BHUNU
J: The applicant and the first respondent are engaged in a vicious scramble over
the right to occupy the Remainder of Lot 19 of Umsungwe Block measuring 69.
5113 hectares situate in the district of Gweru in the Midlands
province. While the description of that land varies, its identity is not in
dispute.
The
applicant claims the right to occupation on the basis of an offer letter issued
to him by the acquiring authority on 10th of November 2006 and a
permit issued to him by a Dairy officer on 6 May 2010. He now seeks the
ejectment of the first respondent from the disputed land on the basis of
spoliation.
On
the other hand the first respondent resists ejectment on the basis of an offer
letter issued to him by the acquiring authority dated 20 December 2010.
As
both parties' competing rights for possession of the land in dispute is
premised on the validity of official documents it is necessary to scrutinize
and look into the validity of those documents.
The
applicant is the previous owner of Lyndene Farm comprising five contiguous
pieces of land totaling approximately 390 hectares in extent namely Lots 18, 19,
20 and 29 of Umsungwe Block and Lots 27 and 28 of Wildebeeste.
It
is common cause that Lot 19 of Umsungwe Block was lawfully acquired by the
acquiring authority on 17 December 2010.
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 10th 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.
- 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.”
- You are offered Subdivision Whole of S/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.
- 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 under para 8.3 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: M P MATONGO
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.
- 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.
- You are offered Subdivision WHOLE of REM OF LOT 19
UMSUNGWE BLOCK in GWERU District of MIDLANDS PROVINCE for agricultural purposes. The farm
is approximately 69.5113 hectares in extent.
- 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, MDLANDS 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 27th of APRIL 2012.
Dated in Bulawayo
this 06th 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 1st respondent but
to premises on LYNDENE FARM.
In
the context of s 27 of the Dairy Act 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 Act 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 extent 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 s 8 (3) of the Land Acquisition Act [Cap 2010]. The only residual rights relate to
the prescribed time limits in terms of that Act to enable the applicant to wind
up his business and vacate the acquired land.
Looked at
differently, the dairy officer is not the acquiring authority.
Consequently, he
had no right to allocate any land. By authorizing the applicant to carryout
dairy business on the premises until April 2012 the dairy officer was not
allocating any land to the applicant. This was a mere administrative measure to
facilitate the operation of dairy business on the land.
The
applicant is the holder of a Part IV permit or registration certificate issued
by
a dairy officer.
Section 27 of the Dairy Act however provides that such a permit or certificate
of registration can only be issued by the Chief dairy officer or local
authority. The section provides that:
“27. Dairies, depots, and ice-cream
factories to be registered
(1)
No person shall use any premises as:-
(a)
a farm butter dairy; or
(b)
a farm cheese dairy; or
(c)
a farm dairy; or
(d)
an ice-cream factory; or
(e)
milk dairy; or
(f)
a milk depot;
Unless he holds a Part 1V registration
certificate which-
(i)
has been issued in respect of the premises; and
(ii)
is not suspended in terms of subsection twenty-eight .
(2)
subject to this section, if the premises referred to in
subsection (1) are-
(a)
situated within the area of a local authority,
registration thereof shall be effected with the local authority;
or
(b) situated outside the area of
a local authority, registration thereof shall be effected with the Chief
dairy officer.”
The
Dairy officer or the Regional Dairy officer was therefore acting ultra vires his powers by issuing the
Part 1V registration certificate when it was not his function to do so.
The certificate of registration which forms
the basis of the applicant's claim to possession of the disputed land is
therefore, a legal nullity and to that .extent of no force or effect.
On
15 December 2011 I issued a consent order under Case No. HC 7992/2010 in the
following terms:
“1. That
it be and is hereby declared that the remaining extent of Lot 19 of the
Umsungwe Block in the district of Gwelo, (Now Gweru) measuring 69.5113 hectares
held under deed of transfer 9990/66 (“the property”) up until 26th November,
2010 was owned by applicant.
- That
it be and is hereby declared that first respondent's summary entry,
occupation and use of the property is unlawful having been occasioned
without due process and amounts to spoliation.
- The parties hereto, hereby acknowledge and accept
that first respondent established a maize crop on a portion of the
property and notwithstanding the provisions of para 2, applicant shall
allow first respondent and his employees/ representatives there present to
at all reasonable times have reasonable access to the said crop for the
purposes of maintenance which access shall continue up to the harvesting
of such crop, subject further to the understanding and undertaking that
there shall be no acts of intimidation and interference to applicant,
employees and representatives and reciprocally by applicants, first respondent
and his representatives/employees
Further in
addition, the applicant and his representatives/employees and first respondent
and his representatives/employees shall during the currency of this order do
all that is reasonable, necessary and practicable to ensure that the first respondent's
integrity to the crop shall be maintained.
- That first respondent's employees/representatives who
have de facto established
temporary accommodation being a wooden cabin/and toilet on the property
shall pursuant to the provisions of para 3 be entitled to continue to
reside in such structures without interference until such time as the
maize crop has been harvested and further subject to the provisions of
law.
- That there be no order as to costs.”
The above consent order was premised on the fact that as at the date of
the order the applicant was deemed to be the lawful owner of the disputed land
because first respondent's possession of the land was based on what appeared to
be a defective offer letter as the land had not been lawfully acquired.
Now that the land has been lawfully acquired and the first respondent is
now in possession of a valid offer letter my order of the 15th
December 2010 has since been overtaken by events. The applicant's occupation
can no longer be said to be unlawful when he is now armed with a valid offer
letter entitling him to take occupation of the disputed land according to law.
At this hearing we were told that the initial 45 day period had expired
thereby confining the applicant to the principal dwelling premises. That turn
of events renders his continued occupation of the rest of the farm except the
dwelling premises unlawful. His continued occupation of the rest of the
disputed land in defiance of the law amounts to criminal conduct. In the
circumstances, the Court cannot come to his aid without being guilty of
complicity in the crime. That eventuality has also deprived him of his locus stand to challenge the first
respondent's occupation of the land in the courts
In the words of CHIDYAUSIKU CJ in the recent case of Commercial Farmers Union and Nine
Others v The Minister of Lands and Rural Resettlement and Five Others. SC
31 /10 at p 25 of his cyclostyled judgment:
“This Court or
any other court for that matter has no jurisdiction to authorize the doing of
that which Parliament has decreed would constitute a criminal offence. Put
differently a Court of law cannot authorize an individual to commit a criminal
offence”
I
am in respectful concurrence with the learned Chief Justice's observation in
this respect. In the case of Top Crop
(1976) (Pvt) Ltd and Malcolm William Clerk v Minister of lands and Land Reform
and Yvonne Samukeliso Gumede HH 74/09 I had reached the same conclusion
though the High Court was divided over the issue at the time. Hopefully the
matter has now been put to rest by the highest Court of the land.
While
the applicant is entitled to protection during the unexpired portion of his
stay in the principal dwelling house, the issue of whether or not his rights in
this respect have been violated is mired in serious factual controversy such
that the dispute is incapable of resolution on the papers. The applicant can however;
still take the necessary legal action if the conduct complained of persists.
The
first respondent has also complained that the applicant is in the habit of
making false police reports against his employees in order to flush them out from
the disputed land. In the Commercial
Farmers Union case (supra) the Learned
Chief Justice warned law enforcement agents and the courts against being used
by unscrupulous complainants to facilitate the defiance of the law and commission
of a crime. Hopefully the police and the courts will take heed. I also observe
in passing that making a false report to the police constitutes a criminal
offence. The police must take appropriate action to forestall such criminal
conduct.
The
rule of law entails the due observance and obedience of the law regardless of whether
or not one agrees with that law. No matter how much one may detest the law
every law abiding subject is bound to obey that law. One cannot seek the due
protection of the law in circumstances where he is in open defiance of the same
law.
In the result
the applicant's application for a spoliation order can only fail
It
is accordingly ordered that the application for a spoliation order be and is
hereby dismissed with costs.
Gollop and Blank, applicant's legal practitioners
The 1st respondent appeared in person
The
Attorney-General's Office, respondent's legal practitioners
