Samuel Tendai Muvuti and Joylin Muvuti and Holmehead Farm v Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement and John Basera

### Preamble
1
HH 523-23
HC 3175/21
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SAMUEL TENDAI MUVUTI

and

JOYLIN MUVUTI

and

HOLMEHEAD FARM

versus

MINISTER OF LANDS, AGRICULTURE, FISHERIES, WATER AND RURAL RESETTLEMENT

and

JOHN BASERA

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE, 14 July 2022 & 22 September 2023

Opposed Application- Review

B  Pabwe, for the applicants

T S Musangwa, for the 1st respondent

T S T Dzvetero, for the 2nd respondent

MUSITHU J:

The applicants approached this court for a review of the decision of the first respondent to cancel their lease agreement which was issued under the land reform and resettlement programme. The relief sought is set out in the draft order as follows:

“IT IS HEREBY ORDERED;

That Respondent’s act of withdrawing 1st and 2nd Applicants offer letter be and is hereby set aside.

That Respondent’s withdrawal of 1st and 2nd Applicants’ offer letter be and is hereby declared to be in violation of the Administrative Justice Act s. 3(1)(a).

That the cancellation of 1st and 2nd Applicants’ offer letter is set aside and the offer letter is confirmed.

That Respondent pays costs on attorney and client scale.”

The application was opposed by both first and second respondents.

Background to the application and the applicants’ case

The first and second applicants are husband and wife. The third applicant appears to be the name by which the farm that was allocated to the first and second applicants is known. The third applicant is described in the founding affidavit as an agricultural based business which is into commercial farming of soya beans, maize and wheat on less than 400 hectares of arable land. The founding affidavit was deposed to by the first applicant. He claims to be a director of the third applicant, and therefore authorized to depose to the founding affidavit on its behalf as well. The second applicant deposed to a supporting affidavit. The first respondent is the Minister in charge of land reform and resettlement. The second respondent is a beneficiary of the land reform and resettlement programme. He was offered a part of the farm in dispute following its downsizing by the first respondent.

The first and second applicants claim to have been carrying out farming operations at the farm from the time it was allocated to them in 2004. On 12 October 2020, the first applicant received a letter from the first respondent advising him of his intention to withdraw the offer of land made to the applicants in respect of the farm known as Holme Head (the farm). The farm is located in the Mazowe District of Mashonaland Central Province and is 809.36 hectares (ha) in extent. The reason given for the withdrawal of the offer was to downsize the farm so that it conforms to maximum farm sizes. The letter invited the applicant to make representations on the matter within seven days of receiving the notification, if he had any.

The first applicant made representations to the first respondent by way of a letter of 28 October 2020. In the letter he highlighted that the whole farm did not comprise of arable land. More than 400 ha comprised of sand and loamy soils that were not ideal for meaningful crop production. Part of the farm was also characterized by mountains, hills, wetlands and seasonal streams which were also not ideal for farming. If the farm was to be downsized, then that would significantly reduce crop yields as well as affect viability to continue with farm operations.

On 11 January 2021, the first respondent wrote another letter to the first and second applicants in which he notified them of the cancellation of their 99 year lease agreement MA1126/2008 in terms of clause 22.1 of that lease. The reason given for the cancellation was that the farm was being underutilized. The applicants were given three months’ notice to conclude farming operations. The period was also intended to enable the applicants to make representations to the first respondent’s office.  The applicants contend that the allegation of underutilization was not particularized in the letter.

The applicants responded to the first respondent’s letter through their own letter of 1 February 2021. In the letter they sought clarification from the first respondent regarding the basis for the cancellation of their lease agreement. This was in light of the conflicting reasons given for the termination of the lease by the first respondent. The first letter had stated the need to downsize the farm as the reason for the withdrawal of the lease agreement. The second letter had given underutilization of the farm as the reason for the termination of the lease agreement.

In their letter, the applicants further argued that the farm was one of the most productive farms in the Mvurwi area. They had even partnered Agribank Mvurwi in the harvest of their wheat crop. They were also part of the few farmers that were producing premium quality wheat (A grade). They had also produced a high tonnage of maize in the 2020 agricultural year. They had also managed to pay 90% of their Command Agriculture debt with CBZ Agro Yields in the sum of six million dollars. For the 2020/21 summer they had put 120 hectares under commercial maize and 40 hectares under soya beans. The applicants also submitted that they had done massive infrastructure upgrade on the farm over the years they had been in occupation. In addition, the land under pivot irrigation had been increased from 60 to 180 hectares over time.

In his reply dated 20 April 2021, the first respondent acknowledged the applicants’ representations in their aforementioned letters, but argued that their submissions did not outweigh the reason for the downsizing of the farm to ensure maximum utilization from the current 200 hectares to a potential of at least 500 hectares. The first respondent concluded the letter by stating that “I am proceeding to cancel the lease agreement, MA 1126/2008, and downsize the farm. You remain with 415 hectares and new tenure documents will be issued to you.”

The applicants contend that the first respondent’s decision to terminate the lease agreement is grossly unreasonable and irrational as it was premised on wrong information regarding the full extent of the farm regard being had to its arability. They further submit that the first respondent’s notice of termination of their lease agreement was irrational as it violated the s 3(1)(c) of the Administrative Justice Act (the AJA). It was further argued that the first respondent’s conduct was clearly irrational, grossly unreasonable and an act of bad faith as contemplated by s 5(f) of the said Act. The first respondent’s conduct also constituted an abuse of power as contemplated by s 5(i) of the same Act.

The First Respondent’s Case

The first respondent admitted having written another letter which justified the cancellation of the lease agreement based on the applicants’ failure to fully utilize the farm. The applicants would be offered a portion of the farm that they could fully utilize. That portion of the farm also comprised of infrastructure that the applicants had been utilizing over the years. The first respondent averred that the applicants had admitted that they were only utilizing 180 hectares of the farmland hence the decision to terminate the lease. He further averred that the mere fact that part of the farmland comprised soils that were not suitable for crop production was not a justification for not fully utilizing that area. Agricultural activities were not just confined to cropping activities. Such land could still be utilized for livestock production.

The first respondent further averred that the applicants had failed to prove that they were utilizing the 804 hectares of land. Their representations showed that they were utilizing a small portion of the land, which pointed to underutilization. He argued that there was nothing irregular about his decision. There had been a clear communication of his intention to downsize the farm. The administrative processes were undertaken in terms of the law. It was also argued that the order sought by the applicants was incompetent as it sought to stop the respondent from performing his administrative functions.

The Second Respondent’s Case

The opposing affidavit raised the following preliminary points: absence of legal personality on the part of the third applicant; citation of the wrong Minister and wrong basis of application. I shall relate to these later in the judgment.

On the merits it was argued that the cancellation of the lease agreement was lawful in terms of clause 22 of same agreement. The previous notices given by the first respondent were irrelevant as an administrative authority was permitted to correct an earlier irregularity. It was also averred that the cancellation of the lease agreement was lawful because the applicants were given the requisite notices, which invited them to make written representations. The representations had been duly considered by the first respondent as was clear from his letter of 20 April 2021. The applicants were also not left empty handed. They were assured of a new lease hold for 415ha which exceeded the hectarage that they admitted to be utilizing.

The second respondent further averred that there was nothing irrational and unreasonable in the first respondent’s decision since he followed due process. The second respondent had since been offered part of the land by the first respondent in a bid to ensure maximum utilization of the farm. The second respondent had since been issued with an offer letter by the second respondent. The offer letter was valid and extant. He had already invested towards his farming activities on that piece of land. If the relief sought by the applicants were to be granted, he would suffer irreparable harm. The balance of convenience favoured that the relief sought be refused. This was because the relief sought had been overtaken by events and was impracticable. The land offered to him was not being utilized.

The second respondent also argued that it was unreasonable for one family to lay claim to land in excess of 809,3568hectares all to themselves.  It was more unreasonable for that family to be utilizing less than 200 hectares of that land, and then be objecting to the downsizing of the land to ensure full utilization of same. A complaint was also made against the applicants by a third party who claimed to have entered into some cropping agreement with the first applicant to utilize part of the farm. The complaint was made through a letter from an entity called New African Agri, represented by its Managing Director, one Vimbai Shayanewako (the complainant). The complainant, claimed to have planted 30 hectares of soya beans and 120 hectares of commercial maize. The first applicant allegedly refused to sign a written contract with the complainant on the basis that he wanted the third party to prove its capability in the first year and then negotiate a more binding contract the following year.

When the complainant arrived at the farm, it found the applicants struggling to commence land preparations. Only 28 hectares had been prepared. There was an outstanding bill of US$2, 400.00 owed to two owners of tractors that were stationed at the farm. The third party settled that bill on behalf of the applicants. The parties agreed that the third party would utilize the inputs that the first applicant had accessed under the command input scheme for the maize crop. The arrangement was that the third party would then ensure that the inputs are paid for into the first applicant’s Grain Marketing Board account come harvest time. It was also agreed that the applicant would be paid 10% of the gross yield, while the third party received whatever was left.

The complainant claimed to have dispatched a combine harvester to harvest the soya beans crop. When the harvest was completed, the first applicant refused to have the yield leave the farm asserting that he wanted to carry out a verification of his own expenses so that he does not lose out. The first applicant is however alleged to have sold all the harvested soya beans crop without the third party’s knowledge and pocketed the proceeds. He was also in the process of securing a combine harvester to harvest the maize crop. He was no longer cooperating with the third party who was now under pressure from their creditors. The third party was therefore seeking the Minister’s intervention to resolve this impasse.

It was on the basis of the foregoing that the second respondent asserted that the first respondent’s decision was beyond reproach. No law had been violated. Reasons for the termination of the applicants’ lease agreement had been given and representations made. The mere fact that wrong reasons for the administrative action taken by the first respondent may have been given, did not invalidate the cancellation of the lease agreement.

The Applicants’ Reply

In their reply to the first respondent’s opposition, the applicants denied underutilizing the portion of the land that was arable. The applicants were practicing land rotation meaning that all the land would not be fully utilized at any given time. The soil had to be allowed to self-replenish on its own without any crop or activity taking place. The reference to the utilization of 180hectares was therefore limited to a particular period. In the comfort of the 99 year lease, the applicants were increasing their land under irrigation from 60heactares to 200heactares as centre pivot land. This had not been taken into account.

The applicants also averred that the manner in which the first respondent had set out to implement his decision was rather haphazard and uncoordinated. Indications were that even part of the arable land which the applicants were fully utilizing would be withdrawn. Further, the 99 year lease issued by the first respondent was in respect of both first and second applicants and not one person. The reference to one person as having been offered the entire farm was therefore misleading.

The applicants argued that the first respondent had not particularized the manner in which the farm was being underutilized. A mere statement was not sufficient for purposes of satisfying the threshold set by the AJA. Any decision affecting the rights of an interested party had to be preceded by reasons. The applicants further averred that the main reason for the unprocedural cancellation was because the second respondent, who happens to be the Permanent Secretary in the first respondent’s Ministry had been offered part of the farm.

The applicants responded to the second respondent’s notice of opposition as follows. They insisted that the cancellation of the lease was marred with confusion and bias by virtue of the of the second respondent’s interest in the land. This was demonstrably a case of abuse of office by both respondents. The second respondent was offered a piece of land which was under winter wheat crop and not part of the land which was unused.

The alleged offer letter issued to the second respondent was unlawfully issued. This was because the second respondent was the accounting officer in the first respondent’s ministry. The second respondent wielded immense powers which included the allocation of land to beneficiaries. He therefore allocated himself the land and had the first respondent rubberstamp his decision.

The applicants dismissed the alleged complaint by the third party complainant as a mere fabrication of the second respondent. They denied ever entering into a joint venture with the alleged complainant.

The Submissions

At the commencement of the oral submissions, Mr Pabwe for the applicants applied for the removal of the third applicant from the proceedings having conceded that the party was improperly cited. On his party, Mr Dzvetero indicated that the preliminary points raised on behalf of the second respondent were all being abandoned. The third applicant was therefore removed from the proceedings. Any reference to the applicants shall mean the first and second applicants. The title of the first respondent was amended by consent to read “Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement”.

In his oral submissions, Mr Pabwe maintained the applicants’ position as set out in the applicants’ papers. He submitted that the alleged termination of the applicants’ lease on the basis that the farm was being underutilized was wrong. The first respondent had not even considered the submissions made by the applicants. Bias and irrationality were replete in the decision made by the first respondent.

For the first respondent, Mr Musangwa submitted that there was no irrationality or unreasonableness in the manner in which the first respondent made his decision to withdraw the lease for the land. The decision was made after a consideration of representations made by the applicants. Two reasons had been given for the withdrawal of the lease, and these were the need to downsize the farm and underutilization.

Mr Dzvetero for the second respondent submitted that from a consideration of the grounds for review, the applicants had not raised the issue of bias. It had been raised for the first time in arguments. It could therefore not be sustained as a ground for review. Two reasons had been advanced for the cancellation of the lease. These were the need to downsize the farm and the underutilization of the land. It was averred that in the province in which the farm is located, no beneficiary could be allocated land in excess of 500hectares.

It was argued on behalf of the second respondent that the first respondent was reposed with discretion to do whatever he wanted with State land as the responsible administering authority.

The Analysis

I had a case management meeting with the parties counsel when they first appeared to argue the matter. From a consideration of the papers and the nature of the dispute, I was of the considered view that the matter could be amicably resolved without the need for argument. Counsel were quite receptive and supportive of the idea and requested that the matter be postponed. The postponement would allow them time to carry out a site visit of the farm amongst other things. At the conclusion of the site visit, the parties generated a report which was intended to aid in the resolution of the matter amicably. Unfortunately, the parties failed to find common ground as the applicants disagreed with some of the conclusions and recommendations made in that report. In short, the report does not reflect an agreed position on the dispute. The parties agreed to proceed to argue the matter on the papers already before the court. Accordingly the report shall not be considered in the disposition of the matter.

The applicants’ complaint is that the first respondent’s decision to cancel their lease agreement was irrational and grossly unreasonably. That decision was also irrational to the extent that it offended ss 3 and 5 of the AJA. I pause to note that the allegations of bias and abuse of office were raised by the applicants in the context of the second respondent’s opposition. They are not part of the applicants’ original grounds for review. For that reason, they do not warrant the court’s attention.

The scope of irrationality and unreasonableness as grounds for review was explained in the decision of the House of Lords in Council for Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 (HL), per Lord Diplock, at 950-951, as follows:

“……..

By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court’s exercise of this role, resort I think is today no longer needed to Viscount Radcliffe‟s ingenious explanation in Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48, [1956] AC 14 of irrationality as a ground for a court’s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.”

The above approach has been followed by courts in this jurisdiction. The nature of the applicants’ complaint brings to focus the question of the proper exercise of administrative power by administrative authorities. Administrative authorities wield immense administrative powers which is often abused or used for the wrong reasons. The legislature was very much alive to the need to regulate administrative conduct that it elevated the right to administrative justice to a constitutional matter under s 68 of the Constitution. Subsections (1) and (2) of s 68 warrant some interrogation herein. They state as follows:

68 Right to administrative justice

(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.

(2) Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.”

These constitutional safeguards are intended to provide a barometer through which administrative conduct must be evaluated. These safeguards must be given effect to through an Act of Parliament as provided for in s 68(3) of the same Constitution. In this case, the applicable Act of Parliament is of course the AJA. That law came into operation in September 2004. As was observed in Zinyemba v Minister of Land and Rural Resettlement and Anor the Court said:

“Once an Act of Parliament which gives effect to all the rights to just administrative conduct set out in subss (1), (2) and (3) is enacted, s 68 of the Constitution takes a back seat.”

Section 3 (a) of the AJA requires that an administrative authority which has the responsibility or power to take administrative action that may affect the rights, interests or legitimate expectations of any person must act lawfully, reasonably and in a fair manner. Section 3 (b) requires an administrative authority to act within the period specified by law, or in the absence of a specified period, within a reasonable period. Section 3(c) requires the administrative authority to supply written reasons for its action or decision within the period specified by law, and in the absence of such, within a reasonable period of being requested to furnish such reasons. Administrative action is defined in s 2 of the same Act to mean “any action taken or decision made by an administrative authority”.

Section 5 lists the factors that the court is enjoined to consider in determining whether an administrative authority has failed to comply with s 3 of the AJA. In terms of s 5(i), the court will consider whether a power has been exercised in a manner which constitutes an abuse of power. In terms of s 5(j), the court will consider whether “the action taken is so unreasonable that no reasonable person would have taken it”. The s 5 factors that the court must consider are quite extensive (16 in total). A perusal of those factors shows that the legislature subsumed most of the known common law grounds for review into this statute.

The right to administrative justice as ingrained in s 68 of the Constitution and ss 3 and 5 of the AJA has redefined the field of administrative justice especially as it relates to the conduct of administrative authorities. Administrative action is now the subject of intense scrutiny and must align with the requirements of s 68 of the Constitution as read together with the AJA.

It is from the foregoing analysis of the law that the conduct of the first respondent must be measured. It is common cause that the first reason given for the intention to withdraw the offer of the land was the need to downsize in order to conform to maximum farm size. The letter of 12 October 2020 which communicated that position did not state the legal farm size that had to be conformed to. It also did not state the legal basis for the decision to downsize the farm. The applicants’ representations which were communicated through their letter of 28 October 2020 specifically addressed the issue of downsizing. In his letter of 11 January 2021, the first respondent gave the applicants three months’ notice of cancellation of the 99 year lease. The reason given for the cancellation was the underutilisation of the farm by the applicants.  That letter did not deal with the representations made by the applicants in their letter of 28 October 2020. This was despite the fact that the first respondent’s letter of 12 October 2020 invited the applicants to make representations in writing within seven days of receiving the first respondent’s notification.

In their letter of 1 February 2021, the applicants sought clarification from the first respondent regarding the basis for the cancellation of their 99 year lease agreement in view of the conflicting reasons that were given in the two letters. The letter also addressed the issue of the underutilisation of the farm. That letter solicited the first respondent’s response of 20 April 2021, in which he reiterated the need to downsize the farm. While the letter acknowledged the applicants’ representations communicated through their aforementioned letters, the reason given for terminating the lease appears to have been the need to downsize the farm.

The court is persuaded by the applicants’ submission that the first respondent’s conduct was irrational and grossly unreasonably. The mere act of changing the reasons for terminating the lease agreement midway without adequately applying his mind to the applicants’ earlier representations in response to his first communication was grossly unreasonable. Instead of dealing with the applicants’ representations which he had invited them to make, the first respondent came up with another basis for terminating the lease. That anomaly was certainly not cured by the letter of 20 April 2021 which made reference to the representations made in the applicants’ aforementioned letters of 28 October 2020 and 1 February 2021. The first respondent was not only expected to act lawfully, but in a reasonable and fair manner.

If the reason for terminating the lease was to allow for downsizing of the farm in order to conform to farm sizes, then the authority to do so needed to be set out. The prescribed farm sizes needed to be spelt out. The first respondent was also required to comprehensively deal with the applicants’ representations which were made in response to his first letter. The first respondent could not just change course as it were, and come up with a new reason for terminating the lease when his initial communication had prompted a response that he had not comprehensively dealt with.

The second respondent’s intervention does not make the first respondent’s position unassailable. What is under attack is the conduct of the first respondent. The second respondent is a beneficiary of administrative action that is clearly impeachable. The second respondent cannot therefore defend the decision or action of the first respondent who is the administrative authority for purposes of the law. The court is alive to the fact that as the administrative authority responsible for the administration of agricultural land, the first respondent is reposed with powers to deal with that land in any manner that is permitted by law. But in so doing, he must be mindful of ss 3 and 5 of the AJA as read together with s 68 of the Constitution.

From a reading of the papers, it is clear to me that no proper verification of the extent of utilization of the land was done prior to the decision to terminate the lease on account of underutilization of the land. No reports were attached to the first respondent’s correspondence. The same applies to the decision to terminate the lease agreement on the basis of downsizing in order to conform to stipulated farm sizes. The authority under which the decision was made was not set out. It not clear whether such administrative conduct was carried out pursuant to a change in law or a new policy framework. Administrative conduct must be anchored on some sound legal or regulatory framework for it to pass the test set out in the AJA and the Constitution.

In the final analysis, the court determines that the first respondent’s conduct of terminating the applicants’ lease was irrational and grossly unreasonably. It fell short of the benchmark set by ss 3 and 5 of the AJA as read with s 68 of the Constitution.

Resultantly it is ordered that:

The 1st respondent’s decision to cancel the 1st and 2nd applicants lease agreement MA1126/2008 in respect of Holmhead Farm, Mazoe District, Mashonaland Province is null and void and is hereby set aside.

The 1st respondent’s decision to cancel the 1st and 2nd applicants’ lease agreement, MA1126/2008 is hereby declared to be in violation of section 3(1)(a) of the Administrative Justice Act [Chapter 10:28].

The 1st and 2nd applicants’ lease agreement, MA1126/2008 is hereby reinstated.

Each party shall bear its own costs of suit.

Venturas & Samkange, applicants’ legal practitioners

Civil Division of the Attorney General’s Office, first respondent’s legal practitioners

Antonio & Dzvetero, second respondent’s legal practitioners