Criminal
Appeal
TAKUVA
J: This
is an appeal against the decision of the magistrates' court sitting
at Gwanda, in which the appellant was ordered to stand trial on
allegations of contravening the provisions of section 3 of the
Gazetted Land (Consequential Provisions) Act Chapter 20:28
(hereinafter “the Act”).
The
factual allegations were that on 19 May 2006, the state acquired
Famona Farm in terms of section 16(B)(2)(a)(iii) of the Constitution
of Zimbabwe by publishing general notice 128 of 2005 in the
Government Gazette (Extraordinary) of the 19th
of May 2006.
The
appellant then failed to comply with the provisions of section 3 of
the Act. Specifically it was alleged that the appellant failed to
vacate the acquired land within 45 days from the fixed date which was
the 20th
day of December 2006.
Essentially
the charge was that appellant had continued to occupy the farm
without lawful authority.
After
the ruling, the appellant appealed to this court.
On
9 September 2013, both parties filed what they termed “stated case
on a point of law arising on appeal.” The document states:
“Background
and Accepted Facts
1.
On the 29th
November 2010, the above cited appeal was called before this
Honourable Court.
2.
Upon hearing the parties briefly the court directed that counsel for
the respondent must investigate the authenticity of the letters filed
of record by the appellant.
3.
Such letters related to Famona Farm, the farm in respect of
occupation of which the criminal charges against the appellant were
levelled, which charges the appellant moved unsuccessfully to quash,
leading to the present appeal.
4.
The letters purported that Famona Farm had been transferred from the
control of the Ministry of Environment and Tourism.
5.
Further, the letters reported that the Ministry of Environment and
Tourism desired to leave the farm for stated reasons, in the control
and administration of the appellant and his company, GAMESTONE
SAFARIS.
6.
Counsel for the respondent had investigated the letters and can
confirm before this Honourable Court that the letters have been
written with the authority of the Ministry of Environment and Tourism
and that this Ministry has consented that the appellant and GAMESTONE
SAFARIS remain in occupation and control of the farm.
7.
The
parties, therefore agree that:
7.1
Famona farm has been acquired by the state;
7.2
The State is now the owner of the farm;
7.3
The administration of Famona Farm, however, has been removed from the
Ministry of Lands, Agriculture and Rural Resettlement, to the
Ministry of Environment and Tourism;
7.4
The Ministry of Environment and Tourism administers the farm on
behalf of the State.
POINTS
OF LAW
At
the present time, with the leave of this Honourable Court, the
parties agree that they will, when the appeal is called, argue only
the following points of law:
8.1
whether the letters produced of record by the appellant, emanating
from the Ministry of Environment and Tourism, amount to a 'permit'
or other legal authority for the appellant to remain on the farm;
8.2
whether, therefore, the charges against the appellant were
incompetent, standing to be quashed by the trial court, by reason
that the appellant had lawful authority to remain on Famona Farm.”
Appellant's
argument is two pronged:
(i)
Firstly, he argues that he had lawful authority in the form of
letters from certain government departments to remain on the farm.
(ii)
Secondly, he relies on the defence of mistake of law.
I
will deal with these grounds seriatum but before I do that let me
examine the essentials of the offence the appellant was charge with.
Section
3(1) and (3) of the Act read as follows:
“(1)
Subject to this section, no person may hold, use or occupy gazetted
land without lawful authority;
(2)…
(3)
if a former owner or occupier of gazetted land who is not lawfully
authorized to occupy, hold or use that land does not cease to occupy,
hold or use that land after the expiry of the appropriate period
referred to in subsection (2)(a) or (b), or, in the case of a former
owner or occupier referred to in section 2(b), does not cease to
occupy his or her living quarters in contravention of proviso (iii)
to section 2(b), he or she shall be guilty of an offence and liable
to a fine not exceeding level seven or to imprisonment for a period
not exceeding two years or to both such fine and such imprisonment.”
Section
2, in which the definitions are contained, is also relevant in the
following parts:
1.
in its definition of lawful authority, as follows;
“'lawful
authority' means -
(a)
an offer letter; or
(b)
a permit; or
(c)
a land settlement lease: and
'lawfully
authorized' shall be construed accordingly.”
2.
in its definition of offer letter:
“'offer
letter' means a letter issued by the acquiring authority to any
person that offers to allocate to that person any gazetted land, or a
portion of gazetted land, described in that letter;” and
3.
in its definition of permit;
“'permit'
when used as a noun, means a permit issued by the state which
entitles any person to occupy and use resettlement land.”
From
the above, it is clear that the following are the essential elements
of the charge;
(a)
the accused must be a former owner or occupier;
(b)
of gazetted land;
(c)
who has not ceased to occupy, hold or use that land;
(d)
after the expiry of the appropriate period referred to; and
(e)
has no lawful authority to occupy or use that land.
In
casu,
the only issue is whether or not appellant has lawful authority to
occupy or use that land.
It
was contended on appellant's behalf that he had permission to
remain on the farm. This permission arose from the various
negotiations, representations and undertakings by government
officials.
The
essence of the representations was that the farm would be removed
from the control of the Ministry of Lands, Agriculture and Rural
Resettlement the acquiring authority to the control of the Ministry
of Environment and Tourism because of the business operations carried
out on the farm.
Further,
an undertaking was then made to the appellant and the company that
upon such transfer, the Ministry of Environment and Tourism would
sign a 25 year lease with the appellant.
Appellant
attached the following correspondence by consent of the respondent:
1.
Appendix 1 a letter dated 1 November 2007 advising appellant of the
initiative to transfer the farm from the Ministry of Lands,
Agriculture and Rural Resettlement, to the Ministry of Environment
and Tourism;
2.
Appendix 2 a letter from the Director General of the Zimbabwe Parks
and Wildlife Management Authority, confirming the strategic location
of and business at the farm on 18 February 2008.
3.
Appendix 3, a letter dated 9 November 2010, served as apparent from
the stamp and signature acknowledging receipt of a copy on the
Minister of Lands and Rural Resettlement on 9 November 2010, which
advised that a 25 year lease was being prepared in favour of the
company.
4.
Appendix 4, letter from appellant dated 16 November 2010, accepting
the offer of a 25 year lease.
5.
Appendix 5, letter dated 20 February 2012 advising that deliberations
were being held between the Ministries of Lands & Rural
Resettlement and Environment and Tourism, concerning the farm in
issue.
6.
Appendix 6, letter dated 12 July 2012, advising that the farm had
been formally transferred from the control of the Ministry of
Environment and Tourism.
The
respondent while acknowledging the authenticity and sources of the
above letters insisted that the appellant did not have lawful
authority because he does not possess an offer letter issued by “the
acquiring authority” i.e. the Ministry of Lands.
However,
respondent conceded that a proper interpretation of the definition of
a permit in the Act is that it can be issued by “any state organ”
unlike an offer letter that can only be issued by the “acquiring
authority”.
Put
differently it was conceded that the definition of a “permit” is
wide.
In
my view the land reform policy is multifaceted in that it focuses on
different uses of acquired land.
What
happens in practice is that once land is gazetted and acquired by the
State through the “acquiring authority” that authority can
transfer the land to another ministry for occupation and use in
accordance with that ministry's requirements and needs.
Gazetted
land for example can be transferred from the Ministry of Lands to the
Ministry of Local Government for urban expansion. It can also be
transferred to the Ministry of Environment and Tourism in order to
boost or promote proper management of government's wild life
policy.
For
these reasons, the argument that notwithstanding such transfers the
Ministry of Lands retains the mandate to authorize the use and
occupation of such transferred land becomes untenable, not only
because it defies logic and common sense, but because it contradicts
the clear meaning of the definition of the word permit in the Act.
In
casu,
the inter-ministerial process has since been finalised in July 2012,
as seen from appendix 6.
As
matters stand, the farm in issue is now under the control of the
Ministry of Environment and Tourism, which, based on their business
operations and record, is willing to permit appellant and the company
to occupy and run the farm on the basis of a twenty-five year lease.
In
view of the wide definition of the word permit,
I find that the letters of 16 November 2010 and 12 July 2012 in
particular constitute a permit as defined in section 2 of the Act.
Consequently,
the appellant had lawful authority to occupy and use the farm in
issue.
As
regards the second ground of appeal, the contention is that the
appellant was misled into breaching the provisions of the Act by
government officials.
The
argument is that, subjectively the appellant believed, based on what
was stated and undertaken to him, that he had the right to remain on
the farm. He believed that all steps requisite to the regularization,
or formalization of his stay were being taken. Indeed a firm decision
to transfer control of the farm from one Ministry of another was
taken in July 2012.
It
is trite law that while ignorance of the law is generally not an
excuse, a person may be excused from criminal liability where such a
person has been misled into breaching the law by government agents –
see S
v
Davy
1988 (1) ZLR 386 (SC) where GUBBAY JA (as he then was) stated as
follows:
“It
necessarily follows that in my opinion the rule that ignorance or
mistake of law is no excuse which judicial officers have applied for
so long in this country in conformity with both English law and the
decision of the South African courts prior to the advent of de
Blom's
case
supra
remains
valid.
Its
strength has hardly been shaken.
It
is, however, subject to the exception that where the accused acted
upon incorrect advise as to the law given by a government official
who is primarily responsible for the administration of the particular
statute to which the matter relates, his ensuing mistake of law is a
good defence. See S
v
Zemura,
supra
at 377E–G.
As
expressed by LEWIS AJP in S
v Bledig
& Anor
1974 (1) RLR 100 (AD) at 109A:
'There
is something in the nature of an estoppel present when the state
prosecutes a person for certain conduct when he has been induced by
advice received from a responsible representative of the state to
embark on such conduct.'
Clearly
the exception is grounded in reasons of public policy.
Where
the state has misled a man into a contravention of the law as a
matter of public policy he should be entitled to an acquittal. But
care must be taken not to extend the exception beyond the strict
limits of Zemura's
case,
for to do so would be 'extremely dangerous and would tend to
frustrate the enforcement of statutory provisions.' See Bledig's
case supra
at 108 in fine.”
In
casu,
it is clear from the numerous correspondence referred to that the
appellant was indeed misled by government officials into breaching
the provisions of the Act.
It
is unfortunate that the Ministry of Environment and Tourism has taken
a long time to finalise the 25 year lease with the appellant.
However, this bureaucratic delay is not of the making of appellant
and should therefore not place him at any disadvantage – see DPP
and Minister
of Justice and
Constitutional
Development
v Phillips
(803/2011) [2012] ZASCA 140 (28 September 2012).
I
find therefore that appellant's occupation of the farm was not
illegal on the grounds that he had lawful authority to remain on the
farm.
Accordingly,
the appeal is allowed.
MOYO J………………………………I agree
Webb,
Low & Barry,
appellant's
legal practitioners
Prosecutor
General's
Office, respondent's legal practitioners
