via A2 farmer wins occupation case | The Herald October 28, 2013 by Fidelis Munyoro
An A2 farmer has won his case to evict a Beatrice white farmer who has been refusing to vacate from the State land claiming that it was re-allocated to him under land reform.
The A2 farmer Mr Aaron Madziva approached the High Court seeking to evict Mr Gerald Douglas Davidson from Xekene Farm on the strength of an offer letter in his possession.
In a judgment made available last week, Justice Nicholas Mathonsi declared Mr Madziva the lawful occupant of the piece of land in terms of the offer letter issued by the Minister of Lands and Resettlement on December 13 2008.
“The first respondent (Mr Davidson) is hereby directed to, immediately upon service of this order upon him, give vacant occupation of sub-division A of Xekene Extension in Seke District of Mashonaland East Province to the applicant (Mr Madziva),” said Justice Mathonsi.
“In the event of first respondents’ failure to comply…, then the Sheriff for Zimbabwe…is directed to evict the first respondent and all those claiming through him and give vacant possession to the applicant.”
The farm at the centre of the wrangle was initially gazetted by the Government on August 26 2002 for resettlement purposes.
Following the acquisition, Mr Davidson engaged the acquiring authority, resulting in an agreement in terms of which he gave up one of his farms Lisbon Extension in return for Xekene farm.
The agreement was reduced to a consent order issued by the Administrative Court in July 2005.
But the Government gazetted the farm for compulsory acquisition in terms of the Land Acquisition Act in December 2008 and allocated it to Mr Madziva, who failed to take occupation because Mr Davidson refused to vacate.
Mr Davidson’s intransigence earned him criminal prosecution for resisting eviction under section 3(2) of the Gazetted Lands (Consequential Provisions) Act).
The Act criminalises the continued occupation of acquired land.
When the case was brought to the High Court, Mr Madziva wanted an order declaring him the lawful owner of the farm.
But Mr Davidson opposed the application, arguing that the matter was already determined by the Administrative Court.
He also argued that the acquisition of the farm in December 2008 was a nullity because it ignored the consent order of the Administrative Court.
But Justice Mathonsi ruled that Mr Davidson could not use the consent order which only resolved an acquisition of the farm which had been taken in 2002.
The Supreme Court also made it clear that the holder of an offer letter had a legal authority to occupy and use the land allocated to him by the minister in terms of the letter.
However, Mr Davidson is appealing against the High Court decision. He argues that Justice Mathonsi erred in failing to accept the fact that the acquisition of the farm was invalid in light of the consent order from the Administrative Court.
“The consent order was entered into between government and Appellant,” said Mr Davidson in his grounds of appeal.
“That consent order has not been set aside. The minister of lands when he entered into the consent order did not intend to cheat the Appellant.”