It was also the applicant's defence that he had authority
to occupy, hold or use the gazetted land from the late Vice President Msika and
officials from the Ministry of Lands, Land Reform and Resettlement.
As this is in contradiction to the stance that the
applicant is not a former owner or occupier of ...
It was also the applicant's defence that he had authority
to occupy, hold or use the gazetted land from the late Vice President Msika and
officials from the Ministry of Lands, Land Reform and Resettlement.
As this is in contradiction to the stance that the
applicant is not a former owner or occupier of the farm or gazetted land, I can
only assume that this defence is in the alternative.
In support of the alternative defence that the applicant
has lawful authority to use the gazetted land, he attached to the Defence
Outline the following letters from the Office of the late Vice President Msika
concerning the farm:
“4 July 2002
Mr D Tailor-Freeme
(sic)
P O Box 7516
Chinhoyi
MESSRS
TAILOR-FREEME (sic): REMAINDER OF ROMSEY AND ATHENS A FARM
Following your various
consultations with the Vice President of Zimbabwe, the Honourable J W Msika,
and mindful of the fact that you offered Slaughter Farm (1400 ha) to
Government for resettlement purposes under the Zimbabwe Joint Resettlement
Initiative (ZCRI), the Vice President grants you permission to continue farming
the above farm.
O.E.M. Hove
Director (Policy and
Planning)
Office
of the Vice President and Cabinet
Cc Hon P T Chanetsa
Governor/Resident
Minister
Mashonaland West Province”;
And:
“11 December 2007
Hon. D.N.E. Mutasa (MP)
Minister of State for
National Security,
Lands, Land Reform and
Resettlement
ANOMALIES IN
THE IMPLEMENTATION OF THE LAND REFORM AND RESETTLEMENT PROGRAMME: MASHONALAND
WEST PROVINCE
I understand that you
convened a meeting with the political leadership of Mashonaland West Province
to discuss their representations contained in Cde Shamuyarira's letter
dated 19 October 2007.
I wish to remind you
that these issues had already been discussed by the Presidium and a decision
had been taken to implement them without any variation. I also wish to remind
you that you cannot alter or supersede any decision taken by the Presidium.
DR J.W. MSIKA (MP)
VICE
PRESIDENT”
And:
“26 January 2009
The Provincial Governor
and Resident Minister
Mashonaland West
Chinhoyi
Attention: The Hon. F.
Chidarikire (MP)
Dear Sir
FARMING
OPERATIONS AT ROMSEY FARM, MAKONDE DISTRICT, MASHONALAND WEST
This letter serves to
confirm that Mr D. S. Taylor-Freeme was granted lawful authority by the
Hon. Vice President Dr J.W. Msika to continue with his farming operations
on the above-mentioned farm.
You are therefore
requested to hold any action to the contrary in abeyance until consultations
can be held with the Hon. Vice President who comes back from his vacation leave
on 19 February 2009. Your co-operation in the above regard will be greatly
appreciated.
Yours faithfully
R
T Madamombe
Permanent Secretary to
the VP Dr J.W. Msika.”…,.
Given the contents of the above letters, which were, in
part, addressed to the applicant personally, the applicant's contention that he
is not in occupation of or using the farm is untenable. The two contentions
that the applicant is not in occupation of the farm and that he has authority
to occupy the farm are mutually exclusive.
The matter proceeded to trial and the State led evidence
from two State witnesses, namely, Mr Gavanga and Mr Chikomba.
These witnesses are officials in the Ministry of Lands and
Rural Resettlement. They are responsible for the administration and allocation
of land in terms of the Gazetted Lands (Consequential Provisions) Act
[Chapter 20:28]. Their evidence may briefly be summarised as follows;
1. That they knew the applicant as a farmer on the farm,
the gazetted land, which was acquired in terms of section 16B of the
Constitution.
2. That the applicant was running farming operations on the
farm before and after the acquisition of the farm.
3. That at the expiry of the forty-five day period when the
applicant was required, in terms of section 3 of the Gazetted Lands
(Consequential Provisions) Act [Chapter 20:28], to vacate the farm he had
crops on the farm that had yet to be harvested. They gave him time within which
to complete the harvesting and vacate the farm.
4. That at the end of the harvest the applicant did not
vacate the farm and is continuing farming operations on the farm to date.
5. That the farm has since been allocated to another person
in terms of an offer letter but because the applicant is refusing to vacate the
farm the new owner in terms of the offer letter has not been able to take
occupation of the farm.
6. That although the registered owner of the farm is one
Merle Taylor-Freeme, the mother of the applicant, they have always dealt with
the applicant in connection with the farm and that it is the applicant who is
carrying out farming operations on the farm.
The evidence of these witnesses is, to a large extent,
corroborated by the correspondence attached to the Defence Outline, referred to
above. It is significant to note that the correspondence is between the
applicant, in his personal capacity, and Government officials. There is nothing
in the correspondence that suggests that the applicant was acting on behalf of
a company or some third party.
At the close of the State case, the applicant applied for a
discharge.
In his application for a discharge, the applicant submitted
that none of the six essential elements of the offence charged had been proved
or alleged to justify his being put on his defence. He submitted that for the
applicant to be put on his defence the State had to lead evidence that
prima facie establishes the following as the essential elements of the
charge, that –
(a) The accused was a former owner or occupier;
(b) Of gazetted or acquired land;
(c) He has not ceased to occupy, hold or use that gazetted
land;
(d) After the expiry of the appropriate period referred to,
which in the present case is forty-five days after the fixed date;
(e) The accused, as the former owner or occupier, has no
lawful authority to occupy, hold or use that land….,.
The application for a discharge was dismissed. In
dismissing the application for a discharge, the learned trial magistrate
concluded that the applicant had a case to answer and should be put on his
defence.
Dissatisfied with that ruling, the applicant applied for a
referral of the matter to the Constitutional Court in terms of section 24(2)
of the Constitution, which provides as follows:
“24 Enforcement of
protective provisions
(2) If in any proceedings
in the High Court or in any court subordinate to the High Court any question
arises as to the contravention of the Declaration of Rights, the person
presiding in that court may, and if so requested by any party to the
proceedings shall, refer the question to the Supreme Court unless, in his
opinion, the raising of the question is merely frivolous or vexatious.”
In the application for referral, the applicant contended
that the trial court had violated his fundamental right to the protection of the
law guaranteed by section 18(1) of the Constitution by putting him on his
defence when the evidence for the State failed to establish the essential
elements of the offence.
The applicant also advanced the following two further
grounds in support of the application for referral –
(1) First, that the trial magistrate had violated the
applicant's right to a fair trial by failing to give detailed reasons for
dismissing the applicant's application for discharge.
In particular, it was contended that the learned trial
magistrate should have dealt with each of the six grounds that were advanced in
support of the application for discharge, and that his failure to do so was a
violation of the applicant's right or entitlement to a fair trial in terms of section 18(2)
of the Constitution.
(2) Second, that the definition of “lawful authority” in section 2
of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is
ultra vires section 16B(6) of the Constitution insofar as it seeks to
limit the meaning of “lawful authority” to an offer letter, a permit or a land
settlement lease. The contention is that Parliament has no authority to
truncate the definition of “lawful authority” referred to in the Gazetted Lands
(Consequential Provisions) Act [Chapter 20:28] without first amending section 16B(6)
of the Constitution.
The court a quo dismissed the application for referral
to the Constitutional Court as frivolous and vexatious.
The applicant now approaches this Court in terms of section 24(1)
of the Constitution, on the basis that the court a quo violated his fundamental
right by refusing to refer his case to this Court.
The applicant contends that the dismissal of his
application for referral violated his right to protection of the law guaranteed
by section 18(1) of the Constitution, and his right to a fair trial
guaranteed by section 18(2) of the Constitution. He further argued that
his application for referral was neither vexatious nor frivolous.
In essence, the applicant's case in this application is that
–
(a) The dismissal of the application for discharge
constitutes a violation of his constitutional right to the protection of the
law, in that the State had not established any one of the essential elements of
the offence that he was being charged with;
(b) The trial magistrate, by reason of his failure to give
detailed reasons in his judgment for dismissing both applications, had violated
the applicant's right to a fair trial, the contention being that he should have
addressed each of the six grounds that were advanced in support of the
application for discharge before dismissing the application; and
(c) The definition of “lawful authority” in section 2
of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] was
ultra vires section 16B(6) of the Constitution and was therefore
unconstitutional.
The first issue that falls for determination by this Court
is whether the court a quo was correct in dismissing the application for
referral as frivolous and vexatious.
If the court a quo was correct in
dismissing the application for referral that is the end of the matter. If the
court a quo erred in dismissing the application for referral, then this
Court is at large to consider the issue of whether the applicant's rights were
violated.
