LEON GEOFFRY HEATHCOTE

versus

MP MATONGO

and

MINISTER OF LANDS AND RURAL RESETTLEMENT

 

 

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE11^thFebruary 2011 and 17^thFebruary 2011.

 

 

MrOchieng, for the applicant

MrMatongo, in person

MrMumbengegwi, for the respondent

 

Urgent Chamber Application

 

BHUNU J: The applicant and the first respondent are engaged in a vicious scramble over the right to occupy the Remainder of Lot 19 of Umsungwe Block measuring 69. 5113 hectares situate in the district of Gweru in the Midlands province. While the description of that land varies, its identity is not in dispute.

The applicant claims the right to occupation on the basis of an offer letter issued to him by the acquiring authority on 10^thof November 2006 and a permit issued to him by a Dairy officer on 6 May 2010. He now seeks the ejectment of the first respondent from the disputed land on the basis of spoliation.

On the other hand the first respondent resists ejectment on the basis of an offer letter issued to him by the acquiring authority dated 20 December 2010.

As both parties’ competing rights for possession of the land in dispute is premised on the validity of official documents it is necessary to scrutinize and look into the validity of those documents.

The applicant is the previous owner of Lyndene Farm comprising five contiguous pieces of land totaling approximately 390 hectares in extent namely Lots 18, 19, 20 and 29 of Umsungwe Block and Lots 27 and 28 of Wildebeeste.

 

It is common cause that Lot 19 of Umsungwe Block was lawfully acquired by the acquiring authority on 17 December 2010.

The background to this land dispute is that on 4 November 2005 the applicant applied for land to continue carrying out his dairy farming on Lyndene Farm. The letter reads in part:

 

“Dear Sir,

 

LYNDENE FARM: APPLICATION FOR A LEASE (TO CONTINUE DAIRY FARMING)

 

I kindly wish to apply for a lease on Lyndene Farm plots so that I can continue and expand my dairy farming.

 

Property description; LYNDENE FARM OF UMSUNGWE BLOCK, GWERU.

 

            Total Farm Size:          390.9139 Hectares      (below Region 3 of 500 hctrs)

           

            Which consists of the following lots:

 

Lot 18 Umsungwe block                    74.3443 hectares

Lot19 Umsungwe block                    69.5113 hectares

Lot20 Umsungwe Block                    74.3443 hectares

Lot27 & 26 Umsungwe Block           132.2425 hectares

Lot29 Umsungwe Block                    40.4705 hectares.”

 

The applicant’s application to be allocated the above Lots comprising the whole of Lyndene Farm was partially successful in that on 10^th November 2006 the acquiring authority issued him with an offer letter authorizing him to farm on subdivisions 18, 27,28 and 29 of Wildebeeste.

 

The offer letter reads in part:

 

‘Ref: LLRR 704

To: LG Heathcote                                                     Date    10-Nov-06

       29-115138N-N-00

 

Dear Sir/Madam

 

Re: OFFER OF LAND HOLDING UNDER THE LAND REFORM AND RESETTLEMENT PROGRAMME (MODEL A2 PHASE II.

 

1. 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.”

 

1. You are offered Subdivision Whole of S/D 18, 27, 28 AND 29 OF WHILDEBEESTE in GWERU District of        MIDLANDS PROVINCE for agricultural purposes. The farm is approximately 389.35 in extent.

 

1. The offer is made in terms of the Agricultural Land Settlement Act [Cap 20:01] whose provisions you are advised to acquaint yourself with. Conditions which go with the offer are attached.”

 

It is clear that the acquiring authority did not offer Lot 19 of Umsungwe Block to the applicant. The applicant’s averments under para 8.3 to the effect that Lot 19 of Umsungwe Block was allocated to him in terms of the above offer letter are therefore false and misleading. In fact the offer letter upon which he relies makes no mention of Lot 19 of Umsungwe Block at all. It appears to me that the applicant is merely attempting to fasten onto a patent error in the description of the size of the land offered to him to claim possession of the whole farm including plots not allocated to him by the acquiring authority.

In any case, the acquiring authority had no right to allocate or offer that piece of land to anyone as at 10 November, 2006 because as at that date the land had not been acquired. Thus even if I were to assume for one moment that the acquiring authority offered that land to the applicant as he claims, the offer would have been a legal nullity and of no force or effect.

The mere fact that the applicant expressly applied for that piece of land and it was not offered to him means that his application to possess or lease the disputed land was consciously rejected by the acquiring authority.

On the contrary, that piece of land was lawfully acquired on 17 December 2010 and validly offered to the first respondent in terms of the offer letter dated 20 December 2010. It reads in part as follows:

 

‘Ref: LLRR 704                                                                    DATE             20-Dec-

To: M P          MATONGO

       29-007118AA-A-77

       44 MASAWU CLOSE TWINS LAKES PARK

        NORTON

 

 

Dear Sir/Madam

 

Re: OFFER OF LAND HOLDING UNDER THE LAND REFORM AND RESETTLEMENT PROGRAMME (MODEL A2 PHASE II.

 

1. 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.

 

1. You are offered Subdivision WHOLE of REM OF LOT 19 UMSUNGWE BLOCK in GWERU            District of MIDLANDS PROVINCE  for agricultural purposes. The farm is approximately  69.5113    hectares           in extent.

 

1. The offer is made in terms of the Agricultural Land Settlement Act [Cap 20:01] whose provisions you are advised to acquaint yourself with. Conditions.”

 

Having realized at the hearing that his offer letter does not give him any rights or entitlement over the land in dispute the applicant sought to rely on a certificate of registration authorizing him to carry out dairy farming on Lyndene Farm.

 

The certificate reads:

 

‘DAIRY ACT (CHAPTER 18.08)

 

CERTIFICATE OF REGISTRATION

 

                                                   Part 1V

 

Original date of registration: 11/01/1965                 No GWE 042704 /10

 

THIS IS TO CERTIFY that the premises situated on LYNDENE FARM in the area of GWERU, MDLANDS PROVINCE have been duly registered by the Dairy Officer as a Farm Dairy in the name of LYNDENE FARM and authority is hereby given to Mr. L. G. HEATHCOTE to use the said premises for this purpose.

 

This certificate is issued subject to the provisions of the Dairy Act (Chapter 18.08) and the regulations for the time being in force thereunder, shall, as therein provided expire, unless previously cancelled on the 27^th of APRIL 2012.

 

 

 

Dated in Bulawayo this 06^th day of MAY 2010

 

 

 

 

Issued by Gwezuva K                                                  …………………………………

 (Regional Dairy Officer)                                                     Signed”

 

 

It is pertinent to note that the above permit or certificate does not relate to LOT 19 OF UMSUNGWE BLOCK which was offered to the 1^strespondent but to premises on LYNDENE FARM.

 

            In the context of s 27 of the Dairy Act the word premises is not synonymous with farm or land, it relates only to land used as part and parcel of a building used for the manufacturing, processing or sale of dairy products. Section 2 of the Act defines dairy premises as;

 

“Any premises occupied and used for the production, storage, supply, sale or treatment of   dairy produce but does not include premises—

 

(a)        Where, in the course of a business, food is prepared and supplied for immediate consumption on the premises; or

(b)        Used as a club, garage, shop or place of amusement or entertainment”

 

In the circumstances the applicant cannot extent the registration certificate to cover the whole farm for the purpose of allocating to himself land that has not been offered to him by the acquiring authority.

Even if I was to assume for one moment that the certificate of registration or permit relates to the land in dispute, that will still not take the applicant’s case any further. This is for the simple but good reason that the applicant automatically lost all his rights and entitlement in the land by operation of law including the right to carry out dairy farming on the land when it was acquired on 17 December 2010 in terms of s 8 (3) of the Land Acquisition Act [Cap  2010]. The only residual rights relate to the prescribed time limits in terms of that Act to enable the applicant to wind up his business and vacate the acquired land.

 

Looked at differently, the dairy officer is not the acquiring authority.

 

Consequently, he had no right to allocate any land. By authorizing the applicant to carryout dairy business on the premises until April 2012 the dairy officer was not allocating any land to the applicant. This was a mere administrative measure to facilitate the operation of dairy business on the land.

The applicant is the holder of a Part IV permit or registration certificate issued by

a dairy officer. Section 27 of the Dairy Act however provides that such a permit or certificate of registration can only be issued by the Chief dairy officer or local authority. The section provides that:

 

“27. Dairies, depots, and ice-cream factories to be registered

           

1. No person shall use any premises as:-
   1. a farm butter dairy; or
   2. a farm cheese dairy; or
   3. a farm dairy; or
   4. an ice-cream factory; or
   5. milk dairy; or
   6. a milk depot;

 

Unless he holds a Part 1V registration certificate which-

1. has been issued in respect of the premises; and
2. is not suspended in terms of subsection twenty-eight .

 

1. subject to this section, if the premises referred to in subsection (1) are-
   1. situated within the area of a local authority, registration thereof shall be effected with the local authority;

or

(b) situated outside the area of a local authority, registration thereof shall be effected with the Chief dairy officer.”

 

 

The Dairy officer or the Regional Dairy officer was therefore acting ultra vires his powers by issuing the Part 1V registration certificate when it was not his function to do so.

 The certificate of registration which forms the basis of the applicant’s claim to possession of the disputed land is therefore, a legal nullity and to that .extent of no force or effect.

 

On 15 December 2011 I issued a consent order under Case No. HC 7992/2010 in the following terms:

 

    “1.   That it be and is hereby declared that the remaining extent of Lot 19 of the Umsungwe Block in the district of Gwelo, (Now Gweru) measuring 69.5113 hectares held under deed of transfer 9990/66 (“the property”) up until 26^thNovember, 2010 was owned by applicant.

1. That it be and is hereby declared that first respondent’s summary entry, occupation and use of the property is unlawful having been occasioned without due process and amounts to spoliation.
2. The parties hereto, hereby acknowledge and accept that first respondent established a maize crop on a portion of the property and notwithstanding the provisions of para 2, applicant shall allow first respondent and his employees/ representatives there present to at all reasonable times have reasonable access to the said crop for the purposes of maintenance which access shall continue up to the harvesting of such crop, subject further to the understanding and undertaking that there shall be no acts of intimidation and interference to applicant, employees and representatives and reciprocally by applicants, first respondent and his representatives/employees

 

Further in addition, the applicant and his representatives/employees and first respondent and his representatives/employees shall during the currency of this order do all that is reasonable, necessary and practicable to ensure that the first respondent’s integrity to the crop shall be maintained.

1. That first respondent’s employees/representatives who have de facto established temporary accommodation being a wooden cabin/and toilet on the property shall pursuant to the provisions of para 3 be entitled to continue to reside in such structures without interference until such time as the maize crop has been harvested and further subject to the provisions of law.
2. That there be no order as to costs.”

 

The above consent order was premised on the fact that as at the date of the order the applicant was deemed to be the lawful owner of the disputed land because first respondent’s possession of the land was based on what appeared to be a defective offer letter as the land had not been lawfully acquired.

Now that the land has been lawfully acquired and the first respondent is now in possession of a valid offer letter my order of the 15^thDecember 2010 has since been overtaken by events. The applicant’s occupation can no longer be said to be unlawful when he is now armed with a valid offer letter entitling him to take occupation of the disputed land according to law.

 

At this hearing we were told that the initial 45 day period had expired thereby confining the applicant to the principal dwelling premises. That turn of events renders his continued occupation of the rest of the farm except the dwelling premises unlawful. His continued occupation of the rest of the disputed land in defiance of the law amounts to criminal conduct. In the circumstances, the Court cannot come to his aid without being guilty of complicity in the crime. That eventuality has also deprived him of his locus stand to challenge the first respondent’s occupation of the land in the courts

In the words of CHIDYAUSIKU CJ in the recent case of Commercial Farmers Union and Nine Others v The Minister of Lands and Rural Resettlement and Five Others. SC 31 /10 at p 25 of his cyclostyled judgment:

 

“This Court or any other court for that matter has no jurisdiction to authorize the doing of that which Parliament has decreed would constitute a criminal offence. Put differently a Court of law cannot authorize an individual to commit a criminal offence”

 

I am in respectful concurrence with the learned Chief Justice’s observation in this respect. In the case of Top Crop (1976) (Pvt) Ltd and Malcolm William Clerk v Minister of lands and Land Reform and Yvonne Samukeliso Gumede HH 74/09 I had reached the same conclusion though the High Court was divided over the issue at the time. Hopefully the matter has now been put to rest by the highest Court of the land.

While the applicant is entitled to protection during the unexpired portion of his stay in the principal dwelling house, the issue of whether or not his rights in this respect have been violated is mired in serious factual controversy such that the dispute is incapable of resolution on the papers. The applicant can however; still take the necessary legal action if the conduct complained of persists.

The first respondent has also complained that the applicant is in the habit of making false police reports against his employees in order to flush them out from the disputed land. In the Commercial Farmers Union case (supra) the Learned Chief Justice warned law enforcement agents and the courts against being used by unscrupulous complainants to facilitate the defiance of the law and commission of a crime. Hopefully the police and the courts will take heed. I also observe in passing that making a false report to the police constitutes a criminal offence. The police must take appropriate action to forestall such criminal conduct.

The rule of law entails the due observance and obedience of the law regardless of whether or not one agrees with that law. No matter how much one may detest the law every law abiding subject is bound to obey that law. One cannot seek the due protection of the law in circumstances where he is in open defiance of the same law.

In the result the applicant’s application for a spoliation order can only fail

 

It is accordingly ordered that the application for a spoliation order be and is hereby dismissed with costs.

 

 

 

 

Gollop and Blank, applicant’s legal practitioners

The 1^strespondent appeared in person

The Attorney-General’s Office, respondent’s legal practitioners