Court name
Supreme Court of Zimbabwe
Case number
SC 45 of 2003
Civil Appeal 177 of 2003

Bon Espoir (Pvt) Ltd. v Chabata and Others (77/03) (SC 45 of 2003, Civil Appeal 177 of 2003) [2003] ZWSC 45 (11 December 2003);

Law report citations
Media neutral citation
[2003] ZWSC 45













REPORTABLE
ZLR (38)


Judgment
No. SC 45/03


Civil
Appeal No. 177/03








BON
ESPOIR (PRIVATE) LIMITED v





(1)
HENRY CHABATA





(2) THE
MEMBER-IN-CHARGE, CHIREDZI POLICE STATION





(3) THE
MINISTER OF LANDS, AGRICULTURE AND RURAL
RESETTLEMENT








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
CHEDA JA & GWAUNZA JA


HARARE,
NOVEMBER 27 & DECEMBER 12, 2003








R
Y Phillips
,
for the appellant





No
appearance for the first respondent





N
Mutsonziwa
,
for the second and third respondents





SANDURA  JA:
This is an appeal against a judgment of the High Court which
dismissed with costs the appellant’s application
for an order
declaring that the occupation by the first respondent (“Chabata”)
of the homestead and property known as Hippo Valley
Settlement
Holding 37 (“the property”) is unlawful, and directing the
second respondent to evict Chabata and all those occupying
the
property under him from the said property.






The factual
background is as follows. The property is part of the Hippo Valley
Settlement Scheme and was registered in the appellant’s
name in
1986. It is governed by the Hippo Valley Agreement Act
[
Chapter 20:08].






On 29 June
2001 the third respondent (“the Minister”) published in
The
Herald

newspaper a preliminary notice in terms of s 5(1)(a) of the Land
Acquisition Act [
Chapter 20:10]
indicating the Government’s intention to acquire the property, and
others, on a compulsory basis. A similar notice was supposed
to
have been published in the
Government
Gazette Extraordinary

(“the Gazette”) of 29 June 2001, but that Gazette was not
printed until the weekend of Saturday 30 June and Sunday
1 July
2001 and was not made available to the public before Thursday 5 July
2001.





In
the circumstances, on 10 July 2001, the appellant’s legal
practitioner wrote to the Minister as follows:





“The
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 Government’s intention to acquire these
properties on a compulsory basis.





The
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
second
newspaper notice. It is clear from the wording of the Act that the
Gazette notice is the principal triggering factor and
that the
Gazette notice is required to give thirty days for objections to be
lodged.






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.





The
Extraordinary Gazette of 29 June 2001 was not made available to
the public before Thursday 5 July 2001 …”.





The
letter was copied to the Director of the Civil Division of the
Attorney-General’s 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.






Subsequently,
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].





Aggrieved
by the compulsory acquisition of its property, the appellant company
filed an urgent chamber application in the High Court
seeking an
order evicting Chabata from the property. The application was
dismissed with costs. Dissatisfied with that result,
the appellant
appealed to this Court.






Mr Phillips,
who appeared for the appellant, advanced two main arguments. The
first was that the Minister’s 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
that
the general provisions of the Land Acquisition Act do not override
the special provisions of the Hippo Valley Agreement Act
with which
the Minister should have complied.






Section 5(1)(a)
of the Land Acquisition Act, in relevant part, reads as follows:





“(1) Where
an acquiring authority intends to acquire any land otherwise than by
agreement, he shall –





(a) publish
once in the Gazette and once a week for two consecutive weeks,
commencing with the day on which the notice in the Gazette
is
published, in a newspaper circulating in the area in which the land
to be acquired is situated and in such other manner as the
acquiring
authority thinks will best bring the notice to the attention of the
owner, a preliminary notice –





(i) describing
the nature and extent of the land which he intends to acquire …;
and






(ii) setting
out the purposes for which the land is to be acquired; and





(iii) calling
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





B. …”.





It
is clear from the above provisions that the first notice in the
newspaper must be published on the same day as a similar notice
is
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.





In
view of the fact that s 5(1)(a) was not complied with,
Mr 
Mutsonziwa,
who appeared for the second and third respondents, conceded that the
property was not lawfully acquired by the Minister. That
concession
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.





In
addition, a number of serious consequences stem from the publication
of the preliminary notice in the Gazette. Firstly, the
publication
of the preliminary notice in the newspaper commences on the day on
which the notice is published in the Gazette.





Secondly,
in terms of s 5(1)(a)(iii)(A), all interested parties who wish
to contest the compulsory acquisition of the property
in question
must lodge written objections with the acquiring authority within
thirty days from the date of publication of the notice
in the
Gazette.





Thirdly,
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
the permission
in writing of the acquiring authority.





Fourthly,
in terms of s 5(5), after the lodging of a copy of the
preliminary notice with the Registrar of Deeds, the Registrar
is
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
the Gazette.





Fifthly,
in terms of s 5(8), any person who, after a preliminary notice
has been published in the Gazette and while it is in
force,
demolishes, damages, alters or in any other manner impairs the land
described in the notice without the permission in writing
of the
acquiring authority, is guilty of an offence and is liable to a heavy
fine.





Finally,
in terms of s 8(1), the acquiring authority may, not less than
thirty days after the date of publication of the preliminary
notice
in the Gazette, acquire the land by serving an order to that effect
on the owner of the land concerned.





It
is clear from the above provisions that the date of publication of
the preliminary notice in the Gazette is of crucial importance.
In
addition, the consequences which stem from the publication of the
notice in the Gazette are so serious that compliance with
s 5(1)(a)
can only be imperative. Quite rightly, counsel for the second and
third respondents did not argue to the contrary..





In
the circumstances, as s 5(1)(a) was not complied with,
cadit
quaestio
. That is
the end of the matter and the appeal succeeds.





Nevertheless,
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 appellant’s property and with which the Minister should
have complied before compulsorily acquiring the property.
In my
view, this is a valid argument.





The
Hippo Valley Agreement Act was promulgated in January 1965 and is an
Act which incorporates an agreement between the Government
of
Zimbabwe and Hippo Valley Estates Limited. It relates to two
specific blocks of land in Ndanga District. On the other hand,
the
Land Acquisition Act was promulgated in 1992, and applies to the
compulsory acquisition of land in general. In addition, no
manifest
repeal of the earlier Act is to be found in the Land Acquisition Act.





In
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
do not
override pre-existing particular provisions. The maxim has been
discussed in many cases. However, the often cited case
is
R
v Gwantshu
1931 EDL
29. At 31 GUTSCHE J said the following:





The
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
delivering
the judgment of the Privy Council in
Barker
v Edger
[1898] AC at
p 754. … Having already given its attention to the
particular subject and provided for it, the Legislature
is reasonably
presumed not to alter that special provision by a subsequent general
enactment unless that intention be manifested
in explicit language.”





I
am in complete agreement with the learned judge. I find nothing in
the Land Acquisition Act which manifests the legislature’s
intention to repeal or amend the Hippo Valley Agreement Act. The
Land Acquisition Act does not, therefore, override the Hippo Valley
Agreement Act.





In
the circumstances, the Minister should have acquired the property in
terms of clause 22(a) of the Hippo Valley Agreement
Act, which
reads as follows:





“The
Government shall have the right at any time to resume possession of
any land let or sold in accordance with the provisions
of this
Agreement, whether to the Company or Planters under the Land
Settlement Scheme, if such land be required in the opinion of
the
Government for public use by the Government or for use by a section
of the public, … and if the Government shall decide to
exercise its
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
to agree,
appointing an umpire whose decision shall be final.”





It
is pertinent to note that the Land Acquisition Act does not have a
similar provision because under that Act no compensation is
payable
for land compulsorily acquired.





In
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
declared unlawful.







(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.














GWAUNZA
JA: I agree.














Coghlan,
Welsh & Guest
,
appellant's legal practitioners


Civil
Division of the Attorney-General’s Office
,
second and third respondents' legal practitioners