ConCourt grants Umvutcha farmer’s appeal over property caveats

Bulawayo High Court judge Justice Christopher Dube-Banda on June 8 last year ordered Masuka to cancel the caveats endorsed on deed of transfer 3188/83.

THE Constitutional Court (ConCourt) has granted an appeal by an Umvutcha farmer who filed an application challenging a Supreme Court ruling which quashed a High Court order for the removal of caveats placed on his property that the government repossessed.

Alistair Michael Fletcher, represented by Bruce Masamvu of Masamvu and Da Silva-Gustavo Law Chambers took the Lands, Agriculture, Fisheries and Rural Development minister Anxious Masuka to the ConCourt challenging the Supreme Court ruling.

In his ConCourt appeal filed on December 14 last year, Fletcher cited Masuka, one of the farm occupants Robert Njani and the Registrar of Deeds as respondents.

The Supreme Court had reversed the High Court order that granted Fletcher’s application for the government to remove caveats placed on his Umguza Agricultural Lots of Umvutcha and Reigate Farm.

Bulawayo High Court judge Justice Christopher Dube-Banda on June 8 last year ordered Masuka to cancel the caveats endorsed on deed of transfer 3188/83.

He also ruled that the minister pays the applicant’s cost of suit.

Fletcher had sought the removal of caveats placed at the instance of Masuka and Njanji on his deed of transfer.

However, Masuka and Njanji filed a Supreme Court challenge in which Justices Elizabeth Gwaunza, Susan Mavangira and George Chiweshe granted their application and set aside the High Court ruling, prompting Fletcher to file a Constitutional Court challenge.

At the ConCourt, the matter was heard by Justices Rita Makarau, Ben Hlatshwayo and Bharatkumar Patel.

A ruling made by Justice Patel on June 11 this year indicated that the application for leave to appeal to the ConCourt was not opposed.

He said the applicant was dissatisfied with the endorsement of the caveats and, subsequently, filed an application in the High Court seeking the upliftment of the caveats.

Justice Patel said the applicant prayed for an order uplifting the said caveats with costs.

“In terms of the applicant’s draft notice of appeal, the land in dispute is urban land that was declared as part of the City of Bulawayo through SI [Statutory Instrument] 212 of 1999. Therefore, it is not subject to acquisition through laws that govern the acquisition of agricultural land for resettlement purposes,” Patel said in the ruling.

“The applicant also avers that he successfully challenged the acquisition of his land under HC 2291/08 on the basis that urban land could not be acquired on the basis of s16B of the former Constitution.”

Justice Patel further noted that it appeared 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.

“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. Accordingly, it is ordered that the application for leave to appeal against the judgment of the Supreme Court in Case No SCB 49/23 be and is hereby granted, with no order as to costs.”

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