This is an appeal against an order of the High Court
interdicting the appellant from evicting the respondent from certain property
known as Lot 1 of Buena Vista Farm, Goromonzi.
The farm was gazetted in 2003 and the respondent, being the
former owner or occupier of the farm, did not vacate it within the ninety (90)
days prescribed by section 3 of the Gazetted Land (Consequential Provisions)
Act [Chapter 20:28] (“the Act”).
Section 3 of the Gazetted Land (Consequential Provisions)
Act [Chapter 20:28] provides as follows:
“3. Occupation of Gazetted
land without lawful authority
(1) Subject to this section, no person may hold, use or
occupy Gazetted land without lawful authority.
(2) Every former owner or occupier of Gazetted land -
(a) Referred
to in paragraph (a) of the
definition of “Gazetted land” in section 2(1), shall cease to occupy, hold or
use that land forty-five days after the fixed date, unless the owner or
occupier is lawfully authorised to occupy, hold or use that land;
(b) Referred
to in paragraph (b) of the
definition of “Gazetted land” in section 2(1), shall cease to occupy, hold or
use that land forty-five days after the date when the land is identified in
accordance with section 16B(2)(a)(iii)
of the Constitution, unless the owner or occupier is lawfully authorised to
occupy, hold or use that land:
Provided that -
(i) The owner or occupier of that land referred to in
paragraph (b) may remain in
occupation of his or her living quarters on that land for a period of not more
than ninety days after the date when the land is identified;
(ii) The owner or occupier shall cease to occupy his or her
living quarters after the period referred to in
proviso (i).
(3) If a former owner or occupier of Gazetted land who is
not lawfully authorised to occupy, hold or use that land does not cease to
occupy, hold or use that land after the expiry of the appropriate period
referred to in subsection (2)(a)
or (b), or, in the case of a
former owner or occupier referred to in section 2(b), does not cease to occupy his or her living quarters in contravention
of proviso (ii) to section 2(b),
he or she shall be guilty of an offence and liable to a fine not exceeding
level seven or to imprisonment for a period not exceeding two years or to both
such fine and such imprisonment.
(4) Any person, other than a person referred to in
subsection (2), who contravenes subsection (1), shall be guilty of an offence
and liable to a fine not exceeding level seven or imprisonment for a period not
exceeding two years or to both such fine and such imprisonment.
(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.”
The respondent was charged with, and convicted of,
contravening section 3 of the Gazetted Land (Consequential Provisions) Act
[Chapter 20:28]. He was sentenced to a fine of $100= and ordered to vacate the
farm by November 6, 2013.
He noted an appeal against both the conviction and the
sentence. Thereafter, having sought, and obtained, on the 24 December 2013, an
order staying execution of the judgment pending the determination of the
appeal, he continued to occupy the farm.
On the 28 July 2015, the appellant was issued with an offer
letter for part of the farm and sought to evict the respondent therefrom. This
led to the filing by the respondent of an urgent application in the High Court
for the order mentioned at the beginning of this judgment…,.
Dissatisfied with the judgment of the High Court, the
appellant noted this appeal on the 10 November 2015.
At the hearing, it came to the attention of the parties
that the appeal filed by the respondent against the conviction and sentence
imposed by the magistrate had been dismissed on the 10 August 2016.
While it is apparent to us that there is merit in the
grounds of appeal raised by the appellant attacking, in particular, the
propriety of the suspension by a judge of the High Court of the execution of
the judgment of the magistrate, we are of the view that the dismissal of the
appeal by the High Court is dispositive of the appeal….,.
In the result, it is the unanimous decision of the Court
that the appeal ought to be allowed….,.
It is therefore ordered as follows:
1. The appeal is
allowed with each party bearing its own costs.
2. The judgment of the
court a quo is set aside and substituted with the following:-
“The application is dismissed with costs.
