IN THE SUPREME COURT OF ZIMBABWE CASE NUMBER 314/2000

HELD IN HARARE

in the matter between : –

COMMERCIAL FARMERS’ UNION Applicant

and

MINISTER OF LANDS, AGRICULTURE & RURAL 1^st Respondent

RESETTLEMENT

and

MINISTER OF LOCAL GOVERNMENT, PUBLIC 2^nd Respondent

WORKS AND NATIONAL HOUSING

and

MINISTER OF RURAL RESOURCES AND WATER 3^rd Respondent

DEVELOPMENT

and

MINISTER OF HOME AFFAIRS 4^th Respondent

and

COMMISSIONER OF POLICE 5^th Respondent

and

PROVINCIAL GOVERNOR OF MASHONALAND 6^th Respondent

EAST

and

PROVINCIAL GOVERNOR OF MASHONALAND 7^th Respondent

CENTRAL

and

PROVINCIAL GOVERNOR OF MASHONALAND 8^th Respondent

WEST

and

PROVINCIAL GOVERNOR OF MASVINGO 9^th Respondent

and

PROVINCIAL GOVERNOR OF MIDLANDS 10^th Respondent

and

PROVINCIAL GOVERNOR OF MANICALAND 11^th Respondent

and

PROVINCIAL GOVERNOR OF MATABELELAND 12^th Respondent

NORTH

and

PROVINCIAL GOVERNOR OF MATABELELAND 13^th Respondent

SOUTH

In the urgent application heard in chambers

Before the Honourable Mr. Justice Gubbay, Chief Justice

the Honourable Mr. Justice McNally, Judge of Appeal

the Honourable Mr. Justice Ebraham, Judge of Appeal

the Honourable Mr. Justice Muchechetere, Judge of Appeal

and the Honourable Mr. Justice Gonduru, Judge of Appeal

J.B. Colegrave Esq. For the Applicant

Mr. C. Zvobgo Esq. For the Respondents

WHEREUPON, after reading documents filed of record and hearing Counsel

BY CONSENT THE FOLLOWING DECLARATION AND ORDERS ARE MADE:-

1. .It is declared that resettlement of commercial farming lands implemented by the First, Second and Third respondents and the Sixth to the Thirteenth Respondents inclusive, in so far as it has involved the entry of persons who are not the invitees of the owners or lessees of properties, before all requirements set out in paragraph 4 of this Order have been fulfilled, has contravened the fundamental rights, contained in section 17(1) and section 16(1) of the Constitution of Zimbabwe, of the owners and the lessees in occupation of those properties.

1. Each of the Respondents, and every officer or employee of the State responsible to, or acting on his behalf is hereby interdicted from in anyway or form

(a) causing;

(b) facilitating;

(c) participating in; or

(d) giving sanction to:

the entry upon or continued occupation of any property owned or occupied by a member

of the Commercial Farmers Union until all the requirements set out in paragraph 4 of this

Order have been fulfilled by any person or persons engaging in, publicising or promoting

any activity related to resettlement or the laying out of any housing or plots on that property.

1. This order shall not prevent :

(a) a policeman entering upon the property in the course of carrying out his police duties,

in a way which does not involve his acting in a manner which is in contravention of

the Order made in paragraph 2 above:

(b) any person or persons entering upon the property with the consent, freely given before the entry is made, of the owner of the property which is the subject of the entry; or

(c) any officer, employee or agent of the First, Second or Third Respondent, named and

duly authorised under written notice given by or on behalf of the property at reasonable times, with necessary equipment and personnel to assist him, in the course of carrying out any necessary investigation as to the suitability of the land for acquisition by the First Respondent or its value or extent, under sections 11 or 29B of the Land Acquisition Act Cap 20:10; or

(d) any officer, employee or agent of the First, Second or Third Respondent, named and duly authorised under written notice given by or on behalf of the First Respondent to the owner or occupier of the property, entering upon the property to survey and demarcate the lands in order to enable allocation of the same for resettlement purposes, PROVIDED in relation to the property concerned all the requirements set out in paragraphs 4(a)(i)(ii) and (iii) and also 4(b) of this Order have first been fulfilled and PROVIDED FURTHER:

(I) such activities shall not interfere with the operations of the owner or occupier of that property or his employees; and or seeking the allocation of land thereon to enter upon, take up or remain in occupation of any part of the property by virtue of its survey and demarcation as aforesaid.

1. The Order made in paragraph 2 above shall apply to each property owned or occupied by a member of the Commercial Farmers Union until each of the following requirements have been complied with in relation to such property:

(a) (i) a preliminary notice of acquisition of the property by a competent acquiring authority has been given to the owner and other persons required in terms of section 5(1)(b) of the Land Acquisition Act: and

(ii) an order of acquisition of the property in terms of section 8(1) of the Land Acquisition Act has been served upon the owner by the acquiring authority; and

(iii) the owner or occupier has been given written notice to vacate by the acquiring

occurring after the date of notice as aforesaid of the order of acquisition; and

(iv) at least three months have expired from the giving of notice as aforesaid to vacate to the owner or, if some other person is in occupation under a lease agreement with the owner, such lessor period has expired, equivalent to the period of notice provided in the lease agreement; and

(v) if the owner or occupier fails to vacate the property upon expiry of the said notice given to him, a Court of competent jurisdiction has issued an eviction order against him, having the effect of a final order, and

(b)

If in terms of the Land Acquisition Act Cap 20:10 the owner or occupier has within 30 days after publication of the preliminary notice of acquisition served upon the First Respondent or any officer in his employ the owner’s objection to compulsory acquisition of the property, an order of Court of competent jurisdiction having the effect of a final order has been made confirming the compulsory acquisition of the property, or the objection filed to the compulsory acquisition has been withdrawn by the owner or occupier who filed such objection.

1. The Fifth Respondent and every Police Officer whose geographical are of duties covers any property referred to in paragraph 2 of this Order is hereby ordered to use all means and authority available to him, upon complaint to him or his becoming aware of the occurrence of any unlawful entry upon any of the said properties or the likelihood of such occurring to ensure that no breach of the peace shall occur upon any such property covered by this Order, and that all persons found to have unlawfully entered or conducted themselves upon any such property be removed therefrom.

1. Service of this Order upon the Officer Commanding the Province, within which Police Officers referred to in paragraph 5 above carry on their duties shall constitute valid and effective service 48 hours after the first mentioned service upon all Police Officers who from time to time carry on their duties within that Province.

1. The Second Respondent is hereby ordered:

(a) to cause the terms of this order and the Second Respondent’s instructions that they be complied with to be communicated to each Provincial Administrator and each District Administrator within Zimbabwe, within 48 hours of service if this Order upon him, and

(b) within the following period of 48 hours to confirm in writing to the Registrar of this Honourable Court that such communications have been made.

1. The First, Second, Third and Fourth Respondents jointly and severally are hereby ordered to pay the Applicant’s cost of suit.

BY THE COURT

P.NYEPERAYI

ASSISTANT REGISTRAR