MAFUSIRE
J:I
have decided in the two cases above that it would make justice “turn on its
head” if I did not grant relief
to the applicant. These cases were heard together. The parties had agreed to
such a course of action.
(a) INTRODUCTION
The applicant has undoubtedly
“been more sinned against than sinning.” The facts read like a
comedy of errors. The dispute centres on a piece of land in Goromonzi district.
There have been errors in describing that property. There have been errors in
stating its exact name. There have been errors in describing its exact extent.
There have been errors in just about everything surrounding it, including even in
the spelling of the name of the original owner in some official documents;
errors on whether or not it was in fact the property that had been acquired for
resettlement purposes and allocated to the applicant; errors in deciding whether
or not some crime or crimes had been committed in relation to the property; errors
in respect of certain legal advices proffered by certain government
functionaries, including the Attorney-General, and so on.
The original title deed
to the property and a replacement copy had disappeared from the deeds office.
The registrar of deeds, the fourth respondent in Case 1, was still investigating
at the time of the hearing. When the applicant had decided to sue there had
been errors in his original application. He had had to withdraw it. When he had
started afresh still there were errors in the founding papers. He had had to
correct them through some supplementary affidavit and heads of argument. The litany
of errors is not exhaustive.
The Attorney-General had
been the legal advisor and counsel for the registrar of deeds and the Minister
of Lands and Rural Resettlement, (hereafter referred to as “the Minister”). The Minister was the
third respondent in Case 1 and the first respondent in Case 2. The Attorney-General
himself was a substantive party in Case 2, having been cited as the second
respondent. Owing to certain legal advice which he had proffered on the matter
and which was now incongruous to the official position taken by him, the
Minister and the registrar of deeds in the pleadings filed of record, the
Attorney-General's representative found herself in an invidious position. On
the day of the hearing she renounced agency. The matter had to be postponed to
another week to enable the Minister to secure alternative legal representation.
When the matter resumed the Minister had still not found an alternative lawyer.
However, the in-house counsel in the ministry was present in court. She asked for
the matter to proceed to avoid any further delay. It was advised that the
Minister had decided to remain neutral in the whole matter and to abide by the
court's decision. The in-house counsel would maintain a watching brief.
What the applicant seeks
in the main, in a nutshell, and in my own words, is the setting aside of the current
deed of transfer in respect of the property which is held by one of the
litigants called TBIC Investments (Private) Limited. TBIC Investments (Private)
Limited is the party cited as the first respondent in Case No 1 above. In Case
No 2 it is cited under the strange title “Interested Party”. I shall from now
on refer to it simply as “TBIC”.
The applicant also wants
the re-instatement to him of the so-called “offer letter” in respect of the
property. He seeks other ancillary relief that includes the eviction from the
property of TBIC and all those claiming through it. As I determine these issues
I have to deal with the technical objections raised by, or on behalf of the
Minister, the Attorney-General and TBIC such as whether or not the applicant
has locus standi; whether or not Case
2 was filed timeously or properly and what the correct identity or description
of the property in question is.
But before I get into the
technicalities of the nature of the relief sought and the nature of the
defences proffered, and before I set out the crisp issues for determination, it
is necessary to explain the background of the dispute in some detail. One has
to rewind back to 1997 and begin the story from there.
(b)BACKGROUND
As
at 18 June 1997 the property existed as a certain piece of land situate in the
district of GOROMONZI called REMAINING EXTENT OF STUHM, measuring 1074, 7410
hectares. The owner was one Cecil Michael Reimer (hereafter referred to as “Reimer”). The title deed no was
3032/87. From now on I shall refer to this property as the “property” or, depending on the context,
“the original property”or“the Goromonzi property”.
It
appears that at some stage Reimer had obtained a sub-division permit to
subdivide the original property. He was carving out portions of land and
selling them off to third parties. One such portion, measuring 412,1091
hectares, was sold off to an entity called Darnall Investments (Private)
Limited. It was transferred as Lot 2 of Stuhm on 19 June 1997 under deed of
transfer no 4975/97.
In
1988 Reimer sold and transferred another portion called Lot 3 of Stuhm to
another entity called Douglasdale (Private) Limited under deed of transfer no
9247/98. That portion measured 79,4959 hectares.
TBIC
enters the picture in 1999. Its case and that of the Minister was that in that
year TBIChad bought from Reimer what had remained of the original property. In
correspondence and affidavits deposed to on his behalf, the Minister avers that
TBIC had made considerable investment on the portion of the original property sold
to it. However, TBIC itself does not say anything in this regard. Be that as it
may, it appears that once it had bought the remaining extent of the original
property, TBIC subsequently leased it to one Paul Esau Hupenyu Chidawanyika
(hereafter referred to as “Chidawanyika”).
That was in 2003. Chidawanyika is cited as the second respondent in Case 1. He
is not a party in Case 2.
Before
going to the events of2003 in any greater detail, I note that on 25 August 2000
the original property was identified for compulsory acquisition by Government
in accordance with its programme of land reform. It was listed in the
Government Gazette under General Notice No 405A/2000 as the Remaining Extent of
Stuhm. But there were errors. The notice referred to the owner as one Cecil
Michael Reiner. The extent of
the property was given as 1074,7410 hectares. Thus, the owner's surname was
misspelt. He was Reimer, not Reiner.
Further, as a matter of fact, by that time 412,1091 hectares and 79,4959
hectares had already been hived off the original property when Lots 2 & 3
had been sold and transferred in 1997 and 1998 respectively. Thus the
arithmetic was also wrong because if 412,1092hectares and 79,4959 hectares had
been deducted from the original 1074,7410 hectares then 583,1360hectareswould
have remained. But it seems the notice had simply referred to the original area,
namely 1074,7410 hectares. It was partly for this reason that TBIC argued that the
property that had been listed for acquisition was not the same property that had
been sold to it. I shall come back to this particular argument later on.
In May 1992 the
government had enacted the Land Acquisition Act, Cap 20:10. Part III of that Act provided the procedure for
compulsory acquisition of land. Among other things, a notice of acquisition had
to be published in the Government Gazette. Such notices would remain valid for
one year after which they would automatically lapse, unless an application for
the confirmation of the acquisition was pending in the Administrative Court, in
which case the period during which such application was pending would not be
counted as part of the one year period.
I mention in passing that
the Land Acquisition Act was amended in 2001 and 2004 to increase the period of
validity for the preliminary notices of acquisition to two years and ten years
respectively. However, at the time that GN 405A/2002 was published the period of
validity was one year. One of TBIC's strong arguments was that GN 405A/2002 had
automatically lapsed after the period of validity had expired and that
therefore the property could not have been up for acquisition and re-allocation
by the time that the Constitutional Amendment (No 17) Act was promulgated. It was
that Constitutional amendment that ushered in s 16B in the then old Constitution
of Zimbabwe. It was common cause that GN 405A/2000 had never been expressly
withdrawn by the time of the promulgation of s 16B of the Constitution. Furthermore,
the acquisition of the property had never been subsequently confirmed in court in
accordance with the provisions of s 8 of the Land Acquisition Act. I shall
revert to this point later on.
The next significant
events were in 2003. On 13 May 2003 GN 228/2003 was published. It listed the
original property for acquisition. Whilst this time the owner's surname was
spelt correctly the area was still referred to, incorrectly, as 1074,7410 hectares.
However, GN 228/2003 was on 1 August 3003 withdrawn by GN 298A/2003.
The property was again listed
for compulsory acquisition for the third time. This was under GN 323A/2003. But
again GN 323A/2003 was later on withdrawn by GN 438/2003. Both the Minister and
TBIC averred that it was TBIC that had been behind these withdrawals allegedly
owing to its vested interest in the property. TBIC argued that the withdrawals
of those notices, coupled with the fact that the first one under 405A/2000 had
lapsed automatically, meant that the property was no longer available for
acquisition when the aforesaid s 16B to the Constitution was promulgated in
2005. Again I shall revert to these points later on.
By 2003 applicant had not
yet entered the picture. It appears that in that year he had bought himself a
farm elsewhere. That was in the district of Salisbury. The farm was called
Remainder of Guernsey. It measured 743,8355 hectares. Hereafter I shall refer
to that property as “applicant's
Guernsey farm” or, plainly “Guernsey
farm”. Applicanthad taken transfer of Guernsey farm on 29 May 2003.
However, he was subsequently to lose this farm in 2005. It was to be compulsorily
acquired by government for resettlement.
The new s16B evidently had
far-reaching provisions with far-reaching consequences as far as rights to land
ownership were concerned. Prior to the amendment the right to protection from compulsory
deprivation of property was justiciable. Under that new Constitutional
provision the jurisdiction of the courts to adjudicate on any aspect of land
acquisition other than the amount of compensation payable was expressly ousted;
see Mike Campbell (Pvt) Ltd & Anor v Minister of National Security Responsible
for Land, Land Reform & Resettlement & Anor 2008 (1) ZLR 17 (S) and
Commercial Farmers Union & Ors v
Minister of Lands & Ors 2010 (1) ZLR 576 (S).
The relevant provisions
of 16B of the then Constitution read as follows:
“16B Agricultural land acquired for resettlement and
other purposes
(1)
……………………………………….
(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 … 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 Extraordinaryfor whatever
purpose, including but not limited to –
A.
settlement
for agricultural or other purpose; 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 the
land 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)
……………………………………………………………………..
(4)
As
soon as practicable after the appointed day, or after the date when the land is
identified in the manner specified in subsection (2)(a)(iii), as the case may
be, the person responsible under any law providing for the registration of
title over land shall, without further notice, effect the necessary
endorsements upon any title deed and entries in any register kept in terms of
that law for the purpose of formally cancelling the title deed and registering
in the State title over the land.
(5)
Any
inconsistency between anything contained in –
(a)
a
notice itemised in Schedule 7;
(b)
a
notice relating to land referred to in subsections (2)(a)(ii) or (iii);
and the title deed to which it refers or
is intended to refer, and any error whatsoever contained in such notice, shall
not affect the operation of subsection (2)(a) or invalidate the vesting of
title in the State in terms of that provision.
(6)
………………………………………………………….
(7)
…………………………………………………………..”
The Schedule 7 referred
to in subsection (2)(a)(i) of s 16B had 157 preliminary notices that had been
published in the Government Gazette.
They listed the properties that had been “identified”
for acquisition. The two notices under GN 405A/2000 and GN 228/2003relating to
the property were on the list. On 3 November 2005 the original title deed no 3032/87
aforesaid was endorsed by the Registrar of Deeds. This was in line with s
16B(4) of the Constitution. That subsection required that as soon as the new
Constitutional provision had come into force the registrar of deeds would be
required to make the necessary endorsements on the properties as “identified” for compulsory acquisition
as provided. The purpose and effect of the endorsements were to cancel the
existing deeds and registering such properties in the name of the State.
The endorsement over the original
property read as follows:
“The within
mentioned land now vests in the President of Zimbabwe in terms of Section
16B(4) of the Constitution of Zimbabwe as amended”
Although it was not clear
as to when applicant's Guernsey farm had been listed in the Government Gazette,
it was also acquired in 2005 on the coming into being of the new Constitutional
Amendment (No 17) Act. An identical endorsement was noted on its title deed on
10 October 2005.
On 7 August 2006 the
Minister, in terms of the standard term “offer letter” allocated the remainder
of Stuhm to the applicant. The actual description of the offered land was
“Subdivision 1 of R/E of Stuhm in Goromonzi District of Mashonaland East
Province…… The farm is approximately 534.00 hectares in extent.” Applicant
accepted the offer on 2 February 2007. He said before accepting he had checked
the status of the land at the deeds office and had been satisfied that it had become
State land by virtue of the endorsement aforesaid. On request he had been given
a copy of the endorsed deed of transfer.
However, when the
applicant had tried to take occupation of the offered land in terms of the offer
letter he had found Chidawanyika already in occupation in terms of the lease
agreement aforesaid. Chidawanyika refused to move. Problems then started. The
dispute that has raged incessantly began at this time. Applicant wanted to take
up occupation. He wanted Chidawanyika evicted. Chidawanyika claimed rights of
occupation through TBIC which in turn claimed prior rights of ownership.
When Chidawanyika would
not vacate the applicant enlisted the help of the Minister. Applicant also
approached the Attorney-General. He agitated for Chidawanyika's prosecution for
his refusal to vacate what he considered to be State land. There were intense
and protracted agitations. TBIC maintained that the inclusion of the property
on Schedule 7 had been a mistake. It argued that the property was no longer
available for acquisition because the notices for acquisition had either lapsed
or been withdrawn.
On the other hand the
applicant maintained that GN 405A/2000 had never been withdrawn and that in any
event the property had been listed on Schedule 7 through both the original
notice and the subsequent ones. The title deed had been endorsed. The property
had become State land. It was still therefore capable of being offered for
re-settlement.
At first the Minister,
through the in-house counsel, had seemed to support the applicant's position. Part
of her letter on 2 September 2009 to the Attorney-General read as follows:
“Chidawanyika
contends that after Remaining Extent of Stuhm was gazetted on 8 September 2003
the preliminary notice was subsequently withdrawn and thereafter the land was
never gazetted again. He is wrong. The land was identified in that gazette of 08
August 2003 and it is itemized in schedule 7 of the Constitutional Amendment
(No 17) Act. That constitutes acquisition. In fact, the acquisition is
confirmed twice in that the gazette of 2000 in which the Remaining Extent of
Stuhm is identified is also itemized in schedule 7 of the Constitutional
amendment (No 17) Act of 2005. The intention to acquire Remaining Extent of Stuhm
cannot be clearer.”
As the applicant piled up
pressure for Chidawanyika's prosecution, and as the Attorney-General apparently
pondered on what action to take he had suggested that the property be
re-gazetted for compulsory acquisition. However, in the letter aforesaid the
Minister's in-house counsel had strongly argued against such a move. She had concluded
her letter by saying it was totally unnecessary and an extra expense to re-gazette
the land because it had already been gazetted. There was a stalemate.
(c) LITIGATION
As efforts to prosecute
Chidawanyika fizzled out applicant switched his attention to civil redress. He
says when he went to the deeds office to check on the title deed he had been surprised
to learn that the original one with the endorsement aforesaid had been removed
and had been replaced with one without the endorsement. Since he still had that
copy that the deeds office had given him before, the registry staff had made an
extra copy for their file.
Under HC 7301/10applicant
filed an application for the eviction of TBIC and Chidawanyika. It was this
application that he subsequently withdrew and tendered wasted costs. He felt
that the application had incurable errors. According to him not all interested
parties had been joined.
In March 2009 TBIC had somehow
managed to take transfer of the remainder of the property under deed of transfer
no 1724/2009. The transfer had apparently been the consummation of the alleged
1999 agreement of purchase with Reimer. The description of the property as
transferred to TBIC was “Remaining Extent of Stuhm, measuring 583,1360
hectares”.
Applicant complained that
the transfer was fraudulent. He said the property having become State land in
2005 there was no way TBIC could lawfully have taken transfer. He fingered TBIC
in the disappearance from the deeds office of the original deed of transfer and
the copy that he had supplied and both of which had the endorsement.
Reimer, the original
owner and transferor of the property, explained in an affidavit dated 10 March
2009 that in April 1999 he had sold it to Time Bank Investments Company (Pvt) Ltd
which allegedly had become the “real owner” and that the certificate of “no
present interest” which he held at that time in respect of the property had eventually
expired before the property had been transferred. He further explained that in
May 2005 he had offered the property to the Minister but had got no response
within the stipulated 90 days. He had then gone on to inform the Minister in
September 2008 of his intention to sell and transfer to Time Bank Investment
Company (Private) Limited which had now become TBIC.
The transfer attorney or
conveyancer, one Christopher Chigwanda deposed to an affidavit also on 10 March
2010. The substance of that affidavit was that after he had been instructed to
transfer the property he had been advised by the deeds office that their office
copy of the title deed had gone missing but that there were no encumbrances registered
against the property. He had then requested the registrar of deeds to transfer
the property using the client's copy of the deed.
The registrar of deeds
filed identical affidavits in the two cases above. The summary of those
affidavits was that the Remaining Extent of Stuhm had at all times been
registered in the name of Reimer; that an XN Caveat had been noted against the
title deed in 2000 following the listing of the property in the Government
Gazette; that on 3 November 2005 the property had been transferred to the
President of Zimbabwe in terms of s 16B of the Constitution Amendment (No 17)
Act, an endorsement to that effect having been noted on the title deed; that
both the original title deed and a copy which had been requested by one of the
deeds registry staff had been removed deliberately and had gone missing; that
the transfer of the property from Reimer to TBIC had been irregular and that an
investigation was under way but was being hampered by the fact that even the
new title deed in favour of TBIC had also been removed and could not be
located.
Applicant filed Case 1 in
January 2011. He sought a declaratory order that the compulsory acquisition of
the property by government had been valid. He sought several other orders,
namely the nullification of the transfer of the property to TBIC; the
nullification of TBIC's lease of the property to Chidawanyika and the eviction
of Chidawanyika and anyone else claiming occupation through TBIC.
TBIC, the Minister and
Chidawanyika all filed opposing papers in Case 1. The registrar of deeds simply
filed the aforesaid affidavit. The Commissioner-General of Police who had been
cited evidently as a nominal party did not file any papers.
The one ground of
opposition by both TBIC and the Minister was that the applicant lacked locus standi allegedly because his claim
was in reality based on the reivindicatio
remedy; that this remedy was available only to owners of property and that since
he was not the owner his claim was ill-conceived. The Minister weighed in with
the argument that it was only the State that could take civil or criminal
proceedings in relation to the land.
The next ground of
opposition was taken by the Minister alone. This was in the heads of argument.
It was that in Case 2 the applicant was out of time. It was argued that
whatever name the applicant had chosen to call the nature of his proceedings,
in reality the application was one for review which had to be filed within 8
weeks of the decision sought to be impeached in accordance with r 259 of the
rules of this court. In Case 2 the applicant was some 5 weeks out of time. No
application for condonation had been made.
The next ground of
opposition was by TBIC. It was that the property that the applicant had been
offered was different from the property owned by TBIC which it held under deed
of transfer no 1724/2009. Much was made of the discrepancy between the
description and the extent of the property in the offer letter and the
description and the extent the property in the title deed. In the offer letter
the property had been described as “Subdivision
1 of R/E of Stuhm in Goromonzi District of Mashonaland East Province
measuring approximately 534 hectares
in extent”. In the title deed held by TBIC the property was registered
as “Remaining Extent of Stuhm situate
in the District of Goromonzi measuring 583,1360 hectares”.
On the merits TBIC argued
that the offer letter given to the applicant had been invalid because it had referred
to a non-existent property since not only was the description of the property
incorrect as already stated but also that by the time the offer letter had been
issued the property was no longer available for compulsory acquisition by
reason of the fact that the notices of acquisition had either lapsed
automatically or had expressly been withdrawn.
On the merits the
Minister argued that by the time the property had been acquired by government
the original property had been subdivided and a portion thereof had been sold
to TBIC and that therefore the property was no longer available for
acquisition; that on buying the property TBIC had gone on to lease and invest
heavily on it; that it was not government policy to dispossess indigenous
persons of their land in favour of other indigenous persons and that efforts
were under way to offer applicant alternative land.
Applicant had prosecuted
Case 1 up to the hearing stage. About four months before the date of hearing the
Minister gave the applicant a written notice of the immediate withdrawal of the
offer letter (hereafter referred to as “the
withdrawal letter”). The withdrawal letter was said to be in terms of the conditions
of offer attached to the offer letter. Applicant was required to forthwith
cease all operations on the property and to immediately vacate. The withdrawal
letter concluded by inviting the applicant to make representations, if he
wished to do so, within seven days of the receipt of the letter.
The reasons for the
withdrawal letter were explained in two other letters written to the applicant
and his legal practitioners by the Minister's in-house counsel three days later.
The reasons were basically that the property was owned by an indigenous entity,
that it was not the policy of the ministry to dispossess indigenous owners of
land and that therefore the applicant could not insist on enforcing his rights
against TBIC.
Applicant reacted to this
development by making strong representations against the withdrawal of the
offer letter. He wrote to the Minister some three days after the letter from
the Minister's in-house counsel. In the letter he basically laid out the
history of the matter from the time that the property had been listed for
acquisition, the actual acquisition, his offer letter, the transfer to TBIC, the
abortive prosecution and the loss of his Guernsey farm. He complained of the
Minister's manifest double standards on the policy regarding dispossession of
land owned by indigenous persons since he, also an indigenous person, had lost
his farm to government.
Applicant had been
offered an alternative piece of land in the Beatrice area. However, after
inspecting it he had turned the offer down as he had considered the land to be unsuitable
for the type of farming that he had been carrying out in Goromonzi and which he
intended to continue with. Applicant touched on this in his written
representations. He concluded by imploring the Minister to support his efforts
to get occupation of the property since, as he said, no plausible reason had
been given for why he could not.
Applicant further reacted
to the withdrawal letter by instituting Case 2 above. He argued that the
withdrawal letter had offended against the rules of natural justice in that he
had not been afforded an opportunity to make representation before the Minister
had taken the adverse decision against him. He also argued that by taking that
administrative function the Minister had failed to act fairly and had therefore
breached the Administrative Justice Act, Cap
10: 20. After setting out the history of the dispute all over again, applicant
sought the setting aside of the withdrawal letter and the reinstatement of the
offer letter. He explained that his Case 1 had been predicated on the offer
letter. Since it had now been withdrawn it was pointless to proceed with it
without first sorting out the issue of the withdrawal letter. In Case 2
applicant cited the Minister as the first respondent, the Attorney-General as
the second respondent and TBIC as the Interested Party.
Only the Minister and
TBIC opposed Case 2. The Attorney-General prepared all the pleadings on behalf
of the Minister but filed no papers for himself.
The Minister's one ground
of opposition in Case 2 was that he and his officials had actively engaged the
applicant and his legal practitioners to explain why he could not occupy the
property and that therefore he could not be said to have violated the rules of
natural justice.
The Minister also argued
that where the acquiring authority did not support the holder of an offer
letter it was incumbent upon it to withdraw the letter. He then repeated the
argument that TBIC had bought the property and had been recognised as the owner;
that it had been TBIC that had been behind the delisting of the property; that
TBIC had invested heavily on it and that owing to applicant's adamant stance
despite previous correspondence to him it became necessary “to speak legally with a withdrawal letter”.
TBIC opposed Case 2 on
the preliminary basis that the applicant had not exhausted his domestic
remedies. It was argued that applicant had made representations in respect of
the withdrawal letter as the Minister had invited him to do; that he ought to
have waited for the Minster's response before he approached this court and that
applicant “cannot challenge unconsummated
administrative proceedings” in a court of law. It was argued that until the
Minister had responded applicant's cause of action was incomplete.
I note for the record
that the withdrawal letter was on 24 June 2011. The applicant's representations
were on 30 June 2011. Case 2 was filed on 28 September 2011.
TBIC's opposing affidavit
is largely argumentative on mere technical points such as the claim that the
Administrative Justice Act did not authorise a court to intervene in a matter
that was still under consideration by an administrative authority; that the
Constitutional amendment that introduced s 16B had actually supported the
Minister's policy that indigenous owners of land would not be dispossessed of
their land; that the applicant had not accepted the offer of land timeously and that it was unlawful for
the applicant to have “ordered” the
registrar of deeds to insert in the official records of the deeds registry a
foreign document that he himself had brought. The argument that the property
was no longer available for compulsory acquisition by the time of the
Constitutional amendment was repeated. TBIC criticised the applicant's
rejection of the offer of an alternative land and claimed that applicant
believed that no other land in Zimbabwe was suitable for him and that, at any
rate, the Minister had no obligation to offer him an alternative piece of land.
(d) THE
ISSUES
Despite
the volumes of papers filed of record, in my view there was one major issue
that was decisive. What was the status of the original property by the time of
the Constitutional Amendment (No 17) Act in September 2005 when it was included
on Schedule 7 to s 16B via the preliminary notices that had previously been
published in the Government Gazette?
However,
before dealing with that main issue there are some other preliminary points
arising in Case 2 that I have to dispose of. Only if applicant succeeds in Case
2 can I go on to decide Case 1.
The one issue in Case 2 was
whether or not the applicant had approached the court prematurely without first
having exhausted his domestic remedies. The next was whether the audi alteram partem rule of natural
justice had been violated. The third was whether there had been a breach of the
provisions of the Administrative Justice Act. The last was whether applicant lacked
locus standi. I will now deal with
these issues in turn.
(i)
FAILURE TO EXHAUST DOMESTIC REMEDIES
Initially TBIC's point
was that in the withdrawal letter the Minister had invited applicant to make
representations, albeit after the decision to withdraw the offer letter had
been made. After he had obliged applicant had however, gone on to file Case 2
before waiting for the Minister's response. Therefore, the argument proceeded,
the process had not been completed.
For the record, on 20
December 2011 the Minister had finally responded to applicant's representations.
But he said nothing new. He maintained his position that the land in question
had been bought by an indigenous entity which had enjoyed the right of use
prior to getting transfer and that it was the entity that had been behind the
de-listing of the property. The Minister also said that if TBIC had procured
the title deed fraudulently then that was a criminal issue that had to be
investigated.
However, even if the
Minister had not written the letter of 24 December 2011, I would still not have
been prepared to hold that in Case 2 the applicant was non-suited. I am
satisfied that he had been treated unfairly. In my view the Minister did not seem
to have been sufficiently sensitive to his plight. Here was someone who had
been an indigenous land owner. Despite the Minister's avowed policy of sparing
indigenous land owners from compulsory acquisitions applicant had nonetheless lost
his Guernsey farm. Of course, the Minister had tried to do something about it.
He had offered him the Goromonzi property. But whatever the Minister's good
intentions, the fact remains that since 2009 applicant had not been able to
occupy that land. The Beatrice farm that he had been offered as an alternative
had demonstrably turned out to be unsuitable for reasons that he had clearly and
satisfactorily articulated to the Minister. It had never been in doubt that the
applicant had been entitled to a second farm. TBIC's argument that the Minister
had no obligation to offer the applicant alternative land was self-serving and
contrary to the Minister's own position. The Minister's own position was that
he would continue to look for an alternative piece of land for the applicant.
Thus given that applicant
had lost his own farm in 2005 despite that he was an indigenous person; given that
the land he had been offered in 2009 had turned out to be unavailable because
TBIC and Chidawanyika claimed it; and given that when he had taken action in
Case 1 to assert his rights the process had been thwarted by the Minister when
he had revoked the offer letter just before the hearing, I would not be
prepared to hold that in Case 2 the applicant had approached the court
prematurely. That case had been instituted some four months after the
Minister's withdrawal letter.
I am satisfied that by
the withdrawal letter the Minister had made a substantive decision. By that
decision all the rights of the applicant to the property had terminated. The
applicant had been ordered to cease all operations forthwith and to vacate the
property. It was a complete decision. It was justiciable. That the possibility
existed that the Minister could well make another decision in response to applicant's
representations would not detract from that fact that the first decision had
been complete by itself.
(ii)
WHETHER THE AUDI ALTERAM PARTEM RULE HAD BEEN VIOLATED
The audi alteram partem rule holds that a man shall not be condemned
without being given a chance to be heard in his own defence. The rule is so
basic to jurisprudence that, as EBRAHIM J said in Dube v Chairman, Public
Service Commission & Anor 1990 (2) ZLR 181 (H), it is often termed a
rule of natural justice.
The rule implores public
officials, judicial and quasi-judicial officers, and really anyone entrusted
with the power to make decisions or the power to take action affecting others
adversely, to exercise such powers fairly. Fairness is the overriding
consideration.
The legitimate
expectation doctrine is an extension of the audi
alteram partem rule. In England, in the case of Schmidt and Anor v Secretary
of State for Home Affairs [1969] 1 All ER 904 (CA), LORD DENNING MR, said,
at p 909:
“…
an administrative body may, in a proper case, be bound to give a person who is
affected by their decision an opportunity of making representations. It all depends
on whether he has some right or interest, or, I would add, some legitimate
expectation, of which it would not be fair to deprive him without hearing what
he has to say” (emphasis added).
Later on, in 1971, LORD
DENNING had this to say in Breen v Amalgamated Engineering Union and Ors
[1971] 1 All ER 1148, at p 1153:
“It
is now well settled that a statutory body, which is entrusted by a statute with
a discretion, must act fairly. It does not matter whether its functions are
described as judicial or quasi-judicial on the one hand, or as administrative
on the other hand, or what you will. Still
it must act fairly. It must, in a proper case, give a party a chance to be
heard…” (emphasis added).
The doctrine is also part
of the South African law; see Administrator,
Transvaal and Ors v Traub and Ors 1989 (4) SA 731. In Zimbabwe it is firmly
entrenched in our law; see Health
Professions Council v McGowan1994 (2) ZLR 392 (S); Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772
(S) and Kanonhuwa v Cotton Co of Zimbabwe
1998 (1) ZLR 68 (H) among others. In McGowan's
case GUBBAY CJ stated as follows at p 334:
“In short, the
legitimate expectation doctrine, as enunciated in Traub, simply extended the principle of natural justice beyond the
established concept that a person was not entitled to a hearing unless he could
show that some existing right of his had been infringed by the quasi-judicial
body… Fairness is the overriding factor
in deciding whether a person may claim a legitimate entitlement to be heard…”(emphasis
added).See also Affretair (Pvt) Ltd &
Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S), per McNALLY JA, at p 21C
- D.
Thus administrative
decisions such as the one made by the Minister in the present case when he
issued the withdrawal letter are reviewable by this court. An administrative
decision made in violation of natural justice can be set aside, especially if
it is to be implemented immediately. In the McGowan's
case the learned Chief Justice said, at p 337C –D:
“The general rule
is that once a decision has been reached in violation of natural justice, even
if it has not been implemented, a
subsequent hearing will be no meaningful substitute. The prejudicial
decision taken will be set aside as procedurally invalid. In this way the human inclination to adhere to the
decision is avoided” (emphasis added).
In the present case not only
was the Minister's decision reached in violation of natural justice but also it
was to be implemented immediately. I accept that when the applicant instituted
Case 2 the Minister was still to respond to his representation. However, as
stated in the McGowan case above, a
subsequent hearing would be no meaningful substitute.
There may be situations
where the court might accept an administrative decision taken in violation of
natural justice where for, instance, a statute authorises an ex parte action by the administrative
authority in an emergency or where there is a sufficient interval between the
decision and its implementation during which there is a fair hearing. In Sachs v Minister of Justice, Diamond v Minister of Justice 1934 AD 11whilst
dealing with the statutory exclusion of the audi
alteram partem rule in certain situations, STRATFORD ACJ said at p 38:
“Sacred though the
maxim is held to be, Parliament is free to violate it. In all cases where by
judicial interpretation it has to be invoked, this has been justified on the
ground that the enactment impliedly incorporated it. When on the interpretation
of the Act, the implication is excluded, there is the end of the matter.”
In the McGowan
case the learned Chief Justice stated, at p 337E – H:
“The exceptions to
the rule are set out by Professor Baxter in his work on Administrative Law at
pp 587 – 588, as follows:
'(i) Where a statute authorises emergency, ex parte action, it might be implicit in
the statute that, unless natural justice is excluded altogether, a hearing need
only be given after the decision is taken. If
there is no urgency, however, the court will require natural justice to be
observed beforehand.
(ii) A court may
accept as sufficient compliance with natural justice a hearing held after the
decision has been taken where:
·
there
is a sufficient interval between the taking of the decision and its
implementation to allow a fair hearing;
·
the
decision maker retains a sufficient open mind to allow himself to be persuaded
that he should change his decision;
·
the
affected individual has not thereby suffered prejudice
These are
concessions to the demands of administrative efficiency, but they are limited. A hearing held after the decision can
only be acceptable if, in all the circumstances, it was sufficiently fair as to
have the effect of 'curing' the failure to hold one before'” (my emphasis)
The “…. human inclination to
adhere to [one's] decision…” referred to by the learned Chief Justice in
the McGowan's case above was probably
aptly demonstrated in this case. In his letter of 24 December 2011aforesaid the
Minister simply stuck to his earlier decision and his earlier position that the
applicant could not have the property because it was owned by an indigenous
entity.
In the withdrawal letter
the Minister alleged that the withdrawal was in terms of the conditions of
offer attached to the offer letter. The offer letter itself reserved to the
Minister the right to withdraw or change the offer if he deemed it necessary or
if the applicant was in breach of any of the set conditions. The set
conditions must have been those at the back of the letter. They were these:
(1)
The applicant was to take up personal and
permanent residence on the property or, within 3 months of the acceptance of
the offer letter, appoint a manager to personally and permanently stay there.
(2)
The acceptance of the offer had to be
communicated to the Minister within 30 days of the receipt of the offer letter.
(3)
Developments on the property had to be
initiated in accordance with the 5 year development plan submitted with the
application.
(4)
The applicant could not in any way part
with possession of the property, for example, by way of cession, lease or
assignment of rights, or subletting without the Minister's prior written
consent.
(5)
The applicant had to comply with all the
provisions of the Agricultural Land Resettlement Act, [Cap 20: 01] pertaining to the leasing of State land, and, in
addition any special conditions which the Minister might impose.
(6)
The applicant had to comply with any laws
requiring the grant of any servitude over the property.
(7)
The onus to notify the Minister of any
change of address lay with the applicant whose failure to do so would absolve
the Minister of responsibility over any misdirected mail.
(8)
On it being established that the applicant
had taken occupation of the property a 99 year lease would be prepared for the
applicant's signature.
It was common cause that
the Minister's withdrawal letter was not motivated by any breach of the
conditions of offer by the applicant. At any rate, in his withdrawal letter the
Minister did not specify any such condition as may have been breached by the
applicant. That can only mean that the Minister withdrew the offer letter on
the basis that the letter itself had reserved to him the right to do so if he
deemed it necessary. His in-house counsel confirmed as much. In the one
explanatory letter of 27 June 2011 to the applicant she wrote:
“It is the
Acquiring Authority's prerogative to issue offer letters and withdraw them
where it deems necessary” (sic).
But as I have already
mentioned, in doing so the Minister had to observe the rules of natural
justice. Furthermore, and at any rate, in Masunda
v Minister of State for Land & Anor 2006 (2) ZLR 72 (H), this court,
BERE J, held that the Agricultural Land Settlement Act, Cap 20: 01, which regulates the allocation of land, does not give
the Minister unilateral powers to withdraw offer letters to beneficiaries of
the land reform programme. The learned judge went on to state that it is a very
basic tenet of administrative law that before a decision is taken that
adversely affects another person, the affected individual has to be given an
opportunity to be heard.
In
the premises I find that the Minister violated the audi alteram partem rule when he withdrew the offer letter.
(iii)
LOCUS
STANDI
In support of its
argument that applicant did not have the requisite locus standi to seek its eviction from the property because such an
action could only be based on the reivindicatio
remedy, TBIC referred to the South African cases of Hartland Implemente (EDMS) Bpk v EnalEiendomme BK En Andere 2002
(3) SA 653 (NC); Joosabv. J. I. Case SA
(Private) Limited and Others 1992 (2) SA 665 (N); Mngadi NO v Ntuli and Others 1981 (3) SA 478 (D) and Vumane and Another v Mkize 1990 (1) SA
465 (W). The common thread running through those cases was that in order for an
applicant to vindicate a property he was required to prove his ownership of the
property and the respondent's possession of same.
Vumane's
case dealt with a statute, the Black Communities Development Act, which conferred
on applicants inter alia the right to
occupy buildings on certain premises. The court held that the applicants could
not in law be regarded as owners of the premises and consequently that they
could not vindicate.
In Zimbabwe the issue of
offer letters and inter alia the
right of beneficiaries over agricultural lands offered for resettlement is
governed by the Constitution. In Commercial
Farmers' Union & Ors v The Minister of Lands and Resettlement & Ors2010
(1) ZLR 576 (H)and Commercial Farmers'
Union & Ors v Minister of Lands & Ors, supra, the Supreme Court,
sitting as a Constitutional Court, held that an “offer letter” conferred on the
holder or beneficiary the right to occupy and use the land so offered. Thus the
South African authorities cited by TBIC are irrelevant. In Zimbabwe the holder
of an offer letter in respect of land acquired for resettlement in terms of the
land reform programme is entitled to occupy the land and to use it. He or she
is entitled to sue for the eviction of anyone interfering with that right,
unless that person proves a superior right of occupation. In this case the
applicant had the requisite locus standi.
(iv)
WHETHER THERE WAS A BREACH OF THE
ADMINISTRATIVE JUSTICE ACT
In my view the
Administrative Justice Act, Cap 10: 28,
is an elaborate restatement of the rules of natural justice. In the case of Zindoga&Ors v Minister of Public Service,
Labour and Social Welfare & Anor 2006 (2) ZLR10 (H), PATEL J, as he
then was, said at p 13D – E:
“It is axiomatic
that any party who has a right or interest that is likely to be affected by an
administrative decision or which is susceptible to being prejudiced thereby
must be heard before that decision is taken. This is dictated by the time
honoured precept of the common law embodied in the audi alteram partem rule and
now codified in the Administrative Justice Act [Chapter 10: 28”
(emphasis added).
In substance the Act behoves an
administrative authority to observe the rules of natural justice whenever it
makes an administrative decision or takes an administrative action adverse to
vested rights or legitimate expectations.
One of the arguments put
forward for and on behalf of the Minister, particularly in the heads of
argument, was that despite the reference to the Administrative Justice Act
applicant's Case 2 was simply one for review, that in terms of r 259 of the
rules of this court an application for review has to be filed within 8 weeks of
the decision to be reviewed and that the applicant's application was out of
time, allegedly it having been filed some 5 weeks out of time. Relying on the
cases of Masuka v Chitungwiza Town
Council & Anor 1998 (1) ZLR 15 (H)and Forestry Commission v Moyo 1997 (1) ZLR 254 (S) it was argued that if
the applicant instituted Case 2 in terms of s 26 of the High Court Act, then
the proceedings were common law proceedings for review.
In the Masuka case, DEVITTIE J rejected the
position taken in Musara v Zinatha
1992 (1) ZLR 9 (H) that in the field of administrative law there is a
distinction between, on the one hand, void acts which can be brought on review
within the prescribed time limits but which also can be brought as ordinary
applications even outside those time limits, and, on the other hand, voidable
acts which can only be brought by way of review within the 8 weeks period
prescribed by r 259.
In his heads of argument
on this point the applicant seemed confused. In paragraphs 34 and 35 of those
heads applicant argues that proceedings brought in terms of s 4 of the
Administrative Justice Act “… are not
review proceedings simpliciter in
the sense that they do not supplant the procedure of common law review”. He
argued that proceedings under that Act amount to a form of statutory review but
that circumstances might exist when they might not constitute a review at all.
Applicant's Case 2 was
predicated on the withdrawal letter and on his argument that in terms of that
letter his cause of action had matured and that he did not have to wait for the
Minister's response to his representations. On the other hand the Minister and
TBIC insisted he ought to have waited for that response.
In his heads of argument
the applicant states unequivocally that in terms of s 26 of the High Court Act,
[Cap 7: 06], this court has power to
review all decisions of inter alia,
administrative authorities; that the grounds of review as specified in the High
Court Act are common law review procedures; that r 259 of the rules of this
court is peremptory in providing that review proceedings “shall” be
instituted within 8 weeks of the “…termination
of the suit, action or proceedings in which the irregularity complained of is
alleged to have occurred”; and that if he failed to bring the review
proceedings timeously then he would be non-suited.
What then confuses issues
is that applicant goes on to argue that it could not be said that there had
been “termination” within the
meaning of r 259 when the Minister issued the withdrawal letter, because, the
argument persisted, such “termination” would only have occurred after the
Minister had either made a decision on the applicant's representations (as he
had been invited to do so in the withdrawal letter), or if he had failed to
respond to those representations within a reasonable time. Applicant stressed
that the Minister had not yet become functus
officio at the time of the withdrawal letter.
Such confusion by the
applicant prompted the Minister to retort in his heads of argument as follows:
“8.0 At paragraphs 39 and 42 of his Heads of
Argument, the Applicant says he was not out of time when he instituted these
proceedings because the decision to withdraw the offer letter 'was not final'
at the time it was made and it was therefore 'not reviewable' at that time. But
he has now instituted these proceedings because of that same decision and the
question is: When did the decision become final and reviewable?”
Since, as noted before,
the Minister eventually decided not to contest the matter and chose to abide by
the decision of this court and since none of the remaining parties took up the
point at the hearing I have refrained from deciding whether or not the
applicant's Case 2 was a review application which had to be presented within a
specific time frame, or whether it was some other application that could be
brought within a reasonable time.
My view is that the Minister
is undoubtedly an “administrative authority” within the meaning of that expression
as defined in terms of s 2 of the Administrative Justice Act. His withdrawal
letter was an “administration action.” Section 2 of the Act defines these terms
as follows:
“2Interpretation
and application
(1)
In
this Act –
“administration
action” means any action taken or decision made by an administrative authority
…”
“administrative
authority means any person who is –
(a)
an
officer, employee, member, committee, council, or board of the State or a local
authority or parastatal; or
(b)
…………………………..
(c)
any
other person or body authorised by any enactment to exercise or perform any
administrative action concerned;”
Section 3 of the Act
reads:
“3 Duty
of administrative authority
(1)
An
administrative authority which has the responsibility or power to take any
administrative action which may affect the rights, interests or legitimate
expectations of any person shall –
(a)
act
lawfully, reasonably and in a fair manner; and
(b)
act
within the relevant period specified by law or, if there is no such specified
period, within a reasonable period after being requested to take the action by
the person concerned; and
(c)
where
it has taken the action, supply written reasons therefor within the relevant
period specified by law or, if there is no such specified period, within a
reasonable period after being requested to supply reasons by the person
concerned.
(2)
In
order for an administrative action to be taken in a fair manner as required by
paragraph (a) of subsection (1), an administrative authority shall give a
person referred to in subsection (1) –
(a)
adequate
notice of the nature and purpose of the proposed action; and
(b)
a
reasonable opportunity to make adequate representation; and
(c)
adequate
notice of any right of review or appeal where applicable.
(3)
An
administrative authority may depart from any of the requirements referred to in
subsection (1) or (2) if –
(a)
the
enactment under which the decision is made expressly provides for any of the matters
referred to in those subsections so as to vary or exclude any of their
requirements; or
(b)
the departure is, under the circumstances,
reasonable and justifiable, in which case the administrative authority shall
take into account all relevant matters, including –
(i)
the
objects of the applicable enactment or rule of common law;
(ii)
the
likely effect of its action;
(iii)
the
urgency of the matter or the urgency of acting thereon;
(iv)
the
need to promote efficient administration and good governance;
(v)
the
need to promote the public interest.”
In my view, the Minister
breached s 3 of the Administrative Justice Act in relation to the manner the
withdrawal letter was issued. In particular, he failed to comply with paragraph
(a) of subsection (1) and subsection (2).He failed in his duty to act in a fair
manner; he failed to give applicant any notice of the nature of his action and
he gave the applicant no opportunity to make adequate representations before he
implemented his decision, let alone before making it.
As I have observed the
Act is a codification of the rules of natural justice as they relate to the
area of administrative law. Therefore the factors that are relevant to the
considerations of the common law rules of natural justice would all, or largely
apply to considerations of the duties of public bodies under the Act. In this
case, I find that there were no factors that would exempt the Minister from
compliance in terms of subsection (3) of s 3 of the Act.
(v)
STATUS OF PROPERTY AS AT 4 SEPTEMBER
2005
The registrar of deeds
states categorically that the transfer of the property from Reimer to TBIC
under deed of transfer no 1724/2009 dated 18 March was done irregularly because the rightful
owner of the property was the President of Zimbabwe at the time of the that
transfer. I agree.
In their opposing papers
both the Minister and TIBC gloss over certain facts. TIBC may have bought the
remaining extent of Stuhm form Reimer in 1999. However, at that time it had only
acquired personal rights. Real rights in a property are transferred by the registration
of transfer in the deeds office. In terms of the Deeds Registries Act, [Cap 20: 05] the owner of an immovable
property is the person registered as the owner thereof. Registration of
real rights in the deeds office is not a mere matter of form. In the case of Takafuma v Takafuma 1994 (2) ZLR 103 (S) the Supreme Court, per McNALLY JA at
pp 105 – 106, stated as follows:
“The
registration of rights in immovable property in terms of the Deeds Registries
Act [Cap 139] is not a mere matter of
form. Nor is it simply a device to confound creditors or the tax authorities.
It is a matter of substance. It conveys real rights upon those in whose name
the property is registered. See the definition of 'real right' in s2 of the
Act.”
TBIC obtained transfer of the remaining
extent of Stuhm only in 2009. Until it did it had no real rights over it. But
most importantly, Reimer who purported to transfer the property to it had lost
all rights over the property save, perhaps, the right to a fair compensation.
By 3 November 2005 the property had become State land by virtue of s16B of the
then Constitution of Zimbabwe as amended by Constitutional Amendment (No 17)
Act.
The circumstances surrounding TIBC getting
transfer of the property in 2009 have already been canvassed. The deliberate
and unlawful removal form the deeds registry of the original title deed which bore
the endorsement in favour of the President of Zimbabwe undoubtedly facilitated
the transfer. Admittedly, there was no evidence placed before me that TBIC or
anyone else associated with it was behind that illegal move. Therefore, I have
drawn no inferences. Nonetheless, that does not detract from the fact that the
act was illegal and that it was only because of it that the transfer could have
been registered in the face of the endorsement on the title deed. Whether or
not TBIC was innocent of the act does not transform a patently and blatantly
illegal act into a legitimate one which this court could ignore.
There was, in my view one other
irregularity in the transfer of the property to TBIC. Apparently it was
transferred on the strength of, among other things, the affidavit by the transfer
attorney. He had become aware that the deeds office copy of the holding deed
had been removed. Part III of the Deeds Registries Regulations, 1977, RGN
249/1977, provides for the replacement of documents that are filed in the deeds
registry. An elaborate procedure is prescribed. It involves an application to
the registrar. It entails, among other things, notifying the public through
publication of the application in the manner prescribed in the Government
Gazette and the print media, and allowing for a period of objections. Section
20 of those regulations provides as follows:
“20. Application
for copy or replacement of document
(1)
Any
person who requires –
(a)
a
copy of any document filed in the deeds registry;
(b)
the
replacement of any document filed in the deeds registry because his copy of the
document has been lost, destroyed, defaced or damaged;
shall apply to the
registrar in writing.”
In my view, it was not enough for the
transfer attorney, on behalf of Reimer, to simply submit his affidavit and
request the registrar to use Reimer's copy of the deed for the purposes of
transfer. When s16B of the Constitution and Schedule 7 thereto had been
published listing the 157 properties, including Reimer's property, for
immediate transfer to the State, the
whole world, including Reimer and his attorney, had become aware that the
property had automatically transferred to the State. They had become aware, or
ought to have become aware, that the deeds registry copy of the title deed had
been endorsed in accordance with subsection (4) of s 16B. How then could Reimer
and his attorney simply request the registrar to transfer on the basis of
Reimer's copy deed which they knew bore no endorsement? In my view Reimer would
have required a replacement deed for the deeds office in accordance with s
20(1) (a) of RGN 249/77 before he and his lawyer could legitimately have moved
for the transfer.
If TBIC had invested heavily on the
property as the Minister claimed, then it would have done so on the basis of
mere personal rights. Obviously it would have taken a huge risk. That should
not affect the status of the transaction and therefore the status of the
property. Title deed no 1724/2009 was registered irregularly and must be set
aside.
The argument on behalf of the Minister and
TBIC that it was a mistake that the property was included on Schedule 7 to s
16B of the amended Constitution as the listing notices had either lapsed or
been withdrawn was predicated on the case of Matanda (Pvt) Ltd v Minister of Lands & Ors 2009 (2) ZLR 340
(H), a decision of this court by MAKONI J. In that case offer letters had been
issued in respect of a property in respect of which the preliminary notices of
acquisition had been issued but subsequently withdrawn. The fifth to ninth respondents,
the beneficiaries of the offer letters, supported by the first respondent, the
Minister or the acquiring authority, had argued that despite the “de-listing”,
the property had subsequently been acquired by operation of s 16B of the
Constitution as it had been listed in the Schedule. The applicant, the previous
owner of the property, had argued that the inclusion of the property on the
Schedule had been a mistake and he sought a declaratory order that he was still
the owner.
Section5 (7) of the Land Acquisition Act, Cap 20: 10, provides that an acquiring
authority may at any time “withdraw”
a preliminary notice (of compulsory acquisition) by publishing the notice of
such “withdrawal” in the Government
Gazette.
MAKONI J interpreted the word “withdraw”, in the context of the Land
Acquisition Act, to mean to “discontinue, cancel, retract.” The learned judge
held that the government had cancelled or retracted the preliminary notice in
respect of the farm in question and that it no longer had an interest in it. If
the government were to develop another interest in the farm it would have had
to start the whole process of acquisition afresh. At p344C – E the learned
judge stated as follows:
“It is not in
issue that the land in question was not issued with a fresh notice of
acquisition. It is clear that it was a mistake
or an oversight on the part of the acquiring authority to include the property
in Schedule 7 of s 16B, since the initial identification of the land had been
withdrawn. It is therefore my finding that the land was not acquired by the
operation of the provisions of s 16B of the Act as advanced by the respondents.
…….. The land in question is owned by the applicant. The fifth to ninth
respondents are claiming occupation on the basis of offer letters. The first
respondent is not the owner of the property and cannot, therefore, issue offer
letters in respect of that land.”
With due respect to the learned judge I
find myself unable to agree with her approach. Whilst in the case before me the
status of the property as at the time of the Constitutional amendment aforesaid
was substantially the same as that of the property my sister judge was dealing with
in the Matanda case, it is my view
that no mistake is apparent or manifest on Schedule 7 to s 16B of the then
Constitution as amended. Firstly, it
must be noted that the Constitution, as set out in s 3, was the supreme law of
the country. Any other law inconsistent with it would be void to the extent of
the inconsistency.
Secondly, I find that the mode of
compulsory acquisition of agricultural land that was ushered in by s 16 B of
the then Constitution was materially different from that under the Land
Acquisition Act. Under the Land Acquisition Act it was the “acquiring
authority” that was tasked with the duty to compulsorily acquire land for
agricultural purposes. The “acquiring authority” was the President or any
Minister as authorised by the President. Under that Act the process was tedious
and long winded. Among other things, it entailed the issuing of preliminary
notices for publication. These notices would expire if further processes were
not undertaken on time. The acquisition had to be confirmed through the
Administrative Court. If the preliminary notices lapsed or if the acquisition was
not confirmed, the process would have to start afresh if the acquiring
authority intended to persist. Above all, the whole concept of compulsory
deprivation of rights to property was justiciable.
On the other hand the acquisition process
under s 16B (2)(a), particularly subparagraphs (i) and (ii) thereof, short
circuited the cumbersome process under the Act. By the stroke of a pen, and in
one fell swoop, Parliament, and not the acquiring authority, cancelled the prior
deeds of transfer in the names of the previous owners, and transferred ownership
of the acquired lands to the State. As noted by MALABA JA in the Mike Campbell case on page 31:
“Section 16B of
the Constitution is a complete and
self-contained code on the acquisition of privately owned agricultural
land by the State for public purposes. …. By the use of the non obstante clause, 'notwithstanding
anything contained in this Chapter' at the beginning of subs (2), the Legislature gave the provisions of s
16B overriding effect in respect of the regulation of matters relating to the
acquisition of all agricultural land identified by the acquiring authority in
terms of s 16B(2)(a)” (emphasis added).
In my view the significance of the
difference in the two modes of acquisition aforesaid was that under the Act the
acquiring authority was the President or a Minister but under s 16B (2)(a)(i)
and (ii) it was the Legislature. Only under s 16B(2)(a)(iii) did the Minister,
as the acquiring authority, retain his previous role. But this was in respect
of land to be identified after
the effective date of the Constitutional amendment. This is not the type of land
with which we are concerned.
By virtue of the supremacy of the
Constitution, the mode of acquisition under s 16B (2)(a)(i) and (ii) would
override or supersede the mode of acquisition under the Act.
Under the Act land acquisitions were being
stalled by endless litigation which challenged all sorts of perceived
infractions. These could include challenges on the validity of the preliminary
notices themselves; challenges on errors of description of the properties, or
challenges even on the right of government to acquire any particular land. As
was noted in the Mike Campbell case
at p 29 of the judgment:
“To stop what was
considered obstructive litigation and secure finality in cases of compulsory
acquisition of agricultural land for public purposes, the Legislature enacted
the Constitution of Zimbabwe Amendment (No. 17) Act, 2005 on 14 September
2005.”
In enacting s 16Bof the Constitution
and arrogating to itself the power to divest ownership of targeted lands and
vesting such ownership with the State the Legislature was alive to the issue of
possible mistakes that could have been made by the “acquiring authority” in the
previous dispensation in relation to the identification of agricultural lands
targeted for compulsory acquisitions. Subsection (5) of s 16B of the
Constitution put it as follows:
“(5) Any inconsistency between anything
contained in –
(a)
a
notice itemised in Schedule 7;
(b)
a
notice relating to land referred to in subsections(2)(a)(ii) or (iii);
and
the title deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not
affect the operation of subsection (2)(a) or invalidate the vesting of title in
the State in terms of that provision.”
Thus while under the Land
Acquisition Act the process of “identifying”
agricultural land for compulsory acquisition entailed the publication in the
Government Gazette and in a newspaper, for a period as specified, of a
preliminary notice describing the nature and extent of the land, and setting
out the purpose of the acquisition, in terms of the new mode of acquisition under s 16B of the Constitution
the process of identification simply took the form of a reference to the
preliminary notices themselves.
So in terms of the acquisition under s 16B
of the Constitution, particularly subsection (2) (a) (1),one simply looked at those
preliminary notices and the properties listed by them in Schedule 7 to see if a
particular property was the one targeted. If the property appeared in the list then
that, in my view, would be the end of the matter. It would be the property
being acquired by Parliament; the property the ownership of which was being
divested from the previous owner and the property the ownership of which was being
vested in the State. In my view it would matter not that in a subsequent notice
in the Government Gazette such a property might have been withdrawn in
accordance with s 5(7) of the Land Acquisition Act.
If indeed such a property would have been
withdrawn but nonetheless found itself back on the list in terms of s 16B 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 s 16B(5)(a) and (b) of the Constitution. The Supreme Court, in the Mike Campbell case above, stated that
the pieces of agricultural land listed in the 157 preliminary notices as
itemised on Schedule 7 had indeed been acquired by and vested in the State with
full title therein with effect from the appointed day, namely 14 September
2005.
GOWORA J, as she then was, in the case of Etheridge v Minister of State for Lands
& Anor 2009 (1) ZLR 82 (H), also noted, at p 87A – B of the judgment,
that the force and effect of s16B of the then Constitution was to immediately
vest ownership in the State of rural land as would have been gazetted in terms
of the Land Acquisition Act, either prior to 8 July 2005, or after that date,
but before 14 September 2005, the appointed date for the Constitutional
amendment.
Furthermore, and at any rate, Matanda's case would, in my view, be
distinguishable in that in the present case the very first preliminary notice
in 2000, namely GN 405/2000, was never withdrawn. It had merely lapsed by
operation of the law. But it was still included on Schedule 7 suggesting that
the Legislature did intend to acquire the land that had previously been
identified by that notice together with the rest of the other 156 properties
listed.
The Remaining Extent of Stuhm had therefore
been acquired by operation of the law.
(e)DISPOSITION
On 12 February 2009, which was about a
month before the transfer of the property to TBIC, the registrar of deeds had
issued an open letter addressed to “whom it may concern”. In substance the
letter stated as follows:
(i) that
Reimer had been the owner of the original property called the remaining extent
of Stuhm measuring 1047,7410 hectares and held under deed of transfer 3032/87;
(ii) that
two subdivisions therefrom called Lot 2 of Stuhm measuring 412,1091 hectares
held under deed of transfer 4975/97 and Lot 3 of Stuhm measuring 79,4959
hectares held under deed of transfer 9247/98 had been sold and transferred to
Darnall Investments (Private) Limited in 1997 and Douglasdale (Private) Limited
in 1998 respectively; and
(iii) that
as at that date the remainder of that property was being held by Reimer under
deed of transfer 3032/87 and that the extent thereof was 583,1360 hectares and
that it had been acquired by the State on 3 November 2005.
As it was the property described in 3 above
that was transferred irregularly to TBIC as already noted, that transfer is
hereby declared null and void ab initio. Deed
of transfer no 1724/2009 is hereby set aside. Flowing from that ruling I order
as follows:
1. The
decision by the first respondent in HC 9527/2001 who is also the third
respondent in HC 601/2011, and his letter to the applicant dated 24 June 2011
purporting to withdraw the offer letter dated 7 August 2006 to the applicant in
respect of the property situate in Goromonzi District, Province of Mashonaland
East, called Subdivision 1 of the Remaining Extent of Stuhm, measuring
approximately 534 hectares are hereby set aside.
2. The
aforesaid offer letter to the applicant dated 7 August 2011 in respect of the
aforesaid property shall be regarded as valid and effectual for all intents and
purposes.
3. It
is declared that the piece of agricultural land situate in the district of
Goromonzi called the Remaining Extent of Stuhm measuring 583,1360 hectares and
previously held by Cecil Michael Reimer under Deed of Transfer No 3032/1987
dated 12 May 9187 had been validly acquired by the State in terms of s 16B of
the then Constitution of Zimbabwe.
4. Deed
of Transfer no 1724/2009 dated 18 March 2009 in favour of TBIC Investments
(Private) Limited over the piece of land situate in the district of Goromonzi
called Remaining Extent of Stuhm, measuring 583,1360 hectares is hereby
cancelled.
5. The
fourth respondent in HC 601/2011is hereby directed to restore the original
endorsement in terms of s 16B (4) of the then Constitution of Zimbabwe on Deed
of Transfer No 3032/1987 aforesaid on the property as more fully described in
paragraph 3 above.
6. The
Interested Party in HC 9527/2011 being the first respondent in HC 601/2011 and
the second respondent in HC 601/2011, together with all those claiming rights
of occupation through them, shall vacate the property more fully described in
paragraph 3 above within sixty (60) days of the date of service of this order
failing which the Sheriff for Zimbabwe, or his deputy, or assistant deputy, and
if need be, with the assistance of the Zimbabwe Republic Police, shall be
authorised, empowered and directed to evict them.
7. The
applicant's costs of suit in HC 601/2011 shall be borne by the first
respondent, the second respondent and the third respondent jointly and
severally, the one paying the others to be absolved.
8. The applicant's costs of suit HC 9527/2011
shall be borne by the first respondent and the Interested Party jointly and
severally, the one paying the other to be absolved.
Robinson & Makonyere,
legal
practitioners for applicant in both cases,
Madzivanzira, Gama
& Associates,legal
practitioners for first and second respondents in Case 1, and for Interested
Party in Case 2,
Civil Division of
the Attorney-General's Office, legal practitioners for third respondent
in Case 1 and for first and second respondents in Case 2
L. Chimuriwo,legal practitionersfor fourth respondent in Case
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