Court name
Supreme Court of Zimbabwe
Case number
SC 36 of 2004
Civil Appeal 364 of 2003

Airfield Investments (Pvt) Ltd. v Minister of Lands Agriculture and Rural Resettlement and Others (64/03) (SC 36 of 2004, Civil Appeal 364 of 2003) [2004] ZWSC 36 (02 June 2004);

Law report citations
Media neutral citation
[2004] ZWSC 36













REPORTABLE
(30)


Judgment
No. SC 36/04


Civil
Appeal No. 364/03








AIRFIELD
INVESTMENTS (PRIVATE) LIMITED v





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


(2) THE
MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS


(3) THE
MEMBER-IN-CHARGE, CHEGUTU POLICE STATION (4)
THE ATTORNEY-GENERAL OF ZIMBABWE


(5) R 
SANGO








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & MALABA  JA


HARARE,
MAY 4 & JUNE 3, 2004








E
T Matinenga
, for the
appellant





D D Chirindo,
for the first, second, third and fourth respondents





No
appearance for the fifth respondent






MALABA JA: This appeal is
directed against the judgment of the High Court dated 25 September
2002. What is in issue is
the correctness of the decision by the
court
a quo
in refusing an application by the appellant for an interim interdict
prohibiting the State from proceeding with the compulsory acquisition
of agricultural land for resettlement purposes pending the
determination of the constitutionality of ss 8, 9 and 10 of the Land
Acquisition
Act [
Chapter 20:10]
(“the Act”).





The
interim relief sought by the appellant was couched in these terms:






“1. That
the first respondent be and is hereby interdicted from further
proceeding with the acquisition in terms of the Land Acquisition
Act
[
Chapter 20:10]
of the property known as Hallingbury House, Hallingbury, situate in
the District of Chegutu, measuring 68 950 hectares pending
determination of this matter.







2. Further, the effect of any
acquisition order issued in respect of the property known as
Hallingbury House, Hallingbury, situate
in the District of Chegutu,
measuring 68 950 hectares purportedly acquired for resettlement
purposes in terms of section 8
of the Land Acquisition Act
[
Chapter 20:10]
is hereby suspended pending the resolution of this matter and such
order shall not preclude the applicant (now the appellant) or
any
other occupier of such land from occupying, holding or using the land
including all improvements thereon and from continuing
all farming
operations until finalisation of this matter.






3. It
therefore follows that the applicant may continue cultivating,
harvesting and selling all farm produce on and from the
aforementioned
property during the currency of this order and shall
not be liable to be prevented from doing so in any way whatsoever.





4. The
third respondent is hereby ordered to render any and all lawful
assistance to the applicant in ensuring its continued occupation,
use
and enjoyment of the aforementioned property.”






The
appellant is the former owner of the agricultural land known as
Hallingbury House, Hallingbury (“the land”) which the State
compulsorily acquired for resettlement purposes in terms of the Act.
The first respondent is the “acquiring authority” as defined
in
s 2 of the Act and made the order by which the appellant’s
land was compulsorily acquired for resettlement purposes.
The
second respondent was cited because he was said to have introduced in
Parliament the Land Acquisition Amendment Bill which became
the Land
Acquisition Amendment Act, No. 6 of 2002, some of the provisions
of which amended ss 8, 9 and 10 of the Act allegedly
rendering them
unconstitutional. The third respondent was cited because the
appellant wanted to ensure that police under his command
enforced the
interim order should the court grant it. The Attorney-General was
cited in compliance with s 24(6) of the Constitution
of Zimbabwe
(“the Constitution”), which requires that if in any proceedings
it falls to be determined whether any law is in contravention
of the
Declaration of Rights, the Attorney-General shall be entitled to be
heard by the court on that question. The fifth respondent
was cited
because he is the person to whom the acquiring authority allocated
the land it expropriated from the appellant. The object
of the
interim relief was to prevent him from taking occupation or
possession of the land pending determination of the constitutionality
of the impugned sections of the Act.





It
is common cause that on 22 June 2001 the first respondent,
exercising the power given to the acquiring authority in s 5(1)
of the Act, caused to be published in the
Government
Gazette
(G.N. 313B
of 2001) a preliminary notice of the intention of the State to
compulsorily acquire the appellant’s agricultural
land for
resettlement purposes. The appellant, as the then owner or occupier
of the land, had the right to submit to the first
respondent a
written objection to the proposed acquisition within thirty days from
the date of publication of the preliminary notice.
In exercising
its rights, the appellant objected to the proposed acquisition of the
land. After consideration of the grounds
for the objections the
first respondent nonetheless made an order compulsorily acquiring the
land in terms of subs (1) of s 8
of the Act.





Subsection (1)
of s 8 of the Act gives power to the acquiring authority to make
an order not less than thirty days after
the date of publication of
the preliminary notice acquiring the land the nature and extent of
which would be described therein.
For the acquisition to be valid
the agricultural land in question must have been taken for
resettlement purposes on payment of fair
compensation within a
reasonable time. Upon service of the order of acquisition upon the
owner or occupier of the land the rights
of ownership are immediately
taken and vested in the acquiring authority.





To
that extent subs (3) of s 8 of the Act provides that:





“(3) Subject
to section ten A the effect of an order made in terms of
subsection (1) shall be that the ownership of the
land specified
therein shall, subject to subsection (5) of section seven,
immediately vest in the acquiring authority whether
or not
compensation has been agreed upon, fixed or paid in terms of Part V
or VA and, subject to section nine, shall be free of all
rights and
encumbrances.”





Section 10A,
referred to in subs (3) of s 8, gives the acquiring
authority the right to revoke the order of acquisition
not later than
six months after making the order in terms of subs (1) of s 8.
It is important to note that the right
to revoke or withdraw an
order of acquisition is given to the acquiring authority and as such
cannot be revoked by a person who is
not an acquiring authority as
defined in s 2 of the Act. A revocation of an order of
acquisition which is made after six months
from the date the order
was made would be invalid.





When
the acquiring authority has made an order of acquisition in terms of
subs (1) of s 8, it is obliged to make an application
to
the Administrative Court not later than thirty days after the service
of the order for confirmation of the acquisition.





Subsection (5)
of s 7, referred to in subs (3) of s 8, provides that
where the Administrative Court refuses
to confirm the acquisition, it
shall order the acquiring authority to return the land acquired to
the previous owner or occupier
even where the acquiring authority had
already acted in terms of ss 8 or 9. Subsection (2) of
s 8 gives the acquiring
authority a discretion to exercise the
rights of ownership in the acquired land such as demarcating or
allocating it after the expiry
of ninety days from the date of
service of the order of acquisition upon the owner or occupier
especially where the owner or occupier
is in possession of and
exercises the residual rights reserved for his enjoyment under s 9
and for the duration of the period
prescribed therein.





Section 9,
referred to in subs (3) of s 8, provides in para (b)
of subs (1) for the eviction of the owner
or occupier of the
acquired land. It reads:






“(b) in relation to any
agricultural land required for resettlement purposes, the making of
an order in terms of subs (1) of s 8
shall constitute
notice in writing to the owner or occupier to cease to occupy, hold
or use that land forty-five days after the date
of service of the
order upon the owner or occupier, and if he fails to do so, he shall
be guilty of an offence and liable to a fine
not exceeding one
hundred thousand dollars or imprisonment for a period not exceeding
two years or to both such fine and such imprisonment:






Provided that –






(i) the owner or occupier of that
land may remain in occupation of his living quarters on that land for
a period of not more than
ninety days after the date of service of
the order;






(ii) the
owner or occupier shall cease to occupy his living quarters after the
period referred to in proviso (i), and if he fails
to do so he shall
be guilty of an offence and liable to a fine not exceeding one
hundred thousand dollars or imprisonment for a period
not exceeding
two years or to both such fine and such imprisonment.”








The
provisions of subs (1) of s 9 are subject to subs (3)
of s 8, showing that the rights embodied therein are
a
limitation to the exercise of rights of ownership by the acquiring
authority and are reserved for the former owner or occupier
of the
expropriated land to the extent that the owner or occupier is there
on the land to occupy, hold or use it and the living quarters
thereon
for the duration of the time prescribed. At the end of the maximum
period of ninety days from the date of service of the
order of
acquisition, the rights of the former owner or occupier cease to
exist and by operation of law he must leave the land or
be evicted by
order of court. Should the acquiring authority withdraw a letter of
offer of the land to another person, the land
reverts to the
acquiring authority and not the former owner or occupier unless, of
course, the acquiring authority also revokes the
order of
acquisition.





It
is also clear from the provisions of subs (5) of s 7 that
the acquisition of land required for resettlement purposes
can take
place and the acquiring authority can exercise all the rights of
ownership such as the allocation of it notwithstanding
the fact that
the application is pending before the Administrative Court. The
obligation imposed on the acquiring authority is
to make the
application for confirmation of the acquisition to the Administrative
Court not later than thirty days from the date
of service of the
order of acquisition and to bear in mind that should the
Administrative Court refuse to confirm the acquisition
it will be
ordered to return the land to the former owner or occupier.





Once
the acquiring authority submits its decision to compulsorily acquire
the land for resettlement purposes to the process of judicial
review
by the Administrative Court, it cannot be prohibited by a court from
exercising rights of ownership in the acquired land on
the ground
that confirmation proceedings are still pending before the
Administrative Court.





The
order of acquisition of the appellant’s land was made by the first
respondent on 4 April 2002 and served on its managing
director
on 9 April 2002. As such, the appellant had notice of the duty
to cease to occupy, hold or use the land at the end
of forty-five
days from the date of service upon it of the order and to cease to
occupy, hold or use the living quarters on the land
at the end of
ninety days from the same date of service of the order of
acquisition. The appellant did not do any of the things
it was
obliged to do at the end of the prescribed periods.





In
the founding affidavit deposed to on its behalf, it is disclosed that
a deliberate decision was taken to defy the law and remain
in
occupation of the land and continue with farming operations after the
period at the end of which it had to cease operations on
the land had
expired. It is said the appellant made “a conscious decision to
continue farming operations on the property”.





On
19 August 2003 the first respondent made an offer of the land to
the fifth respondent, who accepted it on condition the
parties
entered into a lease agreement. The appellant’s managing director
and workers on the farm refused to make way for the
fifth respondent
to take occupation of the land.





On
16 November 2003 an urgent chamber application was made to the
High Court by the appellant for an order declaring ss 8, 9
and 10 of
the Act unconstitutional, thereby paving the way for it to retain
ownership of the land. To ensure that it remained on
the land and
continued carrying out farming operations, the appellant applied to
the court
a quo
for the interim relief, the correctness of the refusal of which is
the issue on appeal. The claim advanced by the appellant was
that
the acquisition of its land was unlawful because the sections of the
Act under which it was effected were unconstitutional.





The
learned judge held that the first respondent was authorised by law to
acquire the land for resettlement purposes. He could not
be
interdicted from doing what was a legal duty to do. The fact that
the appellant acted on its belief that the law was unconstitutional
and ignored the provisions of the Act showed that it was determined
to act in open defiance of the law. On para (2) of the
interim
relief sought, the learned judge said that there was no allegation on
the papers to the effect that the acquisition order
was not lawfully
made by the first respondent. It was his opinion that para (3)
of the interim relief could not be granted
because doing so would
give the appellant protection for acting in contravention of the law.
As the continued occupation and use
of the land by the appellant
was in contravention of para (b) of subs (1) of s 9 of
the Act, the learned judge declined
to order the police to protect
the illegal activities.





The
question is whether the court
a quo
was correct in refusing to grant the interim relief sought by the
appellant.





It
must be borne in mind that an interim interdict is an extraordinary
remedy, the granting of which is at the discretion of the court
hearing the application for the relief. There are, however,
requirements which an applicant for interim relief must satisfy
before
it can be granted. In
L F Boshoff
Investments (Pty) Ltd v Cape Town Municipality

1969 (2) SA 256 (C) at 267 A-F, CORBETT J (as he then was)
said an applicant for such temporary relief must show:






“(a) that
the right which is the subject matter of the main action and which he
seeks to protect by means of interim relief is clear
or, if not
clear, is
prima
facie
established
though open to some doubt;







(b) that, if the right is only
prima facie
established, there is a well-grounded apprehension of irreparable
harm to the applicant if the interim relief is not granted and
he
ultimately succeeds in establishing his right;






(c) that
the balance of convenience favours the granting of interim relief;
and





(d) that
the applicant has no other satisfactory remedy.”





The
threshold the appellant had to cross was the production of evidence
which established the existence in it of
prima
facie
rights of
ownership in the land at the time the application for interim relief
was made. An interim interdict is not a remedy for
past invasions
of rights and will not be granted to a person whose rights in a thing
have already been taken from him by operation
of law at the time he
or she makes an application for interim relief.





In
Stauffer Chemicals v
Monsato Company
1988
(1) SA 805 at 809 F-G HARMS J said:





“…
the
basis of an interdict is the threat actual or implied on the part of
a defendant that he is about to do an act which is in violation
of
the plaintiff’s right and that actual infringement is merely
evidence upon which the court implies an intention to continue
in the
same course. I would have thought it axiomatic that an interdict is
not a remedy for past invasions of rights. It is for
the protection
of an existing right. Cf
Meyer
v Meyer
1948 (1) SA
484 (T).”





The
appellant was not in a position to show the existence of
prima
facie
rights of
ownership in the land which the first respondent was about to
infringe because at the time it applied for the interim relief
all
the rights of ownership it had in the land had been taken by means of
the order of acquisition and vested in the acquiring authority.

When the appellant lodged the application for the interim relief
before the court a quo
the acquisition of the land by the State was a
fait
accompli,
all rights
of ownership having been extinguished on its part. The acquiring
authority having done everything it was obliged by
the law to do to
acquire the land for resettlement purposes, there was no outstanding
act against the performance of which the acquiring
authority could be
temporarily interdicted.





An
interim interdict is not a remedy for prohibiting lawful conduct.
At the time the first respondent made the order by which
the
appellant was deprived of ownership of the land, he acted lawfully in
the exercise of the power conferred upon him. Subsection (1)
of s 8 of the Act gave him the power to make the order and its
effect reflected the legal consequences of that lawful act.





To
suspend the effects of the order of acquisition lawfully made and
intended by the legislature would amount to striking down the
Act of
Parliament or rendering it completely ineffective, thereby creating a
vacuum pending determination of the constitutionality
of the impugned
sections of the Act. That would be improper for the court to do
because the clear intention of the legislature
was that an order of
acquisition, properly made in terms of subs (1) of s 8 of
the Act, should have the effect of depriving
the owner or occupier of
the rights of ownership in the land and vesting them in the acquiring
authority.





The
appellant was acting in contravention of para (b) of subs (1)
of s 9 of the Act at the time it applied for the
interim relief.
It had not ceased to occupy, hold or use the land at the end of
forty-five days from the date of service of the
order of acquisition,
nor had it ceased to occupy, hold or use the living quarters on the
land at the end of ninety days from the
date of service of the order
of acquisition on it. An interim interdict as a remedy for the
prohibition of unlawful conduct could
not be granted for the
protection of the illegal activities of the appellant. In other
words, the appellant wanted the court to
grant an order stopping the
acquiring authority from acting lawfully so that it could continue to
commit an offence in carrying on
farming operations illegally.





In
Rudolph and Ano v
Commissioner for Inland Revenue and Ors

1994 (3) SA 771 the applicants had had their premises searched and
documents seized by persons duly authorised so to act in terms
of
s 74(3) of the Income Tax Act, 58 of 1962. They sought an
interim relief prohibiting the respondents from carrying out
the
searches of their premises and seizure of their documents pending
determination of the constitutionality of s 74(3) of the
Income
Tax Act of South Africa. Dismissing the application,
GOLDBLATT J at 775 C-D said:





“…
it
is a trite principle of our law that before an interim interdict can
be granted the applicant must establish that he has at the
very least
a
prima
facie
right which
requires protection (
Setlogelo
v Setlogelo
1914 AD
221). In my view, the applicants have failed to establish the
existence of such a
prima
facie
right. At
present the respondents have acted lawfully in terms of the powers
granted to them by an existing Act of Parliament.
They have rights
in terms of the Income Tax Act and are properly and lawfully
exercising those rights. The only right the applicants
have is the
right to approach the constitutional court to declare section 74(3)
of the Income Tax Act unconstitutional. This
right has not been
threatened or violated.”





The
learned judge in the court
a quo
also determined the question whether the appellant was entitled to
the relief sought on the basis that he had to presume that the
impugned provisions of the Act, and the executive acts done in the
exercise of the powers conferred upon the acquiring authority
thereunder, were constitutionally valid in the absence of patent
repugnancy on the face of the statutory provisions. The learned
judge was entitled to assume that Parliament understood the
Constitution and the limitations it imposed on the exercise of its
legislative
powers. On the principle of the presumption of the
constitutionality of ss 8, 9 and 10 of the Act until the contrary was
established
on the return day, the appellant was legally bound to
have ceased farming operations on the land and vacated the living
quarters
thereon by the time it made the application for the interim
interdict. To the extent that the appellant was acting in open
defiance
of the law, the court
a quo
correctly refused to give a stamp of approval to such illegality.
See
Associated
Newspapers of Zimbabwe (Pvt) Ltd v The Minister of State for
Information and Publicity and Ors

S-20-03 at p 10 of the cyclostyled judgment.





In
Batista v Commanding
Officer SANAB, SA Police, Port Elizabeth and Ors

1995 (4) SA 717 the applicant had been found in possession of
pornographic material in contravention of the Publications Act 42 of
1974 and of the Indecent or Obscene Photographic Matter Act 37 of
1967. The South African police had seized the offending
material. He instituted proceedings in the South Eastern Cape
Local Division of South Africa seeking interim relief
interdicting
the police from arresting him or seizing any offending
material found in his possession in future or in any way interfering
with
his unlawful activities pending a declaration on the
constitutionality of certain provisions of the two statutes.





Dismissing
the application, MULLINS J at 727 B-G said:





“Unfortunately
there is a rapidly increasing tendency on the part of litigants to
invoke the provisions of the Constitution in
order to seek protection
for conduct which, in terms of existing laws, statutory or otherwise,
would be unlawful or even criminal.





The
Courts are almost daily being faced with claims by such persons that
otherwise lawful conduct, whether by private individuals
or State
officials, is ‘unconstitutional’.





…
I am of the view that the applicant cannot rely, in order to
establish a present
prima
facie
right, on the
probability that existing legislation which he has contravened may
be altered at some undetermined future time or
on the possibility
that such existing legislation would be held to be unconstitutional.
… The court is therefore being asked
to sanction uncontrolled
possession by the applicant of any pornographic material similar to
that presently confiscated despite the
existence of the Act.”





Similarly
the court
a quo
was being asked by the appellant to sanction the continued illegal
farming operations and occupation of the living quarters on the
land
despite the clear and unambiguous language of the Act to the effect
that failure to cease occupation or use of the land at the
end of
forty-five days from the date of service of the order of acquisition
and of the living quarters at the end of ninety days
from the date of
service of the order of acquisition constituted a criminal offence.





Mr Matinenga
argued that the appellant had a contingent right of ownership in the
land which required protection against infringement by the interim
relief sought. A contingent right is a right the existence of which
is made dependent upon an event in future which may or may
not
happen. The contention was that a proper construction of subs (5)
of s 7 of the Act revealed the existence of such
a right in the
appellant.





Such
a right would only vest in the appellant by an order made by the
Administrative Court if it refused to confirm the acquisition
of the
land. The fortuitous right had no substantive existence at the time
the application for the interim relief was made. Subsection (5)
of s 7 does not guarantee such a right to the former owner or
occupier of the acquired land. The law imposed no duty on the
Administrative Court to refuse confirmation of the acquisition. In
any case, the interim relief was not sought in order to interdict
the
acquiring authority from proceeding with acquisition of the land
pending finalisation of the confirmation proceedings by the
Administrative Court. As pointed out above, such an order would
have no legal basis as the law clearly gives the acquiring authority
the right to acquire ownership in the land notwithstanding the
pendency of confirmation proceedings before the Administrative Court.





Mr Matinenga
argued further that in constituting the order of acquisition of the
land as a notice to the owner or occupier to cease to occupy,
hold or
use the land at the end of forty-five days from the date of service
of the order and cease to occupy, hold or use the living
quarters on
the land at the end of ninety days from the date of service of the
order, Parliament recognised the existence of a right
in the owner or
occupier to occupy, hold or use the land and living quarters. The
right is made subject to the exercise of ownership
by the acquiring
authority, suggesting that it is a residual right reserved for an
owner or occupier who is on the land and has an
interest in
physically occupying, holding or using the land for forty-five days
from the date of service of the order of acquisition
and is
interested in and does occupy, hold or use the living quarters for
ninety days after the date of service of the order. It
is not a
general right available to anyone whose land has been acquired as
such a construction would unnecessarily restrict the exercise
of
discretion conferred on the acquiring authority by subs (2) of
s 8 in that it
may
demarcate or allocate the acquired land.





The
argument advanced by Mr 
Matinenga
does not help the appellant because at the time it made the
application for interim relief the statutory periods marking the
duration
of the existence of the rights it could have claimed had
long expired. The appellant was no longer a member of the class of
people
intended by Parliament to benefit from the provisions of
s 9(1)(b) of the Act.





There
is, therefore, no merit in the appeal. It is accordingly dismissed
with costs.











CHIDYAUSIKU  CJ:
I agree.











CHEDA  JA:
I agree.











Coghlan,
Welsh & Guest
,
appellant's legal practitioners


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