GROUNDS OF APPEAL
1. The learned President erred in
not finding that the proceedings before the court were invalid for want of
compliance with the peremptory requirements of section 5(1) of the Land
Acquisition Act [Chapter 20:10].
2. The court a quo erred in not finding that failure to serve the preliminary
notice of intention to acquire the land on the owner of the land or the holder
of any right or interest therein was fatal and invalidated the entire acquisition
process.
3. For the stronger reason, the
learned President erred in holding that there was no requirement for personal
service on the holder of title or interest in the land.
4. The court a quo erred in holding that failure to serve the Surveyor General,
the Registrar of Deeds, the Director of Physical Planning and the appropriate
local authority within a reasonable time of the publication of the preliminary
notice was not fatal because service on these functionaries was merely for
their information.
5. The learned President erred in
not finding that the failure to give the peremptory statutory period within
which to object was not fatal.
6. The court a quo erred in refusing to consider the further preliminary
point that the respondent had approached the court with dirty hands and ought
not to be heard on the basis that the respondent had not been given adequate
prior notice to respond to it or prepare adequately for it, when the factual
premise was an intrinsic part of the pleadings, and, in any event, the
respondent did respond to the same. In any event, any prejudice would have been
remedied by an appropriate order.
7. The learned President erred in
holding that the acquisition was reasonably necessary in the public interest.
8. The learned President erred in
not holding that the acquisition did not comply with section 16 of the
Constitution to the extent that the same has not been undertaken against prompt
and adequate compensation and to the further extent that there has not been a
tender of compensation.
At the hearing of the appeal, the
respondent, in terms of an earlier notice to do so, raised certain objections in limine to the grounds of appeal.
The objections raised were, firstly,
that with reference to ground 6, it was common cause that the issue of 'dirty
hands' was raised by the appellant at the start of his submissions to the court
a quo, towards the end of
the hearing, and, without notice, to the respondent. The court a quo refused to entertain this
submission and did not consider it. Since the appellant did not appeal
against the decision of the court a
quo in terms of section 20(1) of the Administrative Court Act [Chapter
7:01], the appellant had, by conduct, accepted the ruling of the court a quo on that issue and could not
properly raise it before this Court. It was submitted that the raising of
the issue before this Court amounted to an appeal by the back door. The
procedure adopted by the appellant was incompetent and this ground of appeal
should be struck off.
Secondly, grounds 1-5 raised issues
related to non-compliance with the provisions of section 5 of the Land
Acquisition Act [Chapter 20:10] which grounds are not elucidated in terms of
specificity. An omnibus approach had been adopted leaving the respondent
to wonder what was the nature and extent of the alleged non-compliance. It was
submitted that the grounds of appeal, in view of their vagueness, did not
disclose any breach of section 5 of the Land Acquisition Act [Chapter 20:10]
and that the issues raised therein ought to be dismissed.
Counsel for the appellant, in
response, advised the Court that while he had no instructions to abandon the
other grounds of appeal, it was his intention to confine himself to ground
7.
Accordingly, the appeal was argued
solely on the basis of ground 7…..,.
I turn to deal with the sole issue
in this appeal which is whether the acquisition was shown to be reasonably
necessary.
The relevant enactments are section
16 of the Constitution of Zimbabwe and section 7 of the Land Acquisition Act [Chapter
20:10]. The relevant provisions of which are set out hereunder:
Section 16 of the Constitution
“16 Protection from deprivation of
property
(1) Subject to section sixteen A, no property of any
description or interest or right therein shall be compulsorily acquired except
under the authority of a law that -
(a) Requires -
(i)…,.
(ii) In the case of any property,
including land, or any interest or right therein, that the acquisition is reasonably necessary in the interests of
defence, public safety, public order, public morality, public health, town and country planning or the
utilization of that or any other property for a purpose beneficial to the public generally or to any section of the
public; and…,.”
Section 7 of the Land Acquisition
Act [Chapter 20:10] provides:
“7 Application for authorizing or
confirming order where acquisition contested
(1) Where an objection to a proposed
acquisition has been lodged, in terms of subparagraph A of subparagraph (iii)
of paragraph (a) of subsection
(1) of section five, the
acquiring authority shall -
(a) Before any acquisition takes place; or
(b) Not later than thirty days after the coming into force of an
order made in terms of section eight;
apply to the Administrative Court for an order authorizing or confirming the
acquisition, as the case may be.
(2) An application in terms of
subsection (1) shall be accompanied by a statement setting out the purpose of
the acquisition.
(3) The acquiring authority shall
give notice of an application in terms of subsection (1) to the owner of the
land concerned and to every other person on whom the relevant preliminary
notice has been served as soon as is reasonably practicable after the
application has been lodged with the Administrative Court:
(4) The Administrative Court shall
not grant an order referred to in subsection (1) unless it is satisfied -
(a) That the acquisition of the land is
reasonably necessary in the interests of defence, public
safety, public order, public morality, public health, town and country planning or the
utilization of that or any other property
for a purpose beneficial to the public generally or to any section of the
public;…,.”…,.
THE BACKGROUND TO THE DISPUTE
On 12 March 2010, the respondent, in
terms of section 5 of the Land Acquisition Act [Chapter 20:10] gazetted a
preliminary notice of its intention to acquire 'certain piece of land in the
District of Salisbury being The remainder of the Farm Odar, measuring six
hundred and five comma eight zero nine two (605,8092) hectares'. The property
is registered in the name of the appellant and is held under Deed of Transfer
5816/85.
The appellant lodged an objection to
the acquisition in terms of section 5(1(a)(iii) of the Land Acquisition Act [Chapter
20:10]. Thereafter, on 23 April 2010, the respondent gazetted, and served on
the appellant, an acquisition order and proceeded, in compliance with section 7
of the Land Acquisition Act [Chapter 20:10], to apply to the Administrative
Court for an order confirming the acquisition of the property.
In its founding affidavit, the
respondent alleged that the acquisition of the property was reasonably
necessary for its utilization for urban development purposes. It was averred
that currently over 1,500,000 people are residing in the City of Harare which
has a capacity to accommodate only 300,000 people. The overpopulation has
exerted a lot of pressure on the existing infrastructure such that more land
needs to be acquired to sufficiently cater for the needs of the existing
population. He attached to his affidavit a letter dated 5 March 2010 from the
Director of Housing and Community Services, City of Harare, advising that:
“The housing waiting list for the
City of Harare, as at the end of 2009, was 23,000 and 220,000 for
2008. The housing backlog currently stands at 500,000. The City population,
as of 2002 Census, was 1500,000.”
What the respondent
described as a case of “too many citizens chasing very few houses”
has seen a steep increase in rentals and the erection of illegal slums
posing a threat to State security, the economy, the environment and the general
social public.
He averred that civil servants
working in urban areas are among those hard hit by the shortage of
accommodation. This has led the Government to devise housing delivery programs
in order to alleviate the suffering of urban workers. He stated that Government
workers, from the lowest level to senior civil servants, are residing in
substandard accommodation. Accordingly, State land is required to provide
affordable Stands and housing for all categories of urban dwellers.
The provision in the Urban
Councils Act [Chapter 29:15] for the designation by local authorities of pieces
of land for urban acquisition, on a willing seller/buyer basis, was
proving insufficient to cater for the large number of applicants for
accommodation because the owners of the pieces of land adjacent to, and
surrounding, the local authorities had become very speculative and had raised
their prices to levels which the local authorities could not afford, thus
inhibiting the local authorities from expanding their boundaries or developing
peri-urban land.
It is for the above reasons that
land in peri-urban areas is now earmarked for the construction of housing units
to cater for different sectors of the society, and Farm Odar, which is
suitable for both residential and commercial development, has been identified
for urban development by the City of Harare.
The Government, he stated, wished to
acquire some 33,000 hectares of land for urban development to satisfy the need
for both residential and commercial development. He submitted that the
acquisition of the land in question is reasonably necessary for its utilization
for urban development.
The appellant, on the other hand,
contended that it was not necessary to acquire the land for urban expansion
because the appellant had already obtained a permit from the City of Harare to
develop the land. Besides, the land was zoned for industrial purposes and the
appellant operated its business on the acquired land. It was alleged that the
respondent had already allocated the property to the Odar Housing Consortium, a
consortium of public and private companies, who were already occupying the
property illegally. It was alleged that the consortium had instigated the
compulsory acquisition in order to “purchase” the property from the Government
at an amount far less than the real value of the land and so prejudice the
owner in the compensation due to it. It was further alleged that in March 2009,
after protracted efforts to resolve the dispute regarding the property, a
valuation of the property was carried out and a value of some USD29,000=
dollars was placed thereon, which value was disputed by the
respondent. The matter was settled by the Ministry of National Housing and
Social Amenities when it granted the respondent the authority to conclude
negotiations with individual members of the Odar Housing Consortium who were
willing to pay compensation directly to the respondent owner. On the strength
of this authority “at least one” consortium member paid compensation to the
respondent.
It was averred that the compulsory
acquisition of the land pays scant regard to its effect on any third parties
with whom the respondent lawfully negotiated and who will be prejudiced
thereby. It was alleged that the compulsory acquisition was meant simply
to legitimise the illegal occupation of the land by the consortium and that the
Government had not shown due cause or reason for its wish to acquire this
particular property as no regard had been given to its own criteria for
identification of land for compulsory acquisition or the identification of
appropriate beneficiaries. It was not clear how the Government intends to grant
fair compensation in the event of the acquisition succeeding when it is common
cause that, at present, the Government does not have funds to compensate the
owner.
The appellant, further, contended
that the acquisition was not reasonably necessary for urban development since
the property was already being developed and the acquisition of the property
will not extend the boundaries of the urban area under the municipal
jurisdiction of the City of Harare nor would it result in any development which
the appellant would not itself have undertaken. The acquisition was done
in bad faith and was motivated by bias and malice.
In reply, the respondent averred
that from as far back as 2001 it has been the Government's intention to acquire
the property, which was first gazetted for acquisition in 2001 and 2003.
However, due to technical errors in gazetting by the acquiring authority the
acquisition could not be confirmed. He said that while the consortium consisted
of companies like ZESA, CBZ Bank, etc, it was the employees who were in need of
the Stands and selling to the consortium at commercial prices would not assist
the employees because they would be required to pay commercial market rates for
the Stands. On the other hand, when the State purchases the land it bears the
responsibility of compensating the land owner and the housing cooperatives, or,
as in this case, the employees of the companies would enjoy the benefit of
buying the Stands at affordable prices.
It was contended by counsel for the
appellant that the respondent had not discharged the onus which lay on it to
establish that the acquisition of the land was reasonably necessary as evidence
had not been led in that regard and no proof had been given on the criteria
chosen to identify the appellant's farm for the purposes of urban
development. The absence of such proof, and the abundance of prior
attempts to dispossess the appellant of the property, was evidence of bad faith
on the respondent's behalf.
However, counsel for the
respondent submitted that the many attempts, since 2001, to acquire the
property do not exhibit bad faith but constitute evidence of the Government's
long standing desire to acquire the property, their previous attempts having
failed because the wrong procedure was followed.
The necessity of the acquisition, he
submitted, has been clearly established on the affidavits. While the
consortium comprises of a number of companies, it is the workers of these
companies, 6,000 of them, whom it is sought to accommodate on the property and
who form part of the members of the public for whom the Government is under a
duty to provide accommodation. The need for land for residential Stands is
critical. The acquisition is meant to address a social problem and the
beneficiaries are evident. The appellant's housing plans are unsuitable by
reason of their unaffordability to those intended to benefit from the
acquisition.
In terms of section 7(4) of the Land
Acquisition Act [Chapter 20:10], the Administrative Court could only grant an
order confirming the acquisition if it was satisfied that the acquisition was
reasonably necessary for, in this case, town and country planning.
It seems to me that in considering
the necessity, or otherwise, of an acquisition of property, the rights of the
individual need to be balanced against the public interest. On the appellant's
evidence, only one purchaser had paid for a parcel of the land. This fact would
appear to support the respondent's averments that the Stands are unaffordable
to the people for whose benefit the acquisition is being done.
Indeed, the court a quo considered the submissions
placed before it and concluded:
“As the Odar Farm has been acquired
for town planning and for a purpose beneficial to the public generally there is
no doubt that section 16(1) of the Constitution of Zimbabwe and section 7(4)(a)
of the Land Acquisition Act have been complied with. I have no doubt that
the acquisition is reasonably necessary for urban development.
It must be emphasized that the
Minister referred to the demand for affordable housing. Government is
obliged to cater for the needs of all its citizens, both the rich and the
poor. This, in my view, is precisely where the respondent misses the
point. Respondent may be able to build houses and sell them at a
profit. But how many people will be able to afford buying those houses
which respondent will sell at a profit? Not many, I think. On the other
hand, many people earning very modest wages and salaries will be enabled to
qualify to buy houses or build their own homes on land acquired by Government
with a motive to provide affordable housing not to make profit.
Respondent submitted that applicant
is obliged to show that the acquisition of this particular piece of land was
reasonably necessary. But it was submitted, for the applicant, that the
State is in the process of acquiring three hundred and thirty thousand hectares
of land for the expansion of Harare. Farm Odar, measuring slightly over
six hundred and five hectares, is only one of many farms which the State is
acquiring for the expansion of Harare. The particularity of this piece of
land is therefore misplaced.”
It is for the Administrative Court
to be satisfied that the acquisition is reasonably necessary for the purposes
stated in the application. Once the acquiring authority has established, to the
satisfaction of that Court, that the acquisition is necessary for the purposes
stated in the Land Acquisition Act [Chapter 20:10] and the Court has confirmed
the acquisition, an appeal court can only interfere with the court's decision
if it can be shown that the court misdirected itself in arriving at the
conclusion that it did. No misdirection by the court a quo has been alleged or
established and I can find no fault with its reasoning. There is therefore no
basis for interfering with the judgment appealed against.
The appeal is accordingly dismissed with costs. 