The applicants were former owners of Homefield Farm in Banket area, Zvimba District. The farm was acquired by the State under section 16B of the Constitution, making it "gazetted land". The applicants did not hold any lawful authority (offer letter, permit, or land settlement lease) to occupy the farm but continued to occupy it beyond the statutory period in violation of section 3(1) of the Gazetted Land (Consequential Provisions) Act. The respondents held valid offer letters giving them lawful authority to occupy the farm. The respondents attempted to occupy the farm and evict the applicants without following judicial process, leading to violent clashes. The applicants obtained a spoliation order under case HC 7094/10. The respondents appealed to the Supreme Court and this application concerned whether the spoliation order could be enforced pending the appeal.
The application was dismissed with costs. The applicants were not entitled to enforce the spoliation order granted in HC 7094/10 pending the appeal to the Supreme Court.
Former owners of gazetted land who continue to occupy such land beyond the statutory period without lawful authority (offer letter, permit or land settlement lease) do not have possession recognized at law and therefore cannot obtain spoliation orders against beneficiaries holding valid offer letters. Common law remedies such as spoliation cannot be used to override or modify constitutional and statutory provisions prohibiting occupation of gazetted land without lawful authority. Upon gazetting, dominium and all rights of former owners cease by operation of law and vest in the acquiring authority. Courts cannot grant orders that would authorize illegal conduct - specifically, the continued occupation of gazetted land by persons without lawful authority in contravention of section 3(1) of the Gazetted Land (Consequential Provisions) Act. Beneficiaries holding offer letters have real rights to occupy gazetted land that are enforceable against the world, including against former owners who no longer have any legal rights over the property.
The judge observed that while beneficiaries taking the law into their own hands through extra-judicial eviction cannot be condoned and is illegal, this illegality is morally lesser than the illegality of former owners defying an Act of Parliament. The judge noted that the illegality of beneficiaries' actions relates only to applying wrong procedures to secure legitimate rights, whereas former owners have no remaining rights. The judge expressed the view that prosecution under section 3 of the Act is only one remedy available to the acquiring authority and does not preclude the acquiring authority or beneficiaries from seeking eviction through the courts by other means. The judge also noted that if the legislature intended to preclude all common law remedies other than prosecution, it would have stated so in clear and simple language.
This judgment represents an important development in Zimbabwean land reform jurisprudence, establishing that former owners of gazetted land cannot use the common law remedy of spoliation to resist occupation by beneficiaries holding valid offer letters. It affirms the principle that statutory and constitutional provisions override common law, and that courts cannot use common law remedies to authorize conduct prohibited by statute. The judgment addresses a critical tension in the land reform process between procedural propriety (judicial eviction) and substantive legal rights created by the land reform legislation. It forms part of a body of case law resolving conflicting judicial approaches to spoliation in the context of land reform, with significant implications for how land disputes arising from Zimbabwe's fast-track land reform programme should be adjudicated.