Aaron Madziva v Gerald D. Davidson and Minister of Lands and Rural Resettlement

### Preamble
1
HH 326-13
HC 5310/13
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AARON MADZIVA

versus

GERALD D. DAVIDSON

And

MINISTER OF LANDS AND RURAL RESETTLEMENT

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 24 September 2013 and 2 October 2013

OPPOSED APPLICATION

S. Takundwa, for the applicant

Ms N. Maposa, for the 1st respondent

R.M. Bhasera, for the 2nd respondent

MATHONSI J:  In this application the applicant, a new farmer and the proud holder of an offer letter dated 13 December 2008 in respect of subdivision A of Xekene Extension in Seke District of Mashonaland East Province (the farm) seeks a declarator that he is lawfully authorised to be in occupation of the said farm, that the first respondent, who is a previous owner of the farm who is resisting eviction, should give him vacant possession or face eviction and all this on the pain of costs on the scale of legal practitioner and client.

Historically, the farm belonged to the first respondent but was initially gazetted by the acquiring authority on 26 August 2002 for resettlement purposes.  Following that acquisition the first respondent engaged the second respondent who is the acquiring authority, resulting in an agreement being penned on 23 July 2003 in terms of which the first respondent gave up one of his farms being Lisbon Extension in the District of Salisbury in return for the farm.  That agreement was reduced to a consent order issued by the Administrative Court on 25 July 2003.

The first respondent thereafter enjoyed peaceful possession of the farm blissfully secured by the consent order of the Administrative Court.  That bliss was not to last forever as the second respondent returned to haunt him again on 12 December 2008 by the gazetting of the farm for compulsory acquisition in terms of the Land Acquisition Act [Cap 20:10].  Thereafter the farm was allocated to the applicant who has failed to take occupation because the first respondent has remained firmly rooted at the farm.

The first respondent’s intransigence earned him a criminal prosecution in the magistrate’s court in terms of s 3(2) (a) of the Gazetted Lands (Consequential Provisions) Act [Cap 20:23] where he successfully raised an exception to the charge on the basis that the matter was res judicata it having been determined by the Administrative Court.  Agrieved by that outcome the Attorney General contested it in this court.  It is not clear what became of the challenge.

Whatever the case, the applicant has now approached this court seeking a declarator aforesaid.  The application is opposed by the first respondent who argues paradoxically that the matter is both re judicata and lis pendens. Res judicata by reason that the Administrative Court granted a consent order in 2003 saving the farm from acquisition which point was upheld by the magistrates’ court in the criminal prosecution and lis pendens by reason that the Attorney General has made an application for leave to appeal the decision of the criminal court.  The first respondent has also argued that the acquisition of the farm in December 2008 was a nullity as it ignored the consent order of the Administrative Court even as he has done nothing to challenge that acquisition up to now.

The first respondent’s opposition and the grounds for such opposition cannot be taken seriously.  This court has the power and authority in terms of s 14 of the High Court Act [Cap 7:06] to inquire into and determine any existing, future or contingent right or obligation.  An interested party is entitled to approach this court at any time for a declaration of its rights: Musara v Zinatha 1992(1) ZLR 91 (H).  Once one has regards to these salutary tenets of our justice system, the relevance of the decision of the criminal court and the decade old consent order of the Administrative Court pales to insignificance.

The first respondent cannot hide behind the consent order which only resolved an acquisition of the farm which had been undertaken in 2002.  I did not understand Ms Maposa for the first respondent to argue that the consent order enjoyed perpetuity and that its application was to last until kingdom come.  What is lost to the first respondent is the reality brought about by Constitutional Amendment No. 17 which came into effect in 2005 after the consent order.  That legislation amended the Old Constitution by introducing section 16B which brought about a new land acquisition regime.  It was in terms of that acquisition regime that the farm was gazetted in December 2008 and then allocated to the applicant who now holds a valid offer letter which has not been challenged.

The Supreme Court, whose decisions are binding on me in terms of the doctrine of stare decisis, has already pronounced in Mike Camphell (Pvt) Ltd & Anor v Minister of Lands & Anor 2008 (1) ZLR 17 (S) 31F that:

“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 subs (2), the Legislature gave the provisions of s 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 s 16B (2) (a).”

In that matter the full bench of the highest court on the land also made it clear that the jurisdiction of courts of law has been ousted.  At 43 F-G MALABA JA (as he then was) made the telling remarks that:

“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 16 B (2) (a) of the Constitution could have been sought.”

It means that once the farm had been acquired in December 2008, the first respondent could not even mount a lawful challenge to that acquisition.  The provisions of s 16 B of the old Constitution had an overriding effect even in respect of the consent order of the Administrative Court.

I have already stated that the applicant holds a valid offer letter issued to him by the acquiring authority.  The Supreme Court has again made a clear and unwavering pronouncement that the holder of an offer letter has a legal authority to occupy and use the land allocated to him by the minister in terms of the offer letter, in CFU & Ors v Minister of Lands & Ors 2010 (1) ZLR 576 (H) where at 592G – H Chief Justice CHIDYAUSIKU stated:

“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 first respondent’s contention that the matter has been determined by the criminal court during his prosecution in terms of s 3 of the Gazetted Lands (Consequential Provisions) Act was also settled by the Supreme Court in CFU & Ors (Supra) where at 596 D – E the Chief Justice stated:

“While s 3 (5) of the Act 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.”

This should really put the matter to rest.  It remains for me to only determine the question of costs.  In my view, the first respondent’s challenge was completely unnecessary in light of the clear provisions of the law.  For a represented litigant, it should have been obvious that he could not successfully oppose the application.  He has done so putting the applicant out of pocket.  He must bear the costs on a punitive scale.

In the result it is ordered that;

The applicant is hereby declared to be lawfully authorised to be in occupation of subdivision A of Xekene Extension in the Seke District of Mashonaland East Province in terms of the offer letter issued by the second respondent on 13 December 2008.

The first respondent is hereby directed to, immediately upon service of this order upon him, give vacant occupation of subdivision A of Xekene Extension in Seke District of Mashonaland East Province to the applicant.

In the event of the first respondents failure to comply with para 2 above, then the Sheriff for Zimbabwe or his lawful deputy is directed to evict the first respondent and all those claiming through him and give vacant possession to the applicant.

The first respondent shall be the costs of this application on the scale of legal practitioner and client.

Takundwa & Company, applicant’s legal practitioners

Sawyer and Mkushi, 1st respondent’s legal practitioners

Civil Division of the Attorney General Office, 2nd respondent’s legal practitioners