Jephany Tafirenyika Mwaluzah v The State

### Preamble
1
HH 462-13
HC 713/12
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JEPHANY TAFIRENYIKA MWALUZAH

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE AND MAVANGIRA JJ

HARARE, 3 September and 4 December 2013

Criminal Appeal

T. Takaendesa, for the appellant

F. Kachidza, for the respondent

MAVANGIRA J: The accused was charged with contravening s 3(2) (a) as read with s 3(3) of the Gazetted Land (Consequential Provisions) Act, [Cap 20:28] in that during the period extending “from 21 November 20011 to date,  Jephany Tafirenyika Mwaluzah being an illegal settler or occupier of subdivision 1 of subdivision A of Lanark Farm, a piece of land situated in Beatrice and registered in the name of Kanjara Enterprises Limited, unlawfully and without authority from the acquiring authority, failed to cease to occupy the farm after its compulsory acquisition and allocation to Shungu Machingura”. He was charged in the alternative with criminal trespass as defined in s 132(b) of the Criminal Law (Codification and Reform) Act, [Cap 9:23] in that during the period “extending from 21 November 2011 to date and at subdivision 1 of subdivision A of Lanark Farm Beatrice, Jephany Tafirenyika Mwaluzah knowing or realising that Shungu Machingura is the lawful occupier of the land, failed or refused to vacate the land when called upon to leave by Shungu Machingura or the land acquiring authority”. The pertinent section for the alternative charge ought to have been cited as “section 132 (1) (b)” and not as “section 132 (b)” of said Act.

The appellant pleaded not guilty to both the main and the alternative charges.

The State Outlined reads:-

“1.	The complainant in this case is Shungu Machingura, a female adult aged 37

years and is the new lawful occupier of subdivision 1 of subdivision A of Lanark Farm, Beatrice after it was gazetted on 7 November 2003.

2.	The accused person resides at the same farm but as a former occupier of the farm before it was compulsorily acquired by the government.

3.	On the 7th day of November 2003 the farm was compulsorily acquired for resettlement purposes and the complainant was issued with an offer letter reference number LLRR 704 on the 21st day, of November 2011 indicating her as the lawful occupier and offering her the rights of the whole of the farm.

4.	The accused person has no offer letter for the piece of land and is refusing to vacate the land to pave way for the complainant who was lawfully settled there to continue operating.

5.	The accused had no lawful right to continue occupying or using the farm after 90 days of the acquisition of the land and therefore acted unlawfully”.

The appellant was convicted of the main count after a trial. He was sentenced to US$50 or 20 days imprisonment. In addition the appellant was given 90 days within which to wind up his affairs and vacate the premises.

The appellant appealed against both his conviction and the sentence imposed upon him. With regard to conviction the first ground of appeal is that the court a quo misdirected itself “in failing to appreciate and consider that the charge and thus offence in question is time specific and accordingly, reliance on purported unlawful occupation and use of purported Gazetted land from the 21st November 2011 onwards and further surrounding facts fell outside the parameters of the enabling Act and was accordingly per se incompetent and invalid”.

The second ground of appeal against conviction is that court a quo “erred in holding that’s the evidence of the State witnesses and production of State documents competently and substantively traversed the essential elements of the alleged offence. There particularly, the adduced evidence fell far short of establishing the basic elements to the commission of an offence and accordingly the magistrate erred in holding that there was proof on the commission of an offence as well as criminal liability on the part of the appellant”.

The third ground of appeal is that the court a quo “erred in holding that the offence was one of strict liability and failed to give appropriate consideration and application to the detailed reasons buttressed by case law in appellant’s closing submissions and accordingly wrongly discounted appellant’s reasonable and bona fide  belief to authority or permission to occupy that portion of State land that had been allocated to him and/or which he had been allowed to occupy and develop up until and beyond the 21st November – notice of the purported illegality having been brought to him through the issuance of a summons to appear in 2012”.

The fourth ground of appeal is that the court a quo misdirected itself “in rejecting appellant’s explanation to reliance on representations – buttressed by the presentation of factual documents obtained from State officials with express or if not implied authority to administer, deal and provide advice on land reform – and that appellant had been authorised or permitted to remain in occupation and use of what he came to know as subdivision 2 of Subdivision A of Lanark in the district of Seke (Beatrice farming district) measuring approximately 250 hectares in extent. To that extent, even assuming the offence may be classified as a strict liability offence Her Lordship ignored the appellant’s claim of right defence as to apply the same to the acts of this case”. (sic)

The fifth ground is that the court a quo “neglected to appreciate and hold that there was a complete absence of evidence to establish the circumstances of the publication of the Gazetted Notice purportedly under s 5(1) of the Land Acquisition Act, [Cap 20:10] and the requirement of procedural compliance to a valid publication”.

The sixth ground is that the court a quo “erred in failing to acknowledge that the Magistrate’s Court sitting in Chitungwiza in 2006 had acquitted the registered ……… of Subdivision A of Lanark of contravening s 9 of the Land Acquisition Act [Cap 20:10 ] (unlawful occupation of State land without authority) for want of procedural compliance to a valid Gazetting and that according a revisit to essentially the same allegations albeit under a different act owed the procedural impropriety as that such impropriety could be wished away”.

The gravamen of the allegation against the appellant is that he continued, after 21 November 2011, occupying Lanark Farm, which was gazetted land, in breach of the Gazetted Land (Consequential Provisions) Act, [Cap 20:28] when he did not have any lawful authority.

Regarding the appellant’s first ground of appeal it is pertinent that by notice in terms of s 5(1) of the Land Acquisition Act, [Cap 20:10] published in Government Gazette Vol LXXXI, No. 75, General Notice 558 of 2003 Lanark Farm, measuring 406,4549 hectares and registered in the name of Kanjara Enterprises (Pvt) Ltd, was compulsorily acquired for resettlement purposes. Section 3(2) (a) of the Gazetted Land (Consequential Provisions) Act, provides:-

“(2) Every former owner or occupier of Gazetted Land –

referred to in para (a) of the definition of “Gazetted land” in s 2(1), shall cease to occupy, hold or use that land:

……..”

Section 3(3) thereafter provides:

“(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 subsection 2(a) or (b), …. he 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”.

Gazetted land is defined as follows:

“Gazetted land means agricultural land that –

in accordance with section 16B(2)(a)(i) or (ii) of the Constitution -

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

In casu Lanark Farm was compulsorily acquired for resettlement purposes. It was

published in the Government Gazette Volume LXXXI, number 75 General Notice 558 of 2003, Schedule 13. It is also itemised in Schedule 7 to the Constitution.  The land in question having been identified in the Government Gazette on 7 November 2003, it was thus identified before 8 July gazetted land from 21 November 2011 by the appellant was therefore unlawful as it was now state land and which had been offered to Shungu Machingura for her occupation and use. The appellant’s first ground of appeal is therefore, in my view, without merit.

With regard to the second ground of appeal, the evidence shows that the appellant had no offer letter or permit or land settlement lease to constitute his lawful authority to occupy or utilize the gazette land. The complainant on the other hand, the evidence shows, had a valid offer letter in respect of the whole of the farm being the whole of subdivision A of Lanark Farm 406,45 hectares. Lester Mwadzi the Chief Lands Officer responsible for boundary disputes said that the offer letter was valid and that it was signed by the Minister. The appellant confirmed that he had seen the complainant’s offer letter. He failed to exhibit an offer letter in his name. The letter from one Mr Motsi is not an offer letter as required by the Act. It states that the appellant was recommended for subdivision 2 of Subdivision A of Lanark and also that the offer letter data base reflects that he was issued with an offer letter but the offer letter cannot be located. In Mandindindi Farm Settlers v Mazowe Rural District Council and the District Administrator HH 53/04, the following was stated:-

“It is clear to me that a mere intention or recommendation to allocate land does not confer any rights on the intended beneficiary ….Rights only ………. when land is lawfully allocated by the appropriate authority and if lost are regained through the due process of law”.

The Gazetted Land (Consequential Provisions) Act, (supra) defines lawful authority in the following manner:

“’lawfully authority’ means –

an offer letter; or

a permit; or

a land settlement, lease; and ‘lawfully authorised’ shall be construed accordingly”.

Elias Zero, the appellant’s second defence witness was asked on pa 88 of the record:-

Q.	Does the accused has offer letter?

(sic)

No.

Q.	What is his position at the farm?

A.	Unlawful”

On the evidence adduced before the court a quo the appellant had no lawful authority

to stay on or utilize the farm. The second ground of appeal thus also lacks merit.

Regarding he third ground of appeal, the wording of s 3 is pertinent.

It provides:

“3 Occupation of Gazetted land without lawful authority.

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

Every former owner or occupier of Gazetted land –

referred to in para (a) of the definition of ‘Gazetted land’ in s 2(1), shall cease to occupy, hold or use that land forty-vie days after the fixed date, unless the owner or occupier is lawfully authorised to occupy hold or use that land;

referred to in paragraph (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 authority 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)

On a perusal or reading of this section it appears that the legislature impliedly

intended strict liability for this offence. Section 17(5) of the Criminal Law (Codification and Reform) Act, provides:

“(5) 	where in any enactment creating a crime no expression specifying a state of mind is used with respect to the commission of that crime, section thirteen or fourteen, as may be appropriate to the crime in question, and subject to subsection (3) of this section) section fifteen shall apply to the determination of the state of mind of the person accused of that crime, unless -

the enactment expressly provides that the crime is a strict liability crime; or

the legislature impliedly intended it to be a strict liability crime because –

the requirement of proving a mental element would render the detention or prosecution of the crime impossible or practically impossible; or

the object of the enactment would be defeated if proof of a mental element is required to establish liability for the crime: Provided that, notwithstanding subpara (i) or (ii), a court shall not hold that the legislature impliedly intended a crime to be a strict liability crime if the penalty for it is mandatory imprisonment or imprisonment without the option of a fine”.

It is submitted in the respondent’s heads of argument that the object of the Act would

be defeated if proof of a mental element for the offence were to be required. It is submitted that all former owners of gazetted land would give excuses for not vacating gazetted land thereby defeating the purpose of the Act for land reform. In S v Zimbabwe United Freight Co Ltd 1990(1) ZLR 138 (SC) at 146 B-D, KORSAH JA stated:

“In R v P Hall & Co (Pvt) Ltd 1966 RLR 374 (A) at 376; 1966(3) SA 669 (RA) at 670, FIELDSEND AJA (as he then was) said:

“The test to applied in determining whether or not legislation imposes absolute liability where unqualified prohibitive words are used are well known, if not always easy of application. Generally, the factors to be taken into account are:

the object and scope of the legislation;

the nature and extent of the penalty;

the case with which the beneficial provisions of the Act could be evaded, if the defence of absence of means rea were allowed to be set up”.

The respondent’s submission on this ground as discussed above is valid. I find that the third ground of appeal also lacks merit.

Insofar as the fourth ground of appeal is concerned, the appellant does not deny that the complainant had a valid offer letter. Furthermore, by his own evidence the appellant “would visit offices and they could not locate (his) offer letter.” It is thus apparent that the appellant was aware or knew that he needed an offer letter in order for his occupation and or use of the land to be lawfully authorised. In the circumstances, there can be no issue of claim of right and the fourth ground of appeal is therefore, in my view, a non-ground.

The applicant’s fifth ground of appeal is effectively answered by the provisions of subs 5 of s 16B of the Constitution of Zimbabwe. This provision is relevant or applicable as s 3 of the Gazetted Land (Consequential Provisions) Act regulates property or land acquired under s 16B of the constitution. Section 16 B(5) provides:-

“(5) Any inconsistency between anything contained in –

a notice itemised in Schedule 7;

or

a notice relating to land referred to in subs 2(a) (ii) or (iii);

and the title deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subs (2)(a) invalidate the vesting of title in the State in terms of that provision”.

As for the appellant’s sixth ground of appeal the findings above regarding the first five grounds of appeal necessarily strip this ground of any merit.

For the above reasons the conviction of the appellant is justified and the appeal against conviction cannot succeed.

The appeal against sentence also lacks merit. The learned trial magistrate, after balancing all the factors with an indication from a perusal of the reasons for sentence that he or she was generally influenced  by the mitigatory factors, decided that  a fine in a nominal amount would meet the justice of the case. The learned trial magistrate proceeded to do just that and imposed a fine of US$50-00 or 20 days imprisonment. The sentence is not excessive by any stretch of the imagination, nor does it induce a sense of shock and outrage. Neither is the 90 day period that was granted to mind up his operations and vacate the farm unreasonable.

The submission is made by the respondent that the noting of an appeal by the appellant did not suspend the order of eviction. However, s 40(3) of the Magistrate Court Act, [Cap 7:10] provides that:

“where an appeal has been noted the court may direct either that the judgment shall be carried into execution or that execution therefore shall be suspended pending the decision upon the appeal or application”.

It is submitted that an application should thus have been made for suspension of the order and that the appellant’s failure to do so means that he was in contempt of court. The submission is valid.

For the reasons above, the appellant’s appeal against both conviction and sentence is dismissed in its entirety.

MAVANGIRA J: ……………………………

HUNGWE J: ………………………………..

Mugiya & Macharaga Law Chambers, appellant’s legal practitioners