GARWE
JA: In submissions before this Court the first respondent has
conceded that the court a quo misdirected itself in failing to address
the only issue referred to it for determination. That question was
whether the appellant was entitled to the occupation of subdivision 2 of
Frogmore Estate, Mvurwi, on the basis of the offer letter issued to him by the
acquiring authority on 24 November 2006.
At a pre-trial conference held before a judge of the High Court, the parties
agreed that spoliation was no longer an issue and that the sole issue for
determination was whether or not the appellant was entitled to occupation of
the property by virtue of the offer letter issued to him.
During the trial, the appellant's argument was that the property had been
compulsorily acquired and a valid offer letter issued, entitling him to
occupation of the property.
The first respondent's position on the other hand was that there had been no
compulsory acquisition of the property by the State.
The effect of the first respondent's argument was that the document on which
the appellant was relying to justify occupation was invalid in view of the fact
that there had been no compulsory acquisition.
It is clear that the court a quo accepted the claim by the respondent
that there had been no proper acquisition of the property in question. It
is common cause that the property in question had been compulsorily acquired by
the State for settlement for agricultural purposes. The fact that it was
a property subject to a bilateral agreement between the government of Zimbabwe
and a foreign government did not mean that it could not be compulsorily
acquired by the State in terms of the relevant law of compulsory acquisition of
agricultural land for public purposes. As a consequence of this misdirection,
the court found that the appellant had no right to be on the property and by
extension that the appellant had despoiled the first
respondent.
The court a quo was clearly
wrong in coming to the above conclusion, regard being had to the specific
agreement during the pre-trial conference that spoliation was no longer an
issue for determination by the court.
Mr Uriri conceded that the court a quo did not address the issue
placed before it. In the circumstances he suggested that the matter be
remitted to the court a quo for determination of that issue.
Mr Dzvetero, on the other
hand, argued that the court a quo was aware of the sole issue before it
and made a determination on the basis of the facts argued before it by the
parties.
We are inclined to agree with Mr Dzvetero in this regard.
Both parties placed facts before the court on the question whether the
appellant was entitled to occupation.
It is clear from the record of the proceedings that the court erroneously chose
to rely on the submissions by the first respondent. In the circumstances
the matter does not warrant a remittal. This Court is therefore at large
on the issue in view of the misdirection.
It being common cause that the appellant was the holder of a valid offer
letter, it must follow that he was entitled to occupation of the property in
question. In short the court a quo should have answered the
question referred to it in the affirmative.
Accordingly the appeal succeeds with costs.
The judgment of the court a quo
is set aside and substituted with the following:
“The claim is dismissed with costs.”
MALABA DCJ:
I agree
GUVAVA JA:
I agree
Antonio & Dzvetero, appellant's legal practitioners
Wintertons, 1st respondent's legal practitioners
Attorney-General's Office, 2nd respondent's legal
practitioners
