This appeal challenges an interdict granted to the
respondents by the Magistrate Court with respect to land which the appellant
refuses to vacate on the basis that it is State land.
The respondents are registered companies who own, under
title deeds, the two separate properties described as Lot 2 and Lot 13 of
Spitzkop Estate. It is in terms of these title deeds that they base their clear
right to the properties, having obtained title following acquisition through
authorised subdivision of the land owned by E Drakes and Son (Pvt) Ltd in 2012
who were the holders of the original Title Deed.
The appellant argues that the land in question, being State
land, by virtue of its acquisition through the constitutionally sanctioned land
reform programme, as such, the respondents have no greater right than himself
to be on this property and cannot chase him away. He argues that the
respondents obtained title under a “dead Deed” since the land was effectively
owned by the State at the time that transfer to the respondents occurred.
The circumstances are articulated more fully below.
The respondents successfully obtained an interdict in the
court below with the magistrate finding that there was no land ownership
dispute and that the respondents were entitled to an interdict. The grounds
upon which the appeal is brought are as follows:
1. That the court a quo erred in finding that there was no
ownership dispute between the parties.
2. That the court a quo erred in holding that the
respondents established a clear right and all other requirements required to
warrant the relief sought of an interdict.
The appellant's prayer is that the appeal be allowed and
the judgment of the court a quo be set aside. The appellant also prays for an
order as to costs on a legal practitioner client scale.
The context in which the appellant frames his “State land”
argument is as follows:
In 2000, the land in question, which belonged to E Drakes
and Son (Pvt) Ltd, was acquired by the State under General Notice 418A of 2000.
It was listed therein as item 324. However, following this listing, the
itemised land, among others, was withdrawn from the compulsory acquisition list
in 2001. This was through GN 613 of 2001. The land in question, nonetheless,
found itself re-listed again in 2005 when section 16(B) was incorporated into
the then Constitution together with Schedule 7. The latter listed the
properties affected by the amendment. The relevant aspects of section 16B of
the old Constitution read as follows:
“(1)…,.
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 s 5(1) of the Land
Acquisition Act [Chapter 20:10] and which is itemised in Schedule 7, being
agricultural land acquired for resettlement purposes referred to in
subparagraph A or B
(ii)…,.
(iii)…,.
is acquired by and vested in the State with full title
therein with effect from the appointed day…,.”
Section 290 of the new Constitution of Zimbabwe Amendment (No.20)
Act 2013 which deals with the continuation of rights of the State in
agricultural land, effectively captures the spirit of section 16B. It reads as
follows:
“290 (1) All agricultural land which –
(a) Was itemised in Schedule 7 to the former Constitution; or
(b) Before the effective date, was identified in terms of s
16B(2)(a)(ii) or (iii) of the former Constitution; continues to be vested in
the State.
(2) Any inconsistency between anything contained in –
(a) A notice itemised in Schedule 7 to the former
Constitution; or
(b) A notice relating to agricultural land and published in
terms of section 16B(2)(a)(ii) or (iii) of the former Constitution;
and the title deed to which it refers or is intended to
refer, and any error whatsoever contained in such notice, does not affect the
operation of subsection (1) or invalidate the State's title to agricultural
land contained in terms of that subsection.”
It is on the basis of the above provisions that the
appellant argues that the land belongs to the State and that the magistrate
erred in finding no ownership dispute. He also relies for his interpretation on
the more recent case of Kennedy Magenje v TBIC Investments (Private) Ltd &
4 Ors (Case 1) and Kennedy Godwin Mangenje v Minister of Lands & Rural
Resettlement & Ors (Case 2) HH377-13.
In that case, MAFUSIRE J, disagreeing with the interpretation
by MAKONI J in Matanda (Pvt) Ltd v Minister of Lands & Ors 2009 (2) ZLR 340 which regarded the
re-listing of property previously withdrawn as an error, opined as follows with
regards to the interpretation of section 16B:
“If indeed such a property would have been withdrawn but
nonetheless found itself back on the list in terms of s16B of the of the
Constitution then the acquisition in terms of the Constitution would prevail.
Such an error, if ever it was, would be 'any error whatsoever contained in such
notice…,' within the meaning of s16(5)(a) and (b). The Supreme Court, in the
Mike Campbell 2008 (1) ZLR 17 ( S) case
above, stated that the pieces of agricultural land listed in the 157
Preliminary notices as itemised in Schedule 7 had been acquired by and vested
in the State with full title therein with effect from the appointed day, namely
14 September 2005.”
The appellant further draws strength on his occupation of
the land since 2000 when forced occupations of white farms occurred although he
admits that his occupation has not been regularised.
Whilst the 'State land' argument makes sense by virtue of
the supremacy of the Constitution, what complicates the picture for the
appellant vis-a-vis the standing of the respondents as compared to his own is
the State's own expressed “lack of interest” in the particular land in question
subsequent to the enactment of the above provision.
It is trite that the State can issue a certificate of no
interest to land that it is otherwise entitled to, if it deems it proper to
issue such a certificate. Such action by the State cannot be regarded as
irrelevant and neither can it be overlooked. It is indeed a legitimate action
which suspends the State's de facto acquisition of the land thereby allowing
for whatever status quo to prevail until such time that interest is expressed.
In the present case, the State, through the Ministry of
Lands, issued a Certificate of No Present Interest in the land in question on 2
February 2011. This was valid for a year. The land was transferred to the
respondents in 2012 following an authorised subdivision of the land by the
Department of Physical Planning for Mashonaland West Province.
The gist of the respondents' argument is that by allowing
subdivision and transfer, there was no other interest by the State in the land.
The result is that the title of the respondents have not been cancelled by the
State whom the appellant argues is the rightful owner of the land. The
appellant's argument that the respondents have no claim to the land lacks merit
in light of these facts.
The interdict was rightly granted.
