acquisition notice issued before coming into effect of constitutional amendment No 17 https://old.zimlii.org/taxonomy/term/10734/all en Hortbac (Private) Limited v Minister of Lands and Rural Settlement N.O & 3 Ors (HMA 31-20, HC 380/18) [2020] ZWMSVHC 31 (06 July 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/31 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p> </p> <p>HORTBAC (PVT) LTD.</p> <p>versus</p> <p>THE MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT N.O.</p> <p>And</p> <p>JAMES CHIYANGWA</p> <p>And</p> <p>TENDAI BONGA</p> <p>And</p> <p>RONALD KITULI</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>WAMAMBO J</p> <p>MASVINGO, 14 NOVEMBER, 2019 &amp; 6 JULY, 2020</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p> </p> <p> </p> <p><em>G. Madzoka </em>with I. <em>Chingarande </em>for the applicant</p> <p><em>T. Undenge for</em> the 1st respondent</p> <p>A. Maeresera for the 2nd and 4th respondents</p> <p> </p> <p> </p> <p> </p> <p>WAMAMBO J:   The applicant seeks the following relief as per the draft order:-</p> <p>“<em>IT IS ORDERED THAT</em></p> <ol> <li><em>The applicant be and is hereby declared to be the lawful occupier and owner of portion of the Globe Farm measuring 142,38 hectares held under Deed of Transfer No. 224/96.</em></li> </ol> <p> </p> <ol> <li><em>The offer letters issued to the 2nd, 3rd and 4th respondents by the 1st respondent be and are hereby declared to be unlawful and wrongful and accordingly set aside.</em></li> </ol> <p> </p> <ol> <li><em>The 2nd, 3rd and 4th respondents are declared to be in unlawful occupation of the portion of the Glebe Farm, measuring 142,38 hectares, Goromonzi Mashonaland East</em>.</li> </ol> <p> </p> <ol> <li><em>The 1st,2nd, 3rd and 4th respondents are ordered to pay costs of suit on a client and attorney scale, jointly and severally, one paying the others to be absolved</em>.”</li> </ol> <p> </p> <p>The applicant is the former owner of a farm called The Glebe in the District of Goromonzi held under Deed of Transfer Number 224/96 (<em>hereinafter called the farm</em>). The government acquired the said farm under the Land Acquisition Act [<em>Chapter 20:10</em>]. The applicant engaged the first respondent through the Administrative Court. The engagement led to the result that 1st respondent subdivided the farm into two and applicant was given a portion measuring 142,38 hectares while 1st respondent obtained 526,81 hectares. The negotiations were encapsulated into a Court Order by the Administrative Court on 8 August 2003 under case number LA 2898/02. The order was granted by consent of the appellant and 1st respondent. The said Order reads as follows:-</p> <p><em>“IT IS ORDERDED BY CONSENT THAT:-</em></p> <ol> <li><em>The Acquisition of the undermentioned property in terms of Section 7 of the Land Acquisition Act [Chapter 20:10] be and is hereby confirmed </em></li> </ol> <p> </p> <ol> <li><em>Portion of Glebe measuring 526.84 hectares situated in the District of Goromonzi held under Deed of Transfer Number 224/96</em></li> </ol> <p> </p> <ol> <li><em>The Acquisition proceedings in respect of the remaining portion of Glebe measuring 142,38 hectares situated in the District of Goromonzi held under Deed of Transfer No. 224/96 be and is hereby withdrawn.</em></li> </ol> <p> </p> <ol> <li><em>The applicant shall subdivide Glebe and pay the subdivision costs thereof.</em></li> </ol> <p> </p> <ol> <li><em>There shall be no order as to costs.</em></li> </ol> <p> </p> <p>Thereafter 1st respondent allocated the same piece of land (<em>that is the 142,38 hectares that had been withdrawn from the acquisition process through the above Administration Court Order</em>) to 2nd, 3rd and 4th respondents through offer letters. This allocation to the 2nd, 3rd and 4th respondents is essentially what has dissatisfied the applicant.</p> <p>There were spirited arguments from all parties involved.</p> <p>Applicant’s arguments unfolded as follows:</p> <p>The 1st respondent proceeded unlawfully by apportioning the same piece of land allocated to applicant through an Administration Court Order.</p> <p>1st respondent’s conduct violated applicant’s rights over the piece of land and infringed on its constitutional obligation imposed by section 291 of the Constitution.</p> <ul> <li>The applicant’s massive developments on the piece of land have been undermined by the allocation of piece of land to the 2nd to 4th respondents</li> <li>The Administrative Court Order of 8 August, 2003 is lawful authority and remains extant</li> <li>The portion of land allocated to the applicant remains ungazetted and remains private property</li> </ul> <p>Constitutional Amendment No. 17 of 2005 does not apply to this case as an order of Court had already been granted when it came into effect. The gazette of 18 May 2001 was withdrawn by the Administrative Court Order of 8 August, 2003.</p> <p>First respondent strenuously made submissions to the following effect.</p> <p>Section 2 of the Gazette Land (Consequential Provisions) Act [<em>Chapter 20:28]</em> provides that lawful authority is an offer letter, a permit or a land resettlement lease and applicant does not possess any of the three.</p> <p>Section 16B(2) as read with Section 16B(3) of Constitutional Amendment Number 17 of 2005 of the former Constitution provides that all land previously identified for resettlement vests in the State.</p> <p>Reliance was also placed on Section 289 of the Constitution and among others the case of the <em>Commercial Farmers Union and Others</em> v <em>The Minister of Lands, Rural Resettlement and Others</em> 2010 (1) ZLR 576 (S).</p> <p>Second to 4th respondents relied on various cases, notably <em>TBIC Investments (Pvt) Ltd and</em> <em>Another</em> v <em>Mangenje &amp; Others</em> SC 13/18, <em>Cedor Park (Pvt) Ltd</em> v The<em> Minister of State for National Security and Land Reform</em> (hereafter the Cedor Park matter), <em>Resettlement in the President’s</em> <em>Office</em> HB 65/10 (<em>hereinafter referred to as the Cedor Park matter</em>)<em>, J.C. Connolly &amp; Sons (Pvt) Ltd</em> v <em>Ndlukula &amp; Anor</em>. SC 22/18.</p> <p>The effects of Constitutional Amendment No. 17 of 2005 were canvassed in detail. Counsel for 2nd to 4 respondents sought to distinguish the case of <em>Vukutu (Pvt) Ltd</em> v <em>Pride Kwinje and The Minister of Lands, Land Reform and Resettlement </em>HH 364/16 (<em>hereinafter called the Vukutu matter</em>) which the applicants heavily relied on. To my mind central to the instant case is the effect of the Constitutional Amendment 17 of 2005 and the Constitution of 2013. Did one or both of them   supercede the Administrative Court Order or does the Administrative Court order remain intact.</p> <p>In the <em>Vukutu </em>matter (supra) MAFUSIRE J made an important observation at pages 8-9 as follows: -</p> <p><em>“It is now trite that s 16 B of Constitutional Amendment No. 17 was a self-contained code on the compulsory acquisition by government of agricultural land for resettlement purposes. By the use of the non-obstante clause in subsection [2] “Notwithstanding anything contained in this Chapter: - it overrode all other sections of the Bill of Rights. The jurisdiction of the court to adjudicate on whether or not a litigant’s rights as enshrined in the Bill of Rights had been violated was ousted Section 16B as part of the Bill of Rights in Chapter 3 of the Old Constitution, was carried into the new Constitution by virtue of s 72(4) and Sixth Schedule.”</em></p> <p> </p> <p>MAFUSIRE J in the Vukutu matter (supra) found as follows:-</p> <p>First respondent was allocated another farm and thus the purported allocation of Vukutu Farm to the first respondent is null and void. Notably in this case there is no similar averment.</p> <p>On the effective date of the new Constitution the applicant was using or occupying Vukutu. The court found that the Administrative Court Order fell within the meaning of "or other agreement with the State "under Section 291 of the new Constitution.</p> <p>Section 291 reads as follows:-</p> <p>“<em>Subject to this Constitution any person, who immediately before the effective date was using or occupying or was entitled to use or occupy any agricultural land by virtue of a lease or other agreement with the State continues to be entitled to use or occupy that land on or after the effective date in accordance with that lease or other agreement</em>”.</p> <p> </p> <p>In the instant case there is an Administrative Court Order alienating 142,38 hectares to the applicant. The applicants assert in paragraph 23 of the Answering Affidavit that it is in lawful occupation. It follows in this case as well that the occupation by applicant of the portion of the farm allocated to it through the Administrative Court Order and/ or entitlement to occupy the said land places the applicant squarely within the confines of section 291 of the Constitution. I thus find adopting the same reasoning by MAFUSIRE J in the Vukutu case that the purported deprivation of applications rights of use and occupation of a portion of Glebe farm is null and void.</p> <p>The Honourable Judge placed reliance on Section 17 of the Prescription Act [<em>Chapter 1:01</em>] and common law as regards retrospectivity of amending legislation and cases such as <em>Barclays Bank </em>v <em>Nyahuma</em> SC 86/04<em>, Nkomo and Another</em> v <em>Attorney General Zimbabwe and Others</em> 1993(2) ZLR 422(S). He found flowing from the above legal framework that the rights and obligations granted by the Administrative Court Order were not affected by section 16B of the Constitutional Amendment No. 17.</p> <p>In this case the Administrative Court Order relied on by the applicant was granted on 8 August, 2003. It has endured up to this late stage when the 2nd to 4th respondent were granted offer letters to the same property.</p> <p>I find in the circumstances that the reasoning adopted in the Vukutu case is sound and also find that section 16B did not affect the rights and obligations granted by the Administrative Court Order of 8 August 2003.</p> <p>MAFUSIRE J in the Vukutu case at page 14 said the following:-</p> <p>“<em>I agree with Mr Biti that the removal of the court’s jurisdiction under s 16B of Constitutional Amendment No. 17 was only in relation to any possible challenge, on the merits by a person having rights or interests in agricultural land compulsory acquired, or to be acquired, by the State for redistribution in terms of the land reform programme. The status of the judiciary as the watchdog of the Constitution in terms of Chapter 8 was not affected. Under s 175 of the Constitution it is the judiciary that is reposed with the power to make orders concerning the constitutional invalidity of any law or any conduct of the President or Parliament.” </em></p> <p> </p> <p>A reading of the Vukutu judgment as summarised above clearly reflects that the facts in that case and in the instant case were similar. It is also clear that the learned Judge in that case did not place reliance only on the fact that the 1st respondent in that case had been allocated other land under the Land Reform Programme. As summarised above there was other major considerations leading to the provisional order being confirmed and an order <em>inter alia</em> binding second respondent to the Administrative Court Order and declaring the offer letters to the first respondent being declared null and void.</p> <p>It is also clear that the matter of Cedor Park matter (supra) was decided before the ushering of the New Constitution of 2013 which contains Section 291 the effects of which I have found to be in favour of the applicant.</p> <p>To that end I am of the considered view that the applicant deserves the relief he seeks. On costs I am convinced that not enough basis has been laid out for the request for costs on a legal practitioner and client scale. The matter appears important to resolve an important facet of the Land Reform Programme. Costs will thus be granted on the ordinary scale.</p> <p>In the result it is ordered as follows:-</p> <p>IT IS ORDERED THAT: -</p> <ol> <li>The applicant be and is hereby declared to be the lawful occupier and owner of a portion of the Glebe Farm measuring 142,38 hectares held under Deed of Transfer No. 224/96</li> <li>The offer letters issued to the 2nd, 3rd and 4th respondents by the 1st respondent be and are hereby declared to be unlawful and wrongful and accordingly set aside.</li> <li>The 2nd, 3rd and 4th respondents are declared to be in unlawful occupation of the portion of the Glebe Farm, measuring 142,38 hectares Goromonzi, Mashonaland East.</li> <li>The 1st, 2nd, 3rd and 4th respondents are ordered to pay costs of suit jointly and severally, one paying the others to be absolved.</li> </ol> <p><em>G.N. Mlotshwa &amp; Co</em>, applicant’s legal practitioner</p> <p><em>Civil Division of the Attorney General’s Office</em>, 1st respondent’s legal practitioners</p> <p><em>Chizengeya, Maeresera &amp; Chikumba</em>, 2nd to 4th respondents legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/31/2020-zwmsvhc-31.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24574">2020-zwmsvhc-31.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/31/2020-zwmsvhc-31.pdf" type="application/pdf; length=443330">2020-zwmsvhc-31.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/land-0">LAND</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/acquisition-land">Acquisition of land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/acquisition-notice-issued-coming-effect-constitutional-amendment-no-17">acquisition notice issued before coming into effect of constitutional amendment No 17</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-administrative-court-confirm-acquisition">application to Administrative Court to confirm acquisition</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/offer-letters-acquisition-land">offer letters (Acquisition of land)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2010/31">Commercial Farmers Union &amp; Others v Minister, Lands and Rural Resettlement &amp; Others (SC 31/10 Const. Application No. 81/10) [2010] ZWSC 31 (26 November 2010);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2018/410">TBIC Investmenst (Pvt) LTD &amp; Another v Sheriff of Zimbabwe &amp; Another (HH 410/18, HC 5197/18) [2018] ZWHHC 410 (11 July 2018);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2018/22">J. C. Conolly &amp; Sons (Pvt) Limited v Ndhlukula &amp; Another (SC 22/18, Civil Appeal No. SC 291/16) [2018] ZWSC 22 (15 March 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2016/364">Vukutu (Pvt) Ltd. v Kwinje &amp; Another (HH 364-16 HC 7274/15) [2016] ZWHHC 364 (15 June 2016);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2004/86">Barclays Bank v Nyahuma (99/03) ((99/03)) [2004] ZWSC 86 (31 October 2004);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2006/8">Gazetted Land (Consequential Provisions) Act [Chapter 20:28]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1992/3">LAND ACQUISITION ACT</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Wed, 29 Jul 2020 08:00:41 +0000 Sandra 9806 at https://old.zimlii.org Walubengo v Minister of Lands, Agriculture & Rural Settlement & Anor (HH 225-20, HC 8634/19) [2020] ZWHHC 225 (18 March 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/225 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HENRY WALUBENGO</p> <p>versus</p> <p>MINISTER OF LANDS, AGRICULTURE AND RURAL SETTLEMENT</p> <p>and</p> <p>REGISTRAR OF DEEDS</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 28 February and 18 March 2020</p> <p> </p> <p>                               </p> <p><strong>Opposed application </strong></p> <p> </p> <p><em>F Chimwawadziva</em>, for the applicant</p> <p><em>B Munyoro</em>, for the 1st respondent</p> <p> </p> <p>            TAGU J: This is a Court application for the upliftment of an endorsement on the title to applicant’s immovable property held under Deed of Transfer No. 6708/2003 in favour of the applicant. The facts are that the applicant acquired an immovable property situate in the District of Salisbury being Lot 45 Kintyre Estates measuring 11.4362 hectares and transfer title was done through a Deed of Transfer No. 6708/2003. On the 19th of November 2004, consequent to the land reform program the then Minister of Special Affairs in the Office of the President and Cabinet in Charge of Lands, Land Reform and Resettlement caused a notice to be issued in the Government Gazette gazetting the said land for acquisition by the State for resettlement purposes. As a result the first respondent caused the second respondent to endorse the title in terms of the Land Acquisition Act [<em>Chapter 20.10</em>]. The applicant says the preliminary notice to acquire the land lapsed way back in 2007. He said had the first respondent been intent on reissuing a notice for acquisition that could have been done within one year from the date that the preliminary notice had lapsed or any shorter period as agreed with the owner. He cited sections 5 (4) and (9) of the Land acquisition Act. He further said notwithstanding the lapse of the preliminary notice the endorsement remained in force and should have been cancelled or uplifted. Section 5(4) of the Act reads as follows-</p> <p>“4. A preliminary notice or a notice in terms of subsection (3) shall remain in force for a period of two years from the date of publication of the notice in the gazette.”</p> <p>Further section 9 provides that-</p> <p>       “9. The fact that a preliminary notice-</p> <ul> <li>or a notice in term of subsection (3) has lapsed-</li> </ul> <p>(ii) in terms of subsection (4);</p> <p>Shall not prevent the acquiring authority from issuing a fresh notice in terms of subsection (1) or (3), as the case may be, in respect of same land after a period of one year from the year, from the date when such notice lapsed or if so agreed by the acquiring authority and the owner of the land concerned, at any earlier time; or…”</p> <p>The applicant submitted that it is for the foregoing reasons that he was praying for the upliftment of the endorsement by the second respondent to enable him to exercise his rights. He now prays for the following order-</p> <p>        “IT IS ORDERED THAT</p> <ol> <li>The endorsement by the 2nd Respondent over the Applicant’s property commonly known as Lot 45 Kintyre Estate situate in the District of Salisbury held under Deed of Transfer No. 6708/2003.</li> <li>The 2nd respondent be and is hereby ordered to uplift the endorsement on the Applicant’s immovable property effected on the 7th of October 2005 commonly known as Lot 45 Kintyre Estate measuring 11.4362 Hectares held under Deed of Transfer No. 6708/2003.</li> <li>Respondents shall pay the costs of suit in the event that they oppose this application.”</li> </ol> <p>The first respondent took a point <em>in limine</em> in his Notice of Opposition to the effect that removal of endorsement from a Title Deed of a property that has been acquired in terms of the Constitution does not result in the restoration of the title to the previous owner. He said section 293 (1) of the Constitution provides that the State may alienate for value any agricultural land vested in it. Further, section 293 (3) provides that an Act of Parliament must prescribe procedures for the alienation and allocation of agricultural land by the State. He said The Land Commission Act [<em>Chapter20.29</em>] is that Act of Parliament which has been enacted and Section 17 of that Act provides for the procedure for alienating State land hence there is no other means through which land has been acquired through the Constitution can be restored to a previous owner outside of this provision.</p> <p>However, the applicant and his legal practitioner are mistaken as to the position of the law which is that-</p> <p>“all agricultural land that was identified on or before the 8th July 2005 under section 5 (1) of the Land Acquisition Act [Chapter 20.10] and which is itemized in Schedule 7….is acquired by and vested in the State with full title therein…” Section 16 B (a) of the old Constitution as read with Section 72 (4) of the Constitution.</p> <p>In the present case the applicant indicated in paragraph 7 of his founding affidavit that his property was gazetted (that is, identified under Section 5 (1) on the 19th of November 2004. It appears he is not aware that it was subsequently itemized as number 145 and 146 in Schedule 7 of the Constitution rendering it acquired. It remains acquired as State land and can only be restored to him as provided for by the Constitution. In any case in the case of <em>Mike Campbell (Pvt) Ltd &amp; Anor</em> v <em>Minister of Security Responsible for Land, Land Reform  &amp; Resettlement &amp; Anor </em>2008 (1) ZLR 17 (SC) it was clearly stated that the acquiring authority need not apply to court for authority to acquire agricultural land. There is therefore no more need or requirement to give notice to the owner before the acquisition of any agricultural land. All agricultural lands acquired now vests with the State. The application therefore has no merit and is dismissed.</p> <p>IT IS ORDERED THAT</p> <ol> <li>The application to uplift the endorsement on the Applicant’s immovable property effected on the 7th of October 2005 commonly known as Lot 45 Kintyre Estate measuring 11.4362 Hectares held under Deed of Transfer No. 6708/2003 be and is hereby dismissed.</li> <li>The applicant to pay costs on a legal practitioner and client scale.</li> </ol> <p> </p> <p><em>Mupindu</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, 1st respondent’s legal practitioners.             </p> <p>  </p> <p>       </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/225/2020-zwhhc-225.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20840">2020-zwhhc-225.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/225/2020-zwhhc-225.pdf" type="application/pdf; length=304038">2020-zwhhc-225.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/land-0">LAND</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/acquisition-land">Acquisition of land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/acquisition-notice-issued-coming-effect-constitutional-amendment-no-17">acquisition notice issued before coming into effect of constitutional amendment No 17</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/notice-acquisition-land">notice of acquisition of land</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2008/1">Mike Campbell (Pvt) Ltd. and Another v Minister of National Security Responsible for Land, Land Reform and Resettlement (124/06) ((Pvt)) [2008] ZWSC 1 (21 January 2008);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2017/12">Land Commission Act [Chapter 20:29]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1992/3">LAND ACQUISITION ACT</a></div></div></div> Mon, 23 Mar 2020 09:53:17 +0000 Sandra 9587 at https://old.zimlii.org Naval Phase Farming (Private) Limited & 2 Others v Minister of Lands and Rural Settlement & 2 Others (SC 50/18, Civil Appeal No. SC 577/14 Ref SC 541/16) [2018] ZWSC 50 (27 July 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/50 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (38)</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <ol> <li><strong>NAVAL PHASEFARMING(PRIVATE) LIMITED(2) BEACH FARMS(PRIVATE) LIMITED(3)TAWANDA NYAMBIRAI</strong></li> <li> </li> </ol> <ol> <li> </li> </ol> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HLATSHWAYO JA, BHUNU JA&amp; UCHENA JA</strong></p> <p><strong>HARARE:     NOVEMBER 24, 2016 &amp; JULY 27, 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>T. Mafukidze, </em>with him <em>H. N.Nkomo, </em>for the appellants</p> <p><em>J. Mumbengegwi, </em>for the first respondent</p> <p><em>D. Ochieng, </em>for the second to fourth respondents</p> <p> </p> <p><strong>HLATSHWAYO JA:    </strong>This is an appeal against the entire judgment of the High Court dismissing the appellants’ application for the following order:</p> <p>   “<strong>IT IS DECALRED THAT:</strong></p> <ol> <li>The purported acquisition of Duncanston, Kopje Alleen, the Beach, and Rustfontein by the first Respondent is invalid.</li> <li>The occupation of Kopje Alleen, the Beach, and Rustfontein by the Respondents and all those claiming title through them is illegal.</li> </ol> <p><strong>IT IS ORDERED THAT:</strong></p> <ol> <li>The Respondents and all those claiming title through them be ejected from Kopje Alleen, the Beach and Rustfontein.</li> <li>The Respondents jointly and severally, the one paying the others to be absolved, pay the costs of suit.”</li> </ol> <p>The facts leading to the dismissal of the application are as follows:</p> <p> </p> <p>The first and second appellants are registered companies. The third appellant is the managing director and principal shareholder of the first two appellants. The second appellant asserted that it owned the two farms that were contiguous, namely Kopje Alleen and the Beach and all the movable assets thereon through the acquisition of the entire issued share capital of the second appellant by the third appellant under two separate agreements on 21 September 2000. Upon acquiring the farms, the title deed to the two farms was passed in favour of the second appellant. It is further alleged that on 25 October 2001, the appellants acquired all rights of occupation and use of another farm called Rustfontein from one Jacobus Johannes Erasmus and that farm was the administration centre for all three farms including Kopje Alleen and The Beach.</p> <p> </p> <p>On 20 October 2000, the first respondent proceeded to give notice in the Government Gazette that it intended to compulsorily acquire Rushfontein Farm for resettlement purposes under General Notice 483G of 2000. The notices were given in terms of s 5(1) of the Land Acquisition Act [<em>Chapter 20:10</em>] (“the Act”). The first respondent gave the same notice with respect to Kopje Alleen Farm in the Government Gazette under General Notice 591 of 2001 on 16 November 2001. On 3 September 2004, the first respondent then gave notice of its intention to compulsorily acquire The Beach Farm in the Government Gazette under General Notice 449 of 2004. It is common cause that all three Government Notices were listed under Schedule 7 of the former Constitution.</p> <p> </p> <p>The appellants made an objection to the acquisition of the farms in terms of s 5(1) (a) (iii)A of the Act. In turn, the first respondent made an application for the confirmation of the compulsory acquisition of the farms in the Administrative Court on 11 February 2002 in terms of s 7 of the Act. At the hearing of the application on 20 February 2003, it is averred that the first respondent withdrew the application and the Administrative Court held that the “withdrawal nullifies s 5 notices and the s 8 order issued in respect of the two properties.”</p> <p> </p> <p>The first respondent then gave the second to fourth respondents the authority to occupy all the farms, including Rustfontein. As a result, it is averred that those who claimed occupation of the three farms through the appellants were violently ejected from the farms by the second to fourth respondents. It is on that basis that the appellant approached the High Court on 2 February 2015 for an order as captured earlier on.</p> <p> </p> <p>According to the appellants, their removal from the farms was unlawful because they were violently removed from the farms which they were in peaceful occupation of. Therefore, it is alleged, at the time that the appellants approached the High Court, the second to fourth respondents illegally occupied the said farms. The appellants further stated that as long as the Administrative Court order was extant, the three farms were not validly gazetted since that order had declared the government notices invalid.</p> <p> </p> <p>The first respondent, having been given time to file their notice of opposition out of time, opposed the application by stating that in effect, the Administrative Court order was overtaken by events when s 16B of the former Constitution came into force. It is common cause that s 16B of the former Constitution provided that agricultural land that was identified on or before 8 July 2005 in the Gazette or Gazette Extraordinary under s 5(1) of the Act as listed under Schedule 7 of that Constitution and was required for resettlement purposes was acquired by and vested in the State with full effect from 8 July 2005. According to the first respondent, the acquisition of the farms was beyond his control. He also asserted that the second to fourth respondents occupied the farms legally on the basis of valid offer letters that he issued to them.</p> <p> </p> <p>The second to fourth respondents asserted that they were legal occupants of the farms because they were given offer letters to occupy the farms. They also argued that since the three farms had been gazetted and were listed under Schedule 7 of the former Constitution that was conclusive proof that the farms had been compulsorily acquired and that acquisition could not be challenged in a court of law. The second to fourth respondents also disputed the allegation that they despoiled appellants. It was further asserted that the appellants’ remedy was to seek compensation for any improvements on the farms and not to allege that the acquisition of the farms was discriminatory since the farms were owned by black persons. The second to fourth respondents also maintained that the order of the Administrative Court with regards to the notices made in the Government Gazette for the compulsory acquisition of the farms did not in any way invalidate the listing of those farms under Schedule 7 of the former Constitution.</p> <p>           </p> <p>The High Court found that the farms were properly identified in terms of the Act, that they were lawfully listed in Schedule 7 of the former Constitution and that the second to fourth respondent held validly issued offer letters. On that basis, therefore, the court was of the view that the appellants could not have been entitled to the relief which they sought but only to claim compensation for improvements on the farms. The application was therefore dismissed. The appellants were aggrieved by that dismissal and appealed to this court on the following grounds:</p> <p><strong>GROUNDS OF APPEAL</strong></p> <p>1.         The court <em>a quo</em> erred at law in condoning the failure by the 1st respondent to file opposing papers on time in circumstances where:-</p> <ol> <li>There is no finding that the explanation for the delay was adequate</li> <li>There is no finding, in fact, that the 1st respondent had met all the requirements for an application for condonation and/or application for upliftment of bar.</li> <li>The application was fatally defective as it did not comply with Rule 84 of the High Court Rules (1971).</li> </ol> <p>2.         The court <em>a quo</em> erred in fact in concluding that the ownership of the Kopje Alleen and Beach Farms was questionable or not clear when the facts on record show that:</p> <ol> <li> </li> <li> </li> <li> </li> </ol> <p>2.4       The acquisition of the entire issued share capital of 2nd appellant by 3rd appellant became unconditional according to law when1st respondent failed to issue a certificate of no present interest by 11 December 2000, upon the expiry of the 90 days from 11 September 2000 as prescribed by law.</p> <p>2.5       1st respondent only purported to compulsorily acquire these farms on 20 April 2001, long after the acquisition of 2nd applicant’s entire issued share capital by 3rd appellant had become unconditional, payment having already been effected and the appellants in possession of the two farms.</p> <p>3.         The court <em>a quo</em> erred in fact and in law in finding that there was no “<em>admissible evidence on record to controvert” </em>the bald denials by the 2nd to 4th respondents that they did not take part in the forcible removal of the applicants from their farms when the record is replete with evidence that the forcible removal was done at their instance and/or for their benefit.</p> <p>4.         The court <em>a quo</em> erred at law in finding that the Estate of the Late General Mujuru or the former Vice President needed to be cited in order for the court to properly evaluate the allegations of despoliation made by the appellants when in fact no substantive relief was being sought against them.</p> <p>5.         The court <em>a quo</em> erred at law in finding that the appellants had been forcibly ejected from their farms by, or at the instance, or for the benefit, of the respondents who did not have lawful authority to do so at the time.</p> <p>6.         The court <em>a quo</em> misconstrued section 12 of the High Court Act in holding that a declaratory order “<em>cannot be directly enforced</em>”, and thus erred at law.</p> <p>7.         The court <em>a quo</em> erred in finding that the appellants’ farms were properly and lawfully identified under section 5 of the Land Acquisition Act and itemized under schedule 7 of the former Constitution when:-</p> <p>7.1       It was common cause that the notices under which these farms had been identified were nullified by the Administrative Court, and no fresh subsequent notices were issued.</p> <p>7.2       The decision of the Administrative Court is extant.</p> <p>8.         The court <em>a quo</em> erred in finding that the appellants’ farms constituted agricultural land required for resettlement purposes as required by section 16B of the former Constitution when the farms were already owned, or occupied by people who fall in the category of people for whose benefit land reform was implemented in terms of section 16A of the former Constitution.</p> <p>9.         The court <em>a quo</em> erred in that it addressed itself to the wrong issue, of whether the purpose of land reform is to take away land from Zimbabweans of white descent and redistribute it to Zimbabweans of black descent, when the correct issue it must have addressed itself to and resolved as set out in section 16A of the former Constitution, was whether land already owned or occupied by people sought to be protected under section 16A (whatever their race), can be said to be land “<em>required for resettlement purposes</em>” within the meaning of section 16B(2)(a) of the former Constitution.</p> <p>           </p> <p>Prior to the hearing of the appeal, the appellants filed an application to adduce evidence they sought to rely on to show that the acquisition of the farms was not done in accordance with the law. The application was granted in chambers with the consent of the parties. Costs in that application were to be in the cause.</p> <p> </p> <p>On appeal, Mr <em>Mafukidze </em>for the appellants accepted that by virtue of s 16B of the former Constitution, all agricultural land identified under gazettes listed under Schedule 7 of that Constitution was State land. He however insisted that the first respondent had illegally acquired the three farms as the notices which had been placed in the Government Gazettes as required by s 5(1) of the Act had been declared invalid by the Administrative Court. According to Mr <em>Mafukidze</em>, s 16 B (2)(a)(i) of the former Constitution only recognised land to have been compulsorily acquired if it  was identified on or before 8 July 2005 in the Gazette or the Gazette Extraordinary. The appellants argued that by virtue of the Administrative Court order which remained extant at all material times, the three farms were no longer lawfully identified as required by s 16 B (2)(a)(i) of the former Constitution. The coming into effect of s 16B of the former Constitution did not regularise the striking down of the notices by the Administrative Court and the listing of those farms under Schedule 7 of the former Constitution was therefore a nullity. On that premise, therefore, Mr <em>Mafukidze </em>submitted that effectively, at the time that the appellants were removed from the farms and at the time that the first respondent gave offer letters to the second to fourth respondents, the offer letters were also invalid hence their occupation of the farms was not sanctioned by law.  The acquisition of the farms was therefore not in accordance with the law.</p> <p> </p> <p><em>Per contra</em>, Mr <em>Mumbengegwi </em>for the first respondent submitted that the court had no jurisdiction to inquire into the validity of the acquisition of the farms by virtue of s 16B (3)(a) of the former Constitution. It was also his argument that as long as the farms in question were identified under Schedule 7 of the former Constitution, then they were compulsorily acquired in terms of the law.</p> <p> </p> <p>Mr <em>Ochieng </em>for the second to the fourth respondents was of the view that whatever rights the appellants had to possession of the farms were taken away by the coming into effect of s 16B of the former Constitution. Section 16B of the former Constitution made an inquiry into the validity of the compulsory acquisition a factual matter. All that had to be proven was that the agricultural land in question was identified under Schedule 7 of the former Constitution. Upon showing that, then that land was compulsorily acquired in terms of the law. With regards to the appellants’ argument on the import of the order of the Administrative Court, Mr <em>Ochieng </em>asserted that as long as the farms in question were identified under Schedule 7 of the former Constitution, the nullification of the notices in the Administrative Court was inconsequential.</p> <p> </p> <p><strong>ISSUES FOR DETERMINATION</strong></p> <p>From the arguments advanced by the parties, it must first be determined whether the court had the jurisdiction to inquire into the legality of the compulsory acquisition of the farms. The second determination will be on the effect of the Administrative Court order on the notices that were made for the compulsory acquisition of the farms in question.</p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p>The question on the jurisdiction of the court can be determined by reference to s 16B(2) and the relevant court decisions made under it:</p> <p><strong>16B Agricultural land acquired for resettlement and other purposes</strong></p> <p>(1) In this section -</p> <p>“acquiring authority” means the Minister responsible for lands or any other Minister whom the President may appoint as an acquiring authority for the purposes of this section;</p> <p>“appointed day” means the date of commencement of the Constitution of Zimbabwe Amendment (No. 17)Act, 2005.</p> <p>(2) Notwithstanding anything contained in this Chapter -</p> <p>(<em>a</em>) all agricultural land -</p> <p>(i) that was identified on or before the 8th July, 2005, in the <em>Gazette </em>or <em>Gazette Extraordinary</em></p> <p>under section 5(1) of the Land Acquisition Act [<em>Chapter 20:10</em>], and which is itemised in</p> <p>Schedule 7, being agricultural land required for resettlement purposes; or</p> <p>(ii) that is identified after the 8th July, 2005, but before the appointed day, in the <em>Gazette </em>or <em>Gazette</em></p> <p><em>Extraordinary </em>under section 5(1) of the Land Acquisition Act [<em>Chapter 20:10</em>], being agricultural</p> <p>land required for resettlement purposes; or</p> <p>(iii) that is identified in terms of this section by the acquiring authority after the appointed day in the</p> <p><em>Gazette </em>or <em>Gazette Extraordinary </em>for whatever purpose, including, but not limited to -</p> <p>A. settlement for agricultural or other purposes; or</p> <p>B. the purposes of land reorganization, forestry, environmental conservation or the utilization</p> <p>of wild life or other natural resources; or</p> <p>C. the relocation of persons dispossessed in consequence of the utilization of land for a</p> <p>purpose referred to in subparagraph A or B;</p> <p><strong>is acquired by and vested in the State with full title therein with effect from the appointed day or, in the case of land referred to in subparagraph (iii), with effect from the date it is identified in the manner specified in that paragraph; and</strong></p> <p>(<em>b</em>) no compensation shall be payable for land referred to in paragraph (<em>a</em>) except for any improvements effected on such land before it was acquired.</p> <p>(3) The provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, and the provisions of section 18(1) and (9), shall not apply in relation to land referred to in subsection (2)(<em>a</em>) except for the purpose of determining any question related to the payment of compensation referred to in subsection (2)(<em>b</em>)<em>, </em>that is to say, a person having any right or interest in the land -</p> <p>(<em>a</em>) <strong>shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge;</strong></p> <p>(<em>b</em>) may, in accordance with the provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired.</p> <p>(4) As soon as practicable after the appointed day, or after the date when the land is identified in the manner specified in subsection (2)(<em>a</em>)(iii), as the case may be, the person responsible under any law providing for the registration of title over land shall, without further notice, effect the necessary endorsements upon any title deed and entries in any register kept in terms of that law for the purpose of formally cancelling the title deed and registering in the State title over the land.</p> <p>(5) <strong>Any inconsistency between anything contained in</strong><strong> -</strong></p> <p><strong>(<em>a</em>) a notice itemised in Schedule 7; or</strong></p> <p><strong>(<em>b</em>) a notice relating to land referred to in subsection (2)(<em>a</em>)(ii) or (iii);</strong></p> <p><strong>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 subsection (2)(<em>a</em>) or invalidate the vesting of title in the State in terms of that provision. (</strong>emphasis added)</p> <p> </p> <p>In <em>Mike Campbell </em><em>(Pvt) Ltd &amp;Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement &amp; Anor </em>2008 (1) ZLR 17 (S). MALABA JA (as he then was) commented on the import of s 16B of the former Constitution at page 43F-G to 44A as follows:</p> <p>“By the clear and unambiguous language of s 16B(3) of the Constitution the Legislature, in the proper exercise of its powers, has ousted the jurisdiction of courts of law from any of the cases, in which a challenge to the acquisition of agricultural land secured in terms of s 16B(2)(a) of the Constitution could have been sought. The right to protection of law for the enforcement of the right to fair compensation in case of breach by the acquiring authority of the obligation to pay compensation has not been taken away. The ouster provision is limited, in effect, to providing protection from judicial process to the acquisition of agricultural land identified in a notice published in the <em>Gazette</em> in terms of s 16B(2)(a).An acquisition of the land referred to in s 16B(2)(a) would be a lawful acquisition. By a fundamental law the Legislature has unquestionably said that such an acquisition shall not be challenged in any court of law. There cannot be any clearer language by which the jurisdiction of the courts is excluded.”</p> <p>At page 44E-H, the learned judge went on to observe:</p> <p>“Section 16B(3) of the Constitution has not however taken away, for the future, the right of access to the remedy of judicial review in a case where the expropriation is, on the face of the record, not in terms of s 16B(2)(a). This is because the principle behind s 16B (3) and s 16B (2)(a) is that the acquisition must be on the authority of law. The question whether an expropriation is in terms of s 16B (2) (a) of the Constitution and therefore an acquisition within the meaning of that law is a jurisdictional question to be determined by the exercise of judicial power. The duty of a court of law is to uphold the Constitution and the law of the land. If the purported acquisition is, on the face of the record, not in accordance with the terms of s 16B(2)(a) of the Constitution a court is under a duty to uphold the Constitution and declare it null and void. By no device can the Legislature withdraw from the determination by a court of justice the question whether the state of facts on the existence of which it provided that the acquisition of agricultural land must depend, existed in a particular case as required by the provisions of s 16B(2)(a) of the Constitution.”(my emphasis)</p> <p> </p> <p>The <em>Mike Campbell </em>case makes it clear therefore that a court of law only has jurisdiction in a case where the aggrieved party seeks compensation for the improvements of the compulsorily acquired farms and where they allege that the acquisition was not in terms of the law, that is, it is not in terms of s 16B (2)(a) of the former Constitution. The appellants questioned the validity of the acquisition of the farms by the first respondent hence it is the court’s view that the court has jurisdiction in the matter. In effect, the appellants questioned whether the identification of the farms under Schedule 7 of the former Constitution was proper. The first respondent’s argument on the question of jurisdiction on this point is therefore without merit and is accordingly dismissed.  However, by the same token, the appellants’ eighth and ninth grounds of appeal are not matters that any court of law may inquire into.</p> <p> </p> <p>The next inquiry therefore is whether the first respondent acquired the farms in terms of the law. The court is of the view that the appellants’ argument with regards to the effect of the order of the Administrative Court is untenable at law. Section 5(7)(a) of the Act provides as follows:</p> <p>(7) An acquiring authority may at any time—</p> <p>(<em>a</em>) withdraw a preliminary notice, by publishing notice of its withdrawal in the <em>Gazette </em>and serving notice of its withdrawal on every person on whom the preliminary notice was served; …” (my emphasis)</p> <p> </p> <p>It is common cause that the first respondent did not withdraw the government notices in terms of s 5(7)(a) as above.  Therefore, once the preliminary notices were then listed under Schedule 7 of the former Constitution as required by s 5(7)(a) of the Act, the three farms were compulsorily acquired in terms of the law. In the absence of evidence to the contrary, the appellants failed to convince the court that the compulsory acquisition of farms which they previously had an interest in had not been done in terms of the law. Their argument in that regard was therefore without merit and is accordingly dismissed. Since the appellant approached the court <em>a quo</em> challenging only the validity of the compulsory acquisition of the farms and the court having found no merit in their case, the appellants are not entitled to an order declaring the compulsory acquisition of the farms by the first respondent invalid. </p> <p> </p> <p>There is ample support for the conclusion reached above in the recent case of <em>TBIC Investments (Pvt) Ltd &amp;Ors v The Minister of Lands and Rural Development &amp;Ors </em>SC 469/13 (although not decided at time of hearing, this court is bound to take judicial notice of it) where BHUNU JA, with the concurrence of GWAUNZA JA (as she then was) and GOWORA JA held that by virtue of s 16B(5) “the expirations, errors and withdrawals complained of by the appellant” could not invalidate or adversely affect the vesting of title in the State:</p> <p>“The effect of  the above section (s 16B(5)) was to revive, resuscitate and validate the acquisition of all identified agricultural land listed in the 7th Schedule for resettlement purposes prior to 8 July 2005 regardless of any errors or withdrawals in the acquisition process.  No limitation has been imposed on the acquisition process once the land is shown to have been gazetted and listed in the 7th schedule prior to 8 July 2005.</p> <p>The language used in s 16B (5) of the former Constitution is clear and unambiguous admitting no ambivalent interpretation.  The only meaning to be ascribed to the section is that once land is gazetted and listed in schedule 7 it automatically stands acquired by the State with full title by operation of law.  The mere fact that the notice was at one time withdrawn or expired is irrelevant.  The same applies to any errors contained in the acquisition process.”</p> <p>           </p> <p>Having found that the farms were compulsorily acquired in terms of the law, it follows therefore that the appellants are not entitled to an eviction order against the second to the fourth respondents. That is so for the following reasons.</p> <p> </p> <p>Section 290 (1)(a) of the current Constitution provides that all agricultural land which was itemised in Schedule 7 to the former Constitution continues to be vested in the State. Section 291 of the Constitution goes on to state as follows:</p> <p>            “<strong>291  Continuation of rights of occupiers of agricultural land</strong></p> <p>Subject to this Constitution, any person who, immediately before the effective date, was using or occupying, or was entitled to use or occupy, any agricultural land by virtue of a lease or other agreement with the State continues to be entitled to use or occupy that land on or after the effective date, in accordance with that lease or other agreement.”</p> <p> </p> <p>It is not in dispute that the second to fourth respondents are in possession of offer letters to the farms in question. The farms continue to vest in the State. Section 291 as above entitles the second to fourth respondents to continue to occupy the farms. Furthermore, s 3(1) as read with s2 of the Gazetted Land (Consequential Provisions) Act (<em>Chapter 20:28</em>) confirms that once a person is given an offer letter to land which was compulsorily acquired, they have the lawful authority to occupy the land. Section 3(1) of the Gazetted Land (Consequential Provisions) Act provides that no person may hold, use or occupy gazetted land without lawful authority. Section 2 of the same defines lawful authority to include an offer letter. By enacting s 3 of the Gazetted Land (Consequential Provisions) Act, the Legislature intended that occupants with offer letters be allowed to occupy gazetted lands. To then suggest that the respondents be removed from farms which they legally occupy would be in effect to render the Gazetted Land (Consequential Provisions) Act nugatory.</p> <p> </p> <p>The appellant’s right to occupy the farms was overtaken by events upon the coming into effect of the Constitution of Zimbabwe Amendment (No. 17) Act, 2005 which ushered in s 16B of the former Constitution. Resultantly, the appellants could not have been given a spoliation order in their favour against people who are legally entitled to occupy the farms. As was held in <em>Commercial Farmers Union &amp; Ors v The Minister of Lands &amp; Rural Resettlement &amp;Ors</em>2010 (2) ZLR 576 (S) at 594E, spoliation is a common law remedy which cannot override the will of Parliament and a common law remedy cannot render nugatory an Act of Parliament. The High Court was therefore correct in refusing to grant the spoliation order which the appellants sought.</p> <p> </p> <p>In the light of the findings made above, there is no need to traverse the other matters raised in the grounds of appeal.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p> </p> <p>Accordingly, it is the court’s view that the appeal lacks merit and it ought to and is hereby dismissed. Costs for both the application for leave to adduce further evidence and for the appeal itself are to be borne by the appellants.</p> <p> </p> <p> </p> <p><strong>BHUNU JA</strong>:                           I agree</p> <p>           </p> <p>                        <strong>UCHENA JA</strong>:                        I agree</p> <p> </p> <p><em>Mhishi Legal Practice, </em>appellants’ legal practitioners</p> <p><em>The Civil Division of the Attorney General’s Office, </em>first respondent’s legal practitioners</p> <p><em>Messrs Coghlan, Welsh &amp; Guest, </em>second to fourth respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/50/2018-zwsc-50.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=45708">2018-zwsc-50.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/50/2018-zwsc-50.pdf" type="application/pdf; length=251788">2018-zwsc-50.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/land">Land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/acquisition-land">Acquisition of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/acquisition-notice-issued-coming-effect-constitutional-amendment-no-17">acquisition notice issued before coming into effect of constitutional amendment No 17</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-administrative-court-confirm-acquisition">application to Administrative Court to confirm acquisition</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/notice-acquisition-land">notice of acquisition of land</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2017/12">Land Commission Act [Chapter 20:29]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2006/8">Gazetted Land (Consequential Provisions) Act [Chapter 20:28]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 25 Oct 2018 06:37:01 +0000 admin 9121 at https://old.zimlii.org TBIC (Private) Limited & Another v Mangenje & 5 Others (SC 13/18, Civil Appeal No. SC 469/13 Ref. HC 601/11 Ref. HC 9527/11) [2018] ZWSC 13 (01 March 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/13-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (10)</strong></p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, GOWORA JA &amp; BHUNU JA.</strong></p> <p><strong>HARARE, 31 JANUARY 2017 &amp; MARCH 1, 2018</strong></p> <p><em>T. Mpofu, </em>for the appellants</p> <p><em>S.M. Hashiti, </em>for the first respondent</p> <p><em>E. T. Matinenga, </em>for the second respondent</p> <p><strong>BHUNU JA:</strong>       This is a hotly contested appeal against the whole judgment of the High Court sitting at Harare, and delivered on 30 October 2013. The epicentre of the dispute is a certain piece of land in the Goromonzi District known as the Remaining Extent of Stuhm measuring 583, 1360 hectares in extent registered in the name of TIBIC INVESTMENTS (PVT) LTD under Deed of Transfer 1724/2009. TIBIC INVESTIMENTS (PVT) LTD is an indigenous company in the sense that its shareholders and directors are indigenous citizens of this country. The historical background and factual basis of the case is by and large common cause.</p> <p>The genesis of the dispute is that in 1970 the late Paul Michael Henry Reimer obtained ownership of a certain piece of land in the District of Goromonzi known as the Remaining extent of Stuhm measuring 1 074.7410 hectares in extent, under deed of grant 1262/70. Paul Reimer does not appear to have bought the land as there is no mention of any money having exchanged hands. His son Cecil Michael Reimer in due course inherited the said piece of land from his late father under deed of Transfer 3032/87.</p> <p>Starting from 1997 to 2009 Cecil Michael Reimer began to subdivide the main block of the remaining extent of Stuhm measuring 1074. 7410 hectares in extent into 3 lots which he sold as follows:</p> <p><strong>DATE    </strong>        <strong>LOT SOLD</strong>                 <strong>BUYER                                HECTERAGE</strong><strong>        </strong><strong>DEED OF TRANSFER</strong></p> <p>1997                           2                         Darnall Investments           412.1091                              497/97</p> <p>1998                           3                         Douglasdale (Pvt) Ltd        79.4959                                 9247/98</p> <p><strong>2009                           1             TIBIC Investments (Pvt) Ltd    583.1360                               1724/09</strong></p> <p><strong>                                                             1,074.741</strong></p> <p><strong>Total</strong><strong>.                    3 Lots                                                                                    </strong></p> <p> </p> <p>He however sold the disputed lot one in 2009 in circumstances where Government had already issued a preliminary notice to compulsorily acquire the disputed land under <strong>General Notice 405A of 2000</strong> published in the <strong>Extraordinary Government Gazette of 25 August, 2000</strong>.</p> <p>The preliminary notice reads:</p> <p>“NOTICE is hereby given, in terms of subsection (1) of section 5 of the Land Acquisition Act [Chapter 20:10], that the president intends to acquire compulsorily the land described in the schedule for resettlement purposes.</p> <p>A plan of the land is available for inspection at the following offices of the Ministry of Lands, Agriculture and Rural Resettlement between 8 a.m. and 4 p.m. from Monday to Friday other than on a public holiday on or before the 24th of September, 2009 –140. Deed of transfer 3032/87, registered in the name of Cecil Michael Reiner , in respect of certain piece of land situate in the district of Goromonzi , being the remaining extent of Stuhm, measuring one thousand and seventy- four, comma seven four one zero. (1 074, 7410) hectares.”</p> <p>The same notice was re-gazetted under General notices 298A of 2003 and 323 of 2003. In all the 3 notices the extent of the land earmarked for acquisition was given as 1 074.741 hectares. The gazetted land had however been subdivided into 3 lots. Considering that it had acquired the whole land, the acquiring Authority offered lot 1 to the first respondent Kennedy Mangenje as compensation for his farm which it had compulsorily acquired and distributed to other beneficiaries. The first respondent accepted the offer.</p> <p> </p> <p>The offer letter addressed to the first respondent and dated 7 August 2006 reads in Part:</p> <p>            “Dear Sir/Madam</p> <p>Re: OFFER OF LAND HOLDING UNDER THE LAND REFORM AND RESETTLEMENT PROGRAMME. (MODEL A2 PHASE II0</p> <ol> <li>The Minister of State for National Security, Lands. Land Reform and Resettlement in the President’s Office has the pleasure in informing you that your application for land under Model A2 Scheme has been successful.</li> <li>You are offered Subdivision 1 of R/E of STUHM in GOROMONZI District of MASHONALAND PROVINCE for agricultural purposes. The farm is approximately 534.00 hectares in extent.</li> <li>The offer is made in terms of the Agricultural Land Settlement Act [Chapter 20:01] whose provisions you are advised to acquaint yourself with. Conditions that go with the offer are attached.”</li> </ol> <p>In summary what was gazetted was the whole of the original Remaining Extent of Stuhm. However, lots 2 and 3 had already been sold and ceased to be part of the original block of land. Lot 1 thus remained as part of the remaining extent of the whole original block of land. It stands to reason that when the acquiring authority gazetted the whole of the original Remaining Extent of Stuhm, lot 1 being the remaining fraction of the original block was equally gazetted in tandem as part of the whole. That reasoning is anchored on the well-known maxim that the greater includes the lesser, which principle is of universal application. See City <em>of Lakerwood v Plain Dealer Publishing Co. </em>[1988] USSC 123. In other words the gazetting of a whole piece of land includes the gazetting of a fraction of that land.</p> <p>The severed lots 2 and 3 were not validly gazetted because they had ceased to be part of the original block and the new owners were not given notice of the intended compulsory acquisition.</p> <p>The same cannot however, be said of lot I which remained as a fraction of the whole original Remaining Extent of Stuhm which Cecil Reimer continued to hold under deed of transfer 3032/87. Just to draw an analogy, if the Sheriff had given notice to attach the 3 lots under the mistaken belief that they all belonged to Cecil his notice and attachment of block I could not be foiled simply because lots 2 and 3 belonged to some other people. The Sheriff will undoubtedly be entitled to attach the remaining lot 1 belonging to Cecil Michael Reimer.  By the same token, once the acquiring authority had gazetted the whole original piece of land, it was entitled as of right to acquire any fraction of that land that was legally subject to acquisition in terms of the Constitution.</p> <p>The appellant sought to attack the first notice No. 405A of 2000 on the basis that it had expired in terms of the provisions of the Land Acquisition Act. The same applies to the second and third notices 298A of 2003 and 323A of 2003. It also sought to argue that the land gazetted does not exist simply because the gazetted land is 1 704.741 hectares in extent whereas the land in dispute is 583.136 hectares in extent.</p> <p>The disputed land in respect of which notice to compulsorily acquire was  given can easily be identified by employing the blue pencil rule to excise lots 2 and 3 from the whole, leaving the land in dispute intact,  being the Remaining extent of Stuhm  measuring 583.136 Hectares held  by Cecil Michael  Reimer under deed of transfer 3032/1987. The blue pencil rule is a common law doctrine which allows a court to sever an unenforceable portion of a contract so as to enforce the remaining enforceable portion of that contract. Although this is not a contractual dispute I find the concept useful in this case to separate that which is enforceable from that which is not enforceable.</p> <p>Graphically, that conception in this case can be plotted and visualised as follows:</p> <p>Cecil Michael Reimer sowed the seeds of severability or divisibility when he subdivided the original land into separate and distinct 3 lots which could easily be identified as shown above. What emerges quite clearly is that, the severance of lots 2 and 3 from the whole block of land cannot divest lot 1 of its identity. It remains intact and its gazetting remains extant despite the severance of lots 2 and 3 from the whole. In the result, the conclusion that lot 1 which is the land in dispute was identified and gazetted is beyond contest. What is in dispute is the correctness and validity of the process of identification and gazetting of the land for purposes of compulsory acquisition.</p> <p>The disputed land was properly identified and gazetted as part of the whole original Remaining Extent of Stuhm measuring 1 704.741 hectares in extent. It is therefore, anomalous for the appellants to argue that the land in question does not exist when the first appellant bought it from Michael Reimer and had it registered in its name under the same description being the Remaining Extent of Stuhm measuring 583.136 situated in the district of Goromonzi. By the same token, the second appellant cannot dispute the existence of the disputed land when he leased and occupied it under the same description.</p> <p>There is therefore no merit in the appellants’ argument that the land in question was not properly identified and gazetted. For that reason the finding by the court <em>a quo</em> that the disputed land exists is beyond reproach.</p> <p>There can however, be no denying that the process of identifying the disputed land for purposes of compulsory acquisition was fraught with errors including the spelling of the name of the previous owner of the land, its exact size and extent as correctly found by the court <em>a quo.</em> These errors and more were not peculiar to this particular piece of land. The mistakes were many and varied relating to various other pieces of land, thereby threatening to derail the entire Land Reform Programme.</p> <p>In order to protect and keep the Land Reform Programme on course, Parliament in its wisdom amended the former Constitution. The intention of the legislature was to automatically validate the acquisition of all agricultural land identified and listed under schedule 7 for purposes of the Land reform programme on or before 8 July 2005 regardless of any errors or mistakes that may otherwise have nullified the acquisition in the normal run of things.</p> <p>The disputed land was acquired under the former Constitution of which s 16B (2) as amended provides as follows:</p> <p>            “(a) All Agricultural land –</p> <ul> <li>That was identified on or before the 8th July 2005, in the government Gazette or Gazette Extraordinary under section 5 (1) Of the Land Acquisition Act [Chapter 20:10], and which is itemized in Schedule 7 being agricultural land required for resettlement purposes is acquired by and is vested in the State with full tittle therein with effect from the appointed date.</li> </ul> <p>...</p> <p>(5)       Any inconsistency between anything contained in –</p> <ul> <li>a notice itemized in schedule 7 ; or</li> <li>a notice relating to land referred to in subsection (2) (ii) OR (iii); and the tittle deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2) (a) or invalidate the vesting of title in the State in terms of that provision.”</li> </ul> <p>The effect of the above section was to revive, resuscitate and validate the acquisition of all identified agricultural land listed in the 7th schedule for resettlement purposes prior to 8 July 2005 regardless of any errors or withdrawals in the acquisition process. No limitation can be imposed on the acquisition process once the land is shown to have been gazetted and listed in the 7th schedule prior to 8 July 2005.</p> <p>The language used in s 16B (2) of the former Constitution is clear and unambiguous admitting no ambivalent interpretation. The only meaning to be ascribed to the section is that once land is gazetted and listed in schedule 7 it automatically stands acquired by the State with full title by operation of law. The mere fact that the notice was at one time withdrawn or expired is irrelevant.</p> <p>Applying the law to the facts, it is plain that the disputed land was identified and a preliminary notice of intention to acquire was gazetted on 25 August 2000.  The same preliminary notice was re-gazetted twice in 2003. The land in dispute was duly itemised in schedule 7 of the Government gazette according to the prevailing law. The land, having been identified and itemised in schedule 7, it fell squarely within the ambit of s 16B (2) of the former Constitution. By virtue of s 16B (5) of the former Constitution, the fact that at one time the notice expired or was withdrawn and that it was beset by other  errors complained of by the appellant were of no force or effect. They could not invalidate or adversely affect the vesting of title in the State whatsoever. Credible evidence was proffered before the trial court that upon acquisition the original title deeds were endorsed signifying the perfection of State acquisition of the disputed land. The endorsed original title Deeds however mysteriously disappeared in suspicious fraudulent circumstances to facilitate transfer for the benefit of the appellant.</p> <p>Once the land had been identified and itemised under schedule 7, title to the land automatically vested in the State with the result that it automatically became State property by operation of law. In consequence whereof the previous owner was divested of his title to the land and stripped of all rights of ownership to the acquired land thereto.</p> <p>The learned judge in the court <em>a quo</em> was therefore, correct when he remarked at page 24 of his judgment that:</p> <p>”TBIC obtained transfer of the remaining extend of Stuhm only in 2009. Until it did, it had no real rights over it. But most importantly Reimer who purported to transfer the property to it had lost all rights over the property, save the rights to a fair compensation. By 3 November 2005 the property had become State land by virtue of s 16B of the then Constitution.“</p> <p>For that reason Deed of Transfer No. 1724/09 dated 18 March 2009 in favour of TBIC (Pvt) Ltd was a nullity at law and of no force or effect. That factual finding and interpretation of the law cannot be faulted at all as it finds support in a plethora of precedents, chief among them, <em>Agro Chem Dealers (Pvt) Ltd v Gomo &amp; Others </em>2009 ZLR 255 where GOWORA J, as she then was made it clear that:</p> <p>“… No person who is not the owner can transfer ownership in anything whether or not such transferor was acting in good faith or <em>mala fide.”</em></p> <p>That interpretation and conclusion of the law finds solid support from RH Christie, <em>Business Law in Zimbabwe,</em> 2nd ED Juta &amp; Co Ltd at 149 where the learned author states that:</p> <p>“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass title that was not his.”</p> <p>On the authorities, a buyer who acquires property from a seller who is not the owner and without valid mandate to sell the property, as happened in this case, acquires defective title which is a nullity at law. A nullity is an event that never happened in the eyes of the law. As Reimer had lost all rights of ownership to the land in dispute, the sale of the land to TBIC (Pvt) Ltd was patently unlawful and a nullity at law. No valid title can be founded on an illegality. In <em>Guoxing Gong v Mayor Logistics (Pvt) Ltd</em> SC –2–2017 at p 6 this Court made it abundantly clear that anything done contrary to the law is a nullity.</p> <p>To make matters worse, as correctly found by the learned Judge in the court <em>a quo</em>, the appellant obtained dubious title in circumstances where the original title deeds with the endorsement of State title had been fraudulently removed from the Deeds Registry.  It is trite that one cannot transfer ownership of rights that he does not have nor can rights be lawfully transferred through fraudulent means. This is because the law prohibits anyone from deriving benefit from criminality regardless of the origin of the criminal conduct.</p> <p>I note in passing that the prevalence of fraudulent and corrupt disappearance of records and documents in the Deeds Registry has now reached alarming proportions. This prompted MATHONSI J to lament in the case of <em>Cosmas Luckson Zavazava and Anor v Tendai Anania Tendere and 2 Ors</em> HH 740/15 to remark as follows:</p> <p>“It would appear that conveyancing laws of this country are not fool-proof because fraudsters continue to exploit the weaknesses in the procedure for registration of transfers to defraud innocent property seekers. The leakages in the system have meant that cases of unlawful transfers of immovable property continue to reach the courts with alarming frequency. For how long will these fraudsters, who strut among communities, continue to hold sway, to make a mockery of transfer rules to milk unsuspecting home seekers dry in order to make a dishonest living? These shameless individuals bring the whole process of private ownership of property to disrepute.”</p> <p> </p> <p> </p> <p>In this case, the fraudulent disappearance of the original Title Deeds dully endorsed with State Title in the Deeds Office could only have benefitted the parties to the illegal sale of the State land in question. The fraudulent transfer was then perpetrated using a copy of the seller’s tittle Deeds without endorsement of State Tittle. This was meant to facilitate the bogus transfer of State Land to the appellant.</p> <p> </p> <p>In the absence of any other credible evidence to the contrary, the only reasonable inference that can be drawn is that the appellant and Cecil Michael Reimer were co-conspirators in the perpetration of the fraud. This uncouth reprehensible behaviour cannot be sanctioned by the courts. That type of criminal conduct discredits both of them as witnesses. It betrays knowledge on their part that the land had indeed been lawfully acquired by the State prior to the sale. Otherwise, why act unlawfully if the deal was clean and above board?</p> <p> </p> <p>Having lawfully acquired the disputed land, the acquiring authority remained the lawful owner regardless of the unlawful purported sale and transfer of the land to the first appellant. The Acquiring authority was therefore within its rights when it offered the disputed land to the respondent for resettlement purposes. The respondent in turn had the right to accept the offer as he did thereby concluding a valid contract with the acquiring authority. The conclusion that the respondent’s Offer Letter is valid and enforceable is in the circumstances beyond reproach.</p> <p>That conclusion of law renders both appellants strangers to the contract between the acquiring authority and the respondent. This brings us to the doctrine of privity of contract.  That doctrine restricts the enforcement of contractual rights and remedies to the contracting parties, to the exclusion of third parties. The learned author Innocent Maja in his book <em>The Law of Contract in Zimbabwe</em> at p 27 para 1.5.3 graphically explains the doctrine as follows:</p> <p>“The doctrine of privity of contract provides that contractual remedies are enforceable only by or against parties to a contract, and not third parties, since contracts only create personal rights. According to Lilienthal, privity of contract is the general proposition that an agreement between A and B cannot be sued upon by C even though C would be benefited by its performance. Lilienthal further posts that privity of contract is premised upon the principle that rights founded on contract belong to the person who has stipulated them and that even the most express agreement of contracting parties would not confer any right of action on the contract upon one who is not a party to it.”</p> <p>The court <em>a quo</em> having correctly found that the sale of the land in dispute to the first appellant was a nullity and that the acquiring authority remains the lawful owner of the land in dispute, it follows that both appellants were not privy to that contract. That being the case, the doctrine of privity of contract excluded them from suing for cancellation of the contract between the first and second respondents in the form of the first respondent’s offer letter.</p> <p>The second respondent being the only other contracting party to the Offer Letter swept the carpet from underneath the appellants’ feet when he elected not to contest the court <em>a quo</em>’s judgment choosing to remain neutral and abide by the court’s decision. That in effect means that the only other party privy to the contract has capitulated and is no longer challenging the validity of the first respondent’s Offer Letter. For that reason, the learned judge’s finding that the Offer Letter issued to the first respondent by the second respondent is valid is unassailable.</p> <p>By virtue of the landmark decision in the case of <em>Commercial farmers Union &amp; Ors v Minister of Lands &amp; Ors</em> 2010 ZLR 576 the courts are enjoined to support the holders of valid offer letters as correctly argued by the second respondent in the court <em>a quo</em>. This is in keeping with the time honoured principle laid down in <em>Barlow and Jones Ltd v Elephant Trading Co</em>. 1905 TS 67 to the effect that existing rights should not be infringed. Thus in general courts will lean in favour of the enjoyment of rights rather than their extinction.</p> <p>By virtue of the valid Offer Letter issued to him by the second respondent in his capacity as the acquiring authority, the first respondent has the right to occupy and use the <strong>Remaining Extent of Stuhm In the Goromonzi District Measuring approximately 534, 00 Hectares in extent</strong> as stipulated in the offer letter.</p> <p>As regards the appellants’ right of occupation of the land, the disputed land is gazetted land. Section 3 of the Gazetted Land (Consequential Provisions) Act [<em>Chapter 20:28</em>] prohibits and criminalizes the occupation of gazetted land without lawful authority in the form of:</p> <ul> <li>an offer letter; or</li> <li>a permit; or</li> <li>a land settlement lease.</li> </ul> <p>It is common cause that both appellants have no lawful authority in the form of an Offer Letter, permit or land settlement lease authorising them to occupy and use the disputed land. Their plea is for the acquiring authority to strip the first respondent of his rights acquired in terms of his Offer Letter and confer them on the first appellant. They argue that the first appellant is an indigenous person and it is not government policy to dispossess one indigenous person of land in order to give it to another.</p> <p>This Court has already determined that the court <em>a quo</em> correctly nullified Cecil Michael Reimer’s ownership of the disputed land. It also correctly held that ownership of the disputed land still vests in the second respondent. That being the case, the courts cannot protect the appellant on the basis that the disputed land is owned or occupied by an indigenous person.</p> <p>Although the first appellant is in occupation of the gazetted land and the second appellant occupies it through a lease agreement, the occupation is unlawful. As already determined elsewhere in this judgment the law and the courts cannot protect an illegality regardless of the colour, nationality or race of the perpetrator.</p> <p>                        This should really be the answer to the appellants’ argument in this respect, but for the sake of completeness, there is need to look at the argument from a different perspective. For that purpose I consider it necessary to determine whether the first appellant being a juristic person is in fact an indigenous black person. The 1st appellant’s argument is that it is an indigenous black person because its shareholders are black indigenous natural persons.</p> <p>It is trite and a matter of elementary law that a company is a fictitious juristic legal entity with a separate and distinct legal existence apart from its shareholders. It is capable of owning property in its own right separate from that of its shareholders. It is an established principle of our law that a company’s property is not the property of its members, shareholders or directors. The principle was laid down in <em>Salomon v Salomon and Co Ltd</em> [1897] AC 22 HL per LORD HALSBURY LC (30) when he said:</p> <p>“It seems to me impossible to dispute that once a company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are.”</p> <p>From the above exposition of the law it follows that the first appellant TBIC Investments (Pvt) Ltd is a separate legal entity from its owners, shareholders and directors.</p> <p>The question to be addressed in the circumstances is whether a registered company can be classified as being of black or white race. In addressing that question it is important to note that a company has no real physical existence but it is merely an abstract fictitious legal entity. It has no physical existence, colour, flesh or blood. In <em>Dadoo Ltd and Others v Krugersdorp </em>1920 AD 530 at 552 the Court held that:</p> <p>“A company cannot have an enemy character. In the words of BUCKLEY L. J, it has neither body parts nor passions; it cannot be loyal or disloyal.”</p> <p>From the authorities and pure common sense, it follows that a company has no colour or race. It does not adopt the colour or race of its owners, shareholders or directors. The argument by the first appellant TBIC Investments (Pvt) Ltd that it is a black indigenous person is therefore seriously flawed.  Government policy relating to indigenous persons only relates to natural persons and not companies. No government policy is violated when government acquires land from a company for resettlement purposes. The court <em>a quo</em>’s determination that the first appellant could lawfully be removed from the land to pave way for the first respondent cannot be faulted.</p> <p>I now turn to consider whether the first respondent’s claim can be defeated by virtue of the alleged change of land use. The first appellant filed its opposing affidavit on 8 February 2011. The opposing affidavit was deposed to by its director Killian Kapaso duly authorised thereto by resolution of the company directors. Nowhere in that affidavit did the appellant raise the issue of change of land use as a defence to the first respondent’s claim.</p> <p>The first appellant only raised the issue of change of land use more than two years later in an affidavit deposed to by the same company director Killian Kapaso who had deposed to the original opposing affidavit two years earlier.</p> <p>In that affidavit, the first appellant was responding to the Chief Registrar of Deeds’ affidavit confirming that the land in dispute was registered in the name of the President of Zimbabwe and had become State land in terms of s 16B of the Constitution.  That registration still subsists. It has not been nullified by any court of competent jurisdiction.</p> <p>The issue of State ownership of the acquired land is really an issue between Cecil Michel Reimer and the acquiring authority. Cecil Michael Reimer has however chosen not to be a party to this matter electing merely to furnish an affidavit confirming that he sold the disputed land to the first appellant.</p> <p>The appellants’ claim that the land in dispute is no longer agricultural land is premised on a photocopy of a Sub-divisional Permit apparently granted to the first appellant  by the Minister of Local Government Rural and Urban  Development. The alleged permit reads in part as follows:</p> <p>“PERMIT FOR THE SUBDIVISION OF</p> <p>SUBDIVISION OF REMAING EXTENTOF STUHM:</p> <p>GOROMONZI DISTRICT</p> <p>The Minister of Local Government Rural and Urban Development (hereinafter called the Minister) in terms of Section 40 (3) of the Regional Town and Country Planning Act, [Chapter 29:12] (hereinafter called “The Act”) hereby grants a PERMIT in respect of an application dated 13th November 2009 and numbered Mash East 04/2009 in the Register of the Provincial Planning Officer, Mashonaland East, to T.B.I.C INVESTMENTS (PRIVATE) LIMITED   (hereinafter called “the applicant”) for the subdivision of:-</p> <p>A certain               :      Piece of land situate in the District of Goromonzi</p> <p>Being                    :      Remaining extent of Stuhm</p> <p>Measuring            :      583.1360 hectares</p> <p>Held Under          :      Deed of Transfer N0. 1724/2009 dated 18 March 2009”</p> <p>The appellants’ complaint is that the court <em>a quo</em> erred in not making a ruling on the objection to the effect that the land in dispute no longer constituted agricultural land but urban land. As such, it was no longer susceptible to compulsory acquisition in terms of the constitution.</p> <p>It must be noted that the so called sub-divisional permit was issued to TBIC INVESTMENTS (PRIVATE) LIMITED that is to say the first appellant which did not own the land. The court <em>a quo</em> having correctly determined that the disputed land belonged to the acquiring authority, a sub-divisional permit granted to the first appellant who did not own the land was a nullity <em>ab initio</em> and of no force or effect.</p> <p>A perusal of case law shows that there is no need for the court to pronounce or declare something which is a nullity as being null and void as held in the well-known case of <em>Mcfoy v United Africa Co. Ltd</em> [1961] 3 ALL ER 1169 (PC) at 1172. In that case Lord DENNING had occasion to remark that:</p> <p>“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to be set aside. It is automatically null and void without more ado, although it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” (Emphasis provided).</p> <p>It is plain common sense that a permit granted to the first appellant to subdivide land which did not belong to it was a nullity which did not bind anyone. For that reason although it was desirable for the court <em>a quo</em> to pronounce its verdict on the objection raised by the first appellant, there was no strict requirement to do so at law.</p> <p>It is an established fact that the land in question is registered as agricultural land in the name of the acquiring authority. In the absence of any evidence as to how it ceased to be agricultural land, the registration in the Deeds Office prevails.</p> <p>                        In the case of <em>Lilifort Toro v Vodge Investments (Pvt) Ltd</em> SC 15/2017, there was clear evidence as to how the land had ceased to be agricultural land to become urban land by virtue of Proclamation 3 of 2012, S.I 115 of 2012. This was followed up by an official hand over of the land through a letter dated 10 June 2013.</p> <p>In this case, nothing of the sort happened. The acquiring authority continues to claim ownership of the land registered in his name. It is trite that registration in the Deeds Registry constitutes proof of ownership of land.  All the parties to this case looked up to him for relief without any reference to the Minister of Local Government Rural and Urban Development. This amounts to recognition of his ownership and authority over the disputed land. That is ample proof that the Minister of Local Government had no Authority to convert agricultural land to urban Land without the consent of his colleague, the acquiring authority. Any purported change of ownership of the land without the consent of the acquiring authority was therefore a legal nullity and of no force or effect.</p> <p>In the final analysis we come to the unanimous conclusion that there is absolutely no merit in this appeal.</p> <p>It is accordingly ordered as follows:</p> <p>That the appeal be and is hereby dismissed with costs.</p> <p>                       <strong>GWAUNZA JA</strong>                     I agree</p> <p>                        <strong>GOWORA JA</strong>                       I agree</p> <p><em>Gama &amp; Partners, </em>appellants’ legal practitioners     </p> <p><em>Moyo &amp; Jera, </em>1st respondent’s legal practitioners                 </p> <p><em>Civil Division of The Attorney-General, </em>4th respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/13/2018-zwsc-13.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=55853">2018-zwsc-13.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/13/2018-zwsc-13.pdf" type="application/pdf; length=283086">2018-zwsc-13.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/land">Land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/acquisition-land">Acquisition of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/acquisition-notice-issued-coming-effect-constitutional-amendment-no-17">acquisition notice issued before coming into effect of constitutional amendment No 17</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/notice-acquisition-land">notice of acquisition of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/offer-letters-acquisition-land">offer letters (Acquisition of land)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/buyer-having-no-right-transfer-land">buyer having no right to transfer of land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale-land">Sale of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/subdivision">Subdivision</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/transfer-real-property">transfer of real property</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/node/7974">Toro v Vodge Inv. (Pvt) Ltd. &amp; Others (SC 15/2017 Civil Appeal No. SC 201/15) [2017] ZWSC 15 (27 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/740">Zavaza &amp; Another v Tendere &amp; Others (HH 740-15 HC 8382/14) [2015] ZWHHC 740 (23 September 2015);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2017/2">Guoxing Gong v Mayor Logistics (Pvt) Ltd. &amp; Another (SC 2/2017 Civil Appeal No. SC 17/16) [2017] ZWSC 2 (30 January 2017);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1992/3">LAND ACQUISITION ACT</a></div><div class="field-item odd"><a href="/zw/legislation/act/2006/8">Gazetted Land (Consequential Provisions) Act [Chapter 20:28]</a></div></div></div> Wed, 25 Apr 2018 13:46:22 +0000 admin 8754 at https://old.zimlii.org TBIC (Private) Limited & Another v Mangenje & 5 Others (SC 13/18, Civil Appeal No. SC 469/13 Ref. HC 601/11 Ref. HC 9527/11) [2018] ZWSC 13 (01 March 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/13 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (10)</strong></p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, GOWORA JA &amp; BHUNU JA.</strong></p> <p><strong>HARARE, 31 JANUARY 2017 &amp; MARCH 1, 2018</strong></p> <p><em>T. Mpofu, </em>for the appellants</p> <p><em>S.M. Hashiti, </em>for the first respondent</p> <p><em>E. T. Matinenga, </em>for the second respondent</p> <p><strong>BHUNU JA:</strong>       This is a hotly contested appeal against the whole judgment of the High Court sitting at Harare, and delivered on 30 October 2013. The epicentre of the dispute is a certain piece of land in the Goromonzi District known as the Remaining Extent of Stuhm measuring 583, 1360 hectares in extent registered in the name of TIBIC INVESTMENTS (PVT) LTD under Deed of Transfer 1724/2009. TIBIC INVESTIMENTS (PVT) LTD is an indigenous company in the sense that its shareholders and directors are indigenous citizens of this country. The historical background and factual basis of the case is by and large common cause.</p> <p>The genesis of the dispute is that in 1970 the late Paul Michael Henry Reimer obtained ownership of a certain piece of land in the District of Goromonzi known as the Remaining extent of Stuhm measuring 1 074.7410 hectares in extent, under deed of grant 1262/70. Paul Reimer does not appear to have bought the land as there is no mention of any money having exchanged hands. His son Cecil Michael Reimer in due course inherited the said piece of land from his late father under deed of Transfer 3032/87.</p> <p>Starting from 1997 to 2009 Cecil Michael Reimer began to subdivide the main block of the remaining extent of Stuhm measuring 1074. 7410 hectares in extent into 3 lots which he sold as follows:</p> <p><strong>DATE    </strong>        <strong>LOT SOLD</strong>                 <strong>BUYER                                HECTERAGE</strong><strong>        </strong><strong>DEED OF TRANSFER</strong></p> <p>1997                           2                         Darnall Investments           412.1091                              497/97</p> <p>1998                           3                         Douglasdale (Pvt) Ltd        79.4959                                 9247/98</p> <p><strong>2009                           1             TIBIC Investments (Pvt) Ltd    583.1360                               1724/09</strong></p> <p><strong>                                                             1,074.741</strong></p> <p><strong>Total</strong><strong>.                    3 Lots                                                                                    </strong></p> <p> </p> <p>He however sold the disputed lot one in 2009 in circumstances where Government had already issued a preliminary notice to compulsorily acquire the disputed land under <strong>General Notice 405A of 2000</strong> published in the <strong>Extraordinary Government Gazette of 25 August, 2000</strong>.</p> <p>The preliminary notice reads:</p> <p>“NOTICE is hereby given, in terms of subsection (1) of section 5 of the Land Acquisition Act [Chapter 20:10], that the president intends to acquire compulsorily the land described in the schedule for resettlement purposes.</p> <p>A plan of the land is available for inspection at the following offices of the Ministry of Lands, Agriculture and Rural Resettlement between 8 a.m. and 4 p.m. from Monday to Friday other than on a public holiday on or before the 24th of September, 2009 –140. Deed of transfer 3032/87, registered in the name of Cecil Michael Reiner , in respect of certain piece of land situate in the district of Goromonzi , being the remaining extent of Stuhm, measuring one thousand and seventy- four, comma seven four one zero. (1 074, 7410) hectares.”</p> <p>The same notice was re-gazetted under General notices 298A of 2003 and 323 of 2003. In all the 3 notices the extent of the land earmarked for acquisition was given as 1 074.741 hectares. The gazetted land had however been subdivided into 3 lots. Considering that it had acquired the whole land, the acquiring Authority offered lot 1 to the first respondent Kennedy Mangenje as compensation for his farm which it had compulsorily acquired and distributed to other beneficiaries. The first respondent accepted the offer.</p> <p> </p> <p>The offer letter addressed to the first respondent and dated 7 August 2006 reads in Part:</p> <p>            “Dear Sir/Madam</p> <p>Re: OFFER OF LAND HOLDING UNDER THE LAND REFORM AND RESETTLEMENT PROGRAMME. (MODEL A2 PHASE II0</p> <ol> <li>The Minister of State for National Security, Lands. Land Reform and Resettlement in the President’s Office has the pleasure in informing you that your application for land under Model A2 Scheme has been successful.</li> <li>You are offered Subdivision 1 of R/E of STUHM in GOROMONZI District of MASHONALAND PROVINCE for agricultural purposes. The farm is approximately 534.00 hectares in extent.</li> <li>The offer is made in terms of the Agricultural Land Settlement Act [Chapter 20:01] whose provisions you are advised to acquaint yourself with. Conditions that go with the offer are attached.”</li> </ol> <p>In summary what was gazetted was the whole of the original Remaining Extent of Stuhm. However, lots 2 and 3 had already been sold and ceased to be part of the original block of land. Lot 1 thus remained as part of the remaining extent of the whole original block of land. It stands to reason that when the acquiring authority gazetted the whole of the original Remaining Extent of Stuhm, lot 1 being the remaining fraction of the original block was equally gazetted in tandem as part of the whole. That reasoning is anchored on the well-known maxim that the greater includes the lesser, which principle is of universal application. See City <em>of Lakerwood v Plain Dealer Publishing Co. </em>[1988] USSC 123. In other words the gazetting of a whole piece of land includes the gazetting of a fraction of that land.</p> <p>The severed lots 2 and 3 were not validly gazetted because they had ceased to be part of the original block and the new owners were not given notice of the intended compulsory acquisition.</p> <p>The same cannot however, be said of lot I which remained as a fraction of the whole original Remaining Extent of Stuhm which Cecil Reimer continued to hold under deed of transfer 3032/87. Just to draw an analogy, if the Sheriff had given notice to attach the 3 lots under the mistaken belief that they all belonged to Cecil his notice and attachment of block I could not be foiled simply because lots 2 and 3 belonged to some other people. The Sheriff will undoubtedly be entitled to attach the remaining lot 1 belonging to Cecil Michael Reimer.  By the same token, once the acquiring authority had gazetted the whole original piece of land, it was entitled as of right to acquire any fraction of that land that was legally subject to acquisition in terms of the Constitution.</p> <p>The appellant sought to attack the first notice No. 405A of 2000 on the basis that it had expired in terms of the provisions of the Land Acquisition Act. The same applies to the second and third notices 298A of 2003 and 323A of 2003. It also sought to argue that the land gazetted does not exist simply because the gazetted land is 1 704.741 hectares in extent whereas the land in dispute is 583.136 hectares in extent.</p> <p>The disputed land in respect of which notice to compulsorily acquire was  given can easily be identified by employing the blue pencil rule to excise lots 2 and 3 from the whole, leaving the land in dispute intact,  being the Remaining extent of Stuhm  measuring 583.136 Hectares held  by Cecil Michael  Reimer under deed of transfer 3032/1987. The blue pencil rule is a common law doctrine which allows a court to sever an unenforceable portion of a contract so as to enforce the remaining enforceable portion of that contract. Although this is not a contractual dispute I find the concept useful in this case to separate that which is enforceable from that which is not enforceable.</p> <p>Graphically, that conception in this case can be plotted and visualised as follows:</p> <p>Cecil Michael Reimer sowed the seeds of severability or divisibility when he subdivided the original land into separate and distinct 3 lots which could easily be identified as shown above. What emerges quite clearly is that, the severance of lots 2 and 3 from the whole block of land cannot divest lot 1 of its identity. It remains intact and its gazetting remains extant despite the severance of lots 2 and 3 from the whole. In the result, the conclusion that lot 1 which is the land in dispute was identified and gazetted is beyond contest. What is in dispute is the correctness and validity of the process of identification and gazetting of the land for purposes of compulsory acquisition.</p> <p>The disputed land was properly identified and gazetted as part of the whole original Remaining Extent of Stuhm measuring 1 704.741 hectares in extent. It is therefore, anomalous for the appellants to argue that the land in question does not exist when the first appellant bought it from Michael Reimer and had it registered in its name under the same description being the Remaining Extent of Stuhm measuring 583.136 situated in the district of Goromonzi. By the same token, the second appellant cannot dispute the existence of the disputed land when he leased and occupied it under the same description.</p> <p>There is therefore no merit in the appellants’ argument that the land in question was not properly identified and gazetted. For that reason the finding by the court <em>a quo</em> that the disputed land exists is beyond reproach.</p> <p>There can however, be no denying that the process of identifying the disputed land for purposes of compulsory acquisition was fraught with errors including the spelling of the name of the previous owner of the land, its exact size and extent as correctly found by the court <em>a quo.</em> These errors and more were not peculiar to this particular piece of land. The mistakes were many and varied relating to various other pieces of land, thereby threatening to derail the entire Land Reform Programme.</p> <p>In order to protect and keep the Land Reform Programme on course, Parliament in its wisdom amended the former Constitution. The intention of the legislature was to automatically validate the acquisition of all agricultural land identified and listed under schedule 7 for purposes of the Land reform programme on or before 8 July 2005 regardless of any errors or mistakes that may otherwise have nullified the acquisition in the normal run of things.</p> <p>The disputed land was acquired under the former Constitution of which s 16B (2) as amended provides as follows:</p> <p>            “(a) All Agricultural land –</p> <ul> <li>That was identified on or before the 8th July 2005, in the government Gazette or Gazette Extraordinary under section 5 (1) Of the Land Acquisition Act [Chapter 20:10], and which is itemized in Schedule 7 being agricultural land required for resettlement purposes is acquired by and is vested in the State with full tittle therein with effect from the appointed date.</li> </ul> <p>...</p> <p>(5)       Any inconsistency between anything contained in –</p> <ul> <li>a notice itemized in schedule 7 ; or</li> <li>a notice relating to land referred to in subsection (2) (ii) OR (iii); and the tittle deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2) (a) or invalidate the vesting of title in the State in terms of that provision.”</li> </ul> <p>The effect of the above section was to revive, resuscitate and validate the acquisition of all identified agricultural land listed in the 7th schedule for resettlement purposes prior to 8 July 2005 regardless of any errors or withdrawals in the acquisition process. No limitation can be imposed on the acquisition process once the land is shown to have been gazetted and listed in the 7th schedule prior to 8 July 2005.</p> <p>The language used in s 16B (2) of the former Constitution is clear and unambiguous admitting no ambivalent interpretation. The only meaning to be ascribed to the section is that once land is gazetted and listed in schedule 7 it automatically stands acquired by the State with full title by operation of law. The mere fact that the notice was at one time withdrawn or expired is irrelevant.</p> <p>Applying the law to the facts, it is plain that the disputed land was identified and a preliminary notice of intention to acquire was gazetted on 25 August 2000.  The same preliminary notice was re-gazetted twice in 2003. The land in dispute was duly itemised in schedule 7 of the Government gazette according to the prevailing law. The land, having been identified and itemised in schedule 7, it fell squarely within the ambit of s 16B (2) of the former Constitution. By virtue of s 16B (5) of the former Constitution, the fact that at one time the notice expired or was withdrawn and that it was beset by other  errors complained of by the appellant were of no force or effect. They could not invalidate or adversely affect the vesting of title in the State whatsoever. Credible evidence was proffered before the trial court that upon acquisition the original title deeds were endorsed signifying the perfection of State acquisition of the disputed land. The endorsed original title Deeds however mysteriously disappeared in suspicious fraudulent circumstances to facilitate transfer for the benefit of the appellant.</p> <p>Once the land had been identified and itemised under schedule 7, title to the land automatically vested in the State with the result that it automatically became State property by operation of law. In consequence whereof the previous owner was divested of his title to the land and stripped of all rights of ownership to the acquired land thereto.</p> <p>The learned judge in the court <em>a quo</em> was therefore, correct when he remarked at page 24 of his judgment that:</p> <p>”TBIC obtained transfer of the remaining extend of Stuhm only in 2009. Until it did, it had no real rights over it. But most importantly Reimer who purported to transfer the property to it had lost all rights over the property, save the rights to a fair compensation. By 3 November 2005 the property had become State land by virtue of s 16B of the then Constitution.“</p> <p>For that reason Deed of Transfer No. 1724/09 dated 18 March 2009 in favour of TBIC (Pvt) Ltd was a nullity at law and of no force or effect. That factual finding and interpretation of the law cannot be faulted at all as it finds support in a plethora of precedents, chief among them, <em>Agro Chem Dealers (Pvt) Ltd v Gomo &amp; Others </em>2009 ZLR 255 where GOWORA J, as she then was made it clear that:</p> <p>“… No person who is not the owner can transfer ownership in anything whether or not such transferor was acting in good faith or <em>mala fide.”</em></p> <p>That interpretation and conclusion of the law finds solid support from RH Christie, <em>Business Law in Zimbabwe,</em> 2nd ED Juta &amp; Co Ltd at 149 where the learned author states that:</p> <p>“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass title that was not his.”</p> <p>On the authorities, a buyer who acquires property from a seller who is not the owner and without valid mandate to sell the property, as happened in this case, acquires defective title which is a nullity at law. A nullity is an event that never happened in the eyes of the law. As Reimer had lost all rights of ownership to the land in dispute, the sale of the land to TBIC (Pvt) Ltd was patently unlawful and a nullity at law. No valid title can be founded on an illegality. In <em>Guoxing Gong v Mayor Logistics (Pvt) Ltd</em> SC –2–2017 at p 6 this Court made it abundantly clear that anything done contrary to the law is a nullity.</p> <p>To make matters worse, as correctly found by the learned Judge in the court <em>a quo</em>, the appellant obtained dubious title in circumstances where the original title deeds with the endorsement of State title had been fraudulently removed from the Deeds Registry.  It is trite that one cannot transfer ownership of rights that he does not have nor can rights be lawfully transferred through fraudulent means. This is because the law prohibits anyone from deriving benefit from criminality regardless of the origin of the criminal conduct.</p> <p>I note in passing that the prevalence of fraudulent and corrupt disappearance of records and documents in the Deeds Registry has now reached alarming proportions. This prompted MATHONSI J to lament in the case of <em>Cosmas Luckson Zavazava and Anor v Tendai Anania Tendere and 2 Ors</em> HH 740/15 to remark as follows:</p> <p>“It would appear that conveyancing laws of this country are not fool-proof because fraudsters continue to exploit the weaknesses in the procedure for registration of transfers to defraud innocent property seekers. The leakages in the system have meant that cases of unlawful transfers of immovable property continue to reach the courts with alarming frequency. For how long will these fraudsters, who strut among communities, continue to hold sway, to make a mockery of transfer rules to milk unsuspecting home seekers dry in order to make a dishonest living? These shameless individuals bring the whole process of private ownership of property to disrepute.”</p> <p> </p> <p> </p> <p>In this case, the fraudulent disappearance of the original Title Deeds dully endorsed with State Title in the Deeds Office could only have benefitted the parties to the illegal sale of the State land in question. The fraudulent transfer was then perpetrated using a copy of the seller’s tittle Deeds without endorsement of State Tittle. This was meant to facilitate the bogus transfer of State Land to the appellant.</p> <p> </p> <p>In the absence of any other credible evidence to the contrary, the only reasonable inference that can be drawn is that the appellant and Cecil Michael Reimer were co-conspirators in the perpetration of the fraud. This uncouth reprehensible behaviour cannot be sanctioned by the courts. That type of criminal conduct discredits both of them as witnesses. It betrays knowledge on their part that the land had indeed been lawfully acquired by the State prior to the sale. Otherwise, why act unlawfully if the deal was clean and above board?</p> <p> </p> <p>Having lawfully acquired the disputed land, the acquiring authority remained the lawful owner regardless of the unlawful purported sale and transfer of the land to the first appellant. The Acquiring authority was therefore within its rights when it offered the disputed land to the respondent for resettlement purposes. The respondent in turn had the right to accept the offer as he did thereby concluding a valid contract with the acquiring authority. The conclusion that the respondent’s Offer Letter is valid and enforceable is in the circumstances beyond reproach.</p> <p>That conclusion of law renders both appellants strangers to the contract between the acquiring authority and the respondent. This brings us to the doctrine of privity of contract.  That doctrine restricts the enforcement of contractual rights and remedies to the contracting parties, to the exclusion of third parties. The learned author Innocent Maja in his book <em>The Law of Contract in Zimbabwe</em> at p 27 para 1.5.3 graphically explains the doctrine as follows:</p> <p>“The doctrine of privity of contract provides that contractual remedies are enforceable only by or against parties to a contract, and not third parties, since contracts only create personal rights. According to Lilienthal, privity of contract is the general proposition that an agreement between A and B cannot be sued upon by C even though C would be benefited by its performance. Lilienthal further posts that privity of contract is premised upon the principle that rights founded on contract belong to the person who has stipulated them and that even the most express agreement of contracting parties would not confer any right of action on the contract upon one who is not a party to it.”</p> <p>The court <em>a quo</em> having correctly found that the sale of the land in dispute to the first appellant was a nullity and that the acquiring authority remains the lawful owner of the land in dispute, it follows that both appellants were not privy to that contract. That being the case, the doctrine of privity of contract excluded them from suing for cancellation of the contract between the first and second respondents in the form of the first respondent’s offer letter.</p> <p>The second respondent being the only other contracting party to the Offer Letter swept the carpet from underneath the appellants’ feet when he elected not to contest the court <em>a quo</em>’s judgment choosing to remain neutral and abide by the court’s decision. That in effect means that the only other party privy to the contract has capitulated and is no longer challenging the validity of the first respondent’s Offer Letter. For that reason, the learned judge’s finding that the Offer Letter issued to the first respondent by the second respondent is valid is unassailable.</p> <p>By virtue of the landmark decision in the case of <em>Commercial farmers Union &amp; Ors v Minister of Lands &amp; Ors</em> 2010 ZLR 576 the courts are enjoined to support the holders of valid offer letters as correctly argued by the second respondent in the court <em>a quo</em>. This is in keeping with the time honoured principle laid down in <em>Barlow and Jones Ltd v Elephant Trading Co</em>. 1905 TS 67 to the effect that existing rights should not be infringed. Thus in general courts will lean in favour of the enjoyment of rights rather than their extinction.</p> <p>By virtue of the valid Offer Letter issued to him by the second respondent in his capacity as the acquiring authority, the first respondent has the right to occupy and use the <strong>Remaining Extent of Stuhm In the Goromonzi District Measuring approximately 534, 00 Hectares in extent</strong> as stipulated in the offer letter.</p> <p>As regards the appellants’ right of occupation of the land, the disputed land is gazetted land. Section 3 of the Gazetted Land (Consequential Provisions) Act [<em>Chapter 20:28</em>] prohibits and criminalizes the occupation of gazetted land without lawful authority in the form of:</p> <ul> <li>an offer letter; or</li> <li>a permit; or</li> <li>a land settlement lease.</li> </ul> <p>It is common cause that both appellants have no lawful authority in the form of an Offer Letter, permit or land settlement lease authorising them to occupy and use the disputed land. Their plea is for the acquiring authority to strip the first respondent of his rights acquired in terms of his Offer Letter and confer them on the first appellant. They argue that the first appellant is an indigenous person and it is not government policy to dispossess one indigenous person of land in order to give it to another.</p> <p>This Court has already determined that the court <em>a quo</em> correctly nullified Cecil Michael Reimer’s ownership of the disputed land. It also correctly held that ownership of the disputed land still vests in the second respondent. That being the case, the courts cannot protect the appellant on the basis that the disputed land is owned or occupied by an indigenous person.</p> <p>Although the first appellant is in occupation of the gazetted land and the second appellant occupies it through a lease agreement, the occupation is unlawful. As already determined elsewhere in this judgment the law and the courts cannot protect an illegality regardless of the colour, nationality or race of the perpetrator.</p> <p>                        This should really be the answer to the appellants’ argument in this respect, but for the sake of completeness, there is need to look at the argument from a different perspective. For that purpose I consider it necessary to determine whether the first appellant being a juristic person is in fact an indigenous black person. The 1st appellant’s argument is that it is an indigenous black person because its shareholders are black indigenous natural persons.</p> <p>It is trite and a matter of elementary law that a company is a fictitious juristic legal entity with a separate and distinct legal existence apart from its shareholders. It is capable of owning property in its own right separate from that of its shareholders. It is an established principle of our law that a company’s property is not the property of its members, shareholders or directors. The principle was laid down in <em>Salomon v Salomon and Co Ltd</em> [1897] AC 22 HL per LORD HALSBURY LC (30) when he said:</p> <p>“It seems to me impossible to dispute that once a company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are.”</p> <p>From the above exposition of the law it follows that the first appellant TBIC Investments (Pvt) Ltd is a separate legal entity from its owners, shareholders and directors.</p> <p>The question to be addressed in the circumstances is whether a registered company can be classified as being of black or white race. In addressing that question it is important to note that a company has no real physical existence but it is merely an abstract fictitious legal entity. It has no physical existence, colour, flesh or blood. In <em>Dadoo Ltd and Others v Krugersdorp </em>1920 AD 530 at 552 the Court held that:</p> <p>“A company cannot have an enemy character. In the words of BUCKLEY L. J, it has neither body parts nor passions; it cannot be loyal or disloyal.”</p> <p>From the authorities and pure common sense, it follows that a company has no colour or race. It does not adopt the colour or race of its owners, shareholders or directors. The argument by the first appellant TBIC Investments (Pvt) Ltd that it is a black indigenous person is therefore seriously flawed.  Government policy relating to indigenous persons only relates to natural persons and not companies. No government policy is violated when government acquires land from a company for resettlement purposes. The court <em>a quo</em>’s determination that the first appellant could lawfully be removed from the land to pave way for the first respondent cannot be faulted.</p> <p>I now turn to consider whether the first respondent’s claim can be defeated by virtue of the alleged change of land use. The first appellant filed its opposing affidavit on 8 February 2011. The opposing affidavit was deposed to by its director Killian Kapaso duly authorised thereto by resolution of the company directors. Nowhere in that affidavit did the appellant raise the issue of change of land use as a defence to the first respondent’s claim.</p> <p>The first appellant only raised the issue of change of land use more than two years later in an affidavit deposed to by the same company director Killian Kapaso who had deposed to the original opposing affidavit two years earlier.</p> <p>In that affidavit, the first appellant was responding to the Chief Registrar of Deeds’ affidavit confirming that the land in dispute was registered in the name of the President of Zimbabwe and had become State land in terms of s 16B of the Constitution.  That registration still subsists. It has not been nullified by any court of competent jurisdiction.</p> <p>The issue of State ownership of the acquired land is really an issue between Cecil Michel Reimer and the acquiring authority. Cecil Michael Reimer has however chosen not to be a party to this matter electing merely to furnish an affidavit confirming that he sold the disputed land to the first appellant.</p> <p>The appellants’ claim that the land in dispute is no longer agricultural land is premised on a photocopy of a Sub-divisional Permit apparently granted to the first appellant  by the Minister of Local Government Rural and Urban  Development. The alleged permit reads in part as follows:</p> <p>“PERMIT FOR THE SUBDIVISION OF</p> <p>SUBDIVISION OF REMAING EXTENTOF STUHM:</p> <p>GOROMONZI DISTRICT</p> <p>The Minister of Local Government Rural and Urban Development (hereinafter called the Minister) in terms of Section 40 (3) of the Regional Town and Country Planning Act, [Chapter 29:12] (hereinafter called “The Act”) hereby grants a PERMIT in respect of an application dated 13th November 2009 and numbered Mash East 04/2009 in the Register of the Provincial Planning Officer, Mashonaland East, to T.B.I.C INVESTMENTS (PRIVATE) LIMITED   (hereinafter called “the applicant”) for the subdivision of:-</p> <p>A certain               :      Piece of land situate in the District of Goromonzi</p> <p>Being                    :      Remaining extent of Stuhm</p> <p>Measuring            :      583.1360 hectares</p> <p>Held Under          :      Deed of Transfer N0. 1724/2009 dated 18 March 2009”</p> <p>The appellants’ complaint is that the court <em>a quo</em> erred in not making a ruling on the objection to the effect that the land in dispute no longer constituted agricultural land but urban land. As such, it was no longer susceptible to compulsory acquisition in terms of the constitution.</p> <p>It must be noted that the so called sub-divisional permit was issued to TBIC INVESTMENTS (PRIVATE) LIMITED that is to say the first appellant which did not own the land. The court <em>a quo</em> having correctly determined that the disputed land belonged to the acquiring authority, a sub-divisional permit granted to the first appellant who did not own the land was a nullity <em>ab initio</em> and of no force or effect.</p> <p>A perusal of case law shows that there is no need for the court to pronounce or declare something which is a nullity as being null and void as held in the well-known case of <em>Mcfoy v United Africa Co. Ltd</em> [1961] 3 ALL ER 1169 (PC) at 1172. In that case Lord DENNING had occasion to remark that:</p> <p>“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to be set aside. It is automatically null and void without more ado, although it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” (Emphasis provided).</p> <p>It is plain common sense that a permit granted to the first appellant to subdivide land which did not belong to it was a nullity which did not bind anyone. For that reason although it was desirable for the court <em>a quo</em> to pronounce its verdict on the objection raised by the first appellant, there was no strict requirement to do so at law.</p> <p>It is an established fact that the land in question is registered as agricultural land in the name of the acquiring authority. In the absence of any evidence as to how it ceased to be agricultural land, the registration in the Deeds Office prevails.</p> <p>                        In the case of <em>Lilifort Toro v Vodge Investments (Pvt) Ltd</em> SC 15/2017, there was clear evidence as to how the land had ceased to be agricultural land to become urban land by virtue of Proclamation 3 of 2012, S.I 115 of 2012. This was followed up by an official hand over of the land through a letter dated 10 June 2013.</p> <p>In this case, nothing of the sort happened. The acquiring authority continues to claim ownership of the land registered in his name. It is trite that registration in the Deeds Registry constitutes proof of ownership of land.  All the parties to this case looked up to him for relief without any reference to the Minister of Local Government Rural and Urban Development. This amounts to recognition of his ownership and authority over the disputed land. That is ample proof that the Minister of Local Government had no Authority to convert agricultural land to urban Land without the consent of his colleague, the acquiring authority. Any purported change of ownership of the land without the consent of the acquiring authority was therefore a legal nullity and of no force or effect.</p> <p>In the final analysis we come to the unanimous conclusion that there is absolutely no merit in this appeal.</p> <p>It is accordingly ordered as follows:</p> <p>That the appeal be and is hereby dismissed with costs.</p> <p>                       <strong>GWAUNZA JA</strong>                     I agree</p> <p>                        <strong>GOWORA JA</strong>                       I agree</p> <p><em>Gama &amp; Partners, </em>appellants’ legal practitioners     </p> <p><em>Moyo &amp; Jera, </em>1st respondent’s legal practitioners                 </p> <p><em>Civil Division of The Attorney-General, </em>4th respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/13/2018-zwsc-13_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=55853">2018-zwsc-13.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/13/2018-zwsc-13_0.pdf" type="application/pdf; length=283086">2018-zwsc-13.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/acquisition-land">Acquisition of land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/acquisition-notice-issued-coming-effect-constitutional-amendment-no-17">acquisition notice issued before coming into effect of constitutional amendment No 17</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/notice-acquisition-land">notice of acquisition of land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/offer-letters-acquisition-land">offer letters (Acquisition of land)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/buyer-having-no-right-transfer-land">buyer having no right to transfer of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/transfer-real-property">transfer of real property</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2017/2">Guoxing Gong v Mayor Logistics (Pvt) Ltd. &amp; Another (SC 2/2017 Civil Appeal No. SC 17/16) [2017] ZWSC 2 (30 January 2017);</a></div><div class="field-item odd"><a href="/node/7974">Toro v Vodge Inv. (Pvt) Ltd. &amp; Others (SC 15/2017 Civil Appeal No. SC 201/15) [2017] ZWSC 15 (27 February 2017);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/740">Zavaza &amp; Another v Tendere &amp; Others (HH 740-15 HC 8382/14) [2015] ZWHHC 740 (23 September 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2006/8">Gazetted Land (Consequential Provisions) Act [Chapter 20:28]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1992/3">LAND ACQUISITION ACT</a></div></div></div> Wed, 25 Apr 2018 13:35:38 +0000 admin 8753 at https://old.zimlii.org