COMMERCIAL FARMERS' UNION & ORS v MINISTER OF LANDS & ORS 2010 (2) ZLR 576 (H)

Flynote

Court - hierarchy of courts in Zimbabwe - Supreme Court - no appeal therefrom - SADC Tribunal - no appeal to Tribunal from Supreme Court - non-binding nature of SADC Tribunal's decisions

Land - acquisition - rural land - challenge to acquisition - courts having no jurisdiction to entertain challenge to acquisition - former owner of acquired land - no right to remain on land - offer letter or other document in respect of acquired land - rights given by such document - person to whom such document is issued has right to occupy land - right of such person to seek eviction order against former owner

Headnote

The applicant farmers' union and a number of commercial farmers brought an application in terms of s 24 of the Constitution, seeking relief under various heads. The farmers in question were owners or occupiers of land that had been acquired by the State in terms of s 16B of the Constitution. In terms of s 16B, former owners or occupiers of land that has been acquired must cease occupation of the acquired land within ninety days. The ninety days had since expired but the individual applicants had remained in occupation of the land. They complained that (a) they were being improperly treated because of their race in contravention of s 23 of the Constitution; (b) they were being denied protection of the law and equality before the law under s 18 of the Constitution; (c) they were being unfairly tried on charges of contravening s 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]; (d) the racial imbalance sought to be addressed in the land reform programme had been achieved, rendering any further evictions of white farmers unlawful; and (e) the public officials mentioned in the body of the application and affidavits had breached their duties in terms of s 18(1a) of the Constitution to uphold the rule of law and to act in accordance with the law. They asked for a moratorium on any further evictions, prosecutions and acquisitions. Reference was made by the applicants' counsel to the ruling in the applicants' favour by the SADC Tribunal (Mike Campbell (Pvt) Ltd & Ors v Republic of Zimbabwe 2008 (2) 343 (SADC)).

Held, that the SADC Tribunal has no place in the hierarchy of courts in Zimbabwe and no appeal lies from any court to that Tribunal. Its decisions are at best persuasive but are not binding.

Held, further, that former owners and/or occupiers whose land has been acquired by the acquiring authority in terms of s 16B(2)(a) of the Constitution cannot challenge the legality of such acquisition in a court of law. The jurisdiction of the courts has been ousted by s 16B(3)(a) of the Constitution.

Held, further, that land that is the subject of Bilateral Investment Protection Agreements is liable to compulsory acquisition.

Held, further, that the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and, in particular, s 3 of that Act, is constitutional. Accordingly, all Zimbabweans have a duty to comply with the law as provided for in that Act and prosecutions for contravening the Act are constitutional and therefore lawful.

Held, further, that every former owner or occupier of acquired or gazetted land who has no lawful authority is legally obliged to cease occupying or using such land upon the expiry of the prescribed period (90 days after the acquisition). By operation of law, former owners or occupiers of acquired land lose all rights to the acquired land upon the expiration of the prescribed period.

Held, further, that a former owner or occupier of acquired land who without lawful authority continues occupation of acquired land after the prescribed period commits a criminal offence. If the former owner or occupier continues in occupation in open defiance of the law, no court of law has the jurisdiction to authorise the continued use or possession of the acquired land.

Held, further, that litigants who are acting outside the law, that is, in contravention of s 3 of the Act, cannot approach the courts for relief until they have complied with the law.

Held, further, that a permit, an offer letter and a land settlement lease are valid legal documents when issued by the acquiring authority in terms of s 2 of the Act and s 8 of the Land Settlement Act. The holder of such permit, offer letter or land settlement lease has the legal right to occupy and use the land allocated in terms of the permit, offer letter or land settlement lease.

Held, further, that the Minister may issue land settlement leases in terms of s 8 of the Land Settlement Act [Chapter 20:01]. In doing so he is required to comply with the other provisions of that Act. However, he may also authorise occupation of acquired land by means of an offer letter or a land settlement lease.

Held, further, that while s 3(5) of the Act confers on a criminal court the power to issue an eviction order against a convicted person, it does not take away the Minister's right or the right of the holder of an offer letter, permit or land settlement lease to commence eviction proceedings against a former owner or occupier who refuses to vacate the acquired land. The holder of an offer letter, permit or land settlement lease has a clear right, derived from an Act of Parliament, to take occupation of acquired land allocated to him or her in terms of the offer letter, permit or land settlement lease. The Legislature conferred on the holder of an offer letter, permit or land settlement lease the locus standi, independent of the Minister, to sue for the eviction of any illegal occupier of land allocated in terms of the offer letter, permit or land settlement lease.

Held, further, that the holders of offer letters, permits or land settlement leases are not entitled as a matter of law to self-help. They should seek to enforce their right to occupation through the courts. Where, therefore, the holder of an offer letter, permit or land settlement lease has resorted to self-help and the former owner or occupier has resisted, both parties are acting outside the law. If either party resorts to violence, the police should intervene to restore law and order.

Held, further, that the Acquisition of Farm Equipment or Material Act [Chapter 18:23] does not authorise the holder of an offer letter, permit or land lease to take it upon himself to seize such equipment without reference to the acquiring authority. If the acquiring authority acquires such equipment, the acquisition can be challenged in the Administrative Court.