The appellant was convicted by a magistrate sitting at
Gwanda on a charge of contravening the provisions of section 3(2) as read with
section 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter
20:28].
The appellant was sentenced to three months imprisonment,
which was wholly suspended. In addition, the appellant and all those claiming
occupation through him were issued with an eviction order from the property
known as the Remaining Extent of Olympus Block, West Nicholson.
The appellant appealed against the whole judgment,
challenging both his conviction and sentence.
The issues arising in this appeal are these:
(a) Whether the learned trial magistrate misdirected
himself in finding that a permit granted in terms of the Gazetted Lands
(Consequential Provisions) Act is required to be in writing.
(b) Whether the learned magistrate misdirected himself in
finding that the appellant was in unlawful occupation of the property.
(c) Whether this Honourable court must interfere with the
sentence imposed by the learned magistrate on the grounds that it induces a
sense of shock in the circumstances of the case.
Background
In the Government Gazette published on 7 November
2003, notice was given, in terms of the Land Acquisition Act [Chapter 20:10],
that Government intended to compulsorily acquire the Remaining Extent of
Olympus Block for the purposes of resettlement. In terms of the notice, the
appellant was required to vacate the property within a period of forty-five
days. The appellant remained in occupation of the property and indicated to the
Ministry of Lands officials that during the land redistribution exercise, in
2003, a large portion of his farm, measuring approximately 8,900 hectares was
acquired by the Government for resettlement. The acquired land was allocated
and subdivided for resettlement by various A1 farmers. The Ministry of Lands
officials visited the farm with a map and indicated that he would be allowed to
remain on the Remaining Extent of Olympus block measuring 1,000 hectares. He
was shown the boundaries on the map and was advised that the A1 farmers
surrounding him would dip their cattle at his dip tank. The Lands Committee
also requested the appellant to assist the A1 farmers in maintaining their
livestock. The map handed to the appellant forms part of the appeal record and
confirms that a portion on the map was marked “Remaining Extent of Olympus” was
reserved for the farmer (the appellant).
It is that piece of land that is the subject of this
appeal.
On 25 August 2011, the Minister of Lands and Rural
Resettlement signed on offer letter in respect of the Remaining Extent of Olympus
Block, in favour of Mr Muwoni. When Mr Muwoni attempted to evict the appellant
from the land in dispute, the appellant communicated with the District Lands Officer
and reminded him of the map and that he had been guaranteed that he would
remain on the allocated land. The
dispute could not be resolved resulting in the criminal prosecution of the
appellant for failing or refusing to vacate gazetted land.
I now propose to deal with the issues for determination in
seriatim:
WHETHER THE
APPELLANT HAD A PERMIT
The learned trial magistrate held that the only kind of
permit envisaged by the Gazetted Lands (Consequential Provisions) Act [Chapter
20:28] was a written document, and not any other kind of permit.
In my view, the reasoning is flawed.
As at the date of the arrest and prosecution of the
appellant, there was no statutory provision setting out what a permit should
provide in form and content. The legislature, having seen the need to clarify
the legal requirements regarding permits, and to consolidate the practice in
this regard, passed the Agricultural and Land Settlement (Permit and
Conditions) Regulations, Statutory Instrument 53/2014. These Regulations now
provide clearly for the issue of a written permit to occupants and beneficiaries
of gazetted land. The Regulations further set out a pro-forma of the permit
contemplated in the Gazetted Lands (Consequential Provisions) Act.
In his reasons for sentence, the learned trial magistrate
had this to say:
“I have particularly considered that the accused's moral
blameworthiness was very low. Indeed, he committed this offence under the
mistaken belief that the map that he was given, together with the endorsement
on it 'Remaining Extent for farmer', amounted to a permit. Had he not held this
mistaken belief, he would certainly not have committed this offence. And the
belief was not unreasonable, regard being had to the apparent conduct of the
officials from the Ministry of Lands who gave accused the map I have referred
to above.”…,.
The magistrates' comments cannot be faulted.
The appellant led oral evidence, which was not disputed, to
the effect that besides the oral permission and authorization, there was
conduct, by Ministry of Lands' officials, which amounted to overt acceptance of
his occupation of the property and the legitimacy of his presence on that piece
of land.
In my view, before the promulgation of the Agricultural and
Land Settlement (Permit and Conditions) Regulations, S.I.53 of 2014, the
appellant was perfectly entitled to assert that the map given to him by
authorized officials, coupled with the verbal assurances given to him by
Ministry of Lands officials amounted to a permit as envisaged by the Gazetted
Lands (Consequential Provisions) Act.
It is settled law that there is a presumption against
retrospectivity of legislation, and that legislation does not govern past
incidences, unless the contrary is expressly stated or necessarily inferred
from the legislation.
See Nkomo and Another v Attorney General and Others 1993 (2)
ZLR 422 and Walls v Walls 1996 (2) ZLR 117.
It is clear that before the passing of the Agricultural and
Land Settlement (Permit and Conditions) Regulations, S.I.53 of 2014, there was
no legislative provision requiring that a permit should only be in writing.
There was no legislative provision setting out the form and content of such a
permit. In practice, therefore, responsible Government officials issued permits
by endorsement on maps, by verbal and visual identification and allocation of
portions of land to previous owners.
WHETHER THE
LEARNED MAGISTRATE MISDIRECTED HIMSELF IN FINDING THAT THE APPELLANT WAS IN
UNLAWFUL OCCUPATION OF GAZETTED LAND
Once the learned magistrate made a specific finding that
the appellant held a reasonable belief that he had a lawful right to remain on
the property in dispute as a result of advice given to him by officials of the
Ministry of Lands, then the defence of a claim of right would be available to
him.
The position was articulated in the case of S v Zemura 1973
RLR 357, where it was held that when an accused person is given advice on an
administrative matter by a responsible public official whose duties include the
administration of the particular statute to which the matter relates, and where
the accused genuinely believes that the official is sufficiently familiar with
the Act, then if the accused bona fide acts on that advice, he should be
permitted to set up as an exception to the ignorantia juris rule, the defence
of claim of right.
In casu, it is not in dispute that the appellant openly
occupied the piece of land on the advice of the Ministry of Lands officials. He
was encouraged to assist the A1 farmers surrounding him. He was given a map
indicating the portion of land allocated to him. He held the genuine belief
that he was entitled to remain in occupation in accordance with the law.
I am not satisfied that the State proved the essential
elements of the charge beyond reasonable doubt.
As I have already explained, the trial magistrate's comments in his reasons
for sentence, do give credence to the conclusion that the conviction is unsafe….,.
In the circumstances, given the facts the learned court a
quo found to have been proved, it was improper to convict the appellant. The
court a quo accepted that the appellant acted on the advice of the Government
officials from the Ministry of Lands. It was accepted that, but for that
advice, the appellant would not have committed the offence charged.
I would, accordingly order as follows:
(1) The appeal is hereby allowed.
(2) The conviction and sentence are hereby set
aside.
