7 HH 3311 HC 7748/10 ALAN McGREGOR Versus NEHEMIAH

7 hh 33-11 hc 7748/10 alan mcgregor versus nehemiah saburi and attorney general and commissioner general zi

7
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:-
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
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 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 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 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.
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.
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