CMAL (PVT) LTD v MINISTER OF LANDS & RURAL RESETTLEMENT NO & ANOR

HIGH COURT, HARARE

[Opposed Application HH 561-16]

September 13 and 28, 2016

MUREMBA J

Property Law – Compulsory acquisition of agricultural land – Whether capable of challenge in a court of law.

The applicant was the former owner of a farm. The applicant was served with a notice of intention to acquire the land in terms of s 5 of the Land Acquisition Act [Chapter 20:10]. The land was subsequently acquired pursuant to s 8 of the Land Acquisition Act. The applicant challenged the acquisition on the grounds that the land so acquired was not suitable for agricultural purposes as the whole of it consists of a hill which is rocky. It was also contended that the land was peri-urban.

Held, that in cases where the Minister of Lands and Rural Resettlement has acquired land outside the provisions of the law, more particularly s 16B (2)(a) of the Constitution of Zimbabwe, 1980, that can be challenged in court and the court has the power to confirm, set aside or nullify such acquisition.

Cases cited:

Commercial Farmers Union & Ors v The Ministry of Lands and Rural Resettlement & Ors 2010 (2) ZLR 576 (S), referred to

Fawcett Security Operations (Pvt) Ltd v Director of Customs and Excise & Ors 1993 (2) ZLR 121 (S), not followed

Kondonis v The Minister of Lands Rural Settlement & Ors SC 72-11 (unreported), referred to

Mike Campbell (Pvt) Ltd & Anor v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S), referred to

Legislation considered:

Constitution of Zimbabwe, 2013, s 72

Constitutional Amendment (No 17) Act, 2005

Land Acquisition Act [Chapter 20:10], ss 5, 8

State Liabilities Act [Chapter 8:14], s 3

Zimbabwe Constitution (Transitional, Supplementary and Consequential Provisions) Order, 1980 (SI 395 of 1980 of the United Kingdom), ss 16B (2), (2)(a), (3), (3)(a)

J Samukange, for the applicant

F Chingwere, for the first respondent

MUREMBA J:

The applicant is the former owner of Teviotdale Farm measuring 186.400 hectares situate in the district of Salisbury. On 22 October 2000, the applicant was served with a notice of intention to acquire the land in terms of s 5 of the Land Acquisition Act [Chapter 20:10]. On 17 December 2001 an order of acquisition of the land was granted in terms of s 8 of the Land Acquisition Act. The applicant is challenging the acquisition on the grounds that the land so acquired is not suitable for agricultural purposes as the whole of it consists of a hill which is rocky. It also averred that the land consists of dwellings where the family of the Managing Director, Michael Laing resides. It is further averred that on the property there are horses which are kept for the purposes of riding. There are also dwellings for domestic workers and cottages for visitors. It is further averred that at some great expense the hill can be used for building high end homes and there is no possibility of the land being used for agricultural purposes whatsoever. The applicant averred that for these reasons the land is not suitable for use intended by the first respondent or in terms of the Land Acquisition Act. It also averred that the land is a small holding and is not suitable for agricultural purposes. The applicant further avers that the land is peri-urban and therefore it is not capable of being acquired.

The applicant states that what supports its averment that the land is not suitable for agricultural purposes is the fact that since 2001 when the farm was acquired by the State, no one has been allocated this land as no one has been issued with an offer letter. The land has never been occupied except for a short duration by illegal gold panners. It further states that after the acquisition was made the first respondent did not make an application to confirm it as the applicant had contested it. It said that as a result the acquisition lapsed.

The order that the applicant is seeking is as follows:

“It is hereby ordered that:

1. The acquisition of Teviotdale Farm situated in the district of Salisbury measuring 186.400 hectares is hereby set aside.

2. The second respondent removes any endorsement on the title deeds in terms of the Land Acquisition Act.

3. The applicant is declared to be the owner of the property and is entitled to exercise all rights of an owner in terms of the common law.

4. If the first respondent does not oppose the application, applicant to pay costs of this application and in the event, that first respondent opposes the application, it be ordered to pay costs on attorney and client scale.”

In opposing the application, the Minister of Lands and Rural Resettlement averred that the land in question was acquired in terms of s 16B (2) of the Zimbabwe Constitution (Transitional, Supplementary and Consequential Provisions) Order, 1980 (SI 395 of 1980 of the United Kingdom) (“the Constitution of Zimbabwe, 1980”). He further stated that in terms of s 16B (3)(a) thereof no person shall apply to a court to challenge the acquisition of land by the State, and no court shall entertain any such challenge. The Minister averred that in view of these provisions the applicant’s application is null and void.

Initially, the court application bore the Ministry of Lands, Land Reform and Resettlement as the first respondent. In the heads of argument, the first respondent’s counsel raised a point in limine to the effect that in terms of s 3 of the State Liabilities Act [Chapter 8:14] the applicant ought to have sued the Minister of Lands and Rural Resettlement and not the Ministry thereof. At the hearing of the matter Mr Samukange had the citation of the first respondent deleted and substituted with the “Minister of Lands and Rural Resettlement NO”. The amendment was done with the consent of Mr Chingwere. The parties then went on to argue the matter on the merits.

Mr Samukange argued that the jurisdiction of the court is not ousted in matters where the first respondent has erroneously acquired for resettlement, land which is not agricultural, land which is peri-urban or land which does not fit into the model of the land reform exercise. On the other hand, Mr Chingwere argued that the issue of whether or not the acquisition was done erroneously is not one that can be determined by the court because the legislature ousted the jurisdiction of the courts. He submitted that the only way to correct the error, if any, is to effect a constitutional amendment which powers this Court does not have.

The law and its application to the facts

In order to determine if this Court has jurisdiction over this matter it is necessary to look at the provisions of the Constitutional Amendment (No 17) Act, 2005.

On 14 September 2005, the Constitution of Zimbabwe, 1980 was amended by the insertion of s 16B. The provision reads as follows:

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