adminIn a recent judgment in which Walter Bryan Lawry was seeking an order that he be restored to peaceful and undisturbed possession of Section 14 and 15 of Watershed Block in the district of Gweru, Justice Lawrence Kamocha said the former owner should have ceased occupying or using acquired land at the expiry of 90 days.
The respondents in the court application are the then Minister of State for National Security, Land, Land Reform and Resettlement in the President’s Office, Didymus Mutasa, Messrs Mkhalalwa Cuthbert Leke Ncube, Tichaona Chishamba and the chief lands officer for Gweru.
Mr Lawry wanted the court to order that Minister Mutasa, who is now the Minister of Presidential Affairs, and the chief lands officer, refrain from resettling any person or persons on the farm until such time as the land is lawfully acquired by the acquiring authority and that he is lawfully evicted from the farm by due process of the law.
Mr Lawry also wanted an order that Messrs Ncube and Chishamba allow him to enjoy peaceful and undisturbed possession of the farm until such a time as he is lawfully evicted by due process of the law and in the event that the new farmers have actually taken occupation, they be evicted.
He wanted the respondents to pay the costs of the application jointly or severally one paying the others to be absolved.
Mr Ncube was on 20 November 2009 offered sub-division 2 of 14 and 15 Watershed Block for agricultural purposes under the land reform and resettlement programme.
Mr Chishamba was offered sub-division 1 of 14 and 15 of the same farm for the same purpose under the same programme.
They both accepted the offers and their offer was from the acquiring authority in whom ownership of the land at the centre of the dispute was vested after the land had been gazetted and acquired.
“The land in question had been identified in the gazette, which was subsequently itemised in Schedule 7 of the Constitution. The property was properly acquired and became State land.
“It is now settled that once land has been properly acquired by the acquiring authority it becomes State property and the acquiring authority is free to offer it to anyone of its choice. In this case the acquiring authority chose the second and third respondents (Ncube and Chishamba). They cannot be blamed for being the recipients,” ruled the judge.
Justice Kamocha added that it was also now settled that a holder of an offer letter has a clear right, derived from an Act of Parliament, to take occupation of acquired land allocated to him in terms of the offer letter.
The former owner, he said, has no right whatsoever to occupy the land after the prescribed period of 90 days.
Mr Lawry, through his lawyer, Advocate Tim Cherry instructed by Webb, Low and Barry Legal Practitioners, also claimed to be under protection of the order made by the Sadc Tribunal in case Sadc (T) 06/08.
“That order is not binding on this court as we clearly stated in the Commercial Farmers’ Union case. In the light of the foregoing, this application is dismissed with costs,” ruled Justice Kamocha.
In January 2010, the Harare High Court refused to register the Sadc Tribunal ruling seeking to bar the State from acquiring land for resettlement purposes, saying the judgment contravened Zimbabwe’s Constitution and public policy.
Justice Bharat Patel then ruled that enforcing the tribunal’s ruling would be against Zimbabwe’s domestic laws and agrarian policies noting that “the greater public good must prevail”.
Gramara (Private) Limited, an agricultural company owned by white commercial farmers and former president of the Commercial Farmers’ Union, Mr Colin Bailie Cloete, had sought an order for the registration of the tribunal’s decision for enforcement in Zimbabwe.
That followed an appeal made by 79 white commercial farmers to the regional court seeking to block the State’s compulsory acquisition of the farms they held.
In 2008, the tribunal, which is based in Windhoek, Namibia, passed interim and final orders barring acquisitions.
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