From: Justice for Agriculture <justiceforagriculture@zol.co.zw>
 Sent: Saturday, August 09, 2014 5:47 AM
 Subject: re: TO FARM OR NOT TO FARM - TO GO TO JAIL OR NOT
"Patience, Politeness and Persistence"

 

As we approach the 9th of August which is the 91st day after the promulgation of the Land Acquisition Amendment Act many people who had received section 8 orders before the 10th of May face the threat of prosecution and eviction. 

 

These notes endeavour to assist lawyers whose clients face those problems.

 

1.  Landowners probably have a fair idea of whether or not they are likely to face possible arrest for remaining on their farms after 10 August by virtue of whatever has been happening in their areas during the past month or two.  Some people may well be able to continue farming while others are likely to face problems.
2.  2.1 Note that a section 8 order is NOT an eviction order.  According to section 9 (1) (b) it constitutes notice to the owner or occupier to cease to occupy, hold or use land (45 days after 10 May) and notice to cease to occupy the living quarters within 90 days (i.e.  9 August).
2.2 Failure to vacate the living quarters may constitute the crime of contravening section 9 91) (b) (ii) for overstaying but it is only if and when the owner/occupier has been convicted that the court should issue an eviction order.  There is a lot that can happen before then.  The orders are not issued by the D.A.  or the Police.
"Come with us"
3.  We are likely to see arrests of those who have section 8 orders and who stay on after 8 August.  There may be hundreds or more; there may be a few high profile cases.  There will at least be many instances in which people are required to go to the Police and "make a statement" explaining why there are still at home.  Those arrested will only cause themselves more trouble by resisting arrest.  Those requested to and make a statement are advised to do so.  Those arrested will probably also be invited to make a statement.
"Making A Statement"
4.  It is advised that anyone charged with overstaying i.e.  contravening section 9 (1) (b) (ii) of the Act - should make a statement.  Clients should get a lawyer if possible but otherwise a statement along the following lines should suffice.:- "I deny that what I am doing is unlawful.  My land case has still not been heard and the High Court is already having to consider the validity of this law.  I am helping to produce food and exports to earn foreign currency which we all need and I need to remain in my home to protect my assets."
"Police Bail"
5.  After a statement has been made, the farmer may be released to go home whether he was first arrested or not.  In either case the Police may require a payment of "bail out".  This could be anything from $1000.00 to $50 000.00, probably about $10 000.00.  Bail could be refused at this time and detention in police cells may follow.  Those detained may or may not be allowed visitors, food, a magazine/book and toiletries.
6.  Treatment by the Police will be closely related to treatment of the Police.  They too have a job to do and they will be following orders.
Clients should stay calm and not protest at invasion of human rights etc.
Unless they want to be detained.  Individuals may be locked up however proper their conduct.  Over-reaction by lawyers may well extend the period of detention.
Lawyers will be on standby to assist farmers.
"Court Bail"
7.  If clients are not released (on bail or otherwise), the Police should take them before a Magistrate within 48 hours (excluding Saturdays, Sundays and Public Holidays).  That 48 hours may be extended by a police officer to 96 hours.  The longest anyone arrested over the long weekend can be lawfully detained is until Thursday 15 August.
8.  When appearing in Court remember again "Patience, politeness and persistence" Apply for bail and it will probably be given.  If the Court rules that a condition of bail is that one does not return home accept that but immediately lodge an appeal against that condition.
9.  If bail is refused or if the conditions are unreasonable, different applications can be made to the High Court for bail or a change of the conditions.  At this time a lawyer's help is probably essential.
"Defences"
10.  If the Police or Magistrate ask why client claims to be not guilty he does not have to answer that question.  But then the Police and the Magistrate do not have to release client - with or without bail.  A spell in Police custody is not the end of the world nor is a spell in a remand prison though that is not to be recommended.  Accordingly there could be advantages in clients raising one or more of the following defences where appropriate:-
10.1 No service on Bondholders There have been recent High Court cases confirming that if, when the section 5 notice was published, the farm was bonded or subject to a servitude, then it was necessary to serve a copy of the notice on the bondholder or servitude holder.  Failure to do so invalidates the section 5 notice and the section 8 order which follows on that notice (See the case of Simon and Simon (Pvt) Ltd.  - v- The Minister of Lands; Harare High Court Case No.  H.C.  5379/02 Mt.  No.  HH 107/02)
Check with your bank to see if they were served with section 5s and 8s.
Get a copy of the front page of your Title Deeds if they reflect an uncancelled bond and get a letter from the Bank confirming that they were not notified of the notice or the order.
10.2 Administrative Court Application too late The High Court has also ruled that if the Administrative Court does not receive a section 7 court application within 30 days of the date of service of the section 8 order (NOT the date on the order), then the section 8 is invalid.  it used to be a common error but not so many cases like this recently.  (See to Simon & Simon Case)
10.3 The Quinnell Case: H.C.  5263/02 The High Court recently issued a Provisional Order in which it ordered the Minister of Lands, the Minister of Justice and the Attorney General to show cause why the new amendment to the Land Acquisition Act should not be declared invalid.  It has therefore accepted that there is a prima facie case that the law may be invalid for a couple of reasons (a) Invalidity of the Land Acquisition Amendment Act This Act which was brought into force on 10 May 2002 could itself be invalid and any arrest based on an invalid Act would then be unlawful.  It could be unlawful because the same legislation was defeated earlier in the same session of Parliament but defeated.  The Courts have already held that a re-enactment of some electoral laws defeated earlier in the same session was invalid.  (See Biti -v-Minister of Justice & Others Case No S.C.  10/02 (b) Minister no lawfully appointed There has never been a formal appointment of any Ministers since the President was re-elected.  Their acts since then could therefore be unlawful.
This is not a final order but it does show that the High Court recognises the possible merit of these two points and others and they may well invalidate the new section 9.  Watch the local Press.
10.4 Deprivation of property without Court hearing The Constitution prohibits deprivation of property without a court hearing.  The new section 9 makes it unlawful for client to stay in his home even if the validity of the acquisition has not been confirmed.  Continued occupation could be no more than the lawful exercise of a claim of right exercised in the face of the failure of the acquiring authority to obtain confirmation of the acquisition.
This is a Constitutional point and can be raised by anyone but it is likely to lead to a long wait before the Supreme Court gives a decision.
In terms of section 24 of the Constitution a Magistrate is obliged to refer a Constitutional argument like this to the Supreme Court.  This must be done and should be raised as an argument why a condition of bail should not be that a farmer not go home.
Labour Matters Many clients anticipate huge demands for gratuities from their labour forces if and when they are evicted.  Statutory Instrument 6 of 2002 regulates this situation.  These payments are necessary ONLY "IF IT IS NECESSARY FOR AN EMPLOYER TO TERMINATE THE EMPLOYMENT OF ANY EMPLOYEE BECAUSE THE FARM HAS BEEN COMPULSORILY ACQUIRED FOR RESETTLEMENT."
Clients therefore do not have to pay these gratuities unless:
(a) they have terminated the employment; and this is (b) because the farm has been acquired for resettlement.
A section 8 order may be an acquisition but it is clearly an inchoate or incomplete acquisition because it is subject to the resolutive condition that there has to be a court hearing to confirm the acquisition and because the acquisition may not be confirmed.
In practice there are many section 8s that are being set aside by virtue of "deals" and very few farmers who have gone through their section 7 hearings have had to stop farming and sign everyone off, and get them our of their homes.
Therefore do not terminate the workers' contracts but note that any termination following a section 8 is presumed to have been by the employer unless he proves otherwise.  Rather give them extended leave and try to negotiate a system of half pay while on leave plus food.  Many will take that if they can keep hold of their jobs.
The constitutionality of this law is open to debate but even an employee who is granted leave on part pay and allowed to remain on the farm is not 'dismissed'.
Section 7s Many people are receiving section 7 papers.  See your lawyer or ask your CFU Regional Office for a copy of the notes that have been sent out to help members in this situation.
Section 7s do NOT cancel the section 8s.
Section 7s do NOT automatically give you a defence against eviction or suspend the section 8
Your day in Court The Section 7 will give you a day in Court - at least one day; perhaps in a years time.
Your arrest will give you a day in Court within a week.
 And this time Government has to prove everything including the lawfulness of the laws and the way in which they have been used.
YOU HAVE STRONG DEFENCES SO HANG ON

Subject: Mastermind behind Matabeleland massacres, Perence Shiri, now in charge of Zimbabwe's grain procurement and distribution -
Date: Fri, 9 Aug 2002 16:46:30 +0100

 

Air Force chief, Perence Shiri (alias 'The Butcher of Bhalagwe' because of
his complicity in the murder of thousands of Matabeles in the early '80s)
has been put in charge of grain reserves being imported into Zimbabwe (see
below). Here then is blatant evidence of how food supplies will be
manipulated and used to favour ZANU PF: Shiri is a master in this game.

 

From The Daily Telegraph (UK), 9 August

 

Mugabe is starving his own people

 

People are being starved in Zimbabwe by President Robert Mugabe's deliberate
and systematic ploy of using food shortages to cling to power. Millions of
people a re going hungry not, as Mr Mugabe's government claims, because of
poor rains but as a direct result of its policy of denying food to
opposition supporters and enriching its loyalists. Last night, the deadline
passed for the mass eviction of 2,900 of Zimbabwe's white commercial
farmers, for decades the mainstay of the agricultural sector. Mr Mugabe
ordered them to abandon their homes, land and livelihoods by midnight. An
investigation by The Telegraph found that control of the Grain Marketing
Board (GMB), Zimbabwe's state-owned monopoly supplier of commercial maize,
was passed this year to one of Mr Mugabe's most loyal henchmen, Air Marshal
Perence Shiri, an alleged war criminal. With Zimbabwe's economy in chaos,
Shiri's mission was to spend a £17 million loan provided by Libya buying
just enough maize to stave off food riots, which would then be supplied
through the GMB. The organisation, which is meant to supply maize at
subsidised price s to all Zimbabweans, has instead been selling maize only t o
supporters of the ruling Zanu PF party. Backers of the opposition Movement
for Democratic Change went hungry. Worse still was the country's Food For
Work programme. Thousands of opposition supporters would provide 15 days'
labour only to be told at the end there was no GMB food for them. The GMB is
so corrupt and politicised that aid groups shipping food into Zimbabwe are
being forced to set up their own expensive parallel storage and distribution
facilities, rather than using those of the GMB - the traditional way of
bringing food aid into Zimbabwe.

 

There is also evidence that the Zimbabwean government is deliberately
blocking the work of these international aid groups and keeping the flow of
aid down to a trickle. That trickle is enough to stave off threats of public
unrest, but not enough to provide food for all of the country. "What we are
seeing is nothing but humanitarian torture," an aid worker said. "It takes
three months to die of starvation and this is a torture every bit as bad as
beating someone with barbed wire or hanging them from handcuffs." One
British Government source said: "The irony is that the food shortage is one
of the reasons the people in Zimbabwe might be impelled to rise up against
the government but we are morally obliged to provide food that removes that
impulsion and secures the Mugabe regime." The British government has
promised aid worth £32 million to Zimbabwe. A warehouse of supplies
organised by the Catholic Commission for Justice and Peace was blockaded for
three months by Zanu PF militants and an attempt to increase the flow of
humanitarian supplies by the World Food Programme (WFP) has also been
blocked. The WFP relies on recognised agencies to do the final distribution
on the ground and aid sources said the mere presence of a British charity,
Save the Children (UK), on a list of possible distributors is hindering
expansion. Aid groups are routinely criticised in the state-owned medi a in
Zimbabwe, accused of being tools of the "imperialist, colonialist West". The
situation is being worsened by logistical problems in neighbouring countries
such as South Africa, where management errors in the state-run railways mean
there is a drastic shortage of goods wagons to move grain. And in Mozambique
a malfunction in a bagging machine at the port of Beira means six ships
carrying grain remain in the approaches to the harbour, unable to offload
supplies for Zimbabwe.

 

In effect, the regime in Zimbabwe is doing just enough to help its own
supporters while blocking efforts to help the millions of needy people in
the country. So far, there have been only a handful of deaths connected to
food shortages. Without any basic food supplies, families have been forced
to live off what they can find in the bush and some children have died from
eating poisonous berries. By early November, however, before the next
planting season, aid experts predict widespread malnutrition in Zimbabwe
unless significant food supplies can be brought into the country. The WFP,
the world's largest humanitarian aid organisation, currently estimates six
million people in Zimbabwe out of a population of 13 million are suffering
from food shortages. There have been intermittent rains in the region this
year but observers believe most of the shortages have resulted from Mr
Mugabe's policy of land invasions, which have all but destroyed the
country's once thriving commercial farming sector. South of the Limpopo in
South Africa the same intermittent rains have not stopped farmers producing
a surplus of about 1.8 million tons of maize. For almost all of the 1990s,
Zimbabwe was a net exporter of maize and so good were its supplies that the
WFP had an office in Harare, not to distribute maize in Zimbabwe but to
procure Zimbabwean maize for distribution elsewhere. That situation now
seems a long way  away.

 

 

Mugabe's Megalomania

 

Just back from 6 days in a bush camp on the Deka River, I took time out to watch President Mugabe make his Hero's Day speech at the funeral of Bernard Chidzero.  It was a classic Mugabe performance - his English is superb and I doubt if 20 per cent of his domestic audience understood all the language spoken in English.  It was a speech aimed not at his Zanu PF supporters at the occasion but at an external audience - I suspect specifically his fellow leaders in Africa itself.

 

We had heard it all before but I thought several themes are worth noting: - a..  Targeted sanctions are hurting - no matter what he said in open defiance, he recognised that these sanctions, more than any other thing, marked him and his associates out as renegades and outcasts in the world community.  Mugabe has a big ego and this hurts him where it matters most, his personal pride and arrogance.
a..  He is under some pressure on the land question - while refusing to budge or make any significant concessions, he was still obliged to restate that "no farmer will be left without a farm" and those who "co-operated with the Party and obeyed government decisions, could stay".  With over 95 per cent of all white owned farmers now given marching orders and hundreds evicted by force, irrespective of whether they own only one farm or their properties are smaller than stipulated for maximum farm size, these words have no meaning on the ground.  But they were aimed at a hidden external audience in Africa who are anxious about what is happening and its implications for themselves and the continent.
a..  He firmly committed himself and his regime to continued defiance of the Courts and the decision not to respect the rule of law.  He language in the latter respect was quite specific and carefully crafted.  It confirms what we have all suspected for some time, we have a government that is now determined to operate outside the law.
a..  Any investor who had any doubts about the security of their investments or potential investments, have had their doubts removed - they have no security as long as we have a rogue administration in Harare.
His intemperate language did nothing to further his cause or solve his problems, but it certainly demeaned the position of the presidency in this country and highlights his growing megalomania.  I do not think that Mr Blair or any European or American would take any cognizance of what he said about them in his speech.  But it will hang over his head as a low point in his time as the leader of an African State.  Britain might have been the "colonial power" in our case, but so it was for half the world at one time or another.  No other former colony would stoop so low in a verbal attack on another soverign state, especially one who was in a position to be a valuable source of assistance and support in many material ways.
Especially when Britain is the largest single donor of food aid to Zimbabwe at this time of national crisis.

 

Altogether an immature, irresponsible speech which does nothing for him or his party, and more especially, the people of this country.  He said nothing new but did confirm his delinquency.

 

The question is, where to from here?  The economic situation is more than dire, we face widespread famine - wheat stocks run out this month further exacerbating the situation and inflows of basic foods are at levels which are not adequate to prevent starvation.  The effort by the Commonwealth Troika to get talks started between the MDC and Zanu PF are stone dead, our legal challenge goes ahead in six weeks time but before a panel of Judges whose credentials and impartiality is seriously flawed.  Domestic democratic options are also seriously compromised by an administration that simply manipulates the figures to secure the desired outcome - no matter what the people want.

 

If we go onto the streets we know what faces us - real guns with bullets, banning orders and imprisonment with no chance of any recourse.  We also know that the majority of African leaders will approve of such action by a "soverign State".  It is a minefield and we must walk carefully, with our eyes open and a good map.

 

Back to the Bush.

 

A small group of us took over a bush camp in the Hwange National Park for
5 nights.  It was a great break away and to be recommended to all of you who have the time and opportunity.  We drove up to Hwange from Bulawayo and spent one night at Sinamatella camp before going through to Bumbusi Camp.  This was
28 kms to the north on the Bumbusi River and located where three natural springs run throughout the year into the river.  Just 4 kms away is the Deka River, which ultimately runs into the Zambesi.

 

The weather was superb, clear cold nights, warm days, zero humidity and blue skies.  On our first night in camp we had lion on both sides of the camp at the springs - went out with our guide early the next morning and he took us straight to where he thought we might find them and sure enough we had a good sighting of a large female lion.  Elephant were in plentiful supply and at one stage we had a small herd in the camp itself in broad daylight.
Giraffe and plains game completed the picture.  There were buffalo in the area and at least 4 Rhino but we saw none during our walks across the veld.

 

Our guide was very good - from National Parks, he knew his birds (we counted
50 different species including several raptors and hooded vultures), had wonderful eyes and saw things we had missed all the time.  On our last day he spotted a pride of lion including a large male with a black mane.  We were able to get to within 20 meters of the two female lion, whilst the male stalked away.  We did a lot of walking with our guide and although we came into close contact with game, never had any doubt that the guide knew what he was doing.  On the Deka River we saw pools with many large crocodiles in them - so many in one instance that we wondered what they lived on.  There was plenty of water and the condition of the bush was very good - the colors with the gold and green of the Mopani and the different color rock formations provided a superb backdrop for our days.  We saw no other people for the whole period - no telephones no TV!  No Zanu PF - this is a strong MDC district.

 

National Parks were ear tagging and radio collaring Rhino and were using a helicopter and a fixed wing aircraft with ground teams to do this.  The area is designated an intensive conservation area for Rhino.  Although we never saw one, there was lots of active spoor.

 

The cost - total Parks charges came to less than Z$3000 per person or Z$500 a day - including the cost of the guide and all other fees.  The accommodation was spotless, the beds comfortable and we had our punctures fixed for free by the workshop at Sinamatella.  I think you can call that real value for money.  For those of you who work in US dollars, the official exchange rate is 55 to 1 and the street rate is 700 to 1.  Not a bad deal for US$4.30!

 

Eddie Cross Bulawayo, August 14th 2002.

 

Tuesday, 13 August, 2002, 14:57 GMT 15:57 UK Prince Charles' 'Zimbabwe appeal' Mugabe has ordered white farmers to leave their land Prince Charles has reportedly urged Prime Minister Tony Blair to do more to help British citizens fleeing Zimbabwe. News of the appeal comes as Robert Mugabe's critics warn his land reform programme threatens the lives of millions of Zimbabweans. What I think is needed is an African solution to this African problem Peter Hain Foreign Office Minister The prince is said to be worried that many families leaving the African country for the UK are being denied help and benefits. Foreign Office Minister Peter Hain said the government was giving the help it could but the focus needed to be on reversing the situation in Zimbabwe itself. The Daily Mail newspaper reports that Prince Charles has written privately to Mr Blair about his concern about red tape facing families arriving in the UK. Depending on charity St James' Palace said it could neither confirm nor deny that the letter existed and Downing Street says it will respond if a letter is received. Some Zimbabweans coming to the UK argue they have to rely on charity because of the lack of benefits available to them. Mr Hain said those fleeing persecution did receive support as they went through the normal asylum process. Prince Charles issaid to want more help for fleeing families British citizens leaving Zimbabwe were entitled to claim their rights in the same way as other UK residents, Mr Hain told BBC Radio 4's Today programme. "I don't think we should turn what is a failure of leadership in Zimbabwe into some kind of criticism of reception facilities," Mr Hain. The minister also pointed to the development and food aid the UK was giving to help people in Zimbabwe. Food politics That help was being channelled through non-governmental organisations rather than through the Zimbabwean government. Mr Hain pointed to evidence that Mr Mugabe's officials were using food as a "political weapon", providing it only to their supporters. Ancram says ministers are "shilly-shallying" "The whole situation is desperate, the country is being torn apart by state organised violence," said Mr Hain. The deadline has now passed for two-thirds of the country's remaining white farmers to leave their farms. Many of those families are reportedly refusing to move. Mr Hain said the UK had helped to get sanctions in place against Mr Mugabe and his top officials, as well as Zimbabwe's suspension from the Commonwealth. Earth Summit talks? "One of the problems with dictators like Mugabe is that they take no notice of international opinion," Mr Hain continued. The Conservatives have accused the government of failing to do enough to tackle Mr Mugabe, who they say should be "faced down" at this month's Earth Summit in Johannesburg. Mr Hain said the Tories, despite their criticisms, had offered no practical alternative policies. The prime minister would, however, discuss the situation with African leaders at the Earth Summit, he said. "What I think is needed is an African solution to this African problem," added Mr Hain, stressing that such an initiative would get UK support. Complacency? Those words failed to impress shadow foreign secretary Michael Ancram. Mr Ancram accused Mr Hain of "hang-wringing mixed with complacency and a total failure to face up to the situation". "Those threatened by Mugabe must be given proper reassurances that they will not be abandoned," he said. Liberal Democrat foreign affairs spokesman Menzies Campbell said the UK had a moral duty as the former colonial power to act humanely towards "Mugabe's victims". "The British Government should make it clear that it will deal sympathetically with anyone - irrespective of ethnic origin - who is forced out of Zimbabwe by the Mugabe regime," said Mr Campbell.