The Constitutional Court has reserved its ruling in a case involving a family in Umftocha, on the outskirts of Bulawayo, facing eviction from their farm after the Department of Lands placed a false caveat on the property.
The family, through their legal representative, Bruce Masamvu of the law firm of Masamvu and Da Silva-Gustavo, applied to the court seeking to regain ownership of their land.
The application cited Alastair Michael Fletcher (81), as the applicant, and the Minister of Lands, Agriculture, Fisheries, Water and Rural Development, Registrar of Titles, and Robert Nganje as respondents.
Last week, Fletcher was summoned to Treadgold Magistrates’ Court to appear on a charge of illegally occupying gazetted land.
However, the matter was postponed pending the outcome of the application before the Constitutional Court.
Masamvu said Fletcher was represented by lawyer Thabani Mpofu on their behalf.
“Our argument is that the farm falls within urban land and the law says that these lands cannot be acquired through Article 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 He refused to consider our client’s case.Masamvu said that the law used by the Supreme Court only applies to agricultural land.
On the bench who heard the matter were three judges, Justice Rita Makarau, Justice Ben Hlatshwayo, and Justice Bharat Patel.
Masamvu explained to CITE that the reserved ruling by the Constitutional Court halts the proceedings before the Magistrates Court until she is released.
The family has been fighting for years in and out of court to regain ownership and stay on the land.
According to court documents, Masamvu says the property falls within municipal land and should be subject to the provisions of Statutory Instrument (SI) 212 of 1999 but due to warnings, the landowner has been stripped of all rights to conduct any form of transactions on the property.
The SI states: “Whereas pursuant to paragraph (b) of Subsection 2 of Section 4 of the Urban Councils Act [Chapter 29:15]provides that the President may, at any time after the establishment of the Council, under this Act, by advertisement in the Gazette and with the approval of the Council, change the boundaries or redivide the Council area into any number of ward areas, create one or more additional wards, or change Or cancel one or more wards, or cancel the division of the council area into sections;
“And now, by and by the powers vested in the President, I do hereby do so. (a) Change the boundaries of the Bulawayo City Council Area by adding Umfucha, Rigate, Umjosa Agricultural Lands, Umjoza Estate, Southern Part of Nondwane to the ‘said Council Area’
Court documents show that the Supreme Court upheld Fletcher’s request, asking the ministry to remove the warnings imposed on the drug.
According to the documents, Nganji, the second defendant, admitted in court that the warnings had been wrongly applied and passed and therefore needed to be removed.
The documents also show that the Supreme Court ruled that the Supreme Court had no jurisdiction to hear the matter and therefore could not rule that the warnings be overturned.
Another application was then filed challenging the Supreme Court ruling, arguing that the ruling violated the property owner’s constitutional rights.
“This is an application pursuant to Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the full judgment of the High Court of Zimbabwe, delivered by the Honorable Judges of Appeal GWAUNZA DCJ, MAVANGIRA JA,
CHIWESHE JA in Bulawayo on 24 November 2023. The applicant is a litigant within consideration of Rule 32(2) of the Constitutional Court Rules 2016 where he was the first respondent in the High Court.
“The appeal raised constitutional issues and had the effect of violating the applicant’s constitutional rights, having been an appeal against the judgment of His Honor Justice Dube Banda in Bulawayo on 8 June 2023.
“In the said appeal, constitutional issues arose in relation to Section 16B of the erstwhile Constitution of Zimbabwe, and now Section 72 of the 2013 Constitution of Zimbabwe, in particular whether the High Court lacked jurisdiction to decide the appeal before the court to remove the judgment of the High Court.” Caveats placed on urban land earmarked for residential development allegedly acquired under the guise of acquisition of agricultural land for resettlement purposes under Article 16B of the previous Constitution. The Supreme Court heard this case and decided against the applicant.
The documents state that by doing so, the High Court order violates Fletcher’s right to use, possession and transfer and not to be forcibly deprived of his property as set out in section 71(2)-(3) and his right to equal protection by the High Court. The law is as provided in Section 56 of the Constitution of Zimbabwe, 2013.
“The applicant seeks leave to appeal under Section 32 of the Constitution
Rules of Court, 2016. As required by Rule 32(3)(c), the constitutional question raised in the decision sought to be appealed is as follows, whether or not the High Court of Zimbabwe or any other court lacks jurisdiction to determine an appeal to The court in relation to the acquisition of urban land by Presidential Proclamation under a statutory instrument and allocated as urban land for residential development, where such acquisition was made under Section 16B of the former Constitution of Zimbabwe now Section 72 of the Constitution of Zimbabwe 2013,” the documents stated.
“Whether or not section 16B(3) of the erstwhile Constitution of Zimbabwe, and now Section 72(3) of the 2013 Constitution of Zimbabwe, on proper construction, allows courts to ignore existing court orders which would have established the legal position that designated lands As urban land for residential purposes it cannot be acquired using the laws and constitutional provisions applicable to the acquisition of agricultural land for resettlement purposes.
The documents also indicated that the grounds on which the decision was appealed were that the court had misdirected itself when it held that the High Court, under section 16B(3) of the former Constitution of Zimbabwe (now 72 of the Constitution of Zimbabwe 2013), lacked the judicial power to decide In requesting the removal of caveats placed on urban agricultural land designated as urban land by Presidential Proclamation under Statutory Instrument No. 212 of 1999.
“The order of the court violates the appellant’s right to use, possess and transfer his property and not to be forcibly deprived of his property as provided for in section 71(2)-(3) and his right to equal protection of the law as provided for under section 56 Constitution of Zimbabwe, 2013. SITE
