Judgment record
Alan McGregor v Nehemiah Saburi and Attorney General and Commissioner General Zimbabwe Republic Police and Minister of Lands Land Reform and Rural Resettlement
HH 33-11HH 33-112011
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HH 33-11
HC 7748/10
ALAN McGREGOR
versus
NEHEMIAH SABURI
and
ATTORNEY GENERAL
and
COMMISSIONER GENERAL
ZIMBABWE REPUBLIC POLICE
and
MINISTER OF LANDS LAND REFORM
AND RURAL RESETTLEMENT
HIGH COURT OF ZIMBABWE
CHIWESHE JP
Harare, 8 November 2010 and 23 February 2011
Mr A.N.B. Masterson, for the applicant
No appearance for the first respondent
Mr T. Zvekare, for the second respondent
Mr J. Mumbengegwi, for the third and fourth respondents
CHIWESHE JP: In this urgent chamber application the applicant sought a
provisional order in the following terms:
“TERMS OF THE FINAL ORDER SOUGHT
1. The provisional order is herein confirmed.
2. The first respondent shall produce to this court the offer letter upon which he
relies for his claim to be entitled to occupy any part of Nyamakari Farm in the
Burma Valley area of the Mutare District and shall satisfy this court that it has
been lawfully secured before he again seeks to secure occupation of any part of
that Farm.
3. The second respondent is directed forthwith to inform the third and fourth
respondents that any appeal against an eviction order issued by a Magistrate’s
Court consequent upon convicting any person of contravening subsection (3) of
section 3 of the Gazetted Land (Consequential Provisions) Act has the automatic
effect of suspending the eviction order until that appeal is finally dismissed and
the validity of the eviction order has been confirmed.
4. The third respondent shall issue instructions to all members of the Zimbabwe
Republic Police which:-
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a) inform them that an appeal against any eviction order issued by a
Magistrate’s Court following a conviction of contravening subsection (3)
of section 3 of the Gazetted Land (Consequential Provisions) Act has the
effect of suspending the order of eviction and entitling the subjects of the
eviction order to retain or resume occupation of the land in question until
the appeal is finally determined so as to uphold the validity of the eviction
order;
b) direct them to afford all protection reasonably required by the convicted
person and all those using and occupying the Farm under his authority to
retain and resume the use and occupation of the land in question pending
the final outcome of the appeal; and
c) direct them that, upon conclusion of the appeal, any eviction is to be
effected by the Deputy Sheriff and not by the Police save where their
support is required by the Deputy Sheriff and that any variation of the
terms of the eviction order ordered by the appeal court shall be observed
and obeyed.
5. The fourth respondent shall issue instructions to all persons who hold offer letters
and to all officials in the Ministry of Lands, Land Reform and Rural Resettlement
that :-
a) an offer letter does not itself constitute authority to occupy land or any
part of any land referred to in the offer letter if the land in question is
already occupied by any third persons, including a former owner, user or
occupier of that land unless and until the fourth respondent has secured
vacant possession of the land in question either by virtue of an order of
Court or third persons from the land in circumstances which are free of all
duress.
b) consequently such officials shall not encourage, support or assist the
holders of offer letters to take occupation of land referred to in the offer
letter unless and until:-
i.) the fourth respondent has secured a final binding eviction
against existing occupier that is, free of the consequences of
any appeal;
ii.) the eviction of the previous owner, user or occupier has been
effected by the Deputy Sheriff.
INTERIM RELIEF HEREBY GRANTED
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Pending the finalization of this application and pending the finalization of the Criminal
Appeal No CA 1143/10 filed by the applicant on 18 October against the conviction and
sentence imposed upon him by the Provincial Magistrate, Mutare on 15 October 2010 in
Case CRB 1042/09 for contravening section 3 of the Gazetted Land (Consequential
Provisions) Act:-
IT IS ORDERED THAT:-
1. First respondent and all those claiming authority under him are prohibited from
occupying Nyamakari Farm or any part thereof and, insofar as such persons have
already taken occupation of any part of that farm, they shall forthwith vacate that
land together with their wives, families and all belongings.
2. Such vacation of Nyamakari shall be effected within 48 hours of the issue of this
order failing which they shall be removed by the Deputy Sheriff with such Police
support as he may require.
3. Applicant is authorized to re-occupy that portion of the Farm that he was using
and occupying prior to 15 October 2010 and to resume his farming operations
thereon.
4. Second, third and fourth respondents are directed to note the terms of this order
and to issue all orders and instructions as may be necessary to ensure that first
respondent does vacate the farm and that applicant is enabled to resume
occupation and use of those parts of the farm that he and the workers employed
through applicant are able to resume their occupation of, and farming operations,
on the farm.”
The parties presented their arguments in chambers on 8 November 2010. On 3
December 2010 I dismissed the application with costs and indicated that my reasons
would follow. These are they.
The applicant was the owner or occupier of Nyamakari Farm, Burma Valley,
Mutare District. It is common cause that this Farm was subsequently acquired by the
State in terms of the Land Acquisition Act [Cap 20:10]. Consequent upon the applicant’s
failure to vacate this gazetted land within the prescribed period, he was on 15 October
2010 arraigned before a magistrate at Mutare charged with contravening s 3 of the
Gazetted Land (Consequential Provisions Act [Cap 20:28]. He was duly convicted as he
had no offer letter, permit or lease which constitutes lawful authority to occupy or utilize
gazetted land. The sentence imposed included, as required by law, an order for the
applicant’s eviction from this farm. On 17 October 2010, the applicant filed a notice of
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appeal against both conviction and sentence. The next day 18 October 2010 the applicant
lodged an urgent application under case number 6722/10 in which he sought confirmation
that as the appeal suspends the conviction and sentence of the court “a quo”, he would be
entitled in the interim and pending disposal of the appeal to occupy the land he was
occupying at the time of his conviction. My brother HLATSHWAYO J handled the
matter and I am advised that he dismissed the application on the grounds that an order
such as that which was being sought was unnecessary as the natural and proper
consequence of noting the appeal would be to suspend the operation of the decision of the
trial court. I am informed that the Attorney General had agreed with that position
indicating that the State would accordingly seek leave from the trial court to execute the
eviction order pending appeal. Application for such leave is pending in the magistrate
court.
On 24 October 2010 the applicant returned to the farm. He was met there by the
first respondent, his son and half a dozen other persons. The first respondent advised the
applicant that he had an offer letter issued in 2006 and that he had come to take
occupation of the farm. It was clear that the first respondent and others would not leave
the farm as they took occupation of various parts of the land and buildings. The applicant
says he reported the matter to the police but to no avail. He then approached this court
seeking the relief set out above.
In his heads of argument in support of this application, the applicant has raised a
number of legal issues and cited several judgments of this honourable court tending to
lend credence to his interpretation of those issues. The applicant gives the impression
that this court has been consistent in its pronouncements in various land cases and that
the court has generally granted applications of this nature. The correct position however
is that there have been a number of conflicting judgments emanating from this court with
some judges favouring the approach that the applicant advocates to be the correct one and
other judges begging to differ. I belong to the latter group whose interpretation of the
land laws of the country has since been vindicated by the Supreme Court.
The first legal point that the applicant raises in its submission is that prior to the
actions of the first respondent, the applicant had been in “peaceful and undisturbed
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occupation” of the land and therefore entitled to a spoliation order against the first
respondent. That position is correct at common law. However it is trite that statutory
provisions override the common law. Following the acquisition by the State of the piece
of land in question and the provisions in terms of section 3 of the Gazetted Lands
(Consequential Provisions) Act [Cap 20:28] that the applicant vacates this land within the
prescribed period, he cannot at law claim possession of the land he is required to have
vacated, nor, if he has not vacated such land, can he claim to be in peaceful and
undisturbed possession. Such an interpretation of the provisions of that Act would lead
to an absurdity and subvert the clear intention of the legislature. I agree with Mr Zvekare,
for the second respondent, when he argues that the intention of the legislature is to
address colonial injustice by creating vacant possession on acquired land in order that the
beneficiaries of the land reform programme may benefit through resettlement thereon. If
the State does not secure vacant possession, the intention of the legislature would
obviously be frustrated. Further, it is clear to me that the former owner or occupier of
Gazetted Land loses all rights over such land. Ownership vests in the State and continued
occupation after the prescribed period without authority is illegal and renders such owner
or occupier subject to prosecution. Mr Zvekare’s further contention is that such an owner
or occupier who refuses to vacate such land in clear violation of the law cannot seek
recourse in this court. His hands are dirty and for that reason he should not be
entertained. I agree with that contention
The applicant has argued that an offer letter does not give authority to evict a
person already in occupation. Nothing could be further from the truth. The holder of an
offer letter has authority granted by the owner of the land, that is the State, to occupy and
utilize the land in question. He has a right and a legitimate interest to access the property.
That right is enforceable against any other person who may seek to deprive him of it or
frustrate his enjoyment of the same. The holder of an offer letter is perfectly entitled to
seek an eviction order against persons who may illegally be in occupation of such
property. He may not however take the law into his own hands and act without a court
order. The offer letter confers upon its holder the “locus standi” to approach the courts
for appropriate relief, contrary to the applicant’s assertions. In my view the right to evict
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illegal occupiers is not limited exclusively to the State or the responsible Minister as the
applicant would have us believe; it extends to the beneficiaries as well.
The applicant also submitted that he had substantial prospects of success in his
appeal against the decision of the magistrate in which he was convicted for occupying
gazetted land without authority and sentenced, inter alia, to be evicted from the farm. At
the time of hearing the present application the State had lodged an application with the
magistrate for leave to execute that eviction pending appeal. That application was yet to
be disposed of. One of the grounds of appeal appeared to be centered on the issue
whether the offence created under s 3 of the Gazetted Lands (Consequential Provisions)
Act [Cap 20:28] was one that required strict liability. My view is that the wording of the
section is clear – a party must have an offer letter, a lease or a permit issued by the
appropriate authority in order to lawfully occupy Gazetted Land. The provisions of the
Act do not admit of any other form of authority, actual or implied. This view has since
been confirmed by the Supreme Court. Clearly the offence is one of strict liability. The
provision is clear and straight forward. The applicant raises a number of purely
administrative issues to do with his dealings with Ministry of Lands officials and his
expectations. These are of no legal relevance to the present application or the appeal that
he has lodged. On the whole I did not see any merit in the applicant’s assertion
that there are substantial prospects of success in his appeal, be it on the merits of the
conviction or sentence imposed by the magistrate, or, on those issues that he asked the
magistrate to refer to the constitutional court.
The Supreme Court, in the case of Commercial Farmers Union and Others vs The
Minister of Lands and Rural Resettlement and Others SC 31/10, has dealt with virtually
all the legal issues pertaining to land in this country. This land mark judgment provides
clear direction to this court with regards the interpretation of various land laws and the
constitutional issues raised in connection with the land reform programme in Zimbabwe.
The constitutional issues raised by the applicant for referral to the Supreme Court are
similar to those raised, adjudicated upon and dismissed in the Commercial Farmers
Union case supra.
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The learned Chief Justice at p 27 of the cyclostyled judgment summarized the
legal position as regards land matters as follows:
“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 s 16 B (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 s 16 B (3) (a) of the constitution. See also the
Mike Campbell case supra.
(2) The Gazetted Lands (Consequential Provisions) Act [Cap 20:28], and in
particular s 3 of that Act, is constitutional. See Tom Beattie’s case supra.
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 Act and s 16 B 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 jurisdiction to authorize the
continued use or possession of the acquired land.
(5) Litigants who are acting outside the law, that is, in contravention of s 3 of the
Act, cannot approach the courts for relief until they have complied with the
law. See Associated Newspapers of Zimbabwe Limited vs The Minister of
State for Information and Publicity and others case supra.
(6) A permit, an offer letter and a land resettlement lease are valid legal
documents when issued by the acquiring authority in terms of s 2 of the Act
and s 8 of the Land Settlement Act. 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 s 8 of The Land
Settlement Act [Cap 20:01]. In doing so he is required to comply with other
provisions of that Act.
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(8) 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. 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 an 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.”
I am convinced therefore that to grant the applicant the relief he seeks would be
tantamount to aiding and abetting an illegality.
It was for these reasons that I dismissed the application with costs.
Coghlan, Welsh & Guest, applicant’s legal practitioners
Attorney General’s office, second respondent’s legal practitioners
Civil Division of the Attorney General’s Office, third and fourth respondents’ legal
practitioners