The appellant was convicted of contravening section 3(2)(a) as read with subection(s) 3 and 5 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]….,.

He appeals against both conviction and sentence….,.  Five grounds of appeal are advanced on behalf of the appellant:

(i) The first ground is that the court a quo erred in holding that the offences under the Gazetted Land Act are strict liability offences.

(ii) The second ground advanced was that the court a quo erred in holding that the appellant is in occupation of Coldstream Estate.

(iii) The third ground advanced was that the court a quo erred in imputing criminal liability to the appellant for conduct which ought to have been imputed to Allied Timbers (Pvt) Ltd.

(iv) The fourth ground of appeal was that the court a quo erred in holding that the acquisition of 51% of the shares in EC Meikle (Pvt) Ltd by the then Forestry Company of Zimbabwe (Pvt) Ltd was tantamount to a sale of land.

(1)…,.

(2) Section 277(3), as read with section 277(5), of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is consistent with section 18(1), as read with section 18(13)(b), of the Constitution of Zimbabwe.

(3) Sections 3(2) and 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08] are consistent with section 18(1) of the Constitution of Zimbabwe.

Consequently, the prosecution of the applicants under section 277(3), as read with section 277(5), of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sections 3(2) and 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08] is lawful.

(4) The Workshop held at Chegutu on 6 February 2009 and its deliberations did not violate the applicants' rights protected in terms of section 18(2) of the Constitution of Zimbabwe.

(5) There will be no order as to costs."

On 26 November 2010 in the matter of Commercial Farmers Union and Nine Ors v The Minister of Lands and Rural Resettlement and Six Ors, this Court issued judgment No. SC31-10.

In that judgment, this Court dealt with issues that are identical to those that arise in the present case.

The reasons for judgment in Commercial Farmers Union and Nine Ors v The Minister of Lands and Rural Resettlement and Six Ors SC31-10 apply to the present case with equal force.  

This application is made in terms of section 24(1) of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution").  The applicants seek the relief set out in the draft order.

The applicants 2 to 10 (hereinafter referred to as 'the individual applicants') are former owners or occupiers of land that has been acquired by the State in terms of section 16B of the Constitution. In terms of section 16B of the Constitution, former owners or occupiers of land that has been acquired must cease occupation of the acquired land within ninety days.

The ninety days have since expired.

Despite the expiry of the ninety days, the individual applicants have remained in occupation of the acquired land. Section 3(2) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] (hereinafter referred to as 'the Act') explicitly provides that a former owner or occupier who does not cease to occupy acquired land on the expiry of the period prescribed shall be guilty of an offence.

The applicants allege that their constitutional rights, as guaranteed in Chapter III of the Constitution, have been violated in a number of respects. They have detailed the respects in which their rights have been violated in paragraph 16 of the founding affidavit, which reads as follows:

"16. The object of this application is generally to seek and secure the protection by the Courts of the applicants in terms of section 24 of the Constitution. The individual applicants and the CFU acting on behalf of its general membership complain that:

a) They are being improperly treated because of their race in contravention of section 23 of the Constitution;

b) They are being denied protection of the law and equality before the law under section 18 of the Constitution; and that

c) They are being unfairly tried on charges of contravening section 3 of the Gazetted Lands (Consequential Provisions) Act; and that

d) The racial imbalance sought to be addressed in the land reform programme has been achieved rendering any further evictions of white farmers unlawful; and that

e) The Ministers, Ministry officials, magistrates, public prosecutors, court officials, police and military (all being public officials) mentioned in the body of the application and affidavits have breached their duties in terms of section 18(1a) of the Constitution to uphold the rule of law and to act in accordance with the law."

On the basis of the alleged violations of their rights set out above, the applicants seek the relief set out in paragraph 20 of the founding affidavit as read with the draft order. Paragraph 20 of the founding affidavit reads as follows:

"20. The applicants seek the protection of the law as provided for in subsections (1) and (1a) of section 18 of the Constitution by placing a moratorium on:

20.1 The occupation by holders of offer letters for agricultural land which is still or already occupied by third persons - particularly those white farmers who may have been in occupation at the time of enactment of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

20.2 The institution and pursuit of prosecutions against such people under section 3(3)(a) of the (a)foresaid Act.

20.3 The seizure of farm equipment and material by the holders of offer letters and the acquisition of such property in the name of the first respondent.

20.4 The institution and pursuit of proceedings in the Administrative Court in applications by the Minister of Lands for confirmation of the acquisition of movable items so acquired.

The applicants pray that the moratorium remains operative pending an application by the respondents to show cause why they contend the racial imbalance, as envisaged in the Land Reform Programme, has not been addressed."

The draft order reads:

"1. That it be and is hereby declared that:

(a) The prosecutions and criminal proceedings in respect of the applicants referred to in PART VIII of this application for allegedly contravening section 3(2) as read with section 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] are invalid and of no force and effect in that they are in conflict with sections 16A, 18(1), 18(1a), 18(9) and 23 of the Constitution of Zimbabwe; and

(b) The purported attempts of whatsoever nature or kind by the first respondent to acquire farm equipment and material of the applicants referred to in PART VIII of this application are invalid and of no force and effect in that they are in conflict with sections 18(1), 18(1a), 18(9) and 23 of the Constitution.

2. That a moratorium be and is hereby ordered in respect of any attempt or intention by any of the respondents:

(i) To evict any white farmer from any farm referred to in PART VIII and of any member of the first applicant presently in occupation of their properties who have not been evicted by order of a competent court having final effect and who were conducting farming operations as at the date of the filing of this application; and

(ii) To acquire any farm equipment or material of any of the applicants referred to in PART VIII of this application.

3. The moratorium referred to in paragraph 2 above shall remain in force until:

(a) The respondents show good cause why, by application to this Court, that the alleged racial imbalance in redistribution of land for resettlement as referred to in the programmes of land reform produced by the first respondent has not been redressed; and

b) The first respondent has complied with its programme of land reform.

4. The respondents shall pay the costs of this application jointly and severally the one paying the other to be absolved."

Counsel for the first respondent…, initially raised a number of preliminary objections to the application and filed a written application for the preliminary points raised to be determined before consideration of the merits of this case.  The preliminary points raised…, may be summarised as follows –

1. The allegation that the criminal prosecutions of the applicants in terms of section 3(3) of the Gazetted Lands Act [Chapter 20:28] are unlawful by reason of the fact that they contravene section 18(1) of the Constitution is devoid of merit as that issue has been decided in the matter of Tom Beattie and Anor v Ignatius Mugova and Anor, Supreme Court Appeal No.32/09.  

The Court order issued in that case reads in relevant part:

"IT IS DECLARED THAT:

(1)…,.

(2)…,.

(3) Sections 3(2) and 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08] are consistent with section 18(1) of the Constitution of Zimbabwe. Consequently, the prosecution of the applicants under section 277(3), as read with section 277(5), of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sections 3(2) and 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08] is lawful.

(4) The Workshop held at Chegutu on 6 February 2009 and its deliberations did not violate the applicants' rights protected in terms of section 18(2) of the Constitution of Zimbabwe.

(5)…,. "…,.

However, the order explicitly declares section 3(2) and section 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08] as constitutional and the prosecution of formers owners and occupiers is lawful;

2. The issue of the alleged unfair trials in contravention of section 18(1a) of the Constitution and section 18(9) of the Constitution in court proceedings following a workshop held at Chegutu was similarly determined in the case  of Tom Beattie and Anor supra;

3. The issue of discrimination against the applicants, in contravention of section 23 of the Constitution, is not justiciable in terms of section 16B(3) of the Constitution;

4. The issue of whether or not enough land for resettlement has been acquired is a policy issue and not a legal issue and therefore not justiciable;

5. The alleged contraventions of sections 18(1), 18(9), 18(1a) and 23 of the Constitution, in respect of the acquisition of equipment, are too vague for this Court to make a determination; and

6. No case has been made out for the granting of the moratorium sought.

In my view, there is substance in all the above preliminary points taken by counsel for the first respondent.

However, at the commencement of the hearing in this Court, counsel for the first respondent advised the Court that he did not wish to persist with his written application that the preliminary issues be determined before the merits of the case. He indicated that his new stance is that the preliminary issues he raised be considered as part of his submissions on the merits.

I will deal with the applicants' complaints, as set out in paragraph 16 of the founding affidavit, seriatim.

(a) Are the applicants being treated in a discriminatory manner in contravention of section 23 of the Constitution?

The applicants allege that the discrimination against them is in the following three respects –

(i) They allege that it is only land belonging to white commercial farmers that has been compulsorily acquired;

(ii) It is only white commercial farmers who are being prosecuted in terms of section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08]; and

(iii) White commercial farmers are not being allocated land in terms of the Land Reform Programme.

It is common cause that the land in casu, which the individual applicants occupy, was acquired by the State in terms of sections 16A and 16B of the Constitution. Sections 16A and 16B of the Constitution, in relevant part, provide as follows:

"16A Agricultural land acquired for resettlement

(1) In regard to the compulsory acquisition of agricultural land for the resettlement of people in accordance with a programme of land reform, the following factors shall be regarded as of ultimate and overriding importance –

(a) Under colonial domination, the people of Zimbabwe were unjustifiably dispossessed of their land and other resources without compensation;

(b) The people consequently took up arms in order to regain their land and political sovereignty, and this ultimately resulted in the Independence of Zimbabwe in 1980;

(c) The people of Zimbabwe must be enabled to re-assert their rights and regain ownership of their land;

and, accordingly –

(i) The former colonial power has an obligation to pay compensation for agricultural land compulsorily acquired for resettlement, through an adequate fund established for the purpose; and

(ii) If the former colonial power fails to pay compensation through such a fund, the Government of Zimbabwe has no obligation to pay compensation for agricultural land compulsorily acquired for resettlement.

(2) In view of the overriding considerations set out in subsection (1), where agricultural land is acquired compulsorily for the resettlement of people in accordance with a programme of land reform, the following factors shall be taken into account in the assessment of any compensation that may be payable –

(a)-(g)…,.

16B Agricultural land acquired for resettlement

(1) In this section –

'acquiring authority' means the Minister responsible for lands or any other Minister whom the President may appoint as an acquiring authority for the purposes of this section;

'appointed day' means the date of commencement of the Constitution of Zimbabwe Amendment (No.17) Act, 2005.

(2) Notwithstanding anything contained in this Chapter –

(a) All agricultural land –

(i) That was identified on or before the 8^th July, 2005, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in Schedule 7, being agricultural land required for resettlement purposes; or

(ii) That is identified after the 8^th July, 2005, but before the appointed day, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in Schedule 7, 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 re-organisation, forestry, environmental conservation or the utilisation of wildlife or other natural resources; or

C. The relocation of persons dispossessed in consequence of the utilisation 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) No compensation shall be payable for land referred to in paragraph (a) except for any improvements effected on such land before it was acquired.

(3) The provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, and the provisions of section 18(1) and (9), shall not apply in relation to land referred to in subsection (2)(a) except for the purpose of determining any question related to the payment of compensation referred to in subsection (2)(b), 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;

(b) May, in accordance with the provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired.

(4)…,.

(5)…,.

(6) An Act of Parliament may make it a criminal offence for any person, without lawful authority, to possess or occupy land referred to in this section or other State land.

(7) This section applies, without prejudice, to the obligation of the former colonial power to pay compensation for land referred to in this section that was acquired for resettlement purposes."

In terms of section 16B of the Constitution, the individual applicants have been stripped of all the rights to the land they previously owned or occupied. Section 16B of the Constitution vests all the rights of previous owners and occupiers in the State. In casu, the only link the individual applicants have to the land is their continued occupation of the acquired land, which continued occupation has been rendered a criminal offence by an Act of Parliament authorised by section 16B(6) of the Constitution.

Section 16B of the Constitution contains a non abstante clause.  

Consequently, section 16B 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 16B 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 16B of the Constitution. Such derogation would not constitute a violation of the Constitution.

In terms of section 16B 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.

It follows that a litigant whose land was acquired in terms of section 16B of the Constitution cannot seek to set aside the acquisition of that land on the basis that such acquisition violated the rights conferred on the litigant by a provision contained in the Declaration of Rights or Chapter III of the Constitution - such as sections 18 and 23 of the Constitution.

Apart from the non abstante clause, section 16B(3) of the Constitution ousts the jurisdiction of the courts to enquire into the legality or otherwise of the acquisition of land in terms of section 16B(2)(a) of the Constitution.

In the case of Mike Campbell (Pvt) Ltd and Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement and Anor SC49-07, MALABA JA…, who delivered the unanimous judgment of this Court, had this to say…,:

"By the clear and unambiguous language of s 16B(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 16B(2)(a) of the Constitution could have been sought. The right to protection of law for the enforcement of the right to fair compensation in case of breach by the acquiring authority of the obligation to pay compensation has not been taken away.   The ouster provision is limited in effect to providing protection from judicial process to the acquisition of agricultural land identified in a notice published in the Gazette in terms of s 16B(2)(a). An acquisition of the land referred to in s 16B(2)(a) would be a lawful acquisition. By a fundamental law, the Legislature has unquestionably said that such an acquisition shall not be challenged in any court of law. There cannot be any clearer language by which the jurisdiction of the courts is excluded.

The right to protection of law under s 18(1) of the Constitution, which includes the right of access to a court of justice, is intended to be an effective remedy at the disposal of an individual against an unlawful exercise of the legislative, executive or judicial power of the State. The right is not meant to protect the individual against the lawful exercise of power under the Constitution. Once the state of facts required to be in existence by s 16B(2)(a) of the Constitution does exist, the owner of the agricultural land identified in the notice published in the Gazette has no right not to have the land acquired. The conduct and circumstances of the owner of the agricultural land identified for compulsory acquisition would be irrelevant to the question whether or not the expropriation of his or her property in the land in question is required for any of the public purposes specified in s 16B(2)(a) of the Constitution. In the circumstances, there is no question of prejudice to the rights of the individual since his personal conduct or circumstances are irrelevant to the juristic facts on which the lawful acquisition depends. No purpose would be served in giving the expropriated owner the right to protection of law under s 18(1) and (9) of the Constitution when an attempt at the exercise of the right would amount to no more than its abuse."

In the face of the clear language of s 16B(3) of the Constitution, a litigant can only approach the courts for a review and for a remedy relating to compensation. In this regard, the learned JUDGE OF APPEAL in the same judgment had this to say at page 38 of the cyclostyled judgment:

"Section 16B(3) of the Constitution has not, however, taken away, for the future, the right of access to the remedy of judicial review in a case where the expropriation is, on the face of the record, not in terms of s 16B(2)(a). This is because the principle behind s 16B(3) and s 16B(2)(a) is that the acquisition must be on the authority of law. The question whether an expropriation is in terms of s 16B(2)(a) of the Constitution and therefore an acquisition within the meaning of that law is a jurisdictional question to be determined by the exercise of judicial power. The duty of a court of law is to uphold the Constitution and the law of the land. If the purported acquisition is, on the face of the record, not in accordance with the terms of s 16B(2)(a) of the Constitution a court is under a duty to uphold the Constitution and declare it null and void. By no device can the Legislature withdraw from the determination by a court of justice the question whether the state of facts on the existence of which it provided that the acquisition of agricultural land must depend existed in a particular case as required by the provisions of s 16B(2)(a) of the Constitution."…,.

I now turn to deal with the complaints set out in paragraphs 16(b) and (c) of the founding affidavit.

The complaints set out in paragraphs 16(b) and (c) are very similar and linked to each other. It is convenient to deal with them together.

(b) Are the individual applicants being denied protection of the law and equality before the law under section 18 of the Constitution? and

(c) Are the individual applicants being unfairly tried on charges of contravening section 3 of the Gazetted Lands (Consequential Provisions) Act?

The complaints contained in these two subparagraphs are similar to the complaint raised in subpara (a) of paragraph 16 of the founding affidavit, which I have already dealt with. Much of what I have stated in regard to subpara (a) of paragraph 16 above applies with equal force to the complaints in sub-paragraphs (b) and (c) of paragraph 16.

The land previously owned by the individual applicants was acquired by the State in terms of section 16B of the Constitution. Section 16B has an overriding effect on other sections of Chapter III of the Constitution.

The effect of section 16B 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 purposes or any other purpose as prescribed under section 16B(2)(a)(iii) of the Constitution.

It is, therefore, not open to the applicants to argue that such an acquisition of land, in terms of ssection 16B, is invalid by reason of a violation of a right guaranteed in the Declaration of Rights in the Constitution.

As regards the complaint that the individual applicants are being unfairly or illegally prosecuted for contravening section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08], the answer is to be found in the case of Tom Beattie Farms (Pvt) Ltd and Anor v Ignatius Mugova and Anor, Civil Application No. SC32/09 in which this Court issued the following order, in relevan part;

"IT IS DECLARED THAT:

(1)…,.

(2)…,.

(3) Sections 3(2) and 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08] are consistent with section 18(1) of the Constitution of Zimbabwe. Consequently, the prosecution of the applicants under section 277(3), as read with section 277(5), of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sections 3(2) and 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08] is lawful.

(4) The Workshop held at Chegutu on 6 February 2009 and its deliberations did not violate the applicants' rights protected in terms of section 18(2) of the Constitution of Zimbabwe.

(5)…,. "…,. 

There is nothing in counsel for the applicant's submissions that persuades this Court to revisit the order issued in Tom Beattie Farms (Pvt) Ltd and Anor v Ignatius Mugova and Anor, Civil Application No. SC32/09.

This Court has determined that section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08] is constitutional.  

It is not open to the applicants to contend that prosecutions in terms of section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:08] are unconstitutional….,.

The complaints of the individual applicants, as set out in paragraphs 16(b) and (c), have no substance.

(d) Has the racial imbalance sought to be addressed in the land reform programme been achieved, rendering any further evictions of white farmers unlawful?

The issue of whether land should be acquired for the land reform programme, how much land should be acquired for that purpose, from whom it should be acquired, and to whom the acquired land should be allocated are matters for the Executive.  

They are policy issues that are not justiciable.

What is justiciable is whether the acquisition itself and the allocation of the land has been done in accordance with the law.

(e) Have Ministers, Ministry officials, magistrates, public prosecutors, court officials, the police and the military (all being public officials) mentioned in the body of the application and affidavits breached their duties in terms of section 18(1a) of the Constitution to uphold the rule of law and to act in accordance with the law?

This complaint, as elaborated in the submissions, boils down to three complaints, namely –

(a) That the Minister has been issuing offer letters to individuals in respect of land which he acquired in terms of section 16B of the Constitution. He is doing this despite the land being still occupied by former owners;

(b) That the holders of the offer letters have sought, through self-help, to evict the former owners from the acquired land. This has led to conflict between the holders of the offer letters and previous owners; and

(c) That Ministry officials, magistrates, public prosecutors, court officials, the police and the military have not assisted the former owners in the conflict described in para (b), despite the duty imposed on them by section 18(1a) of the Constitution. The applicants contend that the conflict between the holders of the offer letters and the former owners is so widespread and the failure by public officials to assist them in this conflict is so prevalent that the rule of law has been eroded to the extent that the individual applicants are entitled to a moratorium of the land reform programme and other relief sought in the draft order.

The complaint in paragrpah (a) raises the issues of whether the Minister can lawfully issue offer letters to individuals and whether he can lawfully issue offer letters to individuals before the acquired land is vacated. It also raises the issue of the respective rights of the holders of the offer letters and the former owners of the acquired land.

Dealing, firstly, with the issue of whether the Minister has the legal authority to issue an offer letter to an individual. Section 2 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28], in relevant part, provides as follows:

"2 Interpretation

(1) In this Act –

'lawful authority' means –

(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease;

and 'lawfully authorised' shall be construed accordingly;

'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;

'permit', when used as a noun, means a permit issued by the State which entitles any person to occupy and use resettlement land;…,. "

The Legislature, in enacting the above provision, clearly intended to confer on the acquiring authority the power to issue to individuals offer letters which would entitle the individuals to occupy and use the land described in those offer letters. The draftsman could have used better language to convey the legislative intent, but there can be no doubt that section 2 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] confers on the acquiring authority the power to allocate land using the medium of an offer letter. This provision is not in any way inconsistent with sections 16A and 16B of the Constitution. If anything, it fits in well with the overall scheme envisaged in sections 16A and 16B of the Constitution, which is that the acquiring authority acquires land and reallocates the land so acquired. The acquisition of land and its redistribution lies at the heart of the land reform programme.

I have no doubt that the Minister, as the acquiring authority, can redistribute land he has acquired in terms of section 16B of the Constitution by means of the following documents;

(a) An offer letter;

(b) A permit; and

(c) A land settlement lease.  

The Minister is entitled to issue a land settlement lease in terms of section 8 of the Land Settlement Act [Chapter 20:01]. However, if the Minister allocates land by way of a land settlement lease in terms of section 8 of the Land Settlement Act [Chapter 20:01] he is enjoined to comply with the other provisions of that Act, such as section 9 which requires him to consult the Land Settlement Board which obviously has to be in existence. I do not accept the contention by the applicants that the Minister can only allocate acquired land by way of a land settlement lease, which he presently cannot do, because there is no Land Settlement Board in existence.

The Minister has an unfettered choice as to which method he uses in the allocation of land to individuals.   He can allocate the land by way of an offer letter or by way of a permit or by way of a land settlement lease. It is entirely up to the Minister to choose which method to use. I am not persuaded by the argument that because the offer letter is not specifically provided for in the Constitution it cannot be used as a means of allocating land to individuals.

I am satisfied that the Minister can issue an offer letter as a means of allocating acquired land to an individual.

Having concluded that the Minister has the legal power or authority to issue an offer letter, a permit or a land settlement lease, it follows that the holders of those documents have the legal authority to occupy and use the land allocated to them by the Minister in terms of the offer letter, permit or land settlement lease.

Section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] criminalises the continued occupation of acquired land by the owners or occupiers of land acquired in terms of section 16B of the Constitution beyond the prescribed period.

The Gazetted Land (Consequential Provisions) Act [Chapter 20:28] is very explicit that failure to vacate the acquired land by the previous owner, after the prescribed period, is a criminal offence. It is quite clear from the language of section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] that the individual applicants, as former owners or occupiers of the acquired land, have no legal right of any description in respect of the acquired land once the prescribed period has expired.

It was argued that previous owners and occupiers of acquired land have the right to remain in occupation until they have been tried and convicted and an order for eviction issued in terms of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28], which provides as follows:

"3 Occupation of Gazetted land without lawful authority

(5) A court which has convicted a person of an offence in terms of subsection (3) or (4) shall issue an order to evict the person convicted from the land to which the offence relates."

Section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] does not confer on the individual applicants the right to remain in occupation until conviction.

Section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] simply directs the presiding magistrate in criminal proceedings for a contravention of section 3 of the Act to issue an eviction order. It gives the magistrate jurisdiction or power, which he or she would not otherwise have, to issue an eviction order. Generally speaking, magistrates in criminal proceedings have no jurisdiction to issue an eviction order against an accused person upon conviction. Section 3(5) of the Act confers on the criminal court jurisdiction to issue an eviction order and directs the presiding magistrate to exercise the power.   Thus, a proper reading of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] simply confers certain jurisdiction on the presiding magistrate. It does not in any way confer on the individual applicants, as previous owners or occupiers of acquired land, the right to continue in occupation after the expiry of the prescribed periods. It therefore follows that the conflict between the individual applicants and former owners or occupiers of acquired land on the one hand and the holders of offer letters on the other hand is a conflict between legally entitled occupants, that is, the holders of offer letters, and the illegal occupants, the former owners and occupiers.

An offer letter issued in terms of the Act is a clear expression by the acquiring authority of the decision as to who should possess or occupy its land and exercise the rights of possession or occupation on it.

The holders of the offer letters, permits or land settlement leases have the right of occupation and should be assisted by the courts, the police and other public officials to assert their rights. The individual applicants, as former owners or occupiers of the acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.

This leads me to the issue of whether Ministry officials, magistrates, public prosecutors, court officials, the police and the military have a duty, in terms of section 18(1a) of the Constitution, to assist, as alleged, the individual applicants as former owners or occupiers of the acquired land.

Section 18(1a) of the Constitution provides as follows:

"Provisions to secure protection of law

(1a) Every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law and to observe and uphold the rule of law."

As I have already stated, the individual applicants' continued occupation of the acquired land is illegal in terms of section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. Their continued occupation of the acquired land constitutes a criminal offence. I do not accept that section 18(1)(a) of the Constitution imposes an obligation on a public official to assist persons in the commission of a crime.   Indeed, assisting a criminal or a person in doing that which Parliament has decreed constitutes a criminal offence is in itself a crime, of aiding or abetting the commission of a criminal offence.

By seeking to prevent the institution and prosecution of criminal proceedings in cases in which they are acting unlawfully, the individual applicants are clearly frustrating the observance of the rule of law by the relevant public officials in the discharge of their duty in terms of section 18(1a) of the Constitution. A moratorium on the implementation of a national programme such as the land reform programme cannot be granted to protect unlawful conduct - regardless of the race or colour of the perpetrators. It is unfortunate that the individual applicants seem to think that the duty to observe the rule of law falls on others and not on them because they belong to a particular race. The obligation on the State is to arrest, prosecute and punish those who commit criminal offences on the farms regardless of their race or colour, but it does not need a moratorium on the implementation of the land reform programme for it to carry out its constitutional mandate to uphold the rule of law.

I have no doubt in my mind that section 18(1a) of the Constitution does not impose a duty on the Ministry officials, magistrates, public prosecutors, court officials, the police and the military to assist former owners of acquired land in breaking the law by remaining in unlawful occupation of acquired land….,.

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 section 16B(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 section 16B(3)(a) of the Constitution. See also Mike Campbell (Pvt) Ltd and Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement and Anor SC49-07.

(2) The Gazetted Lands (Consequential Provisions) Act [Chapter 20:28], and in particular section 3 of that Act, is constitutional.  

See Tom Beattie and Anor v Ignatius Mugova and Anor, Supreme Court Appeal No.32/0. 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 Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and section 16B 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 the jurisdiction to authorise the continued use or possession of the acquired land.

(5) Litigants who are acting outside the law, that is, in contravention of section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] cannot approach the courts for relief until they have complied with the law.

See Associated Newspapers of Zimbabwe (Private) Limited v The Minister of State for Information and Publicity and Ors SC111-04.

(6) A permit, an offer letter and a land settlement lease are valid legal documents when issued by the acquiring authority in terms of section 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and section 8 of the Land Settlement Act [Chapter 20:01]. 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 section 8 of the Land Settlement Act [Chapter 20:01].

In doing so, he is required to comply with the other provisions of that Act.

(8) While section 3(5) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] 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.

(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….,.

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.

This application is made in terms of section 24(1) of the former Constitution of Zimbabwe (hereinafter referred to as “the Constitution”), which provided:

“24 Enforcement of protective provisions

(1) If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress.”

The applicant alleges that his rights to protection of the law and a fair trial guaranteed under sections 18(1) and (2) of the Constitution were violated by the court a quo.

The facts of this case are that the applicant was charged with contravening section 3(2)(a), as read with sections 3(3) and 3(5), of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] (hereinafter referred to as 'the Act'), “using, or occupying gazetted land without lawful authority”, in that on 4 February 2007 and at Romsey Farm (hereinafter referred to as 'the farm'), Chinhoyi, he, without lawful authority to occupy, hold or use gazetted land, did not cease to occupy, hold or use that land after the expiry of the forty-five day period stipulated in section 3(2)(a) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and has not ceased to occupy, hold or use that land to date.

The applicant pleaded not guilty to the charge. The applicant's defence is set out in the Defence Outline, in particular paragraphs 4-6, which read as follows:

“4. The accused does not own the farm and was not the former owner. The farm is occupied by an operating farming company.

5. The farm is not gazetted land. The listing of the farm for acquisition purposes has been declared to be unlawful by the Southern African Development Community Tribunal sitting at Windhoek, Namibia, and that ruling is binding on the Government of Zimbabwe and throughout Zimbabwe.

6. Since the accused does not occupy the land, there is no issue that he is under any legal obligation to cease occupation of the land.”

It was also the applicant's defence that he had authority to occupy, hold or use the gazetted land from the late Vice President Msika and officials from the Ministry of Lands, Land Reform and Resettlement.

As this is in contradiction to the stance that the applicant is not a former owner or occupier of the farm or gazetted land, I can only assume that this defence is in the alternative.  

In support of the alternative defence that the applicant has lawful authority to use the gazetted land, he attached to the Defence Outline the following letters from the Office of the late Vice President Msika concerning the farm:

“4 July 2002

Mr D Tailor-Freeme (sic)

P O Box 7516

Chinhoyi

MESSRS TAILOR-FREEME (sic): REMAINDER OF ROMSEY AND ATHENS A FARM

Following your various consultations with the Vice President of Zimbabwe, the Honourable J W Msika, and mindful of the fact that you offered Slaughter Farm (1400 ha) to Government for resettlement purposes under the Zimbabwe Joint Resettlement Initiative (ZCRI), the Vice President grants you permission to continue farming the above farm.

O.E.M. Hove

Director (Policy and Planning)

Office of the Vice President and Cabinet

Cc Hon P T Chanetsa

Governor/Resident Minister

Mashonaland West Province”;

And:

“11 December 2007

Hon. D.N.E. Mutasa (MP)

Minister of State for National Security,

Lands, Land Reform and Resettlement

ANOMALIES IN THE IMPLEMENTATION OF THE LAND REFORM AND RESETTLEMENT PROGRAMME: MASHONALAND WEST PROVINCE

I understand that you convened a meeting with the political leadership of Mashonaland West Province to discuss their representations contained in Cde Shamuyarira's letter dated 19 October 2007.

I wish to remind you that these issues had already been discussed by the Presidium and a decision had been taken to implement them without any variation. I also wish to remind you that you cannot alter or supersede any decision taken by the Presidium.

DR J.W. MSIKA (MP)

VICE PRESIDENT”

And:

“26 January 2009

The Provincial Governor and Resident Minister

Mashonaland West

Chinhoyi

Attention: The Hon. F. Chidarikire (MP)

Dear Sir

FARMING OPERATIONS AT ROMSEY FARM, MAKONDE DISTRICT, MASHONALAND WEST

This letter serves to confirm that Mr D. S. Taylor-Freeme was granted lawful authority by the Hon. Vice President Dr J.W. Msika to continue with his farming operations on the above-mentioned farm.

You are therefore requested to hold any action to the contrary in abeyance until consultations can be held with the Hon. Vice President who comes back from his vacation leave on 19 February 2009. Your co-operation in the above regard will be greatly appreciated.

Yours faithfully

R T Madamombe

Permanent Secretary to the VP Dr J.W. Msika.”…,.

Given the contents of the above letters, which were, in part, addressed to the applicant personally, the applicant's contention that he is not in occupation of or using the farm is untenable. The two contentions that the applicant is not in occupation of the farm and that he has authority to occupy the farm are mutually exclusive.

The matter proceeded to trial and the State led evidence from two State witnesses, namely, Mr Gavanga and Mr Chikomba.

These witnesses are officials in the Ministry of Lands and Rural Resettlement. They are responsible for the administration and allocation of land in terms of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]. Their evidence may briefly be summarised as follows;

1. That they knew the applicant as a farmer on the farm, the gazetted land, which was acquired in terms of section 16B of the Constitution.

2. That the applicant was running farming operations on the farm before and after the acquisition of the farm.

3. That at the expiry of the forty-five day period when the applicant was required, in terms of section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28], to vacate the farm he had crops on the farm that had yet to be harvested. They gave him time within which to complete the harvesting and vacate the farm.

4. That at the end of the harvest the applicant did not vacate the farm and is continuing farming operations on the farm to date.

5. That the farm has since been allocated to another person in terms of an offer letter but because the applicant is refusing to vacate the farm the new owner in terms of the offer letter has not been able to take occupation of the farm.

6. That although the registered owner of the farm is one Merle Taylor-Freeme, the mother of the applicant, they have always dealt with the applicant in connection with the farm and that it is the applicant who is carrying out farming operations on the farm.

The evidence of these witnesses is to a large extent corroborated by the correspondence attached to the Defence Outline, referred to above. It is significant to note that the correspondence is between the applicant, in his personal capacity, and Government officials. There is nothing in the correspondence that suggests that the applicant was acting on behalf of a company or some third party.

At the close of the State case, the applicant applied for a discharge.

In his application for a discharge, the applicant submitted that none of the six essential elements of the offence charged had been proved or alleged to justify his being put on his defence. He submitted that for the applicant to be put on his defence the State had to lead evidence that prima facie establishes the following as the essential elements of the charge, that –

(a) The accused was a former owner or occupier;

(b) Of gazetted or acquired land;

(c) He has not ceased to occupy, hold or use that gazetted land;

(d) After the expiry of the appropriate period referred to, which in the present case is forty-five days after the fixed date;

(e) The accused as the former owner or occupier has no lawful authority to occupy, hold or use that land.

The applicant also pleaded invalidity of section 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and mistake of law.

The application for a discharge was dismissed. In dismissing the application for a discharge, the learned trial magistrate concluded that the applicant had a case to answer and should be put on his defence.

Dissatisfied with that ruling, the applicant applied for a referral of the matter to the Constitutional Court in terms of section 24(2) of the Constitution, which provides as follows:

“24 Enforcement of protective provisions

(2) If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings shall, refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

In the application for referral, the applicant contended that the trial court had violated his fundamental right to the protection of the law guaranteed by section 18(1) of the Constitution by putting him on his defence when the evidence for the State failed to establish the essential elements of the offence.  

The applicant also advanced the following two further grounds in support of the application for referral –

(1) First, that the trial magistrate had violated the applicant's right to a fair trial by failing to give detailed reasons for dismissing the applicant's application for discharge.

In particular, it was contended that the learned trial magistrate should have dealt with each of the six grounds that were advanced in support of the application for discharge, and that his failure to do so was a violation of the applicant's right or entitlement to a fair trial in terms of section 18(2) of the Constitution.

(2) Second, that the definition of “lawful authority” in section 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is ultra vires section 16B(6) of the Constitution insofar as it seeks to limit the meaning of “lawful authority” to an offer letter, a permit or a land settlement lease. The contention is that Parliament has no authority to truncate the definition of “lawful authority” referred to in the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] without first amending section 16B(6) of the Constitution.

The court a quo dismissed the application for referral to the Constitutional Court as frivolous and vexatious.

The applicant now approaches this Court in terms of section 24(1) of the Constitution, on the basis that the court a quo violated his fundamental right by refusing to refer his case to this Court.

The applicant contends that the dismissal of his application for referral violated his right to protection of the law guaranteed by section 18(1) of the Constitution, and his right to a fair trial guaranteed by section 18(2) of the Constitution. He further argued that his application for referral was neither vexatious nor frivolous.

In essence, the applicant's case in this application is that –

(a) The dismissal of the application for discharge constitutes a violation of his constitutional right to the protection of the law, in that the State had not established any one of the essential elements of the offence that he was being charged with;

(b) The trial magistrate, by reason of his failure to give detailed reasons in his judgment for dismissing both applications, had violated the applicant's right to a fair trial, the contention being that he should have addressed each of the six grounds that were advanced in support of the application for discharge before dismissing the application; and

(c) The definition of “lawful authority” in section 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] was ultra vires section 16B(6) of the Constitution and was therefore unconstitutional.

The first issue that falls for determination by this Court is whether the court a quo was correct in dismissing the application for referral as frivolous and vexatious.  

If the court a quo was correct in dismissing the application for referral that is the end of the matter. If the court a quo erred in dismissing the application for referral, then this Court is at large to consider the issue of whether the applicant's rights were violated.

I finally turn to deal with the issue of what constitutes “lawful authority” and whether the applicant had “lawful authority” to occupy the farm.

Section 2(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] provides as follows:

“2 Interpretation

(1) In this Act -

'acquiring authority' means the Minister responsible for land or any other Minister to whom the President may, from time to time, assign the administration of this Act;

'fixed date' means the date fixed in terms of section 1(2) as the date of commencement of this Act;…,.

'lawful authority' means -

(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease;

and 'lawfully authorised' shall be construed accordingly;

'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;

'permit', when used as a noun, means a permit issued by the State which entitles any person to occupy and use resettlement land;

'resettlement land' means land identified as resettlement land under the Rural District Councils Act [Chapter 29:13].”

The clear and unambiguous meaning of section 2(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is that “lawful authority” means an offer letter, a permit and a land settlement lease.  

Nothing more, nothing less.  

A letter from the late Vice President, the Presidium or any other member of the Executive does not constitute “lawful authority” in terms of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

In the case of Commercial Farmers' Union and Ors v Minister of Lands and Rural Resettlement and Ors SC31-10 this Court had this to say…,:

“The Legislature, in enacting the above provision, clearly intended to confer on the acquiring authority the power to issue to individuals offer letters which would entitle the individuals to occupy and use the land described in those offer letters. The draftsman could have used better language to convey the legislative intent, but there can be no doubt that s 2 of the Act confers on the acquiring authority the power to allocate land using the medium of an offer letter. This provision is not in any way inconsistent with ss 16A and 16B of the Constitution. If anything, it fits in well with the overall scheme envisaged in ss 16A and 16B of the Constitution, which is that the acquiring authority acquires land and reallocates the land so acquired. The acquisition of land and its redistribution lies at the heart of the land reform programme. I have no doubt that the Minister, as the acquiring authority, can redistribute land he has acquired in terms of s 16B of the Constitution by means of the following documents;-

(a) An offer letter;

(b) A permit; and

(c) A land settlement lease.  

The Minister is entitled to issue a land settlement lease in terms of s 8 of the Land Settlement Act [Cap 20:01]. However, if the Minister allocates land by way of a land settlement lease, in terms of s 8 of the Land Settlement Act, he is enjoined to comply with the other provisions of that Act, such as s 9 which requires him to consult the Land Settlement Board which obviously has to be in existence. I do not accept the contention by the applicants that the Minister can only allocate acquired land by way of a land settlement lease which he presently cannot do because there is no Land Settlement Board in existence.

The Minister has an unfettered choice as to which method he uses in the allocation of land to individuals.   He can allocate the land by way of an offer letter or by way of a permit or by way of a land settlement lease. It is entirely up to the Minister to choose which method to use. I am not persuaded by the argument that because the offer letter is not specifically provided for in the Constitution it cannot be used as a means of allocating land to individuals.

I am satisfied that the Minister can issue an offer letter as a means of allocating acquired land to an individual.

Having concluded that the Minister has the legal power or authority to issue an offer letter, a permit or a land settlement lease, it follows that the holders of those documents have the legal authority to occupy and use the land allocated to them by the Minister in terms of the offer letter, permit or land settlement lease.”

“Lawful authority” means an offer letter, a permit and a land settlement lease.

The documents attached to the Defence Outline are not offer letters, permits or land settlement leases issued by the acquiring authority. They do not constitute “lawful authority” providing a defence to the charge the applicant is facing.

The applicant did not have an offer letter, a permit or a land settlement lease. Accordingly, he had no lawful authority to occupy or continue to occupy the farm. The letters from the late Vice President Msika and those of the Ministry of Lands, Land Reform and Resettlement do not constitute “lawful authority.”   'Lawful authority', in terms of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28], begins and ends with an offer letter, a permit and a land settlement lease.  

It was also submitted that the concept of 'lawful authority', as defined in section 2(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is inconsistent with section 16B(6) of the Constitution and therefore ultra vires.

Section 2(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] provides as follows:

“2 Interpretation

(1) In this Act -

'acquiring authority' means the Minister responsible for land or any other Minister to whom the President may, from time to time, assign the administration of this Act;

'fixed date' means the date fixed in terms of section 1(2) as the date of commencement of this Act;…,.

'lawful authority' means -

(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease;

and 'lawfully authorised' shall be construed accordingly;

'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;

'permit', when used as a noun, means a permit issued by the State which entitles any person to occupy and use resettlement land;

'resettlement land' means land identified as resettlement land under the Rural District Councils Act [Chapter 29:13].”

Section 16B(6) of the Constitution provides as follows:

“16B (6) An Act of Parliament may make it a criminal offence for any person, without lawful authority, to possess or occupy land referred to in this section or other State land.”

The issue here is whether or not the concept of 'lawful authority' in the Constitution is fettered by the definition of 'lawful authority' in the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

The applicant, in his submission that section 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is ultra vires section 16B(6) of the Constitution, relied heavily on the decision of this Court in SC Shaw (Pvt) Ltd v Minister of Lands and Agricultural Resettlement 2005 (2) ZLR 153 (SC), where it was held that the discretion of the Administrative Court to determine what was reasonably necessary could not be fettered or restricted by an Act of Parliament without first amending the Constitution.

I am not persuaded by this submission for a number of reasons.

It is common cause that section 16B(6) of the Constitution does not define the concept of 'lawful authority.' As a result of this, the applicant's contention that the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] violates a concept which the Constitution does not define is untenable.   The Constitution does not confer on the courts the power to determine what constitutes 'lawful authority.'   The Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] therefore cannot take away from the courts that which the Constitution has not conferred on the courts.

A careful reading of section 16B(6) of the Constitution shows that it specifically allows Parliament to create a criminal offence for any person, without lawful authority, to possess or occupy gazetted land or other State land. For Parliament to successfully create such an offence it has to define the concept of 'lawful authority' first. The framers of the Constitution, by expressly conferring on Parliament the power to enact a law that criminalises the possession or occupation of gazetted land by any person “without lawful authority,” must have intended to confer on the Legislature the power to define the concept of 'lawful authority.' Parliament could not have properly enacted a valid law that criminalises the occupation or use of land without defining what constitutes 'lawful authority.' A criminal enactment that does not define what constitutes 'lawful authority' would be too vague.

An enactment that creates a criminal offence has to be sufficiently clear and precise to be constitutional.

A citizen is constitutionally entitled to know exactly when he/she contravenes the law. The definition of 'lawful authority' enables the citizen to know exactly when it is that he can occupy gazetted land lawfully without committing a criminal offence.

The facts and circumstances of this case are distinguishable from those in SC Shaw (Pvt) Ltd v Minister of Lands and Agricultural Resettlement 2005 (2) ZLR 153 (SC).

In SC Shaw (Pvt) Ltd v Minister of Lands and Agricultural Resettlement 2005 (2) ZLR 153 (SC) Parliament had enacted laws, which in effect limited the Administrative Court's discretion that it previously enjoyed in determining whether reasonably necessary grounds for the acquisition of the land existed. In this case, there was no form of 'lawful authority' enjoyed by the former owners or occupiers of gazetted land that has been negated by section 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

The allegation that the definition of 'lawful authority' provided for in section 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] impinges upon section 16B(6) of the Constitution is far-fetched and premised on an incorrect interpretation of that provision.

Consequently, this submission also fails.

The appellant was convicted by a magistrate sitting at Gwanda on a charge of contravening the provisions of section 3(2) as read with section 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]....,.

The appellant appealed against the whole judgment, challenging both his conviction and sentence.

The issues arising in this appeal are these:

(a) Whether the learned trial magistrate misdirected himself in finding that a permit granted in terms of the Gazetted Lands (Consequential Provisions) Act is required to be in writing.

(b) Whether the learned magistrate misdirected himself in finding that the appellant was in unlawful occupation of the property.