DOUGLAS STUART TAYLOR-FREEME
(1) THE SENIOR MAGISTRATE, CHINHOYI
(2) THE ATTORNEY-GENERAL
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA & CHEDA AJA,
HARARE, JULY 07, 2011 & OCTOBER 8, 2014
A P de Bourbon SC, for the applicant
No appearance for the first respondent
T R Zvekare, for the second respondent
CHIDYAUSIKU CJ: This application is made in terms of s 24(1) of the former Constitution of Zimbabwe (hereinafter referred to as “the Constitution”), which provided:
“24 Enforcement of protective provisions
(1) If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress.”
The applicant alleges that his rights to protection of the law and a fair trial guaranteed under ss 18(1) and (2) of the Constitution were violated by the court a quo.
The facts of this case are that the applicant was charged with contravening s 3(2)(a), as read with ss 3(3) and 3(5), of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] (hereinafter referred to as “the Act”), “using, or occupying gazetted land without lawful authority”, in that on 4 February 2007 and at Romsey Farm (hereinafter referred to as “the farm”) Chinhoyi, he, without lawful authority to occupy, hold or use gazetted land, did not cease to occupy, hold or use that land after the expiry of the forty-five day period stipulated in s 3(2)(a) of the Act and has not ceased to occupy, hold or use that land to date.
The applicant pleaded not guilty to the charge. The applicant’s defence is set out in the Defence Outline, in particular paras 4-6, which read as follows:
“4. The accused does not own the farm and was not the former owner. The farm is occupied by an operating farming company.
5. The farm is not gazetted land. The listing of the farm for acquisition purposes has been declared to be unlawful by the Southern African Development Community Tribunal sitting at Windhoek, Namibia, and that ruling is binding on the Government of Zimbabwe and throughout Zimbabwe.
6. Since the accused does not occupy the land, there is no issue that he is under any legal obligation to cease occupation of the land.”
It was also the applicant’s defence that he had authority to occupy, hold or use the gazetted land from the late Vice President Msika and officials from the Ministry of Lands, Land Reform and Resettlement. As this is in contradiction to the stance that the applicant is not a former owner or occupier of the farm or gazetted land, I can only assume that this defence is in the alternative.