John Mudzimiri and Catherine Nakai Mudzimiri vs Dzingirai Nevhunjere and The Minister of Lands & Rural Resettlement

### Preamble
1
HH 180-21
HC 2443/14
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JOHN MUDZIMIRI

and

CATHERINE NAKAI MUDZIMIRI

versus

DZINGIRAI NEVHUNJERE

and

THE MINISTER OF LANDS & RURAL RESETTLEMENT

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 25 September 2019 to 17 December 2020 & 21 April 2021

Civil trial

W. Chagwiza, for the plaintiffs

P. Ngarava, for the 1st defendant

TAGU J: The Plaintiffs who are husband and wife issued summons on 25 March 2014 against the first defendant claiming for an order that the first defendant and all those claiming occupation through him be evicted from Lot 11 of Danbury Park Estate within 48 hours of service of the order upon him. That the first defendant pays costs of suit. By order of this Honourable Court in HC 3127/18 dated 19 November 2018 the second defendant was joined as the 2nd Defendant and the summons were amended accordingly.

The facts of the matter as contained in the Plaintiffs’ Declaration and evidence are that on 7 March 2002 the first plaintiff was offered Subdivision 11 of Danbury Park in Mazoe District of Mashonaland Central province measuring approximately 38.0 hectares in extent in terms of the Agricultural Land Settlement Act [Chapter 20:01] by the then Hon. Dr. J.M. Made, the Minister of Lands, Agriculture and Rural Resettlement. On 22 April 2013 the Plaintiffs entered into a lease agreement with Hon Herbert Muchemwa Murerwa (now in his capacity as Minister of Lands and Rural Resettlement and on behalf of the Government of Zimbabwe) in which the latter leased Lot 11 of Danbury Park Estate measuring 31.8600 hectares in extent for a period of 99 years. Sometime between August and September 2012 the Defendant without prior warning or arrangement abruptly went and settled in a homestead which is situated within the land that the Plaintiffs have rights to by virtue of the aforementioned lease agreement. Despite repeated requests and demands, the defendant and all those claiming occupation through him refused to vacate the property.

The first defendant upon being served with the summons resisted the claim. In his plea the first defendant averred among other things that the Lease Agreement upon which the Plaintiffs are basing their claim for eviction is null and void ab initio for there is no offer letter of subject matter (land) upon which it is to operate nor an offer letter for the land 31.8600 hectares stated in Plaintiffs’ Annexure “C”.

At the Pre-Trial Conference hearing five issues for trial were agreed as follows-

Whether the Plaintiffs are entitled to an order for eviction against the first defendant?

Whether or not 1st Defendant occupies Plot 11 at Danbury Park Farm;

Whether or not the Plaintiffs have an offer letter from the State concerning 31.8600 hectares alluded to in the pleadings,

Whether or not first defendant is entitled to compensation for the infrastructure development (establishment of a Power Station/Electricity Equipment, inclusive the metre and the 100 KVA (Kilo volts) called Power Point 1 Mazoe)?

Whether or not Minister of Lands, Land Reform and Rural Resettlement should not be cited in the case where Plaintiffs seek to evict first defendant from State –Land and where Government documents are sought to be used during trial.

THE EVIDENCE

Three witnesses testified for the Plaintiffs while the first defendant alone gave evidence on his behalf. The first to testify for the plaintiffs was the first plaintiff himself, John Mudzimuri. His evidence can be summarized as follows:

He was offered Lot 11 of Danbury farm on 12 February 2002. That the first defendant Dzingirai Nevhunjere took occupation of one of the houses on what was previously regarded as “State Land” prior to the survey of the farm. The place where there were houses and other infrastructure was initially not allocated to anyone and remained state land. When the survey of the farm was later carried out, the house which the first defendant was in occupation of was made part of the Plaintiffs’ plot. He further stated that the first defendant’s mining claim is at Patterson farm and not Danbury and therefore, there is no co-relation between the house on Plot 11 Danbury farm and Defendant’s mining claim. He further denied the suggestion that the first defendant made infrastructural development on Plot 11 and therefore he was not going to compensate the Defendant anything. According to him the transformer supplying electricity to the house in dispute was acquired and installed by the former white farmer and not the first defendant. He said the first defendant was an illegal occupant of the house on his plot and that Ministry Officials advised him to evict the first defendant therefrom through the courts, hence this matter was instituted.

This witness was subjected to intense and very long cross-examination by the first defendant’s counsel Mr. P. Ngarava. He was asked why he mentioned in paragraph 4.1 of his declaration that he was offered the plot on 7 March 2002. He managed to reconcile the dates by saying 7 March 2002 is the date he signed the acceptance letter. He was further quizzed on why his offer letter mentioned that his farm size is 38.0 hectares yet his lease agreement said his plot was 31.8600 hectares. He explained that the initial 38.0 hectares mentioned in the offer letter was a mere estimate because the farm had not been surveyed. After the survey, adjustments were made and the actual size of the plot was found to be 31.8600 hectares as reflected on the lease agreement. He disputed the suggestion that the Ministry Officials should have withdrawn the initial offer letter first, then issue a new offer letter for 31.8600 hectares arguing that the initial offer letter and the lease agreement referred to the same piece of land.

The second witness to testify for the Plaintiffs was Mugove Gasa, the District Lands Officer for Concession under which Danbury Estate falls. His evidence was quite critical in that he works in the Ministry of Agriculture, Lands and Rural Resettlement which is the owner of the land in issue. His evidence was authoritative on the position of the Ministry. I will summarize his evidence as follows:

He said he and other Ministry Officials attended at Danbury farm sometime in December 2019 when they became aware that there was a dispute pending in the courts pitting the plaintiffs against the first defendant. They were aware that the dispute concerned a house. They then searched for the pegs in order to identify the location of the house. After that exercise they identified that the house in dispute is on the left side of co-ordinates 16a, 16b and 17a from the survey diagram which is on page 25 of the plaintiffs bundle of documents. He said put differently, the house is located to the left of the pegs marked C, D and E on the said survey diagram. The left side fell on Plot 11 which means the house in dispute is on the plaintiffs’ plot.

Asked to explain the disparity between the offer letter and the lease agreement this witness explained that the Ministry initially pegged the farm basing on estimates and approximate figures and issue out offer letters based on that. Later, they send the Surveyor General’s Officer to carry out actual survey for accurate diagrams which they keep at their office. Surveys are carried out in order to issue 99-year leases which are a more secure form of land tenure and require accurate measurements of the plots. This explained the disparity between the land size in the Plaintiffs’ offer letter and lease agreement. He emphasized that it is normal to have a variation between the initial estimate of the land size at offer letter stage and after actual survey is carried out at lease agreement stage.

During cross examination he stuck to his evidence and maintained that the first defendant was in the plaintiffs’ plot.

The last to testify for the plaintiffs was the second plaintiff herself, Catherine Nakai Mudzimiri. Her evidence was brief. It was to the effect she was the wife of the first plaintiff. That initially the offer letter for their Plot 11 Danbury was issued in the singular name of her husband. However, when they applied for a 99-year lease, the lease agreement was done in both their names as a married couple in line with government policy. That the first defendant is in their plot. She also under cross examination managed to explain the disparities in the sizes of the plots as did other witnesses. She therefore wants this court to assist them to evict the first defendant.

The first defendant gave evidence on his behalf. He explained how he was involved during the “jambanja” era as a war veteran. In respect of the issues before the court his evidence was that he was a lawful occupier of the house in issue because he was paying rentals for it to government. He said he had a mining claim called Junior 25 and that is where the homestead is.

Under cross examination it was demonstrated that in fact, the rentals that the first defendant was paying are in respect of his plot 8. The invoice which is on p 34 Annexure ‘C’ of his bundle of documents clearly shows that the statement is addressed to 1st Defendant at his plot 8 address and the size of his farm (39.78 hectares) is written on the invoice. Further, under cross examination it was demonstrated that the mining claim is on Patterson Farm and not Danbury farm. The Certificate of registration for the mining claim clearly states that “Junior 25 the situation of which indicated to be on Patterson Farm….”

THE LAW

It is trite that an offer letter and or a 99-year lease constitutes a contract between the State and the recipient. See Chaeruka v Minister of Lands & Another 2014 (1) ZLP 280 (H). It is also settled law in our jurisdiction that holders of offer letters, permits or leases have the legal right to occupy and use the land allocated to them in terms thereof. This was made clear in the landmark case of Commercial Farmers Union & Ors v Minister of Lands & Ors 2010 (2) ZLR 576 (S). On the legal effect of an offer letter, the Supreme Court in the case of Commercial Farmers Union & Ors supra at p 592F-G made the following crucial pronouncement.

“An offer letter issued in terms of the Act is a clear expression by the acquiring authority of the decision as to who should possess or occupy its land and exercise the rights of possession or occupation on it. The holders of offer letters, permits or land settlement leases have the right of occupation and should be assisted by the courts, the police and other public officials to assert their rights to their piece of land.”

In this case we are dealing with a house on the piece of land. “Land” is defined in s 72 of the Constitution of Zimbabwe Amendment (No. 20) as including “…anything permanently attached to or growing on land”. In this light it follows that the house in question is part of the land since it is permanently attached to it.

Therefore, this court has to decide who between the parties has the right to occupy this house. If it is the plaintiffs, then this court is being asked to assist them to evict the first defendant. If it is the first defendant, then this court must assist him to remain in the house by dismissing the claim.

ANALYSIS OF EVIDENCE

The following are common cause or uncontentious facts from the evidence that was led by the plaintiffs and the first defendant. The plaintiffs and the first defendant are all beneficiaries of the Government’s land reform programme and they are settled at Danbury Park Estate. The Plaintiffs were allocated Lot 11 Danbury Park Estate. The first defendant was allocated Lot 8 Danbury Park Estate. The piece of land where the house in question is located was left vacant as State Land. The plaintiffs initially had an offer letter for Lot 11 dated 12 February 2002 and its acceptance form is dated 7 March 2002. The offer letter was issued after pegging was done by the Ministry of Lands and Rural Resettlement. The plaintiffs therefore have locus standi to bring this claim.

It is not in dispute that the first defendant then moved in and occupied the house that was on the State land before the land was surveyed. The Ministry of Lands and Rural Resettlement then signed a lease agreement with the plaintiffs on 22 April 2013 in respect of Lot 11 after a survey was done by the Surveyor General. The survey then puts the piece of land where the house is located into the plaintiffs’ piece of land as clearly shown on the survey diagram filed of record. It is also now not in dispute that the 1st Defendant has a Gold Mining Claim duly registered with the Ministry of Mines called “Junior 25” located at Patterson Farm according to the Certificate of registration filed in the 1st Defendant’s bundle of documents.

In his closing submissions the first defendant’s counsel alleges that this is a farmer-miner dispute and the first defendant being the miner, has the right to carry out his mining operations without any interference. With the greatest of respect, I do not agree with this suggestion. The dispute is over the house occupied by the first defendant and not the area the first defendant is mining from. The house falls under Danbury Farm while the first defendant is mining at Patterson Farm.

Having said the above, I am convinced that the Plaintiffs are entitled to an order for eviction against the first defendant. Evidence showed that the first defendant is occupying Plot 11 instead of Plot 8 Danbury Park Farm. The procedure is that once an offer letter has been given, and when a 99- year lease follows the survey of the same piece of land, there is no need for a new offer letter to be given, hence the Plaintiffs do not need an offer letter for 31.8600 hectares. The infrastructure claimed by the first defendant was installed by the former farmer hence the first defendant is not entitled to any compensation. As I said at the beginning the Minister of Lands, Land Reform and Rural Resettlement was joined by an order of this Honourable Court and an official from that office cleared the main issue in respect of who owns the house in question.

COSTS

It is clear that from the outset, the 1st Defendant had no defence to the claim by the Plaintiffs. He entered an appearance to defend merely to delay the Plaintiffs from occupying their house. Entering an appearance to defend for dilatory purposes is usually visited with an order of costs on a higher scale. See Gondwe v Bangajena 1988 (1) ZLR 1 (H).

In this case the first defendant filed a plea which was replete with irrelevant averments which he knew would not avail a sustainable defence to the claim such as his war veteran status. He even quoted his War Veteran number in his plea as if it was of any relevance to a claim for eviction. It is trite that where a party persist with litigation with the assistance of a senior lawyer, basing their case/defence on grounds that are not recognizable principles of law, as did the 1st Defendant herein, he may be punished through an order of costs on the higher scale. See the case of Katsande v Wethunger Hilfe & Anor 2013 (2) ZLR 596 (H).

This matter dragged on for several years mainly due to the dilatory tactics of the first defendant. When the trial was scheduled to start on or about 25 September 2019, the first defendant sought to delay the trial by indicating that he intended to file some preliminary objections. He then filed the preliminary objections on 2 October 2019 through a document entitled “Preliminary Points in limine”. The plaintiffs had to oppose those preliminary objections and this Honourable Court through its judgment number HH 734/19 dismissed the preliminary objections and ordered that costs be in the cause. Clearly, the so called preliminary objections were being raised to cause delay to the finalization of the matter.

When the trial finally commenced, it suffered numerous postponements along the way all at the instance of the first defendant. With respect, it does not require rocket science to discern that all these delays caused by the first defendant were calculated to delay and frustrate the plaintiffs from occupying their house. Such conduct deserves censure by the Honourable Court and an order of costs on the legal practitioner and client scale is appropriate in this case.

IT IS ORDERED THAT

The 1st defendant and all those claiming occupation through him be and are hereby to be evicted from Lot 11 of Danbury Park Estate within 48 hours of the service of the order upon them.

1st defendant to pay Costs of suit on a legal practitioner and client scale.

J Mambara & Partners, plaintiffs’ legal practitioners

Ngarava Moyo & Chikono, 1st defendant’s legal practitioners