Judgment No. SC 52/04

Civil Application No. 392/02

KALEVALA      (PRIVATE)      LIMITED      v     

THE MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU  CJ,  CHEDA  JA  &  MALABA  JA

HARARE, MARCH 1 &

H Zhou, for the applicant

F G Gijima, for the respondent

                        CHEDA  JA:   This is an application for leave to lead further evidence on appeal.

                        The applicant was the owner of two pieces of land, namely, The Grange and Devonshire Farm (Private) Limited (“Devonshire Farm”).   The Grange is 973.2900 hectares, while Devonshire Farm is 156.0729 hectares.   Both pieces of land are near the City of Mutare in Manicaland Province.

                        On 2 June 2000 the respondent served on the applicant a notice of intention to acquire land in terms of s 5 of the Land Acquisition Act [Chapter 20:10] and followed this with an order of acquisition in terms of s 8 of the same Act on 5 February 2001.

                        The applicant lodged its objection to the acquisition in the Administrative Court.   The Administrative Court dismissed the objection and confirmed the acquisition.   The applicant noted an appeal to this Court against the decision of the Administrative Court.

                        The notice of appeal was filed on 22 July 2003, and the application for leave to lead further evidence on appeal was filed on 17 September 2003.   The judgment of the Administrative Court is dated 19 and 20 September 2002.   It was handed down on 17 October 2002.   The significance of these dates is that at the time the case was heard at the Administrative Court Devonshire Farm had not been sold.

                        The practice is that on appeal a party may seek leave to adduce further evidence.   However, it must be evidence which was already there but the applicant was unaware of it, or it was not available to the applicant at the time of the hearing.

            In this case, the evidence was deliberately created by the applicant itself soon after seeing the judgment of the Administrative Court.

                        In S v de Jager 1965 (2) SA 612, the South African Appellate Division stated at 613 A-B:

            “This Court can, in a proper case, hear evidence on appeal; see R v Carr 1949 (2) SA 693 (AD); but the usual course, if a sufficient case has been made out, is to set aside the conviction and sentence and send the case back for the hearing of the further evidence … .   However, it is well settled that it is only in an exceptional case that the Court will adopt either of the foregoing courses.   It is clearly not in the interests of the administration of justice that issues of fact, once judicially investigated and pronounced upon, should lightly be re-opened and amplified.   And there is always the possibility, such is human frailty, that an accused, having seen where the shoe pinches, might tend to shape evidence to meet the difficulty.”

                        The applicant in this case obviously realised that one of the strong points against it was that it was a multiple farm owner and rushed to sell one of the properties before appealing to this Court in order to seek the Court’s sympathy when it claimed that it has no other piece of land.

                        According to the applicant’s affidavit, the judgment of the Administrative Court was handed down on 17 October 2002.   This shows that Devonshire Farm was sold thirty-five days after receiving the judgment.   This resulted in a new development, that is, the applicant changed from being a multiple farm owner to a single farm owner.

                        The applicant now seeks leave to adduce this evidence in its appeal.   This cannot be allowed.   It is clear that, having seen the Administrative Court’s decision, and knowing that it was a multiple farm owner, it decided to sell the other property so that the Supreme Court could regard it as a single farm owner.    It created this evidence.

                        It was suggested by Mr Hove, for the applicant, that the matter be referred back to the Administrative Court to hear the new evidence.   In a case like this, I do not agree.    The decision of the Administrative Court did not rest solely on the fact that the applicant was a multiple farm owner.   There were other reasons; in particular, it was established that it was reasonably necessary to acquire the particular piece of land for resettlement purposes.

                        The applicant misdirected itself.   Having noted that the respondent intended to acquire The Grange, it was up to it to hold on to Devonshire Farm.   However, it sold Devonshire Farm in an attempt to provide what it thought would get this Court to reconsider the matter on the basis that besides The Grange there was no other piece of land available to it.

                        In view of the above facts, there is no merit in the main appeal at all.    The need to acquire the land was properly established through witnesses who gave details of the density of the population in the communal areas in that district.

                        The applicant would have been left with Devonshire Farm, but it chose to dispose of it and now finds itself without any land.

                        It follows that the appeal on the main case cannot succeed either.

                        Accordingly I order as follows –

1.         The application to lead fresh evidence on appeal is dismissed.

2.         The main appeal is dismissed.

3.         The applicant is to pay the costs.

                        CHIDYAUSIKU  CJ:     I   agree.

                        MALABA  JA:     I   agree.

Henning, Lock, Donagher & Winter, applicant's legal practitioners

E G Gijima & Associates, respondent's legal practitioners