The Constitutional Court has reserved its judgment in a matter involving a family in Umvutcha, on the outskirts of Bulawayo, facing eviction from their farm after the Ministry of Lands allegedly placed an erroneous caveat on the property.
The family, through its legal representative, Bruce Masamvu of Masamvu & Da Silva-Gustavo Law Chambers, had made an application to the court seeking to regain ownership of their land.
The application cited Alister Michael Fletcher (81), as the applicant and Minister of Lands, Agriculture, Fisheries, Water and Rural Development, Registrar of Deeds and Robert Njanji as respondents.
Last week, Fletcher was summoned to Tredgold Magistrates’ Court to appear facing a charge of illegally occupying gazetted land.
The matter was however postponed, awaiting the outcome of the application before the Constitutional Court.
Masamvu said Fletcher was represented by Advocate Thabani Mpofu on their behalf.
“Our argument is that the farm falls under urban land and the law entails that such land cant be acquired through section 16B of the old constitution as amended. The Constitutional Court has ruled that before, so the acquisition was wrong, and the Supreme Court was wrong in refusing to entertain our client’s case. The law used by the Supreme Court applies to agricultural land only,” Masamvu said.
On the bench hearing the matter were three Judges, Justice Rita Makarau, Justice Ben Hlatshwayo and Justice Bharat Patel.
Masamvu explained to CITE that the reserved judgment from the Constitutional Court puts on-hold the proceedings at the Magistrates’ court until it is released.
The family has for years been in and out of court fighting to regain ownership and remain on the land.
According to the court documents, Masamvu argues that the property falls under municipal land and must be governed as per provisions of Statutory Instrument (SI) 212 of 1999 but due to the caveats, the owner of the land was stripped of all rights to conduct any form of transactions on the property.
The SI reads that: “Whereas by paragraph (b) of subsection 2 of section 4 of the Urban Councils Act [Chapter 29:15], it is provided that, at any time after the establishment of a council the President may, subject to this Act, by proclamation in the Gazette and with the consent of the council alter the boundaries or re-divide the council area into any number of wards, create one or more additional wards, alter or abolish one or more wards or abolish the division of the council area into wards;
“Now, therefore, under and by virtue of the powers vested in the President I do hereby. (a) alter the boundaries of the Bulawayo City Council area by the addition of Umvutsha, Reigate, Umguza Agricultural Lots, Umguza Estate, Southern Portion of Nondwane to the ‘said council area”
The court documents show that the High Court upheld an application made by Fletcher, to have the ministry remove caveats imposed on the property.
According to the documents, Njanji, cited as the second respondent, admitted to the court that the caveats had been erroneously applied and endorsed hence there was a need to remove them.
The documents further show that the Supreme Court ruled that the High Court had no jurisdiction to hear the matter and therefore could not have ruled for the removal of the caveats.
Another application was then made to challenge the ruling of the High Court, citing that the ruling violates the property owner’s rights as enshrined in the Constitution.
“This is an application in terms of Rule 32 of the Constitutional Court Rules, 2016, for leave to appeal against the whole judgment of the Supreme Court of Zimbabwe, handed down by the Honourable Judges of Appeal GWAUNZA DCJ, MAVANGIRA JA, and CHIWESHE JA in Bulawayo on 24th November 2023. The applicant is a litigant within the contemplation of rule 32(2) of the Constitutional Court Rules, 2016 in that he was the 1st Respondent in the Supreme Court,” the documents read.
“The appeal raised constitutional issues and has the effect of violating applicant’s Constitutional rights, having been an appeal against Judgment handed down by the Honourable Justice DUBE BANDA in Bulawayo on 8th June 2023.
“In the aforesaid appeal, constitutional issues arose in respect of section 16B of the former Constitution of Zimbabwe, now section 72 of the Constitution of Zimbabwe, 2013, particularly whether, the High Court lacks the jurisdiction to determine a court challenge for the removal of caveats placed over urban land designated for residential development purportedly acquired under the guise of an acquisition of agricultural land for resettlement purposes in terms of section 16B of the former constitution. The Supreme Court considered and determined this issue against the applicant.”
The documents note that by so doing, the Supreme Court order violates Fletcher’s right to use, hold, transfer and not to be compulsorily deprived of its property as enshrined in section 71 (2) – (3) and his right to equal protection by the law as enshrined in section 56 Constitution of Zimbabwe, 2013.
“The applicant is seeking leave to appeal in terms of Rule 32 of the Constitutional
Court Rules, 2016. As required by Rule 32(3)(c), the constitutional matter raised in the decision sought to be appealed against is as follows, whether or not the High Court of Zimbabwe or any other court, lacks the jurisdiction to determine a court challenge concerning the acquisition of urban land which is by Presidential Proclamation in terms of a statutory instrument, designated as urban land for residential development, where such acquisition has been done in terms of section 16B of the former Constitution of Zimbabwe now section 72 of the Constitution of Zimbabwe, 2013,” the documents read.
“Whether or not, on a proper construction, of section 16B (3) of the former Constitution of Zimbabwe and now section 72 (3) of the Constitution of Zimbabwe, 2013, permits Courts of law to disregard extant court orders that would have entrenched the legal position that land designated as urban land for residential purposes cannot be acquired using statutes and Constitutional provisions applicable to acquisition of agricultural land for resettlement purposes.”
The documents also noted that the grounds upon which the decision is disputed are that the court misdirected itself when it held that the High Court, by operation of section 16B (3) of the former constitution of Zimbabwe now 72 of Constitution of Zimbabwe, 2013, lacked the jurisdiction to determine an application for the removal of caveats that had been placed over urban farmland designated urban land by presidential proclamation by virtue of Statutory Instrument 212 of 1999.
“The order of the court aquo violates the appellants right to use, hold, transfer and not to be compulsorily deprived of its property as enshrined in section 71 (2) – (3) and his right to equal protection of the law as enshrined in section 56 Constitution of Zimbabwe, 2013.”
