CHIWESHE
JP: In this urgent chamber application
the applicant seeks a provisional order in the following terms:
“1. TERMS OF FINAL ORDER SOUGHT
1.1.
The provisional order be and is hereby confirmed
1.2.
That the respondent shall pay costs of suit.
2.
INTERIM
RELIEF GRANTED
A “Mandament van spolie” be and is hereby
granted restoring the “status quo ante” which prevailed prior to the 1st
October 2010 to the respondent's occupation of a piece of land known as
Elsinora, situate in the district of Mazowe, and that such restoration be
achieved by the eviction of the respondent, his possessions and all persons
holding through him from the property in question.
3.
SERVICE OF
ORDER
That service
of this order be effected by the applicant's legal practitioners or the Deputy
Sheriff / Messenger of Court on the respondent.”
The
founding affidavit is sworn to by Duncan Hamilton, a director of the applicant
company. The affidavit is to the following effect.
The applicant is a company duly
incorporated and registered in terms of the laws of Zimbabwe. It carries out its farming operations at
Forrester Farm, Mvurwi. The farm is
demarcated into several sections. The
applicant's majority shareholders are German nationals whose investment is
protected by a “Bilateral Investments Promotion and Protection Agreement
(BIPPA), which was signed by the Governments of Zimbabwe and Germany on 29
September 1995.
On 1 October 2010, the respondent
forcibly occupied the D section of Forrester Farm on the strength of an offer
letter. D section is also referred to as
Elsinora. This occupation took place
without the applicant's consent or court order.
Prior to the occupation the applicant was in peaceful and undisturbed
possession of the property. The
applicant informed the respondent that the property had not been acquired by
the Government, a fact which had been confirmed by several judgments of this honourable
court between 2002 and 2009. The
applicant reported this matter to the police who, acting on the instructions of
the District Administrator, declined to intervene. For that reason, there was no remedy readily
available to the applicant hence this application for a spoliation order. The applicant says that assuming the
respondent has an offer letter, such does not entitle him to take the law into
his own hands and occupy its property without its consent or court order.
It is necessary to resolve three
issues that are central to this application.
The first issue is whether the property in question has been acquired by
the State. The applicant is adamant that
the property has not been acquired by the State. In this regard the applicant has relied on
various judgments of this court in which it has been consistently held that the
purported acquisition of the property through a notice issued in terms of s 5
and orders issued in terms of s 8 of the Land Acquisition Act [Cap 20:10] are in contravention of the
BIPPA signed between Zimbabwe and Germany on 29 September 1995 and therefore of
no legal force or effect. (See Forrester Estate & 10 ors vs The
Minister of Lands Agriculture and Rural Resettlement and 8 ors HC 8592/02, Forrester Estate vs L. Mufandaedza and 2
ors, HC 7030/06, Forrester Estate vs
Z. Mereki, HC 6116/07 and Forrester
Estate vs Lovemore Makunun'unu, HC 6586/07)
I invited the Minister of Lands and
his officials to make submissions on this issue (in any event the Minister
should have been cited as a party to this application on account of his obvious
interest). Miss Mnangagwa, a law officer
in that ministry, submitted a written response dated 2 November 2010, stating
that the property was acquired in terms of the Constitution of Zimbabwe
Amendment (No 17) Act, 2005. This
amendment created s 16 B of the Constitution, subsection (2) (a) of which
provides:-
“(a) all agricultural land –
(i)
that was identified on or before the 8th
July, 2005, in the Gazette or Gazette Extraordinary under section 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)
that is identified after the 8th July 2005,
but before the appointed day, in the Gazette or Gazette Extraordinary under
section 5 (I) of the Land Acquisition Act [Cap
20:10], being agricultural land required for resettlement purposes; or
(iii)
that is identified in terms of this section by the
acquiring authority after the appointed day in the Gazette or Gazette
Extraordinary for whatever purpose, including, but not limited to –
A.
settlement for agricultural or other purposes; or
B.
the purposes of land reorganization, forestry,
environmental conservation or the utilization of wild life or other natural
resources; or
C.
the relocation of persons dispossessed in consequence
of the utilization of land for a purpose referred to in subparagraph A or B;
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 subparagraph (iii), with effect from the date it is identified in the manner
specified in that paragraph; and
(b)………………………………………..”
Ms Mnangagwa has indicated that Elsinora Farm of Umvukwe Estate
appears in schedule 7 under General Notice Number 50A of 2001. A perusal of the General Notice Number 50 A
of 2001 will show the present property described at entry number 41 of the
schedule thereto as follows:-
“41 Deed of
Transfer 1828/42, registered in the name of Forrester Estate Limited in respect
of certain piece of land situate in the district of Mazowe, being Elsinora of
Umvukwe Estate, measuring one thousand
six hundred and eighty – seven comma one three five (1687,135) morgen.”
I am satisfied that this description
refers to the property under consideration. I conclude therefore that this
property is “gazetted land” acquired in terms of 16 B of the Constitution.
The second issue is whether the
acquisition is in breach of the BIPPA and, if so, whether it is of no legal
force or effect by virtue of such breach?
I am precluded from making any determination in this regard by virtue of
the provisions of s 16 B (3) (a) of the Constitution which provide in part as
follows:-
“(3)
…………………………., that is to say, a person having any right or interest
in
the land –
(a)
shall not apply to a court to challenge the acquisition
of the land by the State, and no court
shall entertain any such challenge.”
The intention of
the legislature has been expressed in such clear and unambiguous language. The jurisdiction of the courts in this regard
has been ousted by the provisions of s 16B (3) (a) of the Constitution. The applicants are precluded from challenging
the acquisition of the property in court and the court is in turn precluded
from entertaining any such challenge.
See Mike Campbell (Pvt) Ltd and
ors vs Minister of National Security Responsible for Land, Land Reform and
Resettlement and anor SC 49/07 where MALABA JA (as he then was) said at pp
36 – 38
“By the clear and
unambiguous language of s 16 B (3) of the Constitution, the Legislature, in the
proper exercise of its powers has ousted the jurisdiction of courts of law from
any of the cases in which a challenge to the acquisition of agricultural land
secured in terms of s 16 B (2) (a) of the Constitution could have been sought.”
In addition s 16 B contains a “non abstante” clause. In Commercial
Farmers Union and ors vs Minister of Lands and
Rural Resettlement and ors SC 31/10 CHIDYAUSIKU CJ at p 10 of the cyclostyled
judgment had this to say:
“Consequently s
16 B prevails over all other sections of the Declaration of Rights provisions
of the constitution. All other sections
in the Declaration of Rights or Chapter III of the Constitution are subject to
section 16 B of the Constitution. In
other words, any rights conferred on anybody in terms of the Declaration of Rights
or Chapter III of the Constitution can be derogated in terms of section 16 B of
the Constitution. Such derogation would
not constitute a violation of the Constitution.
In terms of section 16 B of the Constitution, a litigant cannot
successfully contend that the acquisition of his or her land is unlawful
because it violates a right conferred on the litigant in terms of the Declaration
of Rights contained in Chapter III of the Constitution.”
And at p 17 of the same judgment
the learned Chief Justice went on to say,
“The effect of s 16 B of the Constitution is
that it renders agricultural land occupied under Bilateral Investment
Protection Agreements (BIPAs) liable to compulsory acquisition if the acquiring
authority considers that it is required for resettlement purpose as prescribed
under s 16 B (2) (a) (iii)”
It is clear to me that the present
property is subject to a BIPA but capable of proper and lawful acquisition in
terms of s 16 B of the constitution. I
hold that the State has duly acquired this property and that the applicants no
longer have any rights to it.
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 case supra it was
stated at p 28 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 s 2 of the Act and s 8 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 case supra it was said at p 29 under
subheading 8 that
“(8) While s 3
(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.
It was for these reasons that I dismissed
the application with costs.
Wintertons applicant's
legal practitioners
