Tasara Muguti and Ottilia Kudzai Muguti v The Minister of Lands and Rural Resettlement and The Attorney General

### Preamble
1
HH 94-21
HC 9908/17
---------


TASARA MUGUTI

and

OTTILIA KUDZAI MUGUTI

versus

THE MINISTER OF LANDS AND RURAL RESETTLEMENT

and

THE ATTORNEY GENERAL

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 14 October 2020 & 9 March 2021

Opposed Application

F Nyamayaro, for the applicant

Ms C Siqoza, for the respondent

MANGOTA J: Law is a discipline which has many branches and sub-branches. A party who is suing another must make every effort to make a conscious decision on the branch or sub-branch of the law under which his suit must fall. Where he sues under an incorrect or inapplicable branch or sub-branch of the law and his attention is drawn to the wrong law which he has applied in the suit, he is better advised to re-consider his case than otherwise and, if what has been drawn to his attention has merit, he should withdraw the suit and re-file it under the correct branch or sub-branch of the law. Where he persists along the incorrect path, he has no one to blame but himself when the suit is either dismissed or struck off the roll because of the fatal defects which are inherent in the suit.

The above- stated matters hold true for this application which I heard on 14 October 2020 and struck off the roll with costs following an ex tempore judgment which I delivered.

On 19 October, 2020 counsel for the applicants addressed a letter to me. He requested reasons for my decision. He indicated that the applicants would like to make an informed decision on whether or not they can pursue the matter. My reasons are these:

The applicants are husband and wife. They applied to review the decision of the first respondent who is the Minister of Lands and Rural Resettlement (“the Minister”) who cancelled the lease which he concluded with them on 28 February 2012. The application was filed under s 4 of the Administrative Justice Act [Chapter 10:28]

The applicants allege that the Minister did not exercise his powers, as an administrative authority, in a fair and transparent manner. They state that his decision was motivated by considerations which were outside the letter and spirit of their lease with him. They move me to set aside the decision of the Minister so that the parties are allowed to revert to the status quo ante the decision.

The Minister opposes the application. He alleges that the cancellation of the lease was not done by him wearing his hat as an administrative authority. He states that he cancelled the lease in his capacity as a party to the contract of lease which the applicants breached. He insists that the application for review rests on a misapplication of the correct law which relates to the case of the parties. He moves that it be dismissed with costs.

That the Minister is charged with the responsibility of acquiring, and allocating, land to such persons as the applicants requires no debate at all. That he is wearing the hat of an administrative authority when he performs the stated function is taken as given. It is in the mentioned capacity that he allocated the land which is the subject of these proceedings to the applicants first, in the form of an offer letter, and later through the 99 year lease which he and them signed.

It follows, from the above stated fact, that the moment that the applicants and him signed the lease, their relationship, as parties, ceased to be governed by any law other than the law of contract. A contract, by its nature, envisages a situation where the parties to it are equal to each other. No party to a contract has a superior status to that of the other party. It is entered into, and is concluded, by parties whose status is equal the one to the other and vice-versa. It spells out the terms which each party to it is enjoined to observe. It confers a right on the party who remains of the view that the other party has breached or is breaching its terms to call upon the offending party to order and to move that that party rectifies the breach and, where the breach goes to the root of the contract, to cancel the same and claim any remedy which is available to him as is stipulated in the contract.

The remedies of parties to a contract do not exist outside the contract. They exist, and are defined, in the contract. It is for the mentioned reason, if for no other, that the parties spell out their rights and obligations in the contract. They do that with the specific intention of holding each other down to the contract as well as to protect each other’s rights and interests. Manthonsi J (as he then was) clarified the above stated position in Chaeruka v Minister of Lands and Anor 2014 (1) ZLR 179 when he stated, on a matter which is similar to this application, that:

“By accepting that the acceptance of an offer letter gave rise to a binding contract, the court was in 	fact accepting the contract as the covenant governing the relationship between the parties. Put in 	another way, by appending their signatures to the written contract, the parties were accepting that 	their relationship was governed by the contract and nothing else. The applicant cannot then seek 	refuge outside the four corners of that written agreement. The applicant cannot therefore seek to 	defeat the imperatives of a contract he entered into with his eyes wide open by importing rules of 	administrative law alien to the contract of the parties.”

The learned judge’s above-cited dictum is apposite. It speaks to the position of the applicants and the Minister both of whom signed the contract of lease. It spells out their rights and obligations in the same. Their relationship cannot be governed by any law which is alien to the lease which they signed between them. The remedy of each of them lies within, and not without, the contract.

The applicants misconstrued the branch of the law under which they should have sued. Where, as they allege, the Minister breached the terms of their contract of lease with them by cancelling the lease as he did they should have sued him for breach of contract. Their application for review of his decision is, and remains, misplaced.

The applicants accept that the lease which they concluded with the Minister is a contract. They, for instance, state in para 14 of their founding affidavit that:

“14.	The Minister is a party to the lease agreement and should equally adhere to the terms agreed 		therein; Clause 22.2 of the said lease agreement requires that the Minister, as the lessor, 			gives the lessee:

14.1	Notice of its intention to terminate the lease agreement 30 days prior to giving the 			lessee notice of the cancellation.

14.2	Reasons for the cancellation of the lease and

14.3	An opportunity to make representations on the matter.”

Accepting, as they do, that the parties’ positions are that of lessor and lessee, the issue of the Administrative Justice Act cannot come into the equation at all. The parties’ case falls wholly and squarely under the law of contract. Their rights and obligations are governed by the contract which they signed between them. They are not governed by the law of review as the applicants are suggesting in casu.

The applicants’ contention which is to the effect that the Agricultural Land Settlement Act [Chapter 20:10] governs the relationship of the parties and places the Minister in the position of an administrative authority is, in my view, a genuine but mistaken misconstruction of the law by them. The Act upon which they place reliance for their insistence to review the decision of the Minister enables the Minister to enter into such contracts of offer of land, or lease of land, as he concluded with them in the area of land acquisition and land allocation processes.

The law of contract under which this application should have been filed states, in clear and categorical terms, that no party in a contract is superior to the other party. Both parties to a contract are equal to each other. It follows, from the foregoing, that the moment the Minister concludes a contract, either in the form of an offer letter which the offeree signs or in the form of a lease which the lessee signs – with any person who successfully applies for and is granted a piece of land, the Minister’s position changes. He ceases to act as an administrative authority. He becomes an offeror or a lessor in the contract and the person to whom he offers the land becomes an offeree or a lessee.

A reading of the lease which the Minister signed with the applicants says it all. It described the parties to it as the lessor and the lessee respectively. That is the immutable reality which no party can wish away. Not even the court can change that reality.

The applicants sued under the wrong branch of the law. Their application cannot stand. Their position is exacerbated by the fact that they seek to blow both hot and cold - a position which is untenable at law. They flip flop between the Administrative Justice Act in terms of which they filed the application on the one hand, and the law of contract under which they should have sued, on the other.

The salutary conduct which the applicants should have adopted was for them to withdraw their suit when they received the Minister’s notice of opposition which directed them to the applicable law. They should have withdrawn and refiled their application under the law of contract. Their persistence with the application in the face of the correct law having been drawn to their attention and their attempt to argue their case under two branches of the law cannot cure the fatal defects which are inherent in their application. Their conduct showed a serious degree of immaturity which is difficult to comprehend let alone accept.

The applicants failed to prove their case on a balance of probabilities. Their application is fatally defective. It is incurably bad. It is, in the result, struck off the roll with costs.

Mhishi Nkomo Legal Practice, applicants’ legal practitioners

Farai Nyamayaro law chambers, applicant’s legal practitioners