Subdivision https://old.zimlii.org/taxonomy/term/10750/all en Muhala & 50 Others v Mukorera (CCZ 2/19, CCZ 118/13) [2019] ZWCC 02 (18 February 2019); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2019/2 <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> <div> <p><strong>Judgment No.CCZ 2/19</strong></p> <p><strong>Case No. CCZ 118/13</strong></p> </div> <p> </p> <p>REPORTABLE    (1)</p> <p>ERIZA     MUHALA     AND     50     OTHERS<br /> v<br /> PATRICK     T.     MUKORERA</p> <p> CONSTITUTIONAL COURT OF ZIMBABWE<br /> CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC,<br /> GWAUNZA JCC, GARWE JCC, GOWORA JCC,<br /> HLATSHWAYO JCC, PATEL JCC &amp; GUVAVA JCC<br /> HARARE, JUNE 4, 2014 &amp; FEBRUARY 18, 2019<br />  <br /> T. Maanda, for the applicants<br /> P. Takaidza, for the respondent</p> <p> GWAUNZA DCJ:<br /> [1]    This is a purported referral to this Court in terms of s 175 (4) of the Constitution of Zimbabwe. The matter was argued before this Court on June 4, 2014. Judgment having been reserved, it is a matter of regret that unforeseen circumstances resulted in the delay in rendering this judgment.</p> <p>    BACKGROUND FACTS<br /> [2]    The respondent is the holder of an offer letter in respect of subdivision 9 of Reubine of Clare Farm in Manicaland granted to him by the Minister of Lands and Rural Resettlement. The farm was offered to the respondent on 6 June 2010. Before the farm was acquired by the State and offered to the respondent, it was owned by a certain Mr Tiny Van Resberg. After its acquisition, the farm was divided into nine (9) subdivisions. The respondent’s offer letter relates to subdivision 9.</p> <p>[3]    The applicants were all employees of the said Mr Tiny Van Resberg and by virtue of such employment, lived at the farm until he left following its acquisition and re-allocation to the respondent and eight others. The applicants and their families continued to live on the farm (effectively on the subdivision allocated to the respondent), and those with children have them enrolled at Clare Primary School. Some had been employed by Mr Van Resberg from 1982 until the time he left. It is common cause that, apart from accommodation, Mr Van Resberg provided them with small pieces of land where they conducted their subsistence farming.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 </p> <p>[4]    After the respondent obtained the offer letter in respect of his subdivision, he took occupation thereof in September 2010. The applicants remained in occupation of the same subdivision. The respondent then gave all the applicants notice to vacate the farm in August 2012 but the applicants did not comply. Eventually, he filed a court application for the eviction of the respondents in the Mutare Magistrates’ Court. This was on 10 September 2013.</p> <p>[5]    The applicants filed a notice of opposition to the application. With their notice of opposition however, they did not file any affidavit responding to the allegations in the application. They instead raised a point in limine relating to the jurisdiction of the magistrates’ court to deal with the dispute. In that statement, they alleged that their employment status had never been terminated and that in terms of s 16 of the Labour Act, they remained employees of Reubine Farm entitled to their terminal benefits in terms of the Labour (Terminal Benefits and Entitlements of Agricultural Employees Affected by Compulsory Acquisition) Regulations 2002. Despite objecting to the magistrate court’s jurisdiction, the applicants nevertheless notified the respondent of their intention to file a request for referral to the Constitutional Court for the resolution of a number of constitutional questions.</p> <p>[6]    The applicants thereafter filed an application for referral in terms of s 175 (4) of the Constitution before the magistrates’ court, on 18 October 2013. In that application, they tendered evidence concerning their perceived entitlement to the land in question, which should properly have been contained in an opposing affidavit in the main issue before the magistrate. Be that as it may, the magistrate entertained the application. In it the applicants claimed they had been in occupation of the farm since 1982 and were offering labour to the former farm owner, Mr Van Resberg. The first applicant, for example, had been in occupation of the farm since 1982 and had worked on the farm for Mr Van Resberg ever since. The former owner gave the applicants one and a half hectares of land for their own subsistence farming and they had been growing maize and other crops like sweet potatoes on the land. The applicants feared that if they were evicted, their ‘fundamental rights’ would be breached. They were afraid of being evicted and thrown into the open exposing them to the ‘indignity’ of being at the mercy of ‘dangerous agents of weather which include rains, the wind, storms, lightning, heat, the cold nights, the dangers of wild animals, reptiles and crawling creatures’. The applicants alleged that they were provided with accommodation as a direct result of their employment and they had not resigned from such employment. They further alleged that it was not the intention of the land reform programme to disempower former black Zimbabwean farm labourers who worked under the previous land occupation regime.</p> <p>[7]    The applicants in addition expressed the view that their employer had not properly terminated their employment contracts in terms of labour law and the eviction would take away their economic wherewithal as well as the social amenities of life that they had enjoyed at the farm. They also alleged that the intended eviction would violate s 28 of the Constitution, and sought referral of the following questions to this Court for resolution:<br /> 1.    Whether the eviction of the respondents from Reubine farm would be in breach of the following fundamental rights of respondents as enshrined in the Constitution of Zimbabwe (Amendment No. 20)<br /> (a)    In breach of s 28 of the Constitution of Zimbabwe<br /> (b)    In breach of s 51 of the Constitution of Zimbabwe<br /> (c)    In breach of s 72(7) of the Constitution of Zimbabwe<br /> (d)     In breach of s 64 of the Constitution of Zimbabwe</p> <p>2.    Further whether the eviction of respondents without them being granted alternative accommodation is in breach of the Founding Principles s 28 of the Constitution of Zimbabwe.</p> <p> <br /> [8]    The respondent opposed the request for referral, stating that his land allocation was in respect of subdivision 9 of the farm. He stated that the applicants were employed by Mr Van Resberg who occupied the whole farm, not just the subdivision that was offered to him by the Minister of Lands. He further alleged that the applicants worked for Mr Van Resberg and since he had left, they no longer had any right to remain on the farm. He further submitted that he did not inherit Mr Van Resberg’s farming operations and denied violating any of their rights by virtue of the order that he sought against the applicants. Given that he never employed them he bore no obligation to provide them with accommodation. In any event, he alleged, accommodation by reason of employment is not permanent in nature, as it is tied to the employment relationship.</p> <p>[9]    The respondent also opposed the request for referral to this Court on the basis that s 28 of the Constitution binds the State and all institutions and agencies of government only, not individuals like him. Further, that if the applicants wanted land of their own, they should approach the relevant authorities for land allocation in their own right. He averred that in terms of the lease agreement between him and the State, he was not allowed to cede his rights therein to third parties. Lastly, the respondent raised the point that the applicants were in any case, illegal occupiers of the farm since 2010 as they possessed neither an offer letter, land settlement lease or a permit as prescribed by the Gazetted Land (Consequential Provisions) Act [Chapter 20.28]. Further, that s 72(6) of the Constitution of Zimbabwe as read with s 3(2) of [Chapter 20.28] just cited, explicitly provides that a former owner or occupier who does not cease to occupy acquired land on the expiry of the period prescribed, in this case 90 days, shall be guilty of an offence. All that he sought to do was exercise his rights as a re-settled farmer by evicting those who continued to occupy it in open defiance of the law and the Constitution. The occupiers had thus been stripped of all rights they may have had to the land in question, including their living quarters, whose continued occupation is ‘criminalised’ by s 3(3) of the Gazetted Land (Consequential Provisions) Act [Chapter 20.28].    </p> <p>Accordingly, the respondent prayed for the request for referral to be dismissed on the basis that it was frivolous and vexatious.</p> <p>[10]    The presiding magistrate however found for the applicants. She summarised the facts as alleged by the parties and stated as follows in her short judgment;<br />     “It is my well-considered opinion that the application for referral to the Constitutional Court is not frivolous and vexatious but genuinely found(sic) on the respondent’s fear of their rights being violated.”<br />     </p> <p>THE ISSUE<br />     <br /> Whether the matter was properly referred to this Court.</p> <p>[11]    The matter came before this Court as a purported referral in terms of s 175(4), which provides as follows:<br /> “(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and if so requested by any party to the proceedings must, refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.<br /> (my emphasis)</p> <p>The ‘proceedings’ before the court a quo at the time the application for referral was made consisted only of the founding papers related to the respondent’s application for eviction of the applicants in casu. Without any opposing papers having been filed, the court was presented with an application, which it entertained and granted, for referral of certain questions to this Court. The question as to what constitutes ‘proceedings’ for purposes of s 24 (2) of the former constitution (s 175) (4) of the current Constitution) was authoritatively answered in Tsvangirai v Mugabe &amp; Anor-2006(1) ZLR 148(S) at 158, where the court held as follows:<br /> “Section 24(2) of the Constitution only applies when there is a question arising in the proceedings in the High Court or in the court subordinate to the High Court.<br /> … . The words ‘in any proceedings in the High Court’ mean proceedings that have come to be or have been instituted in the High Court …   .<br /> … . There are proceedings in being in the High Court from the moment an action is commenced or an application made until termination of the matter in dispute, or withdrawal of the action or application.”<br />     <br /> When the above is applied to the circumstances of this case, and by parity of reasoning, there can be no doubt that the questions referred to this Court properly arose during proceedings in the court a quo. What remains to be determined is whether or not the magistrate should have referred the matter to this Court at all.</p> <p>[12]    The applicants were faced with an application for their eviction. In terms of laid down procedure they ought to have opposed that application in the manner prescribed in the Magistrates’ Court Rules. They ought, in particular, to have filed an affidavit in opposition to the application in terms of Order 22 r 2 subrule 3 (b) of the Magistrates’ Court Rules which provides as follows:<br /> “Statement in response to application</p> <p>(1)    The respondent may, not less than forty-eight hours before the time stated in such application, deliver a statement in writing in which he either-<br />             (a)     consents to the order mentioned in the application; or<br />             (b)     opposes the granting of such order.<br />     (2)     Where the respondent consents to the order-<br /> (a)     the order shall be deemed to be granted<br /> from the time mentioned in the application;<br />             (b)     it shall not be necessary for either party to appear.<br />     (3)     Where the respondent opposes the order, his     statement shall-<br /> (a)     set out the grounds on which he opposes the order;<br /> (b)     if he denies the facts set out in the application or seeks to place additional facts before the court, be supported by affidavit.<br /> (my emphasis)</p> <p> [13]    The applicants clearly wished to deny the facts set out in the application for eviction and to place additional facts before the court. They were therefore required to lay out the factual basis for their defence in an opposing affidavit and thereafter request the magistrate to refer an identified constitutional question arising therein, to this Court. At that stage, it would have been shown that the determination of the constitutional question would be the basis of their defence to the application for eviction, in the Magistrates’ Court. This they did not do.  For this reason, the basis for the referral was not apparent on the papers before the court.<br />    <br /> [14]    A perusal of the presiding magistrate’s ruling shows that she did not make any findings of fact in referring the matter to this Court.  That is a serious misdirection.  A constitutional question does not arise in a vacuum. It is an issue that arises from the facts of a particular matter. Put differently, for the court to find that there is a constitutional matter that warrants a referral to this Court, the question must arise from the facts before the referring court. This is particularly important considering that there are many instances where an analysis of the facts would make it palpably apparent that no constitutional matter would have arisen.  Factual findings and their relevance to the alleged constitutional violation are crucial in the determination of whether the request for referral is frivolous or vexatious.  In Martin vs Attorney-General &amp; Anor 1993 (1) ZLR 153 (SC) 156H-157A the court had the following to say:<br />         “Faced with the request to refer the question raised on the applicant’s behalf to         the Supreme Court, the magistrate had no option but to act in accordance             therewith, unless of the opinion that the question was, as characterised in s 24(2)         of the     Constitution, “merely frivolous or vexatious”.  In order to be satisfied         that it was not, he obviously had to consider, to some extent, the merits of the         argument.” (my emphasis)</p> <p>[15]    The applicants categorically stated in their ill-conceived application that they were employed by Mr Van Resberg and that they were given accommodation at the farm on the basis of such employment. They alleged that their employment had not been terminated hence they could not be evicted from the farm. In this respect the applicants stated that they were employed by Mr Van Resberg and not the farm. Before referring the matter to this Court, the magistrate ought to have satisfied herself that there was indeed a relationship between the farm and the applicants. In the applicants’ papers before the court a quo, it was common cause that the applicants were employed by the farmer as farm labourers. No attempt was made by the magistrate to establish the relationship between the applicants, the land and Mr Van Resberg before determining the application, in order to understand and contextualise the request for referral. Had the magistrate made the effort to call evidence on the required facts, and to make specific findings of fact in that respect, it would have been apparent that the only claim that the applicants had to the land was through their employment with Mr Van Resberg. Since Mr Resberg had ceased to occupy the farm, it fell to reason that such employment had come to an end.</p> <p>[16]    The magistrate therefore, ought to have, on this basis, considered whether there was any basis for referral of the matter to this Court. The applicants had, under the law applicable, lost the right to continue staying on the farm. In this regard, the findings of the Court in Dhlamini and another v the State CCZ 1/14 become apposite.</p> <p>It found in part:<br />         “Section 24(2) of the Constitution clearly precludes     a situation where the             question is referred to the Supreme Court in respect of a matter which is no         longer necessary for resolution by the lower court in the determination of the         dispute before it. If that were to be permitted it would mean that the             Supreme Court would not be rendering a decision on the question as a court of         first instance in the exercise of original jurisdiction. It was no longer             necessary for the High Court to place the applicants     on remand and ipso facto         to consider whether or not placing them on remand was likely to violate their         right to personal liberty, the decision to place the applicants on remand having         already been made by the magistrates’ court. The applicants were before the         High Court for trial on the basis of the decision that there was a reasonable         suspicion of their having committed the offences with which they were             charged.”</p> <p>[17]    The facts in this case are almost on all fours with the facts in Yoramu and others v The State CCZ 2/16. The only difference is that while in this case the respondent elected to sue the applicants for eviction, in the Yoramu case, the decision had been taken to prosecute the accused persons under s 3 (2) (a) as read with s 3 (3) of the Gazetted lands (Consequential Provisions) Act. This Court, on referral of the matter from the magistrates’ court, was ultimately tasked with dealing with the question of whether the prosecution of the applicants in the magistrates’ court under s 3 (2) (a) as read with s 3 (3) of the Gazetted Lands Act constituted a violation of their right to the protection of the law, GARWE JCC found:<br />         “Even on the merits, it is clear that there was no transfer of an undertaking         following the acquisition of the farm and its subsequent allocation to a             number of beneficiaries. The Constitution itself makes it clear that anyone who         possesses or occupies     gazetted land without lawful authority may be guilty         of a criminal offence. What constitutes lawful authority is defined in the Act.         The applicants have no such authority. In these circumstances, there can             be no question of the applicants having remained employees of, or the farming         operations having been transferred to, the new beneficiaries.”</p> <p>[18]    The Magistrate in casu was dealing with an application for eviction. The question before him was therefore whether the applicants had the authority to remain in occupation of the farm, in other words, did they have a valid defence to the eviction claim? The dispute was between the applicants and the respondent as between themselves. In this regard, the magistrate ought to have considered that question only. The magistrate, knowing that it was an application for eviction, ought to have satisfied herself that the alleged constitutional question would, if successful, clothe the applicants with lawful authority. It could not. The applicants simply did not have lawful authority to continue staying on the farm. Accordingly, the Constitutional Court cannot give them what is not provided for in the law.<br />  <br /> Even if it were to be found that the applicants were entitled to land, the fact remains that they were illegally occupying the land in question. The dispute as it properly stood, without the perceived constitutional aberrations, could have been adequately resolved by reference to the common law or the Gazetted Lands (Consequential Provisions) Act.</p> <p>[19]    With respect to occupation of agricultural land compulsorily acquired for resettlement purposes, a person can only settle on the farm by virtue of lawful authority. Lawful authority is defined in s 2 of the Gazetted Lands (Consequential Provisions) Act as follows:<br /> “lawful authority” means –<br /> (a)    an offer letter; or<br /> (b)    a permit; or<br /> (c)    a land settlement lease;”    <br />     <br /> Even though this case did not come through the criminal route, it would be ill conceived to ignore the provisions of s 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]. The provision reads:<br />     “3 Occupation of Gazetted land without lawful authority   <br /> (1)    Subject to this section, no person may hold,     use or occupy Gazetted         land without lawful authority.</p> <p>(2)    Every former owner or occupier of Gazetted land                                    <br /> (a)    Referred to in para (a) of the<br /> definition of “Gazetted land” in s 2 (1), shall cease to occupy, hold or use that land forty-five days after the fixed date, unless the owner or occupier is lawfully authorised to occupy, hold or use that land;<br /> (b)    referred to in para (b) of the definition of “Gazetted land” in s 2 (1), shall cease to occupy, hold or use that land forty-five days after the date when the land is identified in accordance with s 16B (2)(a)(iii) of the Constitution, unless the owner or occupier is lawfully authorised to occupy, hold or use that land:<br /> Provided that –<br /> (i)    the owner or occupier of that land referred to in para (b) may remain in occupation of his or her living quarters on that land for a period of not more than ninety days after the date when the land is identified;<br /> (ii)    the owner or occupier shall cease to occupy his or her living quarters after the period referred to in proviso(i).”  </p> <p>[20]    A constitutional question worthy of referral is a question that is necessary to be answered by the Constitutional Court in order that the referring court may dispose of the dispute before it.  In this regard, BARON JA in Mandirwhe vs Minister of State 1986(1) ZLR 1 (S) 5E-H reasoned:<br />          “The basis on which we declined to entertain this reference was that, since the         determination of the question of an alleged contravention of the                 Declaration of rights was unnecessary for the purposes of the order the learned         Judge had decided to make, it was not competent for him to refer that             question to this Court.”</p> <p>In order to find that the question that is raised is one that is relevant for the resolution of the main dispute between the parties, the court has to be informed by findings of fact.  It is from those findings that the court will consider whether the question raised is consistent with the proven facts. In referring the questions to this Court without following the procedure laid out above, the court a quo grossly misdirected itself.</p> <p>[21]    The question referred therefore had no bearing on the dispute that stood to be resolved between the parties in the magistrates’ court. Once a dispute can be resolved without recourse to the Constitution, no constitutional questions would have arisen and the matter in that form would not be properly before the Constitutional Court. (See Magurure &amp; 63 others v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot CCZ 15/16. Berry &amp; another v Chief Immigration Officer &amp; another CCZ4/16.</p> <p>Had the magistrate considered the request for referral properly, she would have found that for these reasons, such request was frivolous and vexatious.</p> <p>[21]     After all is considered, I find that the magistrate grossly misdirected herself in acceding to the request for referral. The referral is therefore not properly before this Court.</p> <p>    In the result, I make the following order:<br /> The matter be and is hereby struck off the roll.</p> <p>     CHIDYAUSIKU CJ:        I agree</p> <p>    MALABA   DCJ:            I agree</p> <p>    ZIYAMBI JCC:            I agree</p> <p>    GARWE JCC:            I agree</p> <p>    GOWORA JCC:            I agree</p> <p>    HLATSHWAYO JCC:        I agree</p> <p>    PATEL JCC:                I agree</p> <p>    GUVAVA JCC:            I agree</p> <p>Maunga Maanda &amp; Associates applicants’ legal practitioners<br /> Takaidza &amp; Mubata 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/constitutional-court-zimbabwe/2019/2/2019-zwcc-02.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=42144">2019-zwcc-02.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/constitutional-court-zimbabwe/2019/2/2019-zwcc-02.pdf" type="application/pdf; length=277117">2019-zwcc-02.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/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/magistrates-court-see-magistrates-court">Magistrates court See MAGISTRATES COURT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rules-court">Rules of court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/vexatious-proceedings-see-practice-and-procedure-abuse-process">Vexatious proceedings See PRACTICE AND PROCEDURE (Abuse of process)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/land">Land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/allocation-land-appropriated-original-owner-resettlement">allocation of land appropriated from original owner for resettlement</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/holder-offer-letter-respect-land">holder of offer letter in respect of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/occupation-former-owner-farm-or-any-part-thereof">occupation by former owner of farm or any part thereof</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interest-agricultural-land">Interest in agricultural 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/sectional-title">Sectional title</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/eviction-proceedings">Eviction proceedings</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/2006/73">Tsvangirai v Mugabe and Another ((08/05)) [2006] ZWSC 73 (13 February 2006);</a></div><div class="field-item odd"><a href="/node/84">S v Dhlamini &amp; Others (SC 240/2010) [2014] ZWCC 1 (16 March 2014);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/10">S v Yoramu &amp; 45 Others (HH 10-17 CA 648/15) [2017] ZWHHC 10 (18 January 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2016/15">Magurure &amp; 63 Others v Cargo Carriers International Hauliers (Pvt) Ltd. (SABOT) (CCZ 15/2016 CONST. APPLICATION NO. CCZ 96/2013) [2016] ZWCC 15 (16 November 2016);</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/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</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> Mon, 08 Apr 2019 05:38:29 +0000 admin 9294 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