The
two applicants are beneficiaries of the land reform programme having
been allocated Plots number 40 and 41 Selby Farm in Mazoe. They have
produced certificates of occupation under the Government's A1
Resettlement Scheme issued to them by Mazoe Rural District Council
and Certificates of A1 Farm Settlement issued by the District Lands
Committee in Concession as proof of their right to occupation of
their respective plots.
Clearly,
the certificates of occupation is not an offer letter issued by the
acquiring authority (who, in terms of section 2 of the Gazetted Land
(Consequential Provisions) Act [Chapter
20:28]
is the Minister responsible for Land) in terms of that Act to confer
rights to individuals over land acquired for resettlement. However,
those certificates of occupation fall squarely under permits to
occupy land. A permit is defined, in section 2 of the Gazetted Land
(Consequential Provisions) Act [Chapter
20:28],
as:
“Permit;
when used as a noun, means a permit issued by the State which
entitles any person to occupy and use resettlement land…,.”
The
certificates of occupation relied upon by the applicants were issued
by the State, through Mazoe Rural District Council, as locomotive to
confer rights of occupation over the land in question. There can
scarcely be any doubt that the local authority, under whose
jurisdiction the land falls, was clothed with authority to allocate
the land to the applicants the way it did.
The
certificate itself is self explanatory in its content. That of the
second applicant reads, in relevant part, as follows:
“CERTIFICATE
OF OCCUPATION
A1
RESETTLEMENT SCHEME
This
is to certify that Mr/Mrs/Miss Chirau Beauty, National Identity
Number 75-282469X75, is the legal holder of Plot number Forty (40)
which consists of six (6) hectares of land. The plot is at Selby
resettlement area in Mazoe Rural District Council.
Issued
on this 12(th) day of January 2010.”
The
certificate is signed by all the relevant officials, namely, the
C.E.O/Council Chairman, District Administrator, District Lands
Officer and DCC. It is, indeed, a document issued by the State with
all the hallmarks of a permit conferring upon the holder the right to
occupy the land as I have said.
The
two applicants complain that from the time that they were issued with
the certificates of occupation and moved onto the land, they
encountered problems with the first respondent, who is the holder of
an adjacent plot, being number 49 Selby Farm. They say that the first
respondent claims their plots as his. He has always threatened to
seize their plots. On numerous occasions he has ploughed their fields
and planted his crops. When peggers from the Ministry of Lands are
called to mark the boundaries, the first respondent, who brags that,
as a member of the Central Intelligence Organisation, he is
“untouchable”, systematically removes the pegs and continues to
till the applicants' land.
When
the first applicant constructed cabins for her employees, in December
2014, this angered the first respondent who responded by directing
more threats towards the first applicant's employees and her son,
Adrian, using his own employees. At some point, the first
respondent's employee, called Nhau, smashed the windscreen of
Adrian's vehicle in the presence of a police officer. Several
criminal cases have been opened against the first respondent, an
activity which has not abated the harassment.
On
18 January 2015 the first applicant's employee, by the name of Axon
Kubunga, together with the second applicant's employee called
Prosper Bangano went missing and when a missing persons report was
made to the police, they were found murdered in one of the new cabins
built by the first applicant at Plot number 41. This is what has
prompted the application, as both applicants feel there is need for
their rights over the plots to be confirmed and protected by the
court. Although the police are still investigating the murders and
are yet to unravel the case, the applicants are of the view that in
the meantime they should be protected by an interdict against the
first respondent in the following:
“TERMS
OF FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms;
1.
1st
and 2nd
applicants be and are hereby declared to be the lawful occupiers of
Plot 41 and Plot 40 Selby Farm, Mazoe, respectively, in terms of the
offer letters issued to them by the Ministry of Lands and Rural
Resettlement.
2.
The 1st
respondent and all those claiming occupation through him be and are
hereby ordered to desist from trespassing or entering into Plot 41
and Plot 40 Selby Farm, cultivating or interfering in any way with
the agricultural activities being conducted by the applicants on Plot
40 and Plot 41 Selby Farm, Mazoe.
3.
The 1st
respondent pay(s) costs of suit of this application on a legal
practitioner and client scale.
TERMS
OF INTERIM RELIEF SOUGHT
Pending
determination of this matter, the applicants (are) granted the
following relief:
1.
The 1st
respondent, and any such person claiming occupation through him, be
and are hereby restrained from engaging in unlawful acts,
individually or jointly or in consent(sic)
with other persons, directly or indirectly calculated to or with the
result of entering or occupying Plot 41 and Plot 40 Selby Farm, Mazoe
or interfering in any way in the farming activities at Plot 41 and
Plot 40 Selby Farm, Mazoe.
2.
The 1st
respondent, and all those claiming occupation through him, be and are
hereby ordered to immediately vacate Plot 41 and Plot 40 Selby Farm,
Mazoe upon service of this order failure to which the Sheriff be and
is hereby authorised to evict the 1st
respondent and any such person claiming occupation of Plot 41 and
Plot 40 Selby Farm, Mazoe.
3.
The 1st
respondent be and is hereby ordered to refrain from interfering with
1st
and 2nd
applicants' peaceful and undisturbed possession of business on Plot
40 and Plot 41 Selby Farm.”
The
applicants therefore seek an interim interdict against the first
respondent whom they accuse of interfering with their peaceful
occupation of the pieces of land allocated to them by the State. To
that extent, they must show that:
(a)They
have a prima
facie
right;
(b)
They have a well grounded apprehension of irreparable injury;
(c)
They have no other ordinary remedy; and
(d)
That the balance of convenience favours the grant of the interdict.
See
Ericksen
Motors (Welkon) Ltd v Proton Motors, Warrenton and Anor
1973 (3) SA 685 (H)…,.; Charuma
Blasting and Earthmoving Services (Pvt) Ltd v Njainjai and Ors
2000 (1) ZLR 85 (S)…,.
I
have already pointed out that the applicants have exhibited the
documents upon which they lay claim to the two plots, the
Certificates of Occupation issued by the local authority entitling
them to occupy the land in question. Also, as already stated, the
certificates fall under the definition of a permit contained in
section 2 of the Gazetted Land (Consequential Provisions) Act
[Chapter
28:28].
The
Supreme Court made it clear in CFU
& Ors v Min of Lands & Ors
2010 (1) ZLR 576 (S)…, that:
“The
Minister has an unfettered choice as to which method he uses in the
allocation of land to individuals. He can allocate the land by way of
an offer letter or by way of a permit or by way of land settlement
lease. It is entirely up to the Minister to choose which method to
use. I am not persuaded by the argument that because the offer letter
is not specifically provided for in the Constitution it cannot be
used as a means of allocating land to individuals. I am satisfied
that the Minister can issue an offer letter as a means of allocating
acquired land to an individual. Having concluded that this Minister
has the legal power or authority to issue an offer letter, a permit
or a land settlement lease it follows that the holders of those
documents have the legal authority to occupy and use the land
allocated to them by the Minister in terms of the offer letter,
permit or land settlement lease.”
The
only question which arises is whether the Minister can lawfully
delegate the power to issue offer letters, permits or land settlement
leases to other bodies or individuals like the Rural District Council
and/or the Land Committee.
I
have made the point that the local authority, under whose
jurisdiction the land is located, has a right to allocate it to an
individual who should, after that, hold good title. It is also common
cause that the people on the ground in the districts, who are the
“eyes” of the Minister, so to speak, are the District Land
Committees and the Land Officers who identify the land and make
recommendations to the Minister. Where they have issued a Certificate
of Occupation, they would be acting on behalf of the Minister, and
the issuance of an offer letter after that would be a mere formality.
I conclude, therefore, that the applicants have succeeded in
establishing a prima
facie
right over their respective plots.
In
fact, the second respondent has put clarity to the issue. In the
opposing affidavit of Kundai Makuku, the point is made that the
applicants could not be issued with offer letters because they were
allocated land under the Government's A1 Settlement Scheme as
opposed to the A2 scheme where offer letters are issued. For that
reason they were issued with valid A1 permits for Plots 40 and 41
while the first respondent was issued with the same for Plot 49.
That
should put the issue to rest really.
The
applicants complain that the first respondent has been interfering
with their rights, has ploughed their fields and repeatedly
threatened them and their employees using his office as a member of
the CIO to instil fear in them.
As
to why CIO members think they should use their office to intimidate
law-abiding citizens and to be a law unto themselves is just about
one mystery which is difficult to fathom. There is a pressing need
for the authorities to reign in these people and remind them that
they cannot act with impunity in a constitutional democracy like
Zimbabwe. Their lumpen behaviour cannot be allowed to perpetuate.
How
can a person who has been allocated their own piece of land go on to
spread his tentacles onto other people's land without any regard to
the law?
The
existence of a well grounded apprehension of irreparable injury where
a neighbour behaves in the manner chosen by the first respondent
cannot be doubted.
I
am of the view that there would be no other remedy available to the
applicants where resort to the police and the criminal justice system
has not only failed to contain the primitive acquisitive exploits of
the first respondent but has also yielded negativity. Of course, in
the circumstances of this matter, the balance of convenience would
seem to favour the applicants especially as the acquiring authority
seems to be behind them. The first respondent may live to fight
another day.
I
am therefore satisfied that the applicants have made out a good case
for the relief that they seek. Accordingly, the provisional order is
granted in terms of the amended draft order.
