This
is an appeal against the entire judgment of the High Court dismissing
the appellants' application
for the following order:
“IT
IS DECALRED THAT:
1.
The purported acquisition of Duncanston, Kopje Alleen, The
Beach, and Rustfontein by the first Respondent is invalid.
2.
The occupation of Kopje Alleen, The
Beach, and Rustfontein by the Respondents and all those claiming
title through them is illegal.
IT
IS ORDERED THAT:
1.
The Respondents and all those claiming title through them be ejected
from Kopje Alleen, The
Beach and Rustfontein.
2.
The Respondents, jointly and severally, the one paying the others to
be absolved, pay the costs of suit.”
The
facts leading to the dismissal of the application are as follows:
The
first and second appellants are registered companies. The third
appellant is the Managing Director and principal shareholder of the
first two appellants. The second appellant asserted that it owned the
two farms that were contiguous, namely, Kopje Alleen and The Beach,
and all the movable assets thereon through the acquisition of the
entire issued share capital of the second appellant by the third
appellant under two separate agreements on 21 September 2000.
Upon
acquiring the farms, the title deed to the two farms was passed in
favour of the second appellant.
It
is further alleged that on 25 October 2001, the appellants acquired
all rights of occupation and use of another farm, called Rustfontein,
from one Jacobus Johannes Erasmus and that farm was the
Administration Centre for all three farms including Kopje Alleen and
The Beach.
On
20 October 2000, the first respondent proceeded to give notice in the
Government Gazette that it intended to compulsorily acquire
Rushfontein Farm for resettlement purposes under General Notice 483G
of 2000. The notices were given in terms of section 5(1) of the Land
Acquisition Act [Chapter
20:10]
(“the Act”). The first respondent gave the same notice with
respect to Kopje Alleen Farm in the Government Gazette, under General
Notice 591 of 2001 on 16 November 2001. On 3 September 2004, the
first respondent then gave notice of its intention to compulsorily
acquire The Beach Farm in the Government Gazette under General Notice
449 of 2004.
It
is common cause that all three Government Notices were listed under
Schedule 7 of the former Constitution.
The
appellants made an objection to the acquisition of the farms in terms
of section 5(1)(a)(iii)A of
the Land Acquisition Act [Chapter
20:10].
In turn, the first respondent made an application for the
confirmation of the compulsory acquisition of the farms in the
Administrative Court, on 11 February 2002, in terms of section 7 of
the Land Acquisition Act [Chapter
20:10].
At the hearing of the application, on 20 February 2003, it is averred
that the first respondent withdrew the application and the
Administrative Court held that the “withdrawal nullifies section 5
notices and the section 8 order issued in respect of the two
properties.”
The
first respondent then gave the second to fourth respondents the
authority to occupy all the farms, including Rustfontein Farm. As a
result, it is averred that those who claimed occupation of the three
farms through the appellants were violently ejected from the farms by
the second to fourth respondents. It is on that basis that the
appellant approached the High Court, on 2 February 2015, for an order
as captured earlier on.
According
to the appellants, their removal from the farms was unlawful because
they were violently removed from the farms which they were in
peaceful occupation of. Therefore, it is alleged, at the time that
the appellants approached the High Court, the second to fourth
respondents illegally occupied the said farms. The appellants further
stated that as long as the Administrative Court order was extant, the
three farms were not validly gazetted since that order had declared
the Government notices invalid.
The
first respondent, having been given time to file their Notice of
Opposition out of time, opposed the application by stating that, in
effect, the Administrative Court order was overtaken by events when
section 16B of the former Constitution came into force.
It
is common cause that section 16B of the former Constitution provided
that agricultural land that was identified on or before 8 July 2005
in the Gazette or Gazette Extraordinary, under section 5(1) of
the Land Acquisition Act [Chapter
20:10],
as listed under Schedule 7 of that Constitution, and was required for
resettlement purposes, was acquired by and vested in the State with
full effect from 8 July 2005.
According
to the first respondent, the acquisition of the farms was beyond his
control. He also asserted that the second to fourth respondents
occupied the farms legally on the basis of valid offer letters that
he issued to them.
The
second to fourth respondents asserted that they were legal occupants
of the farms because they were given offer letters to occupy the
farms. They also argued that since the three farms had been gazetted
and were listed under Schedule 7 of the former Constitution that was
conclusive proof that the farms had been compulsorily acquired and
that acquisition could not be challenged in a court of law.
The
second to fourth respondents also disputed the allegation that they
despoiled the appellants. It was further asserted that the
appellants' remedy was to seek compensation for any improvements on
the farms and not to allege that the acquisition of the farms was
discriminatory since the farms were owned by black persons. The
second to fourth respondents also maintained that the order of the
Administrative Court, with regards to the notices made in the
Government Gazette for the compulsory acquisition of the farms, did
not in any way invalidate the listing of those farms under Schedule 7
of the former Constitution.
The
High Court found that the farms were properly identified in terms of
the Land Acquisition Act [Chapter
20:10];
that they were lawfully listed in Schedule 7 of the former
Constitution; and that the second to fourth respondents held validly
issued offer letters. On that basis, therefore, the court was of the
view that the appellants could not have been entitled to the relief
which they sought but only to claim compensation for improvements on
the farms. The application was therefore dismissed.
The
appellants were aggrieved by that dismissal and appealed to this
court on the following grounds:
GROUNDS
OF APPEAL
1.
The court a
quo
erred at law in condoning the failure by the first respondent to file
opposing papers on time in circumstances where:-
1.1
There is no finding that the explanation for the delay was adequate.
1.2
There is no finding, in fact, that the first respondent had met all
the requirements for an application for condonation and/or
application for upliftment of bar.
1.3
The application was fatally defective as it did not comply with Rule
84 of the High Court Rules (1971).
2.
The court a
quo
erred, in fact, in concluding that the ownership of the Kopje Alleen
and Beach farms
was questionable or not clear when the facts on record show that:
2.1
Second appellant, at all material times, always owned Beach Farms and
Kopje Alleen.
2.2
Third appellant acquired the entire issued share capital of the
second appellant on 21 September 2000.
2.3
Second appellant duly applied to the first respondent for a
Certificate
of No
Present
Interest.
2.4
The acquisition of the entire issued share capital of the second
appellant, by the third appellant, became unconditional according to
law when the first respondent failed to issue a Certificate
of No
Present
Interest
by 11 December 2000, upon the expiry of the 90 days from 11 September
2000 as prescribed by law.
2.5
First respondent only purported to compulsorily acquire these farms
on 20 April 2001, long after the acquisition of second applicant's
entire issued share capital by third appellant had become
unconditional; payment having already been effected and the
appellants in possession of the two farms.
3.
The court a
quo
erred, in fact and in law, in finding that there was no “admissible
evidence on record to controvert”
the
bald denials by the second to fourth respondents that they did not
take part in the forcible removal of the applicants from their farms
when the record is replete with evidence that the forcible removal
was done at their instance and/or for their benefit.
4.
The court a
quo
erred, at law, in finding that the Estate of the Late General Mujuru
or the former Vice President needed to be cited in order for the
court to properly evaluate the allegations of despoliation made by
the appellants when in fact no substantive relief was being sought
against them.
5.
The court a
quo
erred, at law, in finding that the appellants had been forcibly
ejected from their farms by, or at the instance, or for the benefit,
of the respondents who did not have lawful authority to do so at the
time.
6.
The court a
quo
misconstrued section 12 of the High Court Act in holding that a
declaratory order “cannot
be directly enforced”,
and thus erred at law.
7.
The court a
quo
erred in finding that the appellants' farms were properly and
lawfully identified under section 5 of the Land Acquisition Act and
itemized under schedule 7 of the former Constitution when:-
7.1
It was common cause that the notices under which these farms had been
identified were nullified by the Administrative Court and no fresh
subsequent notices were issued.
7.2
The decision of the Administrative Court is extant.
8.
The court a
quo
erred in finding that the appellants' farms constituted
agricultural land required for resettlement purposes, as required by
section 16B of the former Constitution, when the farms were already
owned, or occupied by people who fall in the category of people for
whose benefit land reform was implemented in terms of section 16A of
the former Constitution.
9.
The court a quo erred in that it addressed itself to the wrong issue,
of whether the purpose of land reform is to take away land from
Zimbabweans of white descent and redistribute it to Zimbabweans of
black descent, when the correct issue it must have addressed itself
to and resolved, as set out in section 16A of the former
Constitution, was whether land already owned or occupied by people
sought to be protected under section 16A (whatever their race), can
be said to be land “required for resettlement purposes” within
the meaning of section 16B(2)(a) of the former Constitution….,.
On
appeal, counsel
for
the appellants accepted that by virtue of section 16B of the former
Constitution, all agricultural land identified under gazettes listed
under Schedule 7 of that Constitution was State land. He however
insisted that the first respondent had illegally acquired the three
farms as the notices which had been placed in the Government
Gazettes, as required by section 5(1) of the Land Acquisition Act
[Chapter 20:10] had been declared invalid by the Administrative
Court. According to counsel for the appellants, section 16B(2)(a)(i)
of the former Constitution only recognised land to have been
compulsorily acquired if it was identified
on or before 8 July 2005 in the Gazette or the Gazette Extraordinary.
The appellants argued that by virtue of the Administrative Court
order, which remained extant at all material times, the three farms
were no longer lawfully identified as required by section
16B(2)(a)(i) of the former Constitution. The coming into effect of
section 16B of the former Constitution did not regularise the
striking down of the notices by the Administrative Court and the
listing of those farms under Schedule 7 of the former Constitution
was therefore a nullity. On that premise, therefore, counsel for the
appellants
submitted
that, effectively, at the time that the appellants were removed from
the farms and at the time that the first respondent gave offer
letters to the second to fourth respondents, the offer letters were
also invalid hence their occupation of the farms was not sanctioned
by law. The acquisition of the farms was therefore not in accordance
with the law.
Per
contra, counsel
for
the first respondent submitted that the court had no jurisdiction to
inquire into the validity of the acquisition of the farms by virtue
of section 16B(3)(a) of the former Constitution. It was also his
argument that as long as the farms in question were identified under
Schedule 7 of the former Constitution then they were compulsorily
acquired in terms of the law.
Counsel
for
the second to the fourth respondents was of the view that whatever
rights the appellants had to possession of the farms were taken away
by the coming into effect of section 16B of the former Constitution.
Section 16B of the former Constitution made an inquiry into the
validity of the compulsory acquisition a factual matter. All that had
to be proven was that the agricultural land in question was
identified under Schedule 7 of the former Constitution. Upon showing
that, then that land was compulsorily acquired in terms of the law.
With
regards to the appellants' argument on the import of the order of
the Administrative Court, counsel
for
the second to the fourth respondents
asserted
that as long as the farms in question were identified under Schedule
7 of the former Constitution, the nullification of the notices in the
Administrative Court was inconsequential.
ISSUES
FOR DETERMINATION
From
the arguments advanced by the parties;
(i)
It must first be determined whether the court had the jurisdiction to
inquire into the legality of the compulsory acquisition of the farms.
(ii)
The second determination will be on the effect of the Administrative
Court order on the notices that were made for the compulsory
acquisition of the farms in question.
APPLICATION
OF THE LAW TO THE FACTS
The
question on the jurisdiction of the court can be determined by
reference to section 16B(2) and the relevant court decisions made
under it:
“16B
Agricultural land acquired for resettlement and other purposes
(1)
In this section
-
“acquiring
authority” means the Minister responsible for lands or any other
Minister whom the President may appoint as an acquiring authority for
the purposes of this section;
“appointed
day” means the date of commencement of the Constitution of Zimbabwe
Amendment (No.17) Act, 2005.
(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 [Chapter
20:10],
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 Extraordinary
for
whatever purpose, including, but not limited to
-
A.
Settlement for agricultural or other purposes; or
B.
The purposes of land re-organization, forestry, environmental
conservation or the utilization of wildlife or other natural
resources; or
C.
The relocation of persons dispossessed in consequence of the
utilization of land for a purpose 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)
The provisions of any law referred to in section 16(1) regulating the
compulsory acquisition of land that is in force on the appointed day,
and the provisions of section 18(1) and (9), shall not apply in
relation to land referred to in subsection (2)(a)
except for the purpose of determining any question related to the
payment of compensation referred to in subsection (2)(b),
that
is to say, a person having any right or interest in the land
-
(a)
Shall
not apply to a court to challenge the acquisition of the land by the
State, and no court shall entertain any such challenge;
(b)
May, in accordance with the provisions of any law referred to in
section 16(1) regulating the compulsory acquisition of land that is
in force on the appointed day, challenge the amount of compensation
payable for any improvements effected on the land before it was
acquired.
(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; or
(b)
A notice relating to land referred to in subsection (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.”…,.
In
Mike Campbell (Pvt)
Ltd & Ors v Minister of National Security Responsible for Land,
Land Reform and Resettlement & Anor
2008
(1) ZLR 17 (S), MALABA
JA…, commented on the import of section 16B of the former
Constitution…,
as
follows:
“By
the clear and unambiguous language of s16B(3) of the Constitution,
the Legislature, in the proper exercise of its powers, has ousted the
jurisdiction of courts of law from any of the cases in which a
challenge to the acquisition of agricultural land secured in terms of
s16B(2)(a) of the Constitution could have been sought. The right to
protection of law for the enforcement of the right to fair
compensation, in case of breach by the acquiring authority of the
obligation to pay compensation, has not been taken away. The ouster
provision is limited, in effect, to providing protection from
judicial process to the acquisition of agricultural land identified
in a notice published in the Gazette in terms of s16B(2)(a). An
acquisition of the land referred to in s16B(2)(a) would be a lawful
acquisition. By a fundamental law, the Legislature has unquestionably
said that such an acquisition shall not be challenged in any court of
law. There cannot be any clearer language by which the jurisdiction
of the courts is excluded.”
At
page 44E-H, the learned judge went on to observe:
“Section
16B(3) of the Constitution has not, however, taken away, for the
future, the right of access to the remedy of judicial review in a
case where the expropriation is, on the face of the record, not in
terms of s16B(2)(a). This is because the principle behind s16B(3) and
s16B(2)(a) is that the acquisition must be on the authority of law.
The question whether an expropriation is in terms of s16B(2)(a) of
the Constitution, and, therefore, an acquisition within the meaning
of that law is a jurisdictional question to be determined by the
exercise of judicial power. The duty of a court of law is to uphold
the Constitution and the law of the land. If the purported
acquisition is, on the face of the record, not in accordance with the
terms of s16B(2)(a) of the Constitution a court is under a duty to
uphold the Constitution and declare it null and void. By no device
can the Legislature withdraw from the determination by a court of
justice the question whether the State of facts on the existence of
which it provided that the acquisition of agricultural land must
depend, existed in a particular case as required by the provisions of
s16B(2)(a) of the Constitution.”…,.
Mike
Campbell (Pvt)
Ltd & Ors v Minister of National Security Responsible for Land,
Land Reform and Resettlement & Anor
2008
(1) ZLR 17 (S)
makes it clear, therefore, that a court of law only has jurisdiction
in a case where the aggrieved party seeks compensation for the
improvements of the compulsorily acquired farms and where they allege
that the acquisition was not in terms of the law, that is, it is not
in terms of section 16B(2)(a) of the former Constitution.
The
appellants questioned the validity of the acquisition of the farms by
the first respondent hence it is the court's view that the court
has jurisdiction in the matter. In effect, the appellants questioned
whether the identification of the farms under Schedule 7 of the
former Constitution was proper….,.
The
next inquiry, therefore, is whether the first respondent acquired the
farms in terms of the law.
The
court is of the view that the appellants' argument, with regards to
the effect of the order of the Administrative Court, is untenable at
law. Section 5(7)(a)
of the Land Acquisition Act [Chapter
20:10]
provides as follows:
“(7)
An acquiring authority may, at any time -
(a)
Withdraw a preliminary notice, by
publishing notice of its withdrawal in the Gazette
and
serving notice of its withdrawal on every person on whom the
preliminary notice was served;…,.”
…,.
It
is common cause that the first respondent did not withdraw the
Government notices in terms of section 5(7)(a) of
the Land Acquisition Act [Chapter
20:10].
Therefore, once the preliminary notices were then listed under
Schedule 7 of the former Constitution, as required by section 5(7)(a)
of
the Land Acquisition Act [Chapter
20:10],
the three farms were compulsorily acquired in terms of the law. In
the absence of evidence to the contrary, the appellants failed to
convince the court that the compulsory acquisition of farms which
they previously had an interest in had not been done in terms of the
law.
Their
argument in that regard was therefore without merit and is
accordingly dismissed.
Since
the appellant approached the court a
quo
challenging only the validity of the compulsory acquisition of the
farms, and the court having found no merit in their case, the
appellants are not entitled to an order declaring the compulsory
acquisition of the farms by the first respondent invalid.
There
is ample support for the conclusion reached above in the recent case
of TBIC
Investments (Pvt) Ltd & Ors v The Minister of Lands and Rural
Development & Ors
SC469/13…,
where BHUNU JA, with the concurrence of GWAUNZA JA…, and GOWORA JA
held that by virtue of section 16B(5) “the expirations, errors and
withdrawals complained of by the appellant” could not invalidate or
adversely affect the vesting of title in the State:
“The
effect of the above section (s16B(5)) was to revive, resuscitate and
validate the acquisition of all identified agricultural land listed
in the 7th
Schedule for resettlement purposes prior to 8 July 2005 regardless of
any errors or withdrawals in the acquisition process. No limitation
has been imposed on the acquisition process once the land is shown to
have been gazetted and listed in the 7th
schedule prior to 8 July 2005.
The
language used in s16B(5) of the former Constitution is clear and
unambiguous admitting no ambivalent interpretation. The only meaning
to be ascribed to the section is that once land is gazetted and
listed in Schedule 7 it automatically stands acquired by the State,
with full title, by operation of law. The mere fact that the notice
was at one time withdrawn or expired is irrelevant. The same applies
to any errors contained in the acquisition process.”…,.
In
the light of the findings made above, there is no need to traverse
the other matters raised in the grounds of appeal.
DISPOSITION
Accordingly,
it is the court's view that the appeal lacks merit and it ought to
and is hereby dismissed. Costs for both the application for leave to
adduce further evidence and for the appeal itself are to be borne by
the appellants.
