Facing the dangers of abuse of compulsory acquisition in Zambia
By Wazika Maseko
A highly perceptive colleague of mine once warned me about trusting wholly in the stated intentions of teenage children asking for spending money. He summed it up by saying, when a child asks you for money to buy a book, you can only confirm he or she spent the money as they stated when you actually see the book that has been bought.
“Proof of intention is in the final execution”, he said.
This statement of common sense, is very helpful in understanding what is at the core of the long-running court cases ignited by the compulsory acquisition of part of Farm 4300, known as Baobab Land, in Lusaka by the State, for a public purpose, but then the same land was given to private companies to transact on it for their own profit. There are still some very troubling aspects to this case.
Sadly, it has also caused the owner of the land, Jonathan Van Blerk, to bear an extremely heavy burden of costs in the last three decades he has pursued the case whose outcome will either fortify the legal protections of landowners against potential abuse of the power of the State to compulsorily acquire privately owned land to be utilised for “public purposes”, or will give open licence to State actors to abuse this power.
These costs have to be understood as the cost of standing up for principle. What he has sought is the courts’ determination of whether what the State did to him amounts to fraudulent misrepresentation, since the land is being utilised by private business entities for their own profit, instead of being used for the public purpose justification.
His determination to pursue the case is informed by the question the Supreme Court of Zambia asked, which that ” in a democratic country which places a premium on free entrerprise, and where the rule of law requires that government actions and decisions are taken transparently and in good faith, should the right to question executive action should be gagged.”
Obviously not. Therefore, Jonathan Van Blerk is well within his rights to ask the courts to make a categorical determination of the question of whether a party, in this case the State, can be allowed to mislead the court in application of legislation which gives it “such exceptionally grand powers, the exercise of which could have far-reaching, and in some cases non-remediable consequences for those whose lands are expropriated.”
Throughout this case, it has not been in dispute that when Van Blerk first challenged the compulsory acquisition of part of his land, the State submitted that the land was needed to be used for a public purpose. In its very well articulated Judgment of 17th May, 2021, the Supreme Court put it this way:
“It is common cause that the motivating purpose intimated for the compulsory acquisition of the land in question, and in keeping with the spirit of section 3 of the (Lands Acquisition) Act, 1970, was to use the land for a public purpose, namely, the construction by the 2nd respondent (Lusaka City Council), of a housing complex on part of the land to alleviate a housing shortage in the city of Lusaka, while part of the land was to be demarcated and allocated to public service workers who needed such residential plots.”
It was on the strength of this submission of public purpose that the initial High Court challenge by Van Blerk was dismissed by then High Court Judge Gregory Phiri, who “formed the view that the compulsory acquisition had been undertaken by the State for a legitimate purpose.” This view was upheld when the case first went to the Supreme Court.
However, contrary to the public purpose use justification submitted to the High Court, the 1st and 2nd respondents (Attorney General and LCC), instead created two independent plots on a portion of the same compulsorily acquired land, numbering them ‘B’ and ‘C’ subdivision of Farm 4300. ‘B’ was leased to a private entity Legacy Holdings Limited to construct a hotel and luxury gold course.
When Legacy abandoned its development, the same land was re-entered and given to another private entity, Bantu Capital Corporation, run by Mohamad Salama. In breach of its lease conditions, Bantu went ahead to make several subdivisions for sale and construction, subsequently selling a portion to Nyimba Investments. Using the rest of the land, Bantu took a mortgage on the security of the land left in its possession.
Subdivision ‘C’ was allocated to another private entity, Kwikbuild Construction limited owned by the Mahtani Group, who also went ahead to violate its lease agreement by subdividing the land into several plots for sale and construction.
By what stretch of imagination would the Attorney General want the public to believe these private entities were executing the public purpose stated as “LCC building a housing estate complex and demarcating residential plots for public service workers and other needy residents?”
It was this unfolding of events that alerted Van Blerk to the fact that whereas the State submitted to court that the land compulsorily acquired from him was to be used for a public purpose, its eventual use had changed. These events confirmed, in the words of the Supreme Court narration, ” that the land had been acquired for nondescript private purposes not contemplated in sections 3 and 5 of the Act”.
At this point, , like any reasonable person would, concluded that there must have been intentional pervasion of the truth regarding the real purpose for compulsory acquisition of part of his land. While ill-intention may not be fathomed at the instance of the compulsory acquisition, or during trial in the initial High Court challenge, the unfolding of events later proved so, and that the effect of this was to induce him, and the High Court, to believe this particular compulsory acquisition was properly “situated”, and it satisfied the spirit of section 3 of the Act.
If this was so, Van Blerk has argued consistently, then the judgment of the High Court dismissing his initial challenge was procured by fraudulent misrepresentation.
Using the wisdom of my very perceptive colleague, proof of the stated public purpose use of the land compulsorily acquired from Van Blerk should be found in the ultimate public service projects as submitted by the State.
Since section 4 of the Act envisages that the public purposes, that motivate the President to resolve that it is desirable or expedient in the interest of the Republic to acquire the property, must exist at the time such a resolve is formulated, and that it cannot be triggered by future purposes, is it too much to expect that such public purpose should also hold true at the time of final execution of the putative public purpose projects?
Secondly, what happens when such stated public purpose justification for compulsory acquisition submitted is later deviated from at final execution of priojects?
Who can answer these questions? The Supreme Court, since the High Court and the Court of Appeal have both failed to do so.
For at the heart of this three decades long litigation is the issue of whether compulsory acquisition of part of Farm 4300 “was done in transgression of the law, or for motives other than for public interest, public good and public benefit”.
But is there evidence to help address these two questions? Of course. The first are the certificates of title given to the private entities given compulsorily acquired land. The private companies have become the most blatant evidence that the LCC did not execute the public purpose projects submitted as justification for the action.
The protestations by the Attorney General’s chambers that although “private entity conduits” were used, the public purpose envisaged had not changed, was rubbished in the 17th May, 2021 Judgment. If the Attorney General seriously sought to use “private entity conduits” to achieve any public purpose, they would not have excluded the original owner of the land from the projects. The Attorney General has also not explained how companies owned by Mohamad Salama and Mahtani Group were “selected”.
Be that as it may, the most important clarification the Supreme Court can give in this case is concerns what concerns deviation from public purpose justification for compulsory acquisition. The law is never made for the obedient, but for the miscreants. The later must already have seen how State actors can get away with giving public purpose justification for compulsory acquisition, and then using legal technicalities to justify subtle deviations from stated public purpose. This is a route into total anarchy.
Although all the respondents in this case have made the most of claims that this case has been determined several times, and suggestions that Van Blerk is engaged in abuse of court process, two critical issues have remained unresolved.
Is fraudulent misrepresentation so only when it can be situated at the instance of compulsory acquisition when the public purpose justification is given, and during trial when the action is challenged, but is not so if it crystallizes at final execution of the stated public purpose when it is discovered the land is used for profit by private entities?
The answer to this question is of interest not just to Van Blerk, but to every Zambian citizens who owns property, including land, which may be subject of compulsory acquisition by the State, now and in future. Incidentally, in spite of this public interest element of Van Blerk’s pursuit, the courts have heaped exorbitant costs upon him, as if to discourage him from seeking justice, or holding the State accountable for the apparent abuse of the power of compulsory acquisition.
Second issue is, did the giving of compulsorily acquired parts of Farm 4300, Lusaka to private entities, for their own profit interests, amount to deviation from the public purpose justification submitted by the Attorney General during the intitial challenge by Van Blerk?
The answer to this is of interest to Van Blerk.
The rest of this case is also about the personal financial and emotional cost that Van Blerk has paid over the three decades during which he has pursued this case. The most ironic human interest aspect of this case is that over the years, through all the twists and turns, the private company beneficiaries allocated his compulsorily acquired land by the State have continued transacting, developing and earning money from it, and using it to fight him.
And, as the Supreme Court of Zambia observed in its Judgment of 17, May, 2021, none of the respondents (the private companies, and the National Pension Schemes Authority) can claim not to have known the land they were given was under litigation when they got it. The question is why did they go ahead? Leakage?
These few facts and observations show that there is great danger for both citizens and the State if compulsory acquisition powers are abused by State actors, or are not applied diligently to conform to provisions of the enabling Act, especially those which offer protection to property owners. The danger has manifested in the confusion, encumbrances and heavy financial costs to citizens.
Put simply, it is now up to the Supreme Court to restore the Zambian public’s goodwill expectations of the State exercising these exceptional powers in good faith. Hopefully, they will not disappoint.
