UCHENA
JA:
INTRODUCTION
[1]
This is an appeal against the judgment of the High Court dated 3
February 2023 in which it declined to exercise its jurisdiction over
the applicant's application in which it sought the following
orders:
“1.
The applicants immovable property namely subdivision J and K of
Mnyami Farm Gweru's acquisition by the state be and is hereby
delisted.
2.
The 1st
respondent be and is hereby ordered to withdraw the offer letters
issued to the 2nd-6th
respondents within 30 days of the date of this order.
3.
If the 1st
respondent fails to comply with paragraph 2 above, the offer letters
issued to 2nd-6th
respondents should be deemed to have been procedurally withdrawn.
4.
The 2nd-6th
respondents and anyone claiming occupation through them be and are
hereby evicted from subdivision J and K of Mnyami Farm, Gweru.
5.
The operation of paragraph 4 above be and is hereby suspended until
the 2nd-
6th
respondents offer letters are withdrawn in terms of either paragraph
2 or 3 of this order.
6.
The respondents shall pay cots of suit.”
[2]
This appeal was heard on 23 May 2023 after which the court gave an
ex-tempore
judgment
dismissing the appellants appeal.
[3]
On 19 June 2024 the appellants counsel wrote to the Registrar
requesting for written reasons for judgment. These are they.
THE
FACTS
[4]
In 1981 and 1983 the first appellant and her late husband whose
estate is represented by the second appellant bought subdivisions J
and K of Mnyami Farm, Gweru.
[5]
In pursuit of the land reform programme the government acquired the
farm in 2005 in terms section 16B as read with the 7th
Schedule which were introduced into the1980 Constitution by the 17th
Amendment to that Constitution. The first appellant alleges that in
her conviction, the acquisition was erroneous and unlawful because
the law did not and still does not allow the acquisition of land
belonging to indigenous Zimbabweans.
[6]
In 2006 the first appellant applied for the delisting of the farm.
The Land Identification Committee and the Resident Minister supported
her application on the basis that the farm was indigenously owned.
She does not know the result of the application for delisting, but in
2011, the second to the eighth respondents occupied parts of the farm
having been issued with offer letters by the first respondent. She
made numerous attempts to have them ejected from the farm but to no
avail. The then Resident Minister for the province advised her that
the only reason why the settlers were not being removed from the farm
was that government intended to find alternative land for them.
[7]
The second to eighth respondents were cited in the application a
quo
because they are still in occupation of the farm, on the strength of
offer letters issued to them between 2011 and 2013. During a period
which she did not specify in her founding affidavit, the first
appellant said she lodged a complaint in relation to the illegal
takeover of the farm with the Land Commission. Her ground for doing
so remained that the acquisition had been made in error because the
farm was indigenously owned.
[8]
In December 2018, the Land Commission in its determination of the
dispute, found that:
(a)
The first respondent who is the Minister of Lands, Agriculture,
Fisheries, Water and Rural Settlement should withdraw the offer
letters issued to the second to sixth respondents.
(b)
That the first respondent should find alternative land for the second
to sixth respondents.
(c)
That the farm should revert to the first and second appellants.
[9]
The appellants submitted that, despite these findings, the first
respondent has failed to implement the resolutions of the Land
Commission. The offer letters granted to the second to sixth
respondents remain extant and on that basis they remain in occupation
of the farm.
[10]
The second to eighth appellants opposed the appeal on the basis
that they are in occupation of the farm by virtue of offer letters
lawfully issued to them by the first respondent.
DETERMINATION
BY THE COURT A
QUO
[11]
In determining the appellants application the court a
quo
after taking into consideration the provisions of section 16B(3) of
the former Constitution and case law, held that it did not have
jurisdiction to hear and determine an application for the delisting
of land lawfully acquired by the acquiring authority.
[12]
Aggrieved by the decision of the court a
quo
the appellants appealed to this Court on the following grounds of
appeal.
“GROUNDS
OF APPEAL
1.
The question of the constitutional validity of the acquisition of
applicants land having been raised by the application and that
question being at law justiciable, the court a
quo
erred in declining jurisdiction to relate to the matter.
2.
The court a
quo
erred in not holding that the sufficiency of the grounds upon which
its constitutional review jurisdiction can be invoked is in the
contemplation of sections 16A and 16B of the former Constitution a
substantive issue.
3.
The court
a
quo
erred in concluding and doing so in
limine litis,
that agricultural land belonging to indigenous Zimbabweans can be
acquired without compensation under the constitutional programme of
land reform.
4.
The court a
quo
erred in not coming to the conclusion that the potential availability
of the remedy of compensation does not detract from the right of a
subject of the state to seek more appropriate relief and that at any
rate, section 295 of the Constitution of Zimbabwe, 2013 cannot be an
answer to the validity of a process undertaken under the repealed
constitution.
RELIEF
SOUGHT
[13]
TAKE FURTHER
notice that the appellants seek the following relief:
1.
That the appeal is allowed with costs.
2.
That the judgment of the Court a
quo
is set aside and in its place is substituted the following:
'The
point in
limine
on jurisdiction is dismissed with costs.
3.
That the matter is remitted to the High Court for it to be dealt with
on its substance by a different judge.
4.
Alternatively to (3) above:
(1)
That the acquisition by the state of subdivision J and K of Mnyami
Farm Gweru is declared invalid and is hereby set aside.
(2)
That the offer letters or any other such tenancy documents issued to
the second to eighth respondents are declared invalid and set aside.
(3)
The second to eight respondents and all those claiming occupation
through them be and are hereby immediately evicted from subdivisions
J and K of Mnyami Farm Gweru.
(4)
That costs of suit shall be borne by the respondents jointly and
severally the one paying the others to be absolved.”
SUBMISSIONS
BEFORE THIS COURT
[14]
Mr
Mpofu,
for the appellants submitted that the provisions of the former
Constitution under sections 16A and 16B did not allow the state to
acquire land owned by indigenous Zimbabweans. He further submitted
that the court a
quo
erred in declining to exercise its jurisdiction as the acquisition of
the appellants farm had not been done in terms of the law.
[15]
He submitted that the ouster of the jurisdiction of the courts by
section 16B of the former Constitution only applied to white
commercial farmers and does not apply to black indigenous farmers.
[16]
In respect of section 295 of the 2013 Constitution he submitted that
the provision for payment of compensation for land and improvements
to indigenous Zimbabweans whose farms were acquired does not mean
that the acquisitions were lawful.
[17]
Ms Shumba,
for the first respondent, in addressing the Court, said that the
first respondent will abide by the decision of the Court.
[18]
Mr Kamwemba,
for the second to the sixth respondents submitted that the appellants
farm was lawfully acquired, and that the second to the sixth
respondents were lawfully issued with offer letters entitling them to
occupy and conduct their farming operations on the farm.
THE
ISSUE
[19]
The only issue which arises for determination in this appeal is
whether or not the court a
quo
erred in declining to exercise its jurisdiction in this matter.
APPLICATION
OF THE LAW TO THE FACTS
[20]
The
law applicable to the issue to be determined is section 16B(3) of the
1980 Constitution as amended by the 17th
Amendment of 2005 (the former Constitution). It provides 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
shall
not apply to a court to challenge the acquisition of the land by the
State, and no court shall entertain any such challenge.”
(Emphasis
added)
[21]
The meaning of this provision is clear. It simply means any person
who has rights and interest in land acquired in terms of section 16B
shall not apply to a court to challenge the acquisition and no court
shall entertain a challenge to the acquisition. To add to the
provision the exception in respect of indigenous Zimbabwean farmers,
as suggested by Mr Mpofu,
would be adding to the provision what the Legislature did not enact.
Courts of law do not add or subtract from the provisions of a
statute. The words “a person having any right or interest in the
land” are of general application to all such persons.
[22]
Section 16B was interpreted in the case of Mike
Campbell (Pvt)
Ltd & Ors v Minister of National Security Responsible for Land,
Land Reform and Resettlement & Anor
2008
(1) ZLR 17 (S) where MALABA JA (as he then was)
at
p43F-G to 44A said:
“By
the clear and unambiguous language of section 16B(3) of the
Constitution the Legislature, in the proper exercise of its powers,
has
ousted the jurisdiction of courts of law from any of the cases in
which a challenge to the acquisition of agricultural land secured in
terms of section 16B(2)(a) of the Constitution could have been
sought. The
right to protection of law for the enforcement of the right to fair
compensation in case of breach by the acquiring authority of the
obligation to pay compensation has not been taken away. The ouster
provision is limited, in effect, to providing protection from
judicial process to the acquisition of agricultural land identified
in a notice published in the Gazette
in terms of section 16B(2)(a). An
acquisition of the land referred to in section 16B(2)(a) would
be a lawful acquisition. By a fundamental law the Legislature has
unquestionably said that such an acquisition shall not be challenged
in any court of law. There cannot be any clearer language by which
the jurisdiction of the courts is excluded.”
[23]
The decision of the court in Campbell
settles the issue before this Court. It confirms, the ouster of the
right of the former owner to approach the courts challenging the
acquisition of his or her land. It further confirms that the
provision ousts the jurisdiction of the courts. It further confirms
that an acquisition in terms of section 16B(2)(a) is a lawful
acquisition.
[24]
Once an acquisition is found to be lawful the provisions of section
16B(3) come into operation barring the former owner from challenging
the acquisition in the courts and the courts from entertaining such a
challenge.
[25]
In the Campbell
case (supra)
at pp16-17, the court went further to observe that:
“It
must be stated at this stage that
the law as embodied in the provisions of section 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 colour of the owners of the pieces of land
acquired. There
was no question of violation of section 23 of the Constitution to be
considered in this case. No more shall be said on the alleged
violation of section 23 of the Constitution.”
This
means, that the issue of the race, of the expropriatee, does not
arise.
[26]
In declining to exercise its jurisdiction the court a
quo
also
referred to section 295 of the 2013 Constitution which provides as
follows:
“(1)
Any indigenous Zimbabwean, whose agricultural land was acquired by
the State before the effective date is entitled to compensation from
the State for the land and any improvements that were on the land
when it was acquired.”
[27]
The legislature is presumed to know the law under which the
expropriation of the indigenous Zimbabweans land took place. It
indicates its awareness of the law under which such acquisitions took
place by making reference to 'before the effective date' after
which it states what the law provides for those who were affected.
The solution provided under section 295(1) is not proffered as an
alternative. It is proffered as the only solution to ameliorate the
loss of the affected indigenous Zimbabweans. If there was more the
legislature would have said so. Counsel for the appellants did not
address us on the existence of the appellants right to approach the
courts challenging the acquisition of their farm nor the relaxation
of the bar barring courts from entertaining such a challenge. It can
therefore not be said that indigenous Zimbabweans whose land was
acquired can challenge the acquisition of their farms before the
courts.
DISPOSITION
[28]
It
is apparent from the above that the court a
quo
did not err when it declined to exercise its jurisdiction over the
appellants application.
[29]
These are the reasons for the order that, the Court, granted on 23
May 2023.
MAVANGIRA
JA:
I agree
CHATUKUTA
JA:
I agree
Atherstone
& Cook,
1st
& 2nd
appellants legal practitioners
Civil
Division of the Attorney General's Office,
1st
respondent's
legal practitioners
Tavenhave
& Machingauta, 2nd
to 6th
respondents legal practitioners
