Ronald Chenjerai v Minister of Lands and Rural Resettlement and Zimbabwe Land Commission and Regis Giya

### Preamble
1
HH 761-18
HC 7853/17
REF CASE NO. HC 3220/17
REF CASE NO. HC 9760/17
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RONALD CHENJERAI

versus

MINISTER OF LANDS AND RURAL RESETTLEMENT

and

ZIMBABWE LAND COMMISSION

and

REGIS GIYA

HIGH COURT OF ZIMBABWE

CHIWESHE JP

HARARE, 16 March 2018, 16 October 2018 and 16 November 2018

Opposed Matter

Adv Uriri, for the applicant

L.T. Muradzikwa, for the 1st & 2nd Respondents

Z. Macharaga, for the 3rd Respondent

CHIWESHE JP:  This is an application for the review of the first respondent’s decision to withdraw an offer letter granted to the applicant for the occupation and use of certain agricultural land described as subdivision 3 of Umvukwe North situated in the Mazowe District of Mashonaland Province, measuring 246.01 hectares.  The decision to withdraw the offer letter was taken on 20 July 2017.

The grounds for review are:

That the first respondent acted unlawfully in withdrawing the offer letter in the face of a valid court order preventing him from doing so.

That the first respondent lacks the requisite authority at law to withdraw offer letters, and

That the first respondent gave glaringly false reasons for his decision to withdraw the offer letter.

The application for review is made in terms of s 4 of the Administrative Justice Act                 [Chapter 10:08].

The applicant’s founding affidavit is to the following effect.  In March 2012 he applied for land holding under the Land Reform and Resettlement Programme.  He was offered the above property through the medium of an offer letter dated 19 March 2012.  He duly accepted the offer.  In terms of the offer letter, the applicant was obliged to take up personal and permanent residence on the farm or appoint a manager who would personally and permanently take possession.  He was also obliged to initiate development on the farm in accordance with the five year plan he had submitted in support of his application for land and desist from ceding or assigning his rights without the prior written consent of the Minister.  He undertook to comply with all provisions of the Agricultural Land Resettlement Act [Chapter 20:01] pertaining to the lease of State land and with any laws requiring the grant of any servitudes over the Farm.

The applicant proceeded to appoint a farm manager who took up personal and permanent occupation as required.  He proceeded to purchase farming equipment.  He bought four tractors, water bowsers, a planter, discs and roam harrows and started his farming activities.

In March 2017 one Regis Giya approached the applicant’s farm manager advising him that he had been granted an offer letter to occupy the farm and that for that reason he was taking over the farm.  After enquiries with the first and second respondents, the applicant was served with a notice of intention to withdraw and the letter of withdrawal of the offer letter.  Both papers were served at the same time.  The applicant approached this court by way of a review application under case number HC 3220/17.    The application was granted unopposed.  Thereafter applicant was served with a fresh notice of intention to withdraw the offer letter.  Subsequently he was served with a letter of withdrawal.  The applicant avers that he became aware of the notice of withdrawal late and was unable to make representations within the time indicated.  He nonetheless addressed his concerns to the first respondent be it out of time.  He wrote two letters to the first respondent none of which received any response.

The applicant’s contention is three fold.  Firstly, he submits that the first respondent had no authority to withdraw the offer letter in the face of the judgment under HC 3220/17, which remained extant.  The order therein cannot be ignored by the issuance of another notice of withdrawal, argues the applicant.  Secondly, the applicant submits that the right to retake possession of the land vests in the President and not the first respondent.  The first respondent has therefore no authority to act in the manner he did.  Thirdly, the applicant submits that even if it were assumed that the first respondent was clothed with such powers, he was obliged to exercise the same within the four corners of the law.  The applicant further submits that s 68 of the Constitution requires the first respondent to act reasonably and fairly in the exercise of such powers.  Further that the reason given for the withdrawal of the offer letter was glaring false in violation of s 3 of the Administrative Justice Act [Chapter 10:28].  The applicant states that he had heavily invested in the land and that he would suffer considerable prejudice if he was removed from the farm without compensation.  The first respondent has not indicated his willingness to offer such compensation.

In his opposing affidavit the first respondent questions the authenticity of the pictures of equipment filed by the applicant in support of his contention that he bought the equipment for use at the farm.  This equipment, argues the first respondent, could be the property of persons other than the applicant and could be equipment in use at any other farm.  He further states that he had not filed opposing papers under HC 3220/17 as he had accepted that the withdrawal process at the time was fraught with procedural irregularities.   He had decided to restart the process and rectify this time around the procedural irregularities.  In particular, he wished to afford the applicant the opportunity to make representations within a given time.  The new notice of withdrawal was served on the applicant’s employee, Peter, on 23 June 2017.  Earlier attempts had been made to serve the same on his lawyers, without success.  The first respondent insists, correctly in my view, that he has authority to withdraw offer letters.  He states that he is charged with the administration of the Agricultural Land Settlement Act [Chapter 20:01] and the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].  He administers these Acts of Parliament on behalf of the President.  He submits that as the Acquiring Authority and Minister responsible for the administration of the relevant legislation he can withdraw an offer letter where there is breach or where he deems it necessary in terms of clause 7 of the offer letter.  What is required of him in that regard is that he exercises his discretion in a fair, lawful and reasonable manner and in accordance with the rules of natural justice.  The applicant concedes that s 7 (a) and 8 of the Agricultural Land Settlement Act empowers the first respondent to issue offer letters and leases.  It is trite that the power to do “something” includes the power to undo that “something”, unless there is express provision to the contrary.  In any event the offer letter itself gives the first respondent the right to withdraw it under certain terms and conditions.  The applicant signed up to those terms and conditions.

However, the first respondent has not addressed the other two grounds of review raised by the applicant.    Firstly, he has not addressed the contention by the applicant that his hands are tied by virtue of the default judgment granted under HC 3220/17 which has not been rescinded or set aside.  However contrary to the applicant’s assertion HC 3220/17 was concerned only with the procedural irregularities perpetrated by the first respondent.  It did not decide the substantive rights of the parties.  It did not preclude the first respondent from exercising the powers conferred upon him by statute.  Thus the first respondent was at liberty to issue fresh withdrawal papers as long as, in doing so, he followed the correct procedures in terms of the law.  This ground of review cannot be sustained.  A glaring omission is the failure to address the submission by the applicant that the reason given by the first respondent for withdrawing the offer letter is false or falsified.  The first respondent’s reason for the withdrawal of the offer letter is that the applicant had not taken occupation of the farm either himself nor appointed a manager to do so on his behalf.  I agree with the applicant that the stance taken by the first respondent is not supported by the facts on the ground.  Firstly, service of the notice of withdrawal of the offer letter was, by the first respondent’s own submission, effected at the farm through the applicant’s manager.  That fact on its own confirms the applicant’s occupation of the farm.  Secondly, under HC 3220/17 which has been incorporated into the present application by reference, the Land Commission confirmed the presence of the applicant at the farm and his effective occupation of the same.  This position has not been challenged by the first respondent.  Further this court dispatched a referee to conduct an inspection in loco at the farm, in the presence of the parties.  His report inter alia establishes without doubt that the applicant is in occupation carrying out some farming activities.  The first respondent is not in a position to challenge this fact either.

I conclude therefore that the first respondent’s reasons for withdrawing the applicant’s offer letter are palpably false.  The first respondent cannot escape the conclusion that he acted irrationally, in bad faith and contrary to the provisions of s 3 of the Administrative Justice Act [Chapter 10:28] which require that his decision be lawful, reasonable, fair and without bias.  For that reason, the application must succeed.

Accordingly, it is ordered as follows:

The decision of the first respondent to withdraw the offer of land made to the applicant dated 19 June 2017 be and is hereby set aside.

The first respondent to bear costs of suit.

Mberi Chimwamurombe legal Practice, applicant’s legal practitioners

Civil Division of the Attorney General’s Office, 1st and 2nd respondents’ legal practitioners

Mugiya & Macharaga Law Chambers, 3rd respondent’s legal practitioners