Foodham Farming (Pvt) Ltd and Johannes Jacobus Hundermark v The State

### Preamble
1
HH 235-2012
CA 844/10
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FOODHAM FARMING (PVT) LTD

(Represented by Johannes Jacobs Hundemark)

and

JOHANNES JACOBUS HUNDERMARK

versus

THE STATE

HIGH COURT OF ZIMBABWE

BHUNU J and DUBE J

HARARE, 10 November 2011 and 6 June 2012

Ms  F Mahere, for the Appellant.

E N Nyazamba, for the State

Criminal Appeal

BHUNU J:  The appellants were charged with and convicted of contravening s3(3) of the Gazetted Land (Consequential Provisions) Act [Cap 20:28]. They were both fined and had an ejectment order issued against them together with all those who claimed occupation through them.

The section prohibits and criminalizes the occupation of Gazetted Land without lawful authority. It provides as follows:

“3 Occupation of Gazetted Land without lawful authority

(1)	 Subject to this section, no person may hold, use or occupy Gazetted land without lawful authority.

(2)	 Every former owner or occupier of Gazetted Land—

referred to in paragraph (a) of the definition of “Gazetted Land” in s 2(1), shall cease to occupy, hold or use that land forty-five days after the fixed date, unless the owner or occupier is lawfully authorised to occupy, hold or use that land;

referred to in para (b) of the definition of “Gazetted Land” in s 2(1), shall cease to occupy, hold or use that land forty-five days after the date when the land is identified in accordance with s 16B(2)(a)(iii) of the Constitution, unless the owner or occupier is lawfully authorised to occupy, hold or use that land:

Provided that—

the owner or occupier of that land referred to in para (b) may remain in occupation of his or her living quarters on that land for a period of not more than ninety days after the date when the land is identified;

the owner or occupier shall cease to occupy his or her living quarters after the period referred to in proviso (i).

(3)	 If a former owner or occupier of Gazetted Land who is not lawfully authorised to occupy, hold or use that land does not cease to occupy, hold or use that land after the expiry of the appropriate period referred to in subs (2)(a) or (b), or, in the case of a former owner or occupier referred to in s 2(b), does not cease to occupy his or her living quarters in contravention of proviso (ii) to s 2(b), he or she shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

(4) Any person, other than a person referred to in subs (2), who contravenes

subs (1), shall be guilty of an offence and liable to a fine not exceeding level seven or imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

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

Both accused persons appealed against conviction. The facts giving rise to the charge are to a large extent common cause. The first accused is a company registered in terms of the laws of Zimbabwe whereas the second accused is one of its directors and shareholder.

The first accused is the former owner of Subdivision 1 of Hillside Farm in the district of Gweru. The Chief Lands Officer gave evidence to the effect that the land in question was gazetted in terms of the law and it became State land on 25 August 2000. He then produced a copy of the relevant Government Gazette as exh 1. The land was then offered to three beneficiaries who have been unable to take occupation of the land because the accused continues to occupy the land in complete defiance of the law. In a bid to eject the accused from the gazetted land and pave way for the three beneficiaries the chief lands officer sent his officers accompanied by the police on 10 October 2007 but the accused steadfastly refused to vacate the acquired land.

It is common cause that the appellants became aware that they were obliged to vacate the disputed farm in January 2007 when one of the beneficiaries Mrs Dube pitched up at the farm armed with an offer letter claiming occupation of the farm. The appellants instead of vacating the farm to pave way for the new beneficiaries embarked on a protracted struggle to frustrate the lawful takeover of the farm. They mobilised and marshalled the support of the local chief, war veterans, influential politicians and the Provincial Governor and Resident Minister. It is needless to say that all these people and officials put together do not constitute the acquiring authority. Section 2 of the Land Acquisition Act [Cap 20:10] defines the acquiring authority as:

“(a) 	 the President, or any Minister duly authorised by the President, acting in terms of subs (1) or (2) of section three; or

(b)	 the President or any person acting in terms of section four; or

(c)	 the person empowered or required by any enactment to acquire land, take materials from land or pay compensation therefor, where the enactment applies any provision of this Act to such acquisition, taking of materials or payment of compensation; or

(c)	in relation to anything required or permitted to be done by an acquiring authority in terms of this Act or an enactment referred to in para (c), including the capacity to institute proceedings in terms of this Act and to sue and be sued either in his own official capacity or in the name of the acquiring authority, any person duly authorised by the acquiring authority for that purpose;”

The appellants do not deny having occupied and utilised the land without lawful authority. They however sought to rely on the defence of claim of right or mistake of law. It is trite that everyone is presumed to know the law but there is an exception to the effect that, “where the accused acted on incorrect advice as to the law, given by a government official who is primarily responsible for the administration of the particular statute to which the matter relates, his ensuing mistake of law is a good defence. See S v Davy 1988 (1) ZLR 386 at 400 D-G and S v Zemura 1973 (2) ZLR357 at 377E-G.

I now turn to consider whether the defence of claim of right or mistake of law was available to the accused.

It is self-evident that none of the persons under whose wrong advice the appellants claim to have acted fit the definition of the acquiring authority. It is also clear that none of them had the responsibility of administering the relevant statutes as is required by case law I have quoted above. All what they could do was to make recommendations. They could not override the decision that the acquiring authority had already taken and was in the process of implementing.

It is pertinent to note that the appellants only managed to obtain the written recommendations I have already adverted to above about eight months later in October 2007. All along they had been occupying and utilising the farm unlawfully without any form of authority in the form of a permit, offer letter or lease.

A reading of both recommendations shows that both the Governor and war veterans’ district committee were conscious of the fact that they were merely making recommendations to the acquiring authority. At no time did they authorise or purport to authorise the applicant to remain on the land in defiance of the acquiring authority’s decision to dispossess the appellants and offer the land to the new beneficiaries. That position was communicated to the accused in writing. Common sense dictates that a mere recommendation to remain on the land does not convert into authority to remain on the land until such time authority has been granted by the acquiring authority.

To date no such authority has been granted. In fact the acquiring authority is actively endeavouring to eject the appellants from the disputed land.

The evidence on record clearly establishes beyond question that the appellants first unilaterally defied the law before approaching government officials, war veterans and politicians to garner support for their illegal conduct which they had already executed without any advice from any State official or person in a position of authority. In other words, they only approached government officials for advice and support after they had already committed the criminal offence.

Despite the intervention of the Chief Lands officer, the police and ultimately a court of law, who all made it clear to the appellants that their conduct in occupying the land without lawful authority is unlawful, the appellants continue to defiantly occupy and utilize the land unlawfully. The appellants have therefore approached this court with dirty hands dripping with illegality. They are feigning ignorance of the law in order to disguise their open contemptuous disdain of the law.

That being the case the trial magistrate was absolutely correct in convicting the accused and punishing them according to law. It is therefore ordered that the appeal be and is hereby dismissed in its entirety.

DUBE J agrees.

Gollop & Blank, appellant’s legal practitioners

The Attorney General’s Office, respondent’s legal practitioners