Wasarawasara Ranching (Pvt) LTD AND Thomas GARY Warth V Constance Mutandwa AND National Prosecuting Authority

### Preamble
1
HH 620-18
HC 1631/17
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WASARAWASARA RANCHING (PVT) LTD

and

THOMAS GARY WARTH

versus

CONSTANCE MUTANDWA

and

NATIONAL PROSECUTING AUTHORITY

HIGH COURT OF ZIMBABWE

TAGU J

HARARE 19 July & 10 October 2018

Opposed Matter

W Chivaura, for applicants

E Mabuto, for respondents

TAGU J: The two applicants are undergoing criminal prosecution at Chiredzi Magistrates Courts for holding, using and occupying gazetted land without lawful authority in contravention of section 3(2) as read with section 3 (3) of the Gazetted Land (Consequential Provisions) Act [Chapter 20. 28]. The allegations being that on the period extending from the 4th  day of February 2007 to date and at the remainder of Chiredzi Ranch North both Wasara Wasara Ranching Company (Pvt) Ltd and Thomas Garry Warth being former owners of gazetted land, unlawfully held, used or occupied this land 45 days after the fixed date of 20 December 2006, that is to say Thomas Garry Warth is holding, using or occupying Chiredzi Ranch North without lawful authority.

At the close of the state case the applicants made an application for discharge. The application was dismissed by the trial Magistrate who is the first respondent. The applicants are now petitioning this court to review the decision of the trial magistrate dismissing their application for discharge at the close of the state case. The applicants are seeking the following orders that-

“1. the decision of the first respondent sitting at Chiredzi magistrates court on 14 February 2017 dismissing the application for discharge in CRB CH 801-2/09 be and is hereby set aside.

2. the applicants are hereby acquitted.”

The grounds for review relied upon by the applicants do not comply with the mandatory requirements of Order 33 Rule 257 of the High Court Rules, 1971. They are not clear as to the source of the contention since they are couched in too general terms. They do not specifically point at the issue that is being complained of. However, what can be gleaned from the founding affidavit of the second applicant Thomas Gary Warth is that they are alleging that the Farm in question was transferred from the Minister responsible for land to the Minister of Environment and Tourism as part of a Conservancy hence the Gazetted Land (Consequential Provisions) Act no longer apply to them. Further they averred that the trial Magistrate erred in interpreting that the letter transferring the land from the Ministry of lands to the Ministry of Environment and Tourism was subject to a suspensive condition. As to the other grounds they are stated in general terms without precision so much so that it is not clear what exactly the applicants are complaining of.

However, be that as it may, the court need to put the matter in its proper perspective. The applicants are former owners of a farm known as the remainder of Chiredzi Ranch North also registered and known as Wasara Wasara Ranching (Pvt) Ltd under the Deed of transfer 6600/85 measuring five thousand and ten comma eight seven zero zero (5010,8700) hectares in the district of Chiredzi. The said Farm was gazetted on the 6th day of August 2004 in the Government Gazette volume LXXXXII number 63 General Notice 625/2004 for resettlement purposes. The applicants were required by law to cease to occupy, hold or use that land 45 days after the fixed date and not later than 20 December 2006. At the expiry of the fixed date the applicants failed to leave the land and unlawfully without authority continued to occupy, hold or use the said land. The applicants were then arrested and charged with contravening section 3 (2) A.R.W. section 3(3) of the Gazetted Land (Consequential Provisions) Act [Chapter 20.28]. On the 28th August 2007 the then Minister of State Security, Lands, Land Reform and Resettlement in the President’s Office, the Honourable MP Didymus .N. Mutasa wrote a letter to the then Honourable MP Francis Nhema who was the Minister of Environment and Tourism handing over seven Farms as Conservancies. One of the seven farms handed over to Minister F Nhema was Chiredzi River Conservancy (presumably including Chiredzi Ranch North) because it is not clearly stated. In that letter Mr Honorable D. N. Mutasa clearly stated that in some of the Farms there are people who are legally resettled who are holders of offer letters. He categorically told Mr Nhema not to interfere with those resettled farmers without the consent of Mr D.N Mutasa.

The above letter is the one the applicants are now relying on in resisting to vacate the Farm in question alleging that the Act in question no longer applies to them. Further they submitted that the applicants should not be placed in defence for purposes of bolstering the state case. For this contention they relied on the case of S v Kachipare 1998 (2) ZLR 271 (S) which provided that a discharge should be ordered:

Where there is no evidence to prove an essential element of the offence.

Where there is no evidence on which a reasonable court, acting carefully, might properly convict, and

Where the evidence adduced on behalf of the state is so manifestly unreliable that no reasonable court could safely act on it.

In opposing the application for review at this stage the respondent’s counsel argued that this is an interlocutory application and normally these applications can be entertained on rare occasions. For this contention the respondents relied on the case of Masedza & Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (H) where it was held that-

“the power of the High Court to review the proceedings in the magistrates court is exercisable even where the proceedings in question have not yet terminated. However, it is only in exceptional circumstances that the court will review a decision in an interlocutory decision before the termination of the proceedings. It will do so only if the irregularity is gross and if the wrong decision will seriously prejudice the rights of the litigant or the irregularity is such that justice might not by other means be attained.”

Mr Makoto further submitted that the applicants have other remedies. They have to wait until the completion of trial and if not satisfied, then they can apply for review or appeal or they may even be acquitted. He said since the trial Magistrate found that the applicants had a case to answer the applicants must be put on the witness stand to explain their defence. In his view there was no gross irregularity warranting the proceedings to be reviewed at this stage or let alone for them to be acquitted because they did not submit in their defence outline that they had lawful authority to remain on the land in question. He cited section 2 of the Act which defines lawful authority as meaning:

An offer letter, or

A permit, or

A land settlement lease.

He further attacked the letter which the applicants said authorized them to stay on the land by saying such a letter is not lawful authority under paragraphs (a), (b) and (c) above. He maintained that the letter in question has a suspensive condition that some farmers who benefited from the land reform should be spared and the applicants are not holders of such offer letters. According to him there was no gross irregularity in the decision of the trial Magistrate.

For avoidance of doubt section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20-28] reads as follows-

“3 Occupation of Gazetted land without lawful authority

Subject to this section, no person may hold, use or occupy Gazetted land without lawful authority.

Every former owner or occupier of Gazetted land –

referred to in paragraph (a) of the definition of “Gazetted land” in section 2(1), shall cease to occupy, hold or use that land forty –five days after the fixed date, unless the owner or occupier is lawfully authorized to occupy, hold or use that land.

referred to in  paragraph (b) of the definition of “Gazetted land” in section 2 (1), shall cease to occupy, hold or use that land forty- five days after the date when the land is identified in accordance with section 16B(2) (a) (iii) of the former Constitution, unless the owner or occupier is lawfully authorized to occupy, hold or use that land:

Provided that –

the owner or occupier of that land referred to in paragraph (b) may remain in occupation of his or her living quarters on that land for a period of not more than ninety days after the date when the land is identified;

the owner or occupier shall cease to occupy his or her living quarters after the period referred to in proviso (i);

referred to in paragraph (c) of the definition of “Gazetted land” in section 2(1), shall cease to occupy, hold or use that land forty –five days after the date when the land is identified in accordance with section 72 (2) of the Constitution, unless the owner or occupier is lawfully authorized to occupy, hold or use that land.

If a former owner or occupier of Gazetted land who is not lawfully authorized to occupy, hold or use that land does not cease to occupy, hold or use that land after the expiry of the appropriate period referred to in subsection (2)(a) or (b), or in the case of a former owner or occupier referred to in section 2(b) , does not cease to occupy his or her living quarters in contravention of proviso (ii) to section 2(b), he or she shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.”

In casu the land in question was gazetted on the 6th day of August 2004. In terms of the law the applicants should have vacated the land within 45 days or at least vacated their quarters within ninety days. The applicants should have vacated the Farm and living quarters by most the 20th of December 2006. They did not do so. The letter they rely on was only written on the 28th August 2007. The applicants have to explain on what authority they remained on the land between 20 December 2006 and the 28th of August 2007. They have to be placed on their defences to explain on what authority they are still on the Farm up to date. The fact that the land was transferred to another Ministry after gazetting is neither here nor there because that letter was written some months after the fixed date of vacation and was not addressed to the applicants but to the Minister of Environment and Tourism.

The applicants have to explain if they had authority to remain on the land. The only letter recognized at law is either an offer letter, a permit and or a land settlement lease as provided for in section 2 of the Gazetted land (Consequential Provisions) Act [Chapter 20.28. Indeed I read the judgment cited by the counsel for the applicants that of Michael Gregory Biddlecombe v State HB- 62/15 especially at page 5 of the cyclostyled judgment where the court said:

“The respondent while acknowledging the authenticity and sources of the above letters insisted that the applicant did not have lawful authority because he does not possess an offer letter issued by “the acquiring authority” i.e. the Ministry of Lands. However, respondent conceded that a proper interpretation of the definition of a permit in the Act is that it can be issued by “any state organ” unlike an offer letter that can only be issued by the “acquiring authority”. Put differently it was conceded that the definition of a “permit” is wide.

In my view the land reform policy is multifaceted in that it focuses on different uses of acquired land. What happens in practice is that once land is gazette and acquired by the State through the “acquiring authority” that authority can transfer the land to another ministry for occupation and use in accordance with that ministry’s requirements and needs. Gazetted land for example can be transferred from the Ministry of lands to the Ministry of Local Government for urban expansion. It can also be transferred to the Ministry of Environment and Tourism in order to boost or promote proper management of government’s wild life policy.

For these reasons, the argument that notwithstanding such transfers the Ministry of Lands retains the  mandate to authorize the use and occupation of such transferred land becomes untenable, not only because it defies logic and common sense, but because it contradicts the clear meaning of the definition of the word permit in the Act.

In casu, the inter-ministerial process has since been finalized in July 2012, as seen from appendix 6. As matters stand, the farm in issue is now under the control of the Ministry of Environment and Tourism, which based on their business operations and record, is willing to permit appellant and the company to occupy and run the farm on the basis of a twenty-five year lease.

In my view of the wide definition of the word permit, I find that the letters of 16 November 2010 and 12 July 2012 in particular constitute a permit as defined in section 2 of the Act. Consequently, the appellant had lawful authority to occupy and use the farm in issue.”

With the greatest of respect while the sentiments of the court in the above case are sound, on the facts of this case the cases are distinguishable because in the present case the applicants where never, by any form of authority either from the acquiring authority or the Ministry of Environment and Tourism been authorized to remain on the farm after the fixed date. If at all they were, then they have to explain that in their defence because the letter written months down the line by the Minister responsible for Lands to the Minister of Environment and Tourism does not permit the applicants to remain on the farm. The letter merely transferred some seven farms to the Ministry of Environment and Tourism and specifically stated that people on these farms who are legally resettled and with offer letters should not be interfered with. The applicants are not in possession of such letters, if they had them, they should have said so in their defence outline.

On the face of it the applicants were and are prima facie, in contravention of the Act from the fixed date of vacation to the date the letter of transfer was written up to this day. The State therefore managed to prove a prima facie case against the applicants and the applicants must be placed on their defence to explain the basis on which they remained on the farm after the fixed date. Therefore, I found no merit in the application for review and I will dismiss it with costs on a higher scale.

IN THE RESULT IT IS ORDERED THAT

The application for review is hereby dismissed.

The applicants be and are hereby ordered to present their defences.

The applicants are ordered to pay costs on a legal practitioner and client scale.

Maunga Maanda & Associates, applicants’ legal practitioners

National Prosecuting Authority, respondents’ legal practitioners