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. The 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.
For the above reasons, the Court dismissed the
application for lack of merit with no order as to costs.
