GWAUNZA
DCJ:
[1] This
is a purported referral to this Court in terms of section 175(4) of
the Constitution of Zimbabwe. The matter was argued before this Court
on June 4, 2014. Judgment having been reserved, it is a matter of
regret that unforeseen circumstances resulted in the delay in
rendering this judgment.
BACKGROUND
FACTS
[2] The
respondent is the holder of an offer letter in respect of subdivision
9 of Reubine of Clare Farm in Manicaland granted to him by the
Minister of Lands and Rural Resettlement. The farm was offered to the
respondent on 6 June 2010. Before the farm was acquired by the State
and offered to the respondent, it was owned by a certain Mr Tiny Van
Resberg. After its acquisition, the farm was divided into nine (9)
subdivisions. The respondent's offer letter relates to subdivision
9.
[3] The
applicants were all employees of the said Mr Tiny Van Resberg and by
virtue of such employment, lived at the farm until he left following
its acquisition and re-allocation to the respondent and eight others.
The applicants and their families continued to live on the farm
(effectively on the subdivision allocated to the respondent), and
those with children have them enrolled at Clare Primary School. Some
had been employed by Mr Van Resberg from 1982 until the time he left.
It is common cause that, apart from accommodation, Mr Van Resberg
provided them with small pieces of land where they conducted their
subsistence farming.
[4] After
the respondent obtained the offer letter in respect of his
subdivision, he took occupation thereof in September 2010. The
applicants remained in occupation of the same subdivision. The
respondent then gave all the applicants notice to vacate the farm in
August 2012 but the applicants did not comply. Eventually, he filed a
court application for the eviction of the respondents in the Mutare
Magistrates' Court. This was on 10 September 2013.
[5] The
applicants filed a notice of opposition to the application. With
their notice of opposition however, they did not file any affidavit
responding to the allegations in the application. They instead raised
a point in
limine
relating to the jurisdiction of the Magistrates' Court to deal with
the dispute. In that statement, they alleged that their employment
status
had never been terminated and that in terms of section 16 of the
Labour Act, they remained employees of Reubine Farm entitled to their
terminal benefits in terms of the Labour
(Terminal Benefits and Entitlements of Agricultural Employees
Affected by Compulsory Acquisition) Regulations 2002.
Despite objecting to the magistrate court's jurisdiction, the
applicants nevertheless notified the respondent of their intention to
file a request for referral to the Constitutional Court for the
resolution of a number of constitutional questions.
[6] The
applicants thereafter filed an application for referral in terms of
section 175(4) of the Constitution before the magistrates' court,
on 18 October 2013. In that application, they tendered evidence
concerning their perceived entitlement to the land in question, which
should properly have been contained in an opposing affidavit in the
main issue before the magistrate. Be that as it may, the magistrate
entertained the application. In it the applicants claimed they had
been in occupation of the farm since 1982 and were offering labour to
the former farm owner, Mr Van Resberg. The first applicant, for
example, had been in occupation of the farm since 1982 and had worked
on the farm for Mr Van Resberg ever since. The former owner gave the
applicants one and a half hectares of land for their own subsistence
farming and they had been growing maize and other crops like sweet
potatoes on the land. The applicants feared that if they were
evicted, their 'fundamental rights' would be breached. They were
afraid of being evicted and thrown into the open exposing them to the
'indignity' of being at the mercy of 'dangerous agents of
weather which include rains, the wind, storms, lightning, heat, the
cold nights, the dangers of wild animals, reptiles and crawling
creatures'. The applicants alleged that they were provided with
accommodation as a direct result of their employment and they had not
resigned from such employment. They further alleged that it was not
the intention of the land reform programme to disempower former black
Zimbabwean farm labourers who worked under the previous land
occupation regime.
[7] The
applicants in addition expressed the view that their employer had not
properly terminated their employment contracts in terms of labour law
and the eviction would take away their economic wherewithal as well
as the social amenities of life that they had enjoyed at the farm.
They also alleged that the intended eviction would violate section 28
of the Constitution, and sought referral of the following questions
to this Court for resolution:
1.
Whether the eviction of the respondents from Reubine Farm would be in
breach of the following fundamental rights of respondents as
enshrined in the Constitution of Zimbabwe (Amendment No.20).
(a)
In breach of section 28 of the Constitution of Zimbabwe.
(b)
In breach of section 51 of the Constitution of Zimbabwe.
(c)
In breach of section 72(7) of the Constitution of Zimbabwe.
(d)
In breach of section 64 of the Constitution of Zimbabwe.
2.
Further, whether the eviction of respondents without them being
granted alternative accommodation is in breach of the Founding
Principles; section 28 of the Constitution of Zimbabwe.
[8] The
respondent opposed the request for referral, stating that his land
allocation was in respect of subdivision 9 of the farm. He stated
that the applicants were employed by Mr Van Resberg who occupied the
whole farm, not just the subdivision that was offered to him by the
Minister of Lands. He further alleged that the applicants worked for
Mr Van Resberg and since he had left, they no longer had any right to
remain on the farm. He further submitted that he did not inherit Mr
Van Resberg's farming operations and denied violating any of their
rights by virtue of the order that he sought against the applicants.
Given that he never employed them he bore no obligation to provide
them with accommodation. In any event, he alleged, accommodation by
reason of employment is not permanent in nature, as it is tied to the
employment relationship.
[9] The
respondent also opposed the request for referral to this Court on the
basis that section 28 of the Constitution binds the State and all
institutions and agencies of Government only, not individuals like
him.
Further, that if the applicants wanted land of their own, they should
approach the relevant authorities for land allocation in their own
right. He averred that in terms of the lease agreement between him
and the State, he was not allowed to cede his rights therein to third
parties. Lastly, the respondent raised the point that the applicants
were in any case, illegal occupiers of the farm since 2010 as they
possessed neither an offer letter, land settlement lease or a permit
as prescribed by the Gazetted Land
(Consequential
Provisions) Act
[Chapter 20.28].
Further, that section 72(6) of the Constitution of Zimbabwe as read
with section 3(2) of [Chapter
20.28]
just cited, explicitly provides that a former owner or occupier who
does not cease to occupy acquired land on the expiry of the period
prescribed, in this case 90 days, shall be guilty of an offence. All
that he sought to do was exercise his rights as a re-settled farmer
by evicting those who continued to occupy it in open defiance of the
law and the Constitution. The occupiers had thus been stripped of all
rights they may have had to the land in question, including their
living quarters, whose continued occupation is 'criminalised' by
section 3(3) of the Gazetted Land (Consequential Provisions) Act
[Chapter
20.28].
Accordingly,
the respondent prayed for the request for referral to be dismissed on
the basis that it was frivolous and vexatious.
[10] The
presiding magistrate however found for the applicants. She summarised
the facts as alleged by the parties and stated as follows in her
short judgment;
“It
is my well-considered opinion that the application for referral to
the Constitutional Court is not frivolous and vexatious but
genuinely found (sic)
on the respondent's fear of their rights being violated.”
THE
ISSUE
Whether
the matter was properly referred to this Court.
[11]
The matter came before this Court as a purported referral in terms
of section 175(4), which provides as follows:
“(4)
If a constitutional matter arises in
any proceedings before a court,
the person presiding over that court may, and if so requested by any
party to the proceedings must, refer the matter to the
Constitutional Court unless he or she considers the request is
merely frivolous or vexatious.”
(my
emphasis)
The
'proceedings' before the court a
quo
at the time the application for referral was made consisted only of
the founding papers related to the respondent's application for
eviction of the applicants in
casu.
Without any opposing papers having been filed, the court was
presented with an application, which it entertained and granted, for
referral of certain questions to this Court. The question as to what
constitutes 'proceedings' for purposes of section 24(2) of the
former constitution (section 175)(4) of the current Constitution) was
authoritatively answered in Tsvangirai
v Mugabe & Anor -
2006 (1) ZLR 148 (S) at 158, where the court held as follows:
“Section
24(2) of the Constitution only applies when there is a question
arising in the proceedings in the High Court or in the court
subordinate to the High Court. … . The words 'in any proceedings
in the High Court' mean proceedings that have come to be or have
been instituted in the High Court ….. There are proceedings in
being in the High Court from the moment an action is commenced or an
application made until termination of the matter in dispute, or
withdrawal of the action or application.”
When
the above is applied to the circumstances of this case, and by parity
of reasoning, there can be no doubt that the questions referred to
this Court properly arose during proceedings in the court a
quo. What
remains to be determined is whether or not the magistrate should
have referred the matter to this Court at all.
[12] The
applicants were faced with an application for their eviction. In
terms of laid down procedure they ought to have opposed that
application in the manner prescribed in the Magistrates' Court
Rules. They ought, in particular, to have filed an affidavit in
opposition to the application in terms of Order 22 Rule 2 subrule
3(b) of the Magistrates' Court Rules which provides as follows:
“Statement
in response to application
(1)
The respondent may, not less than forty-eight hours before the time
stated in such application, deliver a statement in writing in which
he either -
(a)
consents to the order mentioned in the application; or
(b)
opposes the granting of such order.
(2)
Where the respondent consents to the order -
(a)
the order shall be deemed to be granted from the time mentioned in
the application;
(b)
it shall not be necessary for either party to appear.
(3)
Where the respondent opposes the order, his statement shall -
(a)
set out the grounds on which he opposes the order;
(b)
if
he denies the facts set out in the application or seeks to place
additional facts before
the court, be supported by affidavit.”
(my
emphasis)
[13] The
applicants clearly wished to deny the facts set out in the
application for eviction and to place additional facts before the
court. They were therefore required to lay out the factual basis for
their defence in an opposing affidavit and thereafter request the
magistrate to refer an identified constitutional question arising
therein, to this Court. At that stage, it would have been shown that
the determination of the constitutional question would be the basis
of their defence to the application for eviction in the Magistrates'
Court. This they did not do. For this reason, the basis for the
referral was not apparent on the papers before the court.
[14] A
perusal of the presiding magistrate's ruling shows that she did not
make
any findings of fact
in referring the matter to this Court. That is a serious
misdirection. A constitutional question does not arise in a vacuum.
It is an issue that arises from the facts of a particular matter. Put
differently, for the court to find that there is a constitutional
matter that warrants a referral to this Court, the question must
arise from the facts before the referring court. This is particularly
important considering that there are many instances where an analysis
of the facts would make it palpably apparent that no constitutional
matter would have arisen. Factual findings and their relevance to the
alleged constitutional violation are crucial in the determination of
whether the request for referral is frivolous or vexatious. In Martin
vs Attorney-General & Anor
1993 (1) ZLR 153 (SC) 156H-157A the court had the following to say:
“Faced
with the request to refer the question raised on the applicant's
behalf to the Supreme Court, the magistrate had no option but to act
in accordance therewith, unless of the opinion that the question
was, as characterised in section 24(2) of the Constitution, “merely
frivolous or vexatious”. In
order to be satisfied that it was not he obviously had to
consider, to some extent, the merits of the argument.”
(my
emphasis)
[15] The
applicants categorically stated in their ill-conceived application
that they were employed by Mr Van Resberg and that they were given
accommodation at the farm on the basis of such employment. They
alleged that their employment had not been terminated hence they
could not be evicted from the farm. In this respect the applicants
stated that they were employed by Mr Van Resberg and not the farm.
Before referring the matter to this Court, the magistrate ought to
have satisfied herself that there was indeed a relationship between
the farm and the applicants. In the applicants' papers before the
court a
quo,
it was common cause that the applicants were employed by the farmer
as farm labourers. No attempt was made by the magistrate to establish
the relationship between the applicants, the land and Mr Van Resberg
before determining the application, in order to understand and
contextualise the request for referral. Had the magistrate made the
effort to call evidence on the required facts, and to make specific
findings of fact in that respect, it would have been apparent that
the only claim that the applicants had to the land was through their
employment with Mr Van Resberg. Since Mr Resberg had ceased to occupy
the farm, it fell to reason that such employment had come to an end.
[16] The
magistrate therefore, ought to have, on this basis, considered
whether there was any basis for referral of the matter to this Court.
The applicants had, under the law applicable, lost the right to
continue staying on the farm. In this regard, the findings of the
Court in Dhlamini
and Another v The State CCZ
1/14
become
apposite.
It
found in part:
“Section
24(2) of the Constitution clearly precludes a situation where the
question is referred to the Supreme Court in respect of a matter
which is no longer necessary for resolution by the lower court in
the determination of the dispute before it. If that were to be
permitted it would mean that the Supreme Court would not be rendering
a decision on the question as a court of first instance in the
exercise of original jurisdiction. It was no longer necessary for
the High Court to place the applicants on remand and ipso
facto
to consider whether or not placing them on remand was likely to
violate their right to personal liberty, the decision to place the
applicants on remand having already been made by the magistrates'
court. The applicants were before the High Court for trial on the
basis of the decision that there was a reasonable suspicion of their
having committed the offences with which they were charged.”
[17] The
facts in this case are almost on all fours with the facts in Yoramu
and Others v The State CCZ
2/16.
The only difference is that while in this case the respondent elected
to sue the applicants for eviction, in the Yoramu
case,
the decision had been taken to prosecute the accused persons under
section 3(2)(a) as read with section 3(3) of the Gazetted Lands
(Consequential Provisions) Act. This Court, on referral of the matter
from the magistrates' court, was ultimately tasked with dealing
with the question of whether the prosecution of the applicants in the
magistrates' court under section 3(2)(a) as read with section 3(3)
of the Gazetted Lands Act constituted a violation of their right to
the protection of the law, GARWE JCC found:
“Even
on the merits, it is clear that there was no transfer of an
undertaking following the acquisition of the farm and its subsequent
allocation to a number of beneficiaries. The Constitution itself
makes it clear that anyone who possesses or occupies gazetted land
without lawful authority may be guilty of a criminal offence. What
constitutes lawful authority is defined in the Act. The applicants
have no such authority. In these circumstances, there can be no
question of the applicants having remained employees of, or the
farming operations having been transferred to, the new
beneficiaries.”
[18] The
Magistrate in
casu
was dealing with an application for eviction. The question before him
was therefore whether the applicants had the authority to remain in
occupation of the farm, in other words, did they have a valid defence
to the eviction claim? The dispute was between the applicants and the
respondent as between themselves. In this regard, the magistrate
ought to have considered that question only. The magistrate, knowing
that it was an application for eviction, ought to have satisfied
herself that the alleged constitutional question would, if
successful, clothe the applicants with lawful authority. It could
not. The applicants simply did not have lawful authority to continue
staying on the farm. Accordingly, the Constitutional Court cannot
give them what is not provided for in the law.
Even
if it were to be found that the applicants were entitled to land, the
fact remains that they were illegally occupying the land in question.
The dispute as it properly stood, without the perceived
constitutional aberrations, could have been adequately resolved by
reference to the common law or the Gazetted Lands
(Consequential
Provisions)
Act.
[19] With
respect to occupation of agricultural land compulsorily acquired for
resettlement purposes, a person can only settle on the farm by virtue
of lawful authority. Lawful authority is defined in section 2 of the
Gazetted Lands (Consequential Provisions) Act as follows:
“lawful
authority” means –
(a)
an offer letter; or
(b)
a permit; or
(c)
a land settlement lease;”
Even
though this case did not come through the criminal route, it would be
ill conceived to ignore the provisions of section 3 of the Gazetted
Lands (Consequential Provisions) Act [Chapter
20:28].
The provision reads:
“3
Occupation of Gazetted land without lawful authority
(1)
Subject to this section, no person may hold, use or occupy Gazetted
land without lawful authority.
(2)
Every former owner or occupier of Gazetted land -
(a)
Referred to in para (a) of the definition of “Gazetted land” in
section 2(1), shall cease to occupy, hold or use that land forty-five
days after the fixed date, unless the owner or occupier is lawfully
authorised to occupy, hold or use that land;
(b)
referred to in para (b) of the definition of “Gazetted land” in
section 2(1), shall cease to occupy, hold or use that land forty-five
days after the date when the land is identified in accordance with
section 16B(2)(a)(iii) of the Constitution, unless the owner or
occupier is lawfully authorised to occupy, hold or use that land:
Provided
that –
(i)
the owner or occupier of that land referred to in para (b) may remain
in occupation of his or her living quarters on that land for a period
of not more than ninety days after the date when the land is
identified;
(ii)
the owner or occupier shall cease to occupy his or her living
quarters after the period referred to in proviso(i).”
[20] A
constitutional question worthy of referral is a question that is
necessary to be answered by the Constitutional Court in order that
the referring court may dispose of the dispute before it. In this
regard, BARON JA in Mandirwhe
vs Minister of State
1986 (1) ZLR 1 (S) 5E-H reasoned:
“The
basis on which we declined to entertain this reference was that,
since the determination of the question of an alleged contravention
of the Declaration of Rights was unnecessary for the purposes of the
order the learned Judge had decided to make, it was not competent
for him to refer that question to this Court.”
In
order to find that the question that is raised is one that is
relevant for the resolution of the main dispute between the parties,
the court has to be informed by findings of fact. It is from those
findings that the court will consider whether the question raised is
consistent with the proven facts. In referring the questions to this
Court without following the procedure laid out above, the court a
quo
grossly misdirected itself.
[21] The
question referred therefore had no bearing on the dispute that stood
to be resolved between the parties in the magistrates' court. Once
a dispute can be resolved without recourse to the Constitution, no
constitutional questions would have arisen and the matter in that
form would not be properly before the Constitutional Court. (See
Magurure
& 63 Others v Cargo Carriers International Hauliers (Pvt) Ltd t/a
Sabot
CCZ 15/16. Berry
& Another v Chief Immigration Officer & Another
CCZ4/16.
Had
the magistrate considered the request for referral properly, she
would have found that for these reasons, such request was frivolous
and vexatious.
[21]
After all is considered, I find that the magistrate grossly
misdirected herself in acceding to the request for referral. The
referral is therefore not properly before this Court.
In
the result, I make the following order:
The
matter be and is hereby struck off the roll.
CHIDYAUSIKU
CJ: I
agree
MALABA
DCJ: I
agree
ZIYAMBI
JCC: I
agree
GARWE
JCC: I
agree
GOWORA
JCC: I
agree
HLATSHWAYO
JCC: I
agree
PATEL
JCC: I
agree
GUVAVA
JCC: I
agree
Maunga
Maanda & Associates
applicants' legal practitioners
Takaidza
& Mubata
respondent's legal practitioners
1.
S28
of the Constitution obliges the State and all institutions at every
level to take all steps necessary within their means to enable every
person to have access to adequate shelter.
