Teviot Trust (Private) Limited Versus Minister OF Lands, Agriculture, Water, Climate AND Rural Resettlement NO AND Kaseplan Grand Industries (Private) Limited

### Preamble

1

HH 659-25

HCH 3383/20

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TEVIOT TRUST (PRIVATE) LIMITED

versus

MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE AND RURAL RESETTLEMENT NO

and

KASEPLAN GRAND INDUSTRIES (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE,

MHURI J

HARARE 15 August & 23 October 2025

Opposed Application

GRG Sithole with A Kadye, for the applicant

G Madzoka with T Mubhemi, for the second respondent

No appearance for the first respondent

MHURI J

Applicant filed this application seeking a declaratur to the effect that:

1. Application for a declaratory order be and is hereby granted.

2. It is declared that the Certificate of Title Number 3873/56 held by Teviot Trust (Private) Limited over a certain piece of land situate in the District of Salisbury, being Lot 1A of Teviotdale, measuring 147, 1169 Morgen is valid and effectual for all intents and purposes.

3. It is declared that the acquisition of Lot 1A of Teviotdale in terms of Gazette No. 330 published on 18 June 2004 and 25 June 2004 was outside the provisions of the law, more particularly section 16B (2) (a) and 16A of the Constitution of Zimbabwe and is therefore invalid and is accordingly set aside.

4. The consequential endorsement of Applicant’s Deed of Transfer is equally set aside and Applicant’s Deed of Title is therefore restored.

5. Any offer letters issued by the Respondent after18 June 2004 in respect of the aforesaid property declared invalid and therefore set aside.

6. Each party bear its own costs

The facts of the matter are that the applicant is a registered owner of a piece of land situate in Salisbury called Lot 1A Teviotdale measuring 362,653 square meters and held under Certificate of Title Number 3873/56. Sometime in 2001, the Applicant made an application to the City of Harare to have the remainder of the Teviotdale incorparated into the City of Harare, such that the Farm is incorporated within Harare Municipal Boundaries. The application was approved in January 2004 and the same was advertised for incorporation. However, on the 18th and 24th of June 2004, the first Respondent proceeded to gazette a notice of the Government’s intention to acquire Lot 1A OF Teviotdale in the Government Gazette. The Land regardless of the written objection that was lodged by the Applicant was however acquired leading to the application for a declaratory order that was filed in 2020.

The application was not opposed by the first respondent and a default judgment was granted in favour of the applicant. Later the second respondent then sought to have the order rescinded on the basis that as a holder of an offer letter in respect of the Farm, he is an interested person who should have been cited as a party. The order was rescinded.

The present application was strongly opposed. Advocate Madzoka for second respondent raised four preliminary points. The first one on wasted costs was settled at the date of hearing leaving three preliminary points to wit-

1. That the founding affidavit to the application is invalid as it has a computer-generated date.

2. That the Court does not have jurisdiction to hear the matter.

3. That the matter has prescribed.

To substantiate the first preliminary point, it was submitted that in the case of Ariston Management Services v Econet Wireless Zimbabwe Pvt Ltd SC 123/ 23 Mathonsi JA stated that, when commissioning an affidavit, the Commissioner of Oaths must sign and endorse a date on the affidavit. On that note, it was the second respondent’s submission that the founding affidavit is defective for bearing a computer-generated date. As such there is no valid affidavit before the Court and consequently no application before the Court. On that point, the second respondent moved that the matter be struck off the roll.

On the second point, it was second respondent’s submission that this Court does not have jurisdiction to preside over land acquisition matters that are subject to compulsory acquisition by the President in terms of section 16B (2) and (3) of the Constitution of Zimbabwe as amended by Amendment No 17 Act, 2005 (Act No 5/2005).

He summed up this submission by stating that the Farm was part of agricultural land and therefore the provisions of section 16B (2) (a) (i) and (3) apply to it.

On the third issue, second respondent submitted that if applicant wants to debate the legality of the Acquisition of Lot 1A of Teviotdale, then there is no basis, as that right has been extinguished by prescription. The Applicant became aware of the identity of the 1st Respondent and the President as the acquiring authority and the alleged irregularity in the acquisition process in 2004, The present proceedings for the setting aside of the acquisition of the farm were instituted in 2020, outside the three-year prescription period stated in section 15(d) of the Prescription Act [Chapter 8.11] (THE ACT). The claims by the Applicant have accordingly prescribed and must be dismissed. The claim for the setting aside of the offer letters is subsidiary to that for the setting aside of the compulsory acquisition of the farm. The two are inseparable. Accordingly, the claim for the setting aside of the offer letters prescribed in terms of section 15d of the Prescription Act as read together with section 14 of the same Act. The offer letter issued to the 2nd Respondent was issued to it in 2011. The Applicant could easily have obtained knowledge of the offer letter by exercising reasonable care, as per the proviso to section 16(3) of the Prescription Act, so it was submitted.

In response to the preliminary issues raised by second respondent, Advocate Sithole on behalf of the applicant, made the following submissions.

Firstly, he voiced his concerns on the manner the issues were raised in that they were not pleaded. As regards the first issue he submitted that the point could have been raised earlier rather than at the day of hearing as this is prejudicial to the applicant. He went further to explain that there are practices that happen in practice and it is obvious that the date was inserted at the law firm where the affidavit was drafted and the commissioner endorsed his signature. Further he averred that leading evidence from the bar causes prejudice and as such the point in law ought to be dismissed and not entertained at all. On the issue of jurisdiction, he argued that the case of Fletcher v Minister of Lands, Agricultural, Water, Climate and Rural Resettlement CCZ 19/24 as well as CCZ 14/25 has resolved the point that this Court can entertain a challenge of an unlawful acquisition which is invalid.

As regards prescription, it was submitted that it has to be pleaded specifically and not from the bar or heads of argument. Further he submitted that where a claim is a vindication, it cannot prescribe against the owner of the property. More so the 2nd respondent is not the occupier of that land but rather a tenant of the State and as such should not raise the issue of prescription as it is not the owner of the property in question. It was submitted that the point on prescription ought to be dismissed since the demand was on the 1st respondent and not the 2nd Respondent. Applicant moved that all the three points be dismissed.

It is an established position that a point of law can be raised at any time even on appeal for as long as it goes to the root of the matter and is dispositive of the matter and also does not cause prejudice to the other party which cannot be cured by an order of costs. It is however prudent in my view for the party that intends to raise such points in limine to alert the other party in advance so that the other party does not feel ambushed when the points are raised at the eleventh hour in the hearing.

I will deal first with the issue of prescription as I am of the view that if found to have been well raised and the matter is found to have prescribed it will at that juncture dispose of the matter and it will be unnecessary to deal with the other points raised.

Section 20 of the Prescription Act [Chapter 8:11] provides as follows:

“Prescription to be raised in pleadings.

1. No court shall of its own motion take notice of prescription

2. A party to litigation who invokes prescription shall do so in the relevant documents filed of record in the proceedings;

3.Provided that a court may allow prescription to be raised at any stage of the proceedings.”

In casu, it is common cause the issue of prescription was not pleaded specifically by way of filing a special plea. It was raised in the heads of argument and persisted with at the commencement of the hearing. In view of the proviso to the above s20 which gives the court a discretion to allow the raising of the issue at any stage of the proceedings, I exercise that discretion in favor of allowing the raising of the issue of prescription.

As stated earlier, applicant is seeking that the acquisition of Lot 1A of Teviotdale in terms of Gazette No. 330 published on 18 June 2004 and 25 June 2004 be declared invalid as it was outside the provisions of the law, more particularly section 16B (2) (a) and 16A of the Constitution of Zimbabwe. Applicant filed this application in 2020, this was way beyond the three-year period provided in the Prescription Act. Section 2 of the Prescription Act [Chapter 8:11] provides as follows:

“2. Interpretation

In this Act— “debt”, without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”

It is not in doubt that applicant’s case falls under the ambit of section 2 above applicant ought to have filed these proceedings within 3 years of the year 2004.

Section 15 of the said Act provides the prescription periods of debts and in-particular subparagraph (d) provides that,

“except where any enactment provides otherwise, 3 years, in the case of any other debt.”

The issue has a bearing on the application before me, namely whether it is properly before me to determine it. As rightly submitted by second respondent’s counsel, correctly so, applicant cannot seek to challenge the acquisition of the Farm that was done in 2004. He is time barred, and consequently the setting aside of the offer letters by the State to the second respondent that were issued in 2011 are also time barred. That right to challenge has been extinguished by prescription.

Section 14 provides for extinction of debts by prescription.

It provides as follows:

“(1) Subject to this Part and Part V, a debt shall be extinguished by prescription after the lapse of the period which in-terms of the relevant enactment applies in respect of the prescription of such debt.

(2) A subsidiary debt which arose from a principal debt or a debt which is dependent upon a principal debt shall be extinguished by the prescription of the principal date.

(3) …………………………………………………………………………….”

I find therefore that this point was well taken and I uphold it.

To that end my finding is that there is no application before me. This determination is dispositive of this matter, consequently I shall not proceed to determine the other points in limine.

In the result, the following order is made, that the application be and is hereby struck off with costs.

MHURI J…….

Mlotshwa Solicitors: applicant’s Legal Practitioners

Chimwamurombe Legal Practice: second respondent’s Legal Practitioners