Nixon Katazo Misi v Zimbabwe National Army

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HH 379-2012
HC 10482/12
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NIXON KATAZO MISI

versus

ZIMBABWE NATIONAL ARMY

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 19 September and 25 September 2012

Urgent Chamber Application

T Matiyashe, for the applicant

M Machingura, for the respondent

MATHONSI J:  In this application, the applicant seeks a provisional order in the following terms;

“Terms of Final Order Sought

That you show cause to this Honourable Court why an order should not be granted in the following terms:

Respondent in fencing its cantonment area or operation shall not include the applicant’s land which was purchased from Kadoma Rural District Council which is also known as number 2 The Range until there’s an order from a competent court to do so.

Respondent to pay costs of suit at a higher scale.

Interim Relief

Pending the return date or finalisation of this matter, it is ordered that:

Respondent in its fencing exercise be and is hereby ordered to immediately stop incorporating, or including the applicant’s land also known as number 2 The Range Kadoma.”

In his founding affidavit the applicant stated that he applied to the Ministry of Local Government, Public Works and National Housing to acquire stand number 2 The Range Kadoma sometime in 2003. His application was successful and the Ministry referred him to the Kadoma Rural District Council under whose jurisdiction the land in question falls. In due course he purchased the land and paid the requisite purchase price.

The applicant submitted supporting documents showing the transaction between himself and the local authority in the form of a Deed of Cession signed on 14 January 2005. He also submitted a proposed site plan for a filling station, supermarket and Truck Inn he intends to construct on the stand. It appears common cause that up to now no construction work has commenced at that site.

To the applicant’s chagrin it was brought to his attention on 6 September 2012 that the respondent had started erecting poles for purposes of fencing off the area which fence is set to incorporate his land. He has not given details as to whether the fence takes away the whole or part of his stand. When he made inquiries he was advised that the area was being fenced as it was declared a cantonment for the respondent.

This prompted the applicant to bring this application on an urgent basis seeking the relief alluded to above as it is his view that he has a clear right over the land in question he having purchased it aforesaid. Mr Matiyashe appearing for the applicant submitted that all the essentials of an interdict have been met as the applicant has a clear right which is now being threatened by the respondent. In light of the activities taking place at the site, he has no other remedy but the one that he is pursuing.

Major Machingura who appeared for the respondent strongly opposed the application. He submitted that the area in dispute has to be fenced as it was declared a cantonment in terms of s 89 of the Defence Act [Cap 11:02] (“the Act”). He drew my attention to the Defence (Cantonment) Notice SI 61/2012.

In terms of s 89 of the Act:

“The Minister may, by notice in a statutory instrument, declare any area or place to be a cantonment for the purposes of this Part:

Provided that the powers conferred by this section shall not include the power to acquire, whether compulsorily or by agreement, any Communal Land or any interest in or right over Communal Land, otherwise than in accordance with the Communal Land Act [Cap 20:04].” (The underlining is mine)

It may be useful to read s 89 in conjunction with s 96 (1) of the Act which provides:

“When it appears to the President that any land or an interest in or right over any land is required for defence purposes, it shall be lawful for the Minister, on the authority of the President, to acquire such land, interest or right:

Provided that the powers conferred by this subsection shall not include the power to acquire, whether compulsorily or by agreement, any Communal Land or any interest in or right over Communal Land, otherwise than in accordance with the Communal Lands Act [Cap 20:04].”

Clearly therefore, where “any land” other than Communal Land is required for defence purposes such land can be acquired by the relevant 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. It matters not in my view that before such declaration was made the land had been purportedly donated by the Kadoma City Council which, according to the applicant, did not have authority over the land in question as it fell under the jurisdiction of the Kadoma Rural District Council instead. I have not found it necessary to inquire further into the status of the two local authorities regarding the land in dispute or indeed, if they are two different entities as alleged by the applicant. This is because it would not make a difference.

The Minister of Defence gave notice through the Defence (Cantonment) Notice SI 61/2012 that the area being fenced by the army is cantonment area for purposes of an Army Boarding School. That statutory instrument has not been invalidated and remains extant. The applicant has not approached the court challenging the validity of the statutory instrument. Quite to the contrary he has come to court claiming a clear right over the property which entitles him to an interdict against the respondent.

The requirements of a permanent interdict that one should have a clear right, which right is being infringed or a well-grounded apprehension of such an infringement, a well-grounded apprehension of irreparable harm to the applicant, the absence of any other satisfactory remedy and that the balance of convenience favours the grant of the interdict, have not been met because a clear right cannot exist where there is a statutory instrument declaring the land a cantonment.

Mr Matiyashe for the applicant submitted that the applicant has got a clear right over the disputed land because he has shown, through documents filed of record, that he purchased it from the local authority under which it falls. That argument is not sustainable at all because, as I have already stated, the Minister is empowered to declare any land a cantonment. What is common cause is that the land in dispute is not Communal Land as to place it outside the power given to the Minister by s 89 of the Act.

It cannot be said, by any stretch of the imagination, that the applicant has a clear right over the land when it has been declared a cantonment in terms of the law. A challenge of that declaration is not what is before me. Mr Matiyashe has produced an adverse report compiled by the Parliamentary Legal Committee on S I 61/2012 in which that committee states that the declaration of the area as a cantonment, which has the effect of criminalising the entering of the area by members of the public, infringes upon the rights of members of the public enshrined in the constitution.

Even if one were to accept that the views of the Parliamentary Committee are persuasive, those views do not relate to the rights of ownership sought to be protected by the applicant but merely the curtailment of the freedom of movement in the area. More importantly, as Mr Matiyashe has conceded, that report does not have the effect of invalidating the statutory instrument which remains effective and binding.

As a court of law I cannot enforce a report of a Parliamentary Committee over regulations which have been gazetted and constitute the law of the country. Accordingly that report does not elevate the applicant’s case to anything that can be protected by a court order.  I am therefore not persuaded that the applicant has made out a good case for the relief that he seeks.

Accordingly the application is hereby dismissed with costs.

Mangwana & Partners, applicant’s legal practitioners

Zimbabwe National Army, respondent’s legal practitioners