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Land Acquisition Amendment (No. 2) Act, 2002 - a review
September 19, 2002

The Land Acquisition Amendment (No. 2) Act, 2002 was passed by Parliament on Thursday 19th September, 2002. The Bill was published in the Government Gazette on Friday 13th September, 2002. Although parliamentary Standing Order No. 102 requires every Bill to be published at least 14 days before being introduced to the House, the House suspended standing orders and the Bill passed through all its stages, with certain amendments, on 19th September. It is anticipated that promulgation of the new Act into law will follow shortly.

Sections 5, 7 and 9 of the Land Acquisition Act have now been amended. The amendments:

• cover administrative shortcomings in relation to service of a ‘preliminary notice of acquisition’ under section 5 of the Land Acquisition Act;
• introduce a presumption that compulsory acquisition is intended for agricultural resettlement;
• increase penalties for non-vacation of the property.

Preliminary notice of acquisition
Section 5(1) of the principal Act requires the acquiring authority to publish a preliminary notice of acquisition in the Gazette and to serve the notice on the owner and on anyone with a financial interest in the land - such as banks holding a mortgage on the property - where their interest is registered at the Deeds Registry. This is to give them 30 days in which to lodge written objections with the acquiring authority - s. 5(1)(a)(iii).

In the recent case of Tengwe Estates Mr Justice Hungwe held, on 7th August, 2002, that failure to so serve a mortgage holder rendered both the preliminary (section 5) notice and the final (section 8) order null and void.

Section 2 of the new Act amends section 5 so that a preliminary notice may be served on such secondary parties at any time up to 30 days before the service of the final section 8 order.

The only material change to the Bill was to alter the proposed period of no notice for secondary parties to ‘not less than 30 days’. It is understood the amendment to the Bill was requested by the Parliamentary Legal Committee. This is not surprising since section 16(1)(b) of the Constitution requires "the acquiring authority to give reasonable notice of the intention to acquire the property … to any person owning the property or having any other interest or right therein that would be affected by such acquisition."

The Bill failed to take account of this Constitutional stipulation, as does amending Act 15 of 2000. Thus Act 15 of 2000 restricted service of notice only to those with registered interests, and repealed, apparently contrary to the Constitution, the previous requirement in section 5(1)(b)(ii) to serve notice on "any other person who it appears to the acquiring authority may suffer loss or deprivation of rights by such acquisition whose whereabouts are ascertainable after diligent inquiry". It is a moot point whether spouses, for example, who are not the registered owner should receive notice pursuant to the Constitution.

Presumption of agricultural resettlement
If written objections are received, section 7 of the Act obliges the acquiring authority to apply to the Administrative Court within 30 days of the issuing of a section 8 order for an order confirming the acquisition.

Section 3 of the new Act relieves the acquiring authority of the need to prove to the Administrative Court that the land is suitable for agricultural resettlement - as inferred by section 16 of the Constitution - by introducing a presumption into section 7 that it is so suitable on a written statement from the acquiring authority that the land has been used for agriculture at any time in the last 50 years and is to be acquired for agricultural resettlement.

Invalid section 8 orders
Section 9 of the principal Act - as amended by section 3 of Act No. 6 of 2002, dated 10th May, 2002 - gave the owner 90 days from service of a section 8 order in which to vacate the property.

If a section 8 order is or becomes invalid for any reason, such as the Tengwe case above, section 4 of the new Act amends section 9 to provide that:

• where the order is corrected within the original ninety days, the period is not extended, and
• where a corrected order is served after the expiry of the original ninety days, the period in which the owner must vacate is reduced to seven days.

Increased penalty for not vacating
Section 4 of the new Act also amends section 9 of the principal Act to provide for an increased penalty for failure to vacate the property within the stipulated time limit - up from $20,000 fine and/or two years’ imprisonment, to $100,000 and/or two years’ imprisonment. This is the third time that such penalties have been introduced or increased since 2000.

Ministers not constitutionally appointed
The amended section 9, relating to invalid section 8 orders, appears to cater for any finding by the Supreme Court that the Minister signing a (s. 5) preliminary notice of acquisition or section 8 order may not have been appointed constitutionally. In a recent case the High Court made an interim order (on 4th July, 2002) effectively suspending a section 8 order which was served on an owner on 8th May, 2002, until this issue has been decided.

The basis of this relief is that section 31E(1) of the Constitution states that any office of Minister "shall become vacant upon the assumption of office of a new President". The President’s new period of office commenced on 1st April, 2002, and he did not appoint his Ministers until some five months later, on 25th August, 2002. They became Ministers upon taking their oaths of office - section 31G(3) of the Constitution - on or about 26th August, 2002. This aspect of the case will therefore turn on the meaning of ‘new President’.

Also in the same case the applicant is submitting that the amending Act of 10th May 2002 was not lawfully enacted by Parliament, and further that it is conflict with various provisions of the Constitution. The matter is will not be heard in the near future but may be heard before the end of 2002.

The interim relief has apparently been successful to date in regard to non-interference by the authorities with the owner’s occupation and farming. Notwithstanding this the local uniformed authorities have elected to disregard the representations and documentation of neighbouring owners that they are in an identical position.

Back-dating
Save for the increased penal provisions in section 9, section 5 of the new Act back-dates all the amendments by two years and four months to 23rd May, 2000.

Annulled General Laws Amendment Act, 2002
The Land Acquisition Amendment Act, 2002, promulgated on 10th May 2002, substantially re-enacted the provisions of section 27 of the General Laws Amendment Act, 2002, which was passed by Parliament on 9th January, 2002, promulgated on 4th February, 2002, and annulled by the Supreme Court on 27th February, 2002.

The only material change was that in the annulled Act the owner had to cease farming immediately on receipt of a section 8 order, with 3 months to vacate living quarters, whereas the Land Acquisition Amendment Act, 2002, gave owners 45 days to cease farming and 90 days to vacate living quarters. Both introduced penal provisions in addition to the previous eviction provisions for failure to vacate.

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