Hillpass Estates (Private) Limited v The State

### Preamble
1
Judgment No. SC 63/20
Civil Appeal No. SC 714/18
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REPORTABLE  (54)

HILLPASS     ESTATES     (PRIVATE)     LIMITED

v

THE     STATE

SUPREME COURT OF ZIMBABWE

PATEL JA, UCHENA JA & MATHONSI JA

HARARE: FEBRUARY 24, 2020 & MAY 26, 2020

Ms N. Maphosa, for the appellant

E. Mavuto, for the respondent

MATHONSI JA: 	This is an appeal against the judgment of the High Court, sitting as a court of appeal, delivered on 30 November 2016, which dismissed the appellant’s appeal against both conviction and sentence in its entirety.

FACTUAL BACKGROUND

The appellant was the registered owner of a farm known as Greycourt Farm described as Certain piece of land situate in the district of Lomagundi being the remainder of Greycourt of Trelawney Estate measuring two thousand one hundred and twenty-five decimal point seven six one six (2125.7616) acres. The appellant held the farm by Deed of Transfer number 18964/64. A citrus fruit is grown on the farm which is the home of 120 families.

The farm was initially gazetted by the Government of Zimbabwe for compulsory acquisition in 2002. The Minister of Lands, Agriculture and Rural Settlement applied to the Administrative Court, in case No. LA3216/02, for an order confirming the acquisition of the farm. The parties in that matter signed a deed of settlement on 23 June 2003 in terms of which they agreed that the appellant would surrender to the government a portion of Greycourt Farm measuring 464 hectares for resettlement purposes. The appellant would retain the remaining portion of the farm measuring 396 hectares to continue with its farming activities.

In pursuance of that deed of settlement, on 1 July 2003 the Administrative Court issued a consent order in the following terms:

“IT IS HEREBY ORDERED by Consent that:

1.	A portion of Greycourt portion of Trelawney Estate measuring 464 hectares be and is hereby confirmed.

2.	A portion of Greycourt portion of Trelawney Estate measuring 396 hectares be and is hereby dismissed.

3.    Each party is to bear its own costs.”

Subsequent to the grant of the consent order settling the initial dispute between the appellant and the government, the entire farm was again gazetted. A Preliminary Notice for compulsory acquisition was published in the Government Gazette on 17 September 2003 as General Notice 445 E of 2003. The farm was listed as number 18 in that notice.

The appellant remained in occupation of the portion of the farm left for it by virtue of the consent order of the Administrative Court. In due course, the Constitution of Zimbabwe Amendment (No. 17) Act, 2005 was promulgated on 16 September 2005. The constitutional amendment completely changed the legal landscape relating to compulsory acquisition of land by introducing s 16 B of the Constitution. In terms of s 16 B (2) all agricultural land, including land that was identified on or before 8 July 2005 in the Gazette or Gazette Extraordinary under s 5 (1) of the Land Acquisition Act [Chapter 20:10] and which was itemized in Schedule 7, being agricultural land required for resettlement purposes, was acquired by and vested in the state with full title with effect from the appointed day.

The appointed day in terms of the amendment was 16 September 2005 when the new constitutional provisions came into effect. The farm was listed in the Schedule as number 105. Deed of Transfer number 1896/64, in terms of which the appellant held the farm, was accordingly endorsed with the inscription that ownership of the land in question is vested in the President of Zimbabwe in terms of s 8 of the Land Acquisition Act [Chapter 20:10]. Part of the farm was allocated on to one Obey Mashingaidze by offer letter dated 10 February 2009.

The appellant did not vacate the farm. As a result, it was arraigned before the Magistrates Court at Chinhoyi on a charge of contravening s 3(2)(a), as read with ss 3(3) and 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. The allegations were that the appellant, being a former occupier of the gazetted land, unlawfully held, used or occupied that land without lawful authority of the State. Although the appellant pleaded not guilty to the charge and put up a spirited defence relying on the consent order of the Administrative Court, assurances given to it by government officials to continue occupying the farm and an improvements lien, the trial court convicted it on 25 August 2011. The appellant was sentenced to pay a fine of $400-00 and eviction was ordered with effect from 1 September 2011.

The appellant was aggrieved. It noted an appeal to the High Court against both conviction and sentence. As I have said, the High Court dismissed the appeal in its entirety.

DETERMINATION OF THE COURT A QUO

The court a quo found that the same arguments relied upon by the appellant on assurances given to it by government officials, the claim of right, the validity of the acquisition of the farm through Constitutional Amendment Act No. 17 of 2005 and the consent order issued by the Administrative Court, had all been decided by the Supreme Court in Commercial Farmers Union & Ors vs Minister of Lands and Ors 2010 (2) ZLR 576 (S).

The court a quo found that the Constitutional Amendment Act No 17 of 2005 was so drastic and cross-cutting in its effect it relieved the Government of the need to follow the strict procedures for acquisition of land previously in place. In rejecting the defences relied upon by the appellant the court a quo reasoned at pp 2-3 of the cyclostyled judgment: -

“It must be accepted that (the) Constitution of Zimbabwe Amendment Act, Number 17 of 2005, made all previously gazetted land state land by the stroke of the pen. I am unable to disagree with the finding by the learned magistrate that as at the date of prosecution, Greycourt Farm was such gazetted land. Once this is appreciated, it follows that in order for the appellant to lawfully remain on the farm without risk of prosecution for the offence for which it was convicted the appellant needed to acquire and secure authority from the acquiring authority. The acquiring authority in this case was and remained the Minister of Lands representing the President of the Republic of Zimbabwe. In previous Administrative Court proceedings, the appellant had dealt with the Minister or his officials in Harare. The appellant therefore knew from where it could secure such authority. To seek to rely on the letter of recommendation from the District Coordinating Committee to the Provincial Lands Officer in Chinhoyi on a matter for which a constitutional amendment had been passed affecting the rights of the former owner was clearly disingenuous on the appellant’s part. A recommendation by a district lands committee, in my view, cannot be such an authority on land matters whose recommendations could be raised to the level of an authorized representative of the President.”

The court a quo found that the common law lien was not recognized in land acquisition. It made a further finding that the only defence available to the appellant was to show that it held a permit to occupy the land. It therefore upheld the conviction of the appellant by the trial court. On the sentence imposed, the court a quo took the view that sentencing was the province of the trial court which could only be interfered with where a wrong sentencing principle was applied resulting in a shockingly severe sentence. It found nothing wrong with the sentence either.

GROUNDS OF APPEAL

This appeal challenges the findings made by the court   a quo as set out above on the following grounds:

1.  The court a quo erred in finding that the Constitutional   Amendment Act No 17 of 2005 overrode the consent order issued in favour of the appellant by the Administrative Court.

2.  The court a quo erred in rejecting the appellants defence of claim of right as not being available to the appellant.

3. The court a quo erred in finding that the farm is State land when the Administrative Court order had finalized the issues of acquisition, the original gazetting of the farm had lapsed in terms of the Land Acquisiion Act a year after its publication and the farm was not listed in the 7th Schedule of the Amendment Act of 2005.

4. The court a quo erred in finding that all gazetted land, regardless of the age of the gazetting and the procedure set out in s 16 B (1) of Amendment No. 17 of 2005, became State land by virtue of the amendment simply because it was once gazetted.

5. The court a quo erred in finding that the appellant enjoyed no lien over the farm until it is compensated for the improvements effected on the farm.

6. The court a quo erred in upholding both the conviction and sentence of the appellant and concluding that the sentence was not too severe.

ISSUES FOR DETERMINATION

Although the appellant listed six grounds of appeal, only two crisp issues commend themselves for determination in this appeal. They are:

1. Whether the appellant was properly convicted, and

2. Whether the sentence imposed is proper.

THE LAW

Considering that the facts of this matter are generally common cause, the determination of this appeal revolves around the implication of s 16 B (2) of the then Constitution. Ms Maphosa for the appellant submitted that there was no valid listing of the farm in the                   7th Schedule of the Constitution because the notice of acquisition published on 17 September 2003 had lapsed at the expiration of 1 year after its publication. To that extent, a lapsed notice could not give rise to a valid listing in the 7th Schedule.

As shall become apparent later in this judgment, this argument is without merit. The expiration of a period of one year after the notice of acquisition was published is of no moment. The listing of the farm in the 7th Schedule is what determines the acquisition in terms of the acquisition of land regime introduced by s 16 B of the Constitution. No one has a right to question such acquisition. This is amply fortified by the preamble to the 7th Schedule.

Ms Maphosa’s submissions were markedly different from the approach adopted in both appeal ground 3, that the farm was never listed in the 7th Schedule, and her heads of argument. In the heads of argument, the position taken by the appellant was that Amendment No. 17 of 2005 had a restricted application. It only applied to land which was not already acquired and which had not been dealt with by the courts.

It was submitted on behalf of the appellant that the amendment of the Constitution referred to land which was legally gazetted which gazetting had not been presided over by the courts. Where the courts had presided over a land dispute and issued an order, the legislature could not, by dint of the Constitutional Amendment Act, No 17 of 2005, purport to overrule extant court orders. Given that a consent order was granted which allowed the appellant to retain 396 hectares of the farm, it was entitled to remain firmly in occupation of the farm.

Ms Maphosa submitted further that the defence of a claim of right is available to the appellant because evidence was placed before the trial court showing that the District Administrator for Zvimba had made recommendations to the Provincial Lands Officer that the appellant and other former farm owners be allowed to stay on their farms. They were assured by government officials that offer letters would be processed for them.

Reliance was placed on the case of S v Zemura 1973 (2) RLR 357 (SR) which made the point that when an accused is given advice on an administrative matter “by a responsible public official”, whose duty includes the administration of a particular statute, that accused should be permitted to set up the defence of a claim of right. This would be an exception to the ignoratia juris rule.

Earlier on I made reference to s 16 B (2) of the then Constitution in terms of which the farm was acquired. In terms of s 16 B (1) the “acquiring authority”, for purposes of that section, means:

“means the Minister responsible for lands or any other Minister whom the President may appoint as an acquiring authority for the purposes of the section.”

Section 16 B (2) provides:

“(2) Notwithstanding anything contained in this Chapter-

(a) all agricultural land-

(i) that was identified on or before the 8th July, 2005, in the Gazette or Gazette Extraordinary under s 5 (1) of the Land Acquisition Act [Chapter 20:10] and which is itemized in Schedule 7, being agricultural land required for resettlement purposes; or

(ii) that is identified after the 8th July, 2005, but before the appointed day, in the Gazette or Gazette Extraordinary under s 5 (1) of the Land Acquisition Act [Chapter 20:10], being agricultural land required for resettlement purposes; or

(iii) that is identified in terms of this section by the acquiring authority after the appointed day in the Gazette or Gazette Extra-ordinary for whatever purposes including, but not limited to-

A. settlement for agricultural or other purposes; or

B. the purposes of land reorganization, forestry, environmental conservation or the utilization of wild life or other natural resources; or

C. the relocation of persons dispossessed in consequence of the utilization of land for a purpose referred to in subpara A or B;

is acquired by and vested in the State with full title therein with effect from the appointed day or, in the case of land referred to in subpara (iii) with effect from the date it is identified in the manner specified in that paragraph; and

(b) no compensation shall be payable for land referred to in    paragraph (a) except for any improvements effected on such land before it was acquired.”

I must add that s 16 B (3) specifically took away from a person having any right or interest in the land, the right to apply to a court to challenge the acquisition of the land by the state. It also specifically ousted the jurisdiction of any court to entertain any such challenge to the compulsory acquisition of land in terms of the constitutional provisions I have made reference to.

These provisions have long been the subject of judicial pronouncements by this Court. In Mike Campbell (Pvt) Ltd & Anor v Minister of National Security Responsible for Land, Land Reform & Resettlement & Anor 2008 (1) ZLR 17 (S) at 31 E-F MALABA JA (as he then was) stated:

“Section 16B of the Constitution is a complete and self-contained code on the acquisition of privately owned agricultural land by the state for public purposes. Its provisions relate exclusively to the acquisition of agricultural land. By the use of the non obstante clause ‘notwithstanding, anything contained in this chapter’ at the beginning of subs (2), the legislature gave the provisions of s 16 B overriding effect in respect of the regulation of matters relating to the acquisition of all agricultural land identified by the acquiring authority in terms of s 16 B (2)(a).” (The underlining is for emphasis)

Referring to the effects of s 16 B (2) of the then Constitution, the learned Judge of Appeal said at p 43 F-G, 44 A-C:

“By the clear and unambiguous language of s 16 B (3) of the Constitution, the Legislature, in the proper exercise of its powers, has ousted the jurisdiction of courts of law from any of the cases, in which a challenge to the acquisition of agricultural land secured in terms of s 16 B (2)(a) of the Constitution could have been sought. The right to protection of law for the enforcement of the right to fair compensation in case of breach by the acquiring authority of the obligation to pay compensation has not been taken away. The ouster provision is limited, in effect, to providing protection from judicial process to the acquisition of agricultural land identified in a notice published in the Gazette in terms of s 16B(2)(a). An acquisition of the land referred to in s 16B(2)(a) would be a lawful acquisition. By a fundamental law the legislature has unquestionably said such an acquisition shall not be challenged in any court of law. There cannot be any clearer language by which the jurisdiction of the courts is excluded. The right to protection of law under s 18 (1) of the Constitution which includes the right of access to a court of justice is intended to be an effective remedy at the disposal of an individual against an unlawful exercise of the legislative, executive or judicial power of the state. The right is not meant to protect the individual against the lawful exercise of power under the Constitution. Once the state of facts required to be in existence by s 16B (2)(a) of the Constitution does exist, the owner of the agricultural land, identified in the notice published in the Gazette, has no right not to have the land acquired.

(The underlining is for emphasis)

By seeking to impugn the process of acquisition of the farm commenced by the notice published on 17 September 2003 and completed by the listing of the farm in the 7th Schedule of the Constitution as number 105 of acquired land, the appellant is attempting to exercise a right which it does not have. The process of acquisition of agricultural land was rendered non-justiciable by s 16 B (3) of the Constitution. More importantly, the appellant is inviting the court to intervene where its jurisdiction was specifically ousted by the Constitution.

That is not all. The remarks of MALABA JA (as he then was) in Mike Campbell supra, were underscored by CHIDYAUSIKU CJ in Commercial Farmers Union & Ors v Minister of Lands & Ors 2010 (2) ZLR 576 at 584G, 585A where he said:

“In terms of s 16 B of the Constitution, the individual applicants have been stripped of all their rights to the land they previously owned or occupied. Section 16 B of the Constitution vests all the rights of previous owners and occupiers in the state. In casu, the only link the individual applicants have to the land is their continued occupation of the acquired land, which continued occupation has been rendered a criminal offence by an Act of Parliament authorized by s 16 B(6) of the Constitution. Section 16 B of the Constitution contains a non obstante clause. Consequently, s 16 B prevails over all other sections of the Declaration of Rights provisions of the Constitution.”

The learned Chief Justice went on to interpret s 2(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] under which the appellant herein was charged. The section provides that “lawful authority” to occupy state land means an offer letter or a permit or a land settlement lease. He stated at p 591 A-C:

“The Legislature in enacting the above provision clearly intended to confer on the acquiring authority the power to issue to individuals offer letters which would entitle the individuals to occupy and use the land described in those offer letters. The draftsman could have used better language to convey the legislative intent, but there could be no doubt that s 2 of the Act confers on the acquiring authority the power to allocate land using the medium of an offer letter… I have no doubt that the Minister as the acquiring authority can redistribute land he has acquired in terms of s 16B of the Constitution by means of the following documents: (a) an offer letter (b) a permit and (c) a land settlement lease.”

There can be no doubt that in terms of s 2 (1) of the Act, lawful authority to occupy state land means an offer letter, a permit and a land settlement lease. That is now settled. Unfortunately, the appellant possesses neither of those documents as authority to occupy the farm. A letter of recommendation from a District Administrator or from any other government official who is not the acquiring authority cannot possibly constitute lawful authority to occupy state land.

The position was settled in Taylor-Freeme v Chinhoyi Senior Magistrate & Anor 2014 (2) ZLR 498 (C) at 511 B-D. The court stated:

“’Lawful authority’ means an offer letter, a permit and a land settlement lease. The documents attached to the defence outline are not offer letters, permits or land settlement leases issued by the acquiring authority. They do not constitute‘lawful authority’ providing a defence to the charge the applicant is facing. The applicant did not have an offer letter, a permit or a land settlement lease. Accordingly, he had no lawful authority to occupy or continue to occupy the farm. The letter from the late Vice President Msika and those of the Ministry of Lands, Land Reform and Resettlement do not constitute ‘lawful authority’. ‘Lawful authority’ in terms of the Act begins and ends with an offer letter, a permit and a land settlement lease. A telephone call or a letter even from the Minister of Lands, Land Reform and Resettlement is not ‘lawful authority?”

In the present case, the appellant conceded that it possessed none of the documents constituting lawful authority within the meaning of s 2 of the Act. Instead, it relied on verbal assurances given by government officials as well as a letter from the District Administrator. The court a quo was correct in making a finding that the appellant could not raise the defence of claim of right based on such evidence when the law is very clear as to what constitutes lawful authority to occupy state land.

In addition, the appellant had previously dealt with the Minister, who is the acquiring authority, and obtained a consent order enabling it to continue in occupation. The court a quo cannot be faulted for holding the view that the appellant was well aware of where to obtain lawful authority to continue in occupation. Not even the existence of the consent order issued by the Administrative Court could avail a defence to the appellant. This Court, sitting as a Constitutional Court in CFU and Ors, supra, resolved the issue of court orders. It held that a court order cannot have the effect of authorizing the doing of that which Parliament has decreed should not be done. A court of law has no jurisdiction to authorize the doing of that which Parliament has decreed would constitute a criminal offence.

In attempting to impugn the judgment of the court a quo, Ms Maphosa did not distinguish this case from the authorities I have referred to. Those authorities are binding on the court a quo which correctly followed them. The appellant has not shown any misdirection on the part of both the trial court and the court  a quo in respect of conviction. It is occupying State land without lawful authority. That conduct constitutes a criminal offence in terms of s 3(3) of the Act. The appellant was properly convicted.

Regarding sentence the appellant was fined $400-00. In addition, it was to be evicted within seven days from the date of the sentence. Ms Maphosa submitted that the sentence, especially the notice of seven days, is completely unreasonable and unjustified in the circumstances. Mr Mavuto for the respondent, on the other hand, contended that there was no misdirection in the manner in which the trial magistrate exercised her sentencing discretion as to warrant interference by the appeal court. The court a quo correctly refused to tamper with the sentences.

The circumstances are that the appellant has operated a citrus estate for several decades. It has 80 hectares under citrus fruit which it would have to harvest. The appellant also employs 120 families where there are children attending school. These are people who have been in employment for a long time and have to be discharged and paid their terminal benefits before the appellant closes shop. Substantial sums of money have to be raised to cover that.

By its very nature, the appellant’s business involves the use of plant and machinery. There is obvious need for movement of equipment and plant. Whichever way one looks at it, seven days is not enough to undertake the mammoth task of relocation by such a well-established commercial farming entity.

While sentencing is the discretion of the trial court, such discretion should be exercised judiciously. It is now settled that an appellate court will not interfere with the exercise of discretionary power by a lower court unless it is shown that an irregularity or misdirection occurred or that the lower court exercised its discretion so unreasonably or improperly as to vitiate the decision. See Friendship v Cargo Carriers Ltd & Anor 2013 (1) ZLR 1 at 5F.

It occurs to me that this is a case in which the sentencing discretion was exercised so unreasonably and improperly to the extent of vitiating the part of the sentence giving seven days’ notice to uproot a citrus estate of the magnitude of the appellant’s. The reasons for sentence given by the trial court are legendary by their brevity. The court said:

“As a company the accused cannot be sentenced to a term of imprisonment. This is not a type of offence that can be repeated by the accused. A period of five months to wind up operations is unrealistic. The court should have in mind when the offer letter was issued to the new beneficiary. The accused had more than three years in which to wind up operations.”

Indeed, the imposition of the seven-day period for relocation was the exercise of judicial discretion which this Court can only interfere with on limited grounds. It was stated in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) at 62 F-H; 63 A that:

“These grounds are firmly entrenched.  It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. if the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide it, if it mistakes the facts, if it does not take into account (some relevant) consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always (it) has the materials for doing so. In short, this Court is not imbued with the same discretion as was enjoyed by the trial court.”

(The underlining is for emphasis)

I am of the firm view that errors were made by the trial court when exercising its discretion to give the appellant time to vacate the farm. Not only did the trial court allow the extraneous or irrelevant interests of the beneficiary to take centre stage, it also completely failed to take into account the size of the business and the entrenchment of the appellant on the ground. It is the commission of those errors which allows this Court to review the sentence and to exercise its own discretion in substitution.

The trial court allowed its mind to drift away from the relevant considerations in assessing sentence to the interests of the beneficiary. In doing so the trial court took its eyes off the ball. It ended up with a sentence which was disproportionate. To begin with, the three-year period prior to the conviction of the appellant was immaterial. The appellant was entitled to contest the charge and did put up a strong case which, though based on a wrong understanding of the law, required judicial pronouncement.

What was material in considering an appropriate notice were the circumstances of the appellant and the practicable period to uproot a big and well established business like the one run by the appellant.

Sentencing must be a rational process wherein the sentencer is required to find a punishment befitting, not just the crime, but also the offender as well. In that regard the personal circumstances of the offender are an integral part of the sentencing process. The reason why the accused committed the offence and the circumstances of the offence are both important in assessing sentence.

While the assurance given to the appellant by government officials did not constitute a defence, they were relevant in considering sentence. Here is a former farm owner which was made to believe that it had been shortlisted for the issuance of an offer letter to remain at the farm. Recommendations were made in writing for an offer letter to be issued to the appellant. This contributed in a huge way in influencing the appellant to commit the offence and it totally debunks the notion that the appellant had resisted overtures to vacate for three years.

What is important is to afford the appellant enough time to move, bearing in mind the massive nature of the project on the ground. Allied to that is the need to disengage a huge work force and uproot plant and machinery. When all these relevant factors are taken into account, the period of five months requested by the appellant is justifiable. There is no basis for interfering with the fine imposed but there is need to rationalize the notice period.

In the result, the appeal partially succeeds.

It is ordered that:

1. 	The appeal against conviction be and is hereby dismissed.

2. 	The appeal against sentence succeeds in part.

3. 	The sentence is altered as follows:

“(a) Clause 2 of the sentence is set aside and substituted with the following:

2. The accused and all those claiming any rights through it shall vacate Greycourt Farm situate in the District of Lomagundi within five months from the date of this order failing which they shall be evicted.”

PATEL JA    				I agree

UCHENA JA				I agree

Sawyer & Mkushi, appellants’ legal practitioners

The Director of Prosecutors of the Attorney General’s Office, respondents’ legal practitioners