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.” CITE
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