Crest Breeders International Private Limited v Minister of Lands Agriculture, Water, Fisheries and Rural Development and 12 Others

### Preamble
Judgment No. SC 98/25
1
Civil Appeal No. SC 639/22
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REPORTABLE (98)

CREST    BREEDERS    INTERNATIONAL     PRIVATE    LIMITED

v

MINISTER     OF     LANDS      AGRICULTURE,     WATER,     FISHERIES     AND RURAL     DEVELOPMENT     AND     12     OTHERS

SUPREME COURT OF ZIMBABWE

BHUNU JA, CHIWESHE JA, MUSAKWA JA

HARARE: 6 MARCH 2023 & 30 OCTOBER 2025

L. Uriri, with T.S. Nyawo for the appellant

L.T. Muradzikwa, for the first and second respondents

J.Koto for the third to thirteenth respondents

CHIWESHE JA:	This is	an appeal against the whole judgment of the Administrative Court (the court a quo) sitting at Harare, dated 22 November 2022, wherein the court a quo dismissed with costs on the attorney and client scale the appellant’s application for the registration of the Memorandum of Agreement (the agreement) entered into between the appellant, on the one hand, and the Government of the Republic of Zimbabwe, on the other.

Aggrieved by the decision of the court a quo, the appellant noted the present appeal.  We heard the appeal on 6 March 2023. At the close of submissions we gave an order in the following terms:

“1. The appeal be and is hereby allowed with costs on the attorney and client scale.

2.  The judgement of the Administrative Court in ACC 33/22 (Judgment No. HC22/22) given on 23 November 2022

be and is hereby set aside and substituted with the following:

‘(a) The application for registration of the Memorandum of the Agreement entered

into between the applicant and Government of the Republic Zimbabwe be and is hereby granted.

(b) The Memorandum of Agreement entered into between the applicant and the

Government of the Republic of Zimbabwe be and is hereby registered in terms

of s 6 (1) of the Administrative Court (Land Acquisition) Rules of 1998.

(c) The third to thirteenth respondents shall pay the severally, the one paying the others to be absorved, costs of this application on the

legal practitioner and client scale’.

We indicated that our reasons for that order would follow in due course.  Counsel for the 3rd to 13th respondent’s has requested that we so give our reasons.  Here they are;

THE FACTS

The appellant is the former owner of the property described as the remaining extent of Saturday Retreat, situated in the district of Salisbury, measuring 1057, 3810 hectares, held under Deed of Transfer 4085/1986 (the property). On 19 April 2013, the first respondent notified the appellant of his intention to compulsorily acquire the property in terms of s 5 (1) of the Land Acquisition Act [Chapter 20:10] (the Act).  The appellant was opposed to the intended acquisition and duly noted its objections with the first respondent.  Dissatisfied with the appellant’s objections, the first respondent proceeded to issue an order for the compulsory acquisition of the property.  Thereafter, the first respondent approached the court a quo for an order confirming the acquisition.  The appellant opposed the application but during the proceedings, the parties met and successfully negotiated a settlement.   A memorandum of agreement was signed between the appellant and the second respondent representing the Government of Zimbabwe.  In terms of that agreement, the appellant was to be fully compensated for the acquired property.  By then part of the property had been occupied by the third to thirteenth respondents.  It was agreed that the appellant be allocated the remaining unoccupied 407 hectares and that it be paid $ 4 per square metre by each occupant on the remainder of the property.  The resultant memorandum of agreement was presented to the court a quo as a deed of settlement in terms of which a consent order was granted, registering the same.  That consent order had been scrutinized and confirmed by this Court on appeal.

The third to thirteenth respondents (the core respondents) were dismayed by that development.  They sought rescission of the court order registering the agreement.  The order was rescinded by consent of the parties.  Thereafter, the core respondents` filed their opposing papers. In its ruling, the court a quo confirmed the compulsory acquisition of the property.  The court a quo, however, did not deal with the question of compensation.  The appellant then approached the court a quo with an application for compensation.  It argued that a party whose land is compulsorily acquired is entitled to compensation where the property so acquired is urban and not agricultural land. It submitted that it had reached agreement with the acquiring authority as to how it would be compensated.  It sought to have this agreement registered by the court a quo.  It argued that the core respondents had no right to object to the registration of the agreement as they were not privy to it.

The core respondents opposed the application for registration, arguing that the agreement was invalid as it contravened the law in that it provided for the retention of title by the appellant and yet the law provided that title now vests in the State.  Further, they contended that the agreement allowed the appellant to retain a portion of the property, a position contrary to law.  In particular, the core respondents objected to the provisions of that part of the agreement which imposed on them the obligation to compensate the appellant without their consent.  They alleged that the agreement had been secured through the fraudulent conduct of the appellant.  They prayed that the application be dismissed.

The court a quo found that the appellant’s failure to initially cite the core respondents in the application was deliberate and malicious.  It held that the core respondents had a real and substantial interest in the property as they were living in houses built on the property. For that reason, the court a quo ruled that the respondents had locus standi to oppose the application.  It found that the agreement that the appellant sought to register was invalid as it purported to bind parties who were not privy to it.  It also found, as argued by the core respondents, that the agreement was inconsistent with the provisions of the Act.  It noted that both the Minister of Lands and the Minister of Local Government had not supported the appellant in the application before it. In the result, the court a quo dismissed the application with costs.

Aggrieved by that decision, the appellant noted the present appeal on the following grounds;

GROUNDS OF APPEAL

The court a quo erred in not finding, as it ought to have done, that the sovereign state of Zimbabwe has eminent domain over all private property within its territory, can acquire such property or any interest in such property in the public interest against payment of compensation, control or regulate and enter into agreements regarding the use of acquired land under its jurisdiction in the public interest.

The court a quo erred and misdirected itself in not finding, as it ought to have done, that the agreement between the appellant on the one hand and the first and second respondents, representing the state of Zimbabwe (the government) was within the state’s power of eminent domain and “sine quo non” (sic) to the consent order between the said parties confirming the acquisition of the land in issue and as such could be registered as an order of court incidental to the acquisition proceedings.

In addition or alternatively, the court a quo erred in not finding that the agreement was one capable of registration pursuant to r 8 of the Administrative Court (Land Acquisition) Rules, 1998, SI 394/1998 as read with part V of the Land Acquisition Act, as agreed compensation between the land owner and the acquiring authority within the context of and incidental to the acquisition proceedings before the Administrative Court.

4. The court a quo erred in disregarding the fact that it had previously registered the said agreement between the appellant and the government and the agreement had been found to be regular by the Supreme Court in the face of similar arguments as were presented before it by the third to thirteenth respondents.

5. The court a quo erred in disregarding binding Supreme Court authority in prior litigation between the same parties and or their privies regarding the distinction between locus standi to seek joinder and locus standi to challenge the validity of the agreement and that the third to thirteenth respondents had no interest in the agreement.

6. The court a quo erred in effectively overturning its own previous judgment and that of the Supreme Court which held that the agreement between the appellant and the government respondents was regular, was not procured by fraud and that the third to thirteenth respondents had no locus standi to challenge its validity.

7.  A fortiori the court a quo erred in not holding, as was urged upon it, that the question of the third to thirteenth respondents’ locus standi and the question of the validity of the agreement aforesaid was res judicata having been pronounced upon by both the court a quo and the Supreme Court as well having been pronounced upon by the High Court and a review of the underlying transaction having failed in the Constitutional Court.

8. The court a quo erred in holding that as the first and second respondents, who had filed papers consenting to the order sought, were in default on the date of hearing, they had not persisted with their support for the application.

RELEIF SOUGHT

The appellant sought the following relief:

“1. That the appeal be and is hereby allowed.

2. That the judgment of the court a quo be and is hereby set aside and in its place substituted with the following:

‘(a) The application for registration of the memorandum of agreement    entered into by the applicant and the Government of Republic of Zimbabwe as represented by the second respondent as an order of court be and is hereby granted.

(b) Consequently, the memorandum of agreement entered into by the applicant and the Government of Zimbabwe as represented by the second respondent is hereby registered as an order of court.

(c)   The third to thirteenth respondents shall pay costs of this application at the legal   practitioner and client scale.’

3. The third to the thirteenth respondents shall pay severally, the one paying the others to be absolved, the costs of this appeal at the legal practitioner and client scale.”

ISSUES FOR DETERMINATION

The grounds of appeal raise the following pertinent issues:

Whether or not the court a quo erred in not holding that the issues raised in the application before it were res judicata.

Whether or not the court a quo erred in holding that the core respondents had locus standi in judicio to prosecute the application before it.

Whether or not the court a quo erred in dismissing the application for the registration of the agreement entered between the appellant and the first and second respondents on the grounds that same had been fraudulently procured.

Whether or not the court a quo erred in holding that the first and second respondent’s being in default on the day of hearing, had for that reason, not persisted in their support of the application despite filing papers consenting to the order sought.

The first issue is potentially dispositive of this appeal.  It should have been raised as a preliminary issue, challenging the very jurisdiction of the court a quo to entertain the matter before it.

It is common cause that in a previous matter, the same or a similar application for the registration of the same agreement had been lodged before the court a quo.  The application was granted by consent of the appellant and the first and second respondents.  It is that consent order that the core respondents belatedly sought to rescind on the grounds that same had been granted in error or fraudulently and must be rescinded in terms of r 449 of the High Court Rules, 1971.  In that hearing, the appellant raised a number of points in limine.  It submitted that the application for rescission had been made out of time without condonation, that the core respondents lacked locus standi in judicio to seek the rescission of an order relating to an agreement to which they were not  party and that there was no fraudulent misrepresentation in the grant of the consent order.  The court a quo upheld these preliminary points.  Dismayed with that result, the core respondents noted an appeal with this Court under SC 161/20.  The appeal was dismissed in its entirety.  In its judgment SC 19/21, this Court emphatically stated, at p 2 of the cyclostyled judgment, that:

“This court finds that the appeal is completely devoid of merit.  It ought to be dismissed with costs.”

It is evident that in the instant matter, the issues upon which the core respondents approached the court a quo for rescission of its judgment and a fresh hearing had already been determined by this court in favor of the appellant.  It is also evident that the court a quo erred in entertaining a matter with regards to which it had previously rendered a determination which determination had been confirmed in all material respects by the Supreme Court on appeal.  Not only was the court a quo functus officio, it disregarded the doctrine of stare decisis by purporting to overturn the decision of this court concerning the same parties, the same facts and the same cause of action.

Specifically, this Court held that the factual finding by the court a quo that the agreement was not as a result of fraud as alleged could not be lightly interfered with as it had not been demonstrated that the findings a quo were not supported by the evidence or were otherwise irrational.  See Shuro v Chiuraise SC 20/19.  The first respondent had given evidence to the effect that the reference in the agreement to the settle’s liability to pay compensation did not include the core respondents as it had made agreement with settlers at the property other than the core respondents.  The court a quo had accepted that evidence and made a factual finding to that effect.  It accordingly rejected the core respondents’ argument that the agreement was fraudulently entered into because it sought to bind them without their consent.  In short, the core respondents who, in any event, were illegal settlers on the property, were not in any way affected by the agreement sought to be registered a quo.

On the question whether the core respondents should have sought condonation in light of the fact that r 449 does not stipulate the period within which an application under it should be made, this Court held that such an application must nonetheless be made within a reasonable time.  It cited in that regard, inter alia, the following authorities: Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290 C-E, Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S).  It further held that where an application under r 449 is to be lodged out of time, it must be preceded by an application for condonation, accompanied by an acceptable explanation for the failure to act timeously.  No such application having been made, when the period of delay was five years, this Court confirmed the decision of the court a quo to uphold the preliminary point raised by the appellant.  The core respondents could not be heard in the absence of a successful application for condonation.

With regards the question of locus standi, this Court drew a distinction between “locus standi” to seek rescission of a judgment and the right to overturn a deed of settlement entered into between the appellant and the Government of Zimbabwe.  It ruled that the former was a procedural issue which could be determined as a point “in limine” whilst the latter was a substantive issue going to the merits of the case.  It noted that the court a quo had failed to make that distinction and proceeded to make its decision on the merits and not on the procedural point raised by the appellant, namely whether the core respondents had the right to litigate in the first place.  It held, however, that it was unnecessary for the court a quo to do so, having upheld the other points taken “in limine”.  It added, however, the following rider: “Our finding in that regard however does not assist the appellants in this appeal given that the upholding of the other points “in limine” by the court a quo cannot be faulted.”

In view of the decision of this Court under SC 19/21, we concluded that the issues raised in the court a quo and in the present appeal are “res judicata”.  The requirements for a plea of res judicata are well settled.  In Banda & Ors v Zisco 1999 (1) ZLR 340 SC this Court held as follows:

“The requisites of the plea of “res judicata” have been set out in a number of previous cases.  In Pretorius v Barkly East Divisional Council 1914 AD 407 at 409, Searle J set them out as follows:

‘As to the first point, the requisites for a plea of “res judicata” have several times been laid down in this Court.  The three requisites of a plea of “res judicata”, said the Chief Justice in Hiddingh v Denysen & Ors (1885) 3 Menz 424, quoting Voet A (44.2.3), are that the action in respect of which judgment has been given must have been between the same parties or their privies, concerning the same subject matter and founded upon the same cause of complaint as the action in which the defence is raised …

In order to determine the cause of complaint, the pleadings and the evidence in the case must be looked at.’”

These requisites are satisfied in casu in that the cause of action remains the registration or lack thereof of the agreement, the issues determined in SC 19/21 are the same as those raised in the court a quo, namely,

whether under r 449 an applicant who does not act within a reasonable time is required to seek condonation to file his application out of time in view of the fact that r 449 does not provide any time limits,

whether the consent order in the court a quo was induced by fraud, and,

whether the core respondents had “locus standi in judicio” to bring the application        a quo.

It is also trite that the parties in the dispute determined under SC 19/21 are the same as the parties who appeared in the court a quo.  That being the case, the court a quo should not have resurrected a matter already concluded and dismissed by this Court.  It was res judicata and the court a quo should have declined jurisdiction.  It is trite that the court a quo, being inferior to the Supreme Court, is bound by the decisions of this Court.  There was therefore no basis for the court a quo not to abide by the decision of this Court.

That being the case, it is not necessary to consider the merits of the second, third and fourth issues, save in relation to the question of costs. In our view the core respondents embarked from the very beginning, in a futile exercise to assert what they perceived to be their rights with regards the property in question. Firstly, they were not privy to the first and second respondents. They should not have claimed “locus standi in judicio” on that bases.

Secondly, they could not have made the same claim on the basis that although not privy to it, the provisions of the agreement adversely affected as settlers to pay compensation to the appellant. The first and second respondents have stated that the settlers or occupies referred to in the agreement are not the core respondents. They categorically stated that they had engaged persons other than the core respondents for purposes of paying compensation to the appellant with regards a portion of the property. Indeed the core respondents were away of this position as evidenced by the reference in para 70 and 106 of their heads of argument to offers to members of the public of the stands being demarcated on the portion of the property that they occupied. In short the core respondents were neither privy to the agreement nor were they adversely affected by its terms.

Thirdly, the core respondents describe themselves as “beneficiaries” of the land reform programme. In that regard, they have not shown that they have been legally settled on the property by way of officer letters, permits or lease agreements issued to them by competent authorities. If truth be told, the core respondents are illegal settlers, with no legitimate claim to the appellant’s property.

Despite these glaring short comings, the core respondents have persisted with their claims, thereby putting the appellants unnecessarily out of pocket for that reason we found that, the appellant’s request for cots on the legal practitioner and client scale was meritorious.

DISPOSITION

It was for these reasons that we allowed the appeal in terms of the order cited above.

BHUNU JA		:	I agree

MUSAKWA JA		:	I agree

Nyawo Ruzive Attorneys, applicant’s legal practitioner.

Civil Division of the Attorney General`s office, 1st & 2nd respondent`s legal practitioners.

Koto & Company, 3rd to 13th respondent`s legal practitioners.