Sometime
in the history of Zimbabwe, landless citizens engaged in political
demonstrations which involved the invasion of farmland in order to
force the hand of Government to seriously embark on a program of land
reform which would speed up the re-distribution of land to the
landless majority.
Sensitive
to the plight of the landless majority of its citizens, as most of
the commercial farmland remained under the control of a few, the
Government seized the issue by the scruff putting in place legal
instruments, including retrospective legislation, in order to
lawfully acquire and then re-distribute farmland among the landless.
This
was done upon a realisation that there was need for the Government to
have in its possession legal machinery to undertake the exercise and
to arm itself with appropriate artillery to empower the majority of
the citizens; a realisation which took a cue from the philosophy of
Niccolo Machiavell that “all armed prophets have conquered and
unarmed prophets have come to grief.”
The
situation obtaining at the moment is that land is acquired lawfully
by the acquiring authority and distributed to citizens in terms of
existing legislation and legal instruments put in place for that
purpose. This is as it should be because Zimbabwe embraces the rule
of law. There is therefore no room for any resort to self-help and
lawlessness as exhibited by the respondent in this matter.
The
applicant is the holder of an offer letter issued to him by the
acquiring authority, the Minister of Lands and Rural Settlement, on 2
August 2012 in terms of which he was allocated subdivision 4 of
Gurungwe Estate Guruve in the District of Mashonaland Central
measuring 476,64 hectares. On that land proudly stands two managerial
residences which the applicant has developed and furnished, complete
with electrical fittings and electricity supply. The applicant
occupies one of the residences while the other is reserved for his
Farm Manager who is, however, not in place at the moment because of
the precarious security situation at the farm according to the
applicant.
The
unoccupied second residence has attracted the respondent who is said
to have taken occupation on 3 March 2015, without the consent and
authority of the applicant, after breaking the locks and helping
herself to the house. She and two other “well-grown young people”
have remained in occupation since then. They use water from the
applicant's sources and electricity supplied for the account of the
applicant without paying a dime.
The
applicant says he has unsuccessfully tried to elicit the assistance
of the police at Guruve, the District Lands Officer, and, indeed, the
responsible Minister without success. The latter is said to have
formulated the opinion that this was “a straight civil dispute.”
It is against that background that the applicant has made this
application seeking an order for the eviction of the respondent and
those claiming occupation through her and declaring that they have no
right to occupy the land in question and for the attendant legal
costs.
The
respondent has filed opposition to the application which, if not
tenuous, indeed, is contradictory and displays a serious lack of bona
fides.
She begins by saying, at paragraph 2 of her opposing affidavit, that:
“I
am in possession of an offer letter in respect of the land upon which
the property in dispute was erected. I am informed by the responsible
Ministry that I am yet to be issued with an actual offer letter in
respect of the aforesaid land.”
This
is obviously a strain to the mind. Just what exactly is the
respondent saying? She cannot be in possession of an offer letter
which is yet to be issued. It is probably for that reason that she
has not produced any such letter as the applicant has done.
The
respondent then proceeds to embark on a touch and go approach at her
leisurely pace towards nowhere. She complains about the non-joinder
of the Minister of Lands and Rural Settlement as being fatal to the
applicant. She then alleges a material dispute of facts as cannot be
resolved by court application. She locates that dispute in
“demarcations of the portions of land occupied by the parties”
stating that the extent of the demarcations is unclear. Predictably,
she does not elaborate. There would simply be no boundary dispute
between a holder of an offer letter and one holding on to a hope that
is yet to materialize….,.
Two
points in
limine
have been taken on behalf of the respondent, the first one being the
non-joinder of the Minister.
It
is not very clear why the respondent would want the Minister cited in
this application. For one thing, the Minister had not set in motion,
by any act of commission or omission, any situation which has given
rise to a land dispute. In the exercise of the power reposed to him
by section 2 as read with section 3(1) of the Gazetted Land
(Consequential Provisions) Act [Chapter
20:28]
he has issued an offer letter to the applicant. There can be no
ambiguity about his conduct as he has not issued an offer letter to
the respondent, who must, for all intents and purposes, stand exposed
on her own and not hide behind the cloak of the Minister.
In
any event, the law is now settled that a holder of an offer letter
has the right of action, standing alone, to sue for the eviction of
any illegal occupier of his land. CHIDYAUSIKU CJ was emphatic on that
point in Commercial
Farmers Union v Minister of Lands & Ors
2010
(1) ZLR 546 (S)…, that:
“No
doubt, the legislature conferred on the holder of an offer letter,
permit or land settlement lease the locus
standi,
independent of the Minister, to sue for the eviction of any illegal
occupier of land allocated to him or her in terms of the offer
letter, permit or land settlement lease.”
That
should lay to rest that first point taken in
limine
which clearly is not informed by any existing legal concept….,.
That point in
limine
is therefore dismissed.
The
second point
in
limine
relates
to a perceived dispute of fact which probably exists in the
imagination of the respondent.
I
have said that there can be no boundary dispute between a lawful
occupier and an illegal one, between the applicant, who is the holder
of an offer letter, and the respondent, who is hoping to be issued
with an offer letter over a property that has already been allocated
to a living being in the future. In fact, the respondent has not
bothered to demonstrate where such dispute is, leaving one to
speculate that it is an issue that has been raised by someone trying
to add some lines to an opposing affidavit bereft of any meaningful
defence. Someone who has nothing to say.
Again,
there is no merit in that point in
limine
which is accordingly dismissed.
On
the merits of the application, the applicant's case is
unassailable. He is the holder of an offer letter lawfully issued by
the acquiring authority. Without an offer letter, or authority from
the holder of one, the respondent forcibly moved into the applicant's
property and remains in such occupation. The conduct of the
respondent is unlawful and cannot be justified at all. An offer
letter issued in terms of the Gazetted Land (Consequential
Provisions) Act [Chapter
20:28]
is an expression by the acquiring authority of who should possess and
occupy the land and its holder should be assisted by the court to
assert his right: Commercial
Farmers Union v Minister of Lands & Ors
2010
(1) ZLR 546 (S)…,.
As
the respondent has not been authorised by the acquiring authority by
means of an offer letter, permit or land settlement lease to occupy
the land, and is holding onto a forlon hope, it follows that she is
in illegal occupation: Sirewu
v Swales & Anor
HH111-12. Illegal occupants cannot escape the consequences of their
actions, and, as such, ejectment is the necessary outcome.
In
the result, it is ordered; that:
1.
The respondent, Mercy Jonga, and all and any other persons claiming
to occupy or to be present in the second main residence of
subdivision 4 of Gurungwe Estate in the District of Guruve at her
instance or by virtue of her authority, be and are hereby all
declared to have no right to occupy, remain or re-enter upon that
land or any part thereof.
2.
The respondent and all such other persons as fall within the scope of
paragraph 1 hereof are accordingly directed forthwith to cease to
occupy, remain upon or return to that land without authority lawfully
given by the Minister of Lands.
3.
In the event of their failure to vacate within seven (7) days of this
order, then the Sheriff or his lawful deputy is hereby authorised and
directed to eject them.
4.
The costs of this application shall be borne by the respondent.
