REPORTABLE (30)

Judgment No. SC 36/04

Civil Appeal No. 364/03

AIRFIELD INVESTMENTS (PRIVATE) LIMITED v

(1) THE MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT

(2) THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS

(3) THE MEMBER-IN-CHARGE, CHEGUTU POLICE STATION (4) THE ATTORNEY-GENERAL OF ZIMBABWE

(5) R  SANGO

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & MALABA  JA

HARARE, MAY 4 & JUNE 3, 2004

E T Matinenga, for the appellant

D D Chirindo, for the first, second, third and fourth respondents

No appearance for the fifth respondent

MALABA JA: This appeal is directed against the judgment of the High Court dated 25 September 2002. What is in issue is the correctness of the decision by the court a quo in refusing an application by the appellant for an interim interdict prohibiting the State from proceeding with the compulsory acquisition of agricultural land for resettlement purposes pending the determination of the constitutionality of ss 8, 9 and 10 of the Land Acquisition Act [Chapter 20:10] (“the Act”).

The interim relief sought by the appellant was couched in these terms:

“1. That the first respondent be and is hereby interdicted from further proceeding with the acquisition in terms of the Land Acquisition Act [Chapter 20:10] of the property known as Hallingbury House, Hallingbury, situate in the District of Chegutu, measuring 68 950 hectares pending determination of this matter.

2. Further, the effect of any acquisition order issued in respect of the property known as Hallingbury House, Hallingbury, situate in the District of Chegutu, measuring 68 950 hectares purportedly acquired for resettlement purposes in terms of section 8 of the Land Acquisition Act [Chapter 20:10] is hereby suspended pending the resolution of this matter and such order shall not preclude the applicant (now the appellant) or any other occupier of such land from occupying, holding or using the land including all improvements thereon and from continuing all farming operations until finalisation of this matter.

3. It therefore follows that the applicant may continue cultivating, harvesting and selling all farm produce on and from the aforementioned property during the currency of this order and shall not be liable to be prevented from doing so in any way whatsoever.

4. The third respondent is hereby ordered to render any and all lawful assistance to the applicant in ensuring its continued occupation, use and enjoyment of the aforementioned property.”

The appellant is the former owner of the agricultural land known as Hallingbury House, Hallingbury (“the land”) which the State compulsorily acquired for resettlement purposes in terms of the Act. The first respondent is the “acquiring authority” as defined in s 2 of the Act and made the order by which the appellant’s land was compulsorily acquired for resettlement purposes. The second respondent was cited because he was said to have introduced in Parliament the Land Acquisition Amendment Bill which became the Land Acquisition Amendment Act, No. 6 of 2002, some of the provisions of which amended ss 8, 9 and 10 of the Act allegedly rendering them unconstitutional. The third respondent was cited because the appellant wanted to ensure that police under his command enforced the interim order should the court grant it. The Attorney-General was cited in compliance with s 24(6) of the Constitution of Zimbabwe (“the Constitution”), which requires that if in any proceedings it falls to be determined whether any law is in contravention of the Declaration of Rights, the Attorney-General shall be entitled to be heard by the court on that question. The fifth respondent was cited because he is the person to whom the acquiring authority allocated the land it expropriated from the appellant. The object of the interim relief was to prevent him from taking occupation or possession of the land pending determination of the constitutionality of the impugned sections of the Act.

It is common cause that on 22 June 2001 the first respondent, exercising the power given to the acquiring authority in s 5(1) of the Act, caused to be published in the Government Gazette (G.N. 313B of 2001) a preliminary notice of the intention of the State to compulsorily acquire the appellant’s agricultural land for resettlement purposes. The appellant, as the then owner or occupier of the land, had the right to submit to the first respondent a written objection to the proposed acquisition within thirty days from the date of publication of the preliminary notice. In exercising its rights, the appellant objected to the proposed acquisition of the land. After consideration of the grounds for the objections the first respondent nonetheless made an order compulsorily acquiring the land in terms of subs (1) of s 8 of the Act.

Subsection (1) of s 8 of the Act gives power to the acquiring authority to make an order not less than thirty days after the date of publication of the preliminary notice acquiring the land the nature and extent of which would be described therein. For the acquisition to be valid the agricultural land in question must have been taken for resettlement purposes on payment of fair compensation within a reasonable time. Upon service of the order of acquisition upon the owner or occupier of the land the rights of ownership are immediately taken and vested in the acquiring authority.

To that extent subs (3) of s 8 of the Act provides that:

“(3) Subject to section ten A the effect of an order made in terms of subsection (1) shall be that the ownership of the land specified therein shall, subject to subsection (5) of section seven, immediately vest in the acquiring authority whether or not compensation has been agreed upon, fixed or paid in terms of Part V or VA and, subject to section nine, shall be free of all rights and encumbrances.”

Section 10A, referred to in subs (3) of s 8, gives the acquiring authority the right to revoke the order of acquisition not later than six months after making the order in terms of subs (1) of s 8. It is important to note that the right to revoke or withdraw an order of acquisition is given to the acquiring authority and as such cannot be revoked by a person who is not an acquiring authority as defined in s 2 of the Act. A revocation of an order of acquisition which is made after six months from the date the order was made would be invalid.

When the acquiring authority has made an order of acquisition in terms of subs (1) of s 8, it is obliged to make an application to the Administrative Court not later than thirty days after the service of the order for confirmation of the acquisition.

Subsection (5) of s 7, referred to in subs (3) of s 8, provides that where the Administrative Court refuses to confirm the acquisition, it shall order the acquiring authority to return the land acquired to the previous owner or occupier even where the acquiring authority had already acted in terms of ss 8 or 9. Subsection (2) of s 8 gives the acquiring authority a discretion to exercise the rights of ownership in the acquired land such as demarcating or allocating it after the expiry of ninety days from the date of service of the order of acquisition upon the owner or occupier especially where the owner or occupier is in possession of and exercises the residual rights reserved for his enjoyment under s 9 and for the duration of the period prescribed therein.

Section 9, referred to in subs (3) of s 8, provides in para (b) of subs (1) for the eviction of the owner or occupier of the acquired land. It reads:

“(b) in relation to any agricultural land required for resettlement purposes, the making of an order in terms of subs (1) of s 8 shall constitute notice in writing to the owner or occupier to cease to occupy, hold or use that land forty-five days after the date of service of the order upon the owner or occupier, and if he fails to do so, he shall be guilty of an offence and liable to a fine not exceeding one hundred thousand dollars or imprisonment for a period not exceeding two years or to both such fine and such imprisonment:

Provided that –

(i) the owner or occupier of that land may remain in occupation of his living quarters on that land for a period of not more than ninety days after the date of service of the order;

(ii) the owner or occupier shall cease to occupy his living quarters after the period referred to in proviso (i), and if he fails to do so he shall be guilty of an offence and liable to a fine not exceeding one hundred thousand dollars or imprisonment for a period not exceeding two years or to both such fine and such imprisonment.”

The provisions of subs (1) of s 9 are subject to subs (3) of s 8, showing that the rights embodied therein are a limitation to the exercise of rights of ownership by the acquiring authority and are reserved for the former owner or occupier of the expropriated land to the extent that the owner or occupier is there on the land to occupy, hold or use it and the living quarters thereon for the duration of the time prescribed. At the end of the maximum period of ninety days from the date of service of the order of acquisition, the rights of the former owner or occupier cease to exist and by operation of law he must leave the land or be evicted by order of court. Should the acquiring authority withdraw a letter of offer of the land to another person, the land reverts to the acquiring authority and not the former owner or occupier unless, of course, the acquiring authority also revokes the order of acquisition.

It is also clear from the provisions of subs (5) of s 7 that the acquisition of land required for resettlement purposes can take place and the acquiring authority can exercise all the rights of ownership such as the allocation of it notwithstanding the fact that the application is pending before the Administrative Court. The obligation imposed on the acquiring authority is to make the application for confirmation of the acquisition to the Administrative Court not later than thirty days from the date of service of the order of acquisition and to bear in mind that should the Administrative Court refuse to confirm the acquisition it will be ordered to return the land to the former owner or occupier.

Once the acquiring authority submits its decision to compulsorily acquire the land for resettlement purposes to the process of judicial review by the Administrative Court, it cannot be prohibited by a court from exercising rights of ownership in the acquired land on the ground that confirmation proceedings are still pending before the Administrative Court.

The order of acquisition of the appellant’s land was made by the first respondent on 4 April 2002 and served on its managing director on 9 April 2002. As such, the appellant had notice of the duty to cease to occupy, hold or use the land at the end of forty-five days from the date of service upon it of the order and to cease to occupy, hold or use the living quarters on the land at the end of ninety days from the same date of service of the order of acquisition. The appellant did not do any of the things it was obliged to do at the end of the prescribed periods.

In the founding affidavit deposed to on its behalf, it is disclosed that a deliberate decision was taken to defy the law and remain in occupation of the land and continue with farming operations after the period at the end of which it had to cease operations on the land had expired. It is said the appellant made “a conscious decision to continue farming operations on the property”.

On 19 August 2003 the first respondent made an offer of the land to the fifth respondent, who accepted it on condition the parties entered into a lease agreement. The appellant’s managing director and workers on the farm refused to make way for the fifth respondent to take occupation of the land.

On 16 November 2003 an urgent chamber application was made to the High Court by the appellant for an order declaring ss 8, 9 and 10 of the Act unconstitutional, thereby paving the way for it to retain ownership of the land. To ensure that it remained on the land and continued carrying out farming operations, the appellant applied to the court a quo for the interim relief, the correctness of the refusal of which is the issue on appeal. The claim advanced by the appellant was that the acquisition of its land was unlawful because the sections of the Act under which it was effected were unconstitutional.

The learned judge held that the first respondent was authorised by law to acquire the land for resettlement purposes. He could not be interdicted from doing what was a legal duty to do. The fact that the appellant acted on its belief that the law was unconstitutional and ignored the provisions of the Act showed that it was determined to act in open defiance of the law. On para (2) of the interim relief sought, the learned judge said that there was no allegation on the papers to the effect that the acquisition order was not lawfully made by the first respondent. It was his opinion that para (3) of the interim relief could not be granted because doing so would give the appellant protection for acting in contravention of the law. As the continued occupation and use of the land by the appellant was in contravention of para (b) of subs (1) of s 9 of the Act, the learned judge declined to order the police to protect the illegal activities.

The question is whether the court a quo was correct in refusing to grant the interim relief sought by the appellant.

It must be borne in mind that an interim interdict is an extraordinary remedy, the granting of which is at the discretion of the court hearing the application for the relief. There are, however, requirements which an applicant for interim relief must satisfy before it can be granted. In L F Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) at 267 A-F, CORBETT J (as he then was) said an applicant for such temporary relief must show:

“(a) that the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established though open to some doubt;

(b) that, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

(c) that the balance of convenience favours the granting of interim relief; and

(d) that the applicant has no other satisfactory remedy.”

The threshold the appellant had to cross was the production of evidence which established the existence in it of prima facie rights of ownership in the land at the time the application for interim relief was made. An interim interdict is not a remedy for past invasions of rights and will not be granted to a person whose rights in a thing have already been taken from him by operation of law at the time he or she makes an application for interim relief.

In Stauffer Chemicals v Monsato Company 1988 (1) SA 805 at 809 F-G HARMS J said:

“… the basis of an interdict is the threat actual or implied on the part of a defendant that he is about to do an act which is in violation of the plaintiff’s right and that actual infringement is merely evidence upon which the court implies an intention to continue in the same course. I would have thought it axiomatic that an interdict is not a remedy for past invasions of rights. It is for the protection of an existing right. Cf Meyer v Meyer 1948 (1) SA 484 (T).”

The appellant was not in a position to show the existence of prima facie rights of ownership in the land which the first respondent was about to infringe because at the time it applied for the interim relief all the rights of ownership it had in the land had been taken by means of the order of acquisition and vested in the acquiring authority. When the appellant lodged the application for the interim relief before the court a quo the acquisition of the land by the State was a fait accompli, all rights of ownership having been extinguished on its part. The acquiring authority having done everything it was obliged by the law to do to acquire the land for resettlement purposes, there was no outstanding act against the performance of which the acquiring authority could be temporarily interdicted.

An interim interdict is not a remedy for prohibiting lawful conduct. At the time the first respondent made the order by which the appellant was deprived of ownership of the land, he acted lawfully in the exercise of the power conferred upon him. Subsection (1) of s 8 of the Act gave him the power to make the order and its effect reflected the legal consequences of that lawful act.

To suspend the effects of the order of acquisition lawfully made and intended by the legislature would amount to striking down the Act of Parliament or rendering it completely ineffective, thereby creating a vacuum pending determination of the constitutionality of the impugned sections of the Act. That would be improper for the court to do because the clear intention of the legislature was that an order of acquisition, properly made in terms of subs (1) of s 8 of the Act, should have the effect of depriving the owner or occupier of the rights of ownership in the land and vesting them in the acquiring authority.

The appellant was acting in contravention of para (b) of subs (1) of s 9 of the Act at the time it applied for the interim relief. It had not ceased to occupy, hold or use the land at the end of forty-five days from the date of service of the order of acquisition, nor had it ceased to occupy, hold or use the living quarters on the land at the end of ninety days from the date of service of the order of acquisition on it. An interim interdict as a remedy for the prohibition of unlawful conduct could not be granted for the protection of the illegal activities of the appellant. In other words, the appellant wanted the court to grant an order stopping the acquiring authority from acting lawfully so that it could continue to commit an offence in carrying on farming operations illegally.

In Rudolph and Ano v Commissioner for Inland Revenue and Ors 1994 (3) SA 771 the applicants had had their premises searched and documents seized by persons duly authorised so to act in terms of s 74(3) of the Income Tax Act, 58 of 1962. They sought an interim relief prohibiting the respondents from carrying out the searches of their premises and seizure of their documents pending determination of the constitutionality of s 74(3) of the Income Tax Act of South Africa. Dismissing the application, GOLDBLATT J at 775 C-D said:

“… it is a trite principle of our law that before an interim interdict can be granted the applicant must establish that he has at the very least a prima facie right which requires protection (Setlogelo v Setlogelo 1914 AD 221). In my view, the applicants have failed to establish the existence of such a prima facie right. At present the respondents have acted lawfully in terms of the powers granted to them by an existing Act of Parliament. They have rights in terms of the Income Tax Act and are properly and lawfully exercising those rights. The only right the applicants have is the right to approach the constitutional court to declare section 74(3) of the Income Tax Act unconstitutional. This right has not been threatened or violated.”

The learned judge in the court a quo also determined the question whether the appellant was entitled to the relief sought on the basis that he had to presume that the impugned provisions of the Act, and the executive acts done in the exercise of the powers conferred upon the acquiring authority thereunder, were constitutionally valid in the absence of patent repugnancy on the face of the statutory provisions. The learned judge was entitled to assume that Parliament understood the Constitution and the limitations it imposed on the exercise of its legislative powers. On the principle of the presumption of the constitutionality of ss 8, 9 and 10 of the Act until the contrary was established on the return day, the appellant was legally bound to have ceased farming operations on the land and vacated the living quarters thereon by the time it made the application for the interim interdict. To the extent that the appellant was acting in open defiance of the law, the court a quo correctly refused to give a stamp of approval to such illegality. See Associated Newspapers of Zimbabwe (Pvt) Ltd v The Minister of State for Information and Publicity and Ors S-20-03 at p 10 of the cyclostyled judgment.

In Batista v Commanding Officer SANAB, SA Police, Port Elizabeth and Ors 1995 (4) SA 717 the applicant had been found in possession of pornographic material in contravention of the Publications Act 42 of 1974 and of the Indecent or Obscene Photographic Matter Act 37 of 1967. The South African police had seized the offending material. He instituted proceedings in the South Eastern Cape Local Division of South Africa seeking interim relief interdicting the police from arresting him or seizing any offending material found in his possession in future or in any way interfering with his unlawful activities pending a declaration on the constitutionality of certain provisions of the two statutes.

Dismissing the application, MULLINS J at 727 B-G said:

“Unfortunately there is a rapidly increasing tendency on the part of litigants to invoke the provisions of the Constitution in order to seek protection for conduct which, in terms of existing laws, statutory or otherwise, would be unlawful or even criminal.

The Courts are almost daily being faced with claims by such persons that otherwise lawful conduct, whether by private individuals or State officials, is ‘unconstitutional’.

… I am of the view that the applicant cannot rely, in order to establish a present prima facie right, on the probability that existing legislation which he has contravened may be altered at some undetermined future time or on the possibility that such existing legislation would be held to be unconstitutional. … The court is therefore being asked to sanction uncontrolled possession by the applicant of any pornographic material similar to that presently confiscated despite the existence of the Act.”

Similarly the court a quo was being asked by the appellant to sanction the continued illegal farming operations and occupation of the living quarters on the land despite the clear and unambiguous language of the Act to the effect that failure to cease occupation or use of the land at the end of forty-five days from the date of service of the order of acquisition and of the living quarters at the end of ninety days from the date of service of the order of acquisition constituted a criminal offence.

Mr Matinenga argued that the appellant had a contingent right of ownership in the land which required protection against infringement by the interim relief sought. A contingent right is a right the existence of which is made dependent upon an event in future which may or may not happen. The contention was that a proper construction of subs (5) of s 7 of the Act revealed the existence of such a right in the appellant.

Such a right would only vest in the appellant by an order made by the Administrative Court if it refused to confirm the acquisition of the land. The fortuitous right had no substantive existence at the time the application for the interim relief was made. Subsection (5) of s 7 does not guarantee such a right to the former owner or occupier of the acquired land. The law imposed no duty on the Administrative Court to refuse confirmation of the acquisition. In any case, the interim relief was not sought in order to interdict the acquiring authority from proceeding with acquisition of the land pending finalisation of the confirmation proceedings by the Administrative Court. As pointed out above, such an order would have no legal basis as the law clearly gives the acquiring authority the right to acquire ownership in the land notwithstanding the pendency of confirmation proceedings before the Administrative Court.

Mr Matinenga argued further that in constituting the order of acquisition of the land as a notice to the owner or occupier to cease to occupy, hold or use the land at the end of forty-five days from the date of service of the order and cease to occupy, hold or use the living quarters on the land at the end of ninety days from the date of service of the order, Parliament recognised the existence of a right in the owner or occupier to occupy, hold or use the land and living quarters. The right is made subject to the exercise of ownership by the acquiring authority, suggesting that it is a residual right reserved for an owner or occupier who is on the land and has an interest in physically occupying, holding or using the land for forty-five days from the date of service of the order of acquisition and is interested in and does occupy, hold or use the living quarters for ninety days after the date of service of the order. It is not a general right available to anyone whose land has been acquired as such a construction would unnecessarily restrict the exercise of discretion conferred on the acquiring authority by subs (2) of s 8 in that it may demarcate or allocate the acquired land.

The argument advanced by Mr Matinenga does not help the appellant because at the time it made the application for interim relief the statutory periods marking the duration of the existence of the rights it could have claimed had long expired. The appellant was no longer a member of the class of people intended by Parliament to benefit from the provisions of s 9(1)(b) of the Act.

There is, therefore, no merit in the appeal. It is accordingly dismissed with costs.

CHIDYAUSIKU  CJ: I agree.

CHEDA  JA: I agree.

Coghlan, Welsh & Guest, appellant's legal practitioners

Civil Division of the Attorney-General’s Office, first, second, third and fourth respondents' legal practitioners