Nash and Anor v President of Zimbabwe and Anor (HC 160 of 2002) [2002] ZWBHC 160 (27 February 2002)
The acquisition orders were validly issued under the Land Acquisition Act, and the existence of a prior undertaking does not invalidate such orders. The applicants cannot escape the consequences of a section 8 acquisition order, and any remedy they seek does not lie in the present application.
Source-derived case information.
- Citation
- [2002] ZWBHC 160
- Parties
- Applicant: Peter Henry Maynard Nash; Applicant: John Christian Maynard Nash; Respondent: The President of Zimbabwe; Respondent: The Minister of Lands, Agriculture & Rural Resettlement
- Court
- Bulawayo High Court
- Jurisdiction
- Zimbabwe
- Case Number
- HC 160 of 2002
- Procedural Posture
- Urgent Chamber Application / Judgment
- Outcome
- Application dismissed with costs
- Legal Topics
- Land Acquisition, Statutory Interpretation, Breach of Undertaking
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Henry Maynard Nash
Applicant
John Christian Maynard Nash
Applicant
The President of Zimbabwe
Respondent
The Minister of Lands, Agriculture & Rural Resettlement
Respondent
Procedural Posture
Urgent Chamber Application / Judgment
Legal Issues
- 1 Whether the acquisition orders issued under section 8 of the Land Acquisition Act are unlawful due to a prior undertaking between the parties
- 2 Whether the respondents can exercise ownership rights over the applicants' farms despite the prior agreement
Ratio Decidendi
The acquisition orders were validly issued under the Land Acquisition Act, and the existence of a prior undertaking does not invalidate such orders. The applicants cannot escape the consequences of a section 8 acquisition order, and any remedy they seek does not lie in the present application.
Court Disposition
Application dismissed with costs
Orders
- Application dismissed with costs
Full Case Text
Judgment text and source record
1 paragraphs
Judgment No. HB 16/2002 Case No. HC 160/2002 CHIWESHE J: The applicants seek an order firstly calling upon (cid:10) (cid:10) (cid:10) (cid:10)PETER HENRY MAYNARD NASH (cid:10) (cid:10)and (cid:10) (cid:10)JOHN CHRISTIAN MAYNARD NASH (cid:10) (cid:10)versus (cid:10) (cid:10)THE PRESIDENT OF ZIMBABWE (cid:10) (cid:10)and (cid:10) (cid:10)THE MINISTER OF LANDS, AGRICULTURE (cid:10)& RURAL RESETTLEMENT (cid:10) (cid:10)HIGH COURT OF ZIMBABWE (cid:10)CHIWESHE J (cid:10)BULAWAYO 26 & 28 FEBRUARY 2002 (cid:10) (cid:10)D M Campbell for the applicants (cid:10)S Mazibisa for the respondents (cid:10) (cid:10)Urgent Chamber Application (cid:10) (cid:10) (cid:10) (cid:10)respondents to show cause why the Acquisition of Land Orders made by second (cid:10) (cid:10)respondent for and on the authority of the first respondent on 24 December 2001 (cid:10) (cid:10)under the provisions of section 8 of the Land Acquisition Act [Chapter 20:10] in (cid:10) (cid:10)respect of applicant’s farms, Swaart Spruit and the remaining extent of Mosenthal’s (cid:10) (cid:10)farm, should not be set aside and respondents should not be ordered to pay the costs of (cid:10) (cid:10)this application jointly and severally, the one paying the other to be absolved, and (cid:10) (cid:10)secondly, that pending the discharge of the “rule nisi” both respondents be interdicted (cid:10) (cid:10)from exercising any rights of ownership over the said farms including the right to (cid:10) (cid:10)enter thereon, survey, demarcate and allocate to others any portions thereof, and from (cid:10) (cid:10)evicting applicants or either of them from any part of the said farms. (cid:10) (cid:10) (cid:10) (cid:10) (cid:10) or The facts in this matter are common cause. Despite an earlier undertaking 16/02 -2- On the other hand whilst conceding the facts as alleged by the applicant, (cid:10) (cid:10)agreement reached between the two parties whose history is better documented in the (cid:10) (cid:10)Administrative Court, the respondents on 4 January 2002 and in breach of the said (cid:10) (cid:10)undertaking or agreement, caused, through second respondent, service upon applicants (cid:10) (cid:10)of Acquisition of Land Orders in terms of section 8 of the Land Acquisition Act (cid:10) (cid:10)[Chapter 20:10] in respect of Mosenthal’s farm and Swaart Spruit. Applicants aver (cid:10) (cid:10)that the issuance of these acquisition orders is unlawful unless respondents can (cid:10) (cid:10)establish grounds upon which they seek to repudiate the agreement reached between (cid:10) (cid:10)the two parties. (cid:10) (cid:10) (cid:10) (cid:10)respondents argue that their actions are perfectly in order. They acted in terms of an (cid:10) (cid:10)Act of Parliament whose provisions take precedence over any prior arrangement (cid:10) (cid:10)between the two parties. On the face of it the acquisition orders appear to have been (cid:10) (cid:10)issued in terms of the Act and relevant regulations. It has not been shown to the (cid:10) (cid:10)court’s satisfaction that prima facie these acquisition orders are defective. The court (cid:10) (cid:10)is not persuaded either, given the powers conferred upon the respondents by the Act (cid:10) (cid:10)that it was intended that where an acquisition order given in terns of section 8 appears (cid:10) (cid:10)to be in breach of an earlier undertaking, then that order is invalid purely by virtue of (cid:10) (cid:10)that apparent breach. (cid:10) (cid:10) respondent (cid:10) (cid:10)are valid. That being the case applicants cannot escape the natural consequences of (cid:10) (cid:10)a section 8 acquisition order, namely that respondents may exercise the rights of an (cid:10) (cid:10)owner in respect of the properties in question. (cid:10) Accordingly it is held that the acquisition orders issued by second If applicants have a remedy, it cannot lie in the order which they -3- 16/02 (cid:10) (cid:10) (cid:10) (cid:10) presently (cid:10) (cid:10)seek. (cid:10) (cid:10) (cid:10) (cid:10) (cid:10) (cid:10) (cid:10)Calderwood, Bryce Henrie & Partners applicants’ legal practitioners (cid:10)Cheda & Partners respondent’s legal practitioners (cid:10) (cid:10) Accordingly the application is dismissed with costs.