MAKONI
J: The applicant approached this court
seeking an order in the following terms:
1.
That the applicant be and is hereby declared the legal
owner of certain piece of land called Lot 1 of Orange Grove situate in the
District of Hartley measuring 2 039 6170 acres held under Deed of Transfer
Number 609/66.
2.
That the offer letters issued in favour of the fifth to
ninth respondents be and are hereby declared void and therefore of no force and
effect on the ground that the farm was de-listed by Government on 21 January,
2005.
3.
That the fifth to ninth respondents be and are hereby
ordered to vacate the said farm, forthwith and not to interfere with the
applicant's workers and operations at the said farm.
4.
That the fifth to ninth respondents pay costs of suit
jointly and severally the one paying the other to be absolved.
The
basis of the application is that the applicant is the current owner of a
certain piece of land called Lot 1 of Orange Grove Hartley (“the farm”). On 12
December 2003 the Minister of Lands, Land Reform and Resettlement (the
Minister) published a notice of acquisition of the farm in the Government
Gazettee.
Representations
were made to the minister that the farm was now owned by indigenous
Zimbabweans. On 21 January 2005 the farm was de-listed by a publication in the
Government Gazettee. In February 2005 the Government also issued a certificate
of No Present Interest in the farm.
After
the delisting of the farm, some persons, including the fifth to the ninth
respondents were issued with offer letters in respect of subdivisions on the
farm. The respondents are now claiming the right to occupy and carry out
farming activities on certain portions on the farm on the basis of the offer
letters.
The
first respondent's position is that despite the delisting of the farm, it was
subsequently acquired by operation of the Constitutional Amendment Act (No. 17)
(“the Act”) as it was listed in the schedules. The applicant has no locus standi to seek the eviction of the
respondents as it does not own the farm.
The
fifth to the ninth respondents' position is basically the same of that of the
first respondent.
From
the first respondent's stance, it was my view, that the parties address me on
the following:
(i)
the effect of delisting gazetted land and
(ii)
the effect of the provisions of the Act on de-listed
properties.
The parties
filed supplementary heads addressing the issues. The first to fourth
respondents had been barred for failing to file heads of argument in terms of
the rules. I, however, invited the Attorney General's Office to address the
court on the above issues as amicus curiae.
Mr
Chikomo submitted that de-listing the
farm, meant that the land had been taken out of the list of properties intended
for acquisition. It no longer existed in the gazettee or gazette extraordinary.
Section
16 B of the Act was intended for land that was gazetted. If it was intended for
land whose notices to acquire had been withdrawn, the legislature would have
specifically and expressly stated so.
Mr
Jena submitted that the farm was
acquired by operation of s 16 B (2) of the Act. Section 16 B (2) lays down the
procedure for acquiring land and specifically mentions “All agricultural land
…” regardless of whether it had been listed or de-listed before. The land in
issue is listed in Schedule 7 of s 16 B of the Act.
The
heads of argument filed by the Attorney General did not assist the court as
they did not address the issues raised by the court. However, towards the end
of their submissions, they make the point that if the legislature intended that
land previously de-listed would not be acquired pursuant to s 16 B (2) of the
Act, it would have enacted such a provision.
The
first respondent uses the word de-list to refer to situations where the
preliminary notice to acquire land is withdrawn in terms of s 5 (i) of the Land
Acquisition Act Chapter 20:10.
Section
16 B (2) reads:
“Not
withstanding anything contained in this Chapter –
(a)
all agricultural land –
(b)
(i) that
was identified on or before the 8th July, 2005, in the Gazette or
Gazettee Extraordinary under s 5(1) of the Land Acquisition Act [Cap 20:10], and which is itemized in Schedule 7, being agricultural land
required for resettlement purposes; or
(ii) …
(iii) …
is acquired by
and vested in the State with full title therein with effect from the appointed
day or, in the case of land referred to in subpara (iii), with effect from the
date it is identified in the manner specified in that paragraph; and …
Three issues arise
from a reading of s 16 B (2)
(i)
the land must have been identified on or before 8th
July 2005;
(ii)
it must be itemized in Schedule 7; and
(iii)
it must be agricultural land required for resettlement
purposes”.
Items (ii) and (iii) are not in
issue. I will only deal with item (i).
In
my view it is important, at the outset to define what identifying means in the
context of Land Acquisition Act and s 16 B of the Act.
Section 5(1) of
the Land Acquisition Act provides:
“Where an
acquiring authority intends to acquire any land otherwise than by agreement, he
shall –
publish once in
the Gazette and once a week for two consecutive weeks, commending with the day
on which the notice in the Gazettee is published, in a newspaper circulating in
the area in which the land to be acquired is situated …, a preliminary notice –
(i)
describing the nature and extent of the land which he
intends to acquire …
(ii)
setting out the purpose for which the land is acquired
(iii)
…”.
In
my view, the process as laid out in s 5(1) of Land Acquisition Act is the
process of identifying the land. It includes publication in one Gazettee.
It
is common cause that a preliminary notice in terms of s 5 (1) of the Land
Acquisition Act was published on 21 January 2003 in respect of the farm. It was
therefore identified by that publication. It is also common cause that the
preliminary notice was withdrawn by a publication in the Gazettee of 21 January
2003. The withdrawal was done in terms of s 5 (7) of the Land Acquisition Act.
This
would then bring the question of what is the effect of the withdrawal of the
preliminary notice to acquire land. In the Reader's Digest – Oxford-Complete
Wordfinder the word withdrawn is defined as:
“(1) pull or
take aside or back (2) discontinuing, cancel, retract (3) remove, take away
(4) take money out of an account (5) retire
or go away, move away or back”
In the context
of the Land Acquisition Act the meaning attributable to the word withdraw would
be “discontinue, cancel, retract”. If one were to use the above meaning, it would mean that the
government cancelled or retracted the preliminary notice in respect of the
farm. It no longer had an interest in the farm.
If
it were to develop an interest in future it would have to start the whole
process of acquisition afresh
My
view is fortified by the procedure, laid down in s 5 (9) regarding lapsed
notices. It provides that were a preliminary notice lapses for the reasons
provided, nothing shall prevent, the acquiring authority from issuing fresh
notice in terms of subs (1) or (3) as the case maybe –Section 5 (a) provides
for the process of identifying the land afresh in respective of lapsed notices.
My view is that the same should apply in respect of withdrawn notices.
It
is not in issue that the land in question was not issued with a fresh notice of
acquisition. It is clear that it was a mistake or an oversight on the part of
the acquiring authority to include the property in Schedule 7 of s 16 B, since
the initial identification of the land had been withdrawn.
It
is therefore my finding that the land was not acquired by the operation of the
provisions of s 16 (B) of the Act as advanced by the respondents.
Having
arrived at that conclusion, it follows that the issue whether the applicant has
locus standi or not falls away. The
land in question is owned by the applicant. The fifth to ninth respondents are
claiming occupation on the basis of offer letters. The first respondent is not
the owner of the property and cannot, therefore, issue offer letters in respect
of that land. The applicant has established a basis for the order that it
seeks.
In
the result, I will make the following order:
1.
The applicant be and is hereby the legal owner of
certain piece of land called Lot 1 of Orange Groove situate in the District of
Hartley measuring 2 039 6170 held under Deed of Transfer number 609/06.
2.
The offer letters issued in favour of the fifth to
ninth respondents be and are hereby declared void and of no force and effect.
3.
The fifth to ninth respondents are hereby ordered to
vacate the said farm forthwith and are ordered not to interfere with the
applicant's workers and operations at the farm.
4.
The fifth to ninth respondents pay costs of suit
jointly and severally the one paying the one to be absolved.
Mhiribidi, Ngarava & Moyo,
applicant's legal practitioners
Mpame Associates, 5th,
6th, 7th, 8th and 9th respondents'
legal practitioners
