The grounds of appeal, as amended at
the hearing, are as follows:
1. The court erred in failing to
find that the section 5 notice and section 8 order were both null and void and
that in the circumstances no confirmation of the acquisition was competent.
2. The learned Judge erred in
holding that the appellant was not opposing the application on the merits.
The history of the matter is as
follows.
On 16 July 2010, the Minister of Lands
and Rural Resettlement, duly authorized by the President of Zimbabwe to be the
Acquiring Authority in terms of section 2(a) of the Land Acquisition Act [Chapter
20:10], gazetted a preliminary notice of the Government's intention to acquire
certain property known as 'Subdivision E' of Arlington Estate in the district
of Salisbury and measuring 530, 2555 hectares (“the Land”). The land is
registered in the name of the appellant.
In terms of section 5 of the Land
Acquisition Act [Chapter 20:10], the appellant lodged a written objection to
the acquisition. On 11 November 2011, an acquisition order, in terms of section
8 of the Land Acquisition Act [Chapter 20:10], was served on the
appellant. The respondent, as it is required to do in the event of an
objection to the acquisition, applied to the Administrative Court for
confirmation of the acquisition.
The respondent, who deposed to the
founding affidavit in support of the application, averred that the acquisition
of the land was reasonably necessary for its utilization for urban expansion
and urban development purposes. He stated that by reason of rural urban
migration since independence, Harare now has a waiting list of 500,000 people
in need of accommodation. The City of Harare, which has the capacity to
accommodate only 300,000 people, is now over-populated, with the total number
of residents surpassing 2,000,000. This overpopulation has exerted
pressure on the existing infrastructure making it necessary for more land to be
acquired to sufficiently cater for the existing population.
He attached to his affidavit a
letter from the Director of Housing and Community Services of the City of
Harare dated 5 December 2011 which stated:
“Please be advised that basing on
the 2002 Census results, it is estimated that the current population of Greater
Harare now exceeds 2 million people. At the same time, demand for housing
is growing, therefore it is estimated that there are more than 500,000 home
seekers in Harare.”
He said that the acute shortage of
accommodation has seen a steep increase in rentals and the erection of illegal
slums, posing a threat to State security, the economy, environment and the
general social public. Civil servants working in urban areas were also
hard hit by the serious shortage of accommodation. Government workers,
from the lowest level to senior civil servants, are residing in sub-standard
accommodation. This has led the Government to come up with Housing Delivery
programs to alleviate the suffering of urban workers.
While the Urban Councils Act [Chapter
29:15] provides for local authorities to designate pieces of land for urban
acquisition on a willing seller basis, this method has not proved sufficient to
provide for the large number of people in need of accommodation by reason of
the fact, among other things, that the owners of the pieces of land adjacent to
and surrounding the local authorities have become speculative in that their
prices have been raised to such high levels as are unaffordable to the local
authorities, who, consequently, were unable to buy the properties to expand
their boundaries or to develop peri-urban land. Accordingly, land in
peri-urban areas has now been earmarked for the construction of housing units
to cater for the different sectors of society. It is the intention of the
Government, he averred, to acquire some 33,000 hectares of land for urban
expansion an urban development to satisfy the need for both residential and
commercial development. It is in keeping with this intention, and the need to
meet the demand for affordable housing, that the land has been acquired by the
State. It has been identified for urban expansion and urban development for the
City of Harare and it is suitable for both residential and commercial
development.
The appellant gave notice to the
court and to the respondent that the application for confirmation was opposed
by the appellant on the following grounds:
1. That the application was fatally
flawed in that a prior section 5 notice of intention to acquire the land (“the
2003 notice”) was issued on the 12th of September 2003, and not having been
withdrawn, is still current.
2. Pursuant to that section 5
notice, a section 8 Acquisition Order (“the 2004 order”) was made on 24
September 2004. In the circumstances, the land has already been acquired and it
is not possible for new section 5 and section 8 Acquisition Orders to be issued
before these two notices have been disposed of or withdrawn.
3. An application for confirmation
of the earlier acquisition was still pending before the Administrative Court.
4. In respect of the earlier section
5 notice, it was stated that the intention was to acquire the land for urban
development but when the section 7 application to the Administrative Court was
lodged it was stated that the intention was to acquire the land for
agricultural resettlement. In the circumstances, it was denied that the
acquiring authority intends to acquire the land for urban development.
5. It was denied that the land is
reasonably required or suitable for the purposes of urban development and the
respondent was put to the proof thereof.
The appellant filed no opposing
affidavit.
The respondent, in its written
submissions to the court a quo
filed on or about the 12 March 2012 (the actual date is not clear), took the
point that since the appellant had filed no opposing affidavit, the factual
averments in the respondent's founding affidavit had not been controverted and
that, accordingly, the application being unopposed, the acquisition of the
appellant's property was shown to be reasonably necessary for urban
development.
In its written submissions in reply,
the appellant merely repeated the averments set out above. It added that the
respondent must either prosecute the earlier application pending before the
court or withdraw the same. It submitted that the instant application was
defective both in form and on the merits and ought therefore to be dismissed.
Subsequently, the first application
for confirmation of the earlier acquisition pending before the court was
withdrawn by the respondent and costs tendered.
On 4 April 2012, the matter was
argued before the court a quo which
granted an order confirming the acquisition.
The appellant contended before us
that both the section 5 notice and the section 8 order (issued 2010) are null
and void. The reasoning was that the 2003 notice and the 2004 order were extant
at the time the section 5 notice (of 2010) was issued. That being so, it
is “impermissible”, by virtue of sections 5(4), 5(7), 5(9) and 7(6) of the Land
Acquisition Act [Chapter 20:10], to issue a fresh section 5 notice. In the
premises, so it was argued, the second section 5 notice and all subsequent
documents based thereon are null and void as the withdrawal of the application
did not have the effect of withdrawing the 2003 notice.
Section 5 of the Land Acquisition
Act [Chapter 20:10] provides, in relevant part:
“(4) A preliminary notice or a
notice in terms of subsection (3) shall remain in force for a period of ten
years from the date of publication of the notice in the Gazette:
Provided that any period during
which an application to the Administrative Court, in terms of section seven, or any action in any other
court in relation to the acquisition of the land in question, is pending or un-determined
shall not be counted as part of the period of ten years referred to in this
subsection.
(7) An acquiring authority may, at
any time -
(a) Withdraw a preliminary notice, by publishing notice of its
withdrawal in the Gazette and
serving notice of its withdrawal on every person on whom the preliminary notice
was served;
(b) Withdraw a notice in terms of subsection (3), by serving
written notice of its withdrawal on every person on whom the first-mentioned
notice was served.
(9) The fact that a preliminary
notice -
(a) Or a notice in terms of subsection (3) has lapsed -
(i) Before the substitution of
subsection (4) by the Land Acquisition Amendment Act, 2000, or the Land
Acquisition Amendment Act, 2001; or
(ii) In terms of subsection (4);
shall not prevent the acquiring authority from issuing a fresh notice in terms
of subsection (1) or (3), as the case may be, in respect of the same land after
a period of one year from the date when such notice lapsed or, if so agreed by
the acquiring authority and the owner of the land concerned, at any earlier
time; or
(b) Or a notice in terms of subsection (3) has been withdrawn in
terms of subsection (7), whether before, on or after the date of commencement
of the Land Acquisition Amendment Act, 2000, or the Land Acquisition Amendment
Act, 2001, shall not prevent the acquiring authority from issuing a fresh
notice in terms of subsection (1) or (3), as the case may be, in respect of the
same land; and s7(6).
The failure, for any reason
whatsoever, to determine an application in terms of this section or the refusal
by the Administrative Court to grant an order in terms of this section
authorising or confirming the acquisition of any land, whether before, on, or
after, the date of commencement of the Land Acquisition Amendment Act, 2000, or
the Land Acquisition Amendment Act, 2001, shall -
(a) Not affect the validity of a preliminary notice issued in
respect of that land if the notice is still in force in terms of subsection (4)
of section five, nor prevent
the acquiring authority from making a fresh application in respect of that land
in terms of section seven;
(b) Where the preliminary notice has lapsed, not prevent the
acquiring authority from issuing a fresh preliminary notice in terms of section
five and subsequently
acquiring that land in terms of this Act:
Provided that the acquiring authority
shall not be entitled to acquire the same land on the same grounds as those on
which the Administrative Court had refused the original application.”
It will be seen that these statutory
provisions relate to the life of a preliminary notice and the withdrawal or
lapsing thereof as well as the consequences of a refusal by the Administrative
Court to confirm an acquisition. The provisions undoubtedly relate to a
valid preliminary notice. As will be seen below the preliminary notice of 2003
was invalid. It was void. There was no need to withdraw it before issuing
the notice of 2010.
It was submitted, by counsel for the
respondent, that the wrong procedure had been followed in acquiring the land in
2003 because the procedure for the acquisition of rural land had been
followed. The affidavit filed by the Minister in the application for
confirmation withdrawn by the respondent states clearly that the purpose of the
acquisition is for rural resettlement. Since the appellant' s farm is
undisputedly urban land, the procedure applied earlier to acquire the land
being applicable to rural land only, was void ab initio. It was for this reason that the respondent had
withdrawn the earlier application for confirmation.
Further, since the 2003 notice,
published on the 19 September 2003, was void ab initio, there was no section 5 notice pending at the time of
issue of the second notice which notice is therefore valid as is the section 8
acquisition order. Accordingly, the application was properly upheld by
the court a quo.
I agree with counsel for the
respondent's submissions.
The appellant has produced no
evidence in support of its allegation that the 2003 notice related to the
acquisition of urban land. The affidavit sworn by the then Minister in
support of the application for confirmation of the purported acquisition avers
that the land is agricultural land required for rural resettlement. It was
clearly sought to be acquired as rural land. Since the land is urban land,
it follows that the wrong procedure, being that for the acquisition of rural
land, was followed in the purported acquisition in 2003. The result is that the
purported acquisition of the land, based on the 2003 notice, was void and of no
effect whatsoever to the extent that there was no section 5 notice extant in
respect of the land at the time of the issue of the section 5 notice in 2010.
Accordingly, that section 5 notice,
as well as the section 8 order following it, are both valid….,.
It follows from the above that the
appeal is devoid of merit.
It is hereby dismissed with costs. 