This
is a purported referral to this Court in terms of section 175(4) of
the Constitution of Zimbabwe…,.
BACKGROUND
FACTS
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 ...
This
is a purported referral to this Court in terms of section 175(4) of
the Constitution of Zimbabwe…,.
BACKGROUND
FACTS
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.
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.
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.
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.
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 the
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.
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 the 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 the respondents, without them being
granted alternative accommodation, is in breach of the Founding
Principles; section 28 of the Constitution of Zimbabwe.
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.
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 (section
28
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).
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 the Gazetted Land
(Consequential
Provisions) Act 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.
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
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….,.
The
applicants had, under the law applicable, lost the right to continue
staying on the farm….,.
The
facts in this case are almost on all fours with the facts in Yoramu
and Others v The State
CC02-16.
The only difference is that while in this case the respondent elected
to sue the applicants for eviction, in Yoramu
and Others v The State
CC02-16,
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.”…,.
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.
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 [Chapter 20:28] 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).”
