interdicted from prosecuting the individual applicants.
Section 3 of the Act provides that a former owner
or occupier of land acquired in terms of s 16B of the Constitution who
does not cease to occupy or use the acquired land "shall be guilty of an
offence". Section 16B(6) of
the Constitution authorises Parliament to enact s 3 of the Act. The race of an accused is not an essential
element of the offence. The essential
elements of contravening s 3 of the Act are – (1) proof that the land has
been acquired in terms of s 16B of the Constitution; (2) the former owner
or occupier has not ceased to use or occupy the acquired land; and (3) the
former owner or occupier has no lawful authority to continue to occupy the
land. Once these essential elements
have been established, prosecution is inevitable.
There
is no suggestion on the papers that in deciding to prosecute the
Attorney-General has taken into account anything other than the essential
elements set out above. The applicants
do not allege that there are black commercial farmers who, as former owners or
occupiers, are contravening s 3 of the Act but have not been prosecuted. If this were the contention, there might be
merit in the complaint. The individual
applicants, as a group of white commercial farmers, have taken a deliberate and
conscious decision to act in defiance of the law by continuing to occupy
acquired land without authority. They
cannot be heard to complain that only white commercial farmers are being
prosecuted. What is the
Attorney-General supposed to do if it is only white commercial farmers who are
breaking the law? It is an abuse of
court process for the applicants to approach this Court seeking an interdict
against the Attorney-General in these circumstances.
In any
event, s 76 of the Constitution provides for the independence of the
Attorney-General. It provides in
subs 76(7) that the Attorney-General shall not be subject to the direction
or control of any person or authority in the exercise of his prosecutorial
authority.
In my
view, the solution to this problem is in the hands of the individual applicants
and like-minded commercial farmers. All
they have to do is obey the law by vacating the acquired land. Once they vacate the acquired land within
the prescribed period no prosecution can arise. If they have any legal claim to the acquired
land or arising from the acquired land they can launch legal proceedings after
vacating the acquired land as is required by law.
I therefore
find that the applicants' complaint as set out in para 16(a) of the
founding affidavit has no substance.
I now
turn to deal with the complaints set out in paras 16 (b) and (c) of the
founding affidavit. The complaints set
out in paras 16 (b) and (c) are very similar and linked to each
other. It is convenient to deal with
them together.
(b) Are
the individual applicants being denied protection of the law and equality
before the law under section 18 of the Constitution?; and
(c) Are
the individual applicants being unfairly tried on charges of contravening
section 3 of the Gazetted Lands (Consequential Provisions) Act?
The
complaints contained in these two subparagraphs are similar to the complaint
raised in subpara (a) of para 16 of the founding affidavit, which I
have already dealt with. Much of what I
have stated in regard to subpara (a) of para 16 above applies with
equal force to the complaints in subparas (b) and (c) of para 16.
The
land previously owned by the individual applicants was acquired by the State in
terms of s 16B of the Constitution.
Section 16B has an overriding effect on other sections of Chapter III of the Constitution.
The
effect of s 16B of the Constitution is that it renders agricultural land
occupied under Bilateral Investment Protection Agreements (BIPAs) liable to
compulsory acquisition if the acquiring authority considers that it is required
for resettlement purposes or any other purpose as prescribed under
s 16B(2)(a)(iii) of the Constitution.
It is, therefore, not open to the applicants to argue
that such an acquisition of land in terms of s 16B is invalid by reason of
a violation of a right guaranteed in the Declaration of Rights in the
Constitution.
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 Ano v Ignatius Mugova and Ano 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.
I have
already sufficiently dealt with the complaint of discrimination in the
prosecution of the individual applicants.
The
complaints of the individual applicants as set out in paras 16 (b) and (c) have
no substance.
(d) Has
the racial imbalance sought to be addressed in the land reform programme been
achieved, rendering any further evictions of white farmers unlawful?
The
issue of whether land should be acquired for the land reform programme, how
much land should be acquired for that purpose, from whom it should be acquired,
and to whom the acquired land should be allocated are matters for the
Executive. They are policy issues that are
not justiciable. What is justiciable is
whether the acquisition itself and the allocation of the land has been done in
accordance with the law.
(e) Have
Ministers, Ministry officials, magistrates, public prosecutors, court
officials, the police and the military (all being public officials) mentioned
in the body of the application and affidavits breached their duties in terms of
section 18(1a) of the Constitution to uphold the rule of law and to act in
accordance with the law?
This
complaint, as elaborated in the submissions, boils down to three complaints,
namely –
(a) That
the Minister has been issuing offer letters to individuals in respect of land
which he acquired in terms of s 16B of the Constitution. He is doing this despite the land being
still occupied by former owners.;
(b) That
the holders of the offer letters have sought through self-help to evict the
former owners from the acquired land.
This has led to conflict between the holders of the offer letters and
previous owners.; and
(c) That
Ministry officials, magistrates, public prosecutors, court officials, the
police and the military have not assisted the former owners in the conflict
described in para (b), despite the duty imposed on them by s 18(1a)
of the Constitution. The applicants
contend that the conflict between the holders of the offer letters and the
former owners is so widespread and the failure by public officials to assist
them in this conflict is so prevalent that the rule of law has been eroded to
the extent that the individual applicants are entitled to a moratorium of the land
reform programme and other relief sought in the draft order.
The
complaint in para (a) raises the issues of whether the Minister can
lawfully issue offer letters to individuals and whether he can lawfully issue
offer letters to individuals before the acquired land is vacated. It also raises the issue of the respective
rights of the holders of the offer letters and the former owners of the acquired
land.
Dealing
firstly with the issue of whether the Minister has the legal authority to issue
an offer letter to an individual.
Section 2 of the Act, in relevant part, provides as follows:
"2 Interpretation
(1) In this Act –
'lawful authority' means –
(a) an offer letter; or
(b) a permit; or
(c) a land settlement
lease;
and 'lawfully authorised' shall be construed accordingly;
'offer letter' means a letter issued by the acquiring authority to
any person that offers to allocate to that person any Gazetted land, or a
portion of Gazetted land, described in that letter;
'permit', when used as a noun, means a permit issued by the State
which entitles any person to occupy and use resettlement land; …".
The Legislature in enacting the above provision clearly intended
to confer on the acquiring authority the power to issue to individuals offer
letters which would entitle the individuals to occupy and use the land
described in those offer letters. The
draftsman could have used better language to convey the legislative intent, but
there can be no doubt that s 2 of the Act confers on the acquiring authority
the power to allocate land using the medium of an offer letter. This provision is not in any way
inconsistent with ss 16A and 16B of the Constitution. If anything, it fits in well with the
overall scheme envisaged in ss 16A and 16B of the Constitution, which is
that the acquiring authority acquires land and reallocates the land so
acquired. The acquisition of land and
its redistribution lies at the heart of the land reform programme. I have no doubt that the Minister as the
acquiring authority can redistribute land he has acquired in terms of
s 16B of the Constitution by means of the following documents -(a) an
offer letter; (b) a permit; and (c) a land settlement lease. The Minister is entitled to issue a land
settlement lease in terms of s 8 of the Land Settlement Act [Cap 20:01]. However, if the Minister allocates land by
way of a land settlement lease in terms of s 8 of the Land Settlement Act
he is enjoined to comply with the other provisions of that Act, such as
s 9 which requires him to consult the Land Settlement Board which
obviously has to be in existence. I do
not accept the contention by the applicants that the Minister can only allocate
acquired land by way of a land settlement lease which he presently cannot do
because there is no Land Settlement Board in existence.
The Minister has an unfettered choice as to which method
he uses in the allocation of land to individuals. He can allocate the land by way of an offer
letter or by way of a permit or by way of a land settlement lease. It is entirely up to the Minister to choose
which method to use. I am not persuaded
by the argument that because the offer letter is not specifically provided for
in the Constitution it cannot be used as a means of allocating land to
individuals.
I am
satisfied that the Minister can issue an offer letter as a means of allocating
acquired land to an individual.
Having
concluded that the Minister has the legal power or authority to issue an offer
letter, a permit or a land settlement lease, it follows that the holders of
those documents have the legal authority to occupy and use the land allocated
to them by the Minister in terms of the offer letter, permit or land settlement
lease.
On the other hand, s 3 of the Act criminalises the
continued occupation of acquired land by the owners or occupiers of land
acquired in terms of s 16B 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 right of any
description in respect of the acquired land once the prescribed period has
expired.
It was
argued that previous owners and occupiers of acquired land have the right to
remain in occupation until they have been tried and convicted and an order for
eviction issued in terms of s 3(5) of the Act, which provides as follows:
"3 Occupation of Gazetted land without
lawful authority
(5) A court which has convicted a person of an offence in terms
of subsection (3) or (4) shall issue an order to evict the person
convicted from the land to which the offence relates."
Section 3(5)
of the Act does not confer on the individual applicants the right to remain in
occupation until conviction. Section 3(5)
of the Act simply directs the presiding magistrate in criminal proceedings for
a contravention of s 3 of the Act to issue an eviction order. It gives the magistrate jurisdiction or
power, which he or she would not otherwise have, to issue an eviction
order. Generally speaking, magistrates
in criminal proceedings have no jurisdiction to issue an eviction order against
an accused person upon conviction.
Section 3(5) of the Act confers on the criminal court jurisdiction
to issue an eviction order and directs the presiding magistrate to exercise the
power. Thus a proper reading of s 3(5) of the
Act simply confers certain jurisdiction on the presiding magistrate. It does not in any way confer on the
individual applicants as previous owners or occupiers of acquired land the
right to continue in occupation after the expiry of the prescribed periods. It therefore follows that the conflict
between the individual applicants and former owners or occupiers of acquired
land on the one hand and the holders of offer letters on the other hand is a
conflict between legally entitled occupants, that is, the holders of offer
letters, and the illegal occupants, the former owners and occupiers.
An
offer letter issued in terms of the Act is a clear expression by the acquiring
authority of the decision as to who should possess or occupy its land and
exercise the rights of possession or occupation on it.
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 the 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.
This
leads me to the issue of whether Ministry officials, magistrates, public prosecutors,
court officials, the police and the military have a duty in terms of
s 18(1a) of the Constitution to assist, as alleged, the individual
applicants as former owners or occupiers of the acquired land.
Section 18(1a)
of the Constitution provides as follows:
"Provisions to secure
protection of law
(1a) Every public officer has a duty towards
every person in Zimbabwe
to exercise his or her functions as a public officer in accordance with the law
and to observe and uphold the rule of law."
As I
have already stated, the individual applicants' continued occupation of the
acquired land is illegal in terms of s 3 of the Act. Their continued occupation of the acquired
land constitutes a criminal offence. I
do not accept that s 18(1)(a) of the Constitution imposes an obligation on
a public official to assist persons in the commission of a crime. Indeed, assisting a criminal or a person in
doing that which Parliament has decreed constitutes a criminal offence is in itself
a crime, of aiding or abetting the commission of a criminal offence.
By
seeking to prevent the institution and prosecution of criminal proceedings in
cases in which they are acting unlawfully, the individual applicants are
clearly frustrating the observance of the rule of law by the relevant public
officials in the discharge of their duty in terms of s 18(1a) of the
Constitution. A moratorium on the
implementation of a national programme such as the land reform programme cannot
be granted to protect unlawful conduct regardless of the race or colour of the
perpetrators. It is unfortunate that
the individual applicants seem to think that the duty to observe the rule of
law falls on others and not on them because they belong to a particular
race. The obligation on the State is to
arrest, prosecute and punish those who commit criminal offences on the farms
regardless of their race or colour, but it does not need a moratorium on the
implementation of the land reform programme for it to carry out its
constitutional mandate to uphold the rule of law.
I have
no doubt in my mind that s 18(1a) of the Constitution does not impose a
duty on the Ministry officials, magistrates, public prosecutors, court
officials, the police and the military to assist former owners of acquired land
in breaking the law by remaining in unlawful occupation of acquired land.
Be that
as it may, one of the allegations made against a Government official, a
magistrate, is a cause for concern. The
applicants allege that a magistrate presided over a criminal trial of a former
owner of gazetted land offered to him by the Minister in terms of an offer
letter. The magistrate is alleged to
have convicted the former owner and ordered eviction, obviously to enable the
magistrate to take occupation.
Unfortunately the magistrate was not party to these proceedings and
therefore cannot respond to these allegations.
If these allegations are true, the conduct of the magistrate is totally
unacceptable and I hope disciplinary action was taken. If not, it should be taken. If the allegations are true, the proceedings
were certainly irregular and should be set aside on review. The individual applicant concerned should
take the matter for review.
It was submitted
that some of the individual applicants and other former owners or occupiers of
acquired land have court orders issued by the Magistrates Courts and the High
Court authorising their occupation of acquired land after the prescribed period. If such orders were issued, they would have
the effect of authorising the doing of something that Parliament has decreed
should not be done. This Court, or any
other court for that matter, has no jurisdiction to authorise the doing of that
which Parliament has decreed would constitute a criminal offence. Put differently, a court of law cannot
authorise an individual to commit a criminal offence.
It was
submitted that the orders were issued in spoliation proceedings. Spoliation proceedings cannot confer
jurisdiction where none exists. A court
of law has no jurisdiction to authorise the commission of a criminal
offence. In any event, spoliation is a
common law remedy which cannot override the will of Parliament. A common law remedy cannot render nugatory
an Act of Parliament.
Apart
from this, there is the principle that a litigant who is acting in open
defiance of the law cannot approach a court for assistance. See Associated
Newspapers of Zimbabwe
(Private) Limited v The Minister of State for Information and Publicity and Ors
SC 111/04. Indeed, if this point
had been raised as a preliminary point, the probabilities are that this application
would have been dismissed on that point alone.
A former owner who is occupation of acquired land in open defiance of
the law cannot approach the courts for assistance.
I am
satisfied that this complaint is without substance.
As
regards the relief relating to the seizure of farm equipment, this Court has
jurisdiction to adjudicate. The
Acquisition of Farm Equipment or Material Act [Cap 18:23] has made provision for the manner in which the
acquiring authority can acquire, either by agreement or compulsorily, any farm
equipment or material not currently being used for agricultural purposes for
the utilisation of that farm equipment or material on any agricultural
land. Such acquisition is subject to
confirmation by the Administrative
Court where the owner or holder of the farm
equipment or material contests such acquisition. Payment for such farm equipment or material
must be made within a reasonable time or where the farm equipment or material
is compulsorily acquired within the time frame provided for in the Acquisition
of Farm Equipment or Material Act.
The
acquisition of farm equipment or material outside the provisions of the
Acquisition of Farm Equipment or Material Act would be unlawful. The owner of such farm equipment or material
would have the right to approach the courts for protection. The Acquisition of Farm Equipment or
Material Act does not authorise the holder of an offer letter, permit or land
lease to take it upon himself or herself to seize such equipment without
reference to the acquiring authority.
I, however, agree with the submission of the Deputy
Attorney-General that the claims relating to the acquisition of equipment as
set out in this application are too vague for this Court to make a
determination.
In
conclusion, I would summarise the legal position as follows -
(1) Former
owners and/or occupiers whose land has been acquired by the acquiring authority
in terms of s 16B(2)(a) of the Constitution cannot challenge the legality
of such acquisition in a court of law.
The jurisdiction of the courts has been ousted by s 16B(3)(a) of
the Constitution. See also the Mike Campbell case supra.
(2) The
Gazetted Lands (Consequential Provisions) Act [Cap. 20:28], and in particular s 3 of that Act, is
constitutional. See Tom Beattie's case supra. Accordingly, all
Zimbabweans have a duty to comply with the law as provided for in that Act and
prosecutions for contravening the Act are constitutional and therefore lawful.
(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 (ninety days after the acquisition). See subss 3(2) (a) and (b) of the Act
and s 16B of the Constitution. By
operation of law, former owners or occupiers of acquired land lose all rights
to the acquired land upon the expiration of the prescribed period.
(4) A
former owner or occupier of acquired land who without lawful authority continues
occupation of acquired land after the prescribed period commits a criminal
offence. If the former owner or
occupier continues in occupation in open defiance of the law, no court of law has
the jurisdiction to authorise the continued use or possession of the acquired land.
(5) Litigants
who are acting outside the law, that is, in contravention of s 3 of the
Act, cannot approach the courts for relief until they have complied with the
law. See Associated Newspapers of Zimbabwe
(Private) Limited v The Minister of State for Information and Publicity and Ors
case supra.
(6) A
permit, an offer letter and a land settlement lease are valid legal documents when
issued by the acquiring authority in terms of s 2 of the Act and s 8
of the Land Settlement Act. The holder
of such permit, offer letter or land settlement lease has the legal right to
occupy and use the land allocated to him or her in terms of the permit, offer
letter or land settlement lease.
(7) The
Minister may issue land settlement leases in terms of s 8 of the Land
Settlement Act [Cap. 20:01]. In doing so he is required to comply with
the other provisions of that Act.
(8) While
s 3(5) of the Act confers on a criminal court the power to issue an
eviction order against a convicted person, it does not take away the Minister's
right or the right of the holder of an offer letter, permit or land settlement
lease to commence eviction proceedings against a former owner or occupier who
refuses to vacate the acquired land.
The holder of an offer letter, permit or land settlement lease has a
clear right, derived from an Act of Parliament, to take occupation of acquired
land allocated to him or her in terms of the offer letter, permit or land settlement
lease. No doubt the Legislature
conferred on the holder of an offer letter, permit or land settlement lease the
locus standi, independent of the
Minister, to sue for the eviction of any illegal occupier of land allocated to
him or her in terms of the offer letter, permit or land settlement lease.
(9) The
holders of offer letters, permits or land settlement leases are not entitled as
a matter of law to self-help. They
should seek to enforce their right to occupation through the courts. Where therefore the holder of an offer
letter, permit or land settlement lease has resorted to self-help and the
former owner or occupier has resisted, both parties are acting outside the law. If either party resorts to violence, the
police should intervene to restore law and order.
Turning to the issue of costs. It has become the practice of this Court not
to award costs in the case of genuine applications to this Court for the
enforcement of rights guaranteed under the Constitution. However, this application does not fall into
that category. It is an application by
the individual applicants who are acting in open defiance of the law. It is devoid of any merit and is an abuse of
court process. For this reason, this
Court will register its disapproval by awarding costs against the applicants in
this case.
Accordingly,
the appeal is dismissed with costs awarded against the applicants jointly and
severally, the one paying the others to be absolved.
MALABA DCJ: I
agree
ZIYAMBI JA: I
agree
GARWE JA: I
agree
CHEDA AJA: I
agree
Kevin Arnott: Legal
Practitioner, applicants' legal practitioner
Civil
Division of the Attorney-General's Office, first respondent's legal practitioners
