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Legal communiqué - Offer / allocation letters
David Drury
July 28, 2008

With the recent rash of offer/allocation letters arriving on farms in the hands of so-called beneficiaries as part of Operation Clean Sweep, JAG has recently sought a legal opinion re these letters. These letters have been illegally issued by the Minister of Agriculture who has no authority in this regard as an allocation board under the Land Acquisition Act should have been legally constituted to deal with not only allocation but vetting of beneficiaries and properties acquired. Very few properties have been legally acquired with the acquisition confirmed by a competent court. These letters are being issued with no regard to the due process of acquisition i.e. Section 5, 8 or 7 relating to the property in question at the time. In many cases these letters are being issued for properties under neither Section 5 notice nor Section 8 orders; also on properties down sized under the LA3 process; also on properties with High Court set asides or suspensions of Section 8 orders; or Admin Court withdrawals of such.

It is important that farmers faced with these offer/allocation letters are very conversant with the law and their legal rights that are being infringed, in order to effectively challenge these individuals from the outset.

It is with this in mind that JAG consulted with Dave Drury of Gollop and Blank and requested from him a legal opinion relating to these Offer/Allocation Letters. Herewith Dave's reply which is very comprehensive and revealing. Farmers faced with individuals brandishing these letters and demanding that the rightful legal owner should vacate his property forthwith should contact JAG or their legal representative as a matter of urgency. Those farmers who, in good faith signed LA3 forms that are yet to be formalised and have exceeded the 90 day period of their Section 8 orders are particularly vulnerable in that they are perceived as being outside the law and illegally in occupation of their properties.

Herewith with appreciation, Dave Drury's legal opinion:

Dear Sirs,

Re: Offer Letters

We refer to your telephone call to the writer and consequent attendance in conference concerning the suggested approach to be taken by owners and occupiers of land who are confronted by claimants asserting a right of ownership or occupation to the land by virtue of offer letters issued by the Minister of Lands, Agriculture and Rural Resettlement.

The Minister purports to offer land in terms of the Agricultural Land Settlement Act Chapter 20: 01. An examination of the Act will establish that the Minister does not have the authority to consider applications for land from applicants and to thereafter attend to the selection of the applicants and then make offers to them unilaterally.

It has been conceded in an affidavit by the Permanent Secretary concerning the matter of New Haven (Pvt) Ltd v Luke Chirasasa and The Minister of Lands, Agriculture and Rural Resettlement in Case No. HC 6629/03 which is pending a set down in the High Court that the Minister has not as yet appointed an Agricultural Land Settlement Board. I set out the legal argument challenging the validity of the offer letters with specific reference to Advocate A P De Bourbon SC's Heads of Argument filed of record in that case.

"The establishment of the Board is mandated by section 3 of the Act and is not a matter lying within the discretion of the Minister.

One of the obligations of the Board is to consider and report on all applications for leases of holdings in terms of the Act. See section 6L(a). The board must select and recommend applicants for leases of holdings in terms of the Act in terms of section 6L(b).

Section 9 prohibits the issue of a lease in respect of a holding of land referred to in the Act until the application has been referred to the Board for its consideration and report. The Board must then consider the matter set out in section 10. (In every case a lease is not in fact issued or drawn. The claimant simply moves onto the farm and commences to use the land for which no consideration is paid to the State. This is naturally inconsistent with sound fiscal principle and is not in accordance with national economic interests). The power of the Minister to issue a lease in terms of section 8 of the Act is made subject to the provisions of the Act. Therefore the Minister can only act as mandated by the Agricultural Land Settlement Act. He is prohibited from dealing with the matter mero moto and must wait for the Board to invite applications, consider them, select persons for leases, and make the report. None of this can happen when the Minister in breach of the law has failed to appoint the Board."

"The Minister claims an entitlement to lease land arising from the Land Acquisition Act. There is no provision in terms of the Land Acquisition Act which gives to the Minister the power to lease or otherwise deal with land that has been acquired in terms of that Act. The power of the Minister to acquire land in terms of that Act is dependent upon the acquisition procedure being done in terms of the law.

In failing to follow the procedures laid down in the Agricultural Land Settlement Act the offer letters are therefore incompetent, invalid and of no force or effect. The purported letters of offer and the acceptance by claimants in fact and law bring about no legal consequences because the law does not permit the Minister to make the offer, and therefore the claimant has nothing in law to accept".

An additional point which is not specifically raised by Senior Counsel in regard to the Minister's contention is that there is a specific law dealing with the consideration of land acquired by the State and concomitant consideration of applicants intending to hold the land. This is the Agricultural Land Settlement Act which is specific to the invitation of applications for land, the consideration of land, and the selection of persons for leases and the making of reports. The Land Acquisition Act makes no provision as to this process. Where there is a specific act dealing with such issues the legislature clearly intends that the provisions of the specific Act should be applied rather than any purported generalised authority to do so in some other Act. Accordingly, where the Land Acquisition Act on the face of it and in general terms would appear to provide the Minister with authority to allocate and demarcate land consequent to a valid acquisition of land such authority is subject to the specific provisions and guidelines set out in the Agricultural Land Settlement Act. This the Minister has not done.

In practice the Minister has in all cases dealt with offers of land unilaterally. In many cases the offer letters are issued and accepted prior to the publication of a Preliminary Notice let alone service of a valid acquisition order. It must follow that you cannot offer something which has not as yet been acquired. To do so is incompetent.

The advice given to clients by this firm faced with the summary arrival of a claimant to the land by virtue of an offer letter has been as follows:

a) a letter is drawn to the attention of the claimant pointing out that his offer letter is incompetent, invalid and of no force or effect. The claimant is advised that he has no right or permission to enter onto the land and assert any claim of ownership over it. The claimant is put on notice that his claim to the land is rejected on factual and legal grounds. He is advised that any attempt to assert rights over the land will be resisted with reference to law. To that end he is advised that the owner may seek to interdict him and/or that steps will be taken to ensure that he is ejected should he take forcible occupation. He is advised that any interruption of farming activities, threats and the like will be met with a formal report to the law enforcement agencies (the police). His actions will be considered as trespass. He is advised that any threatened conduct may give rise to criminal complaints which will be asserted if so required. Additionally, the owner or occupier will make it clear that any resultant damage occasioned by the claimant will be met by an action of specific damages against the claimant personally.

I have already handed up to you, with the consent of Mr Robert Milbank, a copy letter which preceded an application to the High Court to assert Mr Milbank's rights. Obviously each letter will be couched differently depending on the prevailing facts. That letter was copied to the local police station with the request that they take note of the stance of the owner. That letter called upon the police to ensure that law be enforced. They are requested to ensure that the owner and occupier are protected against any threatened unlawful occupation of their property and that their property and personal rights be protected in accordance with the common law and with regard to the Constitution.

To the extent that the request for assistance is ignored and the claimant persists with occupation, in that event the claimant is best advised to proceed to Court to obtain an urgent interdict against the invader and such other relief as may be appropriate in the circumstances.

We confirm that we have handed to you specimen Provisional Orders which have been obtained by our clients in this regard.

We must point out to you that in one case issue has been taken with joining the Minister of Home Affairs, the police and other law enforcement agencies as parties to the application. Government's claim as to mis-joinder was based on the argument that the law enforcement agencies are not an interested party to a civil dispute and that the directions sought were unnecessary. It was argued that if directions were given this would have the effect of deviating their responsibility away from their core area of investigation of criminal offences and the maintenance of law and order! I have asked for specific reasons concerning the ruling of misjoinder. Despite a considerable passage of time I continue to await such ruling which I will consider appealing against.

In that particular case I personally attended with clients on the police prior to launching the application calling upon them to ensure that no breach of the peace occurred. I was advised that they required specific directions from the High Court to act. This is why they were joined in the first place! This factual nicety seems to have been completely disregarded by the incumbent judge. All other judges who have granted me orders have not followed the approach of Mr Justice Bhunu as new appointment to the bench.

Should there be any further aspect that you consider has not been adequately explained or considered please advise and I will attempt to provide answers to you. I apologise for the delay in getting this advice to you but have as you well know been tied up with numerous urgent applications arising from the "Operation Clean Sweep" exercise.

We advise accordingly.

Yours faithfully,
David Drury
Gollop and Blank

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