Top Crop (1976) (Pvt) Ltd and Malcolm William Clerk v Minister of Lands Land Reform and Resettlement and Yvone Samukeliso Gumede

The first applicant was the former owner of Subdivision 21A of Weston, a piece of gazetted land in Harare district. The second applicant was a director and shareholder of the first applicant. Prior to 9 January 2008, the applicants were in possession of the property. On that date, the second applicant was violently dispossessed when the second respondent took occupation. The second applicant was allegedly assaulted and ejected without time to collect belongings. The property had been expropriated under the Land Acquisition Act and the second respondent had been issued an offer letter by the acquiring authority. The applicants sought a spoliation order to restore the status quo ante pending determination of the parties' competing rights.

• Whether the applicants were in peaceful and undisturbed possession of the property at the material time warranting protection under the common law remedy of spoliation
• Whether common law principles of spoliation can override constitutional and statutory provisions relating to land acquisition
• Whether the court can grant a spoliation order restoring possession of gazetted land when the applicants' statutory period to occupy had expired
• Whether the applicants could lawfully possess the disputed property in the absence of an offer letter, permit or land lease

The applicants' application was dismissed with costs.

Common law remedies such as spoliation cannot be used to override or modify constitutional and statutory provisions. Where the Constitution and an Act of Parliament conflict with common law, common law must give way. A court cannot grant a spoliation order to restore possession that would authorize conduct prohibited by statute. Former owners of gazetted land acquired under section 16B of the Constitution lose their legal right to possess the land after the expiry of the statutory periods set out in section 3 of the Gazetted Land (Consequential Provisions) Act (45 days for the land generally, 90 days for living quarters). After these periods expire, continued occupation without an offer letter, permit or land lease is illegal and not entitled to protection through spoliation remedies. The courts cannot use common law principles to authorize illegality under the guise of protecting peaceful possession.

BHUNU J made observations about the frequency of such land disputes coming before the courts and noted that lawyers handling these cases appeared to be recycling and transplanting old heads of argument with monotonous repetition. The judge also noted that while aware of some contrary judgments from the High Court, he did not consider himself bound by those judgments with which he disagreed. The court also made preliminary orders granting interim relief allowing the second applicant to occupy the main homestead pending judgment, based on an undertaking by the second respondent, though this was later challenged.

This case is significant in Zimbabwe's land reform jurisprudence as it clarifies the relationship between common law remedies (spoliation) and constitutional/statutory land acquisition provisions. It establishes that common law principles cannot be used to circumvent or override the constitutional and statutory framework governing land reform. The judgment reinforces that former landowners cannot use spoliation remedies to retain possession of gazetted land once statutory time periods have expired, and that courts cannot grant orders that would authorize illegality. The case reflects the judicial approach to balancing property rights with land reform imperatives under Zimbabwe's constitutional framework.