Nora Developments (Pvt) Ltd & Anor v Beata Emely Chigwedere

### Preamble
Judgment No. SC 95/23
1
Civil Appeal No. SC 17/22
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REPORTABLE	(95)

NORA     DEVELOPMENTS     (PVT)     LTD     (2)     WILLEM     JACOBUS     NEL

v

BEATA     EMELY     CHIGWEDERE

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MATHONSI JA AND KUDYA JA

HARARE:	 4 OCTOBER 2022 & 26 SEPTEMBER 2023

L. Uriri, for appellants

D. Ochieng, for respondent

KUDYA JA:

[1]	The appellants appeal against the whole judgment of the High Court (the court a quo), which was handed down on 30 December 2021. The court a quo ordered the ejectment of the appellants from a piece of land known as Subdivision 1 of Binder in the Goromonzi District of Mashonaland East Province measuring 232.8 ha in respect of which the respondent claimed a right of occupation.

[2]	The first appellant is a locally registered company, that operates an abattoir at the Remaining Extent of Binder Farm, Goromonzi measuring 1 335.3681 hectares (the farm). The farm was demarcated into five subdivisions by the acquiring authority on 23 November 2004. The second appellant is a director of the first appellant and resides with his family and workers on subdivision 2 and on part of subdivision 1 of the farm. The appellants’ opposing affidavit in the court a quo was deposed to by the first appellant’s duly authorized managing director and majority shareholder Mrs Jacqueline Vongai Pratt (Mrs Pratt). The respondent is a female adult and the holder of an offer letter in respect of Subdivision 1 of Binder (the subdivision) that was issued together with a copy of the diagram thereof under the Agricultural Land Settlement Act [Chapter 20:01] on 23 November 2004. She accepted the offer.

THE FACTS

[3]	The facts are generally common cause. The first appellant is the former owner of the farm. The farm was initially gazetted for acquisition by the acquiring authority in 1997 and subsequently delisted. It was again enlisted for acquisition in terms of s 5 (1) of the Land Acquisition Act [Chapter 20:10] in the Government Gazette on 12 April 2002. The farm was demarcated into 5 subdivisions, each of which was allocated to the respondent and four other beneficiaries by 23 November 2004. The allocation, immediately resulted in skirmishes between Mrs Pratt and the respondent. On 7 January 2005, the Secretary for Lands, Land Reform and Resettlement and the Provincial Governor for Mashonaland East requested the two ladies to maintain peace and keep their herds of cattle separate on the subdivision. Again, on 21 July 2005, the Secretary exhorted the two protagonists to keep their herds of cattle separately while Mrs Pratt keeps her immovable property until the matter is resolved by the Agricultural Land Settlement Board amicably.”

[4]	Before an amicable resolution could be reached, the farm was effectively acquired for agricultural purposes under the overarching provisions of s 16B (2) (a) (i) and Schedule 7 of the former constitution on 14 September 2005.

[5]	The pleadings and the attachments thereto show that the parties have been in and out of the Magistrate’s Court, the High Court and the Supreme Court between June 2005 and October 2022. On 10 June 2005 at Goromonzi Magistrate Court Mrs Pratt and the appellants filed Case No. B50/05.  They unsuccessfully sought to interdict the respondent from taking occupation of the farmhouse and intermixing her herd of cattle with theirs.  It was clear from her founding affidavit in that case that the respondent’s herd had been on the farm since November 2004 and in December 2004, the two ladies engaged in a melee on the subdivision.

[6]	On 24 July 2013, in Case No. HC 5233/13, the first appellant obtained a default judgment against the acquiring authority and the Registrar of Deeds, in which the compulsory acquisition of the farm was declared null and void, and the Registrar of Deeds was ordered to cancel the endorsement inscribed on the title deed pursuant to s 16 B (4) of the former constitution. The order was rescinded in HC 10973/13 on 29 June 2016, despite contestation by the first appellant, in terms of r 449 (1) (a) of the High Court Rules, 1971 on the basis that it was erroneously granted in the absence of the respondent as a party who was adversely affected by it. The rescission was by consent confirmed on appeal by this Court on 28 May 2018.

[7]	On 24 July 2017, in Case No. HC 6761/17, the respondent also sought an interim interdict through the chamber book against the first appellant and its employees for interfering with her winter wheat farming operations in the subdivision. On 3 August 2017, the matter was, on the papers, adjudged not urgent but curiously dismissed for lack of merit.

[8]	The acquiring authority has been ambivalent on the eviction of the appellants. In 2005, the letters emanating from the acquiring authority’s officials left the resolution of the matter in the hands of the Agricultural Land Settlement Board. In 2008 and 2010, at the prompting of the respondent, some of the officials sought police assistance in evicting the appellants to no avail. However, on 28 March 2011, an offer letter in respect of the whole farm, inclusive of the subdivision, was issued to Mrs KL Chipere-Pratt-Sibanda (Mrs Sibanda).  Thereafter in 2013, after the default judgment in HC 5233/13, the acquiring authority revoked the offer letters of the other four beneficiaries and did not do so in respect of the offer letter issued to the respondent. In 2018, the appellants declined to appear before the Land Commission, which had been requested by the respondent to resolve the dispute.

[9]	On 25 June 2020, the respondent sued for the eviction of the appellants in the court a quo. She premised her application on the offer letter. She produced 5 pictures taken on 16 July 2020 of the homestead she built in 2006, her herd of cattle and tractor on the subdivision together with another 10 pictures of the residences and workers' quarters and arable lands and pastures on her subdivision that are occupied by the appellants’ invitees and workers. It was common cause that the appellants have remained ensconced on the subdivision since 2004, despite the offer letter held by the respondent.

[10]	The appellants contested the application in the court a quo. Mrs Pratt deposed that Mrs Sibanda was her nominee. The appellants however premised their right of occupation of the subdivision on Mrs Sibanda’s offer letter. The appellants approbated and reprobated whether the first appellant or Mrs Pratt was the source of their purported rights of occupation.

THE ARGUMENTS BEFORE THE COURT A QUO

[11]	The appellants raised four preliminary points. The first was that the respondent was estopped from seeking eviction by her acquiescence to the offer letter issued to Mrs Sibanda in 2011. The second was that the respondent’s offer letter was revoked by the acquiring authority thereby depriving her of any locus standi in the matter. The third was that the matter was res judicata, as a similar application had been dismissed in HC 6761/17 and had not been appealed against. The last was that the acquiring authority had admitted to having erroneously acquired an indigenously owned farm, hence its acquiescence in HC 5233/13, before its rescission. Allied to the third contention was the further contention that, the Land Commission (Gazetted Land) (Disposal in Lieu of Compensation) Regulations, 2020, SI 62/20 precluded the acquiring authority from holding on to indigenously owned land which had been acquired for agricultural purposes. The appellants contended that as the first appellant was a private company that was predominantly owned by Mrs Pratt, an indigenous Zimbabwean, the farm not only fell into the ambit of SI 62/20 but vested ownership in her. They thus argued that the farm was susceptible to be returned to them.

[12]	On the merits, they contended that the respondent had never taken occupation or conducted farming operations on the subdivision. They argued that her offer letter preceded the constitutional acquisition and was therefore a nullity. They took the alternative contention that the offer letter had been revoked and that she had been allocated another piece of land in Macheke. It was their further alternative argument that her offer letter had been implicitly cancelled by the offer letter, which was subsequently issued to Mrs Sibanda. They argued that she was precluded by the Secretary’s letter of 21 July 2005 from interfering with the immovable properties on the subdivision. The appellants also vehemently argued that the respondent could not seek the eviction of Mrs Pratt, whom they asserted was the owner of the farm.

[13]	The respondent contended that the farm was not owned by Mrs Pratt but by the acquiring authority. She argued that SI 62/20 had no application to the ownership as it merely prescribed the conditions precedent for returning land acquired from indigenous persons back to them. She further contended that as HC 6761/17 had not been decided on the merits, the special plea of res judicata could not avail the appellants. She also contended that her locus standi was founded on the extant offer letter that had been issued to her on 25 November 2004 and in any event validated by s 6 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. She strongly argued that although the Act in question came into effect on 20 December 2006, it gave retrospective validity to all offer letters that had been issued before that date. She vehemently maintained the correspondence emanating from the Secretary for Lands and Rural Resettlement in 2005 together with the appellants’ unsuccessful attempt to interdict her from asserting her rights of occupation on the farm in the Magistrates Court in 2005, belied the appellants' assertions that she lacked the requisite legal standing to invoke eviction proceedings. She further established that she was a resident of the subdivision where she was only able to utilize 15 ha because the rest had been purloined by the appellants. She also relied on the determination of these issues in her favour in the rescission judgment, which had also been confirmed on appeal.

[14]	The respondent further contended that, in the absence of either an offer letter, permit, or land settlement lease in their respective names, the appellants would not be entitled to any right of occupation of the subdivision. She strongly argued that the appellants’ reliance on the purported ownership of the subdivision by Mrs Pratt was misconceived. She also contended that the letters written by officials of the acquiring authority, which were sympathetic to Mrs Pratt’s cause, could not constitute lawful authority for the appellants to occupy gazetted land in defiance of s 3 (1) and (2 (a) of the Gazetted Land (Consequential Provisions) Act. The respondent also relied on the cases of Mike Campbell (Pvt) Ltd & Anor v Minister of Lands & Anor 2008 (1) ZLR 17 (S) at 31D-E and 44D-E; and Naval Phase Farming (Pvt) Ltd & Ors v Minister of Lands and Rural Resettlement 2015 (2) ZLR 309 (H) at 324H to further argue that the race of the former owner was irrelevant to the validity of the constitutionally driven acquisition process.  She finally submitted on the authority of CFU & Ors v Minister of Lands & Ors 2010 (1) ZLR 576 (S) at 592G-H, that, as a holder of a valid offer letter, she was empowered to seek eviction of the recalcitrant former owner.

THE JUDGMENT OF THE COURT A QUO

[15]	The court a quo dismissed all the preliminary points raised by the appellants. It found that the respondent’s offer letter was still extant and that she had personally taken residence and conducted farming operations on a portion of the subdivision continuously from 2005. It dismissed the preliminary point on estoppel on the same basis as had been done in Case No HC 10973/13. It held that the farm, inclusive of the subdivision, is owned by the State, which had constitutionally acquired it under s 16B (2) (a) (i) and Schedule 7 of the former constitution of Zimbabwe on 14 September 2005. Notwithstanding that the demarcation and allocation of the subdivision preceded the acquisition, the court a quo upheld the validity of the allocation. It also dismissed the preliminary point on res judicata on the ground that the subject matter in the earlier matter (Case No. HC 6761/17) and the present matter was different. The former concerned an interdict while the present was concerned with eviction.

[16]	On the merits, the court a quo upheld the validity of the respondent’s offer letter and dismissed the nullity argument taken by the appellants. This was on the basis that the offer letter in question had been given retrospective validation by s 6 of the Gazetted Land (Consequential Provisions) Act. The provision provides as follows:

“Any offer letter issued on or before the fixed date that is not withdrawn by the acquiring authority is hereby validated.”

[17]	The fact that the offer letter preceded the acquisition, did not mean that the farm would not have been lawfully demarcated and allocated before the constitutional acquisition.  The farm was already in existence at the time it was identified and gazetted for acquisition on 12 April 2002. While the constitutional acquisition process was the final and complete acquisition process, it did not negate the application of the provisions of s 8 (1) and (3) of the Land Acquisition Act. These provisions permitted the acquiring authority, some thirty days after issuing a s 5 (1) preliminary notice, to acquire the targeted agricultural land, survey, demarcate and allocate it pending confirmation of the acquisition by the Administrative Court. The effect of the constitutional acquisition process was to remove the cumbersome Administrative Court confirmation process in favour of the simplified constitutional process. The simpler process did not therefore invalidate the processes sandwiched between the preliminary notice and the constitutional acquisition process that occurred on 14 September 2005. The demarcation and allocation that had already taken place pending confirmation before the Administrative Court remained valid processes.  This is why the appellant did not and could not impugn the demarcation and allocation between November 2005 (when the respondent took occupation) and 6 July 2020 (when it raised it for the first time ever in its opposing affidavit to the present matter).

[18]	The court a quo further held, on the authority of Sigudu v Minister of Lands & Anor 2013 (1) ZLR 48 (H) at 56B-C, that a valid offer letter could not be automatically revoked by the mere issuance of a subsequent offer letter covering or incorporating the same agricultural land. It therefore dismissed the appellant’s submission that the subsequent offer later issued to Mrs Sibanda that incorporated the subdivision automatically cancelled the respondent’s earlier offer letter. The court a quo further dismissed the contention that Mrs Pratt was the owner of the farm because Mrs Sibanda was her chosen nominee. The appellants failed to establish any privity of contract with the acquiring authority and Mrs Sibanda. The offer to Mrs Sibanda would only have been personal to her.  It therefore held that as the appellants were not holders of any offer letter, they were not entitled to occupy the subdivision on the basis of an offer letter granted to someone else. They therefore did not have any right of retention. Lastly, it held that the appellants failed to demonstrate how the provisions of SI 62/20 could be interpreted to their advantage. It found that the respondent had established the essential elements for a rei vindicatio, viz, that she is the “owner” of the subdivision which was in the appellant’s possession without her consent. The court a quo accordingly granted her the order for eviction and costs.

GROUNDS OF APPEAL

[19]	The appellants appeal to this court on the following grounds of appeal.

“1.	The appellants having obtained an order setting aside the compulsory acquisition of the land the subject of the lis in HC 5233/13 and the respondent having successfully sought rescission thereof on the basis of its non-joinder, the court a quo erred in dismissing the preliminary objection that the respondent could not have issued separate proceedings to circumvent HC 5233/13 wherein the substantive rights of the parties stood to be determined.

ALTERNATIVELY

The court a quo erred in not holding that the substantive issues between the parties were ad lis alibi pendens in HC 5233/13 and the same having been reopened at the instance of the respondent, the balance of equities required that the cause a quo be stayed pending the substantive disposition of HC 5233/13.

2.	The court a quo erred in not holding that the action rei vindicatio was not available to the respondent given the substantive issues pending for determination in HC 5233/13 and the fact that there are, in any event, two extant offer letters in respect of the same land.

3.	The court a quo erred on the facts and circumstances of the case as appears from grounds of appeal 1 and 2 above in holding that the respondent has the right to occupy subdivision 1 of Binder Farm to the exclusion of the appellants.

RELIEF SOUGHT

The appeal succeeds with costs.

The judgment a quo is set aside and substituted with the following:

“a.	The application be and is hereby dismissed with costs.”

Alternatively,

“b.	The cause in HC 3216/20 is stayed pending the determination of the cause in HC 5233/13.”

THE ISSUE

[20]	The single issue that arises from the three grounds of appeal is whether or not the court a quo erred in granting an eviction order against the appellants before the determination of Case No. HC 5233/13, which was still pending.

THE CONTENTIONS BEFORE THIS COURT

[21]	Mr Uriri, for the appellants, submitted that the court a quo could not grant the respondent the order for eviction in circumstances where the substantive issue of “ownership” was pending inter partes in parallel proceedings in the High Court under case No. HC 5233/13. He premised his submission firstly, on the principle of lis alibi pendens, which he raised for the first time on appeal. He contended that, in determining the present matter, the court a quo failed to consider whether the balance of equities required it to stay the proceedings pending the determination of the very same issues in Case No. HC 5233/13, which were pending before it. He argued that the respondent failed to establish a clear right of ownership, which constituted a condition precedent for an eviction order.

[22]	In his written heads of argument and oral submissions, Mr Uriri contended that the respondent had the procedural obligation to resuscitate Case No. HC 5233/13 following the rescission. He submitted that the net effect of the rescission not only automatically conjoined the respondent to those proceedings but also rendered the substantive issue of who, between the parties, had the right to occupy the subdivision lis alibi pendens.  Mr Uriri further submitted that the eviction ought to have failed on the established basis that the appellants had a right to occupy the subdivision by virtue of the offer letter issued to Mrs Sibanda on 28 March 2011. The existence of Mrs Sibanda’s competing extant offer letter negated any clear right that the respondent could attach to her own first in time offer letter. He also submitted that the subdivision had, in the reckoning of the eminent domain’s officials been erroneously acquired such that it was susceptible to restoration to the indigenous owner. He therefore submitted that it was remiss of the court a quo to grant the respondent the order for eviction.

[23]	Per contra, Mr Ochieng for the respondent supported the judgment of the court a quo. He submitted that as the respondent holds an offer letter and the appellants do not, she exclusively wields the legal right to occupy the subdivision. He contended that the appellants failed to establish that they had any right, let alone a superior right, of occupation. They argued that the appellants managed to show that they have been in active defiance of the law for the past 18 years. He further contended that the appellants’ attempt to rely on a third party’s offer letter was a direct violation of s 13 (1) and (2) of the Agricultural Land Settlement Act [Chapter 20:01], the precursor to the similarly worded by s 28 (1) and (2) of the Land Commission Act [Chapter 20:29]. He submitted that such an arrangement, being in contravention of statute and lacking privity of contract would constitute a nullity.  He further submitted that the appellants could not for the first time on appeal raise lis pendens, nor impugn the decision for not staying the matter when these had neither been pleaded nor sought a quo.  Mr Ochieng prayed for costs on the legal practitioner scale on the basis that the appeal constituted an abuse of process that was designed to prolong the appellants’ wrongful occupation of the subdivision.

ANALYSIS

[24]	It is common cause that the subdivision, like the remainder of the farm, is owned by the State, in its capacity as the eminent domain. It is also common cause that notwithstanding the provisions of SI 62/20, the farm has never been restored to the first appellant or Mrs Pratt. The appellants and Mrs Pratt on the one hand and the respondent, on the other have been at loggerheads since the respondent moved onto the farm in November or December 2004. The appellants never impugned the validity of the respondent’s offer letter until the time she sought rescission of the default judgment that purported to nullify the acquisition process. They were unsuccessful in these endeavours. The validity of the offer letter was put beyond question in the rescission judgment of the High Court in HC 10973/13, whose substance and effect were confirmed by this Court in SC 432/16 on 28 May 2018. The assertion that it was impliedly cancelled is counterpoised by the apposite remarks of PATEL J, as he then was, in Sigudu v Minister of Lands & Anor 2013 (1) ZLR 48 (H) at 54F-G thus:

“The object of all of these provisions [ss 3 (1), 2 (1) and 6 of the Gazetted Land (Consequential Provisions) Act] is quite clear. It is to endow the holder of a valid offer letter with the requisite lawful authority to hold, use and occupy gazetted land and thereby shield him or her from being prosecuted, convicted and evicted under s 3 of the Act. Beyond this, the Act does not provide for the actual allocation or settlement of gazetted land, whether by offer letter, permit or lease. Nor does it provide for the cancellation or withdrawal of any such offer letter, permit or lease.”

The learned judge correctly held at 56B-C that:

“The Minister’s argument that the offer letter was automatically withdrawn simply cannot be accepted. As I have already stated above, the power to withdraw or cancel an offer of land must be exercised lawfully and procedurally, and this quite obviously necessitates the giving of due notice to the holder of the offer letter. It follows that the procedure for cancellation or withdrawal in accordance with the conditions set out in the applicant’s offer letter was never followed.”

[25]	It is settled law that a holder of an offer letter can properly seek the eviction of a recalcitrant former owner from the agricultural land to which the offer letter relates. This principle is enunciated in CFU & Ors v Minister of Lands & Ors 2010 (1) ZLR 576 (S) at 592G-H in the following manner:

“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 of it….The holders of 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 law. The lost rights have been acquired by the holders of offer letters, permits or land resettlement leases. Given this legal position, it is the holders of offer letters, permits or land settlement leases and not the former owners or occupiers who should be assisted by public officials in the assertion of their rights.”

See also McGregor v Saburi & Ors 2011 (1) ZLR 262 (H) at 266H-267A.

[26]	The principle of lis alibi pendens and the circumstances in which it may be raised are clearly articulated by Herbstein & Van Winsen in The Civil Practice of the High Courts in South Africa 5th ed. At p 313 the learned authors write that:

“If an action is already pending between parties and the plaintiff brings another action against the same defendant on the same cause of action and in respect of the same subject-matter, whether in the same or different court, it is open to the defendant to take the objection of lis pendens, that is, that another action respecting the identical subject matter has already been instituted, Thereupon the court, in its discretion, may stay the action pending the decision of the other. Objection is usually taken by way of a plea in abatement…A defence of lis pendens depends upon the existence of a pending earlier action.”

The effect of such a plea is again stated by the same authors at p 313 thus:

“Lis pendens is not, however, an absolute bar. It is a matter within the discretion of the court to decide whether an action brought before it should be stayed pending the decision of the first action, or whether it is more just and equitable that it should be allowed to proceed…It is not an immutable rule that the court will decide that the lis which was first to commence should be the one to proceed. Considerations of convenience and fairness are decisive in determining this question.”

The nature and stage at which the plea may be raised are adumbrated in these terms at p 605:

“Lis pendens is a special plea open to a defendant who contends that a suit between the same parties concerning a like thing and founded upon the same cause of action is pending in some other court.”

And lastly at p 606:

“Lis pendens is a somewhat peculiar form of a special plea not only because as has been pointed out above, the court retains a discretion whether or not to uphold the plea, but also because it need not necessarily be raised in initio litis but may be advanced at any time before litis contestatio.”

[27]	In our law, a special plea cannot be raised for the first time on appeal. This position is pertinently affirmed in Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S) at 157A, where KORSAH JA held that:

“Provided it is not one which is required by a definitive law to be specially pleaded, a point of law, which goes to the root of the matter, may be raised at any time, even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is directed: Morobane v Bateman 1918 AD 460; Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 23D-G.”

To similar effect are the remarks of MALABA DCJ, as he then was, in Gold Driven Investments (Pvt) Ltd v Tel-One (Pvt) Ltd & Anor 2013 (1) ZLR 172 (S) at 180C:

“The theme that runs through these principles is that a question of law can be raised at any stage of the proceedings provided it does not occasion prejudice to the other party. These principles are subject to the absence of clear provisions governing procedures in particular proceedings. It is particularly applicable where the procedure in question does not provide a sufficient remedy for raising a point of law. The principles do not on their own provide a separate legal basis on when a court can ignore explicit provisions of law designed to deal with the raising of questions of law.”

[28]	 It is also trite that an appeal court cannot, on appeal, deal with issues that were not deliberated in the subordinate court nor can the subordinate court be assailed for not making a finding on an issue that was not placed before it. See Chikanda v United Touring Co. Ltd SC 7/99 at pp 3-4, Central African Building Society v Stone & Ors SC 15/21 at para [29]and [30] and Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd & Ors 2006 (1) ZLR 373 (S) at 379F-H.

[29]	It is noteworthy that the Agricultural Land Settlement Act was repealed and substituted by the Land Commission Act on 26 February 2018. S 13, which is replicated by s 28 of the latter Act, with the addition of the underlined words, stipulated that:

“13 Prohibition of cession, etc.

(1) 	A lessee shall not—

(a) 	cede, assign, hypothecate or otherwise alienate his lease or his rights thereunder or place any other person in possession of his holding (or portion of Gazetted Land);

(b) 	enter into a partnership for the working of his holding (or portion of Gazetted Land);

without the consent in writing of the Minister.

(2) 	A transaction entered into by a lessee in contravention of subsection (1) shall be of no force and effect.” [underlined words added in s 28 of the Land Commission Act]”

Both statutes, undoubtedly, prohibit the sub-leasing of State land by holders of offer letters without the eminent domain’s consent.

[30]	The latter Act, in ss 17 and 23, vests the acquiring authority with the power to lease State land to an individual, a corporate body, or to two or more persons jointly and issue offer letters, permits, and land settlement leases in respect of such land. In terms of s 18, share-cropping on or sub-leasing of such land without the acquiring authority’s consent, attracts heavy criminal sanctions. Section 25 prescribes the conditions precedent that an eligible lessee must meet. Section 30 embodies the definition of “lawful holder or occupier” of a farm or land under inter alia an offer letter, a 99-year lease, and a land settlement lease. Lastly, s 65 is a saving and transitional provision for, inter alia, the lease, permit, or offer letter issued or deemed to have been issued under the repealed Agricultural Land Settlement Act that was in force immediately before the commencement of the Land Commission Act

[31]	The first main ground of appeal impugns the court a quo’s purported refusal to grant a stay of proceedings pending the completion of case No. HC 5233/13. The effect of the alternative to that ground further assails the court a quo for failing to mero motu raise and determine the special plea of ad lis alibi pendens on behalf of the appellants. The second and third grounds of appeal attack the order of eviction on the main basis that the appellants had a right of retention conferred upon them by the offer letter issued to Mrs Sibanda, which protected them from eviction.

[32]	The narration of the law pertaining to both lis pendens and its concomitant effect of staying latter proceedings in favour of earlier parallel proceedings demonstrates that lis pendens is a defence which must be specially pleaded. It is common ground that the appellants never pleaded lis pendens nor sought the stay of the eviction proceedings in the court a quo. They are therefore precluded from raising either of these two issues for the first-time on appeal. See J.C. Conolly & Sons (Pvt) Ltd v Ndhlukula & The Minister of Lands & Rural Resettlement SC 22/18 at para [49]; Muchakata v Netherburn Mine and Gold Driven Investments, supra. In the apposite words of CHIDYAUSIKU CJ in the Austerlands case, supra at 379G:

“The appellant also raised in its notice of appeal the ground that the court a quo failed to take into account the equities of this matter. The short answer to this submission, as was correctly submitted by the third respondent’s counsel, is that the court a quo was never asked to consider or to take into account those other considerations, nor were the factors placed before the court a quo. There is no basis for challenging the court a quo for not having determined something that was never placed before it to determine. Accordingly, this ground of appeal cannot succeed.”

[33]	Additionally, the mere fact that there is a pending matter would not afford the appellants a defence against eviction. See Twin Wire Agencies v CABS 2005 (1) ZLR 34 (S) at 36D.

[34]	The first ground of appeal is therefore devoid of merit and is dismissed.

[35]	Regarding the second and third grounds of appeal, the respondent’s offer letter is extant. It was not revoked together with the offer letters issued to the other four beneficiaries whose offer letters were purportedly revoked in 2013. These two grounds of appeal do not assail the validity of the offer letter in question. The CFU case, supra, clearly affirmed the right of the holder of a valid offer letter not only to the exclusive occupation of the agricultural land to which it relates but also to the concomitant right to evict any recalcitrant possessor. The common cause facts demonstrated that the appellants are not holders of any offer letter. The law is very clear that lawful occupation of gazetted land can only be conferred on an occupier by either an offer letter, permit, land settlement lease or any other agreement concluded between the occupier and the acquiring authority. S 13 of the Agricultural Land Settlement Act together with s 28 of the Land Commission Act statutorily declares as invalid any cessions or partnership agreements concluded between the holder and any non-holders of offer letters.  In any event, the blue pencil principle articulated in TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors SC 2018 (1) ZLR 137 (S) at 140F-G would effectively excise the subdivision from the rest of the farm and to that extent reduce the hectarage covered by the offer letter issued to Mrs Sibanda.

[26]	The second and third grounds of appeal are also unmeritorious and must be dismissed.

COSTS

[27]	In the Mike Campbell case, supra, this Court pronounced at p. 592A that:

“It is quite clear from the language of section 3 of the Act that the individual applicants, as former owners or occupiers of the acquired land, have no legal right of any description in respect of the acquired land once the prescribed period has prescribed.”

The appellants have been ensconced on the subdivision for the past 19 years when the law required them to vacate the land after 45 days and the residences after 90 days of the acquisition. Notwithstanding the concerted efforts of the staff of the acquiring authority in aiding and abetting the appellants in breaking the law, the appellants have prolonged their stay by bringing this entirely meritless appeal. It suffers to be dismissed with costs on a higher scale.

DISPOSITION

It is accordingly ordered that:

The appeal be and is hereby dismissed.

The appellants shall jointly and severally, the one paying the other to be absolved, pay the respondent’s costs on the legal practitioner and client scale.

GWAUNZA DCJ:		I agree.

MATHONSI JA:		I agree.

Mushonga, Mutsvairo & Associates, 1st and 2nd appellants’ legal practitioners.

Zinyengere Rupapa, respondent’s legal practitioners.