REPORTABLE ZLR (38)

Judgment No. SC 45/03

Civil Appeal No. 177/03

BON ESPOIR (PRIVATE) LIMITED v

(1) HENRY CHABATA

(2) THE MEMBER-IN-CHARGE, CHIREDZI POLICE STATION

(3) THE MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT

SUPREME COURT OF ZIMBABWE

SANDURA  JA, CHEDA JA & GWAUNZA JA

HARARE, NOVEMBER 27 & DECEMBER 12, 2003

R Y Phillips, for the appellant

No appearance for the first respondent

N Mutsonziwa, for the second and third respondents

SANDURA  JA: This is an appeal against a judgment of the High Court which dismissed with costs the appellant’s application for an order declaring that the occupation by the first respondent (“Chabata”) of the homestead and property known as Hippo Valley Settlement Holding 37 (“the property”) is unlawful, and directing the second respondent to evict Chabata and all those occupying the property under him from the said property.

The factual background is as follows. The property is part of the Hippo Valley Settlement Scheme and was registered in the appellant’s name in 1986. It is governed by the Hippo Valley Agreement Act [Chapter 20:08].

On 29 June 2001 the third respondent (“the Minister”) published in The Herald newspaper a preliminary notice in terms of s 5(1)(a) of the Land Acquisition Act [Chapter 20:10] indicating the Government’s intention to acquire the property, and others, on a compulsory basis. A similar notice was supposed to have been published in the Government Gazette Extraordinary (“the Gazette”) of 29 June 2001, but that Gazette was not printed until the weekend of Saturday 30 June and Sunday 1 July 2001 and was not made available to the public before Thursday 5 July 2001.

In the circumstances, on 10 July 2001, the appellant’s legal practitioner wrote to the Minister as follows:

“The Herald of 29 June 2001 contained some twelve pages of lists of properties in respect of which preliminary notice was being given in terms of s 5 of the Land Acquisition Act of Government’s intention to acquire these properties on a compulsory basis.

The Act requires such notices to appear on the same day as a similar notice in the Gazette and to be followed a week later with a second newspaper notice. It is clear from the wording of the Act that the Gazette notice is the principal triggering factor and that the Gazette notice is required to give thirty days for objections to be lodged.

We give formal notice that the Extraordinary Gazette which was meant to be published on 29 June 2001 was not published on that date and that the lists appearing as Batches A, B and C in The Herald on 29 June must therefore be regarded as invalid.

The Extraordinary Gazette of 29 June 2001 was not made available to the public before Thursday 5 July 2001 …”.

The letter was copied to the Director of the Civil Division of the Attorney-General’s Office (“the Director”), and the Controller of Printing and Stationery. There was no response to it from the Minister, the Director and the Controller of Printing and Stationery.

Subsequently, the Minister, acting in terms of s 8(1) of the Land Acquisition Act, purported to acquire the property on behalf of the President, and thereafter allocated it to Chabata in terms of the Agricultural Land Settlement Act [Chapter 20:01].

Aggrieved by the compulsory acquisition of its property, the appellant company filed an urgent chamber application in the High Court seeking an order evicting Chabata from the property. The application was dismissed with costs. Dissatisfied with that result, the appellant appealed to this Court.

Mr Phillips, who appeared for the appellant, advanced two main arguments. The first was that the Minister’s failure to comply with s 5(1)(a) of the Land Acquisition Act was fatal to all subsequent proceedings including the acquisition of the property, and the second was that the general provisions of the Land Acquisition Act do not override the special provisions of the Hippo Valley Agreement Act with which the Minister should have complied.

Section 5(1)(a) of the Land Acquisition Act, in relevant part, reads as follows:

“(1) Where an acquiring authority intends to acquire any land otherwise than by agreement, he shall –

(a) publish once in the Gazette and once a week for two consecutive weeks, commencing with the day on which the notice in the Gazette is published, in a newspaper circulating in the area in which the land to be acquired is situated and in such other manner as the acquiring authority thinks will best bring the notice to the attention of the owner, a preliminary notice –

(i) describing the nature and extent of the land which he intends to acquire …; and

(ii) setting out the purposes for which the land is to be acquired; and

(iii) calling upon the owner or occupier or any other person having an interest or right in the land who –

A. wishes to contest the acquisition of the land, to lodge a written objection with the acquiring authority within thirty days from the date of publication of the notice in the Gazette; or

B. …”.

It is clear from the above provisions that the first notice in the newspaper must be published on the same day as a similar notice is published in the Gazette. Quite clearly, that is not what happened in this case. The notice was published in The Herald on 29 June 2001, but the Gazette in which the notice appeared and which was meant to be published on 29 June 2001 was not published on that date. Instead, it was published on 5 July 2001. The error and consequent invalidity of the notice were brought to the attention of the Minister and the Director but, surprisingly, no corrective action was taken.

In view of the fact that s 5(1)(a) was not complied with, Mr Mutsonziwa, who appeared for the second and third respondents, conceded that the property was not lawfully acquired by the Minister. That concession was properly made. It is clear from the wording of s 5(1)(a) that compliance with the provisions of the section is peremptory and that that was the intention of the legislature.

In addition, a number of serious consequences stem from the publication of the preliminary notice in the Gazette. Firstly, the publication of the preliminary notice in the newspaper commences on the day on which the notice is published in the Gazette.

Secondly, in terms of s 5(1)(a)(iii)(A), all interested parties who wish to contest the compulsory acquisition of the property in question must lodge written objections with the acquiring authority within thirty days from the date of publication of the notice in the Gazette.

Thirdly, in terms of s 5(2), where the acquiring authority has published a preliminary notice in the Gazette in respect of any land no subdivision, permanent improvements or disposal of the land may be effected, while the notice remains in force, without the permission in writing of the acquiring authority.

Fourthly, in terms of s 5(5), after the lodging of a copy of the preliminary notice with the Registrar of Deeds, the Registrar is interdicted from registering any transfer of the property described in the notice to any person other than the acquiring authority unless, inter alia, he does so in pursuance of a valid contract of sale entered into prior to the date on which the preliminary notice was published in the Gazette.

Fifthly, in terms of s 5(8), any person who, after a preliminary notice has been published in the Gazette and while it is in force, demolishes, damages, alters or in any other manner impairs the land described in the notice without the permission in writing of the acquiring authority, is guilty of an offence and is liable to a heavy fine.

Finally, in terms of s 8(1), the acquiring authority may, not less than thirty days after the date of publication of the preliminary notice in the Gazette, acquire the land by serving an order to that effect on the owner of the land concerned.

It is clear from the above provisions that the date of publication of the preliminary notice in the Gazette is of crucial importance. In addition, the consequences which stem from the publication of the notice in the Gazette are so serious that compliance with s 5(1)(a) can only be imperative. Quite rightly, counsel for the second and third respondents did not argue to the contrary..

In the circumstances, as s 5(1)(a) was not complied with, cadit quaestio. That is the end of the matter and the appeal succeeds.

Nevertheless, I shall consider the second argument advanced by Mr Phillips. That argument was that the general provisions of the Land Acquisition Act do not override the Hippo Valley Agreement Act which governs the appellant’s property and with which the Minister should have complied before compulsorily acquiring the property. In my view, this is a valid argument.

The Hippo Valley Agreement Act was promulgated in January 1965 and is an Act which incorporates an agreement between the Government of Zimbabwe and Hippo Valley Estates Limited. It relates to two specific blocks of land in Ndanga District. On the other hand, the Land Acquisition Act was promulgated in 1992, and applies to the compulsory acquisition of land in general. In addition, no manifest repeal of the earlier Act is to be found in the Land Acquisition Act.

In the circumstances, the maxim generalia specialibus non derogant applies. The maxim means that general provisions do not derogate from special provisions. In other words, general provisions do not override pre-existing particular provisions. The maxim has been discussed in many cases. However, the often cited case is R v Gwantshu 1931 EDL 29. At 31 GUTSCHE J said the following:

The general maxim is generalia specialibus non derogant. ‘When the Legislature has given attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision, unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject matter and its own terms’, per LORD HOBHOUSE delivering the judgment of the Privy Council in Barker v Edger [1898] AC at p 754. … Having already given its attention to the particular subject and provided for it, the Legislature is reasonably presumed not to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language.”

I am in complete agreement with the learned judge. I find nothing in the Land Acquisition Act which manifests the legislature’s intention to repeal or amend the Hippo Valley Agreement Act. The Land Acquisition Act does not, therefore, override the Hippo Valley Agreement Act.

In the circumstances, the Minister should have acquired the property in terms of clause 22(a) of the Hippo Valley Agreement Act, which reads as follows:

“The Government shall have the right at any time to resume possession of any land let or sold in accordance with the provisions of this Agreement, whether to the Company or Planters under the Land Settlement Scheme, if such land be required in the opinion of the Government for public use by the Government or for use by a section of the public, … and if the Government shall decide to exercise its rights, it shall pay such compensation for the land as may be mutually agreed upon, or failing such mutual agreement, as may be determined by valuation, the Company and the Government each appointing a valuator and the valuators, if they are unable to agree, appointing an umpire whose decision shall be final.”

It is pertinent to note that the Land Acquisition Act does not have a similar provision because under that Act no compensation is payable for land compulsorily acquired.

In the circumstances, the following order is made –

1. The appeal is allowed with costs to be paid by the third respondent.

2. The order of the court a quo is set aside and the following is substituted –

“(a) The occupation of the homestead and property known as Hippo Valley Settlement Holding  37 by the first respondent is hereby declared unlawful.

(b) The second respondent shall take all reasonable and necessary steps to evict the first respondent and all those holding occupation under him from the homestead and premises of the applicant on Hippo Valley Settlement Holding 37.

(c) The costs of this application shall be paid by the first respondent.”

CHEDA JA: I agree.

GWAUNZA JA: I agree.

Coghlan, Welsh & Guest, appellant's legal practitioners

Civil Division of the Attorney-General’s Office, second and third respondents' legal practitioners