Fidelis Munyoro — The Constitutional Court will have to decide whether a farm on the outskirts of Bulawayo and incorporated into the area of the Bulawayo City Council in 1999 still qualifies as rural land.
Under both the old and the present Constitution there are different processes for acquiring rural agricultural land for resettlement and compulsory acquisition of other assets, and differences in the compensation procedures.
For the farm in question, the Constitutional Court will need to decide precisely what sort of land it is.
When the State acquires rural agricultural land for resettlement, the compensation due to the owner is the value of the improvements, without the land, but when urban land is acquired the compensation is the combined value of improvements and land, with urban land generally far more valuable than rural land. Mr Alistair Michael Fletcher (81) has Umguza Agricultural Lots of Umvucha and Reigate farms on the edge of Bulawayo and these are subject to caveats by the State preventing the farmer from using, holding or transferring the land after the compulsory acquisition order in August 2000.
Mr Fletcher now wants to challenge the Supreme Court decision, two years ago, that quashed his appeal for the State to remove these caveats and on Tuesday was granted by a three-judge bench the required leave to appeal to the full bench of the Constitutional Court.
Mr Fletcher, represented by Advocate Thabani Mpofu, was before Constitutional Court Judges Justice Rita Makarau, Justice Ben Hlatshwayo and Justice Bharat Patel.
That now gives him the all clear to seek the nullification of the Supreme Court ruling.
Lands, Agriculture, Fisheries, Water and Rural Development Minister Anxious Masuka in his official capacity, the Registrar of Deeds and Mr Robert Njani are listed as respondents.
Granting the application for leave to appeal, the bench after studying the papers submitted by Mr Fletcher from both the High Court and Supreme Court it becomes evident that the dispute regarding the land in question had consistently centred on the interpretation of section 16B of the former constitution, but that the incorporation into Bulawayo City Council in 1999 had not been considered, and that change was crucial.
It was also noted that the High Court determined that it had the necessary jurisdiction to hear the applicant's plea for the upliftment of the caveats.
This was primarily because Section 16B of the old constitution only applied to challenges against the acquisition of land by the State and therefore did not restrict the applicant from challenging the endorsement of caveats on the land that he occupied.
In the Supreme Court decision, the dispute also revolved around the interpretation of Section 16B of the former constitution, as read with Sections 72(3) and 72(4) of the current Constitution.
The court found that the High Court lacked the necessary jurisdiction to hear the application for upliftment of the caveats as the jurisdiction of all courts to determine challenges regarding the acquisition of land by the State had been expressly ousted by Section 16B.
This interpretation by the Supreme Court over to the meaning and import of the section effectively determined and extinguished the dispute in favour of the State.
But writing for the bench of three judges on Tuesday, Justice Patel ruled that there was an unavoidable constitutional issue before the lower court relating to the interpretation and enforcement of the provisions of the former constitution.
In the first part of the ruling, Justice Patel said he was satisfied that the Constitutional Court did have the requisite jurisdiction to entertain and preside over the appeal that Mr Fletcher intended to file, if he was granted leave to do so since the critical question that arose for determination was whether the land was properly acquired by the State in terms of section 16B of the former Constitution, as read with section 72 of the current Constitution.
"The basis upon which the court a quo (lower court) held that the High Court had no jurisdiction to entertain the application for upliftment of the caveats was that the applicant had no legal cause for bringing such an application in as much as the land now vested in the State.
"This was after the land was acquired and gazetted on 25 August 2000 under General Notice 405 of 2000."
However, Justice Patel found that it was evident that the Supreme Court improperly disregarded a crucial intervening event and its legal ramifications, that is the fact that the land was proclaimed as urban land in 1999 before it was gazetted for acquisition in 2000.
This conversion of its status was affected by Statutory Instrument 212 of 1999 which altered the boundaries of the Bulawayo City Council area by the addition of the land in question, together with other pieces of land, to that council area.
"In conclusion, it appears to me that the court a quo (lower court) fundamentally misconstrued and consequently misapplied the law governing the compulsory acquisition of agricultural land, and that it did so both substantively and procedurally," said Justice Patel.
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"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, Justice Patel said it was in the interests of justice to grant leave to appeal in this case.
It was also the judge's view that in considering the interests of justice in this matter, it was necessary to ventilate two inter-related issues.
The first is the existence of conflicting positions on the applicable law.
The second relates to the public interest in the definitive disposition of the matter.
Mr Luckson Muradzikwa from the Attorney General's Civil Division represented Minister Masuka in the unopposed application.
