Clinton Rogers

 

Second from left – Clinton Rogers…Far right – Hon Malachi Nkomo

Lionel Saungweme | Clinton Rogers (36) has been found guilty of occupying gazetted land without lawful authority.

The farmer at Atherstone Farm in West Nicholson, Insiza District of Matabeleland South Province, Clinton has been found guilty of Contravening Section (3(2)(a) of the Gazetted Land (Consequential Provisions) Act Chapter 20:28 “Occupying Gazetted Land without Lawful Authority.”

In sentencing Clinton on 17 July 2017, Bulawayo Magistrate Ms Nyaradzo Ringisai, ordered Clinton to pay US$300 or face three months imprisonment.

The magistrate also ruled that the “accused and all those claiming occupation through him shall vacate Atherstone Farm on or before 22 September 2017 failure of which the Messenger of Court is hereby empowered to evict the accused and all lessee claiming occupation through him.” No one else is claiming authority through Clinton.

Section 3(1) of the Gazetted Land (Consequential Provisions) Act Chapter 20:28, which Clinton is said to have violated, stipulate that no person may hold, use or occupy gazetted land without lawful authority. “Lawful authority in terms of Section 2 of the said Act begins and ends with an offer letter, a permit or a land settlement lease.”

Allegations have been made that Insiza South Member of Parliament, Hon Malachi Nkomo, Gwanda Magistrate Shiela Nazombe, a former Darcal (Pvt) Ltd employee Zenzo Jele, and Zibusiso Ncube, a brother to Filabusi District Administrator, Sithandiwe Ndumo Ncube, are using the instrumentality of the Insiza District Land Committee (DLC) to evict Clinton and all other Atherstone Ranch residents.

On 23 January 2014, the DLC is alleged to have issued offer letters allocating Jele the 523ha subdivision 1, the 700 ha subdivision 2 to Nazombe, subdivision 3 presumably measuring 576 ha to Hon Malachi while and Ncube got subdivision 4 measuring 523 ha. These offer letters were never shown to Clinton.

However, a perusal at the Ministry of Lands Database by ZimEye reveals that Hon Malachi has several offer letters. The legislator has letters for pieces of land in Bulembe, Atherstone A1 and Atherstone A2.

The two parliamentarians Hon Langa and Hon Malachi were suspended from Zanu PF in June 2015, for allegedly plotting to topple President Robert Mugabe. On 17 September 2015, Langa was sacked as Minister of Sports for associating with a Zanu PF faction known as “The Gamatox.”

It is the State’s case that “during the year 2001 Atherstone Farm was acquired by the state for resettlement and was gazetted in the Government Gazette of the 19th of June 2001. In terms of the Gazetted Land (Consequential Provisions Act Chapter 20:22 the accused person was supposed to vacate or cease use of the gazetted land by the 3rd of February 2007 which is 45 days (sic) after the fixed date (20th of December 2006 which date the act came into operation.”

To salvage the situation, after the 6379ha Atherstone Ranch was listed by the Government for compulsory acquisition, Clinton’s employer, Darren Maughan who runs Darcal (Pvt) Ltd), wrote to Kembo Mohadi, then Deputy Minister of Local Government offering the Government to invoke the law, de-list and purchase 4046.94 ha in exchange for shared and secure tenure on the remaining 2332.06 ha.

On 6 February 2001, Mohadi and the Ministry of Lands accepted the offer. Government purchased the 4046.94ha portion of the farm. On 9 July 2001, then Governor for Matabeleland South, Steven Nkomo and the Provincial Administrator’s office resolved that the farmer should “coexist with the newly settled farmers,” a community of 66 people supporting more than a hundred and fifty dependents on the remaining 4046.94ha portion of land.

However, in a letter dated 12 March 2015, the chairperson of the Insiza District Land Committee (DLC) upstaged the Provincial Administrator and advised Darcal (Pvt) Ltd that the DLC had on 19 February 2015 “decided to repossess Atherstone farm measuring 6379ha for resettling new allottees” and that it was “… withdrawing any administration letter once advanced to Darren Maughan and whoever is responsible on the running of Atherstone farm (sic).”

The state then built its case around the DLC’s letter of withdrawal. In its outline, the state noted that the accused was still occupying Atherstone Farm on 1 October 2015 and that he “continued to occupy the farm without any lawful authority from the acquiring Authority.”

Appearing for the defense, Reliance Ndou of Mugiya & Macharaga Law Chambers argued that the extent of the land “sought to be withdrawn was not the exact piece of land that the accused was occupying.” He further disputed the authenticity of the notice of withdrawal saying;

a) It had no government letter head;
b) It was purportedly authored by the District Lands Committee who had no capacity and no mandate to do such;
c) The hectorage that it sought to withdraw was not the same as was held by the accused;
d) The authenticity of the Notice was not confirmed in some Government offices; and
e) It never cancelled the agreement of 2001 July, neither did it seem to recognize its existence.

Citing Section 291 of the Constitution of Zimbabwe, Ndou submitted that “any person who immediately before the effective date was using or occupying or was entitled to use or occupy any agricultural land by virtue of a lease or other agreement with the State continues to be entitled to use or occupy that land on or after the effective date in accordance with that lease or other agreement.” He further stated that the “Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.”

“In casu Darcal (Pvt) Ltd who is the accused person’s employer entered into an agreement with the state in terms of which it was allowed to continue using and occupying the piece of land in question. This means that since the coming of the new constitution, the protection given to accused for his continued use and occupation is no longer merely by agreement with the state but the accused’s occupation is now in terms of the agreement entered into between his employer and the state. The state in fact confirmed the said agreement through the state witness. It is therefore not in dispute that the government and Darcal private limited entered into the said agreement,” argued Ndou.

However, Magistrate Ringisai found Clinton guilty. Ringisai noted that in 2007 the land was gazetted and is now state land and that Clinton’s stay is apparently at loggerheads with the law, which requires holders to possess an offer letter, permit or lease.

In mitigation Ndou argued that Clinton is a married man with three children who is employed as a manager at Darcal (Pvt) Ltd. The defence submitted that Clinton was a “first offender who deserved leniency from this honourable court because he was acting under the belief that his employer Darcal (Pvt) Ltd had an agreement with government to occupy Atherstone Farm. It is the accused’s submission that had he known that Darcal had no authority he would not have committed this offence.”

The lawyer submitted that the accused person resides at the property he is said to be in unlawful occupation of. The Court should give him 45 days to vacate premises because he is leaving the place and needs time to secure alternative accommodation.”

Ndou argued that in Dudley versus The State it was held that “where an accused person believes that he had lawful authority to occupy land because of various agreements with the government that person can be forgiven in his belief that he was in lawful occupation.”

He went on to say that “accused person’s occupation should not be viewed as a disregard for provisions of the law, but as a strong belief that he was in lawful occupation. A fine and a suspended sentence would suffice in the instance.

After considering the correspondence before her, the Magistrate Ms Ringisai fined Clinton $300 or three months imprisonment.