MISI V ZIMBABWE NATIONAL ARMY 2012 (2) ZLR 241 (H)

Military law — cantonment area — declaration of by Minister of Defence — Minister's power to acquire any land and declare land to be a cantonment area

Headnote

The applicant bought a piece of land near Kadoma. Some years later, he found the army on his land, erecting a fence to incorporate part of his land as a cantonment area. He sought an interdict to prevent the army from including any of his land within the cantonment area. The respondent showed that the Minister of Defence had declared the area which included the portion of the applicant's land to be a cantonment area. A statutory instrument, the Defence Cantonnments Notice, 2012 (SI 61 of 2012), had been published in terms of s 89 of the Defence Act [Chapter 11:02]. The applicant sought a provisional order restraining the respondent from acquiring the piece of land. The respondent opposed the grant of the order. It was, however, submitted on behalf of the applicant that, inter alia, no regard need be paid to the notice as it had been the subject of an adverse report by the Parliamentary Legal Committee because, by criminalizing the entry of persons onto the cantonment, it had infringed their constitutional rights.

Held, that in terms of s 96(1) of the Act, where "any land" other than communal land is required for defence purposes such land can be acquired by the Minister for that purpose. Where such land is required for a cantonment, the Minister is empowered by s 89 to declare such land a cantonment. The Minister gave notice through a statutory instrument that the area being fenced by the army was a cantonment area. That statutory instrument had not been invalidated and the applicant was not challenging its validity.

Held, further, in dismissing the application, that the report of the Parliamentary Legal Committee did not have the effect of invalidating the notice which had been duly gazetted and remained effective and binding.

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