Isau Katobo and Francis Mutambwi v The State

### Preamble
1
HCC50/25
HCCR492/25
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ISAU KATOBO

AND

FRANCIS MUTAMBWI

VERSUS

THE STATE

HIGH COURT OF ZIMBABWE

MUZOFA & BACHI-MZAWAZI JJ

CHINHOYI,  11 September  2025

Criminal Appeal

V L Zvobgo for the appellant

M M Chitsiga for the respondent

MUZOFA J

[1] After hearing parties, we partially allowed the appeal in an ex tempore judgment. The appellants have requested for the written reasons.

[2]The appellants were convicted after a trial for contravening s3(1) of the Gazetted Land [Consequential Provisions] Act [Chapter 20:28]’ the Act’. Each was ordered to pay a fine of US$150, in addition they were ordered to vacate the Plot within 72 hours.

[3]The background facts are largely common cause. The appellants allegedly occupied Plot 5, Lindely of Railway 22 Farm (‘the Plot’) from May 2019 to October 2024 without lawful authority.

[4]The only issue for determination before the trial court was whether the appellants had lawful authority to occupy the Plot.

[5] The appellants denied the charge The first appellant’s defence was that he was allocated Plot 6 of Railway 22 by the District Administrator who showed him the demarcations. The second appellant said he occupied Plot 11 of Railway 22 which was lawfully offered to George Mutsoka.His occupation was through a Special Power of Attorney signed by Mutsoka which was filed with the Ministry of Lands. He produced both the offer letter and the Special Power of Attorney. He also produced proof that he paid the dues to the Ministry for the land he occupied.

[6]. After hearing parties, the trial court convicted the appellants after finding that only an authorised person can occupy Gazetted land. The appellants had no lawful authority to occupy the Plot.

[7] The trial  Court also rejected the 2nd appellant’s occupation as lawful based on a Special Power of Attorney.

[8] Dissatisfied by the decision the appellants noted the appeal and relied on the following grounds of appeal.

[9] Ad conviction

1. The court a quo erred at law by convicting the appellant where the matter was purely a civil and administrative case such that it was to be determined by civil proceedings and adjudicated the (sic) Ministry of Lands.

2. The court a quo erred at law by holding that the 2nd appellant had no lawful authority where there was proof of an offer letter and correspondences from the Ministry of Lands justifying his occupation

3. The court a quo erred at law by holding that the power of attorney between the second appellant and George Mutsoka did not constitute lawful authority justifying occupation by the 2nd appellant.

[10] Ad sentence

4. The court a quo erred by ordering the appellants’ eviction within a period of 72 hours. The period was too short and unreasonable considering that the appellants were harvesting their tobacco and maize and had families residing on the plot.

Consequently, the appellants prayed for a longer period of 90 days to vacate from the plot.

Analysis

[11] The 1st appellant’s appeal need not detain the Court for long. A veiled concession was made by his legal practitioner that it is unmerited.

[12] Section 3 of the Act criminalises conduct by any person who occupies Gazetted Land without lawful authority. To prove its case the State has to establish that the land was properly Gazetted and acquired by the State. Secondly, that the occupier occupies the land without authority.

[13] Section 2 of the Act defines lawful authority as an offer letter, a permit or a land settlement lease issued by the acquiring authority. In a line of cases, Superior courts have applied this definition without further ado.See Commercial Farmers Union And Ors v The Minister of Lands and Rural Resettlement and Ors 2010 (2) ZLR 576 (S) which in turn cites Tom Beattie Farms (Pvt) Ltd and Another v Ignatius Mugova and Anor SC 32/09. Yoramu v The State HH10/17.

[14]The 1st appellant relied on a letter written by the district administrator. It is a letter that does not assist him at all in terms of authorised occupation on the plot it reads:

‘This letter serves to notify you that Isaac Katobo I.D No. 38-183725Y15 is a carrying out his farming activities at Plot 6 Railway 22 Farm measuring about 20 hectares.

Please assist him if possible.”

[15] The letter did not confer on him rights to occupy the Plot. Most crucially the District Administrator is not the acquiring authority he/she could not pass rights he/she did not have. The letter cannot be construed to be an offer letter, a permit or a lease as envisaged by the Act.He does not even have authority to occupy the said Plot 6.

[16] It seems the 1st appellant’s claim was on Plot 6 not Plot 5 which was the subject matter. The evidence before the Court a quo was that he did not occupy Plot 6 but Plot 5. As matters stand, he had no lawful authority to occupy Plot 5.

[17] As regards 2nd appellant I shall deal with the grounds of appeal in seriatim. The first ground of appeal is misguided it simply shows a lack of appreciation of the Act. Any occupation of Gazetted Land must be based on lawful authority. Any dispute that arises from occupation of such land gives rise to criminal proceedings. If there is a civil claim then that does not impede criminal proceedings. The legislature, in its wisdom criminalised unlawful occupation of gazetted land.

[18]The documentary evidence before the court a quo shows that one G Mutsoka was offered Plot 11 in 2013. He signed a special power of attorney empowering 2nd appellant to conduct farming activities on the said Plot.

[19]A lands officer gave evidence that the Ministry erred when it issued the said offer letter. Plot 11 was non-existent. The Ministry of lands is the administrative authority reposed with power to administer Gazetted land. It conceded its error and offered to correct it.

[20] Since the 2nd appellant’s offer letter does not relate to Plot 5, his occupation of Plot 5 remains illegal. Chikosha’s evidence was that there was some encroachment. It appears the Ministry of Lands needs to right what it did wrong, the appellant was issued with an offer letter that has not been withdrawn.

[21]Ms Zvobgo urged the court to take into account that the Ministry received payments in respect of Plot 11 from the 2nd appellant, it recognised the existence of Plot 11.

[22] Persuasive as it maybe, the submission is unsustainable. A close look at the exhibits shows that the appellants appeared on remand on the 30th of October 2024.The 2nd appellant paid a total of $15000(currency not specified) as rentals to the Ministry on  29 October 2024 for the period 2013-2024. Obviously by then they had been arrested and the dispute between the parties had transcended the administrative authority and spilled into the court. In our view to hold that by accepting the money the administrative body made concessions would be far-fetched. The payments were made in one day, post the dispute, the probabilities are that it was meant to sanitise the occupation.

[23]Our reason in this case is that, the administrative body having conceded the error, it is not for the court to direct it how it should take corrective measures. In a letter dated 12 December 2024 addressed to SARUWE ZRP Chegutu the administrative authority undertook to take corrective measures.

[24]The court aquo relying on the evidence from the administrative authority made a finding that 2nd appellant had no authority to be on Plot 5. If he had authority to occupy any land it was Plot 11 unfortunately it does not exist on the ground. We appreciate the difficulty that befalls the 2nd appellant as a result of this alleged error. His recourse is against the acquiring authority other wise the court cannot reject the acquiring authority’s evidence. It would amount to usurping its powers.

[25] As regards sentence, we found it necessary to interfere. Technically the period has lapsed, but on principle, it is unjust to order eviction within 72 hours of a party that had established itself for a considerable time.

Accordingly, the following order is made.

The appeal against conviction is dismissed.

The appeal against sentence succeeds. The sentence by the court a quo is set aside and substituted with the following

‘The accused shall vacate the Farm within 90 days of this order.”

BACHI MZAWAZI J – I Agree