Joseph Macheka and 4 Others v Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement

### Preamble
HH 462-25
HCH 3370/24
JOSEPH MACHEKA
---------




JOSEPH MACHEKA

and

ALFRED CHADEMANA

and

TAMO HOVE MUZA

and

MANGISAI KATSANDE

and

UNICO CHIKOMO

versus

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

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE: 17 & 31  July 2025.

Opposed Application

L Madhuku, for the applicants

A Magunde, for the respondent

DEMBURE J:

INTRODUCTION

[1]	On 17 July 2025, the court, after hearing oral arguments from counsel for both the applicants and the respondent on a point in limine, upheld the preliminary objection that there was no valid opposition before the court. The court struck out the respondent’s purported notice of opposition and treated the matter as unopposed. Subsequently, the court granted the order sought in the following terms:

“1. 	The decision of the Respondent to withdraw the offers of land held under the Land Reform Resettlement Programme by the applicants in respect of Springs Farm in Goromonzi District of Mashonaland Province be and is hereby reviewed and set aside.

2. 	For the avoidance of doubt, what is being set aside is the withdrawal of the following offers of land:

2.1.	1st Applicant: Subdivision 1 of Springs Farm measuring 350.3 hectares.

2.2. 	2nd Applicant: Subdivision 2 of Springs Farm measuring 105.96 hectares.

2.3. 	3rd Applicant: Subdivision 3 of Springs Farm measuring 88.3 hectares.

2.4. 	4th Applicant: Subdivision 6 of Springs Farm measuring 23.5 hectares.

2.5.	5th Applicant: Subdivisions 4 & 5 of Springs Farm measuring 100.7 hectares.

3. 	The Respondent shall pay the costs of this application.”

What follows are the full written reasons for the court’s decision.

[2]	This is a court application for review in terms of s 4 of the Administrative Justice Act [Chapter 10:28] as read with s 68 of the Constitution of Zimbabwe. Procedurally, the application was filed in terms of rule 62 of the High Court Rules, 2021. The applicants sought to have the administrative decision made by the respondent to withdraw their offers of land under the Land Reform and Resettlement programme in respect of the subdivisions of Springs Farm situate in the District of Goromonzi in Mashonaland East Province reviewed.

[3]	The application was opposed.

THE PARTIES

[4]	The applicants are all male adult Zimbabweans. The respondent is the Minister of Lands, Agriculture, Fisheries, Water and Rural Development, cited in his official capacity as the authority who has been assigned the administration of the Land Commission Act [Chapter 20:12] and as the administrative authority that made the impugned decision.

FACTUAL BACKGROUND

[5]	It is common cause that the respondent withdrew the offer letters of land held under the Land Reform and Resettlement Programme by the applicants on the dates specified in June 2024, and for the same reason stated as “re-planning and conversion of the land usage from agricultural to urban”. The pieces of land are as follows:

[5.1]	First applicant: Subdivision 1 of Springs Farm measuring 350.3 hectares.

[5.2]	Second applicant: Subdivision 2 of Springs Farm measuring 105.96 hectares.

[5.3]	Third applicant: Subdivision 3 of Springs Farm measuring 88.3 hectares.

[5.4]	Fourth applicant:  Subdivision 6 of Springs Farm measuring 23.5 hectares; and

[5.5]	Fifth applicant: Subdivisions 4 and 5 of Springs Farm measuring 100.7 hectares.

[6]	On 2 August 2024, the applicants filed this application seeking the review of the respondent’s decision to withdraw their offers of the above pieces of agricultural land. They raised three grounds for the review of the impugned decision, namely;

[6.1]	Illegality; they argued that the respondent does not have any powers under the Land Commission Act or any other law to withdraw an offer of land held under the Land Reform and Resettlement Programme for the stated purpose;

[6.2]	Procedural impropriety; in that the respondent did not comply with s 3(1)(a) of the Administrative Justice Act, as he did not act fairly by not addressing each of the concerns the applicants raised in detailed written representations to him; and

[6.3]	Irrationality: in that, in the withdrawal of their offers of land in the circumstances for the given reason that it was for “re-planning and conversion of its usage from agricultural to urban”, was irrational in the sense that it was so unreasonable that no reasonable person applying his mind to the facts would have arrived at it.

[7]	The first applicant averred that he became the holder of the land under the offer letter given to him in May 2002 and has been in occupation and enjoyment for the past 22 years. He is a veteran of the liberation struggle. The first applicant further stated that he has invested extensively in converting the farm into a viable commercial farm for crop and livestock production.  In 2018, he entered into a tripartite agreement with an investor named Venom Farming (Private) Limited, as well as the Government of Zimbabwe. In that agreement, the government, as the lessor and owner of the land, guaranteed its availability for use in respect of the joint venture between the first applicant and the investor. He further stated that on 22 May 2024, he received a letter dated 6 May 2024 from the respondent informing him of an intention to withdraw his offer letter.  Pursuant to that letter, the first applicant made a detailed representation to the respondent. The respondent proceeded to withdraw the offer letter.

[8]	The second applicant also made representations to the respondent. He said, inter alia, that he is a retired army soldier and had been on the farm for almost 25 years, that he had invested in the land, including installing an irrigation pipeline that covers about 2,5 kilometres and constructing structures valued at over half a million dollars. He is into livestock farming and would not know what will happen to his livestock.

[9]	The third applicant’s representations to the respondent were inter alia, that he was a war collaborator during the war of liberation, he had developed the land to grow crops such as maize, soya beans and sunflowers. He was also involved in animal husbandry and had made many developments on the farm.

[10]	In his representations, the fourth applicant stated inter alia, that he is a war veteran and was allocated this farm as gratitude. He also stated that he resides at the farm and it is his only pension. He had been on the farm for 23 years and had built his house and developed the farm.

[11]	The fifth applicant also made representations to the respondent, stating inter alia, that he is the son of a veteran of the armed struggle who was offered the land and has been farming and living there. He submitted that he has made improvements on the farm and took a loan, which he will not be able to repay if he is made to vacate the farm. The applicants’ full written representations were attached to their application.

[12]	In response to the application, the opposing affidavit attached to the notice of opposition was deposed to by the Permanent Secretary in the respondent’s Ministry, Obert Jiri. The respondent raised a point in limine that there is material non-joinder of the Minister of Local Government and Public Works as the second respondent.  He further submitted that the non-joinder is material since the Ministry is the beneficiary of the decision by the respondent, and it will also be affected by the overturning of his decision. On that point, the respondent prayed for the dismissal of the application with costs.

[13]	On the merits, the respondent argued that the Minister did not withdraw the offers under the mentioned provisions of the cited legislation, but rather on condition number 7 on the offer letters. It was contended that the respondent’s power to withdraw is based on the condition contained in the offer letter and has been affirmed by the superior courts. It was argued that he acted based on necessity. It was further pleaded that the respondent duly considered the representations carefully and responded to them, and that he also sent his officials to meet the affected landholders, as well as offering compensation for permanent improvements.

[14]	 He went on to argue that the third ground was illogical, as the respondent offered a clear reason for his decision to withdraw the offers, which was for re-planning and conversion of its usage from agricultural to urban. He submitted that there is no cause for the relief sought.  It was also submitted that the respondent acted lawfully, reasonably and fairly. The representations did not outweigh the public purpose of urban development, which will benefit a greater number of people than the applicants.  The prayer was for the dismissal of the application with costs.

[15]	The applicants, in their answering affidavit, raised a point in limine that there was no valid opposition as the deponent to the opposing affidavit had no authority of the respondent; alternatively, only the respondent could depose to the affidavit in this matter. They contended that there was no material non-joinder. The Minister of Local Government is not a necessary party to the proceedings for review before the court. The applicants insisted on their grounds for the review as pleaded in the founding affidavit and prayed for the relief to be granted.

APPLICATION FOR UPLIFTMENT OF BAR

[16]	At the commencement of the hearing, Ms Magunde, counsel for the respondent, rose and made an application for the upliftment of bar. She submitted that the respondent’s heads of argument were filed out of time. The application was not opposed by the applicants. Mr Madhuku confirmed that the application for the removal of bar was with the applicants’ consent. The court granted the application for the removal of the automatic bar operating against the respondent for the late filing of the heads of argument. I further issued an order for the respondent’s heads of argument to be considered to have been properly filed and part of the record.

POINT IN LIMINE

[17]	Mr Madhuku submitted that the applicants insist with their point in limine that there is no valid opposition before the court.

ISSUE FOR DETERMINATION

[18]	The question I must determine is whether or not there is a valid opposition before the court.

SUBMISSIONS MADE BY THE PARTIES

[19]	Mr Madhuku submitted that there was no valid opposition before the court on the basis that the deponent is not the Minister. This was an application under the Administrative Justice Act, which requires the accountability of the Executive. Section 68 of the Constitution is part of the Bill of Rights and requires members of the Executive to respect court processes. The application challenges the manner in which the Minister exercised his power. It goes to the mind of the Minister and requires him to take into account the relevant factors. Only the Minister is the one who can tell the court what exercised his mind. The deponent’s evidence is hearsay evidence.

[20]	Counsel further argued that the deponent cannot speak for the Minister. There are two authorities cited in the applicants’ heads of argument to support the argument. See Cargo Carriers (Pvt) Ltd v Zambezi & Ors 1996 (1) ZLR 613(S). In that case, the Supreme Court held that it was the Minister who should have issued the show cause order in terms of the relevant provisions of the Labour Act, and there was no room for delegation. See also the South African case of Minister of Home Affairs & Another v Suzman Foundation & Ors [2023] ZAGPPHC 1835, paragraph 12. It was held that it was only the Minister who should have deposed to an opposing affidavit, as he was the statutory authority who would issue the permits. The case is on all fours with this matter.

[21]	Mr Madhuku also referred to the case of Christopher Rukawo v Minister of Lands, Agriculture, Fisheries, Water and Rural Development HH 370-24. He argued it was clear that the court is very much interested in the manner in which the Minister would have exercised his powers. Land is a very important thing in our country. Members of the Executive must take these matters seriously. The Minister is not before the court.

[22]	As regards the other basis of the objection, counsel submitted that the law is clear that if authority is challenged, it must be produced. It was not. He insisted on the written arguments on the issue. In that argument on lack of authority to litigate or defend the proceedings, it was argued that once the issue of authority is put in issue, the proof of such authority must be produced. See Dube v Premier Services Medical Aid Society & Anor SC 73/19.

[23]	Per contra, Ms Magunde submitted that the applicants have referred the court to s 68 of the Constitution; however, in terms of s 86, those rights can be limited. Rule 58(4) of the High Court Rules, 2021, states that an affidavit may be made by the applicant or respondent or by any person who can positively swear to the facts. The Permanent Secretary can make averments because all the documents are available. The Permanent Secretary looked at the representations and referred to all the documentation as the senior administrator who runs the day-to-day business of the Ministry. Counsel referred me to the cases of Mapendeke & Ors v Minister of Justice & Ors HH 420-17 and Zimbabwe Banking Corporation Ltd v Trust Finance Ltd & Anor HH 130-06.  The PS averred that he had authority from the Minister. He was indeed authorised. It is proper. She submitted that the court must consider the further submissions in the respondent’s heads of argument.

[24]	In reply, Mr Madhuku argued that counsel for the respondent did not address the issue that the authority was challenged. The law in the Dube v PSMAS case is what applies. Once you are challenged, you must produce the authority. They have been challenged, but they did not produce it. The cases cited by the respondent do not address this. The Mapendeke case is from 2017. The judgment in PSMAS settled the law. If you are challenged, you must produce the authority. The danger may be that the Minister did not make the decision. When an application is based on s 68 of the Constitution, he must speak out. In a matter of importance where there is a challenge to authority, proof must be produced. Counsel for the respondent did not address the issue that the issues we are dealing with are only the kind of issues which are to be dealt with by the Minister.

ANALYSIS OF THE LAW AND THE FACTS

[25]	The applicants argued that there was no valid opposition before the court. The main reason for this view was that the deponent had no authority to defend the proceedings on behalf of the respondent, the Minister. The deponent to the opposing affidavit is the Permanent Secretary. In para 1 thereof, he said:

“I am the Permanent Secretary in the Ministry of Lands, Agriculture, Fisheries, Water and Rural Development and in that capacity, I am authorised to depose to this affidavit on behalf of the respondent, the Minister of Lands, Agriculture, Fisheries, Water and Rural Development.”

He purported to derive his authority from being the Permanent Secretary in the Ministry. There is no doubt that the deponent’s authority to defend the proceedings on behalf of the Minister was challenged by the applicants since it is the Minister who had the obligation in terms of s 3 of the Administrative Justice Act to act lawfully, reasonably and fairly in making any administrative decision which he could not delegate to the Permanent Secretary. The authority of the Permanent Secretary was, therefore, put in issue. It is trite that once such authority to defend or institute legal proceedings is put in issue, the proof of such authority must be produced. See Dube v Premier Service Medical Aid Society & Anor, supra.

[26]	While in the Dube case, the Supreme Court was dealing specifically with a legal entity, the law set out would apply equally even to this case, where the authority of the deponent to defend the proceedings in the stead of another is challenged. Thus, in para 38, GARWE JA (as he then was), after reviewing several decisions, including those of this court, had this to say:

“The above remarks are clear and unequivocal. A person who represents a legal entity, when challenged, must show that he is duly authorised to represent the entity. His mere claim that by virtue of the position he holds in such an entity he is duly authorised to represent the entity is not sufficient. He must produce a resolution of the board of that entity which confirms that the board is indeed aware of the proceedings and that it has given such person the authority to act in the stead of the entity. I stress that the need to produce such proof is necessary only in those cases where the authority of the deponent is put in issue. This represents the current state of the law in this country.” (emphasis added)

[27]	Applying the above principle, which in my view, applies even to this case, where the authority of the deponent to defend the proceedings on behalf of the Minister was put in issue, it was required that such proof of authority be produced. Ms Magunde, in her oral submissions, could not address this requirement from the settled law. The proof of the deponent’s authority was never produced. There were no attempts made to seek any further period to do so. The issue was raised in the answering affidavit filed on 23 September 2024, and, therefore, the respondent had ample time to satisfy the court of the deponent’s authority. Given the above Supreme Court authority on the current state of the law, the respondent could not rely on earlier decisions of this court in Zimbabwe Banking Corporation and Mapendeke & Ors in relation to the issue before me. In any case, those decisions did not deal with the requirement that, once challenged, the authority must be produced. In the absence of such proof of authority, the opposing affidavit was a nullity, rendering the opposition before me invalid.

[28]	The respondent also sought to rely on rule 58(4) to argue that the Permanent Secretary could competently dispose to the affidavit as he could rely on office documentation and is the senior administrator in the Minister’s office. That rule reads:

“(4) 	An affidavit filed with a written application –

(a)	Shall be made by the applicant or respondent, as the case may be or by a person who can swear to the facts or averments set out therein…”

Rule 58(4)(a) relates to the competence to depose to an affidavit or give evidence through an affidavit. The provision does not detract from the principle that when a person’s authority to act for another is challenged or put in issue, the proof of authority must be produced. The deponent did not produce such proof of authority upon being challenged, making the purported opposing affidavit a nullity.

[29]	In any case, even if such authority was there or if my above finding is to be regarded as incorrect, I would still find the opposition before me invalid on the alternative reason that it was legally incompetent for the Permanent Secretary to speak for the Minister. It was only the Minister who could depose to an affidavit in this case as the matter involved the exercise of his statutory power, which he could not delegate. The deponent’s opposing affidavit, in my view, constituted inadmissible hearsay evidence. Rule 58(4)(a) reinforces the rule against the admissibility of hearsay evidence.

[30]	As was confirmed in Mukwaira v Minister of Lands, Agriculture, Fisheries, Water and Rural Settlement SC 15/24, the Minister is empowered in terms of s 17(1) of the Land Commission Act to lease, sell or otherwise dispose of the State land subject to such conditions as he or she may determine. The court further considered ss 23 and 26 of the said Act and held that it is apparent from these provisions that the Minister has the power to issue offer letters on such conditions as he or she may determine. One of the conditions, being condition 7, empowered him to withdraw the offer of land as he did. The withdrawal is not in terms of s 27 of the Land Commission Act, as that is exercised by the President. The court further confirmed that the unsavoury position is that the conditions are determined and enforced by the Minister, but the need to act lawfully, reasonably and fairly when the Minister exercises such administrative authority cannot be overemphasised. It is, therefore, clear that when withdrawing an offer letter, the Minister exercises statutory power. He is required by s 3 of the Administrative Justice Act and s 68 of the Constitution, which establishes the fundamental right to administrative justice, to perform his obligations in accordance with the law. The exercise of those functions is that of the Minister and not the Permanent Secretary. He cannot delegate that statutory power in the absence of express authority from the provisions of the Land Commission Act.

[31]	In relation to the exercise of that statutory power and the performance by him of his statutory and constitutional obligations, it is only the Minister who can competently speak or depose to the affidavit. The Permanent Secretary cannot do so on his behalf. This is also what was confirmed in the Cargo Carriers case, supra. In that case, the Supreme Court quoted from Kensington Estates (Pvt) Ltd v Min of Justice & Internal Affairs 1957 R & N 92 at 96; 1956 (3) SA 468 (SR) at 471C-F, to this effect:

“The Minister is normally the head of the Government Department administering the Act, and as such takes responsibility for the acts of his Department. No Minister can possibly have the time at his disposal to investigate in detail all the problems which this Act alone raises, nor can he be expected to apply his mind to them in the same thorough manner as, for example, an officer charged specifically with the duty of investigating a particular problem. The Minister usually lays down the broad framework of the policy of his Department, but within the framework of that policy he can never be expected to give more than cursory consideration to the numerous points of detail which arise in the course of administration. He may not perhaps be permitted to delegate his powers, but in matters of administrative detail he must rely very largely on the advice of the officers of his Department.” emphasis added).

See also the case of Francis Bere v Judicial Service Commission & Ors HH 269-20 where the court found that since it was the first respondent in that matter which had the constitutional duty to advise the President on the question of removal of a judge from office it could not delegate the function of defending that decision in a court of law to its Acting Secretary.

[32]	In an application for the review of the Minister’s decision, the Minister must depose to the affidavit. He is the only one who made the administrative decision. He is the one who exercised his mind on the facts following the representations made before him and rendered the decision to withdraw the offers. The matter in casu related to an important national resource, that is, land, and which also constitutes the source of livelihood of the affected individuals or persons. The issue touches on the enforcement of the fundamental right to administrative justice enshrined in s 68 of the Constitution and embodied in s 3 of the Administrative Justice Act. This is an important matter which involves, as it does, the accountability of the Minister in the exercise of the power entrusted to him by statute. In that context, the Minister cannot delegate such an important issue where accountability is sought for his conduct or actions. It is the Minister who can tell the court what went on in his mind when dealing with the matters raised in the application for review of his decision and the factors he considered or did not consider.

[33]	The Permanent Secretary cannot simply review the record of papers before the Minister and speak on what passed through the Minister’s mind and how he exercised his mind on the matter. It is only the Minister who can justify his decision as the decision-maker. The affidavit by the Permanent Secretary would constitute inadmissible hearsay evidence. I fully associate myself with the following remarks by the South African High Court in Minister of Home Affairs & Anor v Helen Suzman Foundation & Ors [2023] ZAGPPHC 1835 at para 12, where the court aptly said:

“What renders the Minister’s application destined for failure is the Minister’s failure to depose to the answering affidavit in the review proceedings. Only the Minister, as the decision maker, could give evidence as to what passed through his mind and how his mind was exercised. The affidavit deposed to by the Director-General (“the D-G”) constitutes inadmissible evidence. As was held in Freedom Under Law v Judicial Services Commission [[2023] ZASCA 103] if the decision maker has failed to depose to an affidavit, it is impermissible for a functionary in the office to do so on behalf of the decision maker. In those circumstances, the affidavit of the functionary falls to be declared inadmissible.” (emphasis added)

[34]	It is trite that the effect of a founding affidavit based not on personal knowledge but hearsay, [the principle buttressed in rule 58(4)(a)] is that there is no valid founding affidavit and, therefore, no valid application before the court. This position was endorsed by the Supreme Court in Bubye Minerals (Pvt) Ltd v Rani International Ltd SC 60-06 at p 6, where CHEDA JA (as he then was) held that:

“Kantsouris is an employee of the applicant. It was not disputed that at the time of the transactions, he was not in the employ of the applicant. It was submitted on appeal that he had access to the records of the company and also consulted the company’s employees.

Clearly what knowledge he got was obtained as a result was hearsay.

Rule 67 of the Rules says:

“No evidence may be adduced by the plaintiff otherwise than by the affidavit a copy of which was delivered with the notice nor may either party cross-examine any person who gives evidence viva voce or by affidavit.”

This clearly shows that the evidence on the affidavit of the applicant should be based on personal knowledge and not on hearsay.

It follows that the affidavit of Kantsouris was not based on personal knowledge but on hearsay.

The effect is that there was no proper affidavit founding the application and therefore no valid application before the court.” (emphasis added)

The above reasoning equally applies to an opposing affidavit. It is trite that the respondent’s opposition to an application stands or falls on its opposing affidavit. Once the opposing affidavit is based on hearsay evidence, it is invalid and, therefore, there is no valid opposition before the court. In casu, as I have already found, the affidavit by the Permanent Secretary was invalid as it was based on hearsay. Consequently, there was no valid opposition before the court.

[35]	It is on the above premises that the point in limine was upheld. The court struck out the respondent’s purported opposing papers, and the matter proceeded as unopposed.

THE UNOPPOSED APPLICATION

[36]	Mr Madhuku submitted that the application be granted in terms of the draft. The court was satisfied that the order sought ought to be granted. Costs shall follow the cause. There was no justification for costs to be awarded on a punitive scale. Accordingly, the court issued the following order:

1. 	The decision of the respondent to withdraw the offers of land held under the Land Reform Resettlement Programme by the applicants in respect of Springs Farm in Goromonzi District of Mashonaland Province be and is hereby reviewed and set aside.

2. 	For the avoidance of doubt, what is being set aside is the withdrawal of the following offers of land:

2.1.	1st Applicant: Subdivision 1 of Springs Farm measuring 350.3 hectares.

2.2. 	2nd Applicant: Subdivision 2 of Springs Farm measuring 105.96 hectares.

2.3. 	3rd Applicant: Subdivision 3 of Springs Farm measuring 88.3 hectares.

2.4. 	4th Applicant: Subdivision 6 of Springs Farm measuring 23.5 hectares.

2.5.	5th Applicant: Subdivisions 4 & 5 of Springs Farm measuring 100.7 hectares.

3. 	The respondent shall pay the costs of this application.

DEMBURE J:   ………………………………………………

Lovemore Madhuku Lawyers, applicants’ legal practitioners

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