FORRESTER ESTATE (PVT) LTD

versus

DANIEL CHIRUME

HIGH COURT OF ZIMBABWE

CHIWESHE JP

HARARE, 9 November 2010 and 23 February 2011

P.C. Paul,for the applicant

CHIWESHE JP:  In this urgent chamber application the applicant seeks a provisional order in the following terms:

          “1.   TERMS OF FINAL ORDER SOUGHT

1. The provisional order be and is hereby confirmed
2. That the respondent shall pay costs of suit.

1. INTERIM RELIEF GRANTED

A “Mandament van spolie” be and is hereby granted restoring the “status quo ante” which prevailed prior to the 1^stOctober 2010 to the respondent’s occupation of a piece of land known as Elsinora, situate in the district of Mazowe, and that such restoration be achieved by the eviction of the respondent, his possessions and all persons holding through him from the property in question.

1. SERVICE OF ORDER

That service of this order be effected by the applicant’s legal practitioners or the Deputy Sheriff / Messenger of Court on the respondent.”

The founding affidavit is sworn to by Duncan Hamilton, a director of the applicant company.   The affidavit is to the following effect.

            The applicant is a company duly incorporated and registered in terms of the laws of Zimbabwe.  It carries out its farming operations at Forrester Farm, Mvurwi.  The farm is demarcated into several sections.  The applicant’s majority shareholders are German nationals whose investment is protected by a “Bilateral Investments Promotion and Protection Agreement (BIPPA), which was signed by the Governments of Zimbabwe and Germany on 29 September 1995.

            On 1 October 2010, the respondent forcibly occupied the D section of Forrester Farm on the strength of an offer letter.  D section is also referred to as Elsinora.  This occupation took place without the applicant’s consent or court order.  Prior to the occupation the applicant was in peaceful and undisturbed possession of the property.  The applicant informed the respondent that the property had not been acquired by the Government, a fact which had been confirmed by several judgments of this honourable court between 2002 and 2009.  The applicant reported this matter to the police who, acting on the instructions of the District Administrator, declined to intervene.  For that reason, there was no remedy readily available to the applicant hence this application for a spoliation order.  The applicant says that assuming the respondent has an offer letter, such does not entitle him to take the law into his own hands and occupy its property without its consent or court order.

            It is necessary to resolve three issues that are central to this application.  The first issue is whether the property in question has been acquired by the State.  The applicant is adamant that the property has not been acquired by the State.  In this regard the applicant has relied on various judgments of this court in which it has been consistently held that the purported acquisition of the property through a notice issued in terms of s 5 and orders issued in terms of s 8 of the Land Acquisition Act [Cap 20:10] are in contravention of the BIPPA signed between Zimbabwe and Germany on 29 September 1995 and therefore of no legal force or effect.  (See Forrester Estate & 10 ors vs The Minister of Lands Agriculture and Rural Resettlement and 8 ors HC 8592/02, Forrester Estate vs L. Mufandaedza and 2 ors, HC 7030/06, Forrester Estate vs Z. Mereki, HC 6116/07 and Forrester Estate vs Lovemore Makunun’unu, HC 6586/07)   

            I invited the Minister of Lands and his officials to make submissions on this issue (in any event the Minister should have been cited as a party to this application on account of his obvious interest).  Miss Mnangagwa, a law officer in that ministry, submitted a written response dated 2 November 2010, stating that the property was acquired in terms of the Constitution of Zimbabwe Amendment (No 17) Act, 2005.  This amendment created s 16 B of the Constitution, subsection (2) (a) of which provides:-

“(a)  all agricultural land –

1. that was identified on or before the 8^thJuly, 2005, in the Gazette or Gazette Extraordinary under section 5 (1) of the Land Acquisition Act [Cap 20:10], and which is itemized in schedule 7, being agricultural land required for resettlement purposes, or
2. that is identified after the 8^thJuly 2005, but before the appointed day, in the Gazette or Gazette Extraordinary under section 5 (I) of the Land Acquisition Act [Cap 20:10], being agricultural land required for resettlement purposes; or
3. that is identified in terms of this section by the acquiring authority after the appointed day in the Gazette or Gazette Extraordinary for whatever purpose, including, but not limited to –
   1. settlement for agricultural or other purposes; or
   2. the purposes of land reorganization, forestry, environmental conservation or the utilization of wild life or other natural resources; or
   3. the relocation of persons dispossessed in consequence of the utilization of land for a purpose referred  to in subparagraph A or B;

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

(b)………………………………………..”

            Ms Mnangagwa has indicated that Elsinora Farm of Umvukwe Estate appears in schedule 7 under General Notice Number 50A of 2001.  A perusal of the General Notice Number 50 A of 2001 will show the present property described at entry number 41 of the schedule thereto as follows:-

“41 Deed of Transfer 1828/42, registered in the name of Forrester Estate Limited in respect of certain piece of land situate in the district of Mazowe, being Elsinora of Umvukwe Estate, measuring  one thousand six hundred and eighty – seven comma one three five (1687,135) morgen.”

            I am satisfied that this description refers to the property under consideration. I conclude therefore that this property is “gazetted land” acquired in terms of 16 B of the Constitution.

            The second issue is whether the acquisition is in breach of the BIPPA and, if so, whether it is of no legal force or effect by virtue of such breach?  I am precluded from making any determination in this regard by virtue of the provisions of s 16 B (3) (a) of the Constitution which provide in part as follows:-

“(3) …………………………., that is to say, a person having any right or interest

       in the land –

1. shall not apply to a court to challenge the acquisition  of the land by the State, and no court shall entertain any such challenge.”

The intention of the legislature has been expressed in such clear and unambiguous language.  The jurisdiction of the courts in this regard has been ousted by the provisions of s 16B (3) (a) of the Constitution.  The applicants are precluded from challenging the acquisition of the property in court and the court is in turn precluded from entertaining any such challenge.  See Mike Campbell (Pvt) Ltd and ors vs Minister of National Security Responsible for Land, Land Reform and Resettlement and anor SC 49/07 where MALABA JA (as he then was) said at pp 36 – 38

“By the clear and unambiguous language of s 16 B (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 16 B (2) (a) of the Constitution could have been sought.”

            In addition s 16 B contains a “non abstante” clause.  In Commercial Farmers Union and ors vs Minister of Lands and Rural Resettlement and ors SC 31/10 CHIDYAUSIKU CJ at p 10 of the cyclostyled judgment had this to say:

“Consequently s 16 B prevails over all other sections of the Declaration of Rights provisions of the constitution.  All other sections in the Declaration of Rights or Chapter III of the Constitution are subject to section 16 B of the Constitution.  In other words, any rights conferred on anybody in terms of the Declaration of Rights or Chapter III of the Constitution can be derogated in terms of section 16 B of the Constitution.  Such derogation would not constitute a violation of the Constitution.  In terms of section 16 B of the Constitution, a litigant cannot successfully contend that the acquisition of his or her land is unlawful because it violates a right conferred on the litigant in terms of the Declaration of Rights contained in Chapter III of the Constitution.”  

And at p 17 of the same judgment the learned Chief Justice went on to say,

 “The effect of s 16 B of the Constitution is that it renders agricultural land occupied under Bilateral Investment Protection Agreements (BIPAs) liable to compulsory acquisition if the acquiring authority considers that it is required for resettlement purpose as prescribed under s 16 B (2) (a) (iii)”

            It is clear to me that the present property is subject to a BIPA but capable of proper and lawful acquisition in terms of s 16 B of the constitution.  I hold that the State has duly acquired this property and that the applicants no longer have any rights to it.

            I conclude with the third issue, that is, what is the legal import of an offer letter?  An offer letter confers on its holder the authority to occupy and utilize the piece of State land that it refers to.  In the Commercial Farmers Union case supra it was stated at p 28 as follows:

“(6) A permit, an offer letter and a land settlement lease are valid legal documents when issued by the acquiring authority in terms of s 2 of the Act and s 8 of the Land Settlement Act.  The holder of such permit, offer letter or land settlement lease has the legal right to occupy and use the land allocated to him or her in terms of the permit, offer letter or land settlement lease.”

            It follows, therefore, that the right to occupy and utilize gazetted land vests in the holder of the offer letter, permit or lease.  A former owner or occupier who does not hold such offer letter, permit or lease ceases to have any such right at the expiration of the prescribed period.  The applicant thus no longer has any right to occupy this property.  The applicant must vacate the farm to give vacant possession to the respondent who holds an offer letter in respect of that piece of land.  Failure to vacate renders the applicant liable to prosecution and, upon conviction, to eviction.  The respondent and or the Acquiring Authority may also sue for the eviction of the applicant. In the Commercial Farmers Union casesupra it was said at p 29 under subheading 8 that

“(8) While s 3 (5) of the Act confers on a criminal court the power to issue an eviction order against a convicted person, it does not take away the Minister’s right or the right of the holder of an offer letter, permit or land settlement lease to commence eviction proceedings against a former owner or occupier who refuses to vacate the acquired land.  The holder of an offer letter, permit or land settlement lease has a clear right, derived from an Act of Parliament, to take occupation of acquired land allocated to him or her in terms of the offer letter, permit or land settlement lease.  No doubt the Legislature conferred on the holder of an offer letter, permit or land settlement lease the “locus standi”, independent of the minister, to sue for the eviction of any illegal occupier of land allocated to him or her in terms of the offer letter, permit or land settlement lease.”

            In the same judgment it was stated that the holder of an offer letter cannot take the law into his or her hands and resort to self help.  He or she has to obtain a court order for the eviction of any illegal occupier who refuses to vacate the land allocated to him or her in terms of an offer letter, permit or lease.

            Clearly the applicant is in defiance of the law by its continued occupation of land it is required to vacate.  Its claim to possession is vitiated by the law.  It is liable to prosecution for illegally occupying State land.  Until and unless it has complied with the law its hands are dirty.  It cannot approach the courts for relief. In any event to grant the relief that the applicant seeks would be tantamount to aiding and abetting an illegality.

            It was for these reasons that I dismissed the application with costs.

Wintertons applicant’s legal practitioners