MAVANGIRA
JA:
This
is an appeal against the decision of the High Court ('the court a
quo')
which ordered the second appellant to cancel caveat 844/2000; ZN
caveat 26/2017 and caveat 77/2019 endorsed on Deed of Transfer
3188/83.
After
considering the evidence and the submissions made by counsel, the
court issued an order in the following terms:
“1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the court a
quo
be and is hereby set aside and substituted with the following:
'(i)
The preliminary point on jurisdiction be and is hereby upheld with
costs.
(ii)
The court declines jurisdiction to hear this matter.'”
3.
A request has been made for the court's reasons for the quoted
order. The reasons follow hereunder.
BACKGROUND
FACTS
4.
The first respondent is the occupier of a certain immovable property
being Umguza Agricultural Lots of Umvutcha and Reigate registered
under title deed 3188/83. On 25 August 2000, the land was listed in
the Gazette Extraordinary under General Notice 405 of 2000. Pursuant
to the gazetting of the land, the first appellant caused caveats
844/2000 and 77/2019 to be endorsed on the deed of transfer. Caveat
XN 26/2017 was further endorsed on the title deed at the instance of
the second appellant.
5.
On 15 January 2009, the first respondent approached the High Court
under HC 2291/08. The court granted an Order declaring that his land
was not subject to any act of acquisition or resettlement by the
first appellant or any other person or persons acting under the
instructions of the first appellant. It also ordered that the portion
of the land held under the deed of transfer 740/95 in the name of
Paul Medley and occupied by virtue of an agreement of lease by the
second applicant therein, one Troy Robert Maidwell (who is not a
party in this matter), was not subject to any act of acquisition or
resettlement by the first appellant or “by any person or persons
acting under the instructions of authority” (sic) of the first
respondent.
6.
The High Court also declared that the appellant was, in respect of
the land referred to in paras 4 and 5 above “estopped from doing or
carrying out any act connected with the subdivision or acquisition of
the said land.” The first appellant was also ordered to immediately
desist from any further act of demarcation of the said portions of
land.
7.
On 1 December 2022, the first respondent approached the court a
quo
with an application for the upliftment of Caveats 844/2000, XN
26/2017 and 77/2019 placed on his title deeds by the second appellant
under the instructions of the first appellant and also of the second
respondent. In his founding affidavit, the first respondent averred
that the caveats were unwarranted as they had no lawful basis. He
stated that the second appellant maliciously and unlawfully caused a
caveat to be placed on his
property.
Pursuant to the placing of the said caveat 77/2019, the first
appellant had been sending people to view and survey his
property.
The first respondent averred that the unwarranted caveats were
interfering with his “constitutional right of enjoying my (“his”)
property rights.” Further, that the first appellant had no legal
standing to justify the caveats as they had been nullified by the
court order under HC 2291/08.
8.
The first respondent also contended that if not lifted, the caveats
would greatly prejudice him as he would not be able to transfer title
without the approval of the caveator in circumstances where there was
in existence, an order that estopped the first appellant or any other
person acting on the first appellant's instructions, from
interfering with the land held under the deed of transfer 3188/83.
9.
The first appellant raised a preliminary objection to the effect that
the court a
quo
lacked jurisdiction to deal with the matter. He averred that section
2(3) of the Constitutional Amendment (No.17) Act of 2005 prohibited
any person having interest in the land from applying to a court to
challenge any of its acquisition. He contended that this approach was
“confirmed
in sections 72(3) and (4) of the Constitutional Amendment (No.20)
Act, 2021.”
He also averred that Schedule 7 was inserted into the former (1980)
Constitution by section 16B of Constitutional Amendment (No. 17) Act
of 2005.
10.
On the merits, the first appellant averred that the judgment which
the first respondent alleged to have cancelled or nullified the
caveats did not mention the caveats on the land or their fate. He
also averred that the first respondent no longer had real ownership
rights over the farm because the farm now formed part of state
agricultural land under schedule 7 of the Constitution, which the
court had no jurisdiction to preside over.
11.
The second respondent appeared in court and submitted that Caveat XN
26/2017 was endorsed on the deed of transfer 3188/83 in error. He
conceded that it had to be cancelled. His being cited in this appeal
would be because he was a party in the proceedings a
quo.
However, he has not participated in this appeal.
FINDINGS
BY THE COURT A QUO
12.
In determining the preliminary objection on jurisdiction raised by
the appellants, the court a
quo
found that the jurisdiction of the courts of law has been ousted from
any case in which a challenge to the acquisition of agricultural land
secured in terms of section 16B(2)(a) of the former Constitution of
Zimbabwe, 1980 is raised. The court however went on to note that the
matter before it was not a challenge to the acquisition of
agricultural land as envisaged in the Mike
Campbell (Pvt) Ltd & Ors v Minister of National Security
Responsible for Land, Land Reform and Resettlement & Anor
SC
49/07
case.
It found that the case before it was about the cancellation of
caveats endorsed on the deed of transfer of the first respondent's
property.
13.
The court further noted that the law does not take away the right of
a litigant in the position of the first respondent to seek a remedy
against what it considers an unlawful endorsing of caveats on his
property. The court further found that the first respondent was not
challenging the acquisition but was challenging the placing of
caveats on his property. The contention that the cancellation of the
caveats would have the effect of reversing the acquisition of the
first respondent's land was found to be not persuasive. The court
thus found the preliminary objection on jurisdiction raised by the
first appellant to be without merit.
14.
On the merits of the application, the court a
quo
found that the appellants did not challenge the existence of the
court order in HC2291/08. It found that the argument by the first
appellant that the order in HC2291/08 per
NDOU J was a brutum
fulmen
was not persuasive as our jurisprudence does not permit a litigant to
choose to ignore a court order on the basis that it is a brutum
fulmen.
It also noted that the whole argument advanced by the appellants was
that the order in HC2291/08 was wrongly made. With regard to this
argument, the court a
quo
found that it was not up to it to vary or alter or declare invalid an
order of a judge of parallel jurisdiction as it had no such
competence.
15.
The court a
quo
also found that the order of the High Court was still extant and that
it was therefore binding unless overturned on appeal or through
rescission proceedings. The court opined that it could not simply
ignore the said order of the High Court. It thus found that the
existence of caveats 844/2000 and 77/2019 was not supported by law.
This was so as the order of the High Court in HC2291/08 declared that
land held under deed of transfer 3188/83 was not subject to any act
of acquisition or resettlement. The court thus ruled that the first
appellant had no caveatable interest over the property.
16.
In the result, the second appellant was ordered to cancel the Caveats
844/2000, ZN Caveat 26/2017 and Caveat 77/2019 endorsed on the first
respondent's title deed.
17.
Aggrieved by the decision of the court a
quo,
the appellants have approached this court on the following grounds of
appeal.
1.
The court a
quo
erred and grossly misdirected itself on a point of law by dismissing
the appellant's preliminary point that this Court had no
jurisdiction to adjudicate this matter at all as the farm was listed
under schedule 7 of the Constitution hence its title vests in the
state.
2.
The court a
quo
misdirected itself by cancelling the caveats which had been endorsed
on the 1st respondent's title deed No. 3188/83 under caveats
844/2000, ZN caveat 26/2017 and caveat 99/2019. The effect of the
cancelation would have reversed the acquisition of the appellant's
land from the state which cannot be done by a court of law.
DETERMINATION
OF PRELIMINARY POINT RAISED BEFORE THIS COURT
18.
At the hearing of the appeal, counsel for the first respondent raised
a preliminary point to the effect that the relief sought was fatally
defective in that in the relief that they sought, the appellants did
not state how the matter should proceed in the event that the appeal
was allowed and the judgment of the court a
quo
set aside. In making this point counsel argued that the appellants
ought to have stated the substituted order which would be granted by
this Court in the event that the appeal is allowed.
19.
In opposing the preliminary point, counsel for the appellants argued
that the relief sought, as crafted, was exact and precise in that
once the appeal was allowed and the order of the court a
quo
is set aside, it would automatically follow that the court a
quo
would have refused to exercise jurisdiction in the matter and as such
there was no need for a substitutive order in this regard.
The
relief sought by the appellants is couched as follows:
“FURTHER
TAKE NOTICE that appellants pray for the following relief:
1.
That the appeal succeeds with costs.
2.
The judgment of the court a
quo
is set aside and substituted with the following:
'The
preliminary point taken by the appellants be and is hereby upheld.'”
20.
Rule 37(1) of the Supreme Court Rules, 2018 is a mandatory rule which
provides for the form of a notice of appeal. Rule 37(1)(e)
specifically provides that a notice of appeal shall state the exact
relief sought. In Bonde
v National Foods Limited & Ors
SC 11/21 at para 19, GUVAVA JA commented as follows on the meaning of
the term 'exact nature of the relief sought':
“The
phrase 'exact nature of the relief sought' means that an
appellant must inform the Court of the relief that he/she wants. The
Supreme Court's mandate is to examine the correctness or otherwise
of a decision of the lower court. In doing so the court is guided by
the relief sought by the appellant. The need for the relief sought on
appeal to be exact cannot be over emphasised.”
In
this regard, see also Sambaza
v AL Shams Global BVI Limited
SC 3/18 and Mudyavanhu
v Saruchera & Ors
SC 75/17.
21.
What this means is that the relief sought before this Court must
communicate clearly what redress an appellant seeks. The relief must
also be one which this Court can grant and must be an enforceable
order. The main consideration at the end of the day is that the
relief must be clear and must inform as to whether it translates into
a confirmation or correction or variation of the decision appealed
against. In this case we find that the relief sought by the appellant
is clear and exact. If the relief as sought is granted, it will mean
that once the appeal is allowed, the judgment of the court a
quo
is set aside and substituted with an order that the preliminary point
is upheld by the court a
quo.
It naturally follows that the lower court would have declined
jurisdiction to deal with the matter. It may be accepted that another
paragraph could have been added to the substituted order to
categorically state that the court (a
quo)
declines jurisdiction to hear the matter. We however found that the
absence of such a paragraph does not, on
the facts and in the circumstances of this matter,
detract from the clarity and exactness of the relief sought. We found
that the second respondent will suffer no prejudice from the manner
in which the relief is crafted. We therefore found no merit in the
preliminary point raised by counsel for the second respondent and we
accordingly dismissed it.
THE
APPELLANTS SUBMISSIONS ON THE MERITS
22.
Mr
Muradzikwa,
for the appellants, argued that the court a
quo
had no jurisdiction to deal with the application for the upliftment
of the caveats. He argued that in terms of section 16B of the former
Constitution of Zimbabwe, all land that was gazetted and itemized in
Schedule 7 of the Constitution, was considered as State land. Counsel
further argued that the land in question was gazetted in 2000 and
again in 2008 and was then listed under Schedule 7 of the
Constitution. He submitted that any challenge to the gazetting of the
land had to be done by way of amendment of the Constitution. Further,
that the court a
quo
erred in removing the caveats as the effect of such act was to
reverse the acquisition of the land.
23.
Counsel argued that the gazetting of the land, when it was done, was
not challenged and neither was the acquisition. He argued that
Commercial
Farmers Union v The Minister of Agriculture, Land and Rural
Resettlement and Others
2010 (2) ZLR 576 overrides all and any orders to the contrary and as
such the order of the High Court, per NDOU J in HC2291/08, on which
the first respondent based its claim to the land, had been overtaken
by events. Counsel argued that the judgment of NDOU J had therefore
become a brutum
fulmen.
THE
FIRST RESPONDENT'S SUBMISSIONS
24.
Mr
Sithole,
for the first respondent argued that section 16B of the Constitution
dealt with land acquired for agricultural purposes only. Counsel
conceded that there could be no challenge to agricultural land
acquired by the State as per the decision in the Commercial
Farmers Union v The Minister of Agriculture, Land and Rural
Resettlement and Others (supra).
He however argued that where the land in dispute was not agricultural
land then such acquisition could be challenged. Counsel further
argued that the land in dispute had already been proclaimed under S.I
212 of 1992 as land within the boundaries of the City of Bulawayo and
that such land formed part of Bulawayo City Council land and could
not be regarded as agricultural land. He maintained that the
acquisition was done in error.
ISSUE
FOR DETERMINATION
26.
One issue arises for determination from the two grounds of appeal and
the submissions made by counsel before this Court. The issue is:
Whether
or not the court a quo had jurisdiction to deal with the matter.
ANALYSIS
26.
The appellants bone of contention as discernible from their grounds
of appeal and from the submissions made before the Court is that the
court a
quo
grossly misdirected itself on a point of law by dismissing the
appellant's preliminary point. The said preliminary point was to
the effect that the court a
quo
had no jurisdiction to adjudicate the matter at all as the farm was
listed under schedule 7 of the Constitution and the title thereto
thus vested in the State.
27.
In finding that it had jurisdiction to deal with the matter, the
court a
quo
found that the matter before it was not one of acquisition of land
but of the cancellation of caveats that had been registered against
the property in issue, by the first appellant.
28.
The court also took into account the judgment handed down by the High
Court in HC 2291/08 per NDOU J which it considered to be extant.
However, the appellants view was that after the appellant's land
had been gazetted it automatically became State land by operation of
the law and that the judgment by NDOU J had been rendered a brutum
fulmen.
The appellants also contended that by virtue of section 16B of the
former Constitution, the jurisdiction of the courts in respect of
disputes arising out of acquisition of land was ousted and that the
court a
quo
therefore lacked the requisite jurisdiction to deal with the
application for the upliftment of the caveats.
29.
In his opposing papers in the court a
quo
the first appellant (as first respondent) stated as follows:
“… (T)
His Honourable Court has no jurisdiction to adjudicate this matter...
The section 16B of Constitutional Amendment (No.17) Act of 2005
inserts Schedule 7 into the 1980 Constitution of Zimbabwe to the
effect that all the farms listed on General Notices published in the
Gazette or Gazette Extraordinary prior to the 8th
of July 2005 were acquired and vested in the State.
Section
2(3) of the Amendment prohibited any person having interest in the
land from applying to a court to challenge any of the acquisition.
This approach is confirmed in sections 72(3) and 72(4) of the
Constitution Amendment (No.20) Act 2021.
Further
reference is made to the cases of Mike
Campbell (Pvt) Ltd & Ors v Minister of National Security
Responsible for Land, Land Reform and Resettlement & Anor
2008
(1) ZLR 17 (S) p43 F-G to 44A and Naval
Phase Farming (Pvt) Ltd and Ors v Minister of Lands and Rural
Resettlement and Anor
SC50/18
wherein both courts confirm and reiterate that section 16B of the
former Constitution effectively ousts the power of courts to
adjudicate issues relating to acquired state land under schedule 7.”
He
further averred that:
“In
the present case, the Applicant's former properties under title
deed 3188/83 were acquired and listed in the Gazette Extraordinary on
25 August 2000… which is a copy of the Gazette Extraordinary under
general notice (sic) 405 of 2000. The General Notice referred (to)
falls under Schedule 7 of the Constitution.”
30.
The first respondent's contention as articulated in its answering
affidavit was that:
“The
provisions of sections 72(3) and subsection 4 of the same section of
the Constitution Amendment (No.20) Act, 2021 are not denied. I
however am not challenging the acquisition of my land for it was in
the first place not subject to any act of acquisition or
resettlement.
Subsections
(3) and (4) of section 72 of the Constitution do not affect my
application. This is so as the court order granted in 2009 clearly
states that the land held under title deeds (sic) 3188/83, deeds of
transfer registered in my name are not subject to any act of
acquisition or resettlement. I am neither seeking compensation as it
is one of the actions prohibited by the sections cited by the first
Respondent. In the present case, the properties held under title deed
3188/83 are still mine. The court order stopped any acts connected
with the acquisition of my land. My right to claim any action over
property under title deed 3188/83 hasn't been taken over by any
operation of law.”
31.
The High Court order in HC 2291/08 was handed down on 15 January
2009. This is a date that followed after the dates of the gazetting
of the first respondent's land in 2000 and also in 2008. The
listings of the first respondent's land in the gazettes indicated
that the land had been acquired by the State. After having been
acquired by the State, the first respondent ceased to be the lawful
owner of the land and any dispute arising over the acquisition of the
land was to be settled through the provisions of section 16B of the
former Constitution. This Court in Campbell
& Anor v The Minister of National Security Responsible for Land
Reform and Resettlement & Anor
SC
49/07 at p36, had an opportunity to interpret the import of section
16B of the Constitution of Zimbabwe, Amendment (No. 17), 2005 as
follows:
“By
the clear and unambiguous language of section 16B(3) of the
Constitution the Legislature, in 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 section 16B(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 section 16B(2)(a).
An acquisition of the land referred to in section 16B(2)(a) would be
a lawful acquisition. By
a fundamental law the Legislature has unquestionably said that 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
emphasis is added)
32.
The sentiments expressed in the Mike
Campbell case (supra)
were equally applied in the case of Commercial
Farmers Union v Minister of Lands and Rural Resettlement (supra)
wherein
this Court interpreted section 16B(3) of the Constitution as ousting
the jurisdiction of the courts to enquire into the legality or
otherwise of the acquisition of land in terms of section 16B(2)(a) of
the Constitution. Section 16B of the former Constitution inserted
schedule 7 into the 1980 Constitution to the effect that all of the
farms listed on General Notices published in the Gazette prior to 8
July 2005 were acquired and vested in the State. The first
respondent's farm was acquired by the State as listed in the
Gazette Extraordinary on 25 August 2000. It was also listed in the
gazette for the second time in 2008.
33.
It naturally followed that the first respondent had no legal cause or
justification to be aggrieved by the caveats placed over land which
had been acquired by the State. He had no legal cause to justify any
approach to the courts for the redress of the nature that he sought
before the court a
quo.
The caveats registered against the title deeds are caveats that
relate to the State's land and not the appellant's land. The
first respondent's right to lay any claim over the property or to
have the caveats registered over the title deed of the property
cancelled was overtaken and extinguished by the law once the land was
gazetted. Conversely, the court had no jurisdiction to entertain the
first respondent's application.
34.
After section 16B had been interpreted by the Court in the Commercial
Farmers Union
case
(supra),
the judgment of NDOU J was effectively rendered a brutum
fulmen
hence the first respondent could not have relied on it as an extant
judgment defining his rights over the land. In any event, the
judgment by NDOU J was handed down in January 2009 when the court had
ceased to have jurisdiction as clearly enunciated in the Campbell
and Commercial Farmers Union cases (supra).
The court a
quo
fell into error in not taking into account the provisions of section
16B(5) of the former constitution which provided that:
“(5)
Any inconsistency between anything contained in —
(a)
a noticed itemised in Schedule 7; or
(b)
a notice relating to land referred to in subsection (2)(a)(ii) or
(iii); and the title deed to which it refers or is intended to refer,
and any
error whatsoever
contained in such notice, shall not affect the operation of
subsection (2)(a) or invalidate the vesting of title in the State in
terms of that provision.” (the emphasis is added)
35.
In TBIC
Investments (Pvt) Ltd & Ors v The Minister of Lands and Rural
Development & Ors
2018
(1) ZLR 137 at 141G–142C, BHUNU JA stated:
“In
order to protect and keep the land reform programme on course,
Parliament in its wisdom amended the former Constitution. The
intention of the legislature was to automatically validate the
acquisition of all agricultural land identified and listed under
schedule 7 for purposes of the land reform programme on or before 8
July 2005 regardless of any errors or mistakes that may otherwise
have nullified the acquisition in the normal run of things.”
The
disputed land was acquired under the former Constitution, of which
section 16B(2) as amended provides as follows:
(1)
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 the Gazette Extraordinary under the
proviso to section 5(1) of the Land Acquisition Act [Chapter 20:10],
and which is itemized in the Seventh Schedule, being agricultural
land required for resettlement purposes…
(ii)…
(iii)…
is
acquired by and is vested in the State with full title therein with
effect from the appointed day…
(5)
Any inconsistency between anything contained in –
(a)
a notice itemized in schedule 7; or
(b)
a notice relating to land referred to in subsection (2)(a)(ii) or
(iii);
And
the title deed to which it refers or is intended to refer, and any
error whatsoever contained in such notice, shall not affect the
operation of subsection (2)(a) or invalidate the vesting of title in
the State in terms of that provision.”
36.
The learned Judge of Appeal proceeded to interpret the section by
stating, inter
alia,
at 142D–E as follows:
“The
effect of the above section (section 16B(5)) was to revive,
resuscitate and validate the acquisition of all identified
agricultural land listed in the 7th
schedule for resettlement purposes prior to 8 July 2005 regardless
of any errors or withdrawals in the acquisition process. No
limitation has been imposed on the acquisition process once the land
is shown to have been gazetted and listed in the 7th
schedule prior to 8 July 2005.
The
language used in section 16B(5) of the former constitution is clear
and unambiguous admitting no ambivalent interpretation. The only
meaning to be ascribed to the section is that once
land is gazetted and listed in schedule 7 it automatically stands
acquired by the State with full title by operation of law.
The
mere fact that the notice was at one time withdrawn or expired is
irrelevant.”
(the
emphasis is added)
He
proceeded at 142G:
“Once
the land had been identified and itemised under schedule 7, title to
the land automatically vested in the State with the result that it
automatically became State property by operation of law.
In
consequence whereof the previous owner was divested of his title to
the land and stripped of all rights of ownership to the acquired land
thereto.”
(the emphasis is added)
37.
For the sake of completeness paras (ii) and (iii) of section 16B(2)
of the former Constitution provide as follows:
“(ii)
That is identified after the 8th
July 2005, but before the appointed day, in the Gazette or Gazette
Extraordinary under section 5(1) of the Land Acquisition Act [Chapter
20:10], and which is itemised in Schedule 7, 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
Extraordinary for whatever purpose, including, but not limited to –
A.
settlement for agricultural or other purposes; or
B.
the purposes of land reorganisation, forestry. Environmental
conservation or the utilisation of wild life or other natural
resources; or
C.
the relocation of persons dispossessed in consequence of the
utilisation of land for a purpose referred to in subparagraph A or
B;”
38.
The first respondent was thus mistaken when he described the property
as “his property” because it became State land upon it being
identified and listed or itemised in Schedule 7. The court was thus
in agreement with Mr Muradzikwa
in his submission articulated in the following manner:
“The
effect of a Schedule 7 listing is that the acquisition of the farm
cannot be reversed by any application to a court of law. The only
method to delist the farm is an amendment of schedule 7 to the
Constitution.… The respondents went on to challenge the acquisition
of the farm via the back door by mounting an application for
upliftment of caveats in complete violation of the Constitution which
provides that an acquisition cannot be challenged in a court of law.
The only remedy which the law provides following an acquisition is an
application for compensation for improvements effected on the land
prior to its acquisition in terms of the Constitution or in terms of
SI 62/2020.”
39.
The fact that the respondent later on had a court order against the
acquiring authority is irrelevant. That order is brutum
fulmen.
It is incapable of being implemented. Once the land under title deed
3188/83 was identified and itemised under the 7th
Schedule “title to the land automatically vested in the State with
the result that it became State property by operation of law.” The
acquisition was validated “regardless of any errors or withdrawals
in the acquisition process.”
40.
In the CFU
case (supra),
CHIDYAUSIKU CJ put it as follows at p12 of the judgment:
“In
the face of the clear language of section 16B(3) of the Constitution,
a litigant can only approach the courts for a review and for a remedy
relating to compensation.”
Further,
at p27 he said:
“In
conclusion. I would summarise the legal position as follows -
(1)
Former owners and/or occupiers whose land has been acquired by the
acquiring authority in terms of section 16B(2)(a) of the Constitution
cannot challenge the legality of such acquisition in a court of law.
The jurisdiction of the courts has been ousted by section 16B(3)(a)
of the Constitution. See also the Mike
Campbell case supra.”
41.
The argument by counsel for the second respondent that the land in
dispute had already been proclaimed under S.I 212 of 1992 as land
within the boundaries of the City of Bulawayo and that such land
formed part of Bulawayo City Council land, falls away on the basis of
the above authority. In the face of section 16B of the former
Constitution and the subsequent promulgation of the Land Acquisition
Act [Chapter
20:10],
reference to S.I. 212 of 1992 cannot be and is of no avail to first
respondent. The Constitution and the statute prevail over the
Statutory Instrument. The Statutory Instrument cannot and does not
override the Constitution and the statute.
42.
In any event, the S.I. that the court has been able to find is
titled:
“Statutory
Instrument 212 of 1992
Control
of Goods (Rice Prices) (Amendment) Order, 1992 (No. 4)”
The
first respondent may have erroneously cited the wrong S.I. number,
but even if he did and there is in existence a Statutory Instrument
that says what he alleges it to say, on the basis of the above
analysis, it does not save the first respondent's case.
43.
The court a
quo
simply ignored the fact that the dispute before it was in relation to
acquired land hence its jurisdiction had been ousted by virtue of
section 16B.
44.
The fact that the court a
quo
lacked jurisdiction to deal with the matter has been further
confirmed by the incorporation of section 72(3) and (4) of the new
Constitution of Zimbabwe, 2013 which provide as follows:
“(3)
Where agricultural land, or any right or interest in such land, is
compulsorily acquired for a purpose referred to in subsection (2) -
(a)
Subject to section 295(1) and (2), no compensation is payable in
respect of its acquisition, except for improvements effected on it
before its acquisition;
(b)
No person may apply to court for the determination of any question
relating to compensation, except for compensation for improvements
effected on the land before its acquisition, and no court may
entertain any such application; and
(c)
The acquisition may not be challenged on the ground that it was
discriminatory in contravention of section 56.
(4)
All agricultural land which -
(a)
Was itemised in Schedule 7 to the former Constitution; or
(b)
Before the effective date, was identified in terms of section
16B(2)(a)(ii) or (iii) of the former Constitution; continues
to be vested in the State,
and no compensation is payable in respect of its acquisition except
for improvements effected on it before its acquisition.” (the
emphasis is added.)
45.
Until or unless the Constitution has been amended to allow the first
respondent to approach the courts for redress, the courts have no
jurisdiction to entertain any disputes relating to acquired land. The
Court found merit in the arguments and contentions presented by the
appellants counsel to the effect that the court a
quo
lacked jurisdiction to hear the matter.
DISPOSITION
46.
The court a
quo
fell into error when it failed to consider that the first
respondent's land was gazetted land and hence it constituted State
land. The court erroneously found that it had jurisdiction to deal
with the matter and failed to take into account that the jurisdiction
of the courts in relation to matters relating to the acquisition of
land was ousted by section 16B of the former Constitution. The
judgment of the High Court in HC 2291/08 fell away once section
16B(5) was enacted and the court a
quo
fell into error in not taking this into account. By applying for the
cancellation of the caveats, the first respondent acted on the
premise that he was the landowner of the land held under title deed
3188/83. He was not, because as at that stage title to the land
already vested in the State. The court a
quo,
as would have been the case with any other court, thus had no
jurisdiction to entertain the first respondent's application,
premised as it was on the basis that the land in issue was his
property. It was not. The court a
quo's
view that the judgment or order in HC 2291/08 was still in existence
was thus also erroneous.
47.
It is on this basis that this Court found that the appeal was
meritorious and proceeded to issue the order reproduced in para 2
above.
GWAUNZA
DCJ: I agree
CHIWESHE
JA: I agree
Civil
Division of the Attorney General's Office,
appellant's legal practitioners
Messrs.
Masamvu & Da Silva-Gustavo Law Chambers, first respondent's
legal practitioners
