FORRESTER ESTATE (PRIVATE) LTD
versus
BATSIRAI CHIPEMBERE
and
MUNYARADZI MUDZUDZO
and
STEWART NZVIMBO
and
SHUMBA MAKONI
and
SIXPENCE MAVHUNGA
and
BIGGIE SHAMBIRA
and
MASIMBA NYAMUZIWA
and
MISHECK NYAMUZIWA
and
MOVESS CHIDOVI
and
MR MUNDUZARA
and
THE MINISTER OF LANDS, LAND REFORM
AND RESETTLEMENT N.O.
and
THE DISTRICT ADMINISTRATOR, MAZOWE
DISTRICT N.O.
HIGH COURT OF ZIMBABWE
CHIWESHE JP
HARARE, 01 & 4 August 2011
Adv Uriri, for the applicant
I. Chihuri, for the eleventh & twelfth respondents
First respondent in person
Ninth respondent in person
CHIWESHE JP: The applicant company is the former owner of a certain piece of land known as Elsinora, situate in the Mazowe district. This property is also known as “D” section of Forrester Estate. It is common cause that this property has been acquired by the State in terms of s 16 B of the Constitution of Zimbabwe. In its founding affidavit sworn to by its Finance Director, Philimon Mugari, the applicant has averred that the property had not been acquired by the State. At the hearing of this application counsel for the respondent Advocate Uriri, conceded that the property had indeed been acquired by the State and that contrary to averments in the founding affidavit, the applicant is not challenging the act of acquisition. To all intents and purposes therefore the property is gazetted land whose ownership now vests in the State.
Consequent upon its acquisition by the State, first to tenth respondents have now been resettled at the property, being holders of offer letters. They took occupation of their pieces of land on 15 July 2011. The applicant however, remains in occupation of the same property and, needess to say, has clashed with first to tenth respondents for possession and use of the property.
The applicant avers that first to tenth respondents, on the encouragement of eleventh and twelfth respondents, have committed acts of spoliation by occupying the property without its consent and without a court order. Further, the applicant avers in its papers that this property in any event, is the subject of a bilateral investment agreement between the Government of Zimbabwe and the Federal Republic of Germany in terms of which agreement the property is protected from expropriation. The applicant has in terms of the agreement contested the acquisition of this property at the International Centre for Settlement of Disputes (ICSID) established in terms of s 2 of the Arbitration (International Investment Disputes) Act [Cap 7:03]. The arbitration is still pending having commenced in October 2010. According to the applicant, the Government of Zimbabwe is bound in terms of s 10 of that Act and therefore the actions of the eleventh and twelfth respondents in encouraging the settlement of the first to the tenth respondents on the property “are tantamount to the pursuit of parallel remedies by the Government, when the international arbitration proceedings are still pending.”
For these reasons the applicant seeks the eviction of the first to tenth respondents on the basis of spoliation or alternatively on the basis that it is impermissible at law for the Government to resettle these respondents whilst at the same time submitting itself to international arbitration proceedings wherein the acquisition of the property is being challenged.
The respondents oppose the grant of this application. Mr Chihuri, representing eleventh and twelfth respondents, raised three preliminary issues. Firstly Mr Chihuri, argues that the question of spoliation has been settled by the decision of the Supreme Court in Commercial Farmers Union and 9 others vs The Minister of Lands and rural Resettlement and 6 ors SC 31/10. I agree with Mr Chihuri that indeed the issue has been settled. In that land mark judgment at p 25 to 26, the learned Chief Justice had this to say:
“It was submitted that some of the individual applicants and other former owners or occupiers of acquired land have court orders issued by the Magistrates Courts and the High Court authorising their occupation of acquired land after the prescribed period. If such orders were issued, they would have the effect of authorising the doing of something that parliament has decreed should not be done. This court, or any other court for that matter, has no jurisdiction to authorise the doing of that which parliament has decreed would constitute a criminal offence. Put differently, a court of law cannot authorise an individual to commit a criminal offence. It was submitted that the orders were issued in spoliation proceedings. Spoliation proceedings cannot confer jurisdiction where none exists. A court of law has no jurisdiction to authorise the commission of a criminal offence. In any event, spoliation is a common law remedy which cannot override the will of Parliament. A common law remedy cannot render nugatory an Act of Parliament.
Apart from this, there is the principle that a litigant who is acting in open defiance of the law cannot approach a court for assistance. See Associated Newspapers of Zimbabwe (Private) Limited vs the Minister of State for Information and Publicity and Ors SC 111/04.
Indeed if this point had been raised as a preliminary point, the probabilities are that this application would have been dismissed on that point alone. A former owner who is in occupation of acquired land in open defiance of the law cannot approach the courts for assistance.”
With regards land covered by bilateral agreements, (BIPPA) the learned Chief Justice at p 17 of the cyclostyled judgment had this to say:
“The effect of s 16 B of the Constitution is that it renders agricultural land occupied under Bilateral Investment Protection Agreements (BIPPAs) liable to compulsory acquisition if the acquiring authority considers that it is required for resettlement purposes or any other purpose as prescribed under s 16 B (2) (a) (iii) of the Constitution.”
The parties have submitted to international arbitration. For that reason the applicant avers that the respondents must cease all activities pursuant to acquisition including the issuance of offer letters, and the take up of land by the beneficiaries. Arbitration is taking place after acquisition in terms of the Constitution. The balance of convenience clearly favours the State. In any event Article 4 (2) of the bilateral agreement permits compulsory acquisition against the payment of compensation. It reads in part:
“(2) Investments by nationals or companies of either contracting party shall not be expropriated, nationalised or subjected to any other measure the effect of which would be tantamount to expropriation or nationalisation in the territory of the other contracting party except for a public purpose and against prompt, adequate and effective compensation.”
It is unlikely that a reasonable arbitrator would interpret this agreement differently.
For these reasons I would dismiss the application with costs
Wintertons, the applicant’s legal practitioners
Civil Division of the Attorney General’s office, eleventh & twelfth respondents’ legal practitioners