No. SC 45/03
Appeal No. 177/03
ESPOIR (PRIVATE) LIMITED v
MEMBER-IN-CHARGE, CHIREDZI POLICE STATION
MINISTER OF LANDS, AGRICULTURE AND RURAL
COURT OF ZIMBABWE
CHEDA JA & GWAUNZA JA
NOVEMBER 27 & DECEMBER 12, 2003
for the appellant
appearance for the first respondent
for the second and third respondents
This is an appeal against a judgment of the High Court which
dismissed with costs the appellants application
for an order
declaring that the occupation by the first respondent (Chabata)
of the homestead and property known as Hippo Valley
Holding 37 (the property) is unlawful, and directing the
second respondent to evict Chabata and all those occupying
property under him from the said property.
background is as follows. The property is part of the Hippo Valley
Settlement Scheme and was registered in the appellants
1986. It is governed by the Hippo Valley Agreement Act
On 29 June
2001 the third respondent (the Minister) published in The
newspaper a preliminary notice in terms of s 5(1)(a) of the Land
Acquisition Act [Chapter 20:10]
indicating the Governments intention to acquire the property, and
others, on a compulsory basis. A similar notice was supposed
have been published in the Government
(the Gazette) of 29 June 2001, but that Gazette was not
printed until the weekend of Saturday 30 June and Sunday
2001 and was not made available to the public before Thursday 5 July
the circumstances, on 10 July 2001, the appellants legal
practitioner wrote to the Minister as follows:
Herald of 29 June
2001 contained some twelve pages of lists of properties in respect of
which preliminary notice was being given in terms
of s 5 of the
Land Acquisition Act of Governments intention to acquire these
properties on a compulsory basis.
Act requires such notices to appear on the same day as a similar
notice in the Gazette and to be followed a week later with a
newspaper notice. It is clear from the wording of the Act that the
Gazette notice is the principal triggering factor and
Gazette notice is required to give thirty days for objections to be
We give formal
notice that the Extraordinary Gazette which was meant to be published
on 29 June 2001 was not published on that
date and that the
lists appearing as Batches A, B and C in The Herald on 29 June
must therefore be regarded as invalid.
Extraordinary Gazette of 29 June 2001 was not made available to
the public before Thursday 5 July 2001 .
letter was copied to the Director of the Civil Division of the
Attorney-Generals Office (the Director), and the Controller
of Printing and Stationery. There was no response to it from the
Minister, the Director and the Controller of Printing and Stationery.
the Minister, acting in terms of s 8(1) of the Land Acquisition
Act, purported to acquire the property on behalf
of the President,
and thereafter allocated it to Chabata in terms of the Agricultural
Land Settlement Act [Chapter 20:01].
by the compulsory acquisition of its property, the appellant company
filed an urgent chamber application in the High Court
order evicting Chabata from the property. The application was
dismissed with costs. Dissatisfied with that result,
appealed to this Court.
who appeared for the appellant, advanced two main arguments. The
first was that the Ministers failure to comply with s 5(1)(a)
of the Land Acquisition Act was fatal to all subsequent proceedings
including the acquisition of the property, and the second was
the general provisions of the Land Acquisition Act do not override
the special provisions of the Hippo Valley Agreement Act
the Minister should have complied.
of the Land Acquisition Act, in relevant part, reads as follows:
an acquiring authority intends to acquire any land otherwise than by
agreement, he shall
once in the Gazette and once a week for two consecutive weeks,
commencing with the day on which the notice in the Gazette
published, in a newspaper circulating in the area in which the land
to be acquired is situated and in such other manner as the
authority thinks will best bring the notice to the attention of the
owner, a preliminary notice
the nature and extent of the land which he intends to acquire ;
out the purposes for which the land is to be acquired; and
upon the owner or occupier or any other person having an interest or
right in the land who
A. wishes to contest the
acquisition of the land, to lodge a written objection with the
acquiring authority within thirty days from
the date of publication
of the notice in the Gazette; or
is clear from the above provisions that the first notice in the
newspaper must be published on the same day as a similar notice
published in the Gazette. Quite clearly, that is not what happened
in this case. The notice was published in The
Herald on 29 June
2001, but the Gazette in which the notice appeared and which was
meant to be published on 29 June 2001 was not
published on that
date. Instead, it was published on 5 July 2001. The error
and consequent invalidity of the notice were
brought to the attention
of the Minister and the Director but, surprisingly, no corrective
action was taken.
view of the fact that s 5(1)(a) was not complied with,
who appeared for the second and third respondents, conceded that the
property was not lawfully acquired by the Minister. That
was properly made. It is clear from the wording of s 5(1)(a)
that compliance with the provisions of the section
is peremptory and
that that was the intention of the legislature.
addition, a number of serious consequences stem from the publication
of the preliminary notice in the Gazette. Firstly, the
of the preliminary notice in the newspaper commences on the day on
which the notice is published in the Gazette.
in terms of s 5(1)(a)(iii)(A), all interested parties who wish
to contest the compulsory acquisition of the property
must lodge written objections with the acquiring authority within
thirty days from the date of publication of the notice
in terms of s 5(2), where the acquiring authority has published
a preliminary notice in the Gazette in respect of
any land no
subdivision, permanent improvements or disposal of the land may be
effected, while the notice remains in force, without
in writing of the acquiring authority.
in terms of s 5(5), after the lodging of a copy of the
preliminary notice with the Registrar of Deeds, the Registrar
interdicted from registering any transfer of the property described
in the notice to any person other than the acquiring authority
unless, inter alia,
he does so in pursuance of a valid contract of sale entered into
prior to the date on which the preliminary notice was published
in terms of s 5(8), any person who, after a preliminary notice
has been published in the Gazette and while it is in
demolishes, damages, alters or in any other manner impairs the land
described in the notice without the permission in writing
acquiring authority, is guilty of an offence and is liable to a heavy
in terms of s 8(1), the acquiring authority may, not less than
thirty days after the date of publication of the preliminary
in the Gazette, acquire the land by serving an order to that effect
on the owner of the land concerned.
is clear from the above provisions that the date of publication of
the preliminary notice in the Gazette is of crucial importance.
addition, the consequences which stem from the publication of the
notice in the Gazette are so serious that compliance with
can only be imperative. Quite rightly, counsel for the second and
third respondents did not argue to the contrary..
the circumstances, as s 5(1)(a) was not complied with, cadit
quaestio. That is
the end of the matter and the appeal succeeds.
I shall consider the second argument advanced by Mr Phillips.
That argument was that the general provisions of the Land
Acquisition Act do not override the Hippo Valley Agreement Act which
governs the appellants property and with which the Minister should
have complied before compulsorily acquiring the property.
view, this is a valid argument.
Hippo Valley Agreement Act was promulgated in January 1965 and is an
Act which incorporates an agreement between the Government
Zimbabwe and Hippo Valley Estates Limited. It relates to two
specific blocks of land in Ndanga District. On the other hand,
Land Acquisition Act was promulgated in 1992, and applies to the
compulsory acquisition of land in general. In addition, no
repeal of the earlier Act is to be found in the Land Acquisition Act.
the circumstances, the maxim generalia
specialibus non derogant
applies. The maxim means that general provisions do not derogate
from special provisions. In other words, general provisions
override pre-existing particular provisions. The maxim has been
discussed in many cases. However, the often cited case
v Gwantshu 1931 EDL
29. At 31 GUTSCHE J said the following:
general maxim is generalia
specialibus non derogant.
When the Legislature has given attention to a separate subject
and made provision for it, the presumption is that a subsequent
general enactment is not intended to interfere with the special
provision, unless it manifests that intention very clearly. Each
enactment must be construed in that respect according to its own
subject matter and its own terms, per LORD HOBHOUSE
the judgment of the Privy Council in Barker
v Edger  AC at
p 754. Having already given its attention to the
particular subject and provided for it, the Legislature
presumed not to alter that special provision by a subsequent general
enactment unless that intention be manifested
in explicit language.
am in complete agreement with the learned judge. I find nothing in
the Land Acquisition Act which manifests the legislatures
intention to repeal or amend the Hippo Valley Agreement Act. The
Land Acquisition Act does not, therefore, override the Hippo Valley
the circumstances, the Minister should have acquired the property in
terms of clause 22(a) of the Hippo Valley Agreement
reads as follows:
Government shall have the right at any time to resume possession of
any land let or sold in accordance with the provisions
Agreement, whether to the Company or Planters under the Land
Settlement Scheme, if such land be required in the opinion of
Government for public use by the Government or for use by a section
of the public, and if the Government shall decide to
rights, it shall pay such compensation for the land as may be
mutually agreed upon, or failing such mutual agreement,
as may be
determined by valuation, the Company and the Government each
appointing a valuator and the valuators, if they are unable
appointing an umpire whose decision shall be final.
is pertinent to note that the Land Acquisition Act does not have a
similar provision because under that Act no compensation is
for land compulsorily acquired.
the circumstances, the following order is made
1. The appeal is allowed with
costs to be paid by the third respondent.
2. The order of the court a
quo is set aside and
the following is substituted
(a) The occupation of the
homestead and property known as Hippo Valley Settlement Holding 37
by the first respondent is hereby
(b) The second respondent shall
take all reasonable and necessary steps to evict the first respondent
and all those holding occupation
under him from the homestead and
premises of the applicant on Hippo Valley Settlement Holding 37.
(c) The costs of this application
shall be paid by the first respondent.
CHEDA JA: I agree.
JA: I agree.
Welsh & Guest,
appellant's legal practitioners
Division of the Attorney-Generals Office,
second and third respondents' legal practitioners