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, who keep on disturbing agricultural activities in the quest to take the land back, a Bulawayo High Court judge said.
In a recent judgment in which Mr Rabson Dube was the applicant and Mr Lucas Cornelius van Vuuren was the respondent, Justice Maphios Cheda said people allocated land by virtue of offer letters, permits and/or land settlement lease should be assisted to be resettled on the land because they have legal documents.
Said the judge: “The previously disadvantaged and dispossessed people are being frustrated in their attempts to occupy the land. This type of conduct on the part of the previous owners or occupiers has to be brought to finality. The land continues to be a social and economic albatross which prevents a long overdue national developmental programme.”
He said former owners or occupiers must comply with the law without any further excuse whatsoever.
Justice Cheda said: “This issue of the land dispute has been a topical issue for a number of years now. In my view time has come to bring finality to this matter as directed by the Supreme Court. The Legislature and the Supreme Court, which is the highest court in the land, have as far back as 26 November 2010, decreed that it is illegal for former owners or occupiers to remain on gazetted land.”
Mr Dube through his lawyer, Mr Robert Ndlovu, of R Ndlovu and Company had approached the court applying for summary judgment and was praying for an order permanently interdicting Mr Van Vuuren and all those claiming through him from continuing with the illegal occupation of Subdivision 1 of Malala Farm in Matobo District.
The facts of the matter, which are not in dispute are that Mr Dube is the holder of an offer letter issued to him in May 2006 by the then Ministry of State for National Security, Lands and Land Reform and Resettlement.
Mr Dube accepted the right to occupy the land offered to him by the acquiring authority.
The said land was acquired by the Government of Zimbabwe on 16 May 2006 and despite the acquisition, Mr Van Vuuren continued to occupy the land in defiance of the law.
Mr Van Vuuren through his lawyer, Mr Josephat Tshuma, of Webb, Low and Barry Incorporating Ben Baron and Partners argued that Mr Dube had no loco standi to seek his eviction from the property.
Mr Van Vuuren further argued that he has a bona fide defence to Mr Dube’s claim being that he could only be evicted under the Gazetted Lands (Consequential Provisions) Act (Chapter 20:23) after being convicted by a competent court under the said Act.
He further said that the notice, which Mr Dube is relying upon is invalid and that there is a pending application by him in which he is seeking inter alia an order of the eviction of Mr Dube from the same land.
Justice Cheda said the Government of Zimbabwe explained the background and jurisdiction of the compulsory acquisition of agricultural land for resettlement of people who were unlawfully dispossessed of their land by the colonialists.
“Section 16B of the Constitution empowers ‘the acquiring authority’ that in casu is the Minister of Lands and Rural Resettlement programme to acquire land by gazetting it, which he did on 19 May 2006 under the Land Reform and Resettlement Programme.
“By acquiring this land (Malala Farm) for resettlement, respondent was therefore lawfully stripped of his right to this land. The acquisition of the land and the stripping of respondent of his right to the land were done lawfully as the constitution empowered him to do so.
“Having acquired the land the right thereto vested on the acquiring authority, who in turn bestowed it onto the applicant. To that end, applicant has a locus standi to enforce that right,” said the judge.
He said the Supreme Court made this position clear in the case of the Commercial Farmers’ Union and nine others versus the Minister of Lands and six others, which Chief Justice Godfrey Chidyausiku stated:
“In terms of Section 16B of the Constitution the individual applicants have been stripped of all the rights to the land they previously owned or occupied. Section 16B 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 authorised by Section 16B of the Constitution.”
Justice Cheda said in terms of Section 16B of the Constitution, a litigant could not successfully contend that the acquisition of his or her land is unlawful because it violates a right conferred on the litigant in terms of the Declaration of Rights, contained in Chapter 111 of the Constitution.
He adds: “It follows that a litigant whose land was acquired in terms of Section 16B of the Constitution cannot seek to set aside the acquisition of that land on the basis that such acquisition violated the rights conferred on the litigant by a provision contained in the Declaration of Rights or Chapter 111 of the Constitution such as Sections 18 and 23 of the Constitution.”
He concluded that Mr Van Vuuren had no right to be on that land as he was stripped of the right which was then conferred on Mr Dube.
Further he said Mr Van Vuuren had no defence against Mr Dube’s claim to the land in question as he was lawfully disposed of the land and is therefore a forrmer owner or occupier.
“He cannot defend what has been lawfully taken away from him. His right to this land ceased when it was gazetted on 19 May 2006. From that date, he was supposed to remain on the land for 90 days only. Any occupation by him or by any person claiming occupation through him is in violation of the law. In other words he has no defence to applicant’s claim,” said Justice Cheda.
He said in view of the fact that Mr Van Vuuren had contravened the law by not vacating the acquired land he should not have been heard as he approached the courts with dirty hands.
In the end Justice Cheda permanently interdicted Mr Van Vuuren and all those claiming occupation through him from continuing with the illegal occupation of Subdivision 1 of Malala Farm, Matobo District.
Mr Van Vuuren and those claiming through him should vacate within 30 days and in the event that they fail to vacate, the Deputy Sheriff and if need be, with the assistance of the ZRP Kezi/Matobo were directed to evict Mr Van Vuuren.
Mr Vuuren was ordered to pay the costs of the suit on an attorney and client scale.
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