Jose Marcelino Goncalves and M.M. Pretorius (Private) Limited v Chamunorwa Charles Mutyambizi and The Assistant Additional Sheriff of the High Court, Harare

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HH 276/13
HC 6431/13
JOSE MARCELINO GONCALVES
and
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JOSE MARCELINO GONCALVES
and
M.M. PRETORIUS P/L
versus
CHAMUNORWA CHARLES MUTYAMBIZI
and
THE ASSISTANT ADDITIONAL SHERIFF
OF THE HIGH COURT, HARARE

HIGH COURT OF ZIMBABWE
CHIGUMBA J
HARARE, 9 August 2013, 14 August 2013, 18 September 2013

Advocate A. Kara, for the applicant
I Nduzdo, for the 1st respondent

CHIGUMBA J: This is an urgent chamber application in which the applicants seek the following relief:

TERMS OF ORDER SOUGHT

That you show cause to this Honorable Court why a final order should not be made on the following terms:-

1. That the order and judgment in case No 112 9052/11 granted on 23 November 2011 by the Honorable Chiweshe J. granting occupation to Chamunorwa Charles Mutyambizi of the farm subdivision 1 of Charmaine of Dryton in Seke District of Mashonaland Eat and ordering Jose Marcelino Goncalves and M.M Pretorius P/L to give vacant occupation of the said farm be and is hereby declared no longer operative.

2. That Jose Marcelino Goncalves and all those claiming occupation through him are hereby authorized to occupy the said farm by virtue of offer letter number LLRR704 issued by the Honorable Murerwa Minister of Lands and Rural Resettlement on 02 November 2012

3. The costs of this application are borne by the first respondent on a Legal Practitioner-Client scale.
 INTERIM RELIEF GRANTED

Pending the return day, it is ordered:

That second respondent stay the writ of ejectment issued against the applicants in case HC 9052/11. At the hearing of the matter, I dismissed the application with costs and indicated that the full reasons for so doing would follow. These are the reasons.

The background to this matter is as follows:

First respondent obtained judgment against the applicants in case No. HC 9052/11 in terms of which this court issued an order that 1st respondent be declared to be the lawful occupant of the farm known as subdivision 1 of Charmaine of Dryton in Seke District of Mashonaland East Province.

First respondent had been issued with an offer letter on 3 January 2005 before being declared by this court to be the lawful occupant of the property in question. On 2 November 2012 the Minister of Lands and Rural Resettlement offered the same property to the applicants. This was after the Minister had purported to withdraw the first respondent’s offer letter of 3 January 2005. On 10 May 2012 the Minister subsequently purported to allocate the first respondent with an alternative piece of land, subdivision 2 of Manderly of Verde in Seke District of Mashonaland East province measuring 142.50 hectares.

First respondent then filed a court application with the Administrative Court on 29 November 2012 under case No.LA6087/12, seeking a declaration of his rights, which was opposed by the Minister of Lands and Rural Resettlement. The basis of the Minister’s opposition was that, first respondent’s original offer letter had been withdrawn for reasons of national policy.

On 29 January 2013 the Administrative court issued a declaratory order that the purported withdrawal of the first respondent’s offer letter of 3 January 2005 was null and void. First respondent then proceeded to enforce the declaratory order, and the eviction order against the applicants, in terms of HC9052/11. Applicants now approach this court seeking a stay of the writ of ejectment, on the basis that the order of HC9052/11 has now been overtaken by events because they have now been issued with an offer letter in respect of the same property.

It was submitted that the factors to be considered in an application of this nature were set out in the case of Zimbabwe Open University v Gideon Magaramombe and Deputy Sheriff Harare N.O SC 20/12 where the Chief Justice at p9 said
 “The factors to be taken into account in considering the grant of interim relief are now settled. They are:-
1. Whether or not the party seeking the relief has a *prima facie* right, from (in *casu* whether the applicants have a *prima facie* right to stay their ejectment for the farm pending determination of their application that they be declared to be then lawful holders of a valid offer letter and lawful occupiers of the property).
2. Whether or not the applicants will suffer imperable harm if execution is not stayed.
3. The balance of convenience”

Mr. Nduzdo for the first respondent submitted that in light of the declaration by the Administrative Court on 29 January 2013, the purported withdrawal of applicant’s offer letter was invalid. Consequently, all other documents which were issued or premised on that withdrawal are rendered null and void and of no force or effect, including the applicant’s offer letter issued on 2 November 2012, which is the basis of this application.

The question that the court must answer is this. What is the effect of the declaration issued by the Administrative Court on 29 January 2013, on the rights and obligations of the parties? In other words, does the applicants’ offer letter of 2 November 2012 constitute a *prima facie* right on which they can rely on to be entitled to the relief that they seek?

Section 2(1) of the *Gazzetted* Lands (Consequential Provisions) Act [*Cap 20:28*] provides that “lawful authority” means:

(a) an offer letter
(b) a permit
(c) a land settlement lease and states that “lawfully authorized” shall be constituted accordingly.

My interpretation of this section is that a person who is lawfully authorized to occupy the property in question is the holder of a valid offer letter.

The definition of offer letter is, a letter issued by the acquiring authority to any person that offers to allocate to that person any gazetted land or a portion of gazette land described in that letter.

First respondent’s offer letter of 3 January 2005 was declared to be lawful authority for him to occupy the property by Judge President Chiweshe on 23 November 2011. Was it subsequently rendered invalid by its purported withdrawal? The Administrative Court has declared the purported withdrawal to be null and void. That leaves first respondent offer letter of 3 January 2005 extant. Judge President Chiweshe’s judgment of 23 November 2011 in which he declared first respondent to be the lawful owner of the property is also extant. It has not been set aside on appeal. Applicant was ordered to give vacant possession of the premises to first respondent on 23 November 2011. That order remains valid to date.

In Florence Sigudu v Minister of lands and Rural Resettlement N.O and Phineas Chihota HH11/2013, in an opposed application whose facts are similar to the circumstances of this case, the court stated that the Land Settlement Act [Cap 20:01] does not entitle the Minister or any other authority to cancel offer letters or to terminate rights conferred thereunder, at p 5.

That court was of the view that, “… the Gazzetted Lands Consequential Provisions Act [Cap 20:28] was enacted as a vehicle of compliance with the then s 113 of the Constitution. In s 3 (1) it stipulates that no person may hold or occupy gazzetted land without lawful authority that is a permit or lease or offer letter. It does not however offer rights of allocation on resettlement on gazzetted lands. It is not a statutory basis for the creation or termination of rights granted by offer letters. It is an administrative tool which has to be exercised lawfully, reasonably and fairly”.

I find that argument persuasive. The Administrative court has declared the withdrawal of first respondent offer letter null and void, which means that it still stands and is a valid legal document that shows that first respondent has lawful authority to occupy the land in question.

In Mberi v Nyabadza and 4 others HC 241/31 it was held that a subsequently issued offer letter had no legal status because it was issued after the Minister’s withdrawal of an earlier offer letter had been declared a nullity.

Accordingly, I find that the applicants have no prima facie right, entitling them to occupation of the premises. Accordingly, they do not deserve this court’s assistance and protection because no land was validly allocated to them. See CFU and others v Ministry of Lands SC 31/10 at p 23. The attempted withdrawal of first respondent’s offer letter was declared null and void. Applicants have no reasonable prospects of success in obtaining the final relief that they seek see Murwizi v Makoni 1993(1) ZLR 80.

The application is dismissed with costs for these reasons.

Granger & Harvey, applicant’s legal practitioners

Mutamangira & Associates, respondent’s legal practitioners
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