A WHITE commercial farmer, who was convicted for illegally occupying a gazetted farm, has appealed both conviction and sentence at the Bulawayo High Court.
Dudley Rogers was arraigned before the court over continued occupancy of Olympus Block Farm in West Nicholson and was sentenced to a wholly suspended three-month jail term and ordered to vacate the farm.
Rodgers, who owned the 17 000-hectare farm, was brought to the Gwanda Magistrates’ Court after the farm was gazetted as State land and he was given an endorsed map of the 1 000-hectare plot he was supposed to continue occupying in 2003.
Through his lawyer, Josephat Tshuma, Rodgers yesterday filed an appeal seeking an order setting aside his conviction, sentence and eviction on the grounds that, in accordance with the land policy, one has to be given an offer letter, lease, or permit to occupy the land.
The appeal was heard by the Bulawayo High Court judges Martin Makonese and Andrew Mutema.
In his heads of argument, Rodgers indicated that he was convicted for contravening the provisions of Section 3(2) as read with Section 3(3) of the Gazetted Lands (Consequential Provisions) Act.
“It is submitted that the Gazetted Lands (Consequential Provisions) Act does not envisage a permit only and exclusively writing,” Tshuma submitted.
When the land was gazetted, it was subdivided into smaller plots in which various offer letter holders were allocated.
He said he was given a 1 000-hectares plot by the Lands ministry and was even given a map of the land which he should occupy, which he believed was government permission for him to remain in that piece of land.
“It is further submitted that the oral and behavioural representation made to the appellant by government officials as well as the endorsement by such officials of a map given to appellant amounted to a permit in terms of the Act,” Tshuma said.
“It is submitted that the appellant was not in unlawful occupation of the land in that he had lawful authority to remain.
“The conviction of the appellant was accordingly improper and must be set aside.
“In the event that this court upholds the conviction, it is submitted that the sentence induces a sense of shock and must be set aside.”
Tshuma submitted that the magistrate who sentenced Rodgers held that the only kind of permit envisaged by the Gazetted Lands Act was a written document and not any other kind.
“This reasoning was flawed,” Tshuma said.
“It is submitted that the literal meaning of permit does allow for the inclusion of a non-written permit.”
He said since there was no specific form of permit which should be considered for one to remain on the land, the magistrate erred in convicting and sentencing him, since he could produce his form of permission to be on that land as a map which was endorsed by the Lands ministry officials.
Tshuma said Rodgers was even advised of who his new neighbours were and was advised to assist them.
Challenging the appeal, prosecutor Timothy Makoni said the court correctly rejected Rodger’s assertions that he had been permitted to
remain on the land he presently occupies.
He said it was clear that a permit must be in a written form issued by relevant authorities.
Judgment on the matter was reserved.