THE Constitutional Court (ConCourt) has granted an appeal by an Umvutcha farmer, who was challenging a Supreme Court ruling which quashed a High Court order that dismissed the placing of caveats on his property.
This was after the government claimed to have acquired his property.
Alistair Michael Fletcher, represented by Bruce Masamvu of Masamvu and Da Silva-Gustavo Law Chambers, took Lands, Agriculture, Fisheries, Water and Rural Development minister to the ConCourt challenging the Supreme Court ruling.
In his ConCourt appeal case number CCZ 19/24, Fletcher cited the Lands minister, Registrar of Deeds and one of the farm occupants, Robert Njanji, as respondents.
The Supreme Court had scrapped 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.
This prompted Fletcher to file an appeal at the ConCourt challenging the Supreme Court ruling.
The ConCourt bench ruling on July 29, which was pronounced by Justice Ben Hlatshwayo, granted Fletcher’s appeal.
“In bringing this appeal, the appellant has argued that the order of the court a quo (lower court) violated his right to use, hold, transfer and not be compulsorily deprived of his property as enshrined in section 71(2)-(3) and his right to equal protection and benefit of the law as enshrined in section 56 of the Constitution of Zimbabwe, 2013,” Justice Hlatshwayo said in the judgment.
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“In this case, the appellant’s land had been classified as urban land, as confirmed by the provincial planning officer’s letter and the Bulawayo City Council’s objection to its acquisition for agricultural purposes.
“Despite this, the court a quo allowed the acquisition of the land as if it were agricultural, applying a legal framework meant for agricultural land acquisition.”
The judge noted that such application of the law treated the appellant differently from other property owners whose urban land remains protected by the urban planning and regulatory frameworks governing city land.
“By failing to apply the proper legal standards governing urban land and instead treating the appellant’s land as agricultural, the court effectively denied the appellant the protection that should have been afforded under the law regulating urban property,” Justice Hlatshwayo noted.
“This inconsistency in the application of legal protections violates s 56(1), as it subjects the appellant to a legal regime that was not intended to apply to his property and deprives him of the full benefit of the law intended for urban landholders.
“Thus, by treating the appellant in a manner that discriminates against him as compared with other urban landholders, the decision infringed the appellant’s constitutional right to equal protection and benefit of the law.”
The judge ruled that while section 16B(3)(a) of the Constitution ousts the jurisdiction of the courts in respect of challenges to land acquisitions, it is crucial to note that this provision exclusively pertains to agricultural land.
“The appellant’s land falls within the category of urban land and is, therefore, exempting him from the ambit of compulsory acquisition under s16B. In light of this distinction, the court a quo retained jurisdiction to adjudicate upon the application for removal of caveats. Therefore, the appeal has merit,” Justice Hlatshwayo ruled.
“It is hereby ordered that the appeal succeeds with no order as to costs and the whole judgment of the court a quo is set aside and substituted, with that the appeal is hereby dismissed with costs.”
On June 8, 2023, Bulawayo High Court judge Justice Christopher Dube Banda ordered the Lands minister to cancel caveats 844/200, ZN, 26/2017 and 77/2019 endorsed on deed of transfer 3188/83.
He also ruled that the minister pays the appellant’s cost of suit.
Fletcher had sought the upliftment of caveats placed at the instance of the minister and Njanji on his deed of transfer.
However, the Lands minister 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.
A ruling made by Justice Patel on June 11, 2023, 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.
Fletcher is the occupant of a certain immovable property called Umguza Agricultural Lots of Umvutcha and Reigate.
Court papers state that the property is registered under title deed 3188/83 and sometime in 1999, the land was incorporated into the City of Bulawayo through Statutory Instrument 212 of 1999.
On August 25, 2000, the land was listed in a Government Gazette Extraordinary under General Notice 405 of 2000.
Subsequent to the gazetting of the land, the Lands ministry caused the endorsement of caveats 844/2000 and 77/2019 on the deed of transfer.
In addition, caveat XN 26/2017 was also endorsed at the instance of the Registrar of Deeds.
Aggrieved, Fletcher approached the High Court under HC 2291/08 challenging the endorsements by the respective respondents.
