Justice for Agriculture (JAG) Zimbabwe

December 12, 2002

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It seems there is still some confusion over the Land Acquisition Act and the recent amendment to said Act. In the interests of simplicity, we have prepared a question and answer explanation of the Act and its ramifications.

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In the legal revolution you must keep ahead of the game. Some common questions and answers regarding the Land Acquisition Act which now AFFECTS MANY URBAN DWELLERS TOO:

 

Q1. What is a Section 5 Notice?

A1. A Section 5 Notice is a preliminary notice of acquisition, which must be "gazetted" and put in an official newspaper twice in consecutive weeks. You should also receive Section 5 Notice papers delivered within thirty days of the gazetting which you should sign a Certificate of Service for. The Section 5 Notice is valid for two years from date of gazetting.

 

Q2. Who is eligible for a Section 5 Notice?

 

A2. The October 2002 amendment (No2) to the act allows any title deed in excess of two hectares, which has been under agricultural use any time in the preceding fifty years to be acquired for the resettlement programme. This includes LARGE PARTS OF HARARE,

 

BULAWAYO AND OTHER CENTRES.

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Q3. What do I do after receiving a Section 5 Notice?

 

A3. You have thirty days from the gazetting to lodge a letter of objection with the Ministry of Agriculture if you do not wish to have your property acquired. JAG can advise you on these letters if you decide not to see a lawyer.

 

Q4. What is a Section 8 Order?

 

A4. A Section 8 is a compulsory acquisition order. It is a very unassuming piece of paper without letterhead or a stamp and is signed by the acquiring authority. In the act it gives the owner 45 days to stop all activities and a further 45 days to move out of his home from the date of service. Anyone with a Section 5 can receive a section 8 order 30 days after the Section 5 Notice is gazetted.

 

Q5. What do I do if I get a Section 8 Order?

 

A5. It needs to be invalidated. There are various procedural grounds that can be used in the majority (80-90%) of cases e.g.:

• The bondholders not being served with the Section 5 or Section 8.
  (Tengwe Estates precedent).

• The acquiring authority not registering the Section 8 with the Administrative Court in the stipulated thirty days (Simon & Simon precedent) and serving a Section 7 Order within a reasonable time period
  (14 days).

• The Section 5 being invalid after having been in effect for more than 2 years.

• If you do not have procedural issues as outlined above, you need to challenge the constitutionality of the Section 8. Whatever the case you need to see a lawyer. The precedents have been set so the expense should not be too worrying a factor.

 

Q6. What do I do if I have already invalidated my Section 8 and I get a new one?

 

A6. Under the latest No 2 amendment (October 2002) you now have seven days to get off your property. However, in a recent Harare High Court case Z.R.P were specifically interdicted from evicting any farmer till the administrative court had determined the individual case regarding a specific farm. If the Z.R.P do not have a lawful court order to evict you, they CAN NOT LEGALLY DO SO. We advise you where possible to further challenge the 7 day Section 8 Order. Previous flaws in the process might allow for this. Obviously this should be done with extreme haste and farmers need to strategise a legal challenge ahead of issuance of a 7 day Section 8 Order.

 

Q7. What is a Section 7 Order?

 

A7. These are your court papers that need to be registered at the Admin Court within 30 working days and served on you within a reasonable time period (14 days) of your section 8 being served on you. If they have not been served within say 45 days, get a lawyer involved to invalidate the process. If you are served with Section 7 papers get them in to a lawyer immediately as you have to oppose them within fourteen days, although your day in court may be a year or two away.

 

Q8. When you have "your day" in the Administrative Court what are the chances of success?

 

A8. The state has only ever won two cases both of which have gone for appeal to the Supreme Court. The state has to prove necessity of acquisition, which is becoming more and more difficult in the light of impending famine, economic collapse etc, also the suitability for resettlement although under Amendment No 2 and land that has been under agricultural use in the preceding 50 years is now deemed suitable.

 

Q9. What is the Quinnel Case?

 

A9. This is a constitutional case regarding the validity of the acquisition process in terms of our constitution. There are 8 constitutional points that have been raised. It should be heard early in 2003 in the Supreme Court. We need only win one of the points to win the case outright.

 

Q10. Why should I bother with all this if my property is just going to be acquired unlawfully as has happened in the past?

 

A10. If you do not protect yourself and your property with the law you could end up either being imprisoned or having your property acquired in a legal manner by default. If you lose by default your future claims for restitution or compensation will be difficult to substantiate especially as it can be construed in law that by your silence or doing nothing you have acquiesced to your losses.

 

Q11. What about filling in LA3 forms and the like?

 

A11. By filling in these forms you are foregoing your legal right to object to the acquisition. This could put you in a very compromised position when it comes to restitution or compensation, as your ownership of your title deeds starts to become questionable. If you have already filled in an LA3 form do NOT make further agreements. Protect your title. Do not think you can win any agreement on the grounds of duress. If you have time to see a lawyer it cannot be considered a duress case. Duress in law requires immediacy.

 

Q12. Can the State just list me again if I get my Section 5 and 8 invalidated?

 

A12. If your section 5 and section 8 is invalidated it is illegal for the State to list you again for a period of 12 months. This ensures that your title is protected and gives you time to sort the situation out on the ground.