BY HARRIET CHIKANDIWA MORE than 12 000 villagers in Chilonga, Chiredzi, face eviction after the High Court yesterday dismissed their application challenging government plans to evict them and pave way for an irrigation project.
The application was dismissed by High Court judge Justice Joseph Mafusire without costs.
The villagers, through their lawyer Tendai Biti, had approached the High Court seeking an order to set aside sections 4 and 6(1)(b) of the Communal Lands Act, which designates areas as communal land, arguing that the two sections were unconstitutional.
Biti said the villagers argued that the Communal Lands Act was a racist, colonial creature which regarded Africans as uncivilised.
In the application, Biti cited Lands minister Anxious Masuka, Local Government minister July Moyo, President Emmerson Mnangagwa and Attorney-General Prince Machaya as respondents.
But in his judgment, Justice Mafusire said he was not convinced that the impugned sections of the Communal Lands Act were ultra vires the Constitution.
“The Executive and the Legislature are better placed than the courts to consider on the basis of the material, information, the resources and so on, available to them in spite of the regrettable origins of the Communal Land Act, it is time that private ownership of communal territories is recognised so that individual title deeds can now be granted to the occupiers of such territories. It is not for the courts to decide or to provide a solution under the guise of constitutionalism. It is a political question,” Mafusire said.
“This application cannot succeed. However, I disagree with the respondent’s contention that it was frivolous and vexatious. It was not. It was public interest litigation. Therefore, on dismissing this application, it is not fair that each party bears their own costs. The application is thereby dismissed, but with no order as to costs,” part of the judgment read.
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Initial reports were that the villagers were set to be evicted to pave way for a Dendairy lucerne grass farming project after government gazetted Statutory Instrument (SI) 50.
But on Tuesday, March 9, 2021, government gazetted SI 63A, which corrected SI 50 and changed it to “establishment of an irrigation scheme”.
On March 5, 2021, the magistrate’s court granted an interdict, after civic society organisations assisted Chilonga villagers, and they were granted a court order temporarily stopping the evictions pursuant to SI 50.
On Tuesday, March 16, 2021, SI 72A was gazetted to tidy up the legal mess created by SI 50, which it repealed.
SI 72A also sets aside communal land for an irrigation scheme in terms of section 10 of the Communal Lands Act, but in a volte-face, the government agreed to compensate the villagers through that SI which made provision for compensation.
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