HH 23-2006
HC 8365/2003
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Maxwell Kufakunesu Chisvo And Another
Versus
Nelson Peter And Others
HIGH COURT OF ZIMBABWE
PATEL J
HARARE, 27-28 July 2005 and 1 March 2006
Civil Trial
Mr. Dondo, for the plaintiffs
Mr. Tomana, for the defendants
PATEL J: The plaintiffs in this case seek the ejectment of all the defendants
(who are 30 in all), and of all persons claiming title through them, from the
property known as Railway Farm 26, in Chegutu.
At the inception of the trial of this matter, the plaintiffs formally withdrew
their action against the 31st defendant, namely, the Minister of Lands, Agriculture
and Rural Resettlement. Plaintiffs’ counsel also sought judgement by default as
against those defendants who were not personally present at the trial. However,
counsel for the defendants submitted that the 8th defendant, Jeremiah Chikepe,
had been appointed and authorised to represent all the defendants in this matter.
The Court accordingly ruled that the 8th defendant would represent all the
defendants in casu and that those defendants who were not present in person
were to be excused from attendance at the trial.
Evidence for the Plaintiffs
The 1st plaintiff, Maxwell Chisvo, testified that he purchased the property
in dispute from one Wynand Bezuidenhout in terms of an agreement signed on
the 2nd of November 1999 (Exhibit 1). He then approached the relevant
authorities and obtained a certificate of no present interest dated the 4th of July
2001 (Exhibit 2) as well as a subdivision permit which was issued on the 10th of
January 2002 (Exhibit 3). The property was eventually transferred into his name
by deed of transfer dated the 19th of July 2002 (Exhibit 4). Thereafter, during the
remainder of 2002 and 2003, he invested heavily on the farm by introducing
certain infrastructure and equipment as well as 500 head of cattle.
At the end of 2002, the 1st plaintiff was served by the Ministry of Lands
with a preliminary notice of intention to acquire the property. Acting on the
advice of a senior Ministry official, he applied to the relevant authorities to have
the property de-listed from acquisition. On the 18th of October 2002, the
Chairman of the Provincial Land Identification Committee recommended that the HH 23 - 2006
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property be de-listed on the ground that it was “indigenous owned” ( see Exhibit
5).
Subsequently, various A1 Scheme settlers arrived on the property during
the early part of 2003, without any prior official notification or demarcation of the
property by the authorities. He again approached the Ministry of Lands for
assistance and a letter was written by the Ministry to the District Administrator on
the 5th of February 2003 (Exhibit 6) requesting that the settlers on the property
be relocated. This request apparently remained unheeded.
The 1st plaintiff claims that the settlers on the property have destroyed
vegetation, slaughtered his cattle and removed fencing from his paddocks and
that they also threatened and harassed his employees. These actions have
significantly affected his farming activities which are still proceeding – but with
great difficulty.
Under cross-examination, the 1st plaintiff claimed that the de-listing of the
property had been processed by the Ministry of Lands. However, he was unable to
produce or identify any relevant Gazette notice de-listing the property. Nor was
he able to adduce any other evidence of such de-listing. He also indicated that he
was challenging the acquisition of the property before the Administrative Court on
the ground that he was an indigenous farmer. Again, he was unable to explain
why, despite the property having been de-listed as alleged, the application for the
confirmation of its acquisition was still before the Administrative Court and had
not as yet been withdrawn or thrown out by that court.
John Mugadza, who is a director of the 2nd plaintiff, testified that the 2nd
plaintiff purchased Lot 4 of Railway Farm from the 1st plaintiff, as a subdivision of
Railway Farm 26 after the entire farm had been subdivided. The ownership of this
piece of land was transferred to the 2nd plaintiff by deed of transfer dated the 19th
of July 2002 (Exhibit 7). Mugadza’s evidence in all other respects was similar to
the testimony of the plaintiff. However, under cross-examination, he conceded
that the A1 settlers would have had to clear vegetation and remove fencing in
order to establish and cultivate their own sub-plots. Again, like the 1st plaintiff, he
was unable to give any meaningful evidence on the status of the proceedings
pending before the Administrative Court apropos the acquisition of the property in
casu by the State.
Evidence for the Defendants
The 8th defendant, Jeremiah Chikepe, gave evidence on behalf of all the
defendants as their duly authorised representative. He testified that in May 2001
a total of 34 A1 settlers went on to the disputed property, having been resettled HH 23 - 2006
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on the whole of Railway Farm 26 by the District Administrator for Chegutu. All 34
settlers are still present on the property.
Initially, although the entire property had already been demarcated by the
authorities, the settlers were not given any letters identifying or confirming their
respective holdings. Instead, each settler was allotted his or her individual plot
through a system of selecting numbered bottle-tops representing the relevant
demarcated plots. Having selected a single bottle-top and identified the relevant
plot, each settler than proceeded to the District Administrator to obtain his or her
individual letter of confirmation.
As evidence of such allocations, Chikepe produced his own letter of
allocation date-stamped the 3rd of October 2001 (Exhibit 8A). He also produced
other letters of allocation in respect of other settlers (Exhibit 8B) issued on
different dates between 2001 and 2005. Under cross-examination, he explained
the differing dates on the basis that some of the original letters of allocation had
probably been lost and then replaced by subsequent letters issued to the allottees
concerned.
In July 2002, the 1st plaintiff came on to the farm and claimed the entire
property. Chikepe then consulted the District Administrator who denied any claim
by the 1st plaintiff and confirmed the defendants’ settlement on the property. In
August 2002, the 1st plaintiff arrived with his equipment and fencing and
demarcated two unoccupied plots as paddocks. Chikepe again approached the
District Administrator as well as the Chief Lands Officer for Mashonaland West,
both of whom acknowledged only the A1 settlements on the property.
Subsequently, Chikepe met with a senior official at the Ministry of Lands who
advised him that the property had originally been identified and gazetted for
acquisition from the former landowner and was to be re-gazetted for acquisition
from the 1st plaintiff.
On the 6th of March 2003, the Ministry of Lands served an acquisition order
upon the 1st plaintiff in respect of the property in dispute. After the expiration of
90 days, the 1st plaintiff was evicted by the relevant authorities. He then vacated
the farm with most of his property, except for his cattle which were left
unattended. As the cattle were stray and destructive, Chikepe sought the
assistance of the authorities to remove the cattle from the farm. On the 5th of
February 2004, the Chief Lands Officer for Mashonaland West wrote a letter to
the local police in that connection (see Exhibit 9). This letter also confirmed that
the 1st plaintiff and four other companies were served with various notices of
acquisition in respect of Railway Farm 26, viz. a section 5 notice on the 8th of
November 2002, a section 8 notice on the 6th of March 2003 and a section 7 HH 23 - 2006
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notice on the 31st of July 2003. The matters contained in this letter were not
questioned or disputed by the plaintiffs in any material respect.
Chikepe further testified that he has not witnessed any slaughtering of
cattle on the property as alleged by the plaintiffs and that the cutting of trees and
vegetation by the settlers on the farm was necessary in order to clear the land for
cultivation. He also confirmed that the plaintiffs were no longer occupying the
property and that a caretaker appointed by the State was presently looking after
the farmhouses on the property and overseeing the farm as a whole.
The Issues
The issues for determination in this case, by common cause, are as
follows:
(a) Whether the plaintiffs’ properties in casu have been lawfully
acquired by the State in accordance with the relevant enabling
legislation?
(b) Which of the parties in this matter has the right to lawfully occupy
the aforesaid properties?
Acquisition of Agricultural Land for Resettlement
The procedures governing the acquisition of agricultural land for
resettlement purposes are presently embodied in Part III of the Land Acquisition
Act [Chapter 20:10]. To a significant extent, these procedures have been
superseded by the provisions of section 16B of the Constitution of Zimbabwe.
Section 16B was promulgated and came into force on the 14th of September
2005. In terms of section 16B(2)(a) as read with section 16B(3)(a), all
agricultural land that was previously identified for resettlement purposes vested
in the State, with full and unchallengeable title therein, with effect from that date.
For present purposes, however, the Court is seized with events which
occurred well before the enactment of section 16B of the Constitution and must
therefore be guided by the relevant provisions of the Land Acquisition Act.
Section 5(1) of the Act requires the acquiring authority to give a preliminary
notice of its intention to acquire any land. Section 5(3) enables the acquiring
authority to withdraw any such preliminary notice at any time.
Section 8(1) empowers the acquiring authority to issue an acquisition
order in respect of any land identified for compulsory acquisition. By virtue of
section 8(3), the effect of an acquisition order is to immediately vest title of the
land concerned in the acquiring authority, whether or not compensation therefor
has been agreed upon, fixed or paid in terms of Part V or VA of the Act. HH 23 - 2006
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In terms of section 9(1)(b), the making of an acquisition order constitutes
notice in writing to the owner or occupier to vacate the land within 45 days after
the order is served upon him and to vacate his living quarters within 90 days of
such service.
Where the acquisition of the land is challenged, section 7(1) enjoins the
acquiring authority, within 30 days of issuing the acquisition order, to apply to the
Administrative Court for an order confirming the acquisition. In terms of section
7(4)(b), the Administrative Court may only confirm the acquisition of rural land if
it is satisfied that the acquisition is reasonably necessary for the utilisation of that
land for, inter alia, settlement for agricultural or other purposes.
Also pertinent is section 10A(1) of the Act which enables the acquiring
authority to revoke an acquisition order within 6 months after making the order.
In terms of section 10A(2), such revocation must be effected by notice in the
Gazette, followed by written notice served on the landowner.
Plaintiffs’ Rights
In the present matter, there is clear and uncontroverted evidence that the
plaintiffs were duly served with a preliminary notice of intention to acquire in
terms of section 5 on the 8th of November 2002. They were then served with a
section 8 order acquiring the property on the 6th of March 2003. Thereafter, they
received notice of an application for confirmation of the acquisition under section
7 on the 31st of July 2003. Eventually, at some stage in the middle of 2003, the
plaintiffs vacated the property with all their equipment and belongings, except for
the 1st plaintiff’s cattle. The argument that they were indigenous landowners
clearly could not in law and did not in fact preclude the compulsory acquisition of
their properties for the purposes of the Land Reform Programme.
In any event, the plaintiffs were unable to adduce any evidence
whatsoever to show that the preliminary notice of November 2002 had been
withdrawn or that the acquisition order made in March 2003 had been revoked.
Nor were they able to proffer any evidence pertaining to the application for
confirmation pending before the Administrative Court at the time of the trial.
On these facts, it is abundantly and unquestionably clear that the property
in question was duly acquired by and vested in the State with effect from the 6th
of March 2003. Apart from the right to claim compensation for improvements, the
plaintiffs in casu have no present title or other enforceable interest in Railway
Farm 26 or any of its subdivisions. That being so, they have neither the
necessary substantive right nor the requisite locus standi to approach this Court
for the ejectment of the defendants or any other persons from the property. HH 23 - 2006
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Defendants’ Rights
In view of the conclusion that I have reached above, it does not seem
necessary to determine the second question as to the rights of the defendants to
occupy and remain on the property in question. Nevertheless, for the avoidance
of doubt, I deem it necessary to address this point in order to bring this matter to
finality.
From the evidence adduced, it is apparent that when the defendants first
settled on the farm in May 2001 it still belonged to the former owner and had not
at that stage been acquired by the State. Moreover, as they had not been settled
on the farm as at the 1st of March 2001, they did not enjoy the protection
afforded by section 3 of the Rural Land Occupiers (Protection from Eviction) Act
[Chapter 20:26] which was promulgated in 2001. Therefore, the legality of their
occupation at its inception was clearly questionable. However, they continued to
occupy the farm when it was purchased by the plaintiffs in July 2002 and
subsequently acquired by the State in March 2003. Thereafter, they have
remained in continuous occupation of the property up to the present time.
The evidence before the Court indicates that the defendants were initially
settled on the farm by the District Administrator in Chegutu. Each defendant was
then given a plot of land and given a letter of allocation in respect of his or her
individual holding on the property. These allocations were then subsequently
confirmed on different dates both before and after the property was acquired by
the State in March 2003. Despite the apparent lack of co-ordination between the
central and local officialdom responsible for the allocation of land earmarked for
resettlement, it is reasonably clear that the State’s intention from the outset was
to allocate the property as a whole to the defendants. Moreover, as appears from
the letters of allocation issued after March 2003 as well as the contents of Exhibit
9, which is dated the 5th of February 2004 and which alludes to the A1 settlers as
“the legal owners of the plots on Railway Farm 26”, there is little doubt that the
State has effectively endorsed and authorised the defendants’ occupation of the
property. I am alive to the fact that the Court was not shown official letters of
allocation issued after March 2003 in respect of each and every defendant.
Nevertheless, having regard to the 8th defendant’s testimony, as amply
corroborated by the documentary evidence before the Court, I am satisfied that
all the defendants in casu are presently the lawful occupiers of their individual
holdings at Railway Farm 26. HH 23 - 2006
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Clear and Formal Title
What is necessary, at this juncture, is for the State to explicitly
acknowledge and regularise the defendants’ rights of occupation in some formally
acceptable fashion. It is a matter of some concern that after over four years of
their having been settled on the property the defendants’ rights therein should be
susceptible to doubt and unnecessary litigation.
What I perceive to be an essential feature of the Land Reform Programme
is the need to formalise the underlying land allocation system. What this requires,
amongst other things, is the compilation and maintenance of detailed and readily
accessible official records based on legally cognisable title, either by way of lease
or occupation permit, which clearly identifies the designated landholder and
stipulates the governing terms and conditions of occupation.
The A1 resettlement scheme, in my view, is the very raison d’être of
Zimbabwe’s Land Reform Programme, which was originally conceived and
designed to benefit our landless and colonially dispossessed people. It would, I
believe, be quite unforgivable if it were to be unravelled by the vagaries of supine
bureaucracy.
Judgement
In the premises, the Court finds that the plaintiffs have no legally
enforceable right in Railway Farm 26 entitling them to eject the defendants from
the property or any of its subdivisions. Furthermore, the defendants are entitled
to occupy and remain on the property as the duly authorised allottees of their
respective holdings.
In the result, the plaintiffs’ claim for the ejectment of the defendants is
dismissed with costs.
Chinamasa, Mudimu & Chinogwenya, plaintiffs’ legal practitioners
Muzangaza, Mandaza & Tomana, defendants’ legal practitioners
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