1 HH 243-14 HC 9406/11 Ref DR 1333/92

CHRISTOPHER KAINGA versus PIERINA MASSIMIANI and WALTER ROY JOHN MASSIMIANI and SOMERBY FARM (PRIVATE) LTD and THE MASTER OF THE HIGH COURT N.O

HIGH COURT OF MAWADZE J , 29 September 2013 & 22 May 2014

Civil Trial Family Law Court

B. Chikowero, for the plaintiff D. Drury, for the 1st, 2nd & 3rd defendants No appearance for the 4th defendant

MAWADZE J: The plaintiff issued summons out of this court on 28 September 2011 seeking the ejectment of the first, second and third defendants, their property and all those claiming through them and their property from all occupation and use for certain piece of land called Subdivision 2 of Lot 5A Somerby measuring 45.495 hectares situated in Zvimba District Mashonaland West Province of Zimbabwe; an order that the fourth defendant makes the necessary endorsements in DR 1333/92 to reflect that the piece of land being Lot 5A Somerby measuring 101.412.8 hectares registered in the names of Pierina Massimiami and the late Mario Massimiani under Deed of Transfer 137/82 was acquired by the state on 24 September 2005 in terms of s 16B of the Constitution of Zimbabwe and costs of suit against the first, second and third defendants fourth jointly and severally the one paying the other to be absolved. The plaintiff resides in New Marimba, Harare and is employed as an Imports Manager by the Zimbabwe Fertiliser Company Harare (ZFC). He is also a farmer carrying out farming business on subdivision 2 of lot 5A Somerby in Zvimba District. The first defendant Pierina Massimiani is being sued in her capacity as a former co- owner of Lot 5A Somerby measuring 101 412.8 hectares registered in her name and that of 2 HH 243-14 HC 9406/11 Ref DR 1333/92 her late husband Mario Massimiani under Deed of Transfer 137/82; in her capacity as the sole and universal heir of estate and effects immovable of Mario Massimiani in terms of the last will and testament of Mario Massimiani of Kilworth Estates, Norton, Rhodesia executed and dated at Salisbury on 20 November 1972 and also in her capacity as a duly appointed Executrix Testamentary and authorised as such to administer the estate of the late Mario Massimiani who died on 21 June 1992 by virtue of the Letters of Administration issued to her by the Master of the High Court at Harare on 30 June 1992 DR 1333/92. The second defendant Walter Roy John Massimiani is cited in his official capacity as General Attorney and Agent of Pierina Massimiani the Executrix Testamentary in DR 1333/92 to manage and transcact all her affairs in the deceased estate by virtue of a General Power of Attorney executed at Harare on 25 June 1992. The third defendant Somerby Farm (Private) Ltd is a duly registered company in terms of the laws of Zimbabwe. The fourth defendant the Master of the High Court is cited in his official capacity in relation to deceased estate registered in his office under DR 1333/92. The plaintiff’s case is that on 27 November 2009 through the Minister of Lands and Rural Resettlement he was offered subdivision 2 of Lot 5A Somerby measuring 45.95 hectares for agricultural purposes which offer her received on 27 April 2010 and accepted on 12 May 2010. According to the plaintiff, the first to the third defendants despite the expiry of the requisite 90 days from 14 September 2005 have not ceded use or occupation of Lot 5A Somerby which include subdivision 2 of Lot 5A Somerby measuring 45.95 hectares offered to plaintiff. The plaintiff therefore seeks the ejectment of the first to the third defendant and costs of suit. The claim in relation to the order against the fourth defendant the Master of the High Court was abandoned. That decision is proper as such a claim was patently incompetent and unnecessary. In his declaration the plaintiff outlined how the piece of land subdivision 2 of Lot 5A Somerby was acquired by the state and subsequently offered to him. The plaintiff said by General Notice 445 of 2003 published in the Gazzette Extraordinary published on 17 September 2003 a preliminary notice was given in terms of s 5 (1) of the Land Acquisition Act [Cap 20:10] that the President intended to acquire compulsorily the agricultural land itemized as Number 75 in the schedule thereto for resettlement which item 75 relates to Deed of Transfer 137/82 registered in the name of 3 HH 243-14 HC 9406/11 Ref DR 1333/92

Pierina Massimiani and Mario Massimiani in respect of certain piece of land situate in the District of Salisbury being Lot 5A Somerby measuring 101 4128hectares. The plaintiff stated that by General Notice 439 of 2005 published in this Zimbabwean Government Gazzette Extraordinary of 11 February 2005 notice was given in terms of s 7(3) of the Land Acquisition Act [Cap 20:10] to acquire land described under item 201 of the schedule thereto which item 201 related to Deed of Transfer 137/82 registered in the name of Pierina Massimiani and Mario Massimiani in respect of Lot 5A Somerby measuring 1014 128 hectares. It is plaintiff’s case that before the acquisition was confirmed there was legislature intervention in the manner land was acquired through the amendment of the then Constitution of Zimbabwe through Act no 17 of 2005 which became operational on 14 September 2005. It amended the then Constitution of Zimbabwe by insertion of a new section called section 16B. In terms of s 16B (2) (a) (1) of the Constitution of Zimbabwe (hereafter the old Constitution) an agricultural land that was identified on or before 8 July 2005 in the Gazzette or Gazzette Extraordinary under s 5 (1) of the Land Acquisition Act [Cap 20:10] and which is itemised in schedule 7 to the old Constitution being agricultural land required for resettlement purposes was acquired by and vested in this state with full title therein with effect from the appointed date, which date is 14 September 2005. It is plaintiff’s case that in schedule 7 of the old Constitution as amended by Act No 17 of 2005 item 105 relates to the agricultural land identified under General Notice 445 of 2003 published in Government Gazzette Extraordinary of 17 September 2003 which relates to this certain piece of land called Lot 5A Somerby under Deed of Transfer 137/82 registered in the name of Pierina Massimiani and Mario Massimiani situated in the District of Salisbury. This according to the plaintiff meant that this piece of land was with effect from 14 September 2005 acquired by and vested in the estate with full title, in terms of s 16B (2) (a) (1) of the old Constitution. It is the plaintiff’s case that in terms of s 16B of the Old Constitution and s 3 (2) (a) and (b) of the Gazetted Lands (Consequential Provisions) Act [Cap 20:28] the first, second and third defendants being former owners or occupiers of the acquired or gazetted land had no lawful authority to remain on the land and were obliged to cease occupation or using such land upon expiring of 90 days after 14 September 2005. However, plaintiff alleges that despite the 90 days having expired since 14 September 2005, the first, second and third 4 HH 243-14 HC 9406/11 Ref DR 1333/92 defendants have not ceded to use and or occupying Lot 5A of Somerby. In using and occupying Lot 5A Somerby, which is now divided into 4 subdivisions as per the map dated 7 May 2009 the first, second and third defendants are using and occupying subdivision 2 of Lot 5A of Somerby measuring 45.95 hectares which was allocated to the plaintiff on 27 November 2009. According to the plaintiff in terms of s 16B (4) of the old Constitution the Registrar of Deeds on 25 October 2005 effected the necessary endorsements on Deed of Transfer 137/82 and made entries in his register formally cancelling the title deed and registering in the state title over that land. Initially the first to third defendants tendered a special plea or plea in abatement to the effect that substantially similar pleadings were pending between the parties hence the matter is lis alibi pendens in HC 892/11. The first to third defendants therefore wanted proceedings in this case to be stayed pending finality of the formal withdrawal of the principal action under HC 892/11 together with costs. The first to third defendant further pleaded in abatement that the plaintiff was approaching the court with dirty hands in that the plaintiff’s application for summary judgment in HC 892/11 was dismissed with costs on a higher scale and that the plaintiff has not paid the taxed bill of costs before commencing action in this case. On that basis the first to third defendants sought the dismissal of plaintiff’s claim for want of payment of taxed bill of costs under HC 892/11 or alternatively a stay of action in the matter until such time the plaintiff pays the taxed bill of costs under HC 892/11. The plea in abatement can be easily disposed of. The plaintiff before the commencement of the trial rectified the procedural default through a formal withdrawal of HC 892/11 with costs. On the merits of the matter the first to third defendants stated that there is no property or title described as subdivision 2 of Lot 5A Somerby Zvimba District in the General Notice 445 of 2003 relied upon by the plaintiff. The first to third defendants (hereafter the defendants) deny the existence of such a subdivision and that if it exists it was not competently done. The defendants stated that the third defendant Somerby Farm (Pvt) Ltd has no real interest in the subdivision 2 of Lot 5A Somerby. Lastly, the defendants put into issue that the said land was compulsorily acquired by the state and denied that they were in unlawful occupation of the land; and prayed for the dismissal of the claim for ejectment with costs. 5 HH 243-14 HC 9406/11 Ref DR 1333/92

In terms of the pre-trial conference referral minute the matter was referred to trial on the following issue; “Issues 1. Whether or not certain piece of land situate in the District of Salisbury being Lot 5A Somerby measuring one hundred and one comer four one two eight (101,4128) hectares registered in the name of Pierina Massimiani and Mario Massimiani under Deed of Transfer 137/82 was acquired by the state in terms of s 16B of the Constitution of Zimbabwe.

2. Whether the first defendant is a former owner or occupier of the said piece of land.

3. Whether or not the second and third defendants are former occupiers of the said piece of land.

4. Whether or not the first, second and third defendants are still in occupation of the said piece of land.

5. Whether or not the aforesaid piece of land was subdivided into four (4) after acquisition.

6. If so, whether or not the plaintiff was allocated one of the subdivision namely Subdivision 2 of Lot 5A Somerby measuring 45.495 hectares situated to the Zvimba District of Mashonaland West Province.

7. Whether the first, second and third defendants are in occupation of subdivision 2 of Lot 5A of Somerby measuring 45.495 hectares situated to the Zvimba District of Mashonaland West Province.

8. Whether plaintiff is entitled to an order ejecting the first, second and third defendants from subdivision 2 of Lot 5A Somerby measuring 45.495 hectares situated in Zvimba District Mashonaland West Province.

The plaintiff Christopher Kainga gave evidence and called the Zvimba District Lands Officer Mashinga Charles Tigere as a witness. The second defendant Walter Roy John Massimiani gave evidence and also Carole Massimiani a daughter in law of the late Mario Massimiani and Pierina Massimiani and Michael Changadzo gave evidence.

THE EVIDENCE The Plaintiff Christopher Kainga 6 HH 243-14 HC 9406/11 Ref DR 1333/92

The bulk of the evidence of the plaintiff relates to his confirmation of the legal procedures taken by the state in acquiring the piece of land Lot 5A Somerby situated in the District of Salisbury measuring 101 4128 hectare registered in the names of Pierina Massimiani and Mario Massimiani under Deed of Transfer 137/82. (hereinafter Lot 5A Somerby) and how he was allocated subdivision 2 of Lot 5A Somerby (hereinafter subdivision 2 of 5A Somerby) situated in Zvimba District. The bulk of that evidence remain unchallenged and I shall revert to it in dealing with the legal issues arising in this matter. The plaintiff told the court that he and other people took part in the land invasions in 2001 and was illegally allocated a piece of land by the war veterans who were then in charge of the farm invasions. He said he was allocated almost the same piece of land covering subdivision 2 of Lot 5A Somerby although by then the demarcations were not as at now. He remained on the piece of land albert illegally from 2001 tilling part of the land until 2009 when he was officially allocated the piece of land subdivision 2 of Lot 5A Somerby.

The plaintiff told this court that he had applied for an A2 farm and he was issued on 27 November 2009 with an offer letter for subdivision 2 of Lot 5A Somerby in Zvimba measuring 45.495 hectares, See offer letter on pp 58-60 of the bundle. He told the court that he received the offer letter on 27 April 2010 and accepted the offer on 12 May 2010 (see p 61 of the bundle). The plaintiff explained the problems he encountered in his bid to occupy Subdivision 2 of Lot 5A Somerby as defendants continued to occupy Lot 5A Someby which include subdivision 2 of Lot 5A Somerby. The plaintiff said after receiving this offer letter Ministry of lands officials showed him the boundaries. Thereafter he tried to move in but previous occupiers resisted. The plaintiff said the former occupiers raised all sorts of issues like that the farm has not been properly acquired, that the farm was protected by Bilateral Investment Protection Agreement (BIPPA) between the Zimbabwean and Italian Governments as the first and the second defendants who own the third defendant company are Italian nationals or that the offer letter was fake. The plaintiff said when he tried to occupy subdivision of Lot 5A Somerby the second defendant organised some war veterans who chased him away and vowed to keep him out of the said farm. He approached the police and on 1 November 2010 the District Land Officer for Zvimba wrote a letter to Officer Commanding ZRP Zvimba District advising him that the 7 HH 243-14 HC 9406/11 Ref DR 1333/92 occupier of Lot 5A Somerby through the second defendant was violating the provision of Gazetted land (Consequential Provisions) Act [Cap 20:28] and that the police should allow plaintiff to take occupation of subdivision 2 of Lot 5A Somerby allocated to him. The plaintiff said the defendants who are still in occupation of the said property have not been prosecuted and this has prompted him to seek a court order for ejectment of the defendants. No useful questions were put to the plaintiff in cross examinations as most of the questions asked related to legal issues relevant to the matter. The plaintiff gave his evidence well outlining the basis of his claim. I have no cause not to accept his evidence.

Mashinga Charles Tigere

Mashinga Charles Tigere the District Lands Officer for Zvimba told the court that he has been so employed for 5 years and that his duties includes supervision of allocation of land for resettlement, planning on farms, acquisition of infrastructure; processing of lease agreements, temporary permits, preparation of monthly reports and general administration of the Ministry of Lands and Rural Resettlement at District level. He reports to the Chief Lands Officer based at for the Mashonaland West Province. Mashinga Charles Tigere (hereinafter Tigere) explained the process of how land is allocated from the District level. He explained that stakeholders form the District Lands Committee and his Ministry (at District level) provides the secretariat. He explained further that the District Lands committee arrange regular meetings to deal with farm disputes with the Technical Committee involving the District Administrator, officials in Ministry of Lands, Agritex and DDF officials. Tigere told the court that he is the custodian of records of all farms in Zvimba District kept under what he called Land Information Management Systems. Tigere explained his role in the allocation of land at District level. He said he has the duty to check the status of all farms and if gazetted it means they were acquired and title vests with the state. Once the farm is state property the District Committee can allocate it as a whole farm or subdivide it and recommend the beneficiary or beneficiaries to the Provincial Lands Committee chaired by the Minister for state responsible for the province (former Governors). The recommendations from the Provincial Committee are forwarded to the Minister of Lands and Resettlement who then studies them and if approves them issues out a schedule of beneficiaries and the respective offer letters to the beneficiaries. The offer letter 8 HH 243-14 HC 9406/11 Ref DR 1333/92 is sent to the beneficiary who signs it as way of acceptance of the offer. Thereafter the beneficiaries at District level are taken by Ministry of Lands officials to the offered land to be shown the boundaries by the resettlement officer and the planner. Turning to the facts of this matter, Tigere testified that Lot 5A of Somerby was acquired by the state and is now state land. He explained that the initial procedure to the acquisition was in terms of the old law where a preliminary notice of intention to acquire the land was gazetted and followed by the notices to confirm acquisition. He said the process was overtaken by events through the Constitutional Amendment No. 17 of 2005 which listed all the acquired farms in schedule 7 and that Lot 5A of Somerby was listed. (See item 105 on p 43 of the bundle of documents). Tigere told the court that Lot 5A of Somerby was then subdivided by the cartographer into four subdivisions being Lots 1 to 4 as the map on p 57 of the bundle dated 7 May 2009. The district lands committee then allocated subdivision 2 of Lot 5A Somerby measuring 45 495 hectares to the plaintiff and forwarded to the Provincial Lands Committee which accepted the recommendation as per schedule 85 item 87 of the Mashonaland West Province signed by the Acting Chief Lands Officer E. Chikomba, Provincial Chairman of war veterans M. Mugwagwa, Provincial Administrator C. Shumba, Provincial Chairman for ZANU PF, J. Mafa and the Provincial Governor and Resident Minister F.E. Chidarikire (see copy attached to closing submissions as was directed by the court). The Provincial Lands Committee forwarded the recommendation to the Ministry of Lands and Rural Resettlement which then issued an offer letter to the plaintiff on 27 November 2009 (see p 58 of the bundle of documents). Tigere explained that the Deed of Transfer 137/82 in the names of Pierina Massimiani and Mario Massiminiani was endorsed on 28 October 2005 by the Registrar of Deeds with the following endorsement; “The within mentioned land now vests in the President of Zimbabwe in terms of s 16B of the Constitution of Zimbabwe as amended.”

It was suggested in cross examination to Tigere that the war veterans at District level are against the allocation of the land to the plaintiff and that they wanted to have the offer letter withdrawn. Tigere said war veterans are no longer responsible for allocating land and have no authority to withdraw offer letters as this is the responsibility of the Ministry of Lands and Resettlement. Tigere told the court under cross examination that he is not aware of any official communication to the effect that Lot 5A of Somerby should be delisted or that 9 HH 243-14 HC 9406/11 Ref DR 1333/92 there is a policy position to that effect. He admitted that Lot 5A Somerby was governed by BIPPA but indicated that farms governed by BIPPA can be compulsorily acquired by the state despite being protected by BIPPA. Tigere conceded that there was no consistency or the part of the Ministry of Land and Rural Resettlement on the status of farms protected by BIPPA but acquired by the state in his area. As an example he cited the following farms;

i. Crocodile Pools Farm – he said the farm was compulsorily acquired and beneficiaries given offer letters but were later ordered to vacate the farm as it was protected by BIPPA. ii. Nzira Farm – the illegal settlers who were on the farm were evicted on the basis that the farm was protected by BIPPA. iii. Blencatta Farm – he said despite the farm being protected by BIPPA the previous owner was advised to share the farm with beneficiaries and to co- exist after its compulsory acquisition. iv. Westridge Farm – he said the farm despite being protected by BIPPA was compulsorily acquired and allocated to beneficiaries with the previous owner being confined to the farm house only. Tigere however, was clear that Lot 5 A of Somerby was acquired by the state despite being protected by BIPPA and that it was properly and legally allocated to beneficiaries including the plaintiff after following all the due process. Tigere gave his evidence well and impressed the court as a witness well versed with his professional work. His evidence reads well and no adverse in roads were made in cross examination. His testimony summarises clearly both the factual and legal basis of how Lot 5A Somerby was a compulsorily acquired and allocated to the beneficiaries including to the plaintiff.

Walter Roy John Massimiani

He is the second defendant and the son of the late Mario Massimiani who died testate in June 1992 and Piere Massimiani who is the Executrix dative of the estate who in turn appointed the second defendant as the Executor. He told the court that his parents purchased Lot 5A Somerby in 1982 after the State issued a certificate of no interest. He told the court that his parents are Italian citizens and permanent residents of Zimbabwe although his 10 HH 243-14 HC 9406/11 Ref DR 1333/92 siblings are in Italy and New Zealand. He confirmed that Lot 5A Somerby was protected by the BIPPA between the republic of Zimbabwe and Government of Italy (see pp 119-132 of the Bundle of documents). Walter Roy John Massimiani (Walter) confirmed that he and the third defendant are still in occupation of Lot 5A Somerby where the agricultural activities include market gardening, the packaging of mineral water at a factory on the property and that they also grow maize, soya beans and have few cattle. Walter in his evidence confirmed that the plaintiff and other people have occupied since 2000 part of Lot 5A Somerby without offer letters. He said the plaintiff who later purported to have an offer letter was forced out of the piece of land he occupied and intended to occupy which is part of Lot 5A Somerby by War Veterans. Walter testified that he raised concern of the occupation of Lot 5A Somerby which is protected by BIPPA with the Ministry of Foreign Affairs and that the no compensation have been paid to date. He referred to various correspondences involving the Ministry of Foreign Affairs, the Italian Embassy, Governor of the Reserve Bank, the Police and the defendants. (Which are both pre and post alleged acquisition of Lot 5A Somerby). (See pp 133 to 149 of the Bundle of documents). In the said correspondence the Ministry of Foreign Affairs explains to Diplomatic Missions and international organisations accredited to Zimbabwe the effect of Amendment No 17 of the Old Constitution gazetted on 14 September 2005 and the willingness of the Ministry of Foreign Affairs to engage various Embassies on the question of land reform. There are various letters from the Italian Ambassador dating as far as 28 March 2003 to the Government of Zimbabwe seeking clarification on the effect of BIPPA and correspondence to Mrs Massimiani explaining the effort the Ambassador of Italy was making in engaging the Government of Zimbabwe in relation to Lot 5A Somerby. The then Governor of the Reserve Bank of Zimbabwe Dr Gono also wrote to both Government officials and the Italian Ambassador explaining his views on BIPPA’s and how failure to abide by such agreements affected the Zimbabwean economy. Walter confirmed in his evidence that he and the third defendant are in occupation of Lot 5A Somerby and that he has not left the property for the past 4 years. He said he is still paying water and electricity bills for Lot 5A Somerby and has employed a full time farm manager. 11 HH 243-14 HC 9406/11 Ref DR 1333/92

Under cross examination Walter admitted that Lot 5A Somerby was identified for acquisition and that it was included in the Constitutional Amendment No 17 of the Old Constitution. He admitted that the Deed of Transfer of Lot 5A Somerby 137/82 was endorsed by the Registrar of Deeds indicating that the title of that land now vested in the State. Walter while emphasising that he was not versed in the law agreed with the evidence put to him in cross examination that Lot 5A Somerby was acquired by the state. He conceded during cross examination that the Government of Zimbabwe can acquire land for agricultural purposes covered by BIPPAs and that compensation should be paid for both such land and improvements thereon. Walter admitted that the defendants through the Italian Ambassador made concerted efforts to either save Lot 5A Somerby from acquisition and or to have it delisted to no avail as the plaintiff’s offer letter has not been withdrawn or nullified. Walter told the court that all the defendants have not challenged the acquisition in court of Lot 5 Somerby. Lastly he conceded that none of the defendants have offer letters in relation to Lot 5A Somerby but that he and third defendant have remained in occupation of the farm on the advice of the District Administrator for Zvimba who have told them to stay put and the assurances for the Italian Embassy. Walter gave his evidence very well and I assess him as a candid and honest witness. He was prepared to make concessions when he realised that he was confronted with irrefutable evidence. His testimony resolves a number of issues referred to trial in this matter as per the pre-trial conference referral minute as I shall shortly demonstrate.

Carole Massimiani Carole Massimiani (Carole) is the daughter in law of the late Mario Massimiani and Pierina Massimiani. She is the wife of Walter. In my view her evidence is largely common cause and irrelevant to the issues to be resolved by the court. Carole explained her efforts, to no avail to meet the Minister of Lands and Resettlement Dr Murerwa since 2010 when plaintiff wanted to occupy part of Lot 5A Somerby as the property is covered by BIPPA and how Ministry of Lands officials advised her and defendants to remain on the farm pending investigations whose results she has not received to date. Carole engaged the District Administrator for Zvimba who advised her and the defendants to remain in occupation of the property. Carole said she was present when the local war veterans chased away the plaintiff 12 HH 243-14 HC 9406/11 Ref DR 1333/92 from Lot 5A Somerby. She emphasised that she and the defendants have remained in occupation of Lot 5A Somerby on the basis of faith and trust received from various officials who told her and defendants to continue farming operations on the property. Under cores examination Carole conceded that Lot 5A Somerby was acquired by the state and that the plaintiff has an offer letter and that defendants have not challenged the acquisition of Lot 5A Somerby in court. No other useful evidence was solicited from her.

Michael Changadzo Michael Changadzo is the war veterans chairperson for Zvimba District and his evidence relates more to a memorandum dated 3 June 2011 signed by other war veteran leaders Kajese, Mazvishaya and Makarasika (see pp 158-159 of the Bundle of documents). Michael Changadzo (Changadzo) told the court that in 2000 he spear headed the farm invasions and settled people at Lot 5A Somerby. He said in 2001 he was advised that Lot 5A Somerby was covered or protected by BIPPA hence in 2002 he removed all the fellow comrades from Lot 5A Somerby. Changadzo said he was called to Lot 5A Somerby on 20 September 2010 after plaintiff had forcibly entered into the farm house saying he was a beneficiary as he had an offer letter relating to part of Lot 5A Somerby. Changadzo said he advised plaintiff to leave as Lot 5A Somerby was protected under BIPPA. Changadzo said the current position of war veterans in Zvimba District is that the defendants should remain on Lot 5A Somerby as the property is protected under BIPPA and that if the Government of Zimbabwe decides to disregard BIPPA then Lot 5A Somerby should be allocated to fellow comrades and not the plaintiff. Under cross examination Changadzo admitted that plaintiff’s offer letter was not revoked but said he was instructed by the Minister responsible for Mashonaland West to retrieve all offer letters issued to beneficiaries in relation to farms protected by BIPPAs and that the Minister of Lands and Rural Resettlement would revoke such offer letters. He denied that his conduct would be unlawful. The evidence of Changadzo just like that of Carole is largely irrelevant to the issues to be resolved. While war veterans are stakeholders in the land reform process both at District and Provincial level it is clear that they do not act unilaterally and that the Minister of Lands and Rural Resettlement is the ultimate legal authority in the acquisition and allocation of land for agricultural and resettlement purposes. I now turn to the issues to be resolved in this matter. 13 HH 243-14 HC 9406/11 Ref DR 1333/92

The pre-trial conference minute relates to eight (8) issues referred to for determination but I believe some of the issues can be grouped together as ultimately they relate to the same issue. I shall therefore deal with the issues as follows. a) Item 1, 2, 3 and 5 relate to one issue of whether Lot 5A Somerby was acquired by the State. If this answer is in the positive then all three defendants are former owners or occupiers of the said piece of land and if it was acquired then was it subdivided into 4 pieces of land. b) Item 4 and 7 relates to the same issue of whether the defendants are still in occupation of Lot 5A Somerby which include subdivision 2 of Lot 5A allocated to the plaintiff. c) Item 6 and 8 are interrelated issues of whether plaintiff was allocated subdivision 2 of Lot 5A Somerby and if so whether he is entitled to an order evicting the defendants from that piece of land allocated to him. a) Whether or not Lot 5A Somerby was acquired by the State. It is clear from the evidence I have outlined that Lot 5A Somerby was duly acquired by and vested in the state in terms of s 16B of the old constitution. S 16B (2) of the old constitution which came into operation on 14September 2005 provides as follows, “(2) Notwithstanding anything contained in this chapter-

(a) all agricultural land; (i) that was identified on or before 8th July 2005, in the Gazette or Gazette Extraordinary under Section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in schedule 7, being agricultural land required for resettlement purposes; or (ii) ------(iii) ------Is acquired by and vested on the state with full title therein with effect from the appointed day ...... ”

From the evidence it is common cause that the preliminary notice to compulsorily acquire Lot 5A Somerby for resettlement purposes was published in the Extraordinary Gazette on 17September 2003as General Notice 445E of 2003 item 75. The same general Notice 445 E of 2003 is listed as Item 105 in Schedule 7 of the old constitution (Amendment No17). This in essence means that Lot 5A Somerby was identified as being required for resettlement purposes before 18 July 2005, in the 14 HH 243-14 HC 9406/11 Ref DR 1333/92

Gazette Extraordinary under s5 (1) of the Land acquisition Act [Cap 20:10]. The same piece of land Lot 5A Somerby was then itemised as such in Schedule 7 to the old constitution. In the case of Route Toute B V and Ors v Ministry of Lands and Ors 2009 (2) ZLR 351 (H) PATEL J (as he then was) at 359 C had this to say on the critical requisites of s16 B (2) of the old constitution; “the critical requisites for the application of s 16 B (2) (a) of the constitution are; firstly that the land in question was identified as being required for resettlement purposes on or before 8 July 2005 in the Gazette under s 5 (1) of the Acquisition Act, and secondly that it was itemised as such in Schedule 7 to the constitution. The question of compliance with all the requirements of s 5 (1) of the Acquisition Act does not arise for purposes of acquisition of agricultural land and the vesting of title thereto in the State in terms of s 16 B of the constitution. I am fortified in this view by having regard to s16B (5) which declares that any error contained in is an itemised notice shall not affect the operation of s 16 B (2) (a) or invalidate the vesting of title in the State in terms of that provision.”

It is my finding that these critical requirements are met in this case and that Lot 5A Somerby was duly acquired by, the state and full title therein in vested in the state with effect from 14 September 205. The relevant Deed of Transfer 137/82 in respect of Lot 5A Somerby was therefore in terms of s 16 B (4) of the old constitution formally cancelled by the endorsement made on 28 October 2005. This confirms that full title therein was vested in the state by virtue of the acquisition of the said piece of land. While the legal effect of the Bilateral Promotion and Protection of Investments Agreement (BIPPA) between the Government of Zimbabwe and the Italian Government in relation to Lot 5 A Somerby has not been raised in specific terms in the pre-trial conference referral minute, the impression I get from the evidence led by the defendants is that Lot 5 A Somerby could not be compulsorily acquired in terms of 16 B of the old constitution for agricultural purposes as it was protected under BIPPA. This seems to be the gist of the evidence of Walter and also the thrust of closing submissions by Mr Drury for the defendants. It is common cause that Lot 5A Somerby is covered under BIPPA. The question is whether this would exempt it from compulsory acquisition in terms of s 16 B of the old constitution. This question was 15 HH 243-14 HC 9406/11 Ref DR 1333/92

aptly answered by the Chief Justice in the case of CFU v Minister Lands and Ors 2010 (1) ZLR 576 (s) at 598 B wherein the Learned Chief Justice said; “The effect of s 16 B of the constitution is that it renders agricultural land occupied under Bilateral Promotion and Protection of Investments Agreement (BIPPA’S) liable to compulsory acquisition if the acquiring authority considers that it is required for resettlement purposes or any other purpose as prescribed under s 16 B (2) (a) (iii) of the constitution.”

It is therefore my finding that Lot 5A Somerby was duly acquired by the state and that the BIPPA between the Zimbabwean Government and Italian Government is not a bar to such compulsory acquisition. This means that the first, second and third defendants are former owners or occupiers of Lot5A Somerby. The evidence adduced in this case shows that on 7 May 209 Lot 5A Somerby was subdivided into four (4) subdivisions (1 to 4) see map on pp 57 of the Bundle of documents. This was done after Lot 5A Somerby had been compulsorily acquired. b) Whether the first, second and third defendants are still in occupation of Lot 5A Somerby which includes subdivision 2 of Lot 5A Somerby This is a factual rather than a legal issue and the answer is in the positive. All the witnesses, the plaintiff, Tigere, the second defendant Walter, Carole and Changadzo confirmed this fact. c) Whether the plaintiff was allocated Subdivision 2 of Lot 5A Somerby and whether plaintiff is entitled to an order ejecting first, second and third defendants from Subdivision 2of Lot 5A Somerby. Uncontroverted evidence is that on 27November 2009 the then Minister of Lands and Rural Resettlement allocated subdivision 2 of Lot5A Somerby in Zvimba District measuring 45.495 hectares to the plaintiff as per the offer letter. (See pp 58 of Bundle of documents). The plaintiff’s evidence which is not challenged is that he received this offer letter on 27 April 2010 and formally accepted it on 12 May 2010. The allegation that the plaintiff did not apply for land in my view is baseless and unsubstantiated more so in view of the clear evidence of the plaintiff and Tigere.

16 HH 243-14 HC 9406/11 Ref DR 1333/92

The legal rights conferred upon the holder of the offer letter, permit or a land resettlement lease and its effect were again summed up by the Learned Chief Justice in CFU v Minister of Lands and Ors (supra) at 595 E-596 A-G as follows; “In conclusion, I would summarise the legal position as follows

(1) ------

(2) ------

(3) Every former owner or occupier of acquired or gazetted land who has no lawful authority is legally obliged to cease occupying or using such land upon the expiry of the prescribed period (ninety days after the acquisition) see Subs 3 (2) (a) and (b) of the Act and s 16 B of the constitution. By operation of law former owners or occupiers of acquired land lose all rights to the acquired land upon the expiration of the prescribed period.

(4) A former owner or occupier of acquired land who without lawful authority continues occupation of acquired land after the prescribed period commits a criminal offence. If the former owner or occupier continues in occupation in open defiance of the law, no court of law has jurisdiction to authorise the continued use or possession of the acquired land.

(5) ------

(6) A permit, an offer letter and land settlement lease are valid legal documents when issued by the acquiring authority in terms of s 2 of the Act and s 8 of the Land Settlement Act. The holder of such permit, offer letter or land settlement lease has the legal right to occupy and use the land settlement lease.

(7) ------

(8) While s 3 (5) of the Act confers on a criminal court the power to issue an eviction order against a convicted person, it does not take away the Minister’s right or the right of the holder of an offer letter, permit or land settlement lease to commence eviction proceedings against a former owner or occupier who refuses to vacate the acquired land. The holder of an offer letter permit or land settlement lease has a clear right, derived from an Act of parliament, to take occupation of acquired land allocated to him or her in terms of the offer letter, permit or land settlement lease. No doubt the Legislature conferred on the holder of an offer letter, permit or land settlement lease the locus standi, independent of the Minister, to sue for the eviction of any illegal occupier of land allocated to him or her in terms of the offer letter, permit or land settlement lease. 17 HH 243-14 HC 9406/11 Ref DR 1333/92

(9) ------.”

The clear and unambiguous pronouncement of the law by the learned Chief Justice to which I have referred to extensively admits no other interpretation, nor further elaboration. It is my finding therefore that the plaintiff was allocated, through an offer letter, subdivision 2 of Lot5A Somerby. The plaintiff is therefore entitled to an order ejecting the first, second and third defendants from subdivision 2 of Lot5A Somerby. The first, second and third defendants being former owners or occupiers of Lot5A Somerby which include subdivision 2 of Lot5A Somerby are legally obliged to cease occupying or using such land after it had been duly compulsorily acquired and they had since lost all rights to this land which has been acquired. The plaintiff’s claim is unassailable and he is entitled to the order sought. Accordingly, I make the following order:-

IT IS ORDERED THAT; 1. The first, second and third defendants, their property, all those claiming through them and their property be and are hereby evicted from all occupation and use of a certain piece of land called subdivision 2 of Lot5A of Somerby measuring 45.495 hectares situated in Zvimba District, Mashonaland West Province.

2. The first, second and third defendants shall pay the costs of suit jointly and severally the one paying the other to be absolved.

Gutu and Chikowero, plaintiff’s legal practitioners. Honey and Blackenberg, first, second and third defendants’ legal practitioners.