KHB Estates (Pvt) Limited and Kenneth Ronald Bartholomew v Felix Pambukani and Others

The first applicant was the former owner of Wakefield Farm, Chegutu (688.64 hectares). The second applicant resided on a portion of the farm (353.06 hectares). The first respondent issued a writ for ejectment of the applicants from subdivision 2 of Wakefield Farm based on an order from the Chegutu Magistrates Court granting leave to execute ejectment notwithstanding a noted appeal. By the time the respondents' papers were filed, the applicants had already been ejected. The applicants then amended their application to seek restoration to occupation, possession and use of the portion of Wakefield Farm. The applicants claimed they had meetings with the acting Minister of Lands who advised that a decision would be made at Presidential level regarding which area they should continue to operate on. However, by the hearing date, no lawful authority to occupy had been issued. The land had been acquired by the State and the first respondent had been issued with an offer letter.

• Whether the certificate of urgency complied with the Rules of Court
• Whether the matter was properly brought on an urgent basis given that the ejectment had already occurred
• Whether the applicants had locus standi to bring the application in the absence of lawful authority to occupy the land
• Whether the applicants' continued occupation without lawful authority constituted a criminal offence
• Whether the court could authorize occupation that Parliament had decreed would constitute a criminal offence

The application was dismissed. The court declined to exercise its discretion to hear the matter on an urgent basis and found the applicants lacked locus standi. The court did not consider the merits of the application. The first respondent's counter-application was also dismissed as not being properly before the court.

1. A legal practitioner who certifies urgency must apply his own mind to the circumstances and reach a personal view he can honestly support. It is an abuse for a lawyer to put his name to a certificate of urgency where he does not genuinely hold the situation to be urgent or has not addressed his mind to its contents. 2. Where land has been acquired by the State under land reform legislation, occupiers without lawful authority as defined in the Gazetted Land (Consequential Provisions) Act (offer letter, permit or lease) lack locus standi to seek restoration of occupation. 3. A court has no jurisdiction to authorize the doing of that which Parliament has decreed would constitute a criminal offence. Occupation of acquired land without lawful authority constitutes such an offence, and courts cannot extend protection to such unlawful occupation.

The court noted that documents allegedly furnished to a magistrate after determination would not have been properly before the magistrate and could not be relied upon for any purpose. The court also observed that deliberations or meetings with ministerial officials regarding potential occupation do not amount to lawful authority until an actual offer letter, permit or lease is issued. The court expressly declined to make any pronouncement regarding the related review application (HC8104/11) which was not before it.

This case reinforces important principles in Zimbabwean land reform litigation: (1) The strict requirements for certificates of urgency and the duty of legal practitioners to properly apply their minds to such certificates; (2) The requirement for lawful authority (offer letter, permit or lease) under the Gazetted Land (Consequential Provisions) Act as a prerequisite for locus standi to challenge ejectment from acquired land; (3) The inability of courts to authorize occupation that would constitute a criminal offence under legislation; (4) The application of the principle from Commercial Farmers Union v Minister of Lands that courts cannot authorize what Parliament has decreed to be criminal conduct. The case demonstrates the courts' strict approach to procedural compliance in urgent applications and the legal consequences of occupation without proper authority following land acquisition.