Moreblessings Mpofu and Leo T Mpofu v F A Stewart (Pvt) Ltd and Joseph Stewart and Minister of Lands and Rural Resettlement

MOREBLESSINGS MPOFU

AND

LEO T MPOFU

Versus

F A STEWART (PVT) LTD

AND

JOSEPH STEWART

AND

MINISTER OF LANDS AND RURAL RESETTLEMENT

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 19 – 20 JULY 2018 & 9 JANUARY 2020

Civil Trial

L Mpofu, for the plaintiffs

J Tshuma, for the defendants

TAKUVA  J:		Plaintiffs are husband and wife.  On 3 December 2014, 3rd defendant desirous to implement its noble objective of land reform offered a certain piece of land known as Subdivision 22 Insindi, Gwanda by virture of an offer letter to the plaintiffs.  The latter, oblivious of the legal minefield they were soon to traverse happily accepted the offer letter.  The said piece of land is part of a farm occupied by 1st and 2nd defendants.   Sometime in October 2015 the plaintiffs attempted to take occupation of the allocated piece of land with the assistance of 3rd defendant but faced resistance from 1st and 2nd defendants.  Plaintiffs then issued summons claiming the following;

“a)	An order for the eviction of the 1st and 2nd defendants and all those claiming through them from a piece of land known as Subdivision 22 of Insindi in Gwanda measuring 228 hectares which land has been allocated to the plaintiffs.

b)	Costs of suit at an attorney and client scale.”

The 1st and 2nd defendants entered appearance to defend and later filed their plea.   Surprisingly, despite the 3rd defendant’s distinct footprints all over this matter, no appearance to defend was entered on his behalf by the Civil Division of the Attorney General’s Office.  This was unfortunate in that the trial proceeded without the input and participation of the 3rd defendant.  The need for 3rd defendant’s view will be apparent in the course of this judgment.  Be that as it may, 1st and 2nd defendants’ plea is briefly that;

The defendants are in occupation of a portion of Insindi Ranch which has not been acquired by the Government of Zimbabwe.

It is denied that a property known as Subdivision 22 Insindi, Gwanda was gazetted by the Government of Zimbabwe for purposes of reallocation.

Defendants deny that the Minister of Lands and Rural Resettlement has the lawful authority to offer land that has not been acquired.

Defendants are in occupation of a portion of Insindi Ranch which is not Subdivision 22.

It is denied that the land has been lawfully allocated to the plaintiffs.

It is denied that the plaintiffs are entitled at law, to evict the defendants from the land

In their replication, plaintiffs in a nutshell stated;

The whole of Insindi Ranch was gazetted for acquisition in June 2000 and is listed in schedule 7 of the former Constitution of Zimbabwe hence it remains acquired in terms of the law.

After gazetting of Insindi Ranch and allocation of its portion (East of Bulawayo – Gwanda Road) to other farmers, the portion that 1st and 2nd defendants retained (West of Bulawayo – Gwanda Road) was further downsized and allocated to other farmers.  It is therefore not proper for 1st and 2nd defendants to claim that the piece of land they occupy “was never acquired when infact that same piece of land has been subdivided and allocated to other farmers who are actually in occupation of their portions.” (my emphasis)

Plaintiffs hold a valid offer letter in respect of Subdivision 22 which is a portion of Insindi Ranch.

Plaintiffs were shown the said portion on a map and physically on the ground by 3rd defendant’s officials.

Plaintiffs are by virtue of a valid offer letter entitled to evict 1st and 2nd defendants from Subdivision 22 Insindi and take occupation of same.

In a Joint Pre-Trial Conference Memorandum dated 26 September 2017 the following are the issues referred to trial;

“1.	Whether or not the western portion of Insindi Ranch was lawfully acquired.

2.	Is Subdivision 22 of Insindi Ranch identifiable and if so, is it located on the land occupied by the 1st and 2nd defendants.

3.	If Subdivision  22 is on the portion occupied by 1st and 2nd defendants, does the plaintiffs’ offer letter supersede 1st and 2nd defendants’ right of occupation.

4.	Are plaintiffs entitled to evict 1st and 2nd defendants?

5.	Who should bear the costs and at what scale?”

The onus was placed on the plaintiffs on all issues.

EVIDENCE

Plaintiffs Case

Plaintiffs led evidence from three witnesses including the 2nd plaintiff.  The 2nd plaintiff’s evidence is largely common cause.  He confirmed that he was offered Subdivision 22 which he duly accepted.  Officers from 3rd defendant’s Gwanda office accompanied him to the farm where they pointed out his portion in the presence of the 2nd defendant.  Further, he testified that according to the map produced on page 7 of the plaintiff’s bundle of documents, Subdivision 22 was the portion marked 17 on the map.  To his knowledge, 2nd defendant was notified of the downsizing of Insindi Ranch West of Bulawayo – Gwanda Road and the allocation of Subdivision 22 to plaintiffs.

Mackay Maseko was the plaintiff’s second witness.  At the relevant time he was employed by the 3rd defendant as District Lands Officer for Gwanda.  He is one of the officers who accompanied plaintiffs to the farm and pointed out the demarcation of Subdivision 22 on the ground in the 2nd defendant’s presence.  According to him Subdivison 22 was the portion marked 17 on the map.  The identification was guided by known physical features on the ground as reflected on the map.

The witness stated that Insindi Ranch West of Bulawayo – Gwanda Road was downsized after due process and an approval by the Deputy Minister as per memorandum on pages 5 and 6 of the plaintiffs’ bundle of documents.  This downsizing culminated in the offer of subdivision 22 to plaintiffs.  While insisting that 2nd defendant was advised of the downsizing, he however said defendants at the time, had no title to the land as to his knowledge, Insindi Ranch was “acquired State land”.

Under cross-examination, the witness informed the Court that he was not aware of the agreement entered into between the Ministry of Lands and Rural Resettlement and the 1st defendant in 2002.  He further conceded that had he been aware of the agreement, he would not have recommended that the offer letter be issued to the plaintiffs.

Finally, plaintiffs called Khumbulani Muntuyedwa a cartographer or planner in Gwanda district at the relevant time.  On the visit to the farm, his evidence is similar to that of the previous witness.  The witness prepared the maps that were used to subdivide Insindi Ranch and according to him, the map that was produced in Court was not the final one and could have been “mere working sketch”.  The “correct map” indicated subdivision 22 as the portion marked 17 on the maps produced in Court.  As regards developments he stated that there are only staff quarters on subdivision 22.  He identified subdivision 22 using features on the maps which he saw on the ground.

Under cross-examination, this witness conceded that he too was not aware of the previous agreement between 3rd defendant and 1st defendant regarding the status of the farm.  At all material times, he assumed that the farm had been acquired by the State for resettlement.  Plaintiffs closed their case at this juncture.

Defendants’ Case

The 2nd defendant testified in his own defence and on behalf of 1st defendant of which he is a director.  What is noteworthy from his evidence are the following features;

In about the year 2000, the whole of Insindi Ranch was gazetted by the State.

As per procedure at that time, the matter was referred to the Administrative Court after 1st defendant objected to the acquisition.

The 1st defendant entered into an agreement with the State dated the 6th day of December, 2002, which agreement was formalized as an Order of the Administrative Court issued on the 10th day of December, 2002 – see defendant’s bundle of documents.  The Court Order’s notable elements are as follows;

3(i) The State acquired certain properties being Mvami, Sizenzi, Sisyvale, Mjeni,

Trevrede Section A, Glen Road Section B and the Eastern Portion of Insindi Ranch measuring 6000 hectraes,

3(ii) The 1st defendant hereto retained ownership of the Western portion of Insindi

measuring 7420 hectaes.

3(ii) The properties Sizenzi, Kinelama, Trevrede Section A and Olen Road Section

B had not previously been gazetted and were accepted in substitution of the

Western portion of Insindi Ranch.

3(iv) The proceedings for the compulsory acquisition of the Western portion of

Insindi Ranch were withdrawn.

3(v)  The State was to subdivide the properties at its own cost.  To date, such

Subdivision has not occurred and the Title Deed still reflects that 1st defendant

is the owner of the whole Insindi Ranch.

During the period 2002 to 2011, the defendants remained in peaceful occupation of the Western Portion of Insindi Ranch on the basis of the said agreement and Court Order.

In 2011, defendants were advised by 3rd defendant that the property would be downsized to bring it into line with the Rural Land (Farm Sizes) Regulations, 1999 as amended.  The defendants agreed.  Consequently, certain persons were allocated land on the Western Portion of Insindi.  The defendants remained with 2000 hectares per the Regulations.

To date, the 3rd defendant has not served the plaintiffs with any notice to vacate.  To defendant’s knowledge, no such further downsizing was authorized or took place.

In light of this evidence, I now turn to the triable issues.

ISSUE NO 1. WHETHER OR NOT THE WESTERN PORTION OF INSINDI RANCH WAS LAWFULLY ACQUIRED?

Plaiantiffs’ argument is a simple one.  It runs like this.  The whole of Insindi Ranch was duly acquired by the Government by virtue of its gazetting on the 2nd of June 2000.  This acquisition was in terms of Section 16B (2) (a) of the former Constitution.  Plaintiff also argued that the fact that Insindi Ranch is listed in Schedule of the former Constitution proves that the whole ranch was acquired by the State.  Therefore, the State is entitled to downsize its property and allocate it to beneficiaries without the consent of the defendants.

As regards the effect of the Administrative Court Order, plaintiffs conceded that while the court order “reversed the process of acquisition of Insindi Ranch Portion on the west of Bulawayo – Gwanda Road in terms of the then Land Acquisition Act, it did not reverse the gazetting of the whole Insindi Ranch which was done on 2 June 2000.  Therefore, the coming in of section 16B (2) (a) meant that the whole of Insindi was acquired simply by being identified using the gazette and Schedule 7.  Plaintiffs had no kind words for the Administrative Court order which they attacked thus;

“The Administrative Court Order that left the 1st and 2nd defendants holding a portion of Insindi Ranch is of no effect with regards to the acquisition of the land in issue.  The gazetting of Insindi Ranch was never reversed.  No extra ordinary gazette was ever issued to reverse the Gazette of 2 June 2000 in relation to Insindi Ranch West of Blawayo – Gwanda Road.  This means the said gazette stands even up to today hence the identified piece of land stands acquired in terms of Section 16B of the former Constitution as read with section 290 of the current Constitution.”

The plaintiffs relied on Mike Campbell (Pvt) Ltd and Another v Minister of National Security Responsible for Land, Land Reform & Resettlement (2008) ZWSCI.

and

Commercial Farmers Union & Others v Minister of Lands and Rural Resettlement & Others SC 31-10

As regards the principle in Vukutu (Pvt) Ltd v Kwinje & Another HH 364.16, plaintiffs submitted that the case is distinguishable from the case in casu because the facts are different.

The defendants’ argument can be summarized as;

The Western Portion of Insindi Farm was never acquired by the Government of Zimbabwe and that defendants have a vested right to occupy the same in terms of the agreement with the Minister of Lands and Rural Resettlement.

Constitutional Amendment No. 17 could not take away the defendants’ vested rights nor was it intended to do so.

The initial downsizing of the farm was carried out by agreement in terms of the Rural Lands (Farm size) Regulations.  Any subsequent attempt to downsize the farm was ultra vires the empowering legislation as the farm occupied by the defendants was within the maximum size prescribed in the Regulations.

The second attempt to downsize the farm was erroneous on the part of the Minister of Lands and Rural Resettlement based on incorrect information provided by the Ministry’s employees at district and provincial level.

Defendants placed reliance on the principle in the Vukutu case and on Section 291 of the current Constitution that provides for continuation of rights of occupiers of agricultural land.

In order to resolve this issue, there is need to ascertain whether or not the facts in casu allow or permit the invocation of section 16B (2) (a) of the former Constitution.  If they do, then the land in dispute was lawfully acquired in accordance with the requirements stated therein.  If not then the land was not acquired in terms of section 16B (2) (a).

On 14 September 2005 after being frustrated by endless litigation by former owners of agricultural land, the Government enacted the Constitution of Zimbabwe Amendment (No. 17) Act 2005.  The amendment provides as follows;

“………16B AGRICULTURAL LAND ACQUIRED FOR RESETTLEMENT AND OTHER PURPOSES

(2)	Notwithstanding anything contained in this Chapter

(a)	all agricultural land

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

(ii)	………….

(iii)	…………

……….. 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)	……………

(3)	,………….

(4)	…………..

(5)	…………..

(6)	…………..

(7)	…………..

This amendment has an overiding effect in respect of the regulation of matters relating to the acquisition of all agricultural land identified by the acquiring authority.  The purpose, meaning and effect of its provisions were explained by MALABA JA (as he then was) in Mike Campbell (Pvt) Ltd and Another v Minister of National Security supra in the following words;

“It appears from the opposing affidavit deposed to by the 1st respondent who is the acquiring authority and from Schedule 7 to section 16B of the Constitution that owners or occupiers of at least one hundred and fifty –seven pieces of agricultural land in respect of which the acquiring authority issued preliminary notices of the intention to acquire them during the period extending 2 June 2000 to 8 July 2005 submitted written objections to the proposed acquisitions.  The litigation in the Administrative Court was viewed as obstructive of the land reform programme.  The 1st respondent alleges in the opposing affidavit that litigation was being mounted by the owners of the pieces of agricultural land earmarked for compulsory acquisition for purposes of delaying the finalization of the land reform programme in the hope that it could be reversed.

To stop whatever was considered obstructive litigation and secure finality in cases of compulsory acquisition of agricultural land for public purposes, the legislature enacted the Constitution of Zimbabwe Amendment (No. 17) Act 2005 on 14 September 2005.” (my emphasis)

Quite evidently, therefore, the 3rd defendant’s primary concern was to expedite the finalization of cases of compulsory acquisition which had clogged the Administrative Court’s roll.  The 3rd defendant considered the objections as “delaying tactics.”

Commenting on the nature of section 16B of the Constitution, the learned Judge of Appeal added;

“Section 16B of the Constitution is a complete and self-contained Code on the acquisition of privately owned agricultural land by the State for public purposes.  Its provisions relate exclusively to the acquisition of agricultural land.  By the use of the non obstante clause, notwithstanding anything contained in this Chapter at the beginning of subsection (2), the legislature gave the provisions of section 16B overriding effect in respect of the regulation of matters relating to the acquisition of all agricultural land identified by the acquiring authority in terms of section 16B (2) (a).” (my emphasis)

After acknowledging the State’s inherent right to compulsorily acquire private property within its territory for public purposes with an obligation to pay fair compensation for the property acquired, he went on to lay out the two separate but related proceedings that underlie the provisions of section 16B.  He said;

“The first procedure under section 16B (2) (a) relates to the actual acquisition of the land whilst the second procedure under section 16B (2) (b) relates to the right to payment of fair compensation.  Under the first procedure, the acquisition is made to depend on the existence of a state of facts established by purely administrative acts of the acquiring authority.  These facts are that the Minister responsible for Lands and any other Minister whom the President may appoint as an acquiring authority publishes a notice in the Gazette identifying the agricultural land to be acquired and stating therein the purpose for which the land is required.” (my emphasis)

It is clear that in terms of the new procedure, a number of restrictions and conditions imposed in the previous process have been removed.  Notably, the acquiring authority is no longer under a duty to apply to a court of law for an order confirming the acquisition of agricultural land in terms of section 16B (2) (a) as lawful acquisition, section 16B (3) provides that subsections 18 (1) and (9) of the Constitution which provide the right to protection of law and appropriate remedies against unlawful interference with or infringements of fundamental rights, shall not apply to the acquisition.  Accordingly, the right to apply to a court to challenge such lawful acquisition has been taken away.  Equally so the court’s jurisdiction to entertain such a challenge has been ousted see section 16B (3) (a) of Amendment No. 17.

However, the court in the Campbell case emphasized that section 16B (3) of the Constitution has not 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 section 16(B) (2) (a).  This is because the principle behind section 16B (3) and section 16B (2) (a) is that the acquisition must be on the authority of law.  The question whether an expropriation is in terms of section 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.” (my emphasis)

It was further held that;

“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 section 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 section 16B (2) (a) of the Constitution.” (my emphasis).

In order to resolve the first issue in casu, it is necessary to answer the question “Do the specific facts in casu amount to those prescribed under section 16B (2) (a)?  Put differently, do the specific facts in casu allow or permit the lawful invocation of the provisions of section 16B (2) (a) of the Constitution?  While in the Campbell case supra it was crystal clear that the state of facts required for a lawful acquisition existed, the same cannot be said in the present case.  The juristic facts on which a lawful acquisition depends are (1) that the land is identified in the notice published in the gazette.  (2) The Minister must state therein, the purpose for which the land is required.  Clearly, these conditions are deliberately intended to be “administrative acts of the acquiring authority.” This is why the court in the Campbell case stated that “Once the state of facts required to be in existence by section 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 section 16B (2) (a) of the Constitution .” (my emphasis).

In the present matter, it is common cause that;

The land in question was gazetted in the year 2000;

The farm was listed in Schedule 7 in September 2005.

Following the gazetting of the farm, the 3rd defendant took the following administrative acts;

it entered into an agreement with 1st defendant wherein it withdrew the proceedings in respect of the Western portion of Insindi Ranch and acquired the Eastern portion and certain other properties in its stead.  The 3rd defendant was representing the Government of Zimbabwe in this agreement.

The material paragraphs of the agreement which was incorporated into a Court Order dated 10 December 2002 are to the effect that:

“...(8) 	That in terms of section 7 of the Land Acquisition Act (Chapter 20:10), the acquisition by the applicant of a portion of Insindi Ranch of the Bulawayo/Gwanda Road measuring 6000,9 hectares situate in the District of Gwanda be and is hereby confirmed.  There shall be no order as to costs.

(9) 	That the proceedings in terms of the Land Acquisition Act for the compulsory acquisition of the REMAINING PORTION OF INSINDI RANCH	 measuring 7420 hectares situate in the District of Gwanda, That is to say the portion of the said farm West of Bulawayo/Gwanda Road are hereby withdrawn by the applicant in terms of its agreement with the respondent.  There shall be no order as to costs.

(10)	The applicant shall at its own cost subdivide the farm Insindi Ranch into two portions measuring 6000,9 hectares which portion shall accrue to the State, and 7420 hectares which portion shall accrue to the 1st respondent herein.”  (my emphasis)

This therefore is the sketch of the background to the enactment of Amendment No. 17 on 17 September 2005.  The land dispute between the parties had been amicably resolved through due process.  The defendants were not part of the seemingly “obstructive litigants bent on delaying the land reform.”  In fact, it would, in my view, be somewhat erroneous and misleading to categorise Insindi Ranch as at September 2005 as “gazetted” because it had been acquired by the State (Eastern portion) and the defendants (Western portion)  On simple logic the listing of the whole Portion in Schedule 7 is on the face of the record not in accordance with the terms of section 16B (2) (a).  The intention of the legislature in enacting section 16B was to acquire agricultural land identified in the government gazette.  As at 17 September 2005, the Western Portion of Insindi Ranch was not gazetted land for acquisition for it had already been acquired through a court order granted by the Administrative court.  The Government could not acquire the same farm twice.  Unfortunately, the 3rd defendant, the Minister of Lands and Rural Resettlement did not enter appearance to defend and has not appeared in this matter.  Be that as it may, what is clear is that the land in dispute was not available for acquisition in terms of section 16B (2) (a) as it had already been acquired in terms of an agreement between the parties.

In view of these facts, can it be concluded that they amount to those prescribed under section 16B (2) (a).  I think not.  While it is accepted that the conduct and circumstances of the owner of the agricultural land would be irrelevant as laid out by the Supreme Court in the Mike Campbell case.  I take the view that it is the personal conduct and circumstances of the owner that was targeted and not circumstances surrounding the status of the ownership of the land.  I say so because the latter are the circumstances that enable a court to determine the lawfulness or otherwise of the acquisition.  Accordingly, I find that the Western Portion of Insindi Ranch was never acquired by the Government of Zimbabwe in terms of section 16B (2) (a) of Act No. 17 of the Constitution.

Assuming I am wrong in this conclusion there are other reasons why Insindi Ranch could not have been acquired in terms of section 16B (2) (a).  The first is that the rights granted, and the obligations imposed by the Administrative Court order dated 6 December 2002 which rights and obligations the defendants enjoyed for 12 years until 3 December 2014 when 3rd defendant offered subdivision 22 which is part of the Western Portion of Insindi to the plaintiffs were not affected by section 16B (2) (a) of Constitutional Amendment No. 17.

The principle of law is in the absence of express provision to the contrary, no statute is presumed to operate retrospectively.  The legislature is presumed to legislate only for the future and consequently, a statute which repeals another is considered not to interfere with vested rights under that other unless it does so in clear terms.  See Walls v Walls 1966 (2) ZLR 117 (H) at p 138A-C.

In Curtis v Johannesburg Municipality 1907 TS 308 at p 311, INNES CJ said;

“The general rule is that in the absence of express provision to the contrary, statutes should be considered as affecting future matters only; and more especially that they should if possible be so interpreted as not to take away rights actually vested at the time of their promulgation.” (my emphasis).

In Vukutu (Pvt) Ltd v Kwinje & Another HH 364.16, MAFUSIRE J held that there is “a distinction between general retrospectivity and an interference with existing rights.  A new law affects future matters.  It does not take away pre existing rights.” That case is akin to the present matter on that the applicant in that matter previously owned two separate pieces of land named Liverpool and Vukutu respectively.  The State gazetted the said pieces of land for acquisition under the land reform program to which the applicant objected.  The matter was referred to the Administrative Court where the matter was resolved by the parties.  The applicant entered into an agreement with the Ministry of Lands and Rural Resettlement (representing the State).  It was agreed that the State would acquire the farm called Liverpool and that the State would not acquire the farm called Vukutu.  By consent that agreement was registered as a Court Order of the Administrative Court.

However, in Amendment No. 17 of the Constitution of Zimbabwe, the land known as Vukutu (which had been retained by Vukutu (Pvt0 Ltd and not acquired) was listed.  The Ministry of Lands and Rural Resettlement then offered Vukutu to a 3rd party.  Applicant then sought and obtained a provisional order which was both an eviction and an interdict against the 1st respondent Mr Kwinje.

After hearing argument on the return day, MAFUSIRE J held as follows:

“1.	The second respondent (The Minister of Lands and Rural Resettlement) is bound by the order of Administrative Court on 16 October 2002 in case No. LA 2014.02

2.	The rights granted, and the obligations imposed by the Administrative Court Order aforesaid were not affected by the 17th amendment to the old Constitution which inter alia ushered in section 16B thereto.

3.	The offer of land in terms of the letter from the second respondent to the 1st respondent dated 15th July 2015, in respect of certain piece of land situate in the district of Makoni, measuring 87,8268 hectares otherwise known as Vukutu of Liverpool, is hereby declared null and void…”.

This judgment is in my view, on all fours with the defendant’s defence in casu in that it deals with the consequences of retrospective amending legislation on existing rights granted by court orders whose inviolability is sancrosanct.   Counsel for the plaintiffs argued that the Vukutu case isdistinguishable from the matter in hand because of the following reasons;

(a)	that in the Vukutu case, the 1st respondent (Mr Kwinje) already owned another piece of land which was against the law.

(b)	that Vukutu was unsuitable for agricultural purposes.

(c)	that the government in the Vukutu case had previously conceded to objections by the applicant whereas in casu defendants have previously accepted downsizing of the same farm.

(d)	that in the Vukutu case, the entire farm was being allocated to another farmer, whilst in casu, it is only being downsized to accommodate other farmers.

(e)	that most importantly the Court in the Vukutu judgment “did not deal with the question of whether by virtue of the Gazette and section 16B of the former Constitution, the said farm was now vested in the State”.

(f)	that the Vukutu judgment is at “variance with the Supreme Court position established in Commercial Farmers Union & Others v Minister of Lands & Rural Resettlement & Others SC 31-10.

I must point out that the principle in the Vukutu judgment was not at all based on facts listed in (a) to (d).  These facts were immaterial.  As regards point (e) it is legally unsound to so submit in view of the fact that the court declared the offer letter null and void thereby stripping the State’s ownership rights which it could have acquired in terms of section 16B.  I am not persuaded by the argument that the Vukutu judgment is in conflict with the Supreme Court decision in the Commercial Farmers Union case in that the latter did not deal with the inviolability of a court order that gives birth to vested rights to the parties.

I do not find anything from my reading of Amendment No. 17 of the Constitution that outlaws agreements done by consent within the parameters of the Land Acquisition Act.  More importantly, there is nothing in section 16B that nullifies orders lawfully made by the Administrative Court in the course of executing its mandate in terms of the previous constitutional provisions.  In any event, the position of the law is that a party cannot renege from a position that it had previously adopted.  In other words, a person cannot be allowed to approbate and reprobate a step taken.  It can only do one or the other not both – see State v Marutsi 1990 (2) ZLR 374 (S).  Also in terms of the doctrine of privity of contract, people must be bound by the contracts they make with each other – see R H Christie Christie Law of Contract In South Africa at 302.

As I indicated earlier on, the Minister’s position on the validity of the Aministrative Court order which it consented to after being ably represented by competent lawyers in the Civil Division of the Attorney-General’s Office is unknown because it chose not to enter appearance to defend.  However, the plaintiff’s attitude as advanced by Mr Mpofu is that;

“c)	The Administrative Court Order only reversed the process of acquisition of Insindi Ranch portion on the West of Bulawayo/Gwanda Road in terms of the then Land Acquisition Act.  However it did not reverse the gazetting of the whole of Insindi Ranch which was done on 2 June 2000.  Thus, the coming in of section 16B of the former Constitution which identified land using the gazette meant that Insindi Ranch as a whole was acquired by the State as the constitutional provision clearly has retrospective effort”(sic)

I do not find merit in this argument for a number of reasons.  Firstly, it is based on the letter but not the spirit of the notice of acquisition and the listing of the farm in the gazette.  The law concerns itself with substance, as opposed to form which has the effect of promoting form above substance procedure above reality, red tape above common sense, see Continent Alfashions (Pvt) Ltd v Mupfururi & Others 1997 (2) ZLR 405 (S) at 412.   Secondly, it is common cause that the 1st defendant was the registered owner of Insindi Ranch over which the Minister (3rd defendant) had instituted land acquisition proceedings against 1st defendant in terms of the Land Acquisition Act (Chapter 20:10) for its compulsory acquisition.  Thirdly, it is common cause that those “land acquisition proceedings” were with the consent of the 3rd defendant withdrawn by the Minister in terms of a Memorandum of Agreement, freely and voluntarily entered into by the parties.  Implicit in that agreement which was subsequently reduced to a Court Order is the withdrawal of the gazetting of the portion of the farm in issue.  Surely, proceedings in the phrase “land acquisition proceedings” must include the process of gazetting the land.

Fourthly, in terms of that agreement, certain ownership rights accrued to the Government through the 3rd defendant.  By a stroke of the pen, the government was offered and acquired ownership of the following farms;

Mvani measuring 2569.6426 hectares.

Mzenzi measuring 2107.7207 hectares.

Sisyvale measuring 2517.3037 hectares.

Mjeni measuring 856.8506 hectares.

Kiaelama measuring 2055.6119 hectres.

Trevrede Section A measuring 256.9554 hectares.

Glenrood Section B measuring256.954 hectres

A portion of Insindi Ranch measuring 6000.90 hectares that is to say a portion of Insindi Ranch East of the Gwanda Road to be subdivided by the government at its own cost.

The government acquired the first 7 farms in exchange for the Western Portion of Insindi Ranch.  Paragraph 10 of the Administrative Court order states in clear and unequivocal terms that;

“10.	The applicant shall at its own cost subdivide the farm Insindi Ranch into two portions measuring 6000.90 hectares which portion shall accrue to the State, and the 7420 hectares which portion shall accrue to the 1st respondent herein.”

(my emphasis).

Quite clearly, the 1st, 2nd and 3rd defendants acquired rights and obligations in terms of the Court order in 2002.  They have all regulated their affairs in terms of the Court order for close to 12 years.  Plaintiffs’ argument is that only defendants’ rights should be negatively affected or extinguished by the enactment of section 16B of the Constitution.  The problem with this argument is that at the time of Constitutional Amendment No. 17, the Western Portion of Insindi Ranch was not gazetted land and could not be acquired in terms of section 16B.  It appears to me that the correct legal effect of Constitutional Amendment No. 17 is simply to confirm the acquisition of the Eastern Portion of Insindi as that was the property that was lawfully gazetted at the time of the Amendment

ARE PLAINTIFFS ENTITLED TO EVICT DEFENDANTS?

Further, the current Zimbabwe Constitution also protects the defendants’ rights in this case.  Section 291 thereof provides;

“291 CONTINUATION OF RIGHTS OF OCCUPIERS OF AGRICULTURAL

LAND

Subject to this Constitution, any person who immediately before the effective date, “was using or occupying, or was entitled to use or occupy, any agricultural land by virtue of a lease or other agreement with the State continues to be entitled to use or occupy that land on or after the effective dates in accordance with that lease or other agreement.

In casu, it is not in dispute that at the effective date, the defendants were in occupation of the Western Portion of Insindi Ranch by virtue of the agreement entered into between 1st defendant and the State in December 2002.  Therefore, the defendants had a vested right to remain in occupation and are entitled to continue to use and occupy the Western Portion of Insindi Ranch.

EFFECTS OF DOWNSIZING

As regards downsizing of the Western Portion it is common cause that in the year 2011., the Ministry of Lands and Rural Resettlement downsized the defendants’ property to bring it into line with the RURAL LAND (Farm size) Regulations in terms of section 4(1) c of the Regulations (as amended by S I 288 of 200). The defendants were not permitted to own a farm in excess of 2000 hectares.  As such, by agreement the property was downsized and certain persons were allocated land in the northern portion with defendants retaining the southern portion measuring 2000 hectares.  By invoking these regulations, the Ministry of Lands tacitly in my view acknowledged that the property was owned by the defendants.  This is clear from the fact that the Regulations only apply to owners of Rural Land and not to parties who occupy State land.

Plaintiffs contended that later in 2014, the 3rd defendant attempted to downsize the property again through a Memorandum directing that the downsizing was to conform with “maximum farm size” as set out in the Regulations.  Since in casu, the defendants’ portion of Insindi was within the maximum farm size limits any attempt to further downsize in terms of the Regulations was clearly erroneous on the part of the 3rd defendant.  The District Lands Officer for Gwanda at the time testified as plaintiffs’ witness.  He conceded that it was common practice that in making directives and issuing other letters, the 3rd defendant relies on the representation of the employees at district and provincial level.  According to this witness the property could still be further downsized below the maximum size.

From the above, I find that the initial downsizing was done by agreement in terms of the Rural Land (Farm Size) Regulations.  Any subsequent attempts to downsize the farm was ultra vires the empowering legislation as the farm occupied by the defendants was within the maximum size prescribed in the Regulations.  The second attempt to downsize was based on incorrect information provided by the Ministry’s employees at district and provincial level regarding the farm’s actual size.

IS SUBDIVISION 22 IDENTIFIABLE? IF SO, IS IT LOCATED ON LAND OCCUPIED BY 1ST AND 2ND DEFENDANTS?

The evidence on whether or not subdivision 22 is identifiable is confusing.  The plaintiffs led evidence in the form of a map which identifies subdivision 22 in the bottom eft hand corner.  It is however common cause that the portion that plaintiffs are seeking to evict the defendants from is the area identified as Subdivision 17 on that map.  In their evidence, all the plaintiffs’ witnesses admitted that the map they had entered into evidence was incorrect and that the portion marked ‘17’ was actually subdivision 22.  One of them Khumbulani Muntuyedwa stated that there was a correct map at the offices of the District Lands Committee.  However, that purported correct map was not led in evidence.  Therefore, the map produced by the plaintiffs is of very low probative value.  No other evidence was led to establish the location of subdivision 22 of Insindi Ranch.  In my view, where the relief sought is an eviction from a piece of land, that land must be sufficiently identified so that in the event that plaintiffs succeed, the Sheriff of this Court will be able to ascertain which portion of the farm the defendant should be evicted from.  Plaintiffs’ failure to so ascertain the precise location of subdivision 22 is a material defect that renders the relief they are seeking incompetent.

In the circumstances, I find that;

1.	The plaintiffs have failed to prove that the property was acquired by the Government of Zimabwe and is capable of being offered to them.

2.	The eviction of the defendants contravenes their vested rights protected by section 291 of the Constitution.

3.	The portion of the land plaintiffs are seeking to occupy is not subdivision 22 of Insindi Ranch but subdivision 17.

4.	The offer letter issued to plaintiffs was issued in error.

5.	An order of costs against the plaintiffs would be unjust in that they genuinely believed that the offer letter issued to them by the 3rd defendant was valid and therefore defensible.  Plaintiffs are victims of circumstances.

Accordingly it is ordered that;

The application be and is hereby dismissed.

Each party to bear its own costs of suit.

Malinga and Mpofu, plaintiffs’ legal practitioners

Messrs Webb Low & Barry, defendants’ legal practitioners