1

HH 768-15

HC 915/15

Ref HC 2070/15

NAVAL PHASE FARMING (PRIVATE) LIMITED

and

BEACH FARMS (PRIVATE) LIMITED

and

TAWANDA NYAMBIRAI

versus

MINISTER OF LANDS AND RURAL RESETTLEMENT

and

BERNARD MAKOKOVE

and

STEPHEN CHIURAYI

and

MALVERN DZVAIRO

 

 

HIGH COURT OF ZIMBABWE

CHIGUMBA J

HARARE, 16 July 2015, 30 September 2015

 

 

 

Opposed Application

 

 

 

H Nkomo, for the 1st and 2nd applicants

T Nyambirai, in person

P Kapasura, for the 1st respondent

D Ochieng, for the 2nd, 3rd and 4th respondents

 

CHIGUMBA J:  This is a court application in which the applicants seek the following relief;

“That it be declared that;

1. The purported acquisition of Duncanston, Kopje Alleen, the Beach and Rusfontein by the 1st respondent is invalid.
2. The occupation of Kopje Alleen, the Beach and Rusfontein by the respondents and all those claiming title through them is illegal.

That it be ordered that;

1. The respondents and all those claiming title through them be ejected from Kopje Alleen, the Beach and Rusfontein.
2. The respondents jointly and severally the one paying the others to be absolved, pay the costs of suit.”

 

This is a case whose circumstances present the proverbial can of worms or Pandora’s Box scenario, which nevertheless must be opened, examined, and adjudicated upon, in the interests of justice. The question that is exercising the mind of the court is this; in what instances would it be proper for this court to exercise its jurisdiction of judicial review and consider whether, agricultural land which was purportedly identified in terms of the Land Acquisition Act [Chapter 20:10] and subsequently listed in Schedule 7 of the former Constitution in terms of s 16 B of Constitutional Amendment number 17 of 2005, was acquired lawfully, ten years after such ‘identification, listing and acquisition’.  An unavoidable offshoot of this question is whether, the purpose of the land reform programme in Zimbabwe is  to take away agricultural land from Zimbabweans of white descent and redistribute it to Zimbabweans of black descent, as part of the government of the day’s ‘indegenisation’ policy. Put differently, can a Zimbabwean citizen of black descent challenge the acquisition of agricultural land which belongs to him/her on the basis that such acquisition would be contrary to the indegenisation policy whereby the purpose of the land reform programme was to correct historical imbalances created by colonialism? Does the correction of such historical imbalances preclude the acquisition of agricultural land which is owned by a black Zimbabwean for redistribution to other black Zimbabweans?

The background facts to this dispute are as follows; the first and second applicants are companies which are duly registered in accordance with the laws of Zimbabwe. The third applicant became their managing director and principal shareholder on 16 February 1999. Third applicant avers in the founding affidavit to this application that; he acquired the entire issued share capital of second applicant on 21 September 2000 from Jacobus Erasmus Junior. The relevant paperwork was only filed with the registrar of companies on 27 May 2002. First respondent is the authority that purported to acquire Kopje Alleen and the Beach farms which are situate in the district of Charter and held by the second applicant under Deed of Transfer 4913/84, and Rusfontein Farm held by JJ Erasmus that first applicant had purchased, was occupying, but had not yet taken ownership of. First respondent subsequently authorized the second – fourth respondents to settle on the farms.

               Third applicant acquired shares in the second applicant, and Kopje Alleen and the Beach farms, and all the moveable assets thereon through two agreements dated 21 September 2000. The first agreement, annexure “I’, to the founding affidavit, states that 100 ordinary shares of 1usd each constituting the entire issued share capital of second applicant were sold, in the sum of USD$6 000 000-00 six million dollars, to the purchaser, second applicant. Risk and profit in the shares was to pass to the purchaser, third applicant, on the date on which payment was made in full (clause 2). Vacant possession to the property was to be given to the third applicant on the date of transfer, provided that a certificate of no present interest had been obtained from the government without which the agreement was to have no force or effect. The title deeds and the share certificates were to be handed over to the third applicant on full payment of the purchase price, or as otherwise agreed.

Annexure “J” to the founding affidavit is an agreement of sale entered into between Jakarta Contractors Private Limited, as represented by JJ Erasmus, and third applicant, on 21 September 2000. It was for the sale of the movable assets belonging to the second applicant for the sum of USD$8 500 000-00, eight million five hundred thousand dollars. Risk and profit was to pass to the third applicant upon payment of the full purchase price. On 11 September 2000, an application for a certificate of no present interest was made to the then Ministry of Lands and Water Development in respect of Kopje Alleen and the Beach Farms. It is common cause that on 21 September 2000, when the agreements to sell Kopje Alleen and the Beach farms were entered into, no certificate  had been issued, but the agreement of sale was conditional upon such a certificate being secured.

            On 25 October 2001, an agreement was entered into between first applicant and JJ Erasmus in respect of Rusfontein farm, situate in the district of Charter, and held under Deed of Transfer 178c/04. First  applicant was appointed as sole manager for ‘managing and supervising the property as it deems fit in its sole discretion’. As security deposit for the faithful performance of its duties in terms of the agreement, first applicant agreed to pay seven million dollars, by 31 January 2002, to the owner of Rusfontein, plus an additional sum of forty thousand dollars per month from 31 September 2001 to 31 January 2002. As remuneration for its services, first applicant was to be entitled to exclusive occupation and use of Rusfontein farm for its benefit in any manner it deemed fit. The agreement between the parties was to ‘subsist indefinitely and not be terminated by the owner’. First applicant was granted an option to purchase the farm in the event of the farm being removed from the list of designated rural land (clause 8.1) The owner of the farm undertook to obtain a certificate of no present interest in that event.  It was agreed that in the event of the farm being acquired, any compensation payable to the owner in terms of the act would be paid to first applicant.

First applicant attached copies of mortgage bonds, to buttress the averment made that he financed the acquisition of these farms from his own resources supplemented by loans in the sum of ten million dollars USD$10 000 000-00 that he got from NMB Bank which had ballooned to USD$39 997 367-00 due to high interest rates by 9 July 2002. A mortgage bond, continuing covering security was passed by the second applicant in favor of NMB bank under MB692/2001, for the sum of ten million dollars (record page55-63). Mr. Firimon Mvarume, who was employed by NMB Bank at the material time, deposed to an affidavit in which he confirmed that the third applicant obtained a facility from the bank for the purchase of the second applicant, which owned The Beach Farm and Kopje Alleen. He confirmed that the bank was in possession of the title deeds to the two farms, as of 6 March 2002. Mr F. Zimuto, an executive director of NMB Bank confirmed in a letter dated 6 July 2002, that the bank financed the third applicant to purchase Duncanston farm which was registered in the name of the first applicant under deed of transfer 621/2000, and Kopje Alleen and the Beach, held under DT 4913/84. The bank held title deeds to all three farms and had registered mortgage bonds over the title deeds.

            The third applicant gave details of the alleged unlawful removal of all those claiming title from the applicants, at record pp 7-9. The allegations included averments of being tortured, terrorized and kidnapped. The same allegations appear in the founding affidavit to the urgent application for an interdict which was filed by the applicants under case number HC1180A/2002. It is common cause that a provisional order was granted by this court on 10 February 2002. The terms of that provisional order, which appears at record p 77-79, were that Bernard Makokove, the second respondent in this application, and all those acting on his behalf or his authority be interdicted from interfering with farming operations or with rights of occupation, or harassing applicant’s workers or from removing equipment, machinery or livestock from Duncanston, Kopje Alleen and Rusfontein farms pending the finalization of the matter.

            It is common cause that the first respondent applied to the Administrative court for the confirmation of the compulsory acquisition of Kopje Alleen, the Beach, Rusfontein and Duncanston farms which were all owned by the applicants, on 11 February 2002. It is common cause that at the time the applications for confirmation of acquisition were made, the former Vice-President of Zimbabwe, Dr.Joice Mujuru, deposed to the founding affidavits in her capacity as the acting minister of the acquiring authority at the time. The matters were heard by the Administrative court on 20 February 2003. It is common cause that the Minister of Lands (first respondent) withdrew the applications before the Administrative court, which then held that the effect of the withdrawal was to nullify the s 5 notices and s 8 orders issued in respect of the farms (record p 144-147)

            In conclusion, the third applicant averred that the current occupants of the farms are politically connected people who had state machinery at their disposal to cause kidnappings and to torture the applicants’ employees. They were connected to the late Retired General Mujuru and former Vice-President Dr. Joice Mujuru. Applicants were forced to withdraw the High Court application in which the court had granted them a provisional interdict, and they were too scared to vindicate their property until the General died and his wife was removed from office for abuse of power. The court condoned the late filing of the notice of opposition by the first respondent and uplifted the bar operating against it, and deemed the notice of opposition duly filed in terms of the rules. The contents of the first respondent’s opposing affidavit included averments that Kopje Alleen, The Beach and Rusfontein were all duly acquired in terms of the law.

            It is common cause that the preliminary notice of acquisition in respect of the Beach was published under General Notice 208-2001, on 20 April 2001, Kopje Alleen 16 November 2001, and Rusfontein on 20 October 2000 under General Notice 483g-2000, and Duncanston on 20 April 2001 under General notice 208-2001. It is common cause that all four farms were subsequently listed in schedule 7 of the former Constitution. It is also common cause that the second – fourth respondents were issued with offer letters to settle on the farms at various stages after the listing of the farms in schedule 7. First respondent avers that the second to fourth respondents are legally settled on the farms because they hold valid and authentic offer letters which constitute lawful authority to occupy the farms. Third applicant was charged with purchasing the farms without a certificate of no present interest from the government, contrary to the law in force at the material time. First respondent expressed dissatisfaction with the documents produced by the applicants, and contended that there was no proof that a sale had gone through or that title had passed to the applicants, at the time that the first respondent acquired the farms. First respondent contended that, even if it withdrew its applications for confirmation of the acquisition of the farms, such withdrawal was overtaken by the listing of the farms in schedule 7 of the former Constitution. It is common cause that the applicants are currently occupying Duncanston and the Beach farms whilst the second - fourth respondents are settled on Rushfontein and Kopje Alleen farms.

On 20 February 2015, opposing papers were filed on behalf of second - fourth respondents. Third respondent deposed to the opposing affidavit on their behalf, in which he averred that; second - fourth respondents are lawful occupants of the farms which were gazetted and lawfully acquired by the first respondent. He attached copies of General Notices number 591 of 2001 and 449 of 2004 and copies of the respondents’’ offer letters. The allegations of intimidation harassment and torture were denied. It was contended that the applicants were not entitled to the declaratory orders that they seek for the added reason that the farms in question were lawfully acquired pursuant to constitutional Amendment number 17 of 2005. The applicants’ response to the second - fourth respondents’ contentions was to reiterate their position that the purported acquisition of the farms was and remains illegal, and that the respondents resorted to self help and should be removed from the farms. I will now turn to the law, where it is proposed to deal with the question of jurisdiction first. If this court cannot found or establish its jurisdiction for dealing with this matter, then it ought not to delve into the merits of the matter.

 

The Law

1. Jurisdiction

In Campbell Private Limited & Anor v the Minister of National Security Responsible for Land, Land Reform& Resettlement & Anor[1], at page 15 of the cyclostyled judgment, the provisions of section 16B(3) of the former Constitution were set out as follows;

“(3)      The provisions  of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day and the provisions of section 18 (1) and (9) shall not apply in relation to land referred to in subsection (2)(a) except for the purpose of determining any question related to the payment of compensation referred to in subsection (2)(b), that is to say, a person having any right or interest in the land –

(a)        shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge;

(b)        may, in accordance with the provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired.

At p 17 of the judgment, the court explains to us what these provisions mean, as follows;

“Section 16B of the Constitution is a complete and self-contained code on the acquisition of privately owned agricultural land by the State for public purposes.   Its provisions relate exclusively to the acquisition of agricultural land.   By the use of the non obstante clause, “notwithstanding anything contained in this Chapter” at the beginning of subs (2) the Legislature gave the provisions of s 16B overriding effect in respect of the regulation of matters relating to the acquisition of all agricultural land identified by the acquiring authority in terms of s 16 B (2) (a).”

 

                There is merit in the contention that on a proper interpretation, section 16 B (3) of the former Constitution precludes an aggrieved party from challenging the compulsory acquisition of land on the basis of sections 16 (1), 18 (1) and 18 (9) of the former Constitution. It is my considered view however, that once agricultural land was lawfully acquired in terms of s 16 B and listed in Schedule 7, its acquisition could not be challenged by referring to the Land Acquisition Act. I am not persuaded by the argument that the ouster of the court’s jurisdiction was restricted to challenges under s 16 (1) and 18 (1), and 18 (9) ONLY. I am fortified in this view by a consideration of what the Supreme Court subsequently stated in the case of Commercial Farmers Union & Ors v The Minister of Lands & Rural Resettlement & Ors [2]at pp 10-11 of the cyclostyled judgments;

“Section 16B of the Constitution contains a non abstante clause.   Consequently s 16B 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 s 16B 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 s 16B of the Constitution.    Such derogation would not constitute a violation of the Constitution.   In terms of s 16B 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.   It follows that a litigant whose land was acquired in terms of s 16B of the Constitution cannot seek to set aside the acquisition of that land on the basis that such acquisition violated the rights conferred on the litigant by a provision contained in the Declaration of Rights or Chapter III of the Constitution, such as ss 18 and 23 of the Constitution.”

 

            The law is therefore clear, a litigant cannot challenge the acquisition of agricultural land on the basis of a perceived violation of rights conferred on the litigant by the declaration of rights in Chapter III of the former Constitution, such as ss18 and 23 of the Constitution. We cannot therefore found jurisdiction based on an alleged violation of s 23 or s 16 of the Former Constitution, or s 16 B alone. Section 16 B (3) prohibits a challenge to the acquisition of land by the state. It is my view that it is the fact of acquisition which cannot be challenged not the process of acquisition. (My underlining for emphasis) I am fortified in this view by what the Supreme Court said in Campbell (supra) at p 38;

“Section 16 B (3) of the Constitution has not however taken away for the future the right of access to the remedy of judicial review in a case where the expropriation is, on the face of the record, not in terms of s 16B(2) (a).   This is because the principle behind s 16 B (3) and s 16 B (2) (a) is that the acquisition must be on the authority of law.  The question whether an expropriation is in terms of s 16 B (2) (a) of the Constitution and therefore an acquisition within the meaning of that law is a jurisdictional question to be determined by the exercise of judicial power.   The duty of a court of law is to uphold the Constitution and the law of the land.   If the purported acquisition is, on the face of the record, not in accordance with the terms of s 16B (2) (a) of the Constitution a court is under a duty to uphold the Constitution and declare it null and void.   By no device can the Legislature withdraw from the determination by a court of justice the question whether the state of facts on the existence of which it provided that the acquisition of agricultural land must depend existed in a particular case as required by the provisions of s 16 B (2) (a) of the Constitution”.

 

             That in my view, is the basis of the jurisdiction that this court may assume to determine whether the process of the acquisition of the applicants’ farms was in accordance with the relevant law at the time, and to declare the purported acquisition null and void, if it finds that the acquisition was not in terms of s 16 B (2) (a) of the former Constitution. The question for determination is therefore whether the state of facts on the existence of which s 16 B (2) (a) provided that the acquisition of agricultural land must depend, existed, in the circumstances of this case. I will leave the question of what ‘judicial review’ of expropriation of agricultural land means, open for now. One school of thought is that it is confined to review in the narrow sense of being confined to a consideration of procedural propriety in terms of this court’s recognized grounds of review. Another school of thought is that it means an oversight of whether the set of facts which constitutes a lawful appropriation exists, in the wider sense

 

(b)  Dirty hands principle

             Applicants contend that the respondents have come before this court with dirty hands because of the interdict that was granted against the first and second respondent on 10 February 2002 under case number HC 1180A-2002. The third and fourth respondents were not a part of those proceedings. It is common cause that the interdict was granted, and subsequently withdrawn by the third applicant on behalf of the applicants. The interdict was against the first respondent and all those claiming occupation through it, as at 10 February 2002 and the second respondent. The allegation is that the respondents disregarded the interdict and forcibly dispossessed the applicants, well before the applicants withdrew the application. The rationale behind the ‘dirty hands’ principle was explained in  Deputy Sheriff, Harare v Mahleza & Anor[3], and supported in Source Net Private Limited & 3 Ors v Steward Bank Limited & Anor[4]. ‘It is a principle that people are not allowed to come to court seeking the court’s assistance if they are guilty of a lack of probity or honesty in respect of the circumstances which cause them to seek relief from the court. The kind of conduct which the court penalizes by withholding its protection is conduct involving moral obliquity, such as fraud or other forms of dishonesty’.

 It was held in that case that Mahleza had not come to court with clean hands and that if she wanted to avoid the consequences of the dishonest web she had chosen to weave, she must clean her dirty hands. We run into muddy waters when we consider the circumstances of this case and try to apply this principle to them. The first thing to note is that the respondents are not seeking the court’s assistance or protection in the same way as Mahleza was. Secondly, the evidence filed of record does not show lack of probity, or dishonesty or fraud or other forms of moral obliquity. The allegations against the second respondent were withdrawn when case number HC1180A-2002 was withdrawn. The allegations of participation in torture, harassment and kidnapping are not proved on a balance of probabilities from the papers currently filed of record. There is no order of court to be undermined. The interim order was withdrawn. There is no reason why the respondents should be non suited, in the circumstances of this case.

 

 

1. The requirements of spoliation

                The law that applies to the remedy of mandament van spolie is settled. In Nino Bonino v Delange 1906 TS 20, the general principle was stated by INNES CJ as follows:

“It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.”

 

In Dianas Farm Private Limited v Madondo N.O & Anor 1998 (2) ZLR 410 @413 the court set out the authorities as follows:

 

“The law relating to the basis on which a mandament van spolie will be granted is well settled. In  Davis v Davis 1990 (2) ZLR 136 (H) at 141 ADAM J quoted with  approval the following statement by HERBSTEIN J in Kramer v Trustees Christian Coloured Vigilance Council, Grassy Park 1948 (1) SA 748 (C) at 753:

 

“... two allegations must be made and proved, namely (a) that applicant was in peaceful and undisturbed possession of the property, and (b) that the respondent deprived him of the possession forcibly or wrongfully against his consent.”

 

 “The onus is on the applicant to prove the two essential elements set out above. Part of the second element is lack of consent. See Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79-80 and

see Bennett Pringle (Pvt) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) at 233G-H.”

 

The founding affidavit is replete with proof, on a balance of probabilities, that the applicants were in peaceful and undisturbed possession of the farms. We must determine whether the first respondent and or any of the second to fourth respondents deprived the applicants of possession forcibly, and wrongfully. The averments made by the applicants of threats, intimidation, harassment and torture were buttressed by documentary evidence of medical treatment. They were evaluated by this court and an interim interdict granted in 2002. The interim interdict was withdrawn by the applicants before its confirmation. This current application was not served on Retired General Mujuru who is deceased, or on his wife the former Vice President of Zimbabwe. They did not get an opportunity to respond to the allegations that they orchestrated the forcible removal of the applicants from their farms for political reasons. The first respondent has not responded to those allegations, and indeed cannot be expected to do so on behalf of the former Vice-President and her deceased husband. The second to fourth respondents have denied taking part in any unlawful or forcible removal of the applicants from their farms. There is no admissible evidence on record to controvert their denial. The requirements of spoliation are not proved in the papers filed of record.

            The issue that remains to be determined is whether, the first respondent, by causing the listing of the applicants’ farms in Schedule 7 of the former Constitution, did so wrongfully, such as to constitute dispossession of the applicants of their property, and to entitle them to a spoliation order. The evidence, and the law, which is discussed below, will show that, in this court’s view, the first respondent did not unlawfully or wrongfully or forcibly dispossess the applicants of their farms. Thus court is not persuaded, in light of the fact that the former Vice President of Zimbabwe and the estate of her late husband were not cited as parties to these proceedings or served with a copy of this application that the allegations against them are properly before this court. Whatever the reason for the applicants’ withdrawal of their interim interdict at the material time, (there is insufficient valid evidence for the court to make a finding on a balance of probabilities) in my view it would have been best to evaluate the allegations of intimidation and torture at the relevant time, and on notice to those accused. Attempting to rehash the allegations ten years later is a bold move, which unfortunately is not supported by the evidence which is properly before the court.

1. The requirements of a declaratur

Section 14 of the High Court Act [cap 7; 06], provides that:

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination”.

 

This is the basis of this court’s jurisdiction to issue a declaratur. It is a discretionary remedy which involves a finding by the High Court as to a person’s legal status, rights or obligations. It cannot be directly enforced. The applicants will not be able to use such a declaratur as a cause of action to evict the second - fourth respondents. The applicants must show that the second - fourth respondents do not hold valid title which authorizes them to occupy the farms in question first. Even then, it is only the first respondent, the Constitutional current holder of title in the farms, pursuant to Schedule 7 of the former Constitution, which can cancel the fourth - sixth respondent’s offer letters and offer the land to the applicants, and issue the applicants with legally recognized authority to occupy the agricultural land such as an offer letter, a permit or a land settlement lease. If the applicants persuade this court to declare that the acquisition of their farms was contrary to the stipulated procedure, they would have to approach this court again, on notice to the first respondent, for an order de-listing their farms from Schedule 7. Such an order would be subject to confirmation by the Constitutional Court, being an order which purportedly alters the former Constitution in its Schedule 7. Having been found to have fallen short of establishing the requirements of spoliation, the applicants are not entitled to restoration of the status quo ante, especially ten years later, as spoliation is by its nature, a remedy which must be granted as a matter of urgency, to discourage litigants from taking the law into their own hands. What remains to be seen is whether the applicants are entitled to the declaratur that they seek.

 

1. The Land Acquisition Act and s16B (Constitutional Amendment number 17 of 2005)

            Section 16 B (2) (a) as read with section 16 B (3) (a) of Constitutional Amendment number 17 of 2005, of the former Constitution provided that all land which had previously been identified for resettlement purposes vested in the State, will full and unchallengeable title, with effect from the effective date. The case of Chisvo & Anor v Peter & Ors[5]  is authority for this proposition, as read with Campbell (supra), and Commercial Farmers’ Union (supra). The court in Chisvo v Peter (supra) took time to expound on the procedures which governed land acquisition before s 16 B came into force, as follows;

“The procedures governing the acquisition of agricultural land for resettlement purposes are presently embodied in Part III of the Land Acquisition Act [Chapter 20:10]. To a significant extent, these procedures have been superseded by the provisions of section 16B of the Constitution of Zimbabwe. Section 16 B was promulgated and came into force on the 14th of September 2005. In terms of section 16 B (2) (a) as read with section 16 B (3) (a), all agricultural land that was previously identified for resettlement purposes vested in the State, with full and unchallengeable title therein, with effect from that date.

 

For present purposes, however, the Court is seized with events which occurred well before the enactment of section 16B of the Constitution and must therefore be guided by the relevant provisions of the Land Acquisition Act. Section 5(1) of the Act requires the acquiring authority to give a preliminary notice of its intention to acquire any land. Section 5(3) enables the acquiring authority to withdraw any such preliminary notice at any time.

 

Section 8 (1) empowers the acquiring authority to issue an acquisition order in respect of any land identified for compulsory acquisition. By virtue of section 8(3), the effect of an acquisition order is to immediately vest title of the land concerned in the acquiring authority, whether or not compensation therefor has been agreed upon, fixed or paid in terms of Part V or VA of the Act.

In terms of section 9(1) (b), the making of an acquisition order constitutes notice in writing to the owner or occupier to vacate the land within 45 days after the order is served upon him and to vacate his living quarters within 90 days of such service.

Where the acquisition of the land is challenged, section 7 (1) enjoins the acquiring authority, within 30 days of issuing the acquisition order, to apply to the Administrative Court for an order confirming the acquisition. In terms of section 7(4) (b), the Administrative Court may only confirm the acquisition of rural land if it is satisfied that the acquisition is reasonably necessary for the utilisation of that land for, inter alia, settlement for agricultural or other purposes.

Also pertinent is section 10A (1) of the Act which enables the acquiring authority to revoke an acquisition order within 6 months after making the order. In terms of section 10A (2), such revocation must be effected by notice in the Gazette, followed by written notice served on the landowner.”

                The s 5 preliminary notice of intention to acquire land was to be published in the government gazette once a week for two consecutive weeks in the area where the land was situated. It is common cause that all of the applicants’ farms had valid preliminary notices duly gazetted. It is also common because that the first respondent sought to confirm the acquisition of Kopje Alleen and Rusfontein only, and that the applications for confirmation were withdrawn before the Administrative Court, which ruled that the withdrawal rendered the s 5 and s 8 notices null and void. In terms of s 5 (2) of the Land Acquisition Act, once a preliminary notice had been published, the owner of the land was not at liberty to dispose of the land or to alienate it without the permission of the acquiring authority.

            So, on 21 September 2000 when the third applicant purported to acquire shares in second applicant, the agreement did not contravene s 5 (2) because the risk and profit passed to the third applicant only when the purchase price was paid. The evidence on record is that third applicant obtained a loan secured by a mortgage bond over the farms to pay for the acquisition of the farms sometime in 2001. It is not clear whether the purchase price was paid in full as at 2001, in light of the affidavit of Mr. Firimon Mvarume which is dated 6 March 2001, and the letter of Mr. F. Zimuto, which is dated 9 July 2002. What is clear from the papers filed of record is that, as at 9 July 2002 third applicant owed NMB Bank the sum of USD$39 997 367-00 in respect of the ‘acquisition costs of the farms and working capital’. We are not told whether the acquisition costs had been paid in full. We do know that the bank loan was secured by mortgage bonds, and that the bank had custody of the title deed to the farms. It is not clear when if at all risk and profit in second applicant passed to third applicant. The management agreement in respect of the first applicant, which appears at record p 42, presents its own special brand of problems.

            The agreement purports to appoint the first applicant, the owner of Rusfontein as its manager and supervisor on 25 October 2001, for a fee of seven million dollars and payments of US forty thousand a month from 31 September 2001 to 31 January 2002. There is no doubt whatsoever in my mind that this management agreement contravened the provisions of section 5 (2) of the Land Acquisition Act which prohibited the alienation of land which had been identified for compulsory acquisition by being gazetted. The parties hatched an elaborate plot to defeat the purpose of s 5. We know this because the parties expressly say so themselves, in their agreement. Clause 8, record p 47, the first applicant was granted an option to purchase the farm subject to the condition that; ‘in the event of the farm being removed from the list of designated rural land in terms of the act, the owner undertakes to take such steps as may be necessary to transfer the property’, to the first applicant, and in particular, to obtain a certificate of no present interest as stipulated in the regulations.

            Clause 8.4 goes on to stipulate that in the event of the farm being acquired as specified in the act, any compensation adjudged to be payable to the owner under the act or any other law shall be payable to the first applicant. The owner ceded its rights to compensation to first applicant. Although the wording of the ‘management agreement’ is clever, and on the face of it appears to comply with the provisions of s 5, it is more probable than not that it was an elaborate scheme designed to sell Rusfontein Farm to the third applicant and to cede, which is the same as alienating the rights of the owner in the farm to the third applicant, whilst delicately negotiating the legal minefield and appearing to comply with the Land Acquisition Act. Cession of rights is tantamount to alienation or disposal of rights which would have been contrary to s 5 (2) (c), in the absence of permission or consent by the acquiring authority. A look at s 11 of the agreement between the parties will show how true this is. There was to be no further exchange of remuneration when or if the option to purchase was exercised, and in the event that the farm was acquired, the first applicant was to be entitled to any compensation payable to the owner. The probabilities support the conclusion that the applicants did not have full title to the farms on the dates when the first respondent caused them to be gazzetted. The evidence is not clear as to the exact dates when applicants became vested with full rights and the title between 2000-2002 when the bank took possession of the title deeds. Third applicant admitted that the relevant forms at the company’s office were only filed sometime in 2002. How then was the first respondent expected to acquire knowledge of the change of directorship and or ownership? 

            Preliminary notices remained in force for a period of ten years from the date of first publication in a government gazette. The prescribed method for the withdrawal of a preliminary notice was set out in s 5 (7) of the Land Acquisition Act, as follows;

“(7) An acquiring authority may at any time—

(a) withdraw a preliminary notice, by publishing notice of its withdrawal in the Gazette and serving notice of its withdrawal on every person on whom the preliminary notice was served;

(b) withdraw a notice in terms of subsection (3), by serving written notice of its withdrawal on every person on whom the first-mentioned notice was served.

It is common cause that the 1st respondent withdrew the application for confirmation of acquisition of the applicants’ farms before the Administrative Court which ruled that the s 5 preliminary notice was rendered null and void by such withdrawal. With all due respect to the Administrative Court s 5 (7) expressly stipulated that the preliminary note could be withdrawn by  publishing a notice of withdrawal in the government gazette and serving notice of withdrawal on every person on whom the preliminary notice was served. This was not done. An order of nullity ought to have been accompanied by an order that the first respondent comply with the provisions of s 5 (7). In my view, in the absence of publication in the government gazette of a notice to withdraw the preliminary notice, it remained in force for a period of ten years from the date of its first publication. I am fortified in my view by the provisions of s 7 (5) of the Land Acquisition Act, which govern the confirmation of acquisition of land, which provide that;

“(5) Where the Administrative Court refuses to grant an order referred to in subsection (1), the Administrative Court shall—

1. order the acquiring authority to withdraw the preliminary notice and any notice served in terms of subsection (3) of section five…”

 

         It follows that the farms were validly ‘identified’ in terms of section 5 of the Land Acquisition Act. Section 16B (2) (a) of the former Constitution provides for the vesting in the state with full agricultural title, land ‘that was identified on or before 8 July 2005, in the Gazette or Gazette Extraordinary under s 5 (1) of the Land Acquisition Act… and which is itemized in Schedule 7, being agricultural land required for resettlement purposes. It is correct that there are three requirements;

1. The land should have been identified on or before 8 July 2005 under s 5 of the Land Acquisition Act.
2. The land must have been itemized in schedule 7 of the former Constitution
3. The land must be agricultural land required for resettlement purposes.

It is my considered view that all of these three requirements were met in the circumstances of this case. I am not persuaded by the contention submitted on behalf of the applicants, that because Schedule 7 of the former Constitution did not itemize the specific farms but itemized the government gazettes in which the farms were listed this did not constitute valid itemization for purposes of s 16 B. The s 5 preliminary notices could not, at law be withdrawn by an order of nullification by the Administrative court which was expressly mandated to order the acquiring authority to withdraw the preliminary notices by publication in the government gazette, and serve on all interested parties, as provided in terms of s 7 of the Land Acquisition Act. The language of s 7 (5) is peremptory, which means that there was no discretion on the part of the Administrative court to purport to withdraw the preliminary notices by way of a court order declaring them to be null and void. In the circumstances, it is this court’s finding that the applicant’ farms were duly itemized in Schedule 7 of the former Constitution.

In any event, a reading of the provisions of s 16 B (3) (a) and (b) will show that, once agricultural land had been validly identified and listed in Schedule 7, the acquisition could not be challenged, especially if the challenge was based on whatever law governed the acquisition of land on the effective date (the Land Acquisition Act). All that the applicants were left with in terms of s 16 B (3) (b) is a right to claim compensation.

 

1. The current Constitution (amendment number 20 of 2013); The policy behind land acquisition

Section 16 A (1) of the former Constitution provided that:

“16A    Agricultural land acquired for resettlement

(1)        In regard to the compulsory acquisition of agricultural land for the resettlement of people in accordance with a programmed of land reform, the following factors shall be regarded as of ultimate and overriding importance –

(a)        under colonial domination the people of Zimbabwe were unjustifiably dispossessed of their land and other resources without compensation;

(b)        the people consequently took up arms in order to regain their land and political sovereignty, and this ultimately resulted in the Independence of Zimbabwe in 1980;

(c)        the people of Zimbabwe must be enabled to reassert their rights and regain ownership of their land; and accordingly –

(i)         the former colonial power has an obligation to pay compensation for agricultural land compulsorily acquired for resettlement, through an adequate fund established for the purpose; and

(ii)        if the former colonial power fails to pay compensation through such a fund, the Government of Zimbabwe has no obligation to pay compensation for agricultural land compulsorily acquired for resettlement.”

Section 289 of the current Constitution provides that;

“289 Principles guiding policy on agricultural land

In order to redress the unjust and unfair pattern of land ownership that was brought about by colonialism, and to bring about land reform and the equitable access by all Zimbabweans to the country’s natural resources, policies regarding agricultural land must be guided by the following principles—

(a) land is a finite natural resource that forms part of Zimbabweans’ common heritage;

(b) subject to section 72, every Zimbabwean citizen has a right to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of agricultural land regardless of his or her race or color;

(c) the allocation and distribution of agricultural land must be fair and equitable, having regard to

gender balance and diverse community interests;

(d) the land tenure system must promote increased productivity and investment by Zimbabweans

in agricultural land;

(e) the use of agricultural land should promote food security, good health and nutrition and generate employment, while protecting and conserving the environment for future generations;

(f) no person may be deprived arbitrarily of their right to use and occupy agricultural land.”

The applicants contended that; in order for the land reform programme to comply with the provisions of the former and the current Constitution, it must not target the replacement of some indigenous owners or settlers on agricultural land with others. Land reform must not be a tool of patronage or nepotism. If the Constitutional principles are not enforced, Zimbabweans will plunge themselves into a vicious circle of instability and victimization of indigenous people by other indigenous people. This will affect investor confidence with the result that the Constitutional objectives of food security, employment creation and productivity will be affected. The legal argument raised is that agricultural land already owned or occupied by indigenous Zimbabweans cannot be said to be land required for resettlement purposes within the meaning of s 16 A of the former Constitution as read with s 72 (289)  and (290) of the current Constitution of Zimbabwe. The compulsory acquisition of Kopje Alleen, the Beach, and Rusfontein farms is accordingly not protected by s 16 B of the former Constitution and must be declared null and void.

           The applicants’ papers are permeated with an unfortunate equation of the perceived meaning of ‘indigenous Zimbabweans’, with Zimbabweans of black African descent. Section 16 A of the former Constitution speaks of the people of Zimbabwe and of a former colonial power. Section 289 of the current Constitution talks about addressing the need to redress the unjust and unfair pattern of land ownership which was brought about by colonialism and to bring about land reform and equitable access by all Zimbabweans to the country’s natural resources. Section 289 (b) entrenches in the Constitution the right of every Zimbabwean to acquire, use and to hold agricultural land regardless of his or her race or color. Section 289 (c) entrenches a policy that the allocation and distribution of agricultural land be fair, and equitable, regard being had to gender balance and diverse community interests. (The underlining is mine for emphasis)

            With all due respect to the submissions put forward by the 3rd applicant, I am unable to agree that either the former or the current Constitutions entrench a policy that agricultural land must not be taken away from a black African Zimbabwean and given to another black African Zimbabwean. I am unable to accede to the contention that land that is already owned or occupied by ‘indigenous (read black) Zimbabweans cannot be said to be land required for resettlement purposes within the meaning of s 16 B of the former Constitution. The question of whether compulsory acquisition of agricultural land from one particular race in favor of another  violated s 23 of the former Constitution, was considered and settled  in Campbell (supra), at p 16-17;

“It must be stated at this stage that the law as embodied in the provisions of s 16(B)(2)(a)(i) of the Constitution and the acquisitions of the pieces of agricultural land which resulted from its operation had no reference at all to the race or color of the owners of the pieces of land acquired.  There was no question of violation of s 23 of the Constitution to be considered in this case.  No more shall be said on the alleged violation of s 23 of the Constitution.”

            There is no doubt whatsoever in my mind, that, when it comes to the question of the policy behind the land reform programme, the Supreme Court has given guidance which is not ambiguous, but is as clear as crystal At p 18 of Commercial Farmers Union( supra);

“The issue of whether land should be acquired for the land reform programme, how much land should be acquired for that purpose, from whom it should be acquired, and to whom the acquired land should be allocated are matters for the Executive.   They are policy issues that are not justiciable.   What is justiciable is whether the acquisition itself and the allocation of the land has been done in accordance with the law.”

There is no basis therefore, on which the applicants can challenge the compulsory acquisition of their farms, except where the procedure followed was not the prescribed procedure. The applicant’s recourse is to apply for compensation as provided for by the Constitution. It is not open to the applicants to instruct the acquiring authority on what policy should have been applicable to the compulsory acquisition of the farms, most especially to contend that their land should not have been compulsorily acquired because they are black African Zimbabweans.

Disposition

 

“Judicial review has been defined as ‘the principal means by which the High Court exercises supervision over public authorities in accordance with the doctrine of ultra vires. The power of the High Court to exercise judicial review is often referred to as its supervisory jurisdiction”. See Oxford Dictionary of Law, quick Reference[6].

The mechanism that was in place for judicial review of the acquisition of agricultural land for resettlement purposes was set out in the Land Acquisition Act. Jurisdiction was vested in the Administrative court, which in terms of s 7 (3a) exercised its jurisdiction on the basis of the grounds of review set out in s 27 of the High Court Act [Chapter 7; 06]. The procedures set out in the Land Acquisition Act were clearly spelt out in the case of Mike Campbell (supra), and Chisvo v Peter (supra).  

With the coming into effect of Constitutional Amendment number 17 of 2005, and the advent of s 16 B of the former Constitution with its overriding non abstante clause, it appeared as if certainty had been entrenched in the Constitution in relation to all agricultural land that had been identified and listed in schedule 7 of the former Constitution, which include the applicants’ farms which are the subject matter of this application. The question for determination is simple. Did the first respondent and or its predecessor lawfully acquire the applicants’ farms in terms of the Land Acquisition Act and or s 16 B of the Former Constitution? Was the applicants’ land properly identified and listed in schedule 7 of the former Constitution? If it was not lawfully acquired is it proper for this court to make a declaration to that effect and to order the eviction of second to fourth respondents ten years after the purported acquisition and approximately ten years after the allocation of the land to the second to fourth respondents? We must also decide whether the provisions of the current Constitution, brought about by Amendment number 20 of 2013 have any application to the circumstances of this case.

The land reform programme is for the benefit of Zimbabweans from all walks of life. It is blind to race or color and only bows down to gender balance and diverse community interests. Whether acquisition and distribution of agricultural land is to continue, from whom land is acquired, to whom it is allocated, are questions for the executive which are not justiciable. What is subject to judicial review or supervision is the process of acquisition, which must comply with the provisions of the Constitution. In the current Constitution we are guided by s 71, s 289, s 290, s 291, s 292, s 2932-95. Finally s 296-297 sets out the establishment and composition of the Zimbabwe Land Commission.

In the former Constitution we were guided by the provisions of s 16 A and s 16 B. For reasons discussed above this court finds that the applicants have not placed sufficient or admissible evidence before it, that the first and or second, third and fourth respondents forcibly or wrongfully deprived them of their farms, by threats, intimidation, violence or wrongful application of the law or in terms of the Land Acquisition Act, or s 16 B of the constitution. Applicants withdrew the interim spoliation order which they had been granted in 2002 before it was confirmed. The alleged perpetrators of violence and intimidation are not party to these proceedings. The veracity of the allegations was not tested in these papers. Any such evidence which was before the court in 2002 is not sufficient or cogent to establish on a balance of probabilities that applicants were despoiled and are entitled to restoration of the status quo ante after ten years. The farms were lawfully identified in terms of the Land Acquisition Act. They were lawfully listed in terms of Schedule 7 of the former Constitution. Second – fourth applicants hold validly issued offer letters. Applicants are not entitled to the eviction of the second – fourth respondents. Applicants are not entitled to the declaratur that they seek. They lost all rights in the farms to the first respondent except the right to compensation. For these reasons the application before the court be and is hereby dismissed with costs.

 

  

 

Messrs Mtetwa & Nyambirai, applicants’ legal practitioners

Civil Division of the Attorney General’s Office, 1st respondent’s legal practitioners

Messrs Coghlan, Welsh & Guest, 2nd, 3rd, and 4th respondents’ legal practitioners

 

 

 

 

 

 

 

 

[1] SC 49-07

[2] SC31-10

[3] 1997 (2) ZLR 425(HC)

[4] HC 2443/15 @p6

[5] HH 23-2006

[6] 8th ed by Jonathan Law