The family made the application through their legal
representative, Bruce Masamvu of Masamvu & Da Silva-Gustavo Law Chambers.
In the application, Alister Michael Fletcher (81) was the
applicant, while the Minister of Lands, Agriculture, Fisheries, Water and Rural
Development, Registrar of Deeds, and Robert Njanji were the respondents.
The counsel argued that the state could not acquire urban
land under Section 16B of the former Constitution and Section 72 of the current
Constitution.
The judgment was delivered by judges Justice Rita Makarau
and Justice Ben Hlatshwayo, who agreed with the arguments made by the counsel,
represented by Advocate Thabani Mpofu, that the state cannot acquire urban
land, under which the applicants’ land falls.
“I fully agree with counsel for the applicant that there is
a paramount public interest in the eventual outcome of this matter. The correct
interpretation of Section 16B of the former Constitution, as well as Section 72
of the current Constitution, is very much alive. The import of the order
granted in the Kondonis case (supra) is abundantly clear: The State cannot
acquire urban land under Section 16B(2),” the court document read.
“The evidence in casu shows that residential properties
have been constructed on the land in question. Moreover, the Bulawayo City
Council, an undoubtedly interested party, was not heard in the disposition of
this case. In these circumstances, the correct interpretation of the law is
essential and unavoidable.
“It is unquestionably necessary for this Court to provide a
definitive answer to the question as to whether land designated as urban land
can lawfully be acquired by the State under Section 16B of the former
Constitution, as well as Section 72 of the current Constitution. Accordingly,
in my considered opinion, it is clearly in the interests of justice to grant
leave to appeal in this matter.”
The court papers further read, “In conclusion, it appears
to me that the court a quo fundamentally misconstrued and consequently
misapplied the law governing the compulsory acquisition of agricultural land,
and that it did so both substantively and procedurally.
“In the event, I take the view that its judgment is likely
to be materially altered or overturned on appeal before the full bench of this
Court. My conclusion is premised on the fact that the matter at hand pertains
to a constitutional issue which, in my assessment, has reasonable prospects of
success on appeal. Given the great likelihood of success, it is in the
interests of justice to grant leave to appeal in this case.”
Masamvu explained to CITE that the judgment now allows them
to appeal the prior Supreme Court judgment, which had claimed that the state
can acquire urban land under Section 16B.
“This judgment basically confirms our argument that in
terms of Section 16B, the state can only acquire agricultural land, not urban
land. So the court found that there are constitutional issues that need the
full Constitutional Court bench. We have thus been allowed to appeal the
Supreme Court judgment, which in essence had said the state can acquire urban
land using Section 16B,” Masamvu explained.
This same judgment further stays the proceedings at the
Magistrate’s Court, in a case where, in February 2024, Fletcher had been
summoned at Tredgold to answer to a charge of illegally occupying gazetted
land.
The matter was postponed awaiting the outcome of the
application before the Constitutional Court. CITE
