Alan McGregor v Nehemiah Saburi and Others

The applicant was the owner or occupier of Nyamakari Farm in Burma Valley, Mutare District, which was acquired by the State under the Land Acquisition Act. On 15 October 2010, the applicant was convicted by a magistrate in Mutare for contravening section 3 of the Gazetted Land (Consequential Provisions) Act for occupying gazetted land without lawful authority (offer letter, permit or lease), and was sentenced to eviction. The applicant noted an appeal on 17 October 2010 and on 24 October 2010 attempted to return to the farm. There he encountered the first respondent who held an offer letter issued in 2006 and had come to take occupation with his son and others. The first respondent and his group occupied various parts of the land and buildings. The applicant reported the matter to police without success and then approached the High Court seeking an urgent order to evict the first respondent and allow him to resume occupation pending his appeal.

• Whether a former owner or occupier of acquired land who has been convicted of illegally occupying gazetted land can claim peaceful and undisturbed possession and obtain a spoliation order
• Whether an offer letter confers authority and locus standi on its holder to occupy land and seek eviction of illegal occupiers
• Whether a court can grant relief to a litigant who is acting in contravention of section 3 of the Gazetted Land (Consequential Provisions) Act
• Whether the offence under section 3 of the Gazetted Land (Consequential Provisions) Act is one of strict liability
• Whether former owners or occupiers of acquired land lose all rights to such land after the expiration of the prescribed period

The application was dismissed with costs.

The binding legal principles established are: (1) Statutory provisions under the Land Acquisition Act and Gazetted Land (Consequential Provisions) Act override common law remedies such as spoliation; (2) Former owners or occupiers of acquired land lose all rights to such land upon expiration of the prescribed period (90 days after acquisition); (3) A person who refuses to vacate gazetted land in violation of section 3 of the Gazetted Land (Consequential Provisions) Act cannot approach courts for relief until they have complied with the law; (4) An offer letter, permit or land settlement lease issued by the acquiring authority confers valid legal rights and locus standi on the holder to occupy the land and to seek eviction of illegal occupiers; (5) The offence under section 3 of the Gazetted Land (Consequential Provisions) Act is one of strict liability requiring an offer letter, lease or permit as the only forms of lawful authority to occupy gazetted land; (6) Courts have no jurisdiction to authorize continued use or possession of acquired land by a former owner or occupier who continues in occupation in open defiance of the law.

The court observed that there had been conflicting judgments from the High Court on land matters, with some judges favouring approaches advocated by applicants in land cases and others taking different positions. Chiweshe JP indicated that he belonged to the latter group whose interpretation had since been vindicated by the Supreme Court. The court also noted that while holders of offer letters have the right to seek eviction through courts, they are not entitled to self-help as a matter of law, and where both the offer letter holder and former occupier act outside the law, both are in the wrong. The court commented that the purely administrative issues raised by the applicant regarding his dealings with Ministry of Lands officials and his expectations were of no legal relevance to the application or his pending appeal.

This case is significant in Zimbabwean land law as it confirms and applies the principles established by the Supreme Court in Commercial Farmers Union v Minister of Lands SC 31/10 regarding the land reform programme. It establishes that former owners or occupiers of acquired land lose all rights upon expiration of the prescribed period and cannot approach courts for relief while acting in contravention of the law. The judgment clarifies that offer letters confer valid legal rights and locus standi on holders to occupy land and seek eviction of illegal occupiers. It reinforces that courts will not grant relief to parties acting outside the law by illegally occupying gazetted land, and that statutory land reform provisions override common law remedies such as spoliation. The case demonstrates judicial alignment with the land reform legislative framework and the constitutional provisions regarding acquired land.