TAYLOR-FREEME v SENIOR MAGISTRATE, CHINHOYI & ANOR 2014 (2) ZLR 498 (CC)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 18(1) — right to protection of the law — failure by lower court to refer to Supreme Court matter which was neither frivolous nor vexatious — breach of applicant's rights — placing of accused person on remand, D trial or on his defence when the allegations and/or the evidence led do not constitute an offence — also a breach of s 18(1)

Land — gazetted land — occupation of — lawful authority to occupy — what constitutes — need for occupier to hold offer letter, permit or land settlement lease issued by acquiring authority

Headnote

The applicant had been charged in the magistrates court with contravening s 3(2)(a), as read with ss 3(3) and 3(5), of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28], it being alleged that he, without lawful authority to occupy, hold or use gazetted land (the farm he formerly owned), did not cease to occupy, hold or use that land after the expiry of the forty-five day period stipulated in s 3(2)(a) of the Act and had not ceased to occupy, hold or usethat land to date. He raised various defences, among which was the averment that he had authority to occupy, hold or use the gazetted land from the late Vice-President Msika and officials from the Ministry of Lands, Land Reform and Resettlement. A letter from the Vice-President stated that the Vice-President had granted the applicant permission to continue farming the farm.

At the conclusion of the State case, the applicant applied for discharge on the grounds that none of the six essential elements of the offence charged had been proved or alleged to justify his being put on his defence.

The magistrate dismissed the application, and the applicant sought a referral of the matter to the Supreme Court under s 24(2) of the 1980 Constitution, which was then in force. He contended that his rights under s 18 of the Constitution to the protection of the law and to a fair trial had been infringed. It was also argued that the definition of "lawful authority" in s 2 of the Act was ultra vires s 16B(6) of the Constitution insofar as it sought to limit the meaning of "lawful authority" to an offer letter, a permit or a land settlement lease. The magistrate rejected the application as being frivolous and vexatious.

The applicant then approached the Supreme Court in terms of s 24(1) of the Constitution, contending that the dismissal of his application for referral violated his right to protection of the law guaranteed by s 18(1) of the Constitution, and his right to a fair trial guaranteed by s 18(2) of the Constitution. He argued that his application was neither frivolous nor vexatious.

Held, that the contention that the definition of "lawful authority" was ultra vires s 16B was neither frivolous nor vexatious and the magistrate's failure to refer the constitutional issue raised to the Supreme Court constituted a violation of the applicant's constitutional right to protection of the law guaranteed in terms of s 18(1) of the Constitution.

Held, further, that placing an accused person on remand, trial or on his defence at the close of the State case, when the allegations and/or the evidence led by the State do not constitute an offence, was a violation of an accused person's right to the protection of the law, guaranteed by s 18(1) of the Constitution.

Held, further, that the essential elements of the offence the applicant was charged with were that

• (a) the accused must be a former owner or occupier;

• (b) of gazetted land;

• (c) who had not ceased to occupy, hold or use that land;

• (d) after the expiry of the appropriate period referred to, which in the present case was 45 days after the fixed date, being 4 February 2007; and

• (e) had no lawful authority to occupy or use that land.

Held, further, that the elements were established sufficiently to put the applicant on his defence.

Held, further, that the clear and unambiguous meaning of s 2(1) of the Act was that "lawful authority" meant an offer letter, a permit and a land settlement lease. The documents produced by the applicant were not offer letters, permits or land settlement leases issued by the acquiring authority. A letter from the late Vice President, the Presidium or any other member of the Executive did not constitute "lawful authority" in terms of the Act.

Held, further, that s 16B of the Constitution, which allowed an Act of Parliament to make it a criminal offence for any person, without lawful authority, to possess or occupy land referred to in the section or other State land, did not define the concept of "lawful authority", nor did it confer on the courts the power to determine what constitutes "lawful authority". That was left to Parliament to define.

Editor's note: This matter was a "pending constitutional case" as defined in para 18(1)(a) of the Sixth Schedule to the Constitution of Zimbabwe 2013. It had been referred to the Supreme Court in terms of the former Constitution.