MCGREGOR v SABURI & ORS 2011 (1) ZLR 262 (H)

Flynote

Land — acquisition — land acquired by State — holder of "offer letter" in respect of such land — right to seek relief against former owner of land who remains thereon

Headnote

The applicant was the owner of a farm which was compulsorily acquired by the State in terms of the Land Acquisition Act [Chapter 20:10]. He failed to vacate the farm within the prescribed period and was charged with and convicted of contravening s 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. The sentence imposed included, as required by law, an order for the applicant's eviction from this farm. He filed a notice of appeal against both conviction and sentence. When the applicant returned to the farm, he found the first respondent and others in possession of the farm. As they would not leave, he brought an application for a spoliation order.

Held, that while the applicant had been in "peaceful and undisturbed occupation" of the land and therefore entitled to a spoliation order under the common law, statutory provisions override the common law. Following the acquisition by the State of the land and the provisions in terms of s 3 of the Gazetted Lands (Consequential Provisions) Act that the applicant should vacate the land within the prescribed period, he could not at law claim possession of the land he was required to have vacated, nor, if he had not vacated such land, could he claim to be in peaceful and undisturbed possession. Such an interpretation of the provisions of that Act would lead to an absurdity and subvert the clear intention of the legislature. The intention of the legislature was to create vacant possession on acquired land in order that the beneficiaries of the land reform programme may benefit through resettlement thereon. If the State did not secure vacant possession, the intention of the legislature would obviously be frustrated. The former owner or occupier of gazetted land loses all rights over such land. Ownership vests in the State and continued occupation after the prescribed period without authority is illegal and renders such owner or occupier subject to prosecution.

Held, further, that the holder of an offer letter has authority granted by the owner of the land, that is, the State, to occupy and utilize the land in question. He has a right and a legitimate interest to access the property. That right is enforceable against any other person who may seek to deprive him of it or frustrate his enjoyment of the same. The holder of an offer letter is perfectly entitled to seek an eviction order against persons who may illegally be in occupation of such property. He may not, however, take the law into his own hands and act without a court order. The offer letter confers upon its holder the locus standi to approach the courts for appropriate relief.