Christin Jessica Munyaka versus Ringostar Mordecai Maskawa and Register Maskawa

### Preamble
1
HH 341-12
HC 25/12
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CHRISTIN JESSICA MUNYAKA

versus

RINGOSTAR MORDECAI MASAKWA

and

REGISTER MASAKWA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 4 September, 2012 & 12 September, 2012

Advocate T. Mpofu, for the applicant

Ms T. Mberi, for the respondents

OPPOSED APPLICATION

MATHONSI J:	In this application, the applicant seeks a declarator that she is the lawful occupier of a farm known as subdivision 1 of the remainder of Umfulia in the District of Chegutu (“the farm”), that the first respondent has no right, title or interest in the said farm and as such all those claiming through him should be barred from tilling the land and be ordered to vacate the farm.  She also seeks attorney and client costs.

The genesis of the matter is that the first respondent was allocated the farm by the acquiring authority, the Minister of Lands and Rural Resettlement, by offer letter dated 17 October 2008.  It is not clear what transpired thereafter but whatever it is, it led to the withdrawal of the offer letter by the acquiring authority by letter dated 13 August 2010 which reads in part as follows:

“RE: WITHDRAWAL OF LAND OFFER UNDER THE LAND REFORM AND RESETTLEMENT PROGRAMME (MODEL A2, PHASE 11)

Please be advised that the Minister of Lands and Rural Resettlement is withdrawing the offer of land made to you in respect of remainder of Umfulia in the Chegutu District of Mashonaland West Province.  The withdrawal is in terms of the conditions of offer attached to the offer letter to you of 01 December 2008.  You are therefore notified of the immediate withdrawal of the offer of subdivision 1, of the remainder of Umfulia measuring 400.00 hectares.  You are required forthwith to cease all or any operations that you may have commenced thereon and immediately vacate the said piece of land.

If you wish to make any representations on this issue please do so in writing within 7 days of receipt of this notification, and please direct your correspondence to the Minister.

Hon. H.M. Murerwa (MP)

Minister of Lands and Rural Resettlement.”

I must state that while the withdrawal letter makes reference to an offer letter of 1 December 2010, the one that has been submitted is dated 17 October 2008.  I must add as well that the standard conditions applying to the offer of land which are attached to an offer letter include clauses 3 and 4 which read:

“3. The offer may also be cancelled or withdrawn for breach of any of the conditions

set out above.

4. The Ministry reserves the right to cancel/withdraw this offer if it is established

that you failed to disclose essential information when you completed your

application or when you were interviewed such as the ownership or lease of other

state land or lands should you fail to dispose of same.  In the event of such

cancellation or withdrawal no compensation shall be paid for improvements

effected on the land or for any disturbance whatsoever.”

It would appear therefore that the terms of offer of land through an offer letter give the acquiring authority unfettered power to cancel or withdraw the land as a result of a breach. Of course such power should be exercised judiciously. When the farm was withdrawn from the first respondent, he claims to have made representations to the acquiring authority but he has not disclosed what those representations were.  He says he was informed by the Ministry that his representations were being considered and that the issue of the withdrawal was yet to be finalised.  What is clear is that the first respondent did not contest the withdrawal beyond those representations.

It would appear that nothing came out of that exercise. Meanwhile, the acquiring authority issued another offer letter dated 13 August 2010 in favour of the applicant in respect of the same farm.  She says she immediately took up the offer and moved onto the farm in accordance with the terms of the offer letter.  She was surprised on 25 November 2010 to see people cultivating fields at the farm and later learnt that they were doing so on the instructions of the first respondent.

The applicant states that when she accosted the first respondent’s people they refused to stop their activities at the farm.  She states that, even the intervention of the Ministry did not yield any results as the first respondent’s proxies remained put.  Indeed she says this was the beginning of her woes as the second respondent, who is the first respondent’s brother unleashed a reign of terror against the applicant and her employees.  She says, second respondent once bundled her farm manager into a vehicle, drove him to Harare where he dumped him at her house at night amid threats of reprisals should either the applicant or her employees set foot at the farm.

The applicant further alleges that she and her employees have been prevented from off loading bags of fertilizer at the farm and chemicals delivered there have been stolen among other items.  The second respondent has even threatened her employees at gunpoint demanding that they remove their belongings from the farm and that first respondent’s employees are occupying the farm house, in the process disturbing her farming activities.  For these reasons, she seeks the order aforesaid.

On their part, the respondents insist that the applicant lacks locus standi to bring this application as the power to do so vests with the acquiring authority.  In his opposing affidavit which he deposed to on his behalf and that of the first respondent, the second respondent maintains that the withdrawal of the offer given to the first respondent was null and void by reason that the offer could not be withdrawn unilaterally after its acceptance such acceptance having given rise to a binding contract between the parties.  For that reason, the first respondent is entitled to remain on the farm.  He denied terrorising the applicant and her employees insisting that the police investigated the complaints and found no substance in them.

Advocate Mpofu, for the applicant submitted that the locus standi of the holder of an offer letter in respect of a farm allocated under the land reform programme has been settled by the Supreme Court in the case of Commercial Farmers Union & Ors v The Minister of Lands and Rural Resettlement & Ors SC 31/10 (as yet unreported).  In that case, Chief Justice CHIDYAUSIKU stated at p 21 of the cyclostyled judgment that;

“having concluded that the minister has the legal power or authority to issue an offer letter, a permit or a land settlement lease, it follows that the holders of those documents have the legal authority to occupy and use the land allocated to them by the minister in terms of the offer letter, permit or land settlement lease.”

The learned Chief Justice went on at p 23 to state:

“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 the 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.”

At p 28 he pronounced that:

“While s 3 (5) of the Act confers on a criminal court the power to issue an eviction order against a convicted person, it does not take away the Minister’s right or the right of the holder of an offer letter, permit or land settlement lease to commence eviction proceedings against a former owner or occupier who refuses to vacate the acquired land.  The holder of an offer letter, permit or land settlement lease has a clear right, derived from an Act of Parliament, to take occupation of acquired land allocated to him or her in terms of the offer letter, permit or land settlement lease.  No doubt the legislature conferred on the holder of an offer letter, permit or land settlement lease the locus standi, independent of the Minister to sue for the eviction of any illegal occupier of land allocated to him or her in terms of the offer letter, permit or land settlement lease.”

The pronouncements of the Supreme Court bind me on the basis of the doctrine of stare decisis.  The authority I have cited above virtually puts to bed all the arguments made by Ms Mberi for the respondents.  Clearly the applicant has locus standi, independent of the acquiring authority, to seek, not only a declaration of her entitlement to the farm, but also the eviction of the respondents from the said farm.  The case of Pondoro (Pvt) Ltd and Anor v Nemakonde and Anor HH18/08 which held that the right to litigate lies with the minister has been overturned by the Supreme Court.  What we have here is a case of an applicant who holds an offer letter which is extant in the sense that it has not been withdrawn or cancelled and the first respondent whose offer letter was withdrawn leaving him with nothing.  He did not challenge the withdrawal in a court of law or by any other means leaving him with nothing to stand on.

The status quo therefore is that the acquiring authority has, in the exercise of its powers given by the law, withdrawn the offer of the farm from the first respondent and offered the said farm to the applicant.  The applicant is presently the person enjoying the right of occupation and use of the farm.

Ms Mberi for the respondents, who conceded that she had not had sight of the Supreme Court judgment in Commercial Farmers Union (Supra), was relying on the judgment of BERE J, in Masunda v Minister of State for Lands and Anor 2006 (2) ZLR 72 in which the learned judge set aside the decision of the acquiring authority to withdraw an offer letter issued to a beneficiary of the Land Reform Programme and issue the same farm to another on the grounds, interalia,   that the party whose offer letter was withdrawn had not been given an opportunity to be heard in breath of the audi alteram partem rule.  The learned judge reasoned that once an offer letter was accepted within the stipulated time and in the prescribed manner, this resulted in a clear contractual agreement which could not be withdrawn.  He went on to state at p 77 G-78A.

“Secondly, it is a very basis administrative procedure that before one takes a decision that adversely affects the other, the affected individual must be given an opportunity to be heard.  As correctly argued by the applicant this is a very basic tenet of the rules of natural justice.  In administrative law, this concept is referred to as the audi alteram partem rule.  It is part of our law.”

Advocate Mpofu countered this argument by saying that the case of Masunda (supra) is distinguishable from the present in that in that matter Masunda had challenged the decision to withdraw his offer letter thereby presenting the court with an opportunity to review and set aside the Minister’s decision whereas in casu, the first respondent has not challenged that decision. He went on to argue that in any event, the Masunda case was wrongly decided in that once the court had concluded that the acceptance of an offer letter gave rise to a valid contract, it was applying the law of contract and could not, by the same breath apply rules of administrative law.

In my view, to the extent that the Minister has unfettered authority to distribute land that he has acquired for resettlement in terms of s 16B of the Constitution by way of an offer letter and that the holder of an offer letter has the right of occupation of the land in question, it must follow that the courts must protect only the holders of offer letters and no one else.  The offer letter given to the first respondent was withdrawn in terms of its termination or withdrawal provisions.

I agree with Advocate Mpofu that the withdrawal of the first respondent’s offer letter remains valid until successfully challenged by the first respondent because the Minister was entitled prima facie, to withdraw the offer.  The first respondent, as I have stated, has not challenged the withdrawal I therefore conclude that this case is distinguishable from Masunda (supra)

Having come to that conclusion I do not find it necessary to discuss the issue of whether Masunda’s case was wrongly decided as to enable me to depart from it.  Its reasoning is simply not applicable to the present case.

The applicant seeks a declaratory relief. Such relief will ordinarily be granted at the discretion of the court where it is satisfied that the person seeking it has an interest in an existing, future or contingent right or obligation and that it is appropriate to grant such relief in the circumstances.  I am satisfied that she has made a good case for that relief.

I have already made reference to the entitlement of a holder of an offer letter to institute proceedings against an occupier who refuses to vacate.  The respondents occupy the farm without authority and for that reason, the applicant, who happens to enjoy the right of occupation, is entitled to a order for their eviction as the respondents now fall under the realm of illegal occupants.

I come to that conclusion without having to determine the fugitive status of the first respondent alluded to by the applicant supported by newspaper stories.

Regarding the issue of costs, applicant seeks costs on the legal practitioner and client scale on the basis that her rights to the farm are unquestionable and that it should have been apparent from the start that respondents did not have a defence to her claim.  I agree.  I am fortified in that view by the fact that this application was launched in January 2012 long after the Supreme Court judgment in Commercial Farmers Union (Supra) had been handed down, it having been released in November 2010.  That judgment settled almost all the issues contested by the respondents as I have already shown.

For that reason, a party with the benefit of legal counsel like the 2 respondents, should have avoided this litigation.  There is therefore a need for such aberration to be visited with costs at a punitive scale as a seal of the court’s disapproval of contestations embarked on out of fashion and arrogance.

In the result, I make the following order, that

The applicant is hereby declared the lawful occupier and beneficiary of a farm known as Subdivision 1 of Remainder of Umfulia in Chegutu in the District of Mashonaland West Province, measuring 400 hectares.

The first and second respondents have no right, title or interest in the said land and are accordingly barred from occupying and/or carrying out any farming activities at the farm.

The first respondent and all those claiming right of occupation of the said farm through him are hereby directed to vacate the farm within 5 days of the granting of this order.

The first respondent shall bear the costs of this application on the scale of legal practitioner and client.

Linda Chipato, applicant’s legal practitioners

Hogwe, Dzimirai & Partners, respondents’ legal practitioners