CHIGUMBA
J:
This
is a court application in which the applicants seek the following
relief;
“That
it be declared that;
1.
The purported acquisition of Duncanston, Kopje Alleen, the Beach and
Rusfontein by the 1st
respondent is invalid.
2. The occupation of Kopje
Alleen, the Beach and Rusfontein by the respondents and all those
claiming title through them is illegal.
That it be ordered that;
1. The respondents and all those
claiming title through them be ejected from Kopje Alleen, the Beach
and Rusfontein.
2. The respondents jointly and
severally the one paying the others to be absolved, pay the costs of
suit.”
This
is a case whose circumstances present the proverbial can of worms or
Pandora's Box scenario, which nevertheless must be opened,
examined, and adjudicated upon, in the interests of justice. The
question that is exercising the mind of the court is this; in what
instances would it be proper for this court to exercise its
jurisdiction of judicial review and consider whether, agricultural
land which was purportedly identified in terms of the Land
Acquisition Act [Chapter 20:10]
and subsequently listed in Schedule 7 of the former Constitution in
terms of s 16 B of Constitutional
Amendment number 17 of 2005, was
acquired lawfully, ten years after such 'identification, listing
and acquisition'. An unavoidable offshoot of this question is
whether, the purpose of the land reform programme in Zimbabwe is to
take away agricultural land from Zimbabweans of white descent and
redistribute it to Zimbabweans of black descent, as part of the
government of the day's 'indegenisation' policy. Put
differently, can a Zimbabwean citizen of black descent challenge the
acquisition of agricultural land which belongs to him/her on the
basis that such acquisition would be contrary to the indegenisation
policy whereby the purpose of the land reform programme was to
correct historical imbalances created by colonialism? Does the
correction of such historical imbalances preclude the acquisition of
agricultural land which is owned by a black Zimbabwean for
redistribution to other black Zimbabweans?
The
background facts to this dispute are as follows; the first and second
applicants are companies which are duly registered in accordance with
the laws of Zimbabwe. The third applicant became their managing
director and principal shareholder on 16 February 1999. Third
applicant avers in the founding affidavit to this application that he
acquired the entire issued share capital of second applicant on 21
September 2000 from Jacobus Erasmus Junior. The relevant paperwork
was only filed with the registrar of companies on 27 May 2002. First
respondent is the authority that purported to acquire Kopje Alleen
and the Beach farms which are situate in the district of Charter and
held by the second applicant under Deed of Transfer 4913/84, and
Rusfontein Farm held by JJ Erasmus that first applicant had
purchased, was occupying, but had not yet taken ownership of. First
respondent subsequently authorized the second – fourth respondents
to settle on the farms.
Third
applicant acquired shares in the second applicant, and Kopje Alleen
and the Beach farms, and all the moveable assets thereon through two
agreements dated 21 September 2000. The first agreement, annexure
“I', to the founding affidavit, states that 100 ordinary shares
of 1usd each constituting the entire issued share capital of second
applicant were sold, in the sum of USD$6 000 000-00 six million
dollars, to the purchaser, second applicant. Risk and profit in the
shares was to pass to the purchaser, third applicant, on the date on
which payment was made in full (clause 2). Vacant possession to the
property was to be given to the third applicant on the date of
transfer, provided that a certificate of no present interest had been
obtained from the government without which the agreement was to have
no force or effect. The title deeds and the share certificates were
to be handed over to the third applicant on full payment of the
purchase price, or as otherwise agreed.
Annexure
“J” to the founding affidavit is an agreement of sale entered
into between Jakarta Contractors Private Limited, as represented by
JJ Erasmus, and third applicant, on 21 September 2000. It was for the
sale of the movable assets belonging to the second applicant for the
sum of USD$8 500 000-00, eight million five hundred thousand dollars.
Risk and profit was to pass to the third applicant upon payment of
the full purchase price. On 11 September 2000, an application for a
certificate of no present interest was made to the then Ministry of
Lands and Water Development in respect of Kopje Alleen and the Beach
Farms. It is common cause that on 21 September 2000, when the
agreements to sell Kopje Alleen and the Beach farms were entered
into, no certificate had been issued, but the agreement of sale was
conditional upon such a certificate being secured.
On
25 October 2001, an agreement was entered into between first
applicant and JJ Erasmus in respect of Rusfontein farm, situate in
the district of Charter, and held under Deed of Transfer 178c/04.
First applicant was appointed as sole manager for 'managing and
supervising the property as it deems fit in its sole discretion'.
As security deposit for the faithful performance of its duties in
terms of the agreement, first applicant agreed to pay seven million
dollars, by 31 January 2002, to the owner of Rusfontein, plus an
additional sum of forty thousand dollars per month from 31 September
2001 to 31 January 2002. As remuneration for its services, first
applicant was to be entitled to exclusive occupation and use of
Rusfontein farm for its benefit in any manner it deemed fit. The
agreement between the parties was to 'subsist indefinitely and not
be terminated by the owner'. First applicant was granted an option
to purchase the farm in the event of the farm being removed from the
list of designated rural land (clause 8.1) The owner of the farm
undertook to obtain a certificate of no present interest in that
event. It was agreed that in the event of the farm being acquired,
any compensation payable to the owner in terms of the act would be
paid to first applicant.
First
applicant attached copies of mortgage bonds, to buttress the averment
made that he financed the acquisition of these farms from his own
resources supplemented by loans in the sum of ten million dollars
USD$10 000 000-00 that he got from NMB Bank which had ballooned to
USD$39 997 367-00 due to high interest rates by 9 July 2002. A
mortgage bond, continuing covering security was passed by the second
applicant in favor of NMB bank under MB692/2001, for the sum of ten
million dollars (record page55-63). Mr. Firimon
Mvarume, who
was employed by NMB Bank at the material time, deposed to an
affidavit in which he confirmed that the third applicant obtained a
facility from the bank for the purchase of the second applicant,
which owned The Beach Farm and Kopje Alleen. He confirmed that the
bank was in possession of the title deeds to the two farms, as of 6
March 2002. Mr F.
Zimuto, an
executive director of NMB Bank confirmed in a letter dated 6 July
2002, that the bank financed the third applicant to purchase
Duncanston farm which was registered in the name of the first
applicant under deed of transfer 621/2000, and Kopje Alleen and the
Beach, held under DT 4913/84. The bank held title deeds to all three
farms and had registered mortgage bonds over the title deeds.
The
third applicant gave details of the alleged unlawful removal of all
those claiming title from the applicants, at record pp 7-9. The
allegations included averments of being tortured, terrorized and
kidnapped. The same allegations appear in the founding affidavit to
the urgent application for an interdict which was filed by the
applicants under case number HC1180A/2002. It is common cause that a
provisional order was granted by this court on 10 February 2002. The
terms of that provisional order, which appears at record p 77-79,
were that Bernard Makokove, the second respondent in this
application, and all those acting on his behalf or his authority be
interdicted from interfering with farming operations or with rights
of occupation, or harassing applicant's workers or from removing
equipment, machinery or livestock from Duncanston, Kopje Alleen and
Rusfontein farms pending the finalization of the matter.
It
is common cause that the first respondent applied to the
Administrative court for the confirmation of the compulsory
acquisition of Kopje Alleen, the Beach, Rusfontein and Duncanston
farms which were all owned by the applicants, on 11 February 2002. It
is common cause that at the time the applications for confirmation of
acquisition were made, the former Vice-President of Zimbabwe,
Dr.Joice
Mujuru,
deposed to the founding affidavits in her capacity as the acting
minister of the acquiring authority at the time. The matters were
heard by the Administrative court on 20 February 2003. It is common
cause that the Minister of Lands (first respondent) withdrew the
applications before the Administrative court, which then held that
the effect of the withdrawal was to nullify the s 5 notices and s 8
orders issued in respect of the farms (record p 144-147)
In
conclusion, the third applicant averred that the current occupants of
the farms are politically connected people who had State machinery at
their disposal to cause kidnappings and to torture the applicants'
employees. They were connected to the late Retired General Mujuru and
former Vice-President Dr. Joice Mujuru. Applicants were forced to
withdraw the High Court application in which the court had granted
them a provisional interdict, and they were too scared to vindicate
their property until the General died and his wife was removed from
office for abuse of power. The court condoned the late filing of the
notice of opposition by the first respondent and uplifted the bar
operating against it, and deemed the notice of opposition duly filed
in terms of the rules. The contents of the first respondent's
opposing affidavit included averments that Kopje Alleen, The Beach
and Rusfontein were all duly acquired in terms of the law.
It
is common cause that the preliminary notice of acquisition in respect
of the Beach was published under General Notice 208-2001, on 20 April
2001, Kopje Alleen 16 November 2001, and Rusfontein on 20 October
2000 under General Notice 483G-2000, and Duncanston on 20 April 2001
under General notice 208-2001. It is common cause that all four farms
were subsequently listed in schedule 7 of the former Constitution. It
is also common cause that the second – fourth respondents were
issued with offer letters to settle on the farms at various stages
after the listing of the farms in schedule 7. First respondent avers
that the second to fourth respondents are legally settled on the
farms because they hold valid and authentic offer letters which
constitute lawful authority to occupy the farms. Third applicant was
charged with purchasing the farms without a certificate of no present
interest from the government, contrary to the law in force at the
material time. First respondent expressed dissatisfaction with the
documents produced by the applicants, and contended that there was no
proof that a sale had gone through or that title had passed to the
applicants, at the time that the first respondent acquired the farms.
First respondent contended that, even if it withdrew its applications
for confirmation of the acquisition of the farms, such withdrawal was
overtaken by the listing of the farms in schedule 7 of the former
Constitution. It is common cause that the applicants are currently
occupying Duncanston and the Beach farms whilst the second - fourth
respondents are settled on Rushfontein and Kopje Alleen farms.
On
20 February 2015, opposing papers were filed on behalf of second -
fourth respondents. Third respondent deposed to the opposing
affidavit on their behalf, in which he averred that; second - fourth
respondents are lawful occupants of the farms which were gazetted and
lawfully acquired by the first respondent. He attached copies of
General Notices number 591 of 2001 and 449 of 2004 and copies of the
respondents'' offer letters. The allegations of intimidation
harassment and torture were denied. It was contended that the
applicants were not entitled to the declaratory orders that they seek
for the added reason that the farms in question were lawfully
acquired pursuant to constitutional Amendment number 17 of 2005. The
applicants' response to the second - fourth respondents'
contentions was to reiterate their position that the purported
acquisition of the farms was and remains illegal, and that the
respondents resorted to self help and should be removed from the
farms. I will now turn to the law, where it is proposed to deal with
the question of jurisdiction first. If this court cannot found or
establish its jurisdiction for dealing with this matter, then it
ought not to delve into the merits of the matter.
The
Law
(a)
Jurisdiction
In
Campbell Private Limited & Anor v the Minister of National
Security Responsible for Land, Land Reform & Resettlement &
Anor,
at
page 15 of the cyclostyled judgment, the provisions of section 16B(3)
of the former Constitution were set out as follows;
“(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.”
At
p 17 of the judgment, the court explains to us what these provisions
mean, as follows;
“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. Its provisions relate exclusively to the acquisition
of agricultural land. 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 s16B
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 s16 B(2)(a).”
There
is merit in the contention that on a proper interpretation, section
16 B (3) of the former Constitution precludes an aggrieved party from
challenging the compulsory acquisition of land on the basis of
sections 16 (1), 18 (1) and 18 (9) of the former Constitution. It is
my considered view however, that once agricultural land was lawfully
acquired in terms of s 16 B and listed in Schedule 7, its acquisition
could not be challenged by referring to the Land Acquisition Act. I
am not persuaded by the argument that the ouster of the court's
jurisdiction was restricted to challenges under s 16 (1) and 18 (1),
and 18 (9) ONLY. I am fortified in this view by a consideration of
what the Supreme Court subsequently stated in the case of Commercial
Farmers Union & Ors v
The
Minister of Lands & Rural Resettlement & Ors
at
pp 10-11 of the cyclostyled judgments;
“Section
16B of the Constitution contains a non
abstante
clause. Consequently, s16B prevails over all other sections of the
Declaration of Rights provisions of the Constitution. All other
sections in the Declaration of Rights or Chapter
III
of the Constitution are subject to s16B of the Constitution. In other
words, any rights conferred on anybody in terms of the Declaration of
Rights or Chapter III
of the Constitution can be derogated in terms of s16B of the
Constitution. Such derogation would not constitute a violation of
the Constitution. In terms of s16B of the Constitution, a litigant
cannot successfully contend that the acquisition of his or her land
is unlawful because it violates a right conferred on the litigant in
terms of the Declaration of Rights, contained in Chapter
III
of the Constitution. It follows that a litigant whose land was
acquired in terms of s16B of the Constitution cannot seek to set
aside the acquisition of that land on the basis that such acquisition
violated the rights conferred on the litigant by a provision
contained in the Declaration of Rights or Chapter
III
of the Constitution, such as ss18 and 23 of the Constitution.”
The
law is therefore clear, a litigant cannot challenge the acquisition
of agricultural land on the basis of a perceived violation of rights
conferred on the litigant by the declaration of rights in Chapter III
of the former Constitution, such as ss18 and 23 of the Constitution.
We cannot therefore found jurisdiction based on an alleged violation
of s 23 or s 16 of the Former Constitution, or s 16 B alone. Section
16 B (3) prohibits a challenge to the acquisition of land by the
State. It is my view that it is the fact
of acquisition
which cannot be challenged not the process
of acquisition.
(My
underlining for emphasis) I am fortified in this view by what the
Supreme Court said in Campbell
(supra)
at p 38;
“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”.
That
in my view, is the basis of the jurisdiction that this court may
assume to determine whether the process of the acquisition of the
applicants' farms was in accordance with the relevant law at the
time, and to declare the purported acquisition null and void, if it
finds that the acquisition was not in terms of s 16 B (2) (a) of the
former Constitution. The question for determination is therefore
whether the state of facts on the existence of which s 16 B (2) (a)
provided that the acquisition of agricultural land must depend,
existed, in the circumstances of this case. I will leave the question
of what 'judicial review' of expropriation of agricultural land
means, open for now. One school of thought is that it is confined to
review in the narrow sense of being confined to a consideration of
procedural propriety in terms of this court's recognized grounds of
review. Another school of thought is that it means an oversight of
whether the set of facts which constitutes a lawful appropriation
exists, in the wider sense.
(b)
Dirty hands principle
Applicants
contend that the respondents have come before this court with dirty
hands because of the interdict that was granted against the first and
second respondent on 10 February 2002 under case number HC
1180A-2002. The third and fourth respondents were not a part of those
proceedings. It is common cause that the interdict was granted, and
subsequently withdrawn by the third applicant on behalf of the
applicants. The interdict was against the first respondent and all
those claiming occupation through it, as at 10 February 2002 and the
second respondent. The allegation is that the respondents disregarded
the interdict and forcibly dispossessed the applicants, well before
the applicants withdrew the application. The rationale behind the
'dirty hands' principle was explained in Deputy
Sheriff, Harare v
Mahleza & Anor,
and supported in Source
Net Private Limited & 3 Ors v
Steward Bank Limited & Anor.
'It
is a principle that people are not allowed to come to court seeking
the court's assistance
if they are guilty of a lack of probity or honesty in respect of the
circumstances which cause them to seek relief from the court. The
kind of conduct which the court penalizes by withholding its
protection is conduct involving moral obliquity, such as fraud or
other forms of dishonesty'.
It
was held in that case that Mahleza had not come to court with clean
hands and that if she wanted to avoid the consequences of the
dishonest web she had chosen to weave, she must clean her dirty
hands. We run into muddy waters when we consider the circumstances of
this case and try to apply this principle to them. The first thing to
note is that the respondents are not seeking the court's assistance
or protection in the same way as Mahleza was. Secondly, the evidence
filed of record does not show lack of probity, or dishonesty or fraud
or other forms of moral obliquity. The allegations against the second
respondent were withdrawn when case number HC1180A-2002 was
withdrawn. The allegations of participation in torture, harassment
and kidnapping are not proved on a balance of probabilities from the
papers currently filed of record. There is no order of court to be
undermined. The interim order was withdrawn. There is no reason why
the respondents should be non suited, in the circumstances of this
case.
(c)
The
requirements of spoliation
The
law that applies to the remedy of mandament
van spolie
is settled. In Nino
Bonino v
Delange
1906
TS 20, the general principle was stated by INNES CJ as follows:
“It
is a fundamental principle that no man is allowed to take the law
into his own hands; no one is permitted to dispossess another
forcibly or wrongfully and against his consent of the possession of
property, whether movable or immovable. If he does so, the court will
summarily restore the status quo ante, and will do that as a
preliminary to any inquiry or investigation into the merits of the
dispute.”
In
Dianas
Farm Private Limited
v
Madondo N.O & Anor 1998
(2) ZLR 410 @413 the court set out the authorities as follows:
“The
law relating to the basis on which a mandament
van spolie
will be granted is well settled. In Davis
v
Davis 1990
(2) ZLR 136 (H) at 141 ADAM J
quoted
with approval the following statement by
HERBSTEIN
J
in
Kramer v
Trustees Christian Coloured Vigilance Council, Grassy Park
1948 (1) SA 748 (C) at 753:
“...
two allegations must be made and proved, namely (a) that applicant
was in peaceful and undisturbed possession of the property, and (b)
that the respondent deprived him of the possession forcibly or
wrongfully against his consent.”
“The
onus is on the applicant to prove the two essential elements set out
above. Part of the second element is lack of consent. See Botha
& Anor v
Barrett 1996
(2) ZLR 73 (S) at 79-80 and see Bennett
Pringle (Pvt) Ltd
v Adelaide
Municipality
1977 (1) SA 230 (E) at 233G-H.”
The
founding affidavit is replete with proof, on a balance of
probabilities, that the applicants were in peaceful and undisturbed
possession of the farms. We must determine whether the first
respondent and or any of the second to fourth respondents deprived
the applicants of possession forcibly, and wrongfully. The averments
made by the applicants of threats, intimidation, harassment and
torture were buttressed by documentary evidence of medical treatment.
They were evaluated by this court and an interim interdict granted in
2002. The interim interdict was withdrawn by the applicants before
its confirmation. This current application was not served on Retired
General Mujuru who is deceased, or on his wife the former Vice
President of Zimbabwe. They did not get an opportunity to respond to
the allegations that they orchestrated the forcible removal of the
applicants from their farms for political reasons. The first
respondent has not responded to those allegations, and indeed cannot
be expected to do so on behalf of the former Vice-President and her
deceased husband. The second to fourth respondents have denied taking
part in any unlawful or forcible removal of the applicants from their
farms. There is no admissible evidence on record to controvert their
denial. The requirements of spoliation are not proved in the papers
filed of record.
The
issue that remains to be determined is whether, the first respondent,
by causing the listing of the applicants' farms in Schedule 7 of
the former Constitution, did so wrongfully, such as to constitute
dispossession of the applicants of their property, and to entitle
them to a spoliation order. The evidence, and the law, which is
discussed below, will show that, in this court's view, the first
respondent did not unlawfully or wrongfully or forcibly dispossess
the applicants of their farms. Thus court is not persuaded, in light
of the fact that the former Vice President of Zimbabwe and the estate
of her late husband were not cited as parties to these proceedings or
served with a copy of this application that the allegations against
them are properly before this court. Whatever the reason for the
applicants' withdrawal of their interim interdict at the material
time, (there is insufficient valid evidence for the court to make a
finding on a balance of probabilities) in my view it would have been
best to evaluate the allegations of intimidation and torture at the
relevant time, and on notice to those accused. Attempting to rehash
the allegations ten years later is a bold move, which unfortunately
is not supported by the evidence which is properly before the court.
(d)
The requirements of a declaratur
Section
14 of the High
Court Act [cap 7; 06],
provides that:
“14
High Court may determine future or contingent rights
The High Court may, in its
discretion, at the instance of any interested person, inquire into
and determine any existing, future or contingent right or obligation,
notwithstanding that such person cannot claim any relief
consequential upon such determination”.
This
is the basis of this court's jurisdiction to issue a declaratur.
It
is a discretionary remedy which involves a finding by the High Court
as to a person's legal status, rights or obligations. It cannot be
directly enforced. The applicants will not be able to use such a
declaratur as a cause of action to evict the second - fourth
respondents. The applicants must show that the second - fourth
respondents do not hold valid title which authorizes them to occupy
the farms in question first. Even then, it is only the first
respondent, the Constitutional current holder of title in the farms,
pursuant to Schedule 7 of the former Constitution, which can cancel
the fourth - sixth respondent's offer letters and offer the land to
the applicants, and issue the applicants with legally recognized
authority to occupy the agricultural land such as an offer letter, a
permit or a land settlement lease. If the applicants persuade this
court to declare that the acquisition of their farms was contrary to
the stipulated procedure, they would have to approach this court
again, on notice to the first respondent, for an order de-listing
their farms from Schedule 7. Such an order would be subject to
confirmation by the Constitutional Court, being an order which
purportedly alters the former Constitution in its Schedule 7. Having
been found to have fallen short of establishing the requirements of
spoliation, the applicants are not entitled to restoration of the
status
quo ante,
especially ten years later, as spoliation is by its nature, a remedy
which must be granted as a matter of urgency, to discourage litigants
from taking the law into their own hands. What remains to be seen is
whether the applicants are entitled to the declaratur
that
they seek.
(e)
The Land Acquisition Act and s16B (Constitutional Amendment number 17
of 2005)
Section
16B(2)(a) as read with section 16B(3)(a) of Constitutional
Amendment number 17 of 2005,
of the former Constitution provided that all land which had
previously been identified for resettlement purposes vested in the
State, with full and unchallengeable title, with effect from the
effective date. The case of
Chisvo & Anor v
Peter & Ors
is authority for this proposition, as read with Campbell
(supra),
and Commercial Farmers' Union (supra).
The
court in Chisvo
v
Peter (supra)
took
time to expound on the procedures which governed land acquisition
before s 16 B came into force, as follows;
“The
procedures governing the acquisition of agricultural land for
resettlement purposes are presently embodied in Part III of the Land
Acquisition Act [Chapter
20:10].
To a significant extent, these procedures have been superseded by the
provisions of section 16B of the Constitution of Zimbabwe. Section
16B was promulgated and came into force on the 14th
of September 2005. In terms of section 16B(2)(a) as read with section
16B(3)(a), all agricultural land that was previously identified for
resettlement purposes vested in the State, with full and
unchallengeable title therein, with effect from that date.
For present purposes, however,
the Court is seized with events which occurred well before the
enactment of section 16B of the Constitution and must therefore be
guided by the relevant provisions of the Land Acquisition Act.
Section 5(1) of the Act requires the acquiring authority to give a
preliminary notice of its intention to acquire any land. Section 5(3)
enables the acquiring authority to withdraw any such preliminary
notice at any time.
Section 8(1) empowers the
acquiring authority to issue an acquisition order in respect of any
land identified for compulsory acquisition. By virtue of section
8(3), the effect of an acquisition order is to immediately vest title
of the land concerned in the acquiring authority, whether or not
compensation therefor has been agreed upon, fixed or paid in terms of
Part V or VA of the Act.
In terms of section 9(1)(b), the
making of an acquisition order constitutes notice in writing to the
owner or occupier to vacate the land within 45 days after the order
is served upon him and to vacate his living quarters within 90 days
of such service.
Where
the acquisition of the land is challenged, section 7(1) enjoins the
acquiring authority, within 30 days of issuing the acquisition order,
to apply to the Administrative Court for an order confirming the
acquisition. In terms of section 7(4)(b), the Administrative Court
may only confirm the acquisition of rural land if it is satisfied
that the acquisition is reasonably necessary for the utilisation of
that land for, inter
alia,
settlement for agricultural or other purposes.
Also
pertinent is section 10A(1) of the Act which enables the acquiring
authority to revoke an acquisition order within 6 months after making
the order. In terms of section 10A(2), such revocation must be
effected by notice in the Gazette,
followed by written notice served on the landowner.”
The
s 5 preliminary notice of intention to acquire land was to be
published in the government gazette once a week for two consecutive
weeks in the area where the land was situated. It is common cause
that all of the applicants' farms had valid preliminary notices
duly gazetted. It is also common because that the first respondent
sought to confirm the acquisition of Kopje Alleen and Rusfontein
only, and that the applications for confirmation were withdrawn
before the Administrative Court, which ruled that the withdrawal
rendered the s 5 and s 8 notices null and void. In terms of s 5 (2)
of the Land Acquisition Act, once a preliminary notice had been
published, the owner of the land was not at liberty to dispose of the
land or to alienate it without the permission of the acquiring
authority.
So,
on 21 September 2000 when the third applicant purported to acquire
shares in second applicant, the agreement did not contravene s 5 (2)
because the risk and profit passed to the third applicant only when
the purchase price was paid. The evidence on record is that third
applicant obtained a loan secured by a mortgage bond over the farms
to pay for the acquisition of the farms sometime in 2001. It is not
clear whether the purchase price was paid in full as at 2001, in
light of the affidavit of Mr. Firimon
Mvarume which
is dated 6 March 2001, and the letter of Mr.
F. Zimuto, which
is dated 9 July 2002. What is clear from the papers filed of record
is that, as at 9 July 2002 third applicant owed NMB Bank the sum of
USD$39 997 367-00 in respect of the 'acquisition costs of the farms
and working capital'. We are not told whether the acquisition costs
had been paid in full. We do know that the bank loan was secured by
mortgage bonds, and that the bank had custody of the title deed to
the farms. It is not clear when if at all risk and profit in second
applicant passed to third applicant. The management agreement in
respect of the first applicant, which appears at record p 42,
presents its own special brand of problems.
The
agreement purports to appoint the first applicant, the owner of
Rusfontein as its manager and supervisor on 25 October 2001, for a
fee of seven million dollars and payments of US forty thousand a
month from 31 September 2001 to 31 January 2002. There is no doubt
whatsoever in my mind that this management agreement contravened the
provisions of section 5 (2) of the Land Acquisition Act which
prohibited the alienation of land which had been identified for
compulsory acquisition by being gazetted. The parties hatched an
elaborate plot to defeat the purpose of s 5. We know this because the
parties expressly say so themselves, in their agreement. Clause 8,
record p 47, the first applicant was granted an option to purchase
the farm subject to the condition that; 'in the event of the farm
being removed from the list of designated rural land in terms of the
act, the owner undertakes to take such steps as may be necessary to
transfer the property', to the first applicant, and in particular,
to obtain a certificate of no present interest as stipulated in the
regulations.
Clause
8.4 goes on to stipulate that in the event of the farm being acquired
as specified in the act, any compensation adjudged to be payable to
the owner under the act or any other law shall be payable to the
first applicant. The owner ceded its rights to compensation to first
applicant. Although the wording of the 'management agreement' is
clever, and on the face of it appears to comply with the provisions
of s 5, it is more probable than not that it was an elaborate scheme
designed to sell Rusfontein Farm to the third applicant and to cede,
which is the same as alienating the rights of the owner in the farm
to the third applicant, whilst delicately negotiating the legal
minefield and appearing to comply with the Land Acquisition Act.
Cession of rights is tantamount to alienation or disposal of rights
which would have been contrary to s 5 (2) (c), in the absence of
permission or consent by the acquiring authority. A look at s 11 of
the agreement between the parties will show how true this is. There
was to be no further exchange of remuneration when or if the option
to purchase was exercised, and in the event that the farm was
acquired, the first applicant was to be entitled to any compensation
payable to the owner. The probabilities support the conclusion that
the applicants did not have full title to the farms on the dates when
the first respondent caused them to be gazzetted. The evidence is not
clear as to the exact dates when applicants became vested with full
rights and the title between 2000-2002 when the bank took possession
of the title deeds. Third applicant admitted that the relevant forms
at the company's office were only filed sometime in 2002. How then
was the first respondent expected to acquire knowledge of the change
of directorship and or ownership?
Preliminary
notices remained in force for a period of ten years from the date of
first publication in a government gazette. The prescribed method for
the withdrawal of a preliminary notice was set out in s 5 (7) of the
Land Acquisition Act, 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;
(b)
withdraw a notice in terms of subsection (3), by serving written
notice of its withdrawal on every person on whom the first-mentioned
notice was served.”
It
is common cause that the 1st
respondent withdrew the application for confirmation of acquisition
of the applicants' farms before the Administrative Court which
ruled that the s 5 preliminary notice was rendered null and void by
such withdrawal. With all due respect to the Administrative Court s
5(7) expressly stipulated that the preliminary note could be
withdrawn by publishing a notice of withdrawal in the government
gazette and serving notice of withdrawal on every person on whom the
preliminary notice was served. This was not done. An order of nullity
ought to have been accompanied by an order that the first respondent
comply with the provisions of s 5 (7). In my view, in the absence of
publication in the government gazette of a notice to withdraw the
preliminary notice, it remained in force for a period of ten years
from the date of its first publication. I am fortified in my view by
the provisions of s 7 (5) of the Land Acquisition Act, which govern
the confirmation of acquisition of land, which provide that;
“(5)
Where the Administrative Court refuses to grant an order referred to
in subsection (1), the Administrative Court shall—
(a)
order the acquiring authority to withdraw the preliminary notice and
any notice served in terms of subsection (3) of section five…”
It
follows that the farms were validly 'identified' in terms of
section 5 of the Land Acquisition Act. Section 16B(2)(a) of the
former Constitution provides for the vesting in the State, with full
agricultural title, land 'that was identified on or before 8 July
2005, in the Gazette or Gazette Extraordinary under s 5(1) of the
Land Acquisition Act… and which is itemized in Schedule 7, being
agricultural land required for resettlement purposes. It is correct
that there are three requirements;
(a)
The land should have been identified on or before 8 July 2005 under s
5 of the Land Acquisition Act.
(b)
The land must have been itemized in schedule 7 of the former
Constitution.
(c)
The land must be agricultural land required for resettlement
purposes.
It
is my considered view that all of these three requirements were met
in the circumstances of this case. I am not persuaded by the
contention submitted on behalf of the applicants, that because
Schedule 7 of the former Constitution did not itemize the specific
farms but itemized the government gazettes in which the farms were
listed this did not constitute valid itemization for purposes of s 16
B. The s 5 preliminary notices could not, at law be withdrawn by an
order of nullification by the Administrative court which was
expressly mandated to order the acquiring authority to withdraw the
preliminary notices by publication in the government gazette, and
serve on all interested parties, as provided in terms of s 7 of the
Land Acquisition Act. The language of s 7 (5) is peremptory, which
means that there was no discretion on the part of the Administrative
court to purport to withdraw the preliminary notices by way of a
court order declaring them to be null and void. In the circumstances,
it is this court's finding that the applicant' farms were duly
itemized in Schedule 7 of the former Constitution.
In
any event, a reading of the provisions of s16 B(3)(a) and (b) will
show that, once agricultural land had been validly identified and
listed in Schedule 7, the acquisition could not be challenged,
especially if the challenge was based on whatever law governed the
acquisition of land on the effective date (the Land Acquisition Act).
All that the applicants were left with in terms of s 16B(3)(b) is a
right to claim compensation.
(f)
The current Constitution (amendment number 20 of 2013); The policy
behind land acquisition
Section
16A(1) of the former Constitution provided that:
“16A Agricultural
land acquired for resettlement
(1) In regard to the compulsory
acquisition of agricultural land for the resettlement of people in
accordance with a programmed of land reform, the following factors
shall be regarded as of ultimate and overriding importance –
(a) under colonial domination the
people of Zimbabwe were unjustifiably dispossessed of their land and
other resources without compensation;
(b) the people consequently took
up arms in order to regain their land and political sovereignty, and
this ultimately resulted in the Independence of Zimbabwe in 1980;
(c) the people of Zimbabwe must
be enabled to reassert their rights and regain ownership of their
land; and accordingly –
(i) the former colonial power has
an obligation to pay compensation for agricultural land compulsorily
acquired for resettlement, through an adequate fund established for
the purpose; and
(ii) if the former colonial power
fails to pay compensation through such a fund, the Government of
Zimbabwe has no obligation to pay compensation for agricultural land
compulsorily acquired for resettlement.”
Section
289 of the current Constitution provides that;
“289
Principles guiding policy on agricultural land
In order to redress the unjust
and unfair pattern of land ownership that was brought about by
colonialism, and to bring about land reform and the equitable access
by all Zimbabweans to the country's natural resources, policies
regarding agricultural land must be guided by the following
principles—
(a)
land is a finite natural resource that forms part of Zimbabweans'
common heritage;
(b)
subject to section 72, every Zimbabwean citizen has a right to
acquire, hold, occupy, use, transfer, hypothecate, lease or dispose
of agricultural land regardless of his or her race or color;
(c)
the allocation and distribution of agricultural land must be fair and
equitable, having regard to gender balance and diverse community
interests;
(d)
the land tenure system must promote increased productivity and
investment by Zimbabweans in agricultural land;
(e)
the use of agricultural land should promote food security, good
health and nutrition and generate employment, while protecting and
conserving the environment for future generations;
(f)
no person may be deprived arbitrarily of their right to use and
occupy agricultural land.”
The
applicants contended that; in order for the land reform programme to
comply with the provisions of the former and the current
Constitution, it must not target the replacement of some indigenous
owners or settlers on agricultural land with others. Land reform must
not be a tool of patronage or nepotism. If the Constitutional
principles are not enforced, Zimbabweans will plunge themselves into
a vicious circle of instability and victimization of indigenous
people by other indigenous people. This will affect investor
confidence with the result that the Constitutional objectives of food
security, employment creation and productivity will be affected. The
legal argument raised is that agricultural land already owned or
occupied by indigenous Zimbabweans cannot be said to be land required
for resettlement purposes within the meaning of s 16 A of the former
Constitution as read with s 72 (289) and (290) of the current
Constitution of Zimbabwe. The compulsory acquisition of Kopje Alleen,
the Beach, and Rusfontein farms is accordingly not protected by s 16
B of the former Constitution and must be declared null and void.
The
applicants' papers are permeated with an unfortunate equation of
the perceived meaning of 'indigenous Zimbabweans', with
Zimbabweans of black African descent. Section 16A of the former
Constitution speaks of the people of Zimbabwe and of a former
colonial power. Section 289 of the current Constitution talks about
addressing the need to redress the unjust and unfair pattern of land
ownership which was brought about by colonialism and to bring about
land reform and equitable access by all
Zimbabweans to the country's natural resources. Section 289(b)
entrenches in the Constitution the right of every Zimbabwean to
acquire, use and to hold agricultural land regardless
of his or her race or color.
Section 289(c) entrenches a policy that the allocation and
distribution of agricultural land be fair, and equitable, regard
being had to gender
balance and diverse community interests.
(The underlining is mine for emphasis)
With
all due respect to the submissions put forward by the 3rd
applicant, I am unable to agree that either the former or the current
Constitutions entrench a policy that agricultural land must not be
taken away from a black African Zimbabwean and given to another black
African Zimbabwean. I am unable to accede to the contention that land
that is already owned or occupied by 'indigenous (read black)
Zimbabweans cannot be said to be land required for resettlement
purposes within the meaning of s16B of the former Constitution. The
question of whether compulsory acquisition of agricultural land from
one particular race in favor of another violated s 23 of the former
Constitution, was considered and settled in Campbell
(supra), at p 16-17;
“It
must be stated at this stage that the law as embodied in the
provisions of s 16(B)(2)(a)(i) of the Constitution and the
acquisitions of the pieces of agricultural land which resulted from
its operation had no reference at all to the race or color of the
owners of the pieces of land acquired. There was no question of
violation of s 23 of the Constitution to be considered in this case.
No more shall be said on the alleged violation of s 23 of the
Constitution.”
There
is no doubt whatsoever in my mind, that, when it comes to the
question of the policy behind the land reform programme, the Supreme
Court has given guidance which is not ambiguous, but is as clear as
crystal At p 18 of Commercial
Farmers Union( supra);
“The
issue of whether land should be acquired for the land reform
programme, how much land should be acquired for that purpose, from
whom it should be acquired, and to whom the acquired land should be
allocated are matters for the Executive. They are policy issues that
are not justiciable. What is justiciable is whether the acquisition
itself and the allocation of the land has been done in accordance
with the law.”
There
is no basis therefore, on which the applicants can challenge the
compulsory acquisition of their farms, except where the procedure
followed was not the prescribed procedure. The applicant's recourse
is to apply for compensation as provided for by the Constitution. It
is not open to the applicants to instruct the acquiring authority on
what policy should have been applicable to the compulsory acquisition
of the farms, most especially to contend that their land should not
have been compulsorily acquired because they are black African
Zimbabweans.
Disposition
“Judicial
review has been defined as 'the principal means by which the High
Court exercises supervision over public authorities in accordance
with the doctrine of ultra
vires. The
power of the High Court to exercise judicial review is often referred
to as its supervisory jurisdiction”. See Oxford
Dictionary of Law, quick Reference.
The
mechanism that was in place for judicial review of the acquisition of
agricultural land for resettlement purposes was set out in the Land
Acquisition Act. Jurisdiction
was vested in the Administrative court, which in terms of s7(3a)
exercised its jurisdiction on the basis of the grounds of review set
out in s27 of the High
Court Act [Chapter 7; 06].
The procedures set out in the Land Acquisition Act were clearly spelt
out in the case of Mike
Campbell (supra), and Chisvo v
Peter (supra).
With
the coming into effect of Constitutional
Amendment number 17 of 2005,
and
the advent of s16B of the former Constitution with its overriding non
abstante clause,
it appeared as if certainty had been entrenched in the Constitution
in relation to all agricultural land that had been identified and
listed in schedule 7 of the former Constitution, which include the
applicants' farms which are the subject matter of this application.
The question for determination is simple. Did the first respondent
and or its predecessor lawfully acquire the applicants' farms in
terms of the Land Acquisition Act and or s 16 B of the Former
Constitution? Was the applicants' land properly identified and
listed in schedule 7 of the former Constitution? If it was not
lawfully acquired is it proper for this court to make a declaration
to that effect and to order the eviction of second to fourth
respondents ten years after the purported acquisition and
approximately ten years after the allocation of the land to the
second to fourth respondents? We must also decide whether the
provisions of the current Constitution, brought about by Amendment
number 20 of 2013
have any application to the circumstances of this case.
The
land reform programme is for the benefit of Zimbabweans from all
walks of life. It is blind to race or color and only bows down to
gender balance and diverse community interests. Whether acquisition
and distribution of agricultural land is to continue, from whom land
is acquired, to whom it is allocated, are questions for the executive
which are not justiciable. What is subject to judicial review or
supervision is the process of acquisition, which must comply with the
provisions of the Constitution. In the current Constitution we are
guided by s 71, s 289, s 290, s 291, s 292, s 293-295. Finally s
296-297 sets out the establishment and composition of the Zimbabwe
Land Commission.
In
the former Constitution we were guided by the provisions of s16A and
s16B. For reasons discussed above this court finds that the
applicants have not placed sufficient or admissible evidence before
it, that the first and or second, third and fourth respondents
forcibly or wrongfully deprived them of their farms, by threats,
intimidation, violence or wrongful application of the law or in terms
of the Land Acquisition Act, or s 16 B of the constitution.
Applicants withdrew the interim spoliation order which they had been
granted in 2002 before it was confirmed. The alleged perpetrators of
violence and intimidation are not party to these proceedings. The
veracity of the allegations was not tested in these papers. Any such
evidence which was before the court in 2002 is not sufficient or
cogent to establish on a balance of probabilities that applicants
were despoiled and are entitled to restoration of the status
quo
ante
after
ten years. The farms were lawfully identified in terms of the Land
Acquisition Act. They were lawfully listed in terms of Schedule 7 of
the former Constitution. Second – fourth applicants hold validly
issued offer letters. Applicants are not entitled to the eviction of
the second – fourth respondents. Applicants are not entitled to the
declaratur that they seek. They lost all rights in the farms to the
first respondent except the right to compensation. For these reasons
the application before the court be and is hereby dismissed with
costs.
Messrs
Mtetwa & Nyambirai,
applicants' legal practitioners
Civil
Division of the Attorney General's Office,
1st
respondent's legal practitioners
Messrs
Coghlan, Welsh & Guest,
2nd,
3rd,
and 4th
respondents'
legal practitioners
1.
SC 49-07
2.
SC31-10
3.
1997 (2) ZLR 425 (HC)
4.
HC 2443/15 @ p6
5.
HH 23-2006
6.
8th
ed by Jonathan Law
