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.
