CHIDYAUSIKU CJ: This application is made in terms of
s 24(1) of the former Constitution of Zimbabwe (hereinafter referred to as
“the Constitution”), which provided:
“24 Enforcement of protective provisions
(1) If any person alleges that the Declaration of Rights has been, is
being or is likely to be contravened in relation to him (or, in the case of a
person who is detained, if any other person alleges such a contravention in
relation to the detained person), then, without prejudice to any other action
with respect to the same matter which is lawfully available, that person (or
that other person) may, subject to the provisions of subsection (3), apply to
the Supreme Court for redress.”
The applicant alleges
that his rights to protection of the law and a fair trial guaranteed under
ss 18(1) and (2) of the Constitution were violated by the court a quo.
The facts of this case
are that the applicant was charged with contravening s 3(2)(a), as read
with ss 3(3) and 3(5), of the Gazetted Lands (Consequential Provisions)
Act [Chapter 20:28] (hereinafter
referred to as “the Act”), “using, or occupying gazetted land without lawful
authority”, in that on 4 February 2007 and at Romsey Farm
(hereinafter referred to as “the farm”) Chinhoyi, he, without lawful authority
to occupy, hold or use gazetted land, did not cease to occupy, hold or use that
land after the expiry of the forty-five day period stipulated in s 3(2)(a)
of the Act and has not ceased to occupy, hold or use that land to date.
The applicant pleaded
not guilty to the charge. The
applicant's defence is set out in the Defence Outline, in particular paras 4-6,
which read as follows:
“4. The accused does not
own the farm and was not the former owner.
The farm is occupied by an operating farming company.
5. The farm is not
gazetted land. The listing of the farm
for acquisition purposes has been declared to be unlawful by the Southern
African Development Community Tribunal sitting at Windhoek, Namibia, and that
ruling is binding on the Government of Zimbabwe and throughout Zimbabwe.
6. Since the accused does
not occupy the land, there is no issue that he is under any legal obligation to
cease occupation of the land.”
It was also the
applicant's defence that he had authority to occupy, hold or use the gazetted
land from the late Vice President Msika and officials from the Ministry of
Lands, Land Reform and Resettlement. As
this is in contradiction to the stance that the applicant is not a former owner
or occupier of the farm or gazetted land, I can only assume that this defence
is in the alternative. In support of the
alternative defence that the applicant has lawful authority to use the gazetted
land, he attached to the Defence Outline the following letters from the Office
of the late Vice President Msika concerning the farm:
“4 July
2002
Mr D
Tailor-Freeme (sic)
P O Box
7516
Chinhoyi
MESSRS TAILOR-FREEME (sic): REMAINDER OF ROMSEY AND ATHENS A FARM
Following
your various consultations with the Vice President of Zimbabwe, the Honourable
J W Msika, and mindful of the fact that you offered Slaughter Farm
(1400 ha) to Government for resettlement purposes under the Zimbabwe Joint
Resettlement Initiative (ZCRI), the Vice President grants you permission to
continue farming the above farm.
O.E.M. Hove
Director
(Policy and Planning)
Office of the Vice President and Cabinet
cc Hon P T Chanetsa
Governor/Resident Minister
Mashonaland
West Province”;
And:
“11
December 2007
Hon. D.N.E.
Mutasa (MP)
Minister of
State for National Security,
Lands, Land
Reform and Resettlement
ANOMALIES IN THE IMPLEMENTATION OF THE
LAND REFORM AND RESETTLEMENT PROGRAMME: MASHONALAND WEST PROVINCE
I
understand that you convened a meeting with the political leadership of
Mashonaland West Province to discuss their representations contained in
Cde Shamuyarira's letter dated 19 October 2007.
I wish to
remind you that these issues had already been discussed by the Presidium and a
decision had been taken to implement them without any variation. I also wish to remind you that you cannot
alter or supersede any decision taken by the Presidium.
DR J.W.
MSIKA (MP)
VICE PRESIDENT”
And:
“26 January
2009
The
Provincial Governor and Resident Minister
Mashonaland
West
Chinhoyi
Attention:
The Hon. F. Chidarikire (MP)
Dear Sir
FARMING OPERATIONS AT ROMSEY FARM, MAKONDE
DISTRICT, MASHONALAND WEST
This letter
serves to confirm that Mr D. S. Taylor-Freeme was granted lawful authority
by the Hon. Vice President Dr J.W. Msika to continue with his farming
operations on the above-mentioned farm.
You are
therefore requested to hold any action to the contrary in abeyance until
consultations can be held with the Hon. Vice President who comes back from his
vacation leave on 19 February 2009.
Your co-operation in the above regard will be greatly appreciated.
Yours
faithfully
R T Madamombe
Permanent Secretary to the VP Dr
J.W. Msika”.
The
underlining is mine.
Given the contents of the above letters, which were in part addressed to
the applicant personally, the applicant's contention that he is not in
occupation of or using the farm is untenable. The two contentions that the applicant is not
in occupation of the farm and that he has authority to occupy the farm are
mutually exclusive.
The matter proceeded to
trial and the State led evidence from two State witnesses, namely
Mr Gavanga and Mr Chikomba.
These witnesses are officials in the Ministry of Lands and Rural
Resettlement. They are responsible for
the administration and allocation of land in terms of the Act. Their evidence may briefly be summarised as
follows –
1. That
they knew the applicant as a farmer on the farm, the gazetted land, which was acquired
in terms of s 16B of the Constitution.
2. That
the applicant was running farming operations on the farm before and after the acquisition
of the farm.
3. That
at the expiry of the forty-five day period when the applicant was required, in
terms of s 3 of the Act, to vacate the farm he had crops on the farm that
had yet to be harvested. They gave him
time within which to complete the harvesting and vacate the farm.
4. That
at the end of the harvest the applicant did not vacate the farm and is
continuing farming operations on the farm to date.
5. That
the farm has since been allocated to another person in terms of an offer letter
but because the applicant is refusing to vacate the farm the new owner in terms
of the offer letter has not been able to take occupation of the farm.
6. That
although the registered owner of the farm is one Merle Taylor-Freeme, the
mother of the applicant, they have always dealt with the applicant in connection
with the farm and that it is the applicant who is carrying out farming
operations on the farm.
The evidence of these
witnesses is to a large extent corroborated by the correspondence attached to
the defence outline, referred to above.
It is significant to note that the correspondence is between the
applicant in his personal capacity and Government officials. There is nothing in the correspondence that
suggests that the applicant was acting on behalf of a company or some third
party.
At the close of the
State case, the applicant applied for a discharge. In his application for a discharge, the applicant
submitted that none of the six essential elements of the offence charged had been
proved or alleged to justify his being put on his defence. He submitted that for the applicant to be
put on his defence the State had to lead evidence that prima facie establishes the following as the essential
elements of the charge, that –
(a) the accused was a former
owner or occupier;
(b) of gazetted or acquired
land;
(c) he has
not ceased to occupy, hold or use that gazetted land;
(d) after
the expiry of the appropriate period referred to, which in the present case is
forty-five days after the fixed date;
(e) the
accused as the former owner or occupier has no lawful authority to occupy, hold
or use that land.
The applicant
also pleaded invalidity of s 2 of the Act and mistake of law.
The application for a
discharge was dismissed. In dismissing
the application for a discharge, the learned trial magistrate concluded that
the applicant had a case to answer and should be put on his defence.
Dissatisfied with that
ruling, the applicant applied for a referral of the matter to the
Constitutional Court in terms of s 24(2) of the Constitution, which
provides as follows:
“24 Enforcement of protective provisions
(2) If in any proceedings in the High Court or in any court subordinate
to the High Court any question arises as to the contravention of the
Declaration of Rights, the person presiding in that court may, and if so
requested by any party to the proceedings shall, refer the question to the
Supreme Court unless, in his opinion, the raising of the question is merely
frivolous or vexatious.”
In the application for
referral, the applicant contended that the trial court had violated his
fundamental right to the protection of the law guaranteed by s 18(1) of
the Constitution by putting him on his defence when the evidence for the State
failed to establish the essential elements of the offence. The applicant also advanced the following
two further grounds in support of the application for referral –
(1) first,
that the trial magistrate had violated the applicant's right to a fair trial by
failing to give detailed reasons for dismissing the applicant's application for
discharge. In particular, it was
contended that the learned trial magistrate should have dealt with each of the
six grounds that were advanced in support of the application for discharge, and
that his failure to do so was a violation of the applicant's right or
entitlement to a fair trial in terms of s 18(2) of the Constitution.
(2) second,
that the definition of “lawful authority” in s 2 of the Act is ultra vires s 16B(6) of the
Constitution insofar as it seeks to limit the meaning of “lawful authority” to
an offer letter, a permit or a land settlement lease. The contention is that Parliament has no
authority to truncate the definition of “lawful authority” referred to in the
Act without first amending s 16B(6) of the Constitution.
The court a quo dismissed the application for
referral to the Constitutional Court as frivolous and vexatious.
The applicant now
approaches this Court in terms of s 24(1) of the Constitution, on the
basis that the court a quo violated
his fundamental right by refusing to refer his case to this Court.
The applicant contends that the dismissal of his application for referral
violated his right to protection of the law guaranteed by s 18(1) of the
Constitution, and his right to a fair trial guaranteed by s 18(2) of the
Constitution. He further argued that
his application for referral was neither vexatious nor frivolous.
In essence the applicant's case in this application is that –
(a) the
dismissal of the application for discharge constitutes a violation of his constitutional
right to the protection of the law, in that the State had not established any
one of the essential elements of the offence that he was being charged with;
(b) the
trial magistrate, by reason of his failure to give detailed reasons in his
judgment for dismissing both applications, had violated the applicant's right
to a fair trial, the contention being that he should have addressed each of the
six grounds that were advanced in support of the application for discharge
before dismissing the application; and
(c) the
definition of “lawful authority” in s 2 of the Act was ultra vires s 16B(6) of the
Constitution and was therefore unconstitutional.
The first issue that
falls for determination by this Court is whether the court a quo was correct in dismissing the application for referral as
frivolous and vexatious. If the court a quo was correct in dismissing the
application for referral that is the end of the matter. If the court a quo erred in dismissing the application for referral, then
this Court is at large to consider the issue of whether the applicant's rights
were violated.
The applicant's
contention that the definition of “lawful authority” in the Act is ultra vires the Constitution raises
a constitutional issue. Once a constitutional
issue arises in any proceedings in an inferior court, it should be referred to
the Constitutional Court unless such an application is frivolous or
vexatious. The contention that s 2
of the Act is ultra vires
s 16B(6) of the Constitution is a constitutional issue that arose during
the proceedings in the court a quo. This constitutional issue is neither frivolous
nor vexatious. The court a quo was therefore required in
terms of s 24(2) of the Constitution to refer this matter to the
Constitutional Court. The court a quo's failure to refer the constitutional
issue raised to the Constitutional Court constitutes a violation of the
applicant's constitutional right to protection of the law guaranteed in terms
of s 18(1) of the Constitution.
Such violation entitles the applicant to approach the Constitutional
Court in terms of s 24(1) of the Constitution.
I am therefore satisfied
that this application is properly before this Court and this Court is at large
to consider the constitutional issues raised in the application to this Court
as if it were the court of first instance.
In this regard see Martin v Attorney-General and Anor 1993
(1) ZLR 153 (S) at pp 158H-159A, wherein the Court had this to say:
“For these reasons I am satisfied
that the present application was correctly brought under s 24(1) of the
Constitution. The order made by the
magistrate was, in the particular circumstances, beyond his jurisdiction. This Court must now place itself in the position
it would have been in had the magistrate, as he ought to have done, referred to
it the question raised before him.”
I now turn to deal with
the applicant's contention that his constitutional rights have been violated as
if this was the court of first instance.
The applicant's main
contention is that the State, at the close of its case, had not established any
one of the essential elements of the offence of contravening s 3(2)(a), as
read with ss 3(3) and 3(5), of the Act.
Placing an accused person on remand, trial or on his defence at the close
of the State case, when the allegations and/or the evidence led by the State do
not constitute an offence, is a violation of an accused person's right to the protection
of the law, guaranteed by s 18(1) of the Constitution. See the cases of Martin v Attorney-General supra and Williams and Anor v Msipha N.O. and Ors 2010 (1) ZLR 552 (S) at
572G-575G. Thus, in casu if the evidence led by the State does not establish prima facie any one of the six essential
elements of the offence the applicant is entitled to the relief he seeks, the
stay of prosecution.
The following are the
essential elements of the offence the applicant is charged with –
(a) the accused must be a former
owner or occupier;
(b) of gazetted land;
(c) who has not ceased to
occupy, hold or use that land;
(d) after the
expiry of the appropriate period referred to, which in the present case is
forty-five days after the fixed date, being 4 February 2007; and
(e) has no
lawful authority to occupy or use that land.
The applicant
also submitted that the State had to disprove the applicant's defence of a
mistake of law.
I will deal
with each essential element in turn -
Is The Applicant A Former Owner Or
Occupier?
The evidence or facts placed before
the trial court clearly establish that the applicant carried out farming
operations on the farm in question before and after the farm was acquired in
terms of s 16B of the Constitution.
That evidence is clearly credible and is corroborated by the annexures
attached to the applicant's defence outline.
The evidence before the court a quo
clearly establishes prima facie,
at the very least, that the applicant is a former occupier of the farm.
Is the Farm Gazetted Land?
The evidence that the
farm was acquired in terms of s 16B of the Constitution admits of no
debate. The Government Gazette Extraordinary dated 22 February 2002,
attached to the applicant's Defence Outline, clearly shows that the farm is one
of those farms acquired by the State in terms of Constitution of Zimbabwe
Amendment (No. 17) Act, 2005, which came into effect on 28 December
2006. Accordingly, the farm is indeed
gazetted land and the evidence to that effect is beyond dispute. The submission that the acquisition is
unlawful because it was declared unlawful by the SADC Tribunal flies in the
face of this Court's decision in Commercial
Farmers' Union and Ors v Minister of Lands and Rural Resettlement and Ors
SC 31/10. It is a mischievous
submission not worthy of any further comment.
The Applicant's Failure To Cease To
Occupy, Hold Or Use The Land
Again, the evidence of
the two State witnesses is that the applicant used the land before its
acquisition in terms of s 16B of the Constitution and is occupying and
running farming operations on the farm to date. It is quite clear from this evidence that
the applicant has not ceased to occupy, hold or use the farm. Again, the evidence that the applicant is
still in occupation of the farm is overwhelming.
Is The Applicant In Occupation After The
Expiry Of The Appropriate Period Referred To, Which In The Present Case Is
Forty-Five Days After The Fixed Date, Being 4 February 2007?
As I have stated, the
applicant, according to the evidence of the two State witnesses, is still
occupying and running farming operations on the farm to date. Forty-five days have since expired. The applicant should have vacated the farm forty-five
days after the date of the acquisition of the farm.
It was submitted that
the applicant was permitted to complete his harvest and thus authorised to
occupy the farm beyond the prescribed forty-five days, and thereafter the law does
not prescribe the period to cease occupation beyond the extended period.
The submission that a
former occupier, who is permitted to stay on gazetted land for a period beyond
the forty-five days prescribed by the Act to enable such occupier to complete
harvesting, who overstays that permitted period does not contravene s 3 of
the Act is puerile. It does not merit
serious consideration. I shall revert
to this submission when I deal with the issue of the definition of “lawful
authority” later in this judgment.
Did The Applicant As Former Occupier Have
Lawful Authority To Occupy, Hold Or Use That Land?
The applicant contends that
the letters from the late Vice President Msika and from the Ministry of Lands,
Land Reform and Resettlement are “lawful authority” entitling him to remain on
the gazetted land. I am not persuaded
by this argument. The letters from the
late Vice President do not constitute “lawful authority” in terms of the
Act. I shall deal with this submission
in some detail when I deal with the issue of what constitutes “lawful
authority” later in this judgment.
The Applicant's Defence Of A Mistake Of
Law
The applicant's defence
of a mistake of law is frivolous and vexatious. If the applicant was serious about this
defence, he would have left the farm when he was charged. The fact that the applicant is still
occupying the farm makes nonsense of this defence.
Is The Definition of “Lawful Authority”
Contained In the Act Ultra Vires the
Constitution?
In my view, the
definition of “lawful authority” in s 2 of the Act is intra vires s 16B(6) of the Constitution. Again I propose to deal with this issue when
I deal with the issue of the meaning to be ascribed to s 2 of the Act,
which defines what constitutes “lawful authority”.
I am satisfied that at
the close of the State case there was before the court enough evidence to put the
applicant on his defence.
It was also the
applicant's contention that the learned trial magistrate, in his reasons for
judgment, did not deal with all the grounds that the applicant had raised in his
application for discharge and that that constituted a violation of his right to
a fair trial.
It is common cause that
the learned trial magistrate did give reasons for the dismissal of the
application for discharge. The reasons
for discharge regrettably did not deal with the grounds of the application in
any detail. However, the learned trial
magistrate's conclusion that the applicant had a case to answer and should be
put on his defence cannot be faulted. Although
his failure to give detailed reasons for judgment amounts to a misdirection, the
misdirection did not result in a substantial miscarriage of justice.
The court a quo's misdirection in failing to
take into account all the factors it was required by law to take into account
constitutes an irregularity. The remedy
provided by the law for rectifying such an irregularity is by way of review, in
this case to the High Court. The
irregularity in casu cannot
found an application to the Constitutional Court in terms of s 24(1) of
the Constitution.
When an irregularity has
been committed by an inferior court, a superior court has to decide whether the
irregularity resulted in a substantial miscarriage of justice justifying the
setting aside of proceedings on review or appeal. If the irregularity does not result in a
substantial miscarriage of justice the proceedings stand.
However, the procedure
to be followed when an application for discharge at the close of the State case
is dismissed was set out by the Supreme Court in the case of S v Hunzvi 2000 (1) ZLR 540 (S), in
which the Court held:
“… that the
accused has no right of appeal against the refusal of a trial judge to
discharge at the end of the prosecution case because at that stage the final
determination of the trial has not been reached and the proceedings are still
on-going. After conviction, however,
the accused has the absolute right, under s 44(2)(a) of the High Court Act
[Chapter 7:06], to appeal to the
Supreme Court on any ground involving a question of law. A refusal to discharge is a question of law
and so may be relied upon as a ground of appeal. The ground of refusal to discharge would
only succeed if on appeal it were found that at the close of the prosecution
case there was no evidence justifying a conviction and that the defence case
furnished no proof of guilt.”
Thus, the
remedy available to the applicant was one of appeal to the High Court at
the conclusion of the trial.
I find no merit in the contention that the failure to give detailed
reasons for judgment violated the applicant's right to a fair trial and that
the case should have been referred to the Constitutional Court on that basis.
I finally turn to deal
with the issue of what constitutes “lawful authority” and whether the applicant
had “lawful authority” to occupy the farm.
Section 2(1) of the
Act provides as follows:
“2 Interpretation
(1) In this Act —
'acquiring
authority' means the Minister responsible for land or any other Minister to
whom the President may, from time to time, assign the administration of this
Act;
'fixed
date' means the date fixed in terms of section 1(2) as the date of
commencement of 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;
'resettlement
land' means land identified as resettlement land under the Rural District
Councils Act [Chapter 29:13].”
The clear and
unambiguous meaning of s 2(1) of the Act is that “lawful authority” means
an offer letter, a permit and a land settlement lease. Nothing more, nothing less. A letter from the late Vice President, the
Presidium or any other member of the Executive does not constitute “lawful
authority” in terms of the Act.
In the case of Commercial Farmers Union and Ors v The
Minister of Lands and Rural Resettlement and Ors supra this Court had this
to say at p 19 of the cyclostyled judgment:
“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.”
“Lawful authority” means
an offer letter, a permit and a land settlement lease. The documents attached to the defence outline
are not offer letters, permits or land settlement leases issued by the
acquiring authority. They do not
constitute “lawful authority” providing a defence to the charge the applicant
is facing.
The applicant did not
have an offer letter, a permit or a land settlement lease. Accordingly, he had no lawful authority to
occupy or continue to occupy the farm.
The letters from the late Vice President Msika and those of the Ministry
of Lands, Land Reform and Resettlement do not constitute “lawful
authority”. “Lawful authority” in terms
of the Act begins and ends with an offer letter, a permit and a land settlement
lease. A telephone call or a letter,
even from the Minister of Lands, Land Reform and Resettlement is not “lawful
authority”.
It was also submitted
that the concept of “lawful authority”, as defined in s 2(1) of the Act is
inconsistent with s 16B(6) of the Constitution and therefore ultra vires. I have already cited s 2(1) of the Act in
the relevant part that defines “lawful authority”.
Section 16B(6) of the
Constitution provides as follows:
“16B (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.”
The issue here is
whether or not the concept of “lawful authority” in the Constitution is
fettered by the definition of “lawful authority” in the Act.
The applicant, in his
submission that s 2 of the Act is ultra
vires s 16B(6) of the Constitution, relied heavily on the decision of
this Court in SC Shaw (Pvt) Ltd v
Minister of Lands and Agricultural Resettlement 2005 (2) ZLR 153 (SC),
where it was held that the discretion of the Administrative Court to determine
what was reasonably necessary could not be fettered or restricted by an Act of
Parliament without first amending the Constitution.
I am not persuaded by
this submission for a number of reasons.
It is common cause that
s 16B(6) of the Constitution does not define the concept of “lawful
authority”. As a result of this, the
applicant's contention that the Act violates a concept which the Constitution
does not define is untenable. The
Constitution does not confer on the courts the power to determine what
constitutes “lawful authority”. The Act
therefore cannot take away from the courts that which the Constitution has not
conferred on the courts.
A careful reading of
s 16B(6) of the Constitution shows that it specifically allows Parliament
to create a criminal offence for any person, without lawful authority, to
possess or occupy gazetted land or other State land. For Parliament to successfully create such
an offence it has to define the concept of “lawful authority” first. The framers of the Constitution, by
expressly conferring on Parliament the power to enact a law that criminalises
the possession or occupation of gazetted land by any person “without lawful
authority”, must have intended to confer on the Legislature the power to define
the concept of “lawful authority".
Parliament could not have properly enacted a valid law that criminalises
the occupation or use of land without defining what constitutes “lawful
authority”. A criminal enactment that
does not define what constitutes “lawful authority” would be too vague. An enactment that creates a criminal offence has
to be sufficiently clear and precise to be constitutional. A citizen is constitutionally entitled to
know exactly when he/she contravenes the law.
The definition of “lawful authority” enables the citizen to know exactly
when it is that he can occupy gazetted land lawfully without committing a
criminal offence.
The facts and
circumstances of this case are distinguishable from those in SC Shaw (Pvt) Ltd supra. In SC
Shaw (Pvt) Ltd supra Parliament had enacted laws, which in effect limited
the Administrative Court's discretion that it previously enjoyed in determining
whether reasonably necessary grounds for the acquisition of the land
existed. In this case, there was no
form of “lawful authority” enjoyed by the former owners or occupiers of
gazetted land that has been negated by s 2 of the Act. The allegation that the definition of
“lawful authority” provided for in s 2 of the Act impinges upon
s 16B(6) of the Constitution is far-fetched and premised on an incorrect
interpretation of that provision.
Consequently, this
submission also fails.
In the result, I am
satisfied that this application has no merit and must be dismissed with no
order as to costs.
MALABA DCJ: I agree
ZIYAMBI JA: I agree
GARWE JA: I agree
CHEDA AJA: (Retired)
Coghlan, Welsh
& Guest, applicant's legal practitioners
The
Attorney-General's Office,
second respondent's legal practitioners
