On 31 May 2017, we dismissed the appellant's appeal with
costs. We promised to provide our reasons within fourteen days. Regrettably,
the period proved too ambitious. We had not reckoned with a workload build-up
in the days that followed.
The appeal was against an order granting the first
respondent [plaintiff in the court a quo] an order to evict the appellant
[first defendant in the court a quo] from a certain homestead.
The dispute in the court a quo stemmed from the all too
familiar problem associated with the land reform programme embarked upon by
Government since the year 2000 whereby it has been compulsorily acquiring
predominantly white-owned farms and re-distributing them to predominantly black
beneficiaries. The former owners, perhaps not unexpectedly, would resist, in
some cases, not only the acquisition itself, but also the obligation cast on
them, by operation of the law, to vacate the gazetted land within certain
timeframes.
In this case, the dispute was not over the acquired farm
per se, but on the farmhouse on it, or one of such premises.
The appellant, or the company named after him, was the
former owner of the original piece of land, Lot 21A of Nuanetsi Ranch in
Mwenezi, Masvingo Province. It was compulsorily acquired on a date undisclosed
on the papers, but prior to 2007. The first respondent was one of several
beneficiaries' allocated pieces of land on the property. It appears that the
original piece of land, following more than one re-organisation, had ultimately
been split into 11 or 12 sub-divisions. In addition to the subdivision
allocated to him, the second respondent [second defendant in the court a quo]
also leased to the first respondent, under a written lease agreement for five
years, the homestead on that farm. The lease agreement described the leased
property as “…, a homestead on Lot 21A N.R.A in on land [sic] measuring +/-
224m2 approximately situated in the District of Mwenezi as depicted
on the map attached hereto. The site with the said buildings and improvements
in hereinafter referred to as ['the leased premises']” [sic].
The first respondent complained that the appellant was
refusing to move out of the homestead. In October 2015, he instituted ejectment
proceedings in the Magistrate's Court. He first proceeded by way of an application.
The court decided there were irreconcilable disputes of fact. It referred the
matter to trial.
Essentially, the issues before the court a quo, from the
pleadings and the evidence led, were basically two-fold;
(i) Firstly, the actual identity and exact location of the
farmhouse; and
(ii) Secondly, whether or not the appellant did also have
“lawful authority” to remain on a portion of the farm, the remaining extent of
the original whole.
On the first issue, the appellant argued that the so-called
lease of the farmhouse was so vague and so defective as to be incapable of
enforcement because it referred to a farmhouse on Sub-division 10, Lot 21A of
Nuanetsi Ranch, yet the only State-land homestead on the whole farm was on
Sub-division 11.
On the second issue, the appellant relied on a certain
letter to himself by the then Provincial Chief Lands Officer for Masvingo way
back in April 2007. The letter stated that the original property, then
measuring 14,713 hectares, had been Gazetted and was now State land; that out
of it, 9,683 hectares had been allocated to A2 beneficiaries, and that the
remaining 5,030 hectares had been left for Cawoods Ranch [Pvt] Ltd which was
still to receive an offer letter …,.
The relevant text of the letter read as follows:
“Lot 21A of Nuanetsi Ranch, which is 14,713 hectares in
extent was gazetted and is now State land. Out of the total hectarage, 9,683
hectares were allocated to seven [7] A2 beneficiaries. All of them have been
issued with offer letters by the Acquiring Authority. The Remaining Extent of
the above named farm, measuring 5,030 hectares, was left for Cawoods Ranch
[Pvt] Ltd and you are still to receive an offer letter from the Minister of
State Security, Lands, Land Reform and Resettlement.
The following are the beneficiaries who have been issued
with offer letters….,.
With this in mind, may you please allow the above named A2
beneficiaries of the Land Reform Programme to operate freely without
interference in their respective allocated plots. Furthermore, to that, may you
restrict your operations to the Remaining Extent [R/E] of Lot 21A of Nuanetsi
Ranch.”
The argument by the appellant, on the second issue
aforesaid, was that the letter constituted lawful authority for his continued
occupation of a portion of the farm, including the farmhouse, and that at no
stage had the Government revoked it. He relied on the case of Rodgers v State
HB47-15.
The witnesses that gave evidence at the trial were the
first respondent; one Boas Vurayayi [“Boas”],
who was the Acting District Lands Officer for Mwenezi; and the appellant's
representative, one Jason Leanders ['Jason']
who was acting through a power of attorney given by the appellant.
On the first issue, the court's findings were that the
lease was authentic; that as between the first and second respondents, there
was no confusion as to which exactly were the premises the lease referred to,
and where exactly they were situated. In the course of its judgment the court
said:
“There is therefore evidence to conclude that the homestead
which is the subject matter is the one on the map and that it is occupied by
the first defendant.”
On the second issue, in the course of its judgment, the
court a quo said:
“Mr Mupoperi submitted and supported the submission with
case law,that the letter amounts to lawful authority. No doubt it does. A
letter of this wording indeed amounts to lawful authority regard being had to
the decision of MAKONESE J in Dudley Rogers vs The State HB47-15. On the other
hand, the plaintiff has a lease. It is no doubt a lawful authority and it
pertains to that same homestead. One might ask, which lawful authority is more
lawful than the other? The one dated 2007 was a precedent to the issuing of an
offer letter. Now its 2016, and no offer was issued. Why? The answer lies in
the evidence of Boas Vurayayi.”
Relying largely on Boas Vurayayi's evidence, the court held
that the letter of 2007 by the then Provincial Chief Lands Officer had been
overtaken by events; that the issue of caretakership that it related to had
long since been phased out; and that it was the second respondent, as the
acquiring authority, who was best placed to say who should occupy the
farmhouse.
On 5 December 2016 the court granted the order of eviction.
The appellant appealed.
He challenged the magistrate's findings and said [in our
own words] that the purported lease was not the one the second respondent had
given to the first respondent; that having found that the appellant also had
lawful authority to stay on the farm, it was wrong to order his eviction; that
it was wrong to say that the letter of 2007 had been overtaken by events in the
absence of an express revocation communicated to him; and that without a proper
description as to whether the homestead referred to in the lease was one
residential dwelling, or several residential dwellings, the eviction order was
manifestly a brutum fulmen.
We dismissed the appeal because it lacked substance.
The appellant was just nit-picking. The whole appeal was
just about form over substance. The homestead from which the appellant was to
be evicted had sufficiently been debated and identified in, and by, the court a
quo. It could not be identified merely or solely by reference to the area,
which was stated as +/- 224m2, but also by reference to the map that
depicted, among other things, the extent of the land covered.
The lease agreement clearly defined the homestead, not only
as one measuring +/- 224m2, but it also said “…, approximately
situated in the District of Mwenezi as depicted on the map attached hereto…,.”
It also said “.., the site with the said buildings
[not just building] and improvements…,” would be “…, the leased premises.”
So the lease agreement itself, the bedrock of the eviction
proceedings, recognised that the homestead was more than just one dwelling. The
magistrate concluded that there was evidence that the homestead was the one on
the map. That map was produced. It referred to a rectangle with a cluster of
buildings.
Those were the structures the first respondent wanted the
appellant evicted from.
In Rodgers v State HB47-15, the appellant, Rogers, had been
convicted in the Magistrate's Court for contravening the provisions of the
Gazetted Lands [Consequential Provisions] Act [Chapter 20:28] [“the Gazetted Lands Act”], in that he
had refused to vacate his farm after it had been compulsorily acquired. He had
relied on some verbal assurances given him by officials from the Ministry of
Lands, the acquiring authority that he could stay on a portion of the farm that
was depicted and endorsed on a map as the remaining extent of the farm. He had
specifically been requested to assist the several beneficiaries who had been
allocated portions of his farm. He had also been handed over a copy of the
endorsed map.
The one issue before the court, on appeal, in Rodgers v
State HB47-15 was whether or not that map, coupled with those verbal assurances
from the Ministry officials, constituted “a permit”, or the lawful authority
for his continued stay on the acquired farm, given that in terms of the Gazetted
Lands [Consequential Provisions] Act [Chapter 20:28], the lawful authority to
hold, use or occupy gazetted land is in the form of either an offer letter; a
permit or a land resettlement lease.
At the time of Rodgers' arrest and prosecution, there were
no statutory provisions setting out the form and content of a permit. These
were only incepted in 2014 in the form of the Agricultural Land Settlement
[Permit Terms and Conditions] Regulations, 2014, S.I.53 of 2014. Among other
things, these Regulations not only specify that a permit has to be in writing,
but also they provide a pro-forma or specimen of the permit.
On appeal, MAKONESE J, sitting with TAKUVA J, overturned
the conviction on the basis that the appellant had been entitled to rely on
that map and the verbal assurances as his lawful authority, given that SI
53/2014 had not yet been promulgated.
Rodgers v State HB47-15, which the appellant continued to
rely on even in this appeal, is clearly distinguishable. Firstly, it was a
criminal case. As such, the appellant's guilt had to be proved beyond any
reasonable doubt. Clearly, that could not have been the case where, among other
things, he had been entitled to rely on the defence of claim of right.
Rodgers had the endorsed map given to him by those
Government officials who were tasked to administer the piece of legislation in
question. At the time, the Government had not yet put it in black and white
what constituted a permit.
In contrast, the present case was a civil dispute. All that
the first respondent needed to do, which he did, was to prove, on a balance
of probabilities, that he was entitled to relief. In Commercial Farmers'
Union & Ors v Minister of Lands & Ors 2010 [1] ZLR 576 [H], the Supreme
Court, sitting as a Constitutional Court, held that the holder of an offer
letter, permit or land lease has the locus standi, independent of the acquiring
authority, to sue for the eviction of any illegal occupier of land allocated in
terms of the offer letter, permit or lease.
Secondly, in this case, even though 5,030 hectares of the
designated farm had been left for the appellant's company, the letter of April
2007 itself, unequivocally, said the appellant was still to receive an offer
letter from the then Minister of State Security, Lands, Land Reform and Resettlement;
the then acquiring authority. It was common cause that the appellant had never
got it. Nobody said why. But without being in possession of any of the three
instruments constituting lawful authority, it was manifestly preposterous to
press the argument that the appellant had lawful authority to remain on the gazetted
land in the face of S.I.53 of 2014.
Thirdly, and perhaps most importantly, the court a quo
noted, quite correctly, that Jason Leanders, had admitted that he had seen a
letter nullifying the previous offer. On pages 35–36 of the record of
proceedings was this exchange:
“Q. Have a look on this D2 – It authorises [the appellant]
to be on the farm?
A. Yes.
Q. It says Cawood is to receive [an] offer letter?
A. Yes.
Q. Did you receive the offer letter?
A. No.
Q. Why not?
A. I did not find out.
Q. So you have not yet received the offer letter?
A. Yes [evidently meaning No].
Q. You have been shown a letter nullifying the previous offering to you?
A. I saw it last
week.
Q. What [were] the contents?
A. I can't recall.
Q. Here it is. Please read it
A. [objected to].”…,.
We could find no fault with the decision of the court a
quo. In the absence of any lawful authority, the appellant had no right to
remain on the gazetted land or to remain occupying the homestead which had been
leased to the first respondent.
It was for these reasons that we dismissed the
appeal with costs.
