CEDOR PARK FARM (PVT) LTD v MINISTER OF STATE FOR NATIONAL SECURITY & ORS 2010 (2) ZLR 158 (H)

Flynote

Land - acquisition - preliminary notice of acquisition - application for confirmation of acquisition withdrawn by Minister - land nonetheless listed in Schedule 7 of Constitution - ownership of land vesting in State D

Headnote

The applicants were farmers whose farms had been gazetted for compulsory acquisition in terms of s 5(1) of the Land Acquisition Act [Chapter 20:10]. Thereafter they reached an agreement with the responsible Minister, whereby the applicants each surrendered part of their agricultural holdings and the Minister agreed to withdraw his application to the Administrative Court (which at that time had jurisdiction in such disputes) for confirmation of the acquisition. The agreement in each case was then taken to the Administrative Court for it to be made into a court order. The effect was that the particular pieces of land were "delisted" and that ownership of the respective pieces of land reverted to the original owners, the applicants. In spite of this agreement, the farms were itemized in Schedule 7 of the Constitution as pieces of land which constituted land referred to in s 16B(2)(a)(i) of the Constitution. The applicants argued that their pieces of land had been returned to them by orders by consent which were made into court orders by the Administrative Court. They contended that s 16B(2)(a)(i) and (ii) did not vest their ownership of their pieces of land in the acquiring authority. Since the court orders returned their pieces of land to them, they had acquired real rights in the properties. The Minister had withdrawn the applications to confirm. No legislation can act retrospectively to take away acquired rights. They had worked on and improved the farms on the understanding that the pieces of land were theirs to do as they wished.

Held, that their pieces of land had been identified in GN 144A of 2002 gazetted on 5 April 2002 and appeared as item 44 in Schedule 7 of the Constitution. There could be no doubt that the legislature took a deliberate effort to acquire the two farms and vested the rights in them to the State. The provisions of s 16B(2)(a)(i) expressly stipulated that the particular farms were acquired and vested in the State with full title. It is a correct statement of the law that where the legislature wishes an enactment to have a retrospective effect it must expressly say so. Section 16B expressly states that despite the protection enshrined in the Declaration of Rights all agricultural land that was identified prior to 8 July 2005 would be compulsorily acquired for resettlement purposes. The provisions of s 16B(2)(a)(i) were deliberately intended to take away the prior existing rights of all the owners of agricultural land itemized in Schedule 7. The suggestion by the applicants, that the legislature should have specifically stated the provisions were also meant to overrule orders of court made by consent, was untenable. In terms of s 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28], they were now occupying, holding or using gazetted land without lawful authority. This did not mean that the respondents could interfere with their possession without due process of law.