The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature. Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10. In that case the learned CHIEF JUSTICE had this to say...,:

"On the other hand, section 3 of the of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] criminalizes the continued occupation of acquired land by the owners or occupiers of land acquired in terms of section 16B of the Constitution beyond the prescribed period. The Act is very explicit that failure to vacate the acquired land by the previous owner after the prescribed period is a criminal offence. It is quite clear from the language of section 3 of the Act that the individual applicants as former owners or occupiers of the acquired land have no legal rights of any description in respect of the acquired land once the prescribed period has expired.

...,.The holders of offer letters, permits or land settlement leases, have the right of occupation and should be assisted by the courts, the police and other public officials to assert their rights. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits or land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights."

It is not in issue that the farm was acquired by the State. It therefore falls into that category of property referred to as "gazette land".the applicant is in possession of a valid offer letter to occupy and utilize the farm or such portion thereof.the first respondent has not been authorized by means of an offer, a land settlement lease or a permit issued by a competent authority to occupy or utilize the farm.

The first respondent has no leg to stand on. His legal position may be summarized by reference to certain pronouncements by the Supreme Court that:

"On the other hand, section 3 of the of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] criminalizes the continued occupation of acquired land by owners or occupiers of land acquired in terms of section 16B of the Constitution beyond the prescribed period. The Act is very explicit that failure to vacate the acquired land by the previous owner after the prescribed period is a criminal offence. It is quite clear from the Act that the individual applicants as former owners or occupiers of the acquired land have no legal rights of any description in respect of the acquired land once the prescribed period has expired."

And it was further held that:

It is common cause that prior to the acquisition by the Government, the property was known as Lot 3A, Dete Valley 3, Gwayi Conservancy., upon such acquisition by the State, the previous title and ownership of the said land was extinguished.The Government, in its wisdom, subdivided Lot 3A.these subdivisions were offered to three beneficiaries by offer letters.the legal effect of the subdivision is that land known as "Lot 3A, Dete Valley 3, Gwayi Conservancy" no longer exists.

Section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides what is required to be done to evict the applicant from the farm. The provision does not, in my view, relate to the main homestead only. It appears it relates to the entire farm that has been gazetted. Section 3(3) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] reads:

"If a former owner or occupier of Gazetted land who is not lawfully authorised to occupy, hold or use that land does not cease to occupy hold, or use that land after the expiry of the appropriate period referred to in subsection (2)(a) or (b), or, in the case of a former owner or occupier referred to in section 2(b), does not cease to occupy his or her main homestead in contravention of proviso (ii) to section 2(b), he shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

The applicant and the respondent are both beneficiaries of the Land Reform and Resettlement Scheme Model A2 Programme...Because of the historical ownership of the land in question by one former owner, the boundaries of the two farms were not clearly defined at the time of allocation of the land to the two beneficiaries, thereby giving birth to the current land dispute.

Situate on Lugo Ranch is Jijima Lodge...It is now common cause that Jijima Lodge is in fact located on Lugo Ranch. Thus, Mr.Nkomo claims ownership and occupation of the lodge on the basis that it is located on land which has been lawfully allocated to him.

Mr.Nkomo has since taken occupation of the disputed Jijima Lodge...his occupation of the lodge is apparently lawful in that he is occupying immovable property on land lawfully allocated to him by the acquiring authority pursuant to a lawful court order issued by a competent court of competent jurisdiction.

Mr.Masunda's intended reoccupation and use of the lodge does not seem to be lawful on the face of it. I say so because section 3(1) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] prohibits anyone from occupying gazetted land without lawful authority. It provides that:

"Occupation of Gazetted Land Without Lawful Authority

(1) Subject to this section, no person may hold, use or occupy Gazetted land without lawful authority."

Lawful authority is defined in section 2 as-

"1...

(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease;

and "lawfully authorised" shall be construed accordingly."

The purpose of the courts is to do justice according to law and not to facilitate its abrogation. The words of MALABA DCJ in...are germane to this case. In that case the learned Deputy Chief Justice observed that:

"An interim interdict as a remedy for the prohibition of unlawful conduct could not be granted for the protection of the illegal activities of the appellant. In other words, the appellant wanted the court to grant an order stopping the acquiring authority from acting lawfully so that it could continue to commit an offence in carrying on farming activities illegally."

The second respondent submitted that the offer letter was, therefore, a valid defence to spoliation.

It is my considered view that an offer letter cannot be a defence because of the requirements of section 3(5) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]. Section 3(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] precludes any person to hold, occupy, or use Gazetted land without lawful authority. An offer letter is such authority.    

The first applicant is Dodhill (Pvt) Ltd, a company with limited liability duly registered in accordance with the laws of Zimbabwe. The second applicant is the director and shareholder of the first applicant.

The first respondent is the Minister of Lands and Rural Resettlement, cited in his capacity as the acquiring authority and is responsible for the administration and implementation of the Land Acquisition Act [Chapter 20:10] and other allied pieces of legislation currently in force.

The second respondent is Nyasha Chikafu who is, in terms of the Land Acquisition Act [Chapter 20:10], the beneficiary of subdivision 1 of Dodhill in Chegutu District, Mashonaland West Province; which, incidentally, the applicants claim to have legitimate right over.

For purposes of this judgment, I will refer to the property in question as Dodhill Farm.

THE BACKGROUND

From the papers filed of record, coupled with the submissions made by the two legal practitioners representing the applicants and the second respondent, there are conflicting perceptions as regards the current status of Dodhill Farm.

The applicants feel very strongly that annexure '2' confirms their legitimate possession of the property.

Annexure '2' is a court order which was consented to at a time when the other portions of the property were voluntarily conceded to the State for purposes of agricultural resettlement following the formal gazetting of the applicants farm in January of 2005.

The second respondent's position is that following the promulgation of the constitutional amendment number 17/05, Dodhill Farm was properly allocated to her by the first respondent.

I accept the position adopted by the second respondent, that, annexure '2' was overridden by the subsequent promulgation of constitutional amendment number 17/05 which culminated in the introduction of, inter alia, section 16B(2)(a)(i) of the Constitution which conferred the ownership of the farm in question firmly in the hands of the first respondent.

I will therefore proceed on the basis that Dodhill Farm was indeed allocated to the second respondent.

APPLICANTS CASE

The applicants case is predicated upon the mandament van spolie.

Their argument is, that, on the evening of Thursday 5th day of February 2009, the second respondent, without the applicants prior knowledge and consent, summarily entered Dodhill Farm and set up a camp near the main security gate housing the applicants residence, barns, and other buildings. A tent was put up as well as a makeshift shelter. The allegations went further to say, that, the second respondent introduced or brought with her some youth who camped in the premises.

On 20 February 2009, the second respondent summarily, and without the consent of the applicants, commenced ploughing in the applicants fields where tobacco had just been harvested and on which the applicants had intended to plough an onion crop, in conformity, with the applicants programme of rotational cultivation.

The applicants outlined other incidents which amounted to the second respondent's summary occupation of Dodhill Farm.

The applicants sought the services of the police to have the status quo ante restored - but to no avail.

According to the applicants, when the second respondent was confronted, she said she had a right to occupy Dodhill Farm on the strength of her offer letter, a copy of which is marked annexure '3' in the papers filed of record.

THE SECOND RESPONDENT'S CASE

The second respondent's response to the allegations of unlawful dispossession were basically three-pronged, viz;

(i) Lack of urgency in this matter;

(ii) Lack of locus standi on the party of the applicants in bringing this application; and

(iii) In the alternative, a complete denial of the allegations levelled against her by the applicants.

In order for one to effectively deal with the second respondent's two main defences, one must consider whether the allegations by the applicants are true or not. If they are not, the two main defences would fall away.

If the allegations are found to be true, the court must then proceed to deal with those allegations in so far as they impact on the defences of lack of urgency and locus standi on the applicants.

THE ALLEGATIONS BY THE APPLICANTS

In her notice of opposition, the second respondent has emphasized the point that the ownership of Dodhill Farm now vests in the first respondent and the fact that her offer letter authorizes her to stay on the farm in question to carry out agricultural activities.

I wish to re-affirm the accepted legal position, that, in applications for a spoliation order, the question of ownership of the property in issue does not arise. As I will demonstrate later in this judgment, lawfulness to possession of the farm is equally irrelevant.

There are numerous aspects which can be gleaned from the second respondent's notice of opposition which confirm the allegations levelled against her, not only on a balance of probabilities but beyond reasonable doubt.

(i) Firstly, despite her attempt to paint the picture that the applicants consented to her occupation of the farm, the second respondent gives a completely different picture when she states:

“…,. Applicants seem to be complaining, that, I should have sought their permission first before ploughing and that they wanted to plant onions on the land which I ploughed. I am advised, which advise I accept, that, I have the lawful authority to carry out agricultural activities at the farm in the form of an offer letter. Since applicants do not own the farm, there is no reason at all for me to seek their permission to do that which is lawful.

In any event, the applicants have no right whatsoever to continue carrying out agricultural activities at the farm since doing so amounts to a criminal offence. I intend to allow applicants to finish harvesting their crops before I commence to prepare the land…,.”…,.

In my view, the above averments confirm the point made by the applicants, that, the second respondent simply moved onto Dodhill Farm without their consent, because, in her view (of course as advised by her counsel), the applicants have no right to be on the farm.

It is inconceivable, that, given her perception of the law, as advised by her counsel, the second respondent would have sought the consent of the applicants before occupying the disputed property.

Further, in her affidavit, the second respondent confirms, that, there were fights between her own employees and those of the applicants which culminated is some employees being arrested by the police from Chegutu.

If the second respondent had occupied the farm in question by consent there would have been no cause to have such running battles on the farm between the two groups of employees.

All in all, I am satisfied, that, a cursory perusal of the second's respondent's affidavit lends credence to the allegations raised by the applicants. I have absolutely no doubt in my mind, that, the second respondent acted in the manner complained of by the applicants....,.

LOCUS STANDI

The issue of locus standi on the part of the applicants cannot be looked at in a vacuum. It must be looked at in the light of the legal position governing the principle of the mandament van spolie.

THE LEGAL POSITION

There can be no doubt, that, spoliation, as a remedy, has its core value or objective, protection to possession of property against unlawful dispossession.

This is a remedy that has been recognized in our jurisdiction and beyond for over decades.

In dealing with the principles of spoliation, I find the views of HERBSTEIN J quite apposite when the learned judge stated:

“…,. Two allegations must be made and proved, namely;

(a) That applicant was in peaceful and undisturbed possession of the property; and
(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent.”

See Bennet Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230E…,.

In Amler's Precedents of Pleadings, 3rd Edition LTC HARM and JH HUGO, Butterworths…, it is stated:

“Unlawfulness in this context means, a dispossession without plaintiff's consent or due legal process.”

This time honoured principle of our law has been enunciated in a plethora of cases in our jurisdiction and beyond: see, for example; Nino Bonino v De Lange 1906 TS 120…,.; Silo v Naude 1929 AD 21; Mutsotso and Others v Commissioner of Police and Anor 1993 (2) ZLR 329 (H); Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).

In the classic and leading case of Nino Bonino v De Lange 1906 TS 120 INNES CJ…, had this to say:

“It is a fundamental principle, that, no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.”

In Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) REYNOLDS J remarked as follows:

“Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time as a competent court of law assesses the relative merits of the claims of each party….,. The lawfulness or otherwise of the applicants possession of the property does not fall for considerations at all. In fact, the classic generalization is sometime made, that, in respect of spoliation actions…, even a robber or thief is entitled to be restored possession of the stolen property.”…,.

Counsel for the second respondent passionately argued, that, the applicants had no locus standi to bring an application for spoliation.

The main thrust of his argument was, that, because the applicants had exceeded the 45 and 90 day statuary maximum periods which allows them to remain on the farm and the homestead respectively (section 3 of Gazetted Land (Consequential Provisions) Act [Chapter 20:28]), therefore, the applicants must not be protected by this court.

In counsel's view, which borrowed heavily from the position adopted by my learned brother UCHENA J in the case of Andrew Roy Ferrera and Katambora Estates (Pvt) Ltd v Bessie Nhandara HC3995/08, if this court accepted locus standi on the part of the applicants, then, the court would be sanctioning an illegal stay on Dodhill Farm by the applicants since the applicants are occupying that farm in complete violation of the law.

There was also an attempt by the second respondent's counsel to seek to rely on the decision by their Lordships in one of the much celebrated land cases in this country, viz Airfield Investments (Private) Limited v (1) The Minister of Lands, Agricultural and Rural Resettlement; (2) The Minister of Justice, Legal and Parliamentary Affairs; (3) The Member in Charge, Chegutu Police Station; (4) The Attorney General of Zimbabwe; and (5) R Sango SC36-04.

Simplified, the argument, as put forward by the second respondent's counsel, was that because the applicants hands are tainted with their illegal occupation of Dodhill Farm, the court could not entertain them let alone grant them an order that would perpetuate their continued stay on the farm.

The applicants counsel held a different view.

She argued, that, once the applicants possession is established and there is proof of dispossession without reference to due process, the applicants locus standi, is thereby established.

I agree with this position.

The position adopted by the second's respondent's counsel is fraught with so many challenges.

Firstly, his approach would be an attempt to re-define the very basic requirements of a mandament van spolie which is not concerned with the legality or otherwise of the possession itself: see the remarks of REYNOLDS J in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).

I am fully cognisant of other decisions from South Africa which have attempted to shift from the orthodox approach in dealing with spoliation matters.

One such matter is the case of Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250…, where VAN DEN HEEVER J stated as follows:

“Moreover, the rule that goods dispossessed against the will of the possessor must be restored forthwith, is not an absolute one.

The reason for the rule is, according to the authorities, certainly not because the fact of possession is elevated to a right stronger than plenum dominimum, but, to discourage breaches of the peace by self help in the case of disputes.

Despite generalizations that even the thief or robbers entitled to be restored to possession, I know of no instance where our courts, which disapprove of metaphorical grubby hands, have come to the assistance of an applicant who admits that he has no right vis-a-vis the respondent to the possession he seeks to have restored to him.”…,.

Commenting on Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250 and another similarly decided case of Coetzee v Coetzee 1982 (1) SA 933, the learned judge, MAKARAU J, in the recent case of Shiriyekutanga Bus Service v Total Zimbabwe remarked as follows:

“With respect, the weight of authority appears to be against the learned judge. It has not been established as part of our law in any other decided case that an application for spoliation order has to show some reasonable or plausible claim to the property despoiled.

The learned judge seems to suggest, that, the court determining an application for a spoliation order will look into but possession of the applicant: see Coetzee v Coetzee (supra).

I hold a different opinion, and do so with the greatest of respect and due deference to the learned judge.

The decided cases referred to by GUBBAY CJ in Botha and Another v Bennet (supra) are quite clear that the court does not at all look into the juridical nature of the possession claimed.

The doctrine of stare decisis binds me to follow the decision in Botha and Another v Bennet (supra) and Coetzee v Coetzee (supra) HH64-08.”...,.

I entirely associate myself with the position adopted by the learned judge MAKARAU J, that, in an application for spoliation order, an applicant does not have to prove some reasonable or plausible claim to the property, let alone the legality or otherwise of his possession of the property in question.

With extreme due deference to the learned judge UCHENA J, I do not agree with the approach he seems to have adopted in Andrew Roy Ferreira and Katambora Estates (Pvt) Ltd v Bessie Nhandara HC3995/08 when he made a finding, that, because the applicant in that case had defiantly continued to be on the farm in question, therefore, he could not be granted spoliation.

In my view, the learned judge prematurely dealt with the rights of the parties to the farm when, in fact, this was not the issue at stake.

It does seem to me, that, all the learned judge was supposed to consider was whether or not the applicant had been in peaceful and undisturbed possession of the farming land prior to the alleged dispossession and not to consider who was legally supposed to have been in possession of the farming land at the time of the alleged dispossession by the offeree.

In any event, such an approach, in my view, went against the weight of decades of precedent in spoliation matters.

The second challenge which is apparent from the position adopted by the second respondent's counsel is the failure to appreciate, that, by denying the applicants locus standi, the court will be sanctioning and encouraging self-help exercise by those in the position of the second respondent.

In my view, such a position would be tantamount to perpetuating an infraction of the law to the dispossession by the second respondent without following due process of law.

I hold a very strong view, that, it was certainly not the intention of the legislature to give those armed with offer letters, like the second respondent, powers of evicting defiant former farm owners like the applicants.

Such a scenario would create chaos in our farms.

Our courts must be careful not to encourage lawlessness in our farms by subtley condoning, by implication or inference, the conduct of land beneficiaries who believe they have a legitimate right to occupy land which hitherto belonged to those farm owners who choose to stubbornly or defiantly remain on the farm at a time they should have vacated.

It is not a question of weighing who, between the former owner and a beneficiary, has a preferred or a more appealing right. It is simply a question of encouraging due process of law.

This is not achieved by giving court orders which give the impression offerees can themselves carry out eviction processes.

The legislature was quite conscious, that, there would be defiant former farm owners who would endeavour to continue with farming operations after the lapse of the 90-day statutory period.

In its wisdom, the legislature created a specific procedure to deal with such errant or defiant farmers. This procedure is well spelt out in the Gazetted Lands (Consequential Provisions) Act: see sections 3-5 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

My brother judge, HUNGWE J, correctly summed up the procedure when he stated:

“There is a specific procedure for eviction in respect of land acquired in terms of the Gazetted Lands (Consequential Provisions) Act [Cap 20:28]. The right to claim eviction is only exercisable by the acquiring authority. That process is not initiated by a beneficiary under the land reform programme or by an officer of the acquiring authority.”

See Pondoro (Pvt) Ltd and Another v Nemakonde and Anor HH18-08.

Consistent views were also echoed by my brother judge, BHUNU J, when he stated:

“Although the applicant is entitled to occupy the land, he is not entitled to evict the former owner…, because he does not own the land and has not, at any stage, acquired possession.

It is now settled law, that, a lessee who has not acquired vacant possession cannot evict anyone from the property. It is the prerogative of the acquiring authority to evict the first respondent.”

See Zakeyo Mereki v Bell In (Pvt) Ltd and Deputy Sheriff Harare (N.O.).

I note with extreme discomfort, that, the second respondent's counsel has referred to Airfield Investments (Private) Limited v (1) The Minister of Lands, Agricultural and Rural Resettlement; (2) The Minister of Justice, Legal and Parliamentary Affairs; (3) The Member in Charge, Chegutu Police Station; (4) The Attorney General of Zimbabwe; and (5) R Sango SC36-04 as authority for the proposition that the applicants have no locus standi in this case.

With respect, that case has been quoted out of context.

That case is quite distinguishable from the instant case. In that case, the focus was on considering the requirements of an interim interdict as opposed to the instant case which is primarily focused on considering the requirements of a mandament van spolie.

These two principles are quire distinct and cannot be mistaken for each other.

Counsel for the second respondent also argued, that, according to his understanding, section 16B of the Constitution of Zimbabwe, as well as section 3 of the Gazetted Lands (Consequential Provisions) Act have taken away the remedy of spoliation from our common law.

I have painstakingly perused the cited sections. I do not agree with such sentiments.

In the final analysis, I am more than satisfied, that, the applicants have locus standi to bring this action, and, having accepted their allegations against the second respondent, I am inclined to grant the provisional order sought in terms of the papers filed.

Despite the initial animosity, the antagonists..., sat down at a round table conference where they hammered out an agreement in which they agreed that the two new farmers would support the plaintiff's application to Government to be allowed to retain a portion of the land on condition the applicant assisted them in their farming activities.

The agreement which..., signed by the parties reads in part:

“The First and Second parties will support the Company in their endeavours to retain ownership and control of that part of the farm that is outlined..., and will support and protect them and their workers in their endeavours to regain and obtain occupation of their homes on the farm and their ongoing use of the Eastern portion in the confident belief that there is no reasonable necessity for the Company..., to be deprived of its land holding and that the parties by their joint and individual endeavours will be able to secure the approval of this arrangement by the Acquiring Authority...,.”

Following the above agreement, all the parties concerned performed their respective obligations calumniating in a joint submission of a request to the provincial land committee to endorse the terms of the agreement.

Unfortunately for the plaintiff..., the provincial land committee did not accede to the request.

The plaintiff now challenges the legality of the acquisition of the farm prior to..., when the farm was finally acquired in terms of Constitutional Amendment Number 17.

In respect of the legality or otherwise of the acquisition during the period under review, the plaintiff and the third defendant have filed a statement of agreed facts in the following terms:

“1. The parties agree that a preliminary notice was published in the Gazette as General Notice 65 of 2002 on 8 February 2002 for the acquisition of Mount Shannon Estate...,.

2. The parties agree that an acquisition order in respect of Mount Shannon Estate was issued on 29 June 2002.

3. The parties agree that the said acquisition order was served on one Handso Libberreto, an employee of the plaintiff on 29 June 2002 at the farm...,.”

It was argued by counsel for the first and second respondents that upon the acquisition of the farm in question by the State, on 1 February 2008, the applicant ought to have vacated the farm after ninety days of such acquisition in accordance with section 3(2) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. Counsel went further to argue that the defiant attitude of the applicant constituted an act of criminal conduct thereby divesting itself of any right to bring proceedings against the respondents who are now the rightful owners of the land in question as evidenced by the offer letters which they have.

Counsel for the first and second respondents' argument assumed another dimension when he argued that the applicant could not possibly have locus standi to bring this action to court owing to its own illegal occupation of the farm in question. To buttress counsel's argument, reference was made to the celebrated case of Airfield Investments (Pvt) Ltd v (1) The Minister of Lands, Agriculture & Rural Resettlement, (2) The Minister of Justice, Legal & Parliamentary Affairs, (3) The Member in Charge, Chegutu Police Station, (4) The Attorney-General of Zimbabwe, (5) R. Sango SC36/04.

In my view, reference to the Airfield Investments (Pvt) Limited case was clearly out of context and was made to cloud issues. That case is distinguishable from the instant case.

In the Airfield Investments (Pvt) Limited case, the court was dealing with an application for an interim interdict, brought by the former farm owner, which sought to prohibit the State from proceeding with the compulsory acquisition of the farm in question for resettlement purposes pending the determination of the constitutionality of certain sections of the Land Acquisition Act [Chapter 20:10], whereas, in the instant case, the applicant is merely seeking a spoliation remedy, having been despoilt of its occupation of the farm through a combination of subtle threats and force, as captured in..., the applicant's founding affidavit.    

I do not read the Airfield Investments (Pvt) Limited case, and a long line of similarly decided cases, to be authority for the proposition that the mandament van spolie remedy has been extinguished from our law.

In fact, it is quite significant that in the Airfield Investments (Pvt) Limited case itself, their Lordships emphasized the need to respect the residual rights of the defiant former farm owner who chooses to remain on the farm at a time he ought to have vacated. In this regard, the learned judge MALABA JA stated as follows –

“At the end of the maximum period of ninety days from the date of service of the order of acquisition, the rights of the former owner, or occupier, cease to exist and, by operation of law, he must leave the land or be evicted by order of court.” ...,.

It is clear that the learned judge was not advocating the use of violence, or force, to force the former farm owner, or occupier, out of the land, as what is reported to have happened in this case.

I hold a very firm view that where an offeree has not acquired vacant possession he cannot take it upon himself to evict the former farm owner from the land. That prerogative is for the acquiring authority. I am fortified in this view by the position adopted by my brother judge HUNGWE J when he summed up the procedure in the following –

The applicant is a farmer who purchased Inogo Ranch in 1990, which was then 1,600 hectares in extent. In 2001, the farm was advertised for acquisition by the Government. In May 2002, he entered into an Agreement with the Government in terms of which he agreed to downsize the ranch, with 1,100 hectares being taken over by the Government for resettlement of A1 farmers. He remained with 500 hectares. The Agreement was reduced to writing and is quoted in extenso infra -

“Ref:LAN 307

Office of the District Administrator

P.O.Box 114

Kwekwe

6 May 2002

Mr.H.G.Grove

Inogo Ranch

P.O.Box 352

Kwekwe

ALLOCATION OF 500 HECTARES: H.G.GROVE: INOGO (IGOGO) KWEKWE

Following the Provisional Governor's visit to Igogo farm of 5 May 2002, you are hereby advised that you have been allocated 500 hectares of land. The remainder is allocated to the new farmers already on the farm. Agritex will visit the farm to assist you identify the land you will retain.

Your co-operation with the new farmers is highly called for to avoid unnecessary conflicts.

Wishing you all the best in the new set up.

District Administrator.”

The applicant averred that he remained in peaceful occupation of the farm from the date of that letter until 2005 when the Lands Officer at Kwekwe brought the second respondent to the farm, while the first respondent was brought in October of the following year.

The applicant was then informed that the 500 hectares that had been allocated to him in terms of the above letter had been acquired and allocated to the two respondents.

The applicant refused to move from the ranch as he believed that the acquiring authority had unfairly treated him, and had discriminated against him in its acquisition of the land, and the re-allocation thereof to the two respondents.

The applicant contended that the acquiring authority had no valid reason for taking away the land from him and re-allocating it to the first respondent, a legal practitioner, who was gainfully employed in his own right, yet the applicant had no other source of livelihood. Farming was all he had done since he purchased the farm in 1990. His conclusion was that the two respondents were allocated with his piece of land because they were blacks and he was white.

The respondents vehemently opposed the application.

They both filed offer letters for the allocation of the same farm. The first respondent was, on 25 October 2006, offered subdivision 2 of Igogo Ranch in Kwekwe District, Midlands Province, for agricultural purposes. He was offered 250 hectares in extent, while the second respondent was offered 200 hectares in extent of Igogo Ranch in Kwekwe District of Midlands Province on 12 October 2005. Their respective offer letters were filed of record. Consequently, both respondents had lawful authority to occupy their respective pieces of land.

Similarly, it seems to me, that the applicant had been given lawful authority by the Sate in terms of the letter dated 6 May 2002, quoted in extenso supra, which, in my view, is a permit as defined in section 2 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. The definition reads -

“Permit, when used as a noun, means a permit issued by the State which entitles any person to occupy and use resettlement land.”

Counsel for the respondent submitted that taking into account the expiration of the notice given to the applicants to vacate the land, in terms of section 3(2)(i) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28], the applicants are in occupation of the land in defiance of the law as they have no lawful authority in terms of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

Section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] criminalizes the occupation of Gazetted land without lawful authority. This includes the occupation of such land by former owners or occupiers.

In terms of subsection (5), a court convicting a person for contravening the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] shall issue an order for that person's eviction from the land.

That is the only provision dealing with the eviction of an occupier of Gazetted land. That is what constitutes due process. What it means is that no one can take it upon themselves to summarily evict any occupier of Gazetted land.

In the present matter, the applicants are currently undergoing trial for violating the Gazetted Land (Consequential Provisions) Act [Chapter 20:28], and it is only upon their eviction that they can be evicted from the land.

In the case of Route Toute BV & Others v Minister of National Security Responsible for Land, Land Reform and Resettlement HH128-09, PATEL J dealt with a similar issue. In that case, the applicants, who had been the registered owners and leaseholders of a farm, claimed the right to continue to own, or occupy, the farm for commercial benefit. They claimed protection against compulsory acquisition on the basis of two bilateral treaties signed between the Governments of Zimbabwe and the Netherlands. After the first respondent had lodged an application for confirmation of the notice to acquire the farm, the applicants were, thereafter, served with eviction notices.

The parties subsequently entered into a settlement not to enforce the eviction notice.

Meanwhile, the third respondent entered the farm on the strength of an offer letter and the eviction notice.

A provisional order was granted following the filing of an urgent application by the applicants. On the return day, PATEL J dealt with a number of issues, one of which was whether the applicants were entitled to remain on the land after they had been served with a notice of eviction. At p7 of the cyclostyled judgment, this is what he had to say -

Prospects of Success on Appeal

I now turn to consider the rights and status of the first respondent under the offer letter issued to him by the second respondent.

Despite the position taken in Top Crop 1976 (Pvt) Ltd v Minister of Lands, Land Reform and Resettlement & Another HH74-09, it seems to me that the preponderance of case authority supports and fortifies the contrary position. An offer letter does not entitle the holder to occupy the land allotted to him before the current occupier has been duly evicted by due process of the law. Consequently, the offeree cannot resort to self-help in order to dispossess or eject the occupier, no matter how intransigent the latter may be in his refusal to vacate the property. The offeree must wait until the State has taken steps to evict the occupier through a court order granted by a court of competent jurisdiction under the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] or otherwise.

The first two respondents were issued with offer letters in respect of subdivision 7 and 10 of The Grove in the District of Goromonzi under the Land Reform and Resettlement Programme (Model A2, Phase 11) scheme respectively. On 25 November, the fifth respondent wrote to both respondents withdrawing both offer letters. He then offered the same pieces of land to the applicant. The parties then got embroiled in land disputes concerning the two pieces of land.

The dispute spilled into the courts with the result that the first and second respondents obtained a provisional order from this court on 19 November 2009 in the following terms -

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms -

(a) That the  respondents, or any person acting on their behalf or for the purpose of furthering the interests of the respondents, be and is hereby ordered to refrain from, in anyway, interfering with the first applicant's possession or occupation of subdivision 7 of Grove Farm in Goromonzi situate in the District of Mashonaland East Province and the second applicant's possession of subdivision 10 of Grove Farm, Goromonzi situate in the District of Mashonaland East and shall be so interdicted and or restrained from any such future interference save as may be authorized by a binding and operational order of a court of competent jurisdiction.

(b) The first, second and third respondents shall pay the costs of suit (if they oppose this application).

INTERIM RELIEF AMENDED

That pending the finalization of this matter the respondents are restrained and interdicted as follows:-

(a) The first respondent be and is hereby interdicted and restrained from forcibly evicting the first applicant from subdivision 2 of Grove Farm, Goromonzi District of Mashonaland East and the second applicant from subdivision 10 of Grove Farm, Goromonzi East;

(b) That the first respondent be and is hereby interdicted from carrying out farm operations on the said subdivisions of Grove farm occupied by the two applicants;

(c) The first, second and third respondents or any other person(s) acting on their behalf be and are hereby interdicted and restrained from doing any acts likely to interfere with the two applicants' peaceful possession and or occupation of the subdivisions on Grove Farm occupied by the applicants in terms of the offer letters dated 1 October, 2008 without due process of the law after a complaint being raised on the acquiring authority; and

(d) The second and third respondents or any police officer acting on behalf of the respondents are hereby interdicted and or restrained from threatening to arrest and detain or arresting and detaining the applicants for carrying out lawful farming activities on the applicants' respective plots on Grove Farm without due process of the law after a complaint has been raised by the acquiring authority.

SERVICE OF THE PROVIOSIONAL ORDER

In this urgent chamber application, the applicant sought a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

1. The provisional order is herein confirmed.

2. The first respondent shall produce to this court the offer letter upon which he relies for his claim to be entitled to occupy any part of Nyamakari Farm in the Burma Valley area of the Mutare District and shall satisfy this court that it has been lawfully secured before he again seeks to secure occupation of any part of that farm.

3. The second respondent is directed forthwith to inform the third and fourth respondents that any appeal against an eviction order issued by a Magistrate's Court consequent upon convicting any person of contravening subsection (3) of section 3 of the Gazetted Land (Consequential Provisions) Act has the automatic effect of suspending the eviction order until that appeal is finally dismissed and the validity of the eviction order has been confirmed.

4. The third respondent shall issue instructions to all members of the Zimbabwe Republic Police which:-

(a) Inform them that an appeal against any eviction order issued by a Magistrate's Court following a conviction of contravening subsection (3) of section 3 of the Gazetted Land (Consequential Provisions) Act has the effect of suspending the order of eviction and entitling the subjects of the eviction order to retain or resume occupation of the land in question until the appeal is finally determined so as to uphold the validity of the eviction order;

(b) Direct them to afford all protection reasonably required by the convicted person and all those using and occupying the farm under his authority to retain and resume the use and occupation of the land in question pending the final outcome of the appeal; and

(c) Direct them that, upon conclusion of the appeal, any eviction is to be effected by the Deputy Sheriff and not by the police save where their support is required by the Deputy Sheriff and that any variation of the terms of the eviction order ordered by the appeal court shall be observed and obeyed.

5. The fourth respondent shall issue instructions to all persons who hold offer letters and to all officials in the Ministry of Lands, Land Reform and Rural Resettlement that:-

(a) An offer letter does not, itself, constitute authority to occupy land or any part of any land referred to in the offer letter if the land in question is already occupied by any third persons, including a former owner, user or occupier of that land unless and until the fourth respondent has secured vacant possession of the land in question either by virtue of an order of Court or third persons from the land in circumstances which are free of all duress.

(b) Consequently, such officials shall not encourage, support or assist the holders of offer letters to take occupation of land referred to in the offer letter unless and until:-

(i) The fourth respondent has secured a final binding eviction against existing occupier that is, free of the consequences of any appeal;

(ii) The eviction of the previous owner, user or occupier has been effected by the Deputy Sheriff.

INTERIM RELIEF HEREBY GRANTED

Pending the finalization of this application and pending the finalization of the Criminal Appeal No. CA 1143/10 filed by the applicant on 18 October against the conviction and sentence imposed upon him by the Provincial Magistrate, Mutare on 15 October 2010 in Case CRB1042/09 for contravening section 3 of the Gazetted Land (Consequential Provisions) Act:-

IT IS ORDERED THAT:-

1. First respondent and all those claiming authority under him are prohibited from occupying Nyamakari Farm, or any part thereof, and, insofar as such persons have already taken occupation of any part of that farm, they shall forthwith vacate that land together with their wives, families and all belongings.

2. Such vacation of Nyamakari shall be effected within 48 hours of the issue of this order failing which they shall be removed by the Deputy Sheriff with such police support as he may require.

3. Applicant is authorized to re-occupy that portion of the farm that he was using and occupying prior to 15 October 2010 and to resume his farming operations thereon.

4. Second, third and fourth respondents are directed to note the terms of this order and to issue all orders and instructions as may be necessary to ensure that first respondent does vacate the farm and that applicant is enabled to resume occupation and use of those parts of the farm that he and the workers employed through applicant are able to resume their occupation of, and farming operations, on the farm.”

The parties presented their arguments in chambers on 8 November 2010. On 3 December 2010 I dismissed the application with costs and indicated that my reasons would follow. These are they.

The applicant was the owner or occupier of Nyamakari Farm, Burma Valley, Mutare District. It is common cause that this farm was subsequently acquired by the State in terms of the Land Acquisition Act [Chapter 20:10]. Consequent upon the applicant's failure to vacate this gazetted land within the prescribed period, he was, on 15 October 2010, arraigned before a magistrate at Mutare charged with contravening section 3 of the Gazetted Land (Consequential Provisions Act [Chapter 20:28]. He was duly convicted as he had no offer letter, permit or lease which constitutes lawful authority to occupy or utilize gazetted land. The sentence imposed included, as required by law, an order for the applicant's eviction from this farm.

On 17 October 2010, the applicant filed a notice of appeal against both conviction and sentence.

The next day, 18 October 2010, the applicant lodged an urgent application, under case number 6722/10, in which he sought confirmation that as the appeal suspends the conviction and sentence of the court “a quo”, he would be entitled, in the interim and pending disposal of the appeal, to occupy the land he was occupying at the time of his conviction.

My brother HLATSHWAYO J handled the matter and I am advised that he dismissed the application on the grounds that an order such as that which was being sought was unnecessary as the natural and proper consequence of noting the appeal would be to suspend the operation of the decision of the trial court. I am informed that the Attorney General had agreed with that position indicating that the State would accordingly seek leave from the trial court to execute the eviction order pending appeal.

The application for such leave is pending in the Magistrates Court.

On 24 October 2010 the applicant returned to the farm. He was met there by the first respondent, his son and half a dozen other persons. The first respondent advised the applicant that he had an offer letter issued in 2006 and that he had come to take occupation of the farm.  It was clear that the first respondent and others would not leave the farm as they took occupation of various parts of the land and buildings.  The applicant says he reported the matter to the police but to no avail.

He then approached this court seeking the relief set out above…,.

The applicant has argued that an offer letter does not give authority to evict a person already in occupation.

Nothing could be further from the truth.

The holder of an offer letter has authority granted by the owner of the land, that is the State, to occupy and utilize the land in question. He has a right and a legitimate interest to access the property. That right is enforceable against any other person who may seek to deprive him of it or frustrate his enjoyment of the same. The holder of an offer letter is perfectly entitled to seek an eviction order against persons who may illegally be in occupation of such property. He may not, however, take the law into his own hands and act without a court order.

In my view, the right to evict illegal occupiers is not limited exclusively to the State or the responsible Minister as the applicant would have us believe; it extends to the beneficiaries as well….,.

One of the grounds of appeal appeared to be centered on the issue whether the offence created under section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] was one that required strict liability.

My view is that the wording of the section is clear – a party must have an offer letter, a lease or a permit issued by the appropriate authority in order to lawfully occupy gazetted land. The provisions of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] do not admit of any other form of authority - actual or implied. This view has since been confirmed by the Supreme Court.

Clearly, the offence is one of strict liability. The provision is clear and straight forward.

The applicant raises a number of purely administrative issues to do with his dealings with the Ministry of Lands officials and his expectations. These are of no legal relevance to the present application or the appeal that he has lodged. On the whole, I did not see any merit in the applicant's assertion that there are substantial prospects of success in his appeal, be it on the merits of the conviction or sentence imposed by the magistrate, or, on those issues that he asked the magistrate to refer to the Constitutional Court.

The Supreme Court, in the case of Commercial Farmers Union and Others vs The Minister of Lands and Rural Resettlement and Others SC31-10, has dealt with virtually all the legal issues pertaining to land in this country. This land mark judgment provides clear direction to this court with regards the interpretation of various land laws and the constitutional issues raised in connection with the land reform programme in Zimbabwe. The constitutional issues raised by the applicant for referral to the Supreme Court are similar to those raised, adjudicated upon and dismissed in the Commercial Farmers Union and Others vs The Minister of Lands and Rural Resettlement and Others SC31-10.

The learned Chief Justice…., summarized the legal position as regards land matters as follows -

“In conclusion, I would summarise the legal position as follows:-

(1) Former owners and/or occupiers whose land has been acquired by the acquiring authority in terms of s16B(2)(a) of the Constitution cannot challenge the legality of such acquisition in a court of law. The jurisdiction of the courts has been ousted by s16B(3)(a) of the Constitution. See also the Mike Campbell case supra.

(2) The Gazetted Lands (Consequential Provisions) Act [Cap 20:28], and in particular s3 of that Act, is constitutional. See Tom Beattie's case supra. Accordingly, all Zimbabweans have a duty to comply with the law as provided for in that Act and prosecutions for contravening the Act are constitutional and therefore lawful.

(3) Every former owner or occupier of acquired or gazetted land who has no lawful authority is legally obliged to cease occupying or using such land upon the expiry of the prescribed period (ninety days after the acquisition). See subsections 3(2)(a) and (b) of the Act and s16 B of the Constitution. By operation of law, former owners or occupiers of acquired land lose all rights to the acquired land upon the expiration of the prescribed period.

(4) A former owner or occupier of acquired land who, without lawful authority, continues occupation of acquired land after the prescribed period commits a criminal offence. If the former owner or occupier continues in occupation in open defiance of the law, no court of law has jurisdiction to authorize the continued use or possession of the acquired land.

(5) Litigants who are acting outside the law, that is, in contravention of s3 of the Act, cannot approach the courts for relief until they have complied with the law. See Associated Newspapers of Zimbabwe Limited vs The Minister of State for Information and Publicity and Others case supra.

(6) A permit, an offer letter and a land resettlement lease are valid legal documents when issued by the acquiring authority in terms of s2 of the Act and s8 of the Land Settlement Act. The holder of such permit, offer letter or land settlement lease has the legal right to occupy and use the land allocated to him or her in terms of the permit, offer letter or land settlement lease.

(7) The Minister may issue land settlement leases in terms of s8 of The Land Settlement Act [Cap 20:01].  In doing so, he is required to comply with other provisions of that Act.

(8) While s3(5) of the Act confers on a criminal court the power to issue an eviction order against a convicted person, it does not take away the Minister's right or the right of the holder of an offer letter, permit or land settlement lease to commence eviction proceedings against a former owner or occupier who refuses to vacate the acquired land. The holder of an offer letter, permit or land settlement lease has a clear right derived from an Act of Parliament, to take occupation of acquired land allocated to him or her in terms of an offer letter, permit or land settlement lease. No doubt, the legislature conferred on the holder of an offer letter, permit or land settlement lease the “locus standi” independent of the Minister, to sue for the eviction of any illegal occupier of land allocated to him or her in terms of the offer letter, permit or land settlement lease.

(9) The holders of offer letters, permits or land settlement leases are not entitled, as a matter of law, to self-help. They should seek to enforce their right to occupation through the courts. Where, therefore, the holder of an offer letter, permit or land settlement lease has resorted to self-help and the former owner or occupier has resisted, both parties are acting outside the law. If either party resorts to violence, the police should intervene to restore law and order.”

I am convinced, therefore, that to grant the applicant the relief he seeks would be tantamount to aiding and abetting an illegality.

It was for these reasons that I dismissed the application with costs.

The applicants are husband and wife. The couple was issued with a joint offer letter on 29 November 2010 in respect of a certain piece of agricultural land known as the whole of Enondo in the District of Seke, Mashonaland East Province measuring approximately 763 hectares in extend. That land was previously held by the first respondent under Deed of Transfer 5199/82.

The second respondent is the resident manager at the farm.

The land has, however, since been lawfully acquired and is now State land. It was gazetted for rural resettlement on 3 of September 2004 in terms of section 16B of the Constitution.

Following receipt of the offer letter, the applicants approached the first two respondents in February this year with a view to take over occupation of the disputed land. Both respondents refused to vacate the land. The applicants then approached the Magistrates' Court on the advice of their erstwhile lawyers seeking an eviction order. The Magistrates Court, quite correctly in my view, declined jurisdiction prompting the applicants to appeal to this Court for an order compelling the Magistrate's Court to hear and determine the matter. Eventually, they, however, realized the futility of their appeal and withdrew the same.

The date of withdrawal is in dispute. The applicants say that they withdrew their appeal on 28 June whereas the respondents claim that the withdrawal was only done on 29 June 2011.

The applicants then lodged this urgent application seeking the same relief as they had previously sought in the Magistrates' Court.

The first two respondents initially challenged the application on two preliminary issues.

Firstly, that the matter is pending on appeal in this Court.

Upon being shown the Notice of Withdrawal that was properly served on the respondents' erstwhile lawyers counsel altered her position to argue that the applicants' papers were not in order because they filed their papers in this Court a day before withdrawal.

Previously the applicants were represented by legal practitioners at the Magistrates' Court but were self-actors when they approached this Court. I am of the firm view that Rule 4C was crafted to avoid slavish adherence to the Rules or procedure in order to do simple justice between litigants particularly where one party is unrepresented. The Rule provides that:

“4C Departure from rules and directions as to procedure

The Court or judge may, in relation to any particular case before it or him, as the case may be -

(a) Direct, authorize or condone a departure from any provision of these rules including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice.

(b) Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him, as the case may be, to be just and expedient.”

Undoubtedly this is a proper case for the Court to extent its indulgence and hold that regardless of the time of withdrawal there was substantial compliance with the Rules and procedure. Any defects in this respect, real or imaginary, are accordingly condoned….,.

I now turn to determine the matter on the merits by giving a brief ventilation of the applicable law. Thereafter, I shall apply the law to the facts of this case.

Section 16B of the Constitution introduced by Amendment Number 17 of 2005 had the effect of immediately acquiring all gazetted land and vesting its ownership in the acquiring authority. Section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides that once agricultural land is acquired in terms of section 16B of the Constitution, the former owner or occupier shall cease to occupy, hold or use such land within 45 days from the date of notification and is confined to the main dwelling house for a period of 90 days. After 90 days he is required, by operation of law, to vacate the gazetted land altogether - including the main dwelling house. The section criminalizes the occupation of gazetted land without lawful authority, that is to say, an offer letter, permit or lease. It also criminalizes failure to vacate gazetted land in terms of the prescribed time periods.

It is common cause that both the first and second respondents have no authority to occupy the land because they are not in possession of an offer letter, lease or permit authorizing them to occupy the same according to law. The prescribed time limits upon which they are entitled to be on the farm to wind up their business have long expired.

On the contrary, it is not in dispute that that the applicants have a document that purports to be a valid offer letter….,.

Even if both respondents were to succeed in proving that the applicants' offer letter is invalid, that alone cannot authenticate their criminal conduct in continuing to occupy gazetted land without lawful authority in open defiance of the law….,.

The respondents have indicated that the Minister intends to withdraw the applicants' offer letter, downsize the farm and then share it equally between the feuding parties.

That may very well be so, but until such time that the Minister has executed his alleged intentions mere intentions not backed up by valid action cannot validate the respondents' unlawful occupation of any portion of the gazetted land.

It is pertinent to note that the Minister's legal representative…, has clearly stated before me that the Minister is not opposing the relief sought by the applicants. It is therefore ridiculous and a misrepresentation of the facts for the first and second respondents to allege that the Minister is agreeable to their continued unlawful occupation of the disputed land pending the alleged downsizing and reallocation of the land.

The legal position governing the above factual position was articulated and clarified beyond doubt in the recent Supreme Court judgment in Commercial Farmers Union and 9 Others v The Minister of Lands and Rural Resettlement and 6 Others SC31-10. In that case, the learned CHIEF JUSTICE had this to say…,:

“On the other hand, s3 of the Act criminalizes the continued occupation of acquired land by the owners or occupiers of land acquired in terms of s16B of the Constitution beyond the prescribed period. The Act is very explicit that failure to vacate the acquired land by the previous owner after the prescribed period is a criminal offence. It is quite clear from the language of s3 of the Act that the individual applicants as former owners or occupiers of the acquired land have no legal rights of any description in respect of the acquired land once the prescribed period has expired….,.

The holders of the offer letters, permits or land settlement leases have the right of occupation and should be assisted by the courts, the police and other public officials to assert their rights. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position it is the holders of offer letters, permits and land settlement leases and not the former owners or occupiers who should be assisted by public officials in the assertion of their rights.”…,.

Thus, the Court would be failing in its duty if it does not assist the applicants in this respect. In the result, the application can only succeed. It is accordingly ordered:

1. That first and second respondents and all those claiming occupation through them be and are hereby ordered to vacate a certain piece of land in the District of Salisbury known as Enondo B held under Deed of Transfer 5199/82 prior to the Land Reform Program within seven (7) days of the date of this order.

2. That the third respondent be and is hereby ordered to facilitate the occupation of the said farm by the applicants.

3. The Sheriff or his Deputy be and are hereby authorized to eject first and second respondents from the said farm should they fail to comply with the provisions of paragraph one of this order.

4. The Sheriff or his Deputy be and are hereby authorized and directed to call upon the assistance of the Zimbabwe Republic Police should the first and second respondents resist eviction.

Section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] stipulates what a former owner of gazetted land is entitled to while at the same time it lays down what he or she is prohibited to do. The provisions are couched in this manner and are quoted in extenso infra.

“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 paragraph (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 authorized to occupy, hold or use that land;

(b) Referred to in paragraph (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 authorized to occupy, hold or use that land;

Provided that -

(i) the owner or occupier of that land referred to in paragraph (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);

(3) If a former owner or occupier of gazetted land who is not lawfully authorized to occupy, hold or use that land does not cease to occupy, hold or use that land after the expiry of the appropriate period referred to in subsection (2)(a) or (b) or, in the case of a former owner or occupier referred to in section 2(b) does not cease to occupy his or her living quarters in contravention of proviso (ii) to section 2(b), he or she shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period of not exceeding two years or to both such fine and such imprisonment.

(4) Any person, other than a person referred to in subsection (2), who contravenes subsection (1), shall be guilty of an offence and liable to a fine not exceeding level seven or imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

(5) A court which has convicted a person of an offence in terms of subsection (3) or (4) shall issue an order to evict the person convicted from the land to which the offence relates.”

It is common cause that the period of 45 days permitted by the provisions of section 3(2) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]…, expired and so are the 90 days permitted in terms of the proviso thereof.

The applicants should have ceased to occupy, hold or use that particular farm. They also should have ceased to occupy their living quarters. It, therefore, admits of no doubt that they are occupying, holding or using gazetted land unlawfully. They have no legal basis to occupy, hold or use the farm and living quarters. They are, in law, guilty of an offence for which they are liable, on conviction, to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

The applicants contend, however, that they can only be removed from the farm in terms of the law which stipulated that they should be prosecuted, and, on conviction, the court should, in addition to the sentence imposed, issue an order to evict them from the farm and living quarters.

This has not been done yet.

In the case of Airfield Investments (Pvt) Ltd v Minister of Land & Ors 2004 (1) ZLR 511 (S) MALABA J…, had this to say…,-

“Similarly, the court a quo was being asked by the appellant to sanction the continued illegal farming operations and occupation of the living quarters on the land despite the clear and unambiguous language of the Act to the effect that failure to cease occupation or use of the land at the end of forty-five days from the date of service of the order of acquisition and of the living quarters at the end of ninety days from the date of service of the order of acquisition constituted a criminal offence.”

The applicants farming operations are unlawful and so is their occupation of the living quarters. They should not approach the court to sanction their illegal activities on the farm.

It is quite clear that they are resisting to vacate the farm in defiance of the clear provisions of the law.  The authorities should have prosecuted them so that upon conviction an eviction order is issued by the trial court in terms of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

The third respondent is a holder of an offer letter in respect of a portion of the said farm now known as Subdivision 1 of Orange Groove.  She accepted the offer on 17 December 2008. Armed with the offer letter she moved onto the farm. Whilst there she did the following-

(a) She cleared a homestead site 100 metres by 100 metres and constructed a 3 metre security fence right round the homestead;

(b) Constructed workers houses comprising of two rooms under brick galvanized iron sheets and a 1 roomed flat roof house with galvanized iron sheets;

(c) Repaired a borehole and fitted a Lister pump engine and constructed a brick under galvanized iron sheets pump house;

(d) Installed some steel water pipes from the borehole to the homestead measuring 150 metres and installed a 5,000 litre water tank;

(e) Cleared a boundary line of approximately 2.5 kilometres and constructed a perimeter fence measuring 2.5 kilometers using four strand barbed wire with steel posts strainers; and

(f) Fitted a three metre steel gate and employed 10 full time workers and some casual workers.

The third respondent did all this without due process of law.

The applicants should have been prosecuted, convicted and sentenced to sentences the court saw fit plus eviction orders. The third respondent took the law into her hands – a conduct which this court cannot countenance or condone.

Similarly, this court cannot grant an interdict which has the effect of perpetuating the applicants' illegal use, holding or occupation of gazetted land.

In the result I would discharge the provisional order and issue the following order:

It is ordered that:

(1) Until the applicants are lawfully evicted pursuant to an order of a court of competent jurisdiction in terms of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28], the respondents are interdicted from evicting the applicants or from taking occupation of the farm;

(2) The third respondent, or any person occupying the farm through her, be and is hereby evicted and the applicants be restored to their possession thereof until they are evicted through due process of law; and

The procedure in acquiring land, as I understand it, is that after the land has been gazetted it belongs to the State. The sitting owner or occupier is supposed to cease his operations within a total of ninety (90) days after the land has been acquired. Should he fail to vacate the land he should be charged under the Gazetted Land (Consequential Provisions) Act. Upon conviction, the court is obliged to sentence him/her and issue an eviction order.

In the absence of an eviction order by a competent court, the owner/occupier cannot be evicted.

It follows, therefore, that no-one cannot take over the applicant's farm without a court order, as to do so amounts to spoliation and as such is unlawful.

The application succeeds and the following order is made:-

1. That respondents be and are hereby interdicted from taking any steps to evict the Applicant from the property being Highfields Farm in the District of Nyamandlovu being the remaining extent of Dlikosch (hereinafter referred to as “the farm”) save in accordance with an order issued by a court of competent jurisdiction.

2. That applicant and all those who occupy the farm through it are entitled to remain in peaceful and undisturbed possession of the property and further entitled to continue farming operations on the property until they are ordered to cease such occupation and/or operations by a court of competent jurisdiction.

3. That second and third respondents are entitled to remain on the property for the purposes of interviewing or arresting Gary or any such other person they are interested in, and

On the above facts, it is clear that Mr. McNair left the farm on his own accord fearing his arrest and possible prosecution and eviction under section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

This being gazetted land, the parties' position on the farm is determined by what the law allows the acquiring authority and former owner to do on the farm after the acquisition – Ferrera & Anor v Nhandara HC3995/08. Section 3(1) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides that -

“Subject to this section, no person may hold, use or occupy, gazetted land without lawful authority.”

In terms of section 2 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] “lawful authority” means –

(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease.”

It is common cause that the first respondent (and by extension his principal, Mr. McNair) does not occupy the land in question by lawful authority, but by defiance of the law and the acquiring authority. In the circumstances, Mr. McNair, through that defiance, would be entitled to be evicted from the homestead by due process of the law. The acquiring authority is entitled to use the farm as it pleases as long as it does not interfere with the former owner's living quarters (homestead). The former owner has no locus standi to challenge the acquiring authority's invitee's (i.e. applicant's) use and occupation of the farmland as long as it does not interfere with the living quarters – see also Airfield Investments v Min of Lands, Agriculture & Rural Resettlement & Ors SC36-04.

In casu, the former owner, Mr McNair, removed himself from the living quarters. The applicant then occupied the living quarters. Mr. McNair did not seek to evict the applicant from the living quarters.  Instead, he brought the first respondent into the picture via the letter alluded to above. Mr. McNair had no lawful authority, after its acquisition, to allocate the land to the first respondent. The application for settlement by the first respondent does not give him lawful authority to be on the farm.

He has no lawful authority in terms of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] to be on the farm.

The applicant has established his case and I accordingly order as follows:

(a) That the first respondent and all those claiming through him be and are hereby ordered to forthwith vacate applicant's allocated land known as sub-division R/E of Three Fountains measuring approximately 929 hectares together with his cattle and all his other livestock that may be thereat.

(b) That should the first respondent fail to comply with paragraph (a) above within 48 hours of the service of this order on him, 2nd respondent with or without the aid of the 3rd respondent be and is hereby ordered to proceed to applicant's farm and thereat drive out 1st respondent, his workers and his livestock therefrom.

(c) That 1st respondent be and is hereby barred and interdicted from entering or in any way interfering or disturbing applicant's occupation of his allocated farm stated in paragraph (a) above, unless with the express written consent of the applicant.

(d) That 1st  respondent be and is hereby barred and interdicted from fetching firewood, digging manure or taking anything mentioned in paragraph (a) above except with the express written consent of the applicant.

Under HC2491/08, the applicants obtained against the respondent a provisional order in the following terms:

“Terms of final order sought

That you show cause to this honourable court why a final order should not be made on the following terms:

1. That the applicants and all farm workers under the applicant who reside at the remaining extent of Lot 1 of Lindmill Farm are hereby declared to have exclusive and undisturbed possession and control of the above described farm.

2. That the respondent, in person or his agents or servants or any person whatsoever acting for or through the respondent be and are hereby permanently restrained from interfering with the applicant's crops or vegetable farming or other farming operation being undertaken by applicant's agents or servants on the remaining extent of Lot 1 of Lindmill Farm.

3. That the respondent pays the costs of this application on an attorney and client scale.

Interim relief granted

Pending the final determination of this mater, the applicants are granted the following relief:

1. That the respondent is hereby ordered to immediately surrender back to applicants or applicants' agents and for servants, the farm's foreman residence or lodgings.

2. That the respondent is herein immediately ordered to vacate any portion of the remaining extent of Lot 1 of Lindmill Farm.

3. That the respondent is immediately interdicted from interfering with any or all farming operations of applicants' being undertaken by the applicants or its agents or servants on the remaining extent of Lot 1 of Lindmill Farm.

4. That the respondent be and is hereby ordered to keep the peace with any or all of applicants' agents, servants found at the remaining extent of Lot 1 of Lindmill Farm, and especially that the respondent is herein interdicted from using insults or threats of any kind against any of the applicants' agents or servants found at the above described farm.”

The provisional order was granted by this court on 19 December 2008….,.

This piece of land was offered to the respondent by offer letter dated 16 September 2008. In the offer letter the land is described as follows:

“2. You are offered subdivision whole of Lot 1 of Lindmill in Umzingwane District of Matabeleland South.”

This description sufficiently indicates that the disputed land was offered to the respondent for agricultural purposes.

This, being gazetted land, the parties position on the farms is determined by what the law allows the acquiring authority and former owner to do on the farm after acquisition – Ferrera & Anor v Nhandara HC3995/08 (unreported). Section 3(1) of the Gazetted Land Act provides that –

“Subject to this section, no person may hold, use or occupy, gazetted land without lawful authority.”

In section 2 of the Gazetted Land Act, “lawful authority” is defined as –

“(a) An offer letter;

(b) A permit; or

(c) A land settlement lease.”

The applicants do not hold any of these.

As far as the dwelling homestead is concerned, the applicants, through their defiance, would be entitled to be evicted by due process of the law – section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

The applicants, however, have no locus standi to challenge the acquisition authority's invitee's use and occupation of the farmland as long as it does not interfere with the former owner's living quarters – Airfield Investment v Min of Lands, Agriculture & Rural Settlement & Ors SC36-04.

So I will only confirm the provisional order partially.

In light of the foregoing, the applicants are only entitled to protection in respect of the dwelling house until they are evicted after due process of law. The other prayers sought cannot be confirmed. Accordingly, the provisional order is confirmed in the following terms:

1. That the respondent is hereby ordered not to interfere with applicant's residence or lodgings in Lot 1 of Lindmill Farm.

2. The respondent is ordered to pay costs of this application on the ordinary scale.

In terms of section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] the applicants are now occupying, holding or using gazetted land without lawful authority.

They have now held, occupied or used those pieces of land more than 45 days after the fixed date. They have also remained in occupation of the living quarters for a period in excess of 90 days after their pieces of land had been identified.

However, although they are occupying gazetted land illegally they may not be ejected therefrom without due process of law. In order to evict them, the State needs to take them before the courts for prosecution, if convicted, the courts would issue eviction orders in addition to sentences to be imposed in terms of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. In my view, evicting them without following the procedure laid down in section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] would be improper. In Gordon Charles Spencer and Another v The Minister of Land, Land Reform and Resettlement and Ors HB11-10…,. I had this to say -

“Evicting them without following the procedure laid down in section 3(5) of the Act would, in my view, be improper as the law protects even unlawful possessors. The legislature was alive to this that is why it laid down the procedure to be followed in order to avoid self-help and anarchy. The respondents should not take the law into their own hands as such conduct cannot be countenanced or condoned. This is a well- established principle. When dealing with the principle ROBINSON J in Mutsotso & Ors v Commissioner of Police & Anor 1993 (2) ZLR 329 (H) at 333B to H had this to say about the general principle as stated by INNES CJ in Nino Bonino v de Lange 1906 TS 120 at 122 as follows:

'It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.'

As explained by MILLIN J in De Jager & Ors v Farah & Nestadt 1947 (4) SA 28 (W) at 35, a case where demolition of premises was undertaken without legal process:

'What the court is doing is to insist on the principle that a person in possession of property, however, unlawful his possession may be and however exposed he may be to ejectment proceedings, cannot be interfered with in his possession except by the due process of law, and if he is interfered with the court will restrain such interference pending the taking of action against him for ejectment by those who claim that he is in wrongful possession. The fact that the applicants have no legal right to continue to live in this slum and would have no defence to proceedings for ejectment, does not mean that proceedings for ejectment can be dispensed with, nor does it make any difference to the illegality of the respondent's conduct that the occupation by the applicant carried with it penal consequences.'” …,.

The learned judge went on to explain that in that case the court held that the conduct of the respondents to demolish certain premises, which were dilapidated, verminous and generally unsanitary, without legal process in order to secure the ejectment of the occupiers, they had committed acts of spoliation and they were therefore interdicted from further demolishing those premises.

The applicants in casu are now illegal occupiers of the farm and the living quarters and it admits of no doubt that they would have no defence at all to an action for their ejectment therefrom but that does not mean that the respondents can interfere with their possession without due process of law. The applicants are liable to a fine equal to level seven or to imprisonment for a period not exceeding two years. The penalty is indeed a severe one but it still does not mean the respondents, in particular the third respondent, can just occupy part of the farm thereby despoiling the applicants. The respondents should not take the law into their hands. That is forbidden by law and the court cannot condone that.  ROBINSON J in Mutsotso & Ors v Commissioner of Police & Anor 1993 (2) ZLR 329 (H)…., continued thus -

“As stated by DIEMONT J in Fredericks & Anor v Stellenbosh Divisional Council 1977 (3) SA 113 (C) at 117C.

'This court is not concerned with the nature of the applicants' occupation. What it is concerned with is that the respondent should not take the law into its own hands…,. Such conduct cannot be countenanced or condoned.'”

In the result, I would issue the following order.

It is ordered that:-

1. The applicants shall be entitled to remain on their respective pieces of land until they are lawfully evicted pursuant to an order of a court of competent jurisdiction in terms of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28];

2. Unless the applicants are ejected from the respective farms in terms of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] no new settlers shall be settled on the said farms.

3. In the event that new settlers have already been settled thereon they shall be evicted forthwith until the applicants are lawfully removed therefrom in terms of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]; and

Background

In 2002, the first respondent allocated Subdivision 2 of Denby Farm to the applicant through an offer letter dated 2 June 2002. Thereafter, the applicant took occupation, prepared the land, moulded bricks for farm buildings and purchased equipment in anticipation of commencing farming activities. In 2005, the Provincial Lands Committee held a meeting chaired by the second respondent. The meeting took a decision to consolidate the applicant's farm (Subdivision 2) with the farm allocated to the second respondent (Subdivision 9) and further resolved that the applicant should vacate her farm.

The first respondent's position is that the consolidation in dispute was procedurally effected and that the applicant's offer letter was automatically withdrawn because she had failed to comply with the conditions attaching to the offer of land.

It is common cause that there was no formal communication of the withdrawal to the applicant - even after a written request by her lawyers. The applicant asserts that her right to occupy the farm has not lapsed or been legally terminated and therefore still subsists. She also challenges the legality of the consolidation process as being tainted by bias and corruption, having been influenced by the second respondent for his own benefit. Additionally, she contends that any offer letter or lease issued to the second respondent is not superior to her offer letter and cannot override her right to occupy the farm.

Issues for Determination

At the hearing of this matter, the applicant's counsel did not persist with his point in limine contesting the authority of the deponent to the opposing affidavit. Consequently, the following issues emerged for determination:

(a) Whether the applicant had duly complied with the conditions attaching to her offer letter.

(b) The legality of the process consolidating Subdivisions 2 and 9 of Denby Farm.

(c) Whether the first respondent was entitled or empowered to withdraw the offer letter.

(d) Whether the applicant's offer letter was duly withdrawn or cancelled.

(e) Whether the applicant's right to occupy still subsists and whether it is accordingly recognizable and enforceable….,.

Power to Withdraw Offer Letter

One of the conditions attaching to the applicant's offer letter (and indeed all offer letters issued by the Minister) states that the offer may be cancelled or withdrawn for breach of any of the conditions set out therein. The applicant's position in this regard, as elaborated by her counsel, is that the Minister can only exercise powers stipulated by statute. He cannot withdraw the offer in the absence of an explicit statutory power to that effect.

In principle, where the power to create, grant or do anything is conferred by statute, the administrative authority endowed with that power can only terminate, revoke or undo that thing by or under that or another statute. In any such case, any administrative action entailing the termination or variation of statutory rights that is not expressly or impliedly authorized by statute is ultra vires the enabling statute and consequently unlawful. Powers may be presumed to have been impliedly conferred because they constitute a logical or necessary consequence of powers which have been expressly conferred or because they are ancillary or incidental to those powers. As regards implied powers generally, see BAXTER: Administrative Law (1984) at pp. 404-407.

What arises for determination herein is the existence or otherwise of a statutory basis for the creation and termination of rights granted by offer letters. The standard offer letter in use under the Land Reform and Resettlement Programme (Phase II) states that the offer is made in terms of the Agricultural Land Settlement Act [Chapter 20:01]. However, no specific provision of the Agricultural Land Settlement Act [Chapter 20:01] is cited in this regard.

Turning to the Agricultural Land Settlement Act [Chapter 20:01] itself, Part III of the Agricultural Land Settlement Act [Chapter 20:01] regulates the settlement of agricultural land owned by the State. Section 7 of the Agricultural Land Settlement Act [Chapter 20:01] broadly enables the Minister of Lands to establish schemes or make other provision for, inter alia, the settlement of persons on and the alienation to such persons of agricultural land. In terms of section 8 of the Agricultural Land Settlement Act [Chapter 20:01] and subject to the Agricultural Land Settlement Act [Chapter 20:01], the Minister may, for this purpose, issue leases to applicants in respect of holdings of land. By virtue of section 9 of the Agricultural Land Settlement Act [Chapter 20:01], no such lease may be issued to any applicant until the application has been referred to the Agricultural Land Settlement Board for its consideration and report under section 10 of the Agricultural Land Settlement Act [Chapter 20:01]. Thereafter, section 11 of the Agricultural Land Settlement Act [Chapter 20:01] provides for the issuance of a lease on such terms and conditions as may be fixed by the Minister. Section 17(2) of the Agricultural Land Settlement Act [Chapter 20:01] specifically empowers the Minister to cancel the lease if the lessee fails to comply with any term or condition of his lease.

It is evident from these provisions that the settlement of land under the Agricultural Land Settlement Act [Chapter 20:01] is to be effected through the issuance of leases following investigations and reports by the Agricultural Land Settlement Board. The Agricultural Land Settlement Act [Chapter 20:01] clearly does not contemplate the allocation of land for settlement through offer letters, either on their own or as precursors to formal leases. By the same token, the Agricultural Land Settlement Act [Chapter 20:01] does not entitle the Minister or any other authority to cancel offer letters or to terminate rights conferred thereunder.

The only statutory reference to offer letters is to be found in the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]. The principal object the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is spelt out in its long title, viz. to make certain provisions that are consequential to the enactment of section 16B of the Constitution. That section was introduced by Act No.5 of 2005 (Amendment No.17) and provided for the compulsory acquisition of all gazetted land. More particularly, section 16B(6) of the Constitution envisages an Act of Parliament making it a criminal offence for any person, without lawful authority, to possess or occupy gazetted land or other State land. In keeping with this constitutional injunction, section 3(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] stipulates that no person may hold, use or occupy gazetted land without lawful authority. The term “lawful authority” is defined in section 2(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] to mean an offer letter or permit or land settlement lease, and the phrase “lawfully authorised” is to be construed accordingly, while “offer letter” means a letter issued by the acquiring authority that offers to allocate to the offeree any gazetted land described in that letter. Section 6 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] validates any offer letter issued on or before the fixed date (i.e. the date of commencement of the the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] that is not withdrawn by the acquiring authority.

The object of all of these provisions is quite clear. It is to endow the holder of a valid offer letter with the requisite lawful authority to hold, use and occupy gazetted land and thereby shield him or her from being prosecuted, convicted and evicted under section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]. Beyond this, the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] does not provide for the actual allocation or settlement of gazetted land, whether by offer letter, permit or lease. Nor does it provide for the cancellation or withdrawal of any such offer letter, permit or lease.

I conclude with the third issue, that is, what is the legal import of an offer letter?

An offer letter confers on its holder the authority to occupy and utilize the piece of State land that it refers to. In the Commercial Farmers Union and Ors vs Minister of Lands and Rural Resettlement and Ors SC31-10 case it was stated…, as follows -

“(6) A permit, an offer letter and a land settlement lease are valid legal documents when issued by the acquiring authority in terms of s2 of the Act and s8 of the Land Settlement Act. The holder of such permit, offer letter or land settlement lease has the legal right to occupy and use the land allocated to him or her in terms of the permit, offer letter or land settlement lease.”

It follows, therefore, that the right to occupy and utilize gazetted land vests in the holder of the offer letter, permit or lease. A former owner or occupier who does not hold such offer letter, permit or lease ceases to have any such right at the expiration of the prescribed period. The applicant thus no longer has any right to occupy this property. The applicant must vacate the farm to give vacant possession to the respondent who holds an offer letter in respect of that piece of land. Failure to vacate renders the applicant liable to prosecution, and, upon conviction, to eviction. The respondent and/or the Acquiring Authority may also sue for the eviction of the applicant. In the Commercial Farmers Union and Ors vs Minister of Lands and Rural Resettlement and Ors SC31-10 case it was said…, under subheading 8 that -

“(8) While s3(5) of the Act confers on a criminal court the power to issue an eviction order against a convicted person, it does not take away the Minister's right or the right of the holder of an offer letter, permit or land settlement lease to commence eviction proceedings against a former owner or occupier who refuses to vacate the acquired land. The holder of an offer letter, permit or land settlement lease has a clear right, derived from an Act of Parliament, to take occupation of acquired land allocated to him or her in terms of the offer letter, permit or land settlement lease. No doubt the Legislature conferred on the holder of an offer letter, permit or land settlement lease the “locus standi”, independent of the minister, to sue for the eviction of any illegal occupier of land allocated to him or her in terms of the offer letter, permit or land settlement lease.”

In the same judgment, it was stated that the holder of an offer letter cannot take the law into his or her hands and resort to self-help. He or she has to obtain a court order for the eviction of any illegal occupier who refuses to vacate the land allocated to him or her in terms of an offer letter, permit or lease.

Clearly, the applicant is in defiance of the law by its continued occupation of land it is required to vacate.  Its claim to possession is vitiated by the law. It is liable to prosecution for illegally occupying State land.  Until and unless it has complied with the law its hands are dirty. It cannot approach the courts for relief. In any event, to grant the relief that the applicant seeks would be tantamount to aiding and abetting an illegality.

The background to this land dispute is that on 4 November 2005 the applicant applied for land to continue carrying out his dairy farming on Lyndene Farm. The letter reads in part:

“Dear Sir,

LYNDENE FARM: APPLICATION FOR A LEASE (TO CONTINUE DAIRY FARMING)

I kindly wish to apply for a lease on Lyndene Farm plots so that I can continue and expand my dairy farming.

Property description; LYNDENE FARM OF UMSUNGWE BLOCK, GWERU.

Total Farm Size:            390.9139 Hectares         (below Region 3 of 500 hctrs)

Which consists of the following lots:

Lot 18 Umsungwe block            74.3443 hectares

Lot 19 Umsungwe block            69.5113 hectares

Lot 20 Umsungwe Block            74.3443 hectares

Lot 27 & 26 Umsungwe Block    132.2425 hectares

Lot 29 Umsungwe Block            40.4705 hectares.”

The applicant's application to be allocated the above Lots comprising the whole of Lyndene Farm was partially successful in that on 10^th  November 2006 the acquiring authority issued him with an offer letter authorizing him to farm on subdivisions 18, 27,28 and 29 of Wildebeeste.

The offer letter reads in part:

“Ref: LLRR 704

To: LG Heathcote                                                         Date     10-Nov-06

29-115138N-N-00

Dear Sir/Madam

Re: OFFER OF LAND HOLDING UNDER THE LAND REFORM AND RESETTLEMENT PROGRAMME (MODEL A2 PHASE II).

1. The Minister of State for National Security, Lands, Land Reform and Resettlement in the President's Office has the pleasure in informing you that your application for land under Model A2 Scheme has been successful.

2. You are offered Subdivision Whole ofS/D 18, 27, 28 AND 29 OF WHILDEBEESTE in GWERU District of MIDLANDS PROVINCE for agricultural purposes. The farm is approximately 389.35 in extent.

3. The offer is made in terms of the Agricultural Land Settlement Act [Cap 20:01] whose provisions you are advised to acquaint yourself with. Conditions which go with the offer are attached.”

It is clear that the acquiring authority did not offer Lot 19 of Umsungwe Block to the applicant.

The applicant's averments…, to the effect that Lot 19 of Umsungwe Block was allocated to him in terms of the above offer letter are therefore false and misleading. In fact, the offer letter upon which he relies makes no mention of Lot 19 of Umsungwe Block at all. It appears to me that the applicant is merely attempting to fasten onto a patent error in the description of the size of the land offered to him to claim possession of the whole farm including plots not allocated to him by the acquiring authority.

In any case, the acquiring authority had no right to allocate or offer that piece of land to anyone as at 10 November 2006 because as at that date the land had not been acquired. Thus, even if I were to assume for one moment that the acquiring authority offered that land to the applicant as he claims, the offer would have been a legal nullity and of no force or effect.

The mere fact that the applicant expressly applied for that piece of land and it was not offered to him means that his application to possess or lease the disputed land was consciously rejected by the acquiring authority.

On the contrary, that piece of land was lawfully acquired on 17 December 2010 and validly offered to the first respondent in terms of the offer letter dated 20 December 2010. It reads, in part, as follows:

“Ref: LLRR 704                                                             DATE   20-Dec-

To: MPMATONGO

29-007118AA-A-77

44 MASAWU CLOSE TWINS LAKES PARK

NORTON

Dear Sir/Madam

Re: OFFER OF LAND HOLDING UNDER THE LAND REFORM AND RESETTLEMENT PROGRAMME (MODEL A2 PHASE II).

1. The Minister of State for National Security, Lands, Land Reform and Resettlement in the President's Office has the pleasure in informing you that your application for land under Model A2 Scheme has been successful.

2. You are offered Subdivision WHOLE of REM OF LOT 19 UMSUNGWE BLOCK in GWERUDistrict of MIDLANDS PROVINCE for agricultural purposes. The farm is approximately 69.5113 hectares in extent.

3. The offer is made in terms of the Agricultural Land Settlement Act [Cap 20:01] whose provisions you are advised to acquaint yourself with. Conditions…,.”

Having realized at the hearing that his offer letter does not give him any rights or entitlement over the land in dispute the applicant sought to rely on a certificate of registration authorizing him to carry out dairy farming on Lyndene Farm.The certificate reads:

“DAIRY ACT (CHAPTER 18.08)

CERTIFICATE OF REGISTRATION

Part 1V

Original date of registration: 11/01/1965                       No GWE 042704 /10

THIS IS TO CERTIFY that the premises situated on LYNDENE FARM in the area of GWERU, MIDLANDS PROVINCE have been duly registered by the Dairy Officer as a Farm Dairy in the name of LYNDENE FARM and authority is hereby given to Mr. L. G. HEATHCOTE to use the said premises for this purpose.

This certificate is issued subject to the provisions of the Dairy Act (Chapter 18.08) and the regulations for the time being in force thereunder, shall, as therein provided expire, unless previously cancelled on the 27^th of APRIL 2012.

Dated in Bulawayo this 06^th day of MAY 2010

Issued by Gwezuva K                                        …………………………………

(Regional Dairy Officer)                                             Signed”

It is pertinent to note that the above permit or certificate does not relate to LOT 19 OF UMSUNGWE BLOCK which was offered to the first respondent but to premises on LYNDENE FARM.

In the context of section 27 of the Dairy Act [Chapter 18:08] the word premises is not synonymous with farm or land, it relates only to land used as part and parcel of a building used for the manufacturing, processing or sale of dairy products. Section 2 of the Dairy Act [Chapter 18:08] defines dairy premises as;

“Any premises occupied and used for the production, storage, supply, sale or treatment of dairy produce but does not include premises -

(a) Where, in the course of a business, food is prepared and supplied for immediate consumption on the premises; or

(b) Used as a club, garage, shop or place of amusement or entertainment.”

In the circumstances, the applicant cannot extend the registration certificate to cover the whole farm for the purpose of allocating to himself land that has not been offered to him by the acquiring authority.

Even if I was to assume for one moment that the certificate of registration or permit relates to the land in dispute, that will still not take the applicant's case any further. This is for the simple but good reason that the applicant automatically lost all his rights and entitlement in the land by operation of law - including the right to carry out dairy farming on the land - when it was acquired on 17 December 2010 in terms of section 8(3) of the Land Acquisition Act [Chapter 20:10]. The only residual rights relate to the prescribed time limits in terms of the Land Acquisition Act [Chapter 20:10] to enable the applicant to wind up his business and vacate the acquired land.

In this action, the plaintiff seeks the eviction of the first defendant and all those claiming occupation through him from the immovable property known as subdivision 1 of Reinfield, situate in Makonde, Mashonaland West Province. The plaintiff also claims costs of suit as against the first defendant only.

The plaintiff's declaration is to the following effect.

Reinfield Farm is what is commonly referred to as “gazetted” land. On 17 October 2005, the plaintiff was offered this land by the second defendant. The plaintiff accepted the offer and took occupation of the farm in November 2005. The first defendant, the former owner, however remains in illegal occupation and use of a portion of the farm. The first defendant, according to the plaintiff, has no lawful authority to remain in occupation of the farm. The plaintiff states that he is recently aware of his ability to seek the eviction of the first defendant following a Supreme Court judgment to that effect.

This is an appeal against the decision of a magistrate evicting the appellant and anyone claiming through him from Lot 2 of Kilworth, Zvimba District in Mashonaland West Province. A synthesis of the grounds of appeal is as follows:

(a) That the lower court erred by entertaining an application for eviction when section11(1)(b)(iii) of the Magistrates' Court Act expressly states that ejectment shall be by way of an action.

(b) That the lower court failed to note that the respondent, being a beneficiary to State land, had no right to eject another beneficiary.

(c) That the lower court erred at law by failing to uphold the offer letter given in favour of the respondent could not oust the appellant's official letter of settlement on the land in question.

(d) That the issue was res judicata after the respondent withdrew case no.260/10 in which the High Court, under case no.CIV (A) 423/11, ordered to be heard de novo.

The appeal was opposed on the following grounds:

(a) That the appellant has no legal rights over the land in question in that any rights he may have had prior to acquisition by the State were extinguished.

(b) That the appellant cannot lawfully challenge any acquisition of land done in terms of section 16B(2)(a)(iii) of the Constitution of Zimbabwe.

(c) That in terms of section 3(2) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28], the appellant, as a former occupier of gazetted land, shall cease to occupy it within a certain period.

(d) That by continuing to occupy the land, the appellant is committing a criminal offence in terms of section 3(3) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

(e) That section 11(1)(b)(iii) of the Magistrates' Court Act is inapplicable.

The facts of this matter are common cause. Briefly, they are as follows; 

On 8 May 2006, the District Administrator, Zvimba District issued a letter to the appellant. The letter reads;

“This minute serves to confirm that JERIPHANOS MUGAVIRI, I.D. Number 32-053835227, was officially allocated land at Kilworth II Farm Plot Number 04 under resettlement programme.”

On 27 October 2006, the Government of Zimbabwe acquired a piece of land, being Lot 2 of Kilworth measuring two hundred and seventy four coma zero nine one three zero (274,09130) hectares. Subsequently, on 8 November 2006, the Ministry of Land Reform and Resettlement addressed an offer letter to the respondent under the Model A2 Scheme. The offer letter related to the entire farm area of Lot 2 Kilworth Estate.

The respondent discovered that prior to his occupation of the farm the District Administrator had allowed ten families to settle on a section of Lot 2 Kilworth Estate. The Zvimba District Lands Committee decided to relocate the 10 famers to Sunnyside Central Farm. Nine of those farmers left but the appellant refused to relocate. Effectively, the decision of the Zvimba District Lands Committee amounted to a withdrawal of the original letter and its replacement with a new offer letter in respect of Sunnyside Central Farm.

Frustrated by the appellant's refusal to vacate the farm, the respondent instituted proceedings by way of an application for eviction in the Magistrates' Court. The application was granted. The magistrate, in his ruling, reasoned as follows:

“Whereas the applicant is the holder of the offer letter for Lot 2 Kilworth Estate acquired in terms of section 16B(2)(a)(iii) of the Constitution of Zimbabwe, the respondent has none except an official letter from the District Administrator which is not an offer letter, per se. Respondent has therefore no legal basis to remain at the property…,.”…,.

In my view, the court a quo did not err at all in so reasoning…,.

Despite the numerous grounds of appeal, the sole issue crystalises to; what are the legal consequences of land acquisition by the State on the parties? 

In order to answer this question it is necessary to examine the law as enshrined in the relevant statutes…..,.

The letter issued to the appellant was not issued pursuant to gazette land. It was not issued by the relevant Minister. It does not require the appellant to accept or reject the offer. It was not given in terms of section 8 of the Agricultural Land Resettlement Act [Chapter 20:01]. In short, it is not an offer letter as defined in section 2(1) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. It also does not fit into the definition of a “land resettlement permit” in the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

The appellant, who admits occupying the land during the “land invasion”, was employed by the former white commercial farmer as a builder. He used to occupy what he referred to as a “bungalow” before the farm was gazetted. Consequently, the appellant is a former occupier of gazette land whose rights are prescribed by section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. Section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] states:

“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 –

After hearing and assessing the evidence led in this case, on 27^th of March 2013, I pronounced the following order;-

“Consequently I order as follows:-

1. The defendant and all those claiming occupation or ownership through him of Subdivision 1 of Roslin Farm in Seke District of Mashonaland East Province measuring approximately 390.58 hectares in extent be and are hereby evicted from the said farm on or before 30 May 2013.

2. That the defendant pays costs of suit.”

I did indicate at the time that my detailed reasons would follow. Here they are;-

The plaintiff is the current holder of a valid offer letter entitling him to occupy Subdivision 1 of Roslin in Seke District of Mashonaland East Province. It is not in dispute that this farm was properly acquired by the Government of Zimbabwe for purposes of resettlement. The respondent, being the former owner of this farm, has stubbornly refused to give vacant possession of the farm to the plaintiff.

The basis of the respondent's refusal to pave way for the plaintiff's occupation of the farm is the defendant's averment that he has been advised in some corridors of power that he should stay put on the farm whilst some alleged replanning exercise on the farm takes place. According to the defendant, the much talked about re-planning is meant to accommodate both the plaintiff and the defendant on the farm.

In his testimony in court, the defendant stated that he has remained on the farm in question because the Ministry of Lands, Land Reform and Rural Resettlement officials and the Governor of Mashonaland East Province have asked him to remain on the property and continue with his farming activities.

Mr Paterson went on to state that a Mrs Sakala and other Ministry officials have twice visited the farm for purposes of the aforesaid re-planning after the defendant himself had provided them with transport.

It is quite significant that neither the Ministry officials nor the Governor referred to in the defendant's testimony were called by the defendant himself to testify on his behalf despite it being clear that the onus was on him to justify his continued occupation of the land in the light of the plaintiff's documented entitlement to occupy the same land. The averment by the defendant that the acquiring authority, or the Minister responsible, had blessed his continued occupation of the farm, remained unsubstantiated.

In the absence of the evidence from the Ministry officials, or the Governor, let alone the Minister concerned, one cannot avoid coming to the conclusion that the defendant was merely determined to soil the integrity of the officials in question. The Minister and the Governor's alleged oral and unsubstantiated promises to the defendant cannot be afforded greater weight than the offer of land to the applicant by the offer letter of 13 March 2008. In fact, I find it to be inconceivable that the Minister, through his officials or via the Governor, would have the audacity or guts to vary the applicant's offer letter by word of mouth, or to try and counter the effect of such an offer letter by oral or verbal assurances to the defendant.

I am in total agreement with the plaintiff's counsel…., when he remarked that:-

“It was incumbent upon the defendant to produce before this Honourable court evidence, documentary or otherwise, of the replanning exercise, and to convince this Honourable court as well that the legal effect of such ( if proven) would be to set aside or suspend the rights accruing to the plaintiff as holder of an offer letter.”

The need to protect individuals with offer letters, like the plaintiff, has been emphasised for times without number. Once an individual has been given an offer letter, that letter cannot be unilaterally withdrawn by the acquiring authority. In the case of Langton T. Masunda v Minister of State for National Security, Lands, Land Reform and Resettlement and John Landa Nkomo HB75-05…, where I had to deal with an almost similar argument I remarked as follows -

“The Act does not give the Minister of Lands, Agriculture and Rural Resettlement or the Minister of State for National Security, Lands, Land Reform and Resettlement in the President's office (the then acquiring authority) unilateral powers to withdraw “land offers” from beneficiaries of the Land Reform Programme.

If it were so, it would make almost every citizen of this country who benefitted from the land Reform Programme vulnerable. It would mean, for example, that such beneficiaries (the two respondents inclusive) would wake up one day to find that they have been evicted from their respective pieces of land in complete violation of the audi alteram partem rule.”

It is my conviction that in the instant case if the acquiring authority had intended to revisit the offer of the land to the plaintiff, as alleged by the defendant, such an exercise could not have been clandestinely done without the knowledge and involvement of the plaintiff. If it is true that there was such an exercise, then it was a non-event; it had no legal effect.

In this regard, the Supreme Court could not have put it in any better way when CHIDYAUSIKU CJ, in Commercial Farmers Union and 9 Others v The Minister of Lands and Rural Resettlement and 6 Others SC31-10…, eloquently stated as follows -

“An offer letter issued in terms of the Act is a clear expression by the acquiring authority of the decision as to who should possess or occupy its land and exercise the lights of possession or occupation on it.

The holders of the offer letters, permits or land resettlement leases have the right of occupation and should be assisted by the courts, the police and other public officials to asset their rights. The individual applicants as former owners or occupiers of the acquired land lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of the letters, permits or land resettlement leases. Given this legal position, it is the holder of offer letters, permits and land settlement leases and not the former owners or occupiers who should be assisted by public officials in the assertion of their rights.”

Having said this, it is clear to me that the defendant has been unable to table anything before me that justifies his continued occupation of the land in question, and, consequently, the defendant has no lawful right to continue obstructing the plaintiff, Mr John Hapazari, in his determined smooth occupation of the farm….,.

The parties appeared before a judge for a pre-trial conference whereat it was agreed that the issues for the determination of this court were these:-

“(1) Whether the plaintiff has made out a case for the eviction of the defendants and all those claiming through them from a piece of land known as a Hunting Camp on portion of Woodlands Estate in extent of one hundred hectares situate in the district of Hwange, Matabeleland North Province with improvements thereon comprising Elephant Camp.

(2) Whether the defendants should pay costs of suit on an attorney client scale jointly and severally each paying the other to be absolved.”

In his summary of evidence, the plaintiff stated that he would tell the court that he had been allocated a piece of land known as Hunting Camp on portion of Woodlands Estate in extent of one hundred hectares situate in the district of Hwange, Matabeleland North Province, with improvements thereon comprising Elephant Camp, by the Government of Zimbabwe.

The lease between the plaintiff and the Minister of Lands and Rural Resettlement commenced on the 1^st June 2010 for a period of five years and was due to expire on 31 May 2015. In terms of the lease agreement, the rental due for that period was $5,000= which the plaintiff had paid. The lease was, however, signed by the parties a year later on 15 June 2011.

The plaintiff alleged that the 1^st to 6^th defendants had wrongfully and unlawfully occupied the rented property to his prejudice. He concluded that he had made a good case for eviction of the defendants and all those claiming through them from the said piece of land known as Hunting Camp on a portion of Woodlands Estate in extent of 100 hectares situate in the district of Hwange, Matabeleland North Province with improvements thereon comprising Elephant Camp.

The respondents' position, as outlined in their synopsis of evidence, was as follows:

They alleged that as far back as about 2001, and fairly early in this country's land reform programme, as many as 120 people were allocated what was known as Woodlands Farm in the Victoria Falls area. They were A1 beneficiaries.

They initially formed a loose co-operative which was, however, not registered. They subsequently decided to form a company called Word of Advice (Private) Limited in which all the beneficiaries were shareholders. The company was formed in order to run the commercial aspects of their land which was partly used for residential and other usual communal uses such as the growing of crops and the raising of domestic animals. A significant portion of the farm was reserved for commercial hunting of wild animals. There was also a portion of the farm that was leased out to a company called Wild Horizons which was involved in elephant rides and other activities. The owners of Wild Horizon were eventually allocated their own land elsewhere and moved out of that portion of Woodlands Farm the defendants and other villagers had leased out to them.

The defendants alleged that an incorrect impression was created in the minds of some people within the Ministry of Lands because they then purported to lease out to the plaintiff that portion that the defendants previously leased out to Wild Horizons. They purported to give the plaintiff a lease on 15 June 2011 and accepted payment from him, the sum of US$5,000=, in lease fees. The defendants said they were alarmed by that development.

In their view, what the land officers had purported to do was clearly wrong. The whole of Woodlands Farm had already been allocated to the defendants - including the very portion that the land officers had purported to lease out to the plaintiff.

They went on to state that a meeting of all concerned was held, the Ministry of Lands accepted their error and subsequently confirmed, in writing, that there would be no allocation of any part of Woodlands Farm as it had already been allocated to A1 beneficiaries. Notwithstanding that clear written position, the plaintiff continued to attempt to have the defendants evicted, when he should be addressing any complaint he may have to the allocating authorities who purported to give him a lease, took his money and had then said they would respect the fact that Woodlands Farm had already been allocated to the defendants and others.

The respondents were part of a community of 118 villagers resettled under the A1 Resettlement Model at Woodlands Farm which is 12,000 hectares. The portion of Woodlands Farm purportedly leased to the plaintiff was part of the land allocated to the resettled villagers.

They alleged that the community of resettled villagers had always utilized the Elephant Camp since 2001 and had leased it to a company called Wild Horizons Safaris up to 2007. They then contended that the purported lease of the Elephant Camp to the plaintiff was, therefore, irregular and concluded the plaintiff could not seek to evict them from a piece of land which was utilized by the entire community of resettled villagers. It was, therefore, their view that the plaintiff's refusal to face the facts and his insistence on involving them in unnecessary legal costs must attract an order of costs against him on the attorney and client scale.

The plaintiff did not have any witnesses to call but gave evidence himself. 

His testimony was that he lived in the Mwemba area of Hwange under Chief Hwange and was 60 years old. His working experience was that he had worked for the then Post and Telecommunications as a telephone technician fixing telephones from 22 September 1991 to 2004 – a period 13 years. After parting ways with the Post and Telecommunications he worked at Woodlands Farm for a company called Steelforce Inyathi Safaris which had been granted a lease by the community of resettled villagers in respect of a hunting camp at Woodlands Farm known as Pilimashabe. He worked as a manager. In that capacity, he took care of employees. It was also part of his duty to oversee how professional hunters handled their clients. He claimed to have great experience since he knew that where there was wildlife there should also be sufficient water pumped into such areas. He acquired that experience during the time he was employed at Steelforce as manager of Inyathi Hunters and Woodlands Safaris which both belonged to that same company. He left Steelforce when their period of hunting at Inyathi Safaris terminated.

After leaving employment, he approached the Hwange District Lands Office in 2010 seeking to be allocated land where he could do hunting and game viewing. He saw and spoke to Misheck Marandu, the acting Lands Officer, who advised him that land was available and he should make an application to the Ministry of Lands and Rural Resettlement. He accordingly made a special application for State Land on 14 June 2010. The farm holding applied for was named as Woodlands Estate in the Victoria Falls commercial farming area in the district of Hwange. On 15 June 2011, he signed a lease agreement with the Ministry of Lands and Rural Resettlement and paid the annual rental of $5,035=. The receipt issued to him reflects that he paid for a hunting camp on a portion of Woodlands Estate in Hwange District in Matabeleland North Province. The Agreement of Lease shows the rented piece of land as being 100 hectares with buildings and improvements thereon.

The duration of the lease was for a period of 5 years which, notwithstanding the date of signature thereon, was deemed to have commenced retrospectively on 1 June 2010 until 31 May 2015 unless sooner terminated in the manner provided in the Agreement.

After paying his rental, Misheck Marandu allegedly told him to go to the camp and start clearing the area as there was nobody there. He did as advised. He replaced broken window panes as he started to clear the place with the help of 13 people he had hired. He returned to Misheck Marandu to report that he had started clearing the land and had even replaced window panes. Misheck Marandu suggested that they should go to the camp together so that he would introduce the applicant to his new neighbours – the villagers. They undertook the journey and on arrival at the camp they approached the following village heads; Village Head Josphat Sipuhla, Village Head Mpofu, Village Head Miss Mumba and Village Head Naka Sizinda. He was told that the others were still to come to be introduced to him. They drove to the farmhouse.

The first defendant who is the councilor for the area was in the company of John Siamaka and members of the Zimbabwe National Army while Misheck Marandu and the applicant were accompanied by members of the Zimbabwe Republic Police.

The plaintiff alleged that the soldiers and villagers complained bitterly against Misheck Marandu's allocation of the camp to him without consulting them. The local war veterans also registered their protest leading to the police officers' intervention by wanting to know what was the cause of the heated exchange. It was clear that Misheck Marandu was being accused of allocating the land to the plaintiff illegally without consulting the villagers when in fact that land had already been allocated to the resettled villagers. The argument was so heated that it nearly degenerated into a physical fight between Misheck Marandu and the soldiers. The police officers had to intervene.

The police officers then asked the councillor, the first defendant, what he thought was the way forward. He said he would refer the matter to the Provincial Governor and the parties were to wait for the Provincial Governor's response from the first defendant.

The District Lands Officer, Mr Marandu, summarized the events that took place on 29 June 2011 when he went to introduce Mr Munenekwa to the A1 farmers in a letter addressed to the Chief Lands Officer on 15 August 2011. He confirmed in the letter that he and his client, Mr Munenekwa, were not well received at the farm. The reception was so hostile that it nearly turned into a fist fight. The soldiers who sided with the farmers were more senior rank than the police officers he had enlisted from Victoria Fall Z.R.P. Dispol.

Mr Marandu made the following recommendations in the letter:-

“(a) That the client, Mr Munenekwa, be referred back to Head Office for assistance;

(b) That a provincial support letter be written to support this letter which shows background information;

(c) The client then takes the two letters to Head Office;

(d) I suggest that Head Office be able to write eviction orders which should be addressed to whoever shall be found resisting Ministry's directive.”

I pause to observe that Mr Marandu's recommendations do not seem to have been acted upon by the Chief Lands Officer, Matabeleland North Province. 

They were ignored. 

Instead, in light of what had transpired at the hostile meeting on 29 June 2011, the Provincial Lands Committee convened a meeting on 29 June 2011 at which it was resolved that Woodlands Farm situated in Hwange District was not going to be allocated to any other beneficiaries as it had already been allocated to A1 beneficiaries. This information is contained in exhibit 7, a letter by the Acting Chief Lands Officer dated 23 January 2012, signed by one C. Moyo.

The plaintiff told the court that he had employed some 13 employees and deployed them to work at Elephant Camp, Woodlands Estate to do some renovations. For some reasons unbeknown to him, on a certain date, one Lucky Mwaikonja phoned him reporting that Mr Muzamba, the first defendant, in the company of soldiers, war veterans and all other villagers had told his workers to stop what they were doing and vacate the place. He sought confirmation from his foreman, one Maboys Ndlovu, who confirmed the position and went on to advise that Mr Muzamba had given the workers a document to sign. The document was produced as exhibit 6…., and reads thus:-

“Agreement of vacation in respect of Mr B. Ndlovu:

I, 79138264 B 79, Counsellor E Muzamba, of Ward 1 and 3, Hwange District have agreed with Mr Bafana Ndlovu I.D. No. 79031241 X 79 that he should (vacate) move out of Wild Horizon Camp on this 13^th day of April 2011. The reason being that he had illegally settled on the camp without authority.

Mr Dlovu complied and agreed to do so in front of me and 78 villagers.”

This document was signed by the councillor, Mr E. Muzamba himself, the Chairman of war veterans, Mr B. Sibanda, and Mr B. Ndlovu himself. It was witnessed by four village heads who also appended their signatures and four Board members who likewise appended their signatures….,.

In conclusion, the plaintiff emphasized that the land he was allocated had not been allocated to A1 farmers. He was told that it was vacant.  He complained that he had not been able to utilize his land despite the fact that he had paid the rental of five thousand dollars.

The plaintiff was cross-examined at some length….,.

Under cross-examination, he told the court that he had just applied for land without naming any specific piece of land but the authorities gave him that particular place. He was clearly not being candid with the court. When counsel for the defendants pointed out to him that he was not telling the truth and was referred to page 16 of the bundle of documents, he conceded the point that he had, in fact, applied to lease a particular camp.

It also emerged, under cross-examination, that the plaintiff informed the Chief Lands Officer that he had the support of the local community when the opposite was the case. The local community was strongly opposed to his proposed settlement at that place.

The plaintiff had difficulty in answering questions. For instance, he was asked the following questions:

“Q. You know that Wild Horizon leased the camp from the community?

A. Marandu should answer that question.

Q. Did it not occur to you that you also should have leased the camp from the community?

A. I asked Marandu that question.”

It was established, under cross-examination, that the A1 farmers were not consulted at all about the plaintiff's intended take-over of the camp. The plaintiff failed to give a satisfactory answer on why the suggestions made by Mr Marandu in a letter dated 15 August 2011 were never pursued. Similarly, the plaintiff was unable to give a satisfactory explanation why he never enquired about the feedback from the councillor on his inquiries with the Provincial Governor. At the hostile meeting of 29 June 2011, the councillor, Mr Muzamba, was mandated to approach the Provincial Governor to seek clarification therefrom.

It is not difficult to understand why. An inquiry would have established the fact that following an inquiry by the councillor, the Provincial Lands Committee convened a meeting where it had been resolved that Woodlands Farm situated in Hwange District was not going to be allocated to any other beneficiary as it was already allocated to A1 beneficiaries.

The plaintiff told the court, in cross-examination, that the letter from C. Moyo, the Acting Lands Officer, covered him as well. 

He was clearly being untruthful. 

The councillor was mandated to report to the Provincial Governor about the plaintiff's intended settlement at Woodlands Farm which had already been allocated to the A1 beneficiaries. That is why the letter stated that it was not going to be allocated to any other beneficiary; meaning it was not going to be allocated to any other beneficiary apart from the A1 beneficiaries already allocated….,.

The defendants adduced evidence from Mr Elias Muzamba - the first defendant. 

His evidence was that he resided at Stand Number 58 Woodlands Estate under the land reform program since 13 May 2000. The village where he lived was called Dunhu Village under A1 Model resettlement model. The scheme was meant for 122 homesteads but 118 took occupation during that year. Elias Muzamba told the court that he was a very active member of the community there as he held a number of public offices. He is the Chairman of the Board that runs Woodlands Estate, he is the Chairman of the Intensive Conservation Area and was currently the councillor of the entire Matetsi area and is an alderman.

It was his evidence that all the resettled A1 farmers had offer letters. The farmers occupy the land in the following three categories:-

(1) Fields and homesteads;

(2) Grazing land; and

(3) An area of wildlife – safari and hunting where they have two safari camps.

The grazing area is used by all settlers communally. Livestock grazing area is demarcated from wildlife land where villagers, as a community, did common wildlife management and safari. The wildlife area had two hunting safari camps called Old Elephant Camp and Pilimashaba respectively. They leased out the camp to safari companies and utilized the proceeds realized to fund development projects such as building schools in the area. There was an existing lease agreement between the former owner and Wild Horizon in respect of Elephant Camp at the time the A1 farmers were resettled there. Wild Horizon continued leasing the camp from the villagers from the year 2000. On the night of 8 August 2007, Wild Horizon employees vandalized the camp and deserted it. The matter was reported to the police at Victoria Falls and it is still in the courts. The other area where there was another camp was leased out to Steelforce Inyathi Hunters where Mr Munenekwa once worked. It was called Pilimashaba which was run by Steelforce from 2003 to the beginning of 2005.

Before a camp was leased out to a particular company, the villagers would hold a meeting whereat the terms of the lease agreement would be formulated. The written terms of the lease agreement formed the lease agreement which would be signed by the leasing company as the leasee on the one part and two members of the committee of seven (7) elected by the villagers as the lessor on the other part. He and one Denis Nkomo signed on behalf of the villagers.

Proceeds from the leased company were channelled towards the benefit of all the villagers such as the building of clinics and schools for the community as a whole.

Elias Muzamba told the court that none of the settled villagers stayed within the camp apart from employees of the company running the camp. He himself lived some 7½ to 8 kilometres from the camp. The plaintiff knows Elias Muzamba's homestead as he had been there on many occasions and had had meals there. His Stand is number 58 for which he has a confirmation letter filed of record as exhibit 8.

The witness told the court that to the best of his knowledge, as councillor of that area, there are no persons answering to the names of the third to sixth defendants at Woodlands Farm. They do not exist at all at the farm and are not resident there.

On or about 29 June 2011, Mr Misheck Marandu and Mr Munenekwa approached the community at the resettlement villages for the purpose of introducing Mr Munenekwa as the new tenant at Old Elephant Camp. The settlers did not accept Mr Munenekwa as the new tenant because they perceived the purported lease as irregular as Woodlands Estate had already been allocated to the 118 settled villagers. They further regarded the purported lease as irregular and improper because the District Lands Committee and the Provincial Lands Committee were not involved in the granting of the lease. A stormy debate, between the plaintiff and Misheck Marandu, on the one hand, and the resettled villagers and members of the District Lands Committee, on the other, ensued. At the end of the heated debate it was agreed that Elias Muzamba, the first defendant, as councillor of the area, would take the matter to the Provincial Governor to seek clarification on the lease to Mr Munenekwa.

Elias Muzamba said he went to the District Administrator's office to search for the minutes of a meeting at which the plaintiff was allocated land. The result of his research was that no such meeting took place and there were therefore no minutes.

After he had presented the issue to the Provincial Governor, Mrs Sithokozile Mathuthu, she convened a Provincial Lands Committee meeting on 29 July 2011. The District Administrator and Elias Muzamba attended that meeting which was chaired by the Provincial Governor herself. The Provincial Lands Committee resolved that Woodlands Farm in Hwange District was not going to be allocated to any other beneficiary as it had already been allocated to A1 beneficiaries. Exhibit 7, the letter by C. Moyo the Acting Chief Lands Officer of Matabeleland North Province, refers.

It therefore admits of no doubt that the District Lands Committee did not approve the granting of a lease to Mr Munenekwa of a hunting camp on the portion of Woodlands Estate in extent of 100 hectares situated in the district of Hwange, Matabeleland North Province.

The plaintiff, according to Elias Muzamba, made no effort to go and find out what the Provincial Governor's views were on the matter since it had been agreed at the stormy meeting of 29 June 2011 that the councillor should go and seek clarification. In fact, he had already signed the lease agreement at Harare on 15 June 2011 without the input of both the District and Provincial Committees. The 118 A1 beneficiaries of that land were also not informed and consulted.

A petition signed by the resettled villagers was sent to the Provincial Administrator, Miss L. Dlamini, copied to the Provincial Governor, District Administrator, Chief Lands Officer, the President's Office, PISI and Zimbabwe Republic Police. The resettled farmers stated therein that they were strongly opposed to giving Mr Lemmy Munenekwa the camp which they claimed was part of Woodlands Farm. They implored the Provincial Administrator to advise him to vacate the premises forthwith to avoid direct confrontations with them. The petition, dated 5 April 2014, was filed of record as exhibit 10.

Elias Muzamba and the other resettled farmers held the view that the plaintiff was not properly settled as he had no offer letter or confirmation letter like anyone else. Elias Muzamba alleged that the plaintiff's lease was not proper as it had not been supported by minutes of the Land Committees chaired by the District Administrator instead of Mr Marandu, an individual. Thereafter, the matter would have been forwarded to the provincial level which would forward the matter to the national level with recommendations. The above procedure was not followed in casu.

On 13 April 2011, Elias Muzamba caused the workers of the plaintiff who had been working at the camp sign an agreement to vacate the premises on the grounds that the plaintiff had allegedly settled on the camp without authority.

Under cross-examination, Elias Muzamba denied that he was aware that the plaintiff had been granted the lease before signing it on 15 June 2011. He did not know on 5 April 2011, when the petition was written, that the plaintiff had a lease agreement and he had not been told about it.

I pause to observe that Elias Muzamba would not have known about a lease agreement which had not been reduced to writing. There is no evidence that he had been made aware of it. In any event, the plaintiff was only going to be introduced as the new tenant on 29 June 2011….,.

The defence called the second defendant, Fanisile Nkomo, to testify. He lives at Stand 10 Siphumelela Village as one of the settlers who settled at Woodlands Estate in 2000 with Elias Muzamba. His homestead is approximately 6 to 6½ kilometers from Elephant Camp.

He does not know the third to sixth defendants as they do not live there and were not some of the A1 farmers settled at Woodlands Estate. He would have certainly known them if they had been settled there. The witness associated himself with the evidence of Elias Muzamba in its entirety. He therefore corroborates Elias Muzamba's testimony.

The cross-examination of this witness was brief and he was not shaken at all. He was worth to be believed and his evidence is accepted by this court.

The defendants closed their case after this witness….,.

Mr Misheck Marandu's evidence was that he was employed by the Ministry of Lands as the Chief Lands technician stationed at Hwange covering the whole district. He also acted as a Land Officer.

He told the court that he knew the plaintiff, Mr Munenekwa. He also said that he knew all the defendants as farmers who were settled on Woodlands Estate.

He was clearly mistaken on that point as the 3^rd to the 6^th defendants are non-existent and there are no such persons settled on Woodlands Estate.

The witness told the court that he was the one who came up with the resettlement plan for Hwange and Lupane Districts from inception. The settlers were resettled under the A1 Model on Woodlands Farm in 2001. The beneficiaries practice subsistence agriculture, livestock raising, and collective wildlife farming. It was his evidence that the farm was 12,000 hectares with a carrying capacity of 118 households. Each household had 103.5 hectares of which 100 hectares was for communal grazing, 3 hectares was for their cropping; the half hectare was meant for the homestead. 

Each beneficiary had an offer letter.

The new settlers found infrastructure at the farm which included two safari camps, a farmhouse and a workers cottage. The two camps belonged to Government and the community was not authorized by Government to use the two camps. The community had no right over the two camps. Neither did they have a right to let out the camps as they had no permits in respect of the camps.

I pause to observe that the resettled farmers were not officially made aware that they had no authority to utilize and lease out the camps. The resettled farmers had been utilizing and leasing out the two camps to companies but they did not have authority or a permit from the Government to do so.

The plaintiff, according to the witness, applied for a lease of the camps but not the farmhouse. 

The application has, however, serious limitations in that it does not specify exactly which camp he was applying for. Neither does it show which camp in particular he was given.

Mr Misheck Marandu was cross examined by both legal practitioners.

When cross-examined by counsel for the plaintiff, he told the court that the plaintiff leased Elephant Camp from Government irrespective of the fact that exhibit one – the lease agreement does not specify which camp he was leasing. He went on to contend that although the settled farmers were leasing out the camps they had no legal right to do so. It was his testimony that the new farmers were told at the time they were settled that it was explained to them that all the infrastructure which they found on the farm was State property. They had not right over it. He said, notwithstanding the fact that the District Land Committee and Provincial Land Committee were not involved in the granting of the lease to the plaintiff, there was nothing wrong with the Agreement of Lease granted to the plaintiff. The reason is that such issues do not go through those structures. The plaintiff was correctly granted the lease and had the right to evict anyone from that piece of land. He went further and alleged the new farmers were unlawfully resisting the plaintiff's occupation of the piece of land for which he had a lease.

Under cross-examination by counsel for the respondents, it was pointed out that Old Elephant Camp was sitting on a piece of land 5 hectares in size. Therefore, the 100 hectares reflected in the Agreement of Lease would have to be annexed from the land already allocated to the resettled farmers at Woodlands Farm and leased to the plaintiff. His response was unconvincing and he sought to maintain that what he had done was lawful. When pressed further under what law he had acted, he said he acted in terms of policy of the Ministry of Lands. The court could request for the policy document from the Ministry of Lands if it so wished.

When it was further queried with him that when the new farmers were resettled the District and Provincial Land Committees were involved; why were they not also involved when 100 hectares was being annexed, his answer and explanation were not unconvincing at all. It was put to him that if allocated land was to be taken away, the District and Provincial Land Committees must be involved his response was “It depends.” When pressed further that if 100 hectares of land which had been already allocated was to be taken away, those Committees had to be involved; he said it was not necessary to involve them. 

That is clearly not correct. Such responsibility cannot be left to a single individual. He was clearly not being candid….,.

Mr Misheck Marandu stated, under cross-examination, that he was not aware of any official communication from the Minister of Lands to the settled farmers at Woodlands Farm advising that they did not have any right to utilize or lease out the two camps. He was contradicting what he had said earlier on when he alleged that at the time the farmers were resettled they had been told that all infrastructure on the Estate was State property and the settlers had no right over it.

It is, in fact, common cause that Elephant Camp had been leased out to Wild Horizons, who, at the end, vandalized the camp at the time they deserted it in 2007.

Mr Misheck Marandu reluctantly conceded that the new farmers had effected some refurbishment thereafter. He called the refurbishment a mere attempt to refurbish when the farmers believed they had done so to acceptable standards.

It came out clearly, under cross-examination, that he may not have been quite aware about what was taking place at the camps. He was not aware that the community of the resettled farmers was paying rates and charges to the Hwange Rural District Council in respect of the two safari camps at Woodlands Farm.

Despite his assertions that there was no need for him to involve the District and Provincial Committees to grant the plaintiff a lease to hire a hunting camp on a portion of Woodlands Estate in extent of 100 hectares, he conceded that he was bound by the decision of the Provincial Committee. At its meeting held on 29 July 2011, it resolved that Woodlands Farm was not going to be allocated to any other beneficiary since it had already been allocated to the 118 A1 beneficiaries. The meeting was held following Elias Muzamba's request for clarification from the Provincial Governor regarding the plaintiff's lease agreement to hire a 100 hectares hunting camp on a portion of Woodlands Estate. It is difficult to understand why Mr Marandu persisted with granting the plaintiff a lease when the District and the Province were against such allocation.

This court finds that Mr Misheck Marandu was wrong in advising the plaintiff that land was available at Woodlands Estate when he knew that 12,000 hectares at Woodlands Estate had already been allocated to the 118 A1 farmers. He was allocating a “Hunting Camp on Portion of Woodlands Estate in extent 100 hectares” which did not exist. His suggestion that the community of villagers was not allowed to utilize the two camps was palpably false because it was, in fact, common knowledge the community used to do so….,.

Section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] criminalises the continued occupation of acquired land by the owners or occupiers of land acquired in terms of section 16B of the Constitution beyond the prescribed period.

The Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is very explicit that failure to vacate the acquired land by the previous owner, after the prescribed period, is a criminal offence. It is quite clear from the language of section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] that the individual applicants, as former owners or occupiers of the acquired land, have no legal right of any description in respect of the acquired land once the prescribed period has expired.

It was argued that previous owners and occupiers of acquired land have the right to remain in occupation until they have been tried and convicted and an order for eviction issued in terms of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28], which provides as follows:

"3 Occupation of Gazetted land without lawful authority

(5) A court which has convicted a person of an offence in terms of subsection (3) or (4) shall issue an order to evict the person convicted from the land to which the offence relates."

Section 3(5) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] does not confer on the individual applicants the right to remain in occupation until conviction.

Section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] simply directs the presiding magistrate in criminal proceedings for a contravention of section 3 of the Act to issue an eviction order. It gives the magistrate jurisdiction or power, which he or she would not otherwise have, to issue an eviction order. Generally speaking, magistrates in criminal proceedings have no jurisdiction to issue an eviction order against an accused person upon conviction. Section 3(5) of the Act confers on the criminal court jurisdiction to issue an eviction order and directs the presiding magistrate to exercise the power.   Thus, a proper reading of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] simply confers certain jurisdiction on the presiding magistrate. It does not in any way confer on the individual applicants, as previous owners or occupiers of acquired land, the right to continue in occupation after the expiry of the prescribed periods. It therefore follows that the conflict between the individual applicants and former owners or occupiers of acquired land, on the one hand, and the holders of offer letters, on the other hand, is a conflict between legally entitled occupants, that is, the holders of offer letters, and the illegal occupants, the former owners and occupiers.

An offer letter issued in terms of the Act is a clear expression by the acquiring authority of the decision as to who should possess or occupy its land and exercise the rights of possession or occupation on it.

The holders of the offer letters, permits or land settlement leases have the right of occupation and should be assisted by the courts, the police and other public officials to assert their rights. The individual applicants, as former owners or occupiers of the acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.

This leads me to the issue of whether Ministry officials, magistrates, public prosecutors, court officials, the police and the military have a duty, in terms of section 18(1a) of the Constitution, to assist, as alleged, the individual applicants as former owners or occupiers of the acquired land.

Section 18(1a) of the Constitution provides as follows:

"Provisions to secure protection of law

(1a) Every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law and to observe and uphold the rule of law."

As I have already stated, the individual applicants' continued occupation of the acquired land is illegal in terms of section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. Their continued occupation of the acquired land constitutes a criminal offence. I do not accept that section 18(1)(a) of the Constitution imposes an obligation on a public official to assist persons in the commission of a crime.   Indeed, assisting a criminal or a person in doing that which Parliament has decreed constitutes a criminal offence is in itself a crime, of aiding or abetting the commission of a criminal offence.

By seeking to prevent the institution and prosecution of criminal proceedings in cases in which they are acting unlawfully, the individual applicants are clearly frustrating the observance of the rule of law by the relevant public officials in the discharge of their duty in terms of section 18(1a) of the Constitution. A moratorium on the implementation of a national programme such as the land reform programme cannot be granted to protect unlawful conduct - regardless of the race or colour of the perpetrators. It is unfortunate that the individual applicants seem to think that the duty to observe the rule of law falls on others and not on them because they belong to a particular race. The obligation on the State is to arrest, prosecute and punish those who commit criminal offences on the farms regardless of their race or colour, but it does not need a moratorium on the implementation of the land reform programme for it to carry out its constitutional mandate to uphold the rule of law.

I have no doubt in my mind that section 18(1a) of the Constitution does not impose a duty on the Ministry officials, magistrates, public prosecutors, court officials, the police and the military to assist former owners of acquired land in breaking the law by remaining in unlawful occupation of acquired land….,.

In conclusion, I would summarise the legal position as follows;

(1) Former owners and/or occupiers whose land has been acquired by the acquiring authority in terms of section 16B(2)(a) of the Constitution cannot challenge the legality of such acquisition in a court of law.  

The jurisdiction of the courts has been ousted by section 16B(3)(a) of the Constitution. See also Mike Campbell (Pvt) Ltd and Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement and Anor SC49-07.

(2) The Gazetted Lands (Consequential Provisions) Act [Chapter 20:28], and in particular section 3 of that Act, is constitutional.  

See Tom Beattie and Anor v Ignatius Mugova and Anor, Supreme Court Appeal No.32/0. Accordingly, all Zimbabweans have a duty to comply with the law as provided for in that Act and prosecutions for contravening the Act are constitutional and therefore lawful.

(3) Every former owner or occupier of acquired or gazetted land who has no lawful authority is legally obliged to cease occupying or using such land upon the expiry of the prescribed period (ninety days after the acquisition).  

See subsections 3(2)(a) and (b) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and section 16B of the Constitution. By operation of law, former owners or occupiers of acquired land lose all rights to the acquired land upon the expiration of the prescribed period.

(4) A former owner or occupier of acquired land who, without lawful authority, continues occupation of acquired land after the prescribed period commits a criminal offence.

If the former owner or occupier continues in occupation, in open defiance of the law, no court of law has the jurisdiction to authorise the continued use or possession of the acquired land.

(5) Litigants who are acting outside the law, that is, in contravention of section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] cannot approach the courts for relief until they have complied with the law.

See Associated Newspapers of Zimbabwe (Private) Limited v The Minister of State for Information and Publicity and Ors SC111-04.

(6) A permit, an offer letter and a land settlement lease are valid legal documents when issued by the acquiring authority in terms of section 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and section 8 of the Land Settlement Act [Chapter 20:01]. The holder of such permit, offer letter or land settlement lease has the legal right to occupy and use the land allocated to him or her in terms of the permit, offer letter or land settlement lease.

(7) The Minister may issue land settlement leases in terms of section 8 of the Land Settlement Act [Chapter 20:01].

In doing so, he is required to comply with the other provisions of that Act.

(8) While section 3(5) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] confers on a criminal court the power to issue an eviction order against a convicted person, it does not take away the Minister's right or the right of the holder of an offer letter, permit or land settlement lease to commence eviction proceedings against a former owner or occupier who refuses to vacate the acquired land.

The holder of an offer letter, permit or land settlement lease has a clear right, derived from an Act of Parliament, to take occupation of acquired land allocated to him or her in terms of the offer letter, permit or land settlement lease. No doubt, the Legislature conferred on the holder of an offer letter, permit or land settlement lease the locus standi, independent of the Minister, to sue for the eviction of any illegal occupier of land allocated to him or her in terms of the offer letter, permit or land settlement lease.

(9) The holders of offer letters, permits or land settlement leases are not entitled, as a matter of law, to self-help.

They should seek to enforce their right to occupation through the courts. Where, therefore, the holder of an offer letter, permit or land settlement lease has resorted to self-help and the former owner or occupier has resisted, both parties are acting outside the law. If either party resorts to violence, the police should intervene to restore law and order….,.

After hearing counsel for both parties, the Court dismissed the application with no order as to costs. It was indicated that the reasons for the decision would follow in due course. 

These are they.

The applicant was charged in the Magistrates Court with the offence of occupying gazetted land without lawful authority in contravention of section 3(2)(a) as read with section 3(3) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. During the proceedings in the lower court, the applicant raised a number of constitutional questions which he requested the magistrate to refer to the Constitutional Court for determination. The applicant made the request in terms of section 175(4) of the Constitution of the Republic of Zimbabwe Amendment (No. 20), 2013 (“the Constitution”). Being of the opinion that the request was not frivolous or vexatious, the learned magistrate referred the Constitutional questions to the Court for determination. The questions are:

1. Whether the eviction of the applicant from the farm, without paying him compensation for the improvements effected on the land before it was compulsorily acquired, amounts to unlawful deprivation of property in terms of section 72(3)(a) and (b) of the Constitution.

2. Whether the eviction of the applicant, who is a physically disabled person, from the land, constitutes a breach of the constitutional obligations of the State imposed by section 2 of the Constitution and therefore a violation of his fundamental right enshrined in section 83 of the Constitution.

3. Whether the eviction of the applicant from the land without first compensating him amounts to subjecting him to physical or psychological torture or cruel, inhuman or degrading treatment or punishment in violation of his fundamental right enshrined in section 53 of the Constitution.

The applicant is the former owner of the Remainder of Lot 18 of Nuanetsi Ranch in the district of Mwenezi ('the land'). The State compulsorily acquired the land for the public purpose of settlement for agriculture on 22 June 2012. In terms of the law, the applicant had ninety (90) days within which to vacate the land.  He did not do so. On 22 September 2012, the State extended the period of his stay on the farm to 11 December 2012.

The applicant did not vacate the land within the extended period as he had undertaken to do. The State charged the applicant with the offence of occupying compulsorily acquired agricultural land without lawful authority. The applicant is a bilateral below-knee amputee having lost both legs in 1978. He lived in the homestead at the farm compulsorily acquired by the State. He carried on the business of cattle ranching on the farm. The applicant does not deny that he committed the offence with which he was charged.

Counsel for the applicant said that the applicant does not deny that he is liable to eviction from the land in question.

It was the applicant's contention that seeking to evict him before ordering that he be paid compensation for improvements amounts to unlawful deprivation of property contrary to the provisions of section 72(3)(a) and (b) of the Constitution. 

There is, however, no law that requires the State to pay the former owner or occupier of compulsorily acquired agricultural land compensation for the improvements effected on the land before he or she is evicted. The former owner or occupier is evicted from the land following a conviction for occupying State land without lawful authority.

The decision to prosecute a former owner or occupier of compulsorily acquired land is dependant upon his or her conduct of remaining in occupation of the land and using it for agricultural purposes in defiance of the law. The decision is not dependant upon payment by the State of compensation to the former owner or occupier for improvements effected on the land. At the time the eviction is ordered, the former owner has no real right in the land as it would have been acquired by the State.

The right to remain in occupation of the residence and the land for the prescribed period is a statutory right which terminates at the expiry of the prescribed period. There is no deprivation of the accused of property in the land by the State when an order for his eviction from the land is made upon conviction for criminal conduct. 

See CFU v Minister of Lands & Ors 2010 (2) ZLR 576…,.

Eviction from State land following conviction for unlawful occupation of the land cannot be made conditional upon payment of compensation for improvements effected on the land because that would make the eviction dependent upon payment of compensation and upon conviction for the offence. The purpose of an eviction order granted by a court, after convicting a former owner or occupier of unlawful occupation of compulsorily acquired land, is to remove the criminal from State land. The purpose is not to deprive him or her of the right to apply to the Compensation Committee in terms of Part VA of the Land Acquisition Act [Chapter 20:10] for the assessment and payment of the compensation payable.

The State has not denied the applicant the right to compensation. He has the right to invoke the procedures put in place for the enforcement of the obligation on the State to pay compensation for the improvements on the compulsorily acquired land. That right subsists whether or not the applicant is prosecuted and evicted from the State land.

As an eviction order would not deprive the former owner or occupier of compulsorily acquired land of the right to compensation from the State for improvements that were on the land when it was acquired, section 72(3)(a) and (b) of the Constitution is not infringed.

Once the agricultural land has been compulsorily acquired and the former owner or occupier continues to occupy the land without lawful authority, he or she commits a criminal offence regardless of his or her status as a disabled person.

2. ither 20:10] applicantThe applicant cannot claim the benefits of the protection of the rights of disabled persons under section 83 of the Constitution to defeat the enforcement of the obligation imposed on him by section 3(2)(a) as read with section 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]….,.

The applicant admitted that he knew that his defiant conduct constituted the offence with which he was charged. He sought to have his continued commission of the offence authorized by the magistrate through a suspended order of eviction from the gazetted land. The imposition of an order of eviction on a former owner or occupier of the gazetted land following conviction for its unlawful occupation and use is mandatory. 

The magistrate has no discretion in the matter.

Section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides that a court which has convicted a person of an offence in terms of subsections (3) or (4) shall issue an order to evict the person convicted from the land to which the offence relates. The order of eviction is not part of the sentence in respect of the assessment of which the magistrate has a discretion. It is in addition to the sentence imposed by the magistrate. See CFU v Minister of Lands & Ors 2010 (2) ZLR 576….,.

The criminal proceedings and the eviction of the applicant from State land which he occupied and used unlawfully do not affect his rights against society as a disabled person. Even if the applicant was evicted from the land he would still be entitled to payment of compensation for improvements effected on the land before compulsory acquisition. Equally, he would still be liable to eviction even if he was paid compensation and remained in possession of the land without lawful authority up to the time of conviction. More importantly, he would still be entitled to the protection afforded to disabled persons by society.

It would not be legally correct to declare that the eviction of a former owner or occupier of compulsorily acquired land following his conviction for the occupation of the land without lawful authority before payment of compensation for improvements effected on the land before acquisition deprives him or her of the right to compensation. The purpose of prosecution and evicting a former owner or occupier from the compulsorily acquired land is to put a stop to the continuation of criminal conduct.

There is nothing inhuman or degrading in a process the purpose and effect of which is the prevention of a continued commission of a crime. The law applies equally to every former owner or occupier of compulsorily acquired land who behaves in a criminal manner by refusing to vacate State land.  Protection of a right guaranteed to a person pre-supposes that he or she acts in accordance with the obligations imposed on him or her by the law. Once it is accepted that the eviction is necessitated by and follows a conviction for criminal conduct, all the other allegations of violation of the fundamental human rights made by the applicant are not sustainable.

At the end of the day, the eviction of a former owner or occupier of compulsorily acquired agricultural land in terms of section 3(5) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is an exercise of State power sanctioned by the Constitution. As a product of a due process it cannot be said to be in violation of the fundamental rights of the applicant enshrined in section 72(3)(a) and (b), 21, 22, 83 and 48(1) of the Constitution. The process does not need the aid of a condition of prepayment of compensation by the State for improvements effected on the land before acquisition for the achievement of its purpose. No law requires a magistrate to order the State to pay a former owner or occupier of compulsorily acquired land compensation for improvements effected on the land before his eviction from the land he or she is found to be occupying illegally.

The prosecution and eviction of a former owner of occupier of compulsorily acquired land is a process undertaken to achieve the purposes of a constitutionally valid statute. As such, it would be absurd to say that compliance with the requirements of the provisions of a constitutionally valid law is a violation of any of the fundamental human rights alleged by the applicant to have been infringed. Such an approach would have to ignore the fact that section 72 of the Constitution, which gives the State the power to compulsorily acquire land, is in Chapter 4 of the Constitution dealing with the Declaration of Rights. It is clear from the provisions of section 72 of the Constitution that the common good is intended to override the rights of the individuals who continue to occupy and use compulsorily acquired agricultural land illegally.

I finally turn to deal with the issue of what constitutes “lawful authority” and whether the applicant had “lawful authority” to occupy the farm.

Section 2(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] provides as follows:

“2 Interpretation

(1) In this Act -

'acquiring authority' means the Minister responsible for land or any other Minister to whom the President may, from time to time, assign the administration of this Act;

'fixed date' means the date fixed in terms of section 1(2) as the date of commencement of this Act;…,.

'lawful authority' means -

(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease;

and 'lawfully authorised' shall be construed accordingly;

'offer letter' means a letter issued by the acquiring authority to any person that offers to allocate to that person any Gazetted land, or a portion of Gazetted land, described in that letter;

'permit', when used as a noun, means a permit issued by the State which entitles any person to occupy and use resettlement land;

'resettlement land' means land identified as resettlement land under the Rural District Councils Act [Chapter 29:13].”

The clear and unambiguous meaning of section 2(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is that “lawful authority” means an offer letter, a permit and a land settlement lease.  

Nothing more, nothing less.  

A letter from the late Vice President, the Presidium or any other member of the Executive does not constitute “lawful authority” in terms of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

In the case of Commercial Farmers' Union and Ors v Minister of Lands and Rural Resettlement and Ors SC31-10 this Court had this to say…,:

“The Legislature, in enacting the above provision, clearly intended to confer on the acquiring authority the power to issue to individuals offer letters which would entitle the individuals to occupy and use the land described in those offer letters. The draftsman could have used better language to convey the legislative intent, but there can be no doubt that s 2 of the Act confers on the acquiring authority the power to allocate land using the medium of an offer letter. This provision is not in any way inconsistent with ss 16A and 16B of the Constitution. If anything, it fits in well with the overall scheme envisaged in ss 16A and 16B of the Constitution, which is that the acquiring authority acquires land and re-allocates the land so acquired. The acquisition of land and its redistribution lies at the heart of the land reform programme. I have no doubt that the Minister, as the acquiring authority, can redistribute land he has acquired in terms of s 16B of the Constitution by means of the following documents;-

(a) An offer letter;

(b) A permit; and

(c) A land settlement lease.  

The Minister is entitled to issue a land settlement lease in terms of s 8 of the Land Settlement Act [Cap 20:01]. However, if the Minister allocates land by way of a land settlement lease, in terms of s 8 of the Land Settlement Act, he is enjoined to comply with the other provisions of that Act, such as s 9 which requires him to consult the Land Settlement Board which obviously has to be in existence. I do not accept the contention by the applicants that the Minister can only allocate acquired land by way of a land settlement lease which he presently cannot do because there is no Land Settlement Board in existence.

The Minister has an unfettered choice as to which method he uses in the allocation of land to individuals.   He can allocate the land by way of an offer letter or by way of a permit or by way of a land settlement lease. It is entirely up to the Minister to choose which method to use. I am not persuaded by the argument that because the offer letter is not specifically provided for in the Constitution it cannot be used as a means of allocating land to individuals.

I am satisfied that the Minister can issue an offer letter as a means of allocating acquired land to an individual.

Having concluded that the Minister has the legal power or authority to issue an offer letter, a permit or a land settlement lease, it follows that the holders of those documents have the legal authority to occupy and use the land allocated to them by the Minister in terms of the offer letter, permit or land settlement lease.”

“Lawful authority” means an offer letter, a permit and a land settlement lease.

The documents attached to the Defence Outline are not offer letters, permits or land settlement leases issued by the acquiring authority. They do not constitute “lawful authority” providing a defence to the charge the applicant is facing.

The applicant did not have an offer letter, a permit or a land settlement lease. Accordingly, he had no lawful authority to occupy or continue to occupy the farm. The letters from the late Vice President Msika and those of the Ministry of Lands, Land Reform and Resettlement do not constitute “lawful authority.”   'Lawful authority', in terms of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28], begins and ends with an offer letter, a permit and a land settlement lease.  

A telephone call or a letter, even from the Minister of Lands, Land Reform and Resettlement is not “lawful authority.”…,.

This is an appeal against an order of the High Court interdicting the appellant from evicting the respondent from certain property known as Lot 1 of Buena Vista Farm, Goromonzi.

The farm was gazetted in 2003 and the respondent, being the former owner or occupier of the farm, did not vacate it within the ninety (90) days prescribed by section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] (“the Act”).

Section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides as follows:

“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 paragraph (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 paragraph (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 paragraph (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).

(3) If a former owner or occupier of Gazetted land who is not lawfully authorised to occupy, hold or use that land does not cease to occupy, hold or use that land after the expiry of the appropriate period referred to in subsection (2)(a) or (b), or, in the case of a former owner or occupier referred to in section 2(b), does not cease to occupy his or her living quarters in contravention of proviso (ii) to section 2(b), he or she shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

(4) Any person, other than a person referred to in subsection (2), who contravenes subsection (1), shall be guilty of an offence and liable to a fine not exceeding level seven or imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

(5) A court which has convicted a person of an offence in terms of subsection (3) or (4) shall issue an order to evict the person convicted from the land to which the offence relates.”

The respondent was charged with, and convicted of, contravening section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. He was sentenced to a fine of $100= and ordered to vacate the farm by November 6, 2013.

He noted an appeal against both the conviction and the sentence. Thereafter, having sought, and obtained, on the 24 December 2013, an order staying execution of the judgment pending the determination of the appeal, he continued to occupy the farm.

On the 28 July 2015, the appellant was issued with an offer letter for part of the farm and sought to evict the respondent therefrom. This led to the filing by the respondent of an urgent application in the High Court for the order mentioned at the beginning of this judgment…,.

Dissatisfied with the judgment of the High Court, the appellant noted this appeal on the 10 November 2015.

At the hearing, it came to the attention of the parties that the appeal filed by the respondent against the conviction and sentence imposed by the magistrate had been dismissed on the 10 August 2016.

While it is apparent to us that there is merit in the grounds of appeal raised by the appellant attacking, in particular, the propriety of the suspension by a judge of the High Court of the execution of the judgment of the magistrate, we are of the view that the dismissal of the appeal by the High Court is dispositive of the appeal….,.

In the result, it is the unanimous decision of the Court that the appeal ought to be allowed….,.

It is therefore ordered as follows:

1. The appeal is allowed with each party bearing its own costs.

2. The judgment of the court a quo is set aside and substituted with the following:-

Moreover, the appellant concedes that he has failed in his efforts to have the Ministry of Lands regularise his occupation of the land by granting him any permit.

If the State has issued a certificate of no interest it cannot, in the same breath, issue a permit in relation to this land without any indication that it now has an interest in such land. The offer letter, permit or land settlement lease has been the basis upon which the State has granted the right to occupy hold or use allocated land that it has acquired.

(See Commercial Farmers Union & Ors v Minister of Lands and Rural Resettlement & Ors SC31-10).

Now, Statutory Instrument 53 of 2014, S.I.53 of 2014, outlines the regulations that govern those with Agricultural Settlement Permits issued by the Minister of Lands and Rural Resettlement in terms of occupying, holding and using allocated land.

The appellant has none of these and therefore clearly has no locus standi to refuse to vacate the land in question or to appeal the ruling of the magistrate interdicting him from continuing his farming activities on the said land. Moreover, the respondents acquired the land under an authorised sub-division and against a background of no interest in the land having been expressed by the State.

On 31 May 2017, we dismissed the appellant's appeal with costs. We promised to provide our reasons within fourteen days. Regrettably, the period proved too ambitious. We had not reckoned with a workload build-up in the days that followed.

The appeal was against an order granting the first respondent [plaintiff in the court a quo] an order to evict the appellant [first defendant in the court a quo] from a certain homestead.

The dispute in the court a quo stemmed from the all too familiar problem associated with the land reform programme embarked upon by Government since the year 2000 whereby it has been compulsorily acquiring predominantly white-owned farms and re-distributing them to predominantly black beneficiaries. The former owners, perhaps not unexpectedly, would resist, in some cases, not only the acquisition itself, but also the obligation cast on them, by operation of the law, to vacate the gazetted land within certain timeframes.

In this case, the dispute was not over the acquired farm per se, but on the farmhouse on it, or one of such premises.

The appellant, or the company named after him, was the former owner of the original piece of land, Lot 21A of Nuanetsi Ranch in Mwenezi, Masvingo Province. It was compulsorily acquired on a date undisclosed on the papers, but prior to 2007. The first respondent was one of several beneficiaries' allocated pieces of land on the property. It appears that the original piece of land, following more than one re-organisation, had ultimately been split into 11 or 12 sub-divisions. In addition to the subdivision allocated to him, the second respondent [second defendant in the court a quo] also leased to the first respondent, under a written lease agreement for five years, the homestead on that farm. The lease agreement described the leased property as “…, a homestead on Lot 21A N.R.A in on land [sic] measuring +/- 224m² approximately situated in the District of Mwenezi as depicted on the map attached hereto. The site with the said buildings and improvements in hereinafter referred to as ['the leased premises']” [sic].

The first respondent complained that the appellant was refusing to move out of the homestead. In October 2015, he instituted ejectment proceedings in the Magistrate's Court. He first proceeded by way of an application. The court decided there were irreconcilable disputes of fact. It referred the matter to trial.

Essentially, the issues before the court a quo, from the pleadings and the evidence led, were basically two-fold;

(i) Firstly, the actual identity and exact location of the farmhouse; and

(ii) Secondly, whether or not the appellant did also have “lawful authority” to remain on a portion of the farm, the remaining extent of the original whole.

On the first issue, the appellant argued that the so-called lease of the farmhouse was so vague and so defective as to be incapable of enforcement because it referred to a farmhouse on Sub-division 10, Lot 21A of Nuanetsi Ranch, yet the only State-land homestead on the whole farm was on Sub-division 11.

On the second issue, the appellant relied on a certain letter to himself by the then Provincial Chief Lands Officer for Masvingo way back in April 2007. The letter stated that the original property, then measuring 14,713 hectares, had been Gazetted and was now State land; that out of it, 9,683 hectares had been allocated to A2 beneficiaries, and that the remaining 5,030 hectares had been left for Cawoods Ranch [Pvt] Ltd which was still to receive an offer letter …,.

The relevant text of the letter read as follows:

“Lot 21A of Nuanetsi Ranch, which is 14,713 hectares in extent was gazetted and is now State land. Out of the total hectarage, 9,683 hectares were allocated to seven [7] A2 beneficiaries. All of them have been issued with offer letters by the Acquiring Authority. The Remaining Extent of the above named farm, measuring 5,030 hectares, was left for Cawoods Ranch [Pvt] Ltd and you are still to receive an offer letter from the Minister of State Security, Lands, Land Reform and Resettlement.

The following are the beneficiaries who have been issued with offer letters….,.

With this in mind, may you please allow the above named A2 beneficiaries of the Land Reform Programme to operate freely without interference in their respective allocated plots. Furthermore, to that, may you restrict your operations to the Remaining Extent [R/E] of Lot 21A of Nuanetsi Ranch.”

The argument by the appellant, on the second issue aforesaid, was that the letter constituted lawful authority for his continued occupation of a portion of the farm, including the farmhouse, and that at no stage had the Government revoked it. He relied on the case of Rodgers v State HB47-15.

The witnesses that gave evidence at the trial were the first respondent; one Boas Vurayayi [“Boas”], who was the Acting District Lands Officer for Mwenezi; and the appellant's representative, one Jason Leanders ['Jason'] who was acting through a power of attorney given by the appellant.

On the first issue, the court's findings were that the lease was authentic; that as between the first and second respondents, there was no confusion as to which exactly were the premises the lease referred to, and where exactly they were situated. In the course of its judgment the court said:

“There is therefore evidence to conclude that the homestead which is the subject matter is the one on the map and that it is occupied by the first defendant.”

On the second issue, in the course of its judgment, the court a quo said:

“Mr Mupoperi submitted and supported the submission with case law,that the letter amounts to lawful authority. No doubt it does. A letter of this wording indeed amounts to lawful authority regard being had to the decision of MAKONESE J in Dudley Rogers vs The State HB47-15. On the other hand, the plaintiff has a lease. It is no doubt a lawful authority and it pertains to that same homestead. One might ask, which lawful authority is more lawful than the other? The one dated 2007 was a precedent to the issuing of an offer letter. Now its 2016, and no offer was issued. Why? The answer lies in the evidence of Boas Vurayayi.”

Relying largely on Boas Vurayayi's evidence, the court held that the letter of 2007 by the then Provincial Chief Lands Officer had been overtaken by events; that the issue of caretakership that it related to had long since been phased out; and that it was the second respondent, as the acquiring authority, who was best placed to say who should occupy the farmhouse.

On 5 December 2016 the court granted the order of eviction. The appellant appealed.

He challenged the magistrate's findings and said [in our own words] that the purported lease was not the one the second respondent had given to the first respondent; that having found that the appellant also had lawful authority to stay on the farm, it was wrong to order his eviction; that it was wrong to say that the letter of 2007 had been overtaken by events in the absence of an express revocation communicated to him; and that without a proper description as to whether the homestead referred to in the lease was one residential dwelling, or several residential dwellings, the eviction order was manifestly a brutum fulmen.

We dismissed the appeal because it lacked substance.

The appellant was just nit-picking. The whole appeal was just about form over substance. The homestead from which the appellant was to be evicted had sufficiently been debated and identified in, and by, the court a quo. It could not be identified merely or solely by reference to the area, which was stated as +/- 224m², but also by reference to the map that depicted, among other things, the extent of the land covered.

The lease agreement clearly defined the homestead, not only as one measuring +/- 224m², but it also said “…, approximately situated in the District of Mwenezi as depicted on the map attached hereto…,.” It also said “.., the site with the said buildings [not just building] and improvements…,” would be “…, the leased premises.”

So the lease agreement itself, the bedrock of the eviction proceedings, recognised that the homestead was more than just one dwelling. The magistrate concluded that there was evidence that the homestead was the one on the map. That map was produced. It referred to a rectangle with a cluster of buildings.

Those were the structures the first respondent wanted the appellant evicted from.

In Rodgers v State HB47-15, the appellant, Rogers, had been convicted in the Magistrate's Court for contravening the provisions of the Gazetted Lands [Consequential Provisions] Act [Chapter 20:28] [“the Gazetted Lands Act”], in that he had refused to vacate his farm after it had been compulsorily acquired. He had relied on some verbal assurances given him by officials from the Ministry of Lands, the acquiring authority that he could stay on a portion of the farm that was depicted and endorsed on a map as the remaining extent of the farm. He had specifically been requested to assist the several beneficiaries who had been allocated portions of his farm. He had also been handed over a copy of the endorsed map.

The one issue before the court, on appeal, in Rodgers v State HB47-15 was whether or not that map, coupled with those verbal assurances from the Ministry officials, constituted “a permit”, or the lawful authority for his continued stay on the acquired farm, given that in terms of the Gazetted Lands [Consequential Provisions] Act [Chapter 20:28], the lawful authority to hold, use or occupy gazetted land is in the form of either an offer letter; a permit or a land resettlement lease.

At the time of Rodgers' arrest and prosecution, there were no statutory provisions setting out the form and content of a permit. These were only incepted in 2014 in the form of the Agricultural Land Settlement [Permit Terms and Conditions] Regulations, 2014, S.I.53 of 2014. Among other things, these Regulations not only specify that a permit has to be in writing, but also they provide a pro-forma or specimen of the permit.

On appeal, MAKONESE J, sitting with TAKUVA J, overturned the conviction on the basis that the appellant had been entitled to rely on that map and the verbal assurances as his lawful authority, given that SI 53/2014 had not yet been promulgated.

Rodgers v State HB47-15, which the appellant continued to rely on even in this appeal, is clearly distinguishable. Firstly, it was a criminal case. As such, the appellant's guilt had to be proved beyond any reasonable doubt. Clearly, that could not have been the case where, among other things, he had been entitled to rely on the defence of claim of right.

Rodgers had the endorsed map given to him by those Government officials who were tasked to administer the piece of legislation in question. At the time, the Government had not yet put it in black and white what constituted a permit.

In contrast, the present case was a civil dispute. All that the first respondent needed to do, which he did, was to prove, on a balance of probabilities, that he was entitled to relief. In Commercial Farmers' Union & Ors v Minister of Lands & Ors 2010 [1] ZLR 576 [H], the Supreme Court, sitting as a Constitutional Court, held that the holder of an offer letter, permit or land lease has the locus standi, independent of the acquiring authority, to sue for the eviction of any illegal occupier of land allocated in terms of the offer letter, permit or lease.

Secondly, in this case, even though 5,030 hectares of the designated farm had been left for the appellant's company, the letter of April 2007 itself, unequivocally, said the appellant was still to receive an offer letter from the then Minister of State Security, Lands, Land Reform and Resettlement; the then acquiring authority. It was common cause that the appellant had never got it. Nobody said why. But without being in possession of any of the three instruments constituting lawful authority, it was manifestly preposterous to press the argument that the appellant had lawful authority to remain on the gazetted land in the face of S.I.53 of 2014.

Thirdly, and perhaps most importantly, the court a quo noted, quite correctly, that Jason Leanders, had admitted that he had seen a letter nullifying the previous offer. On pages 35–36 of the record of proceedings was this exchange:

“Q. Have a look on this D2 – It authorises [the appellant] to be on the farm?

A. Yes.

Q. It says Cawood is to receive [an] offer letter?

A. Yes.

Q. Did you receive the offer letter?

A. No.

Q. Why not?

A. I did not find out.

Q. So you have not yet received the offer letter?

A. Yes [evidently meaning No].

Q. You have been shown a letter nullifying the previous offering to you?

A. I saw it last week.

Q. What [were] the contents?

A. I can't recall.

Q. Here it is. Please read it

A. [objected to].”…,.

We could find no fault with the decision of the court a quo. In the absence of any lawful authority, the appellant had no right to remain on the gazetted land or to remain occupying the homestead which had been leased to the first respondent.

The appellant was convicted by a magistrate sitting at Gwanda on a charge of contravening the provisions of section 3(2) as read with section 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

The appellant was sentenced to three months imprisonment, which was wholly suspended. In addition, the appellant and all those claiming occupation through him were issued with an eviction order from the property known as the Remaining Extent of Olympus Block, West Nicholson.

The appellant appealed against the whole judgment, challenging both his conviction and sentence.

The issues arising in this appeal are these:

(a) Whether the learned trial magistrate misdirected himself in finding that a permit granted in terms of the Gazetted Lands (Consequential Provisions) Act is required to be in writing.

(b) Whether the learned magistrate misdirected himself in finding that the appellant was in unlawful occupation of the property.

(c) Whether this Honourable court must interfere with the sentence imposed by the learned magistrate on the grounds that it induces a sense of shock in the circumstances of the case.

Background

In the Government Gazette published on 7 November 2003, notice was given, in terms of the Land Acquisition Act [Chapter 20:10], that Government intended to compulsorily acquire the Remaining Extent of Olympus Block for the purposes of resettlement. In terms of the notice, the appellant was required to vacate the property within a period of forty-five days. The appellant remained in occupation of the property and indicated to the Ministry of Lands officials that during the land redistribution exercise, in 2003, a large portion of his farm, measuring approximately 8,900 hectares was acquired by the Government for resettlement. The acquired land was allocated and subdivided for resettlement by various A1 farmers. The Ministry of Lands officials visited the farm with a map and indicated that he would be allowed to remain on the Remaining Extent of Olympus block measuring 1,000 hectares. He was shown the boundaries on the map and was advised that the A1 farmers surrounding him would dip their cattle at his dip tank. The Lands Committee also requested the appellant to assist the A1 farmers in maintaining their livestock. The map handed to the appellant forms part of the appeal record and confirms that a portion on the map was marked “Remaining Extent of Olympus” was reserved for the farmer (the appellant). 

It is that piece of land that is the subject of this appeal.

On 25 August 2011, the Minister of Lands and Rural Resettlement signed on offer letter in respect of the Remaining Extent of Olympus Block, in favour of Mr Muwoni. When Mr Muwoni attempted to evict the appellant from the land in dispute, the appellant communicated with the District Lands Officer and reminded him of the map and that he had been guaranteed that he would remain on the allocated land.  The dispute could not be resolved resulting in the criminal prosecution of the appellant for failing or refusing to vacate gazetted land.

I now propose to deal with the issues for determination in seriatim:

WHETHER THE APPELLANT HAD A PERMIT

The learned trial magistrate held that the only kind of permit envisaged by the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] was a written document, and not any other kind of permit.

In my view, the reasoning is flawed.

As at the date of the arrest and prosecution of the appellant, there was no statutory provision setting out what a permit should provide in form and content. The legislature, having seen the need to clarify the legal requirements regarding permits, and to consolidate the practice in this regard, passed the Agricultural and Land Settlement (Permit and Conditions) Regulations, Statutory Instrument 53/2014. These Regulations now provide clearly for the issue of a written permit to occupants and beneficiaries of gazetted land. The Regulations further set out a pro-forma of the permit contemplated in the Gazetted Lands (Consequential Provisions) Act.

In his reasons for sentence, the learned trial magistrate had this to say:

“I have particularly considered that the accused's moral blameworthiness was very low. Indeed, he committed this offence under the mistaken belief that the map that he was given, together with the endorsement on it 'Remaining Extent for farmer', amounted to a permit. Had he not held this mistaken belief, he would certainly not have committed this offence. And the belief was not unreasonable, regard being had to the apparent conduct of the officials from the Ministry of Lands who gave accused the map I have referred to above.”…,.

The magistrates' comments cannot be faulted.

The appellant led oral evidence, which was not disputed, to the effect that besides the oral permission and authorization, there was conduct, by Ministry of Lands' officials, which amounted to overt acceptance of his occupation of the property and the legitimacy of his presence on that piece of land.

In my view, before the promulgation of the Agricultural and Land Settlement (Permit and Conditions) Regulations, S.I.53 of 2014, the appellant was perfectly entitled to assert that the map given to him by authorized officials, coupled with the verbal assurances given to him by Ministry of Lands officials amounted to a permit as envisaged by the Gazetted Lands (Consequential Provisions) Act.

It is settled law that there is a presumption against retrospectivity of legislation, and that legislation does not govern past incidences, unless the contrary is expressly stated or necessarily inferred from the legislation.

See Nkomo and Another v Attorney General and Others 1993 (2) ZLR 422 and Walls v Walls 1996 (2) ZLR 117.

It is clear that before the passing of the Agricultural and Land Settlement (Permit and Conditions) Regulations, S.I.53 of 2014, there was no legislative provision requiring that a permit should only be in writing. There was no legislative provision setting out the form and content of such a permit. In practice, therefore, responsible Government officials issued permits by endorsement on maps, by verbal and visual identification and allocation of portions of land to previous owners.

WHETHER THE LEARNED MAGISTRATE MISDIRECTED HIMSELF IN FINDING THAT THE APPELLANT WAS IN UNLAWFUL OCCUPATION OF GAZETTED LAND

Once the learned magistrate made a specific finding that the appellant held a reasonable belief that he had a lawful right to remain on the property in dispute as a result of advice given to him by officials of the Ministry of Lands, then the defence of a claim of right would be available to him.

The position was articulated in the case of S v Zemura 1973 RLR 357, where it was held that when an accused person is given advice on an administrative matter by a responsible public official whose duties include the administration of the particular statute to which the matter relates, and where the accused genuinely believes that the official is sufficiently familiar with the Act, then if the accused bona fide acts on that advice, he should be permitted to set up as an exception to the ignorantia juris rule, the defence of claim of right.

In casu, it is not in dispute that the appellant openly occupied the piece of land on the advice of the Ministry of Lands officials. He was encouraged to assist the A1 farmers surrounding him. He was given a map indicating the portion of land allocated to him. He held the genuine belief that he was entitled to remain in occupation in accordance with the law. 

I am not satisfied that the State proved the essential elements of the charge beyond reasonable doubt.  As I have already explained, the trial magistrate's comments in his reasons for sentence, do give credence to the conclusion that the conviction is unsafe….,.

In the circumstances, given the facts the learned court a quo found to have been proved, it was improper to convict the appellant. The court a quo accepted that the appellant acted on the advice of the Government officials from the Ministry of Lands. It was accepted that, but for that advice, the appellant would not have committed the offence charged.

I would, accordingly order as follows:

(1) The appeal is hereby allowed.

What happens where a party, in lawful occupation of land, is approached by another also purporting to have lawful authority to encroach onto land already alienated to him?

The above issue has already been dealt with by this court in Florence Sigudu v Minister of Lands Rural Settlement N.O. and Anor HH11-13; Tendayi Mberi v Simon Nyabadza and Ors HH241-13….,.

There was no appearance for the fourth respondent on the day of hearing. However, their Notice of Opposition, in the last paragraph, the fourth respondent confirms the position taken by the court in Commercial Farmers Union & Ors v Minister of Lands and Rural Resettlement & Ors SC31-10. He stated:-

“The holder of an offer letter or 99 year lease has the right to the undisturbed use, occupation and possession of the land and infrastructure which falls within their boundaries as prescribed either by a map approved by the Acquiring Authority or a survey diagram approved by the Surveys General with the letter taking precedence.”

Sometime in the history of Zimbabwe, landless citizens engaged in political demonstrations which involved the invasion of farmland in order to force the hand of Government to seriously embark on a program of land reform which would speed up the re-distribution of land to the landless majority.

Sensitive to the plight of the landless majority of its citizens, as most of the commercial farmland remained under the control of a few, the Government seized the issue by the scruff putting in place legal instruments, including retrospective legislation, in order to lawfully acquire and then re-distribute farmland among the landless.

This was done upon a realisation that there was need for the Government to have in its possession legal machinery to undertake the exercise and to arm itself with appropriate artillery to empower the majority of the citizens; a realisation which took a cue from the philosophy of Niccolo Machiavell that “all armed prophets have conquered and unarmed prophets have come to grief.”

The situation obtaining at the moment is that land is acquired lawfully by the acquiring authority and distributed to citizens in terms of existing legislation and legal instruments put in place for that purpose. This is as it should be because Zimbabwe embraces the rule of law. There is therefore no room for any resort to self-help and lawlessness as exhibited by the respondent in this matter.

The applicant is the holder of an offer letter issued to him by the acquiring authority, the Minister of Lands and Rural Settlement, on 2 August 2012 in terms of which he was allocated subdivision 4 of Gurungwe Estate Guruve in the District of Mashonaland Central measuring 476,64 hectares. On that land proudly stands two managerial residences which the applicant has developed and furnished, complete with electrical fittings and electricity supply. The applicant occupies one of the residences while the other is reserved for his Farm Manager who is, however, not in place at the moment because of the precarious security situation at the farm according to the applicant.

The unoccupied second residence has attracted the respondent who is said to have taken occupation on 3 March 2015, without the consent and authority of the applicant, after breaking the locks and helping herself to the house. She and two other “well-grown young people” have remained in occupation since then. They use water from the applicant's sources and electricity supplied for the account of the applicant without paying a dime.

The applicant says he has unsuccessfully tried to elicit the assistance of the police at Guruve, the District Lands Officer, and, indeed, the responsible Minister without success. The latter is said to have formulated the opinion that this was “a straight civil dispute.” It is against that background that the applicant has made this application seeking an order for the eviction of the respondent and those claiming occupation through her and declaring that they have no right to occupy the land in question and for the attendant legal costs.

The respondent has filed opposition to the application which, if not tenuous, indeed, is contradictory and displays a serious lack of bona fides. She begins by saying, at paragraph 2 of her opposing affidavit, that:

“I am in possession of an offer letter in respect of the land upon which the property in dispute was erected. I am informed by the responsible Ministry that I am yet to be issued with an actual offer letter in respect of the aforesaid land.”

This is obviously a strain to the mind. Just what exactly is the respondent saying? She cannot be in possession of an offer letter which is yet to be issued. It is probably for that reason that she has not produced any such letter as the applicant has done.

The respondent then proceeds to embark on a touch and go approach at her leisurely pace towards nowhere. She complains about the non-joinder of the Minister of Lands and Rural Settlement as being fatal to the applicant. She then alleges a material dispute of facts as cannot be resolved by court application. She locates that dispute in “demarcations of the portions of land occupied by the parties” stating that the extent of the demarcations is unclear. Predictably, she does not elaborate. There would simply be no boundary dispute between a holder of an offer letter and one holding on to a hope that is yet to materialize….,.

Two points in limine have been taken on behalf of the respondent, the first one being the non-joinder of the Minister.

It is not very clear why the respondent would want the Minister cited in this application. For one thing, the Minister had not set in motion, by any act of commission or omission, any situation which has given rise to a land dispute. In the exercise of the power reposed to him by section 2 as read with section 3(1) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] he has issued an offer letter to the applicant. There can be no ambiguity about his conduct as he has not issued an offer letter to the respondent, who must, for all intents and purposes, stand exposed on her own and not hide behind the cloak of the Minister.

In any event, the law is now settled that a holder of an offer letter has the right of action, standing alone, to sue for the eviction of any illegal occupier of his land. CHIDYAUSIKU CJ was emphatic on that point in Commercial Farmers Union v Minister of Lands & Ors 2010 (1) ZLR 546 (S)…, that:

“No doubt, the legislature conferred on the holder of an offer letter, permit or land settlement lease the locus standi, independent of the Minister, to sue for the eviction of any illegal occupier of land allocated to him or her in terms of the offer letter, permit or land settlement lease.”

That should lay to rest that first point taken in limine which clearly is not informed by any existing legal concept….,. That point in limine is therefore dismissed.

The second point in limine relates to a perceived dispute of fact which probably exists in the imagination of the respondent.

I have said that there can be no boundary dispute between a lawful occupier and an illegal one, between the applicant, who is the holder of an offer letter, and the respondent, who is hoping to be issued with an offer letter over a property that has already been allocated to a living being in the future. In fact, the respondent has not bothered to demonstrate where such dispute is, leaving one to speculate that it is an issue that has been raised by someone trying to add some lines to an opposing affidavit bereft of any meaningful defence. Someone who has nothing to say.

Again, there is no merit in that point in limine which is accordingly dismissed.

On the merits of the application, the applicant's case is unassailable. He is the holder of an offer letter lawfully issued by the acquiring authority. Without an offer letter, or authority from the holder of one, the respondent forcibly moved into the applicant's property and remains in such occupation. The conduct of the respondent is unlawful and cannot be justified at all. An offer letter issued in terms of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] is an expression by the acquiring authority of who should possess and occupy the land and its holder should be assisted by the court to assert his right: Commercial Farmers Union v Minister of Lands & Ors 2010 (1) ZLR 546 (S)…,.

As the respondent has not been authorised by the acquiring authority by means of an offer letter, permit or land settlement lease to occupy the land, and is holding onto a forlon hope, it follows that she is in illegal occupation: Sirewu v Swales & Anor HH111-12. Illegal occupants cannot escape the consequences of their actions, and, as such, ejectment is the necessary outcome.

In the result, it is ordered; that:

1. The respondent, Mercy Jonga, and all and any other persons claiming to occupy or to be present in the second main residence of subdivision 4 of Gurungwe Estate in the District of Guruve at her instance or by virtue of her authority, be and are hereby all declared to have no right to occupy, remain or re-enter upon that land or any part thereof.

2. The respondent and all such other persons as fall within the scope of paragraph 1 hereof are accordingly directed forthwith to cease to occupy, remain upon or return to that land without authority lawfully given by the Minister of Lands.

3. In the event of their failure to vacate within seven (7) days of this order, then the Sheriff or his lawful deputy is hereby authorised and directed to eject them.

4. The costs of this application shall be borne by the respondent.

By virtue of the landmark decision in the case of Commercial Farmers Union & Ors v Minister of Lands & Ors 2010 ZLR 576, the courts are enjoined to support the holders of valid offer letters as correctly argued by the second respondent in the court a quo. This is in keeping with the time honoured principle laid down in Barlow and Jones Ltd v Elephant Trading Co. 1905 TS 67 to the effect that existing rights should not be infringed.

Thus, in general, courts will lean in favour of the enjoyment of rights rather than their extinction.

By virtue of the valid offer letter issued to him by the second respondent, in his capacity as the acquiring authority, the first respondent has the right to occupy and use the Remaining Extent of Stuhm in the Goromonzi District Measuring approximately 534,00 hectares in extent as stipulated in the offer letter.

As regards the appellants' right of occupation of the land, the disputed land is gazetted land. Section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] prohibits and criminalizes the occupation of gazetted land without lawful authority in the form of:

(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease.

It is common cause that both appellants have no lawful authority in the form of an offer letter, permit or land settlement lease authorising them to occupy and use the disputed land.

Their plea is for the acquiring authority to strip the first respondent of his rights, acquired in terms of his offer letter, and confer them on the first appellant. They argue that the first appellant is an indigenous person and it is not Government policy to dispossess one indigenous person of land in order to give it to another.

This Court has already determined that the court a quo correctly nullified Cecil Michael Reimer's ownership of the disputed land. It also correctly held that ownership of the disputed land still vests in the second respondent. That being the case, the courts cannot protect the appellant on the basis that the disputed land is owned or occupied by an indigenous person.

Although the first appellant is in occupation of the gazetted land, and the second appellant occupies it through a lease agreement, the occupation is unlawful. As already determined elsewhere in this judgment, the law and the courts cannot protect an illegality regardless of the colour, nationality or race of the perpetrator.

This should really be the answer to the appellants' argument in this respect, but, for the sake of completeness, there is need to look at the argument from a different perspective. For that purpose, I consider it necessary to determine whether the first appellant, being a juristic person, is, in fact, an indigenous black person.

The first appellant's argument is that it is an indigenous black person because its shareholders are black indigenous natural persons.

It is trite and a matter of elementary law that a company is a fictitious, juristic legal entity with a separate and distinct legal existence apart from its shareholders. It is capable of owning property in its own right separate from that of its shareholders. It is an established principle of our law that a company's property is not the property of its members, shareholders or directors. The principle was laid down in Salomon v Salomon and Co Ltd [1897] AC 22 HL per LORD HALSBURY LC (30) when he said:

“It seems to me impossible to dispute that once a company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are.”

From the above exposition of the law, it follows that the first appellant, TBIC Investments (Pvt) Ltd, is a separate legal entity from its owners, shareholders and directors.

The question to be addressed, in the circumstances, is whether a registered company can be classified as being of black or white race.

In addressing that question, it is important to note that a company has no real physical existence but it is merely an abstract, fictitious legal entity. It has no physical existence, colour, flesh or blood. In Dadoo Ltd and Others v Krugersdorp 1920 AD 530…, the Court held that:

“A company cannot have an enemy character. In the words of BUCKLEY LJ, it has neither body parts nor passions; it cannot be loyal or disloyal.”

From the authorities, and pure common sense, it follows that a company has no colour or race. It does not adopt the colour or race of its owners, shareholders or directors.

The argument by the first appellant, TBIC Investments (Pvt) Ltd, that it is a black indigenous person is therefore seriously flawed. Government policy relating to indigenous persons only relates to natural persons and not companies. No Government policy is violated when Government acquires land from a company for resettlement purposes.

The court a quo's determination that the first appellant could lawfully be removed from the land to pave way for the first respondent cannot be faulted.

Having found that the farms were compulsorily acquired in terms of the law, it follows, therefore, that the appellants are not entitled to an eviction order against the second to the fourth respondents. That is so for the following reasons;

Section 290(1)(a) of the current Constitution provides that all agricultural land which was itemised in Schedule 7 to the former Constitution continues to be vested in the State. Section 291 of the Constitution goes on to state as follows:

“291 Continuation of rights of occupiers of agricultural land

Subject to this Constitution, any person who, immediately before the effective date, was using or occupying, or was entitled to use or occupy, any agricultural land by virtue of a lease or other agreement with the State continues to be entitled to use or occupy that land on or after the effective date, in accordance with that lease or other agreement.”

It is not in dispute that the second to fourth respondents are in possession of offer letters to the farms in question. The farms continue to vest in the State. Section 291 of the current Constitution…, entitles the second to fourth respondents to continue to occupy the farms. Furthermore, section 3(1) as read with section 2 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] confirms that once a person is given an offer letter to land which was compulsorily acquired, they have the lawful authority to occupy the land. Section 3(1) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides that no person may hold, use or occupy gazetted land without lawful authority.

Section 2 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] defines lawful authority to include an offer letter.

By enacting section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28], the Legislature intended that occupants with offer letters be allowed to occupy gazetted lands. To then suggest that the respondents be removed from farms which they legally occupy would be, in effect, to render the Gazetted Land (Consequential Provisions) Act nugatory.

The appellant's right to occupy the farms was overtaken by events upon the coming into effect of the Constitution of Zimbabwe Amendment (No.17) Act, 2005 which ushered in section 16B of the former Constitution; resultantly, the appellants could not have been given a spoliation order in their favour against people who are legally entitled to occupy the farms.

As was held in Commercial Farmers Union & Ors v The Minister of Lands & Rural Resettlement & Ors 2010 (2) ZLR 576 (S)…, spoliation is a common law remedy which cannot override the will of Parliament and a common law remedy cannot render nugatory an Act of Parliament. The High Court was therefore correct in refusing to grant the spoliation order which the appellants sought.