Chamunorwa Charles Mutyambizi v M.M. Pretorius (Pvt) Ltd & 3 Ors

### Preamble
HH 288-2011
HC 9052/11
CHAMUNORWA CHARLES MUTYAMBIZI
---------




CHAMUNORWA CHARLES MUTYAMBIZI

versus

M.M. PRETORIUS (PVT) LTD

and

SYLVIA LORRAINE PRETORIUS

and

JOSEPH GONCALGES

and

MINISTER OF LANDS AND RURAL RESETTLEMENT (N.O.)

HIGH COURT OF ZIMBABWE

CHIWESHE JP

HARARE, 17 November 2011 & 23 November 2011

I. Ndudzo, for the applicant

R. Harvey, for the first, second & third respondents

CHIWESHE JP:  The applicant seeks an order in the following terms:

“IT IS ORDERED THAT:

Applicant be and is hereby declared to be lawfully authorised to be in occupation  of subdivision 1 of Charmaine of Dryton in Seke District of Mashonaland East Province in terms of the Offer Letter issued by the 4th Respondent in his favour dated 3 January 2005.

1st, 2nd and 3rd Respondents be and are hereby ordered to forthwith give vacant occupation of subdivision 1 of Charmaine of Dryton in Seke District of Mashonaland  East Province to the Applicant.

The Deputy Sheriff and/or his lawful assistants be ordered to give effect to terms of (2) above.

1st 2nd and 3rd respondents to pay costs of suit.”

It is common cause that the first respondent is the former owner of a certain piece of land commonly referred to as Subdivision 1 of Charmaine Dryton situated in the Seke District of Mashonaland East Province, measuring 304,15 hectares.  This property was acquired by the State on 10 October 2003 under the General Notice 493A of 2003 issued in terms of the Land Acquisition Act [Cap 20:10].

Notwithstanding the admission by the respondents that the property was acquired by the State and therefore falls under the category generally referred to as “gazetted land”, the respondents have remained in occupation without lawful authority as defined in terms of s 2 of the Gazetted Land (Consequential Provisions) Act [Cap 20:28].  The section provides as follows: “(1) In this Act- ‘lawful authority’ means –

an offer letter, or;

a permit, or

a land settlement lease

and ‘lawfully authorised’ shall be construed accordingly;

offer letter means a letter issued by the acquiring authority to any person that offers to allocate to that person any gazetted land, or a portion of gazetted land, described in that letter;

‘permit’, when used as a noun, means a permit issued by the State which entitles any person to occupy and use resettlement land;”

It is clear therefore that the property belongs to the State and that in the absence of

any authority issued by the State the respondents’ occupation of the property is in flagrant  violation of the law.	The respondents have lost all rights to the acquired property by operation of law.  Being neither owners nor lawful occupiers the respondents’ occupation of this property cannot be sustained.

On the other hand, the applicant has demonstrated beyond doubt that he holds an offer letter issued to him by the competent authority in terms of the law.  By virtue of that fact the applicant is entitled, as he now does, to claim the right of occupation and use of the property and to seek ejectment of the respondents whose continued and illegal occupation of the property negates the fulfilment of that right.

The respondents have sought to show (without success) that the applicant’s offer letter is not validly issued or was at some stage withdrawn and that for that reason the applicant has not been able to occupy the farm. The applicant, on the other hand, avers that it is the respondents who at every turn have frustrated him in his effort to secure occupation. The parties’ dispute in this regard is irrelevant to the outcome of this application.  Accordingly, the attempt by the respondents to argue that the dispute of fact arising from the conduct of the parties prior to this application renders the resolution of this matter (without hearing viva voce evidence) impracticable, is doomed to fail.  The issue before the court is clearly whether at law the applicant is entitled to the relief he seeks.  The facts relevant to that determination are largely common cause, namely that the property is gazetted land, that no offer letter or other lawful authority has been acquired by the respondents and that, on the contrary, the applicant is the holder of an offer letter to occupy the property concerned, a fact which has been confirmed by the issuing authority.

The respondents sought to justify their continued occupation of the property by relying on certain communications made on their behalf by the local lands committees, the District Administrator and the Provincial Governor of Mashonaland East.  Whilst certain   expectations might have been raised by these communications, nothing materialised in the respondents’ favour.  These communications represent mere recommendations to the Minister of Lands to allocate the property to the respondents.  Their contents and tenor suggest nothing further than that.

Such communication cannot, by any stretch of the imagination, constitute “a permit” issued in terms of the Act as contended by the respondents.  This communication was neither addressed to nor copied to the respondents.  It was clearly an internal communication intended to persuade the Minister of Lands to issue an offer letter or other lawful authority to the respondents.  The fact of the matter is that the Minister has not been persuaded and until that happens, the respondents have no leg to stand on.

The prerogative to acquire land on behalf of the State vests with the Minister of Lands.  Similarly, he alone has the power to allocate gazetted land to beneficiaries.  There is no provision for the delegation of this function to any other officer of the State.  Accordingly this communication has no legal force or effect.   Its inclusion in these papers at this late stage could be viewed as an attempt to unduly influence the outcome of this application.

In the case of Commercial Farmers Union and Ors vs The Minister of Lands and Rural Resettlement and Ors Judgment No. SC 31/10, Constitutional Application No. 8/10, it was held at p 28 of the cyclostyled judgment paragraph (3) that “every former owner or occupier of acquired or gazetted land who has no lawful authority is legally obliged to cease occupying or using such land upon the expiry of the prescribed period ….” and that, “By operation of law, former owners or occupiers of acquired land lose all rights to the acquired land upon the expiration of the prescribed period.”  And at para 4 it was further held that, “ a former owner or occupier of acquired land who without lawful authority, continues occupation of acquired land after the prescribed period commits a criminal offence .   If the former owner or occupier continues in occupation in open defiance of the law, no court of law has the jurisdiction to authorise the continued use or possession of the acquired land.”

This is the position in which the respondents find themselves.  This court cannot authorise their continued occupation of this property in clear and open defiance of the law.  Even if the respondents had succeeded in proving that the applicant did not hold a valid offer letter, that fact alone would not have altered the fact that they no longer have any rights of ownership or occupation and without an offer letter issued to them in their own right, their position would have remained untenable, and doomed to the same fate.  The fact that the applicant or any other person does not have an offer letter to the property does not entitle the respondents to occupy gazetted land without lawful authority.  At paragraph (6) of the same page it is stated thus:

“A permit , an offer letter and a land  settlement lease are valid legal documents when issued by the acquiring authority  in terms of s 2 of the Act and s 8 of the Land Settlement Act.  The holder of such permit, offer letter or land settlement lease has the legal right to occupy and use the land allocated to him or her in terms of the permit, offer letter or land settlement lease.”

Clearly these are the rights accruing to the applicant – rights which this court must uphold.    The respondents aver that the various pronouncements by the Supreme Court in the Commercial Farmers Union case above amount to no more than mere dicta and therefore not binding in the determination of this application.  It is averred that the points raised were not argued before the Supreme Court and that they were raised meru moto and in passing.  I disagree with that assertion.  An analysis of the issues put before the Supreme Court will show that the constitutional application touched on various legal issues pertaining to the land reform programme including the rights and obligations of former owners of gazetted land, the State and the beneficiaries.  The application was opposed and both sides presented written and oral arguments.  The legal issues pertaining to matters such as the present were determined on the merits and binding decisions given, including directions to subordinate courts, the police and other State officials.  I would therefore dismiss the respondent’s averments in that regard.  Assuming that the respondents’ averments were correct and that these pronouncements were indeed mere “dicta”, I would have found such “dicta” to be highly persuasive and would consequently have arrived at the same conclusion, namely, that this application must succeed.

It was for these reasons that I granted the application with costs.

Mutamangira & Associates, applicant’s legal practitioners

Granger & Harvey, 1 -3rd Respondent’s legal practitioners