1
HH 395-15
HC 3876/13
STANLEY MHONDORO
versus
BEN MUTAMBU
and
ADMIRE GADZIKWA
and
CHENJERAI MUGWAGWA
and
THE MINISTRY OF LANDS AND RESETTLEMENT
HIGH COURT OF ZIMBABWE
MUREMBA J
HARARE, 3 & 4 March 2015 and 22 April 2015
Civil Trial
T Mugabe, for the plaintiff
S Mpofu, for the first, second & third defendants
MUREMBA J: The plaintiff’s claim is for:
- The ejectment of the first, second and third defendant from Lion Kopje Farm in Zvimba District of Mashonaland West Province;
- A declaratur that the plaintiff is the lawful occupier of Lion Kopje Farm;
- A declaratur that 1st, 2nd and 3rd defendants’ occupation of Lion Kopje Farm is unlawful as of 16 July 2012;
- The confirmation of the cancellation by the 4th defendant of 1st, 2nd and 3rd defendants’ offer letters
- Alternatively an order compelling the 4th defendant to do all things necessary including , but not limited to evicting 1st, 2nd and 3rd defendants, allocating them alternative land and transporting them to thereto, in order to grant the plaintiff vacant possession of Lion Kopje Farm;
- Costs of suit on an attorney and client scale.
In the summons the plaintiff had also made a claim for holding over damages in the sum of US$300-00 per month calculated from 16 July 2012 to date of first, second and third defendants’ ejectment from Lion Kopje Farm. However in leading evidence during trial the plaintiff indicated that he was abandoning this claim.
The facts of this case are as follows. Lion Kopje Farm is 624.40 hectares in extent. The plaintiff is the local chief of the area where Lion Kopje Farm is situated. The plaintiff was allocated the farm in question by way of an offer letter dated 16 July 2012 which was issued by the fourth defendant’s ministry (the Ministry of Lands and Rural Resettlement). He accepted the offer by signing the offer letter. The offer letter was tendered in evidence as Exhibit 1.
During cross examination of the plaintiff Mr Mpofu took issue with the fact that the plaintiff had accepted the offer that had been made to him on 16 July 2012 on 3 September 2012, more than 30 days after the offer had been made to him which is contrary to para 4 of the offer letter which says that acceptance or otherwise of the offer should be made within 30 days. The point that Mr Mpofu was making was that the plaintiff’s acceptance of the offer was made out of time and was therefore irregular and invalid. The plaintiff struggled to answer this question and failed to give a meaningful answer. It was only during re-examination that he was able to explain clearly that the letter was written on 16 July 2012 in Harare at the fourth defendant’s offices. It was then received by the fourth defendant’s Chinhoyi office on 7 August 2012 as evidenced by the date stamp. It was then served on him and he signed the offer letter to indicate his acceptance on 3 September 2012. I found his explanation logical and there is no evidence to rebut it. With this explanation what is shown is that the plaintiff accepted the offer before the expiration of 30 days of the offer having been made to him. However, I must hasten to point out that even if the plaintiff had accepted the offer after 30 days it is not for this court to make a declaration that his acceptance of the offer is invalid, but for the fourth defendant. Paragraph 7 of the offer letter reads,
“The Minister reserves the right to withdraw or change this offer letter if he deems it
necessary, or if you are found in breach of any of the set conditions. In the event of a
withdrawal or change of this offer, no compensation arising from this offer shall be
claimable or payable whatsoever.”
So for as long as the fourth defendant (the Minister) has not withdrawn the offer for the breach of the set conditions this court cannot say the acceptance of the offer is invalid.
During the defendants’ cases the following evidence was led. The first three defendants together with many other people took occupation of this farm in 2000. At that time nothing authorised their said occupation of the farm. However, their occupation was regularised by way of individual letters which were issued by the District Administrator of Zvimba in February 2004. The defendants argue that it is these letters which granted them and still grant them lawful permission up to this day to stay on the farm. A sample of these letters is the one which was issued to the second defendant. It was produced as exh 2. It reads as follows:
“The District Administrator
Zvimba
P Bag 2030
MUROMBEDZI
27.02.04
TO WHOM IT MAY CONCERN
This minute serves to confirm that GADZIKWA ADMIRE ID Number 63-1055614-P70 was
officially allocated land at Lion Kopje Farm on Plot Number 29 under the resettlement
programme.
In that regard we are requesting you to render him assistance.
C Chitiyo
DISTRICT ADMINISTRATOR
ZVIMBA DISTRICT ”.
The letters which were issued in favour of the first and third defendants were produced as exhibits 5 and 6. The District Administrator signed these letters. These letters authorised the defendants to occupy plots 28, 29 and 15 at Lion Kopje Farm respectively. The first defendant said that although he was given an offer letter in 2004 he lost it and was given another one as a replacement. He said this explains why his letter is dated 6 March 2008. The first and the third defendants’ letters were issued on 27 February 2004. All the defendants said that these letters are valid offer letters that were being issued by the District Administrator to A1 farmers.
The second defendant said that the plaintiff then came to this farm in 2006 with an offer letter which entitled him to occupy 350 hectares of Lion Kopje Farm. 350 hectares would fall in an A2 settlement model yet Lion Kopje Farm was being occupied as an A1 settlement scheme. So the Zvimba Land Committee visited the farm to verify if the plaintiff could be accommodated on same Farm. After the visit it compiled a report dated 21 March 2007. That report was produced as exh 3. In that report the Committee made the following observations,
“The farm was pegged to 31 A1 subdivisions. The farm is 623 ha in extent. Mr Mhondoro’s offer letter entitles him to 350ha of Lion Kop. This leaves 271 ha for the 31 A1 beneficiaries. This translates to an allocation of equivalent to 8.74 ha for every beneficiary. There is no room for the A2 subdivision on the farm. The DLC should consider allocating Mr Mhondoro a subdivision elsewhere.”
The second defendant said that as a result the plaintiff was not authorised to stay on this farm. He went away, but came back in October 2009 to be sworn in as a chief. That is when he removed the caretaker who was staying at the farmhouse by force and started staying there. By way of a letter dated 1 August 2012 the District Administrator wrote to the second defendant withdrawing the land offer of Plot number 29. That letter was produced as Exhibit 4. It states that the withdrawal had been necessitated by the reason that Lion Kopje Farm had been offered to Chief Zvimba (plaintiff). The letter further said that the second respondent was being relocated to Plot 96 at Wiy Wichens Farm.
Under cross examination the second defendant said that what authorises his stay at Lion Kopje Farm is exh 2, the letter of 27 February 2004. He said that exh 4, the withdrawal letter of 1 August 2012 is invalid as the withdrawal was done irregularly. His basis for saying so is that the plaintiff’s offer letter is dated 16 July 2012 while his withdrawal letter is dated 1 August 2012. His argument is that procedurally the withdrawal of his offer should have preceded the offer of the land to the plaintiff.
The first and third defendants argue that there is no basis for the plaintiff to seek their ejectment because personally they were never served with withdrawal letters of their offer letters by the fourth defendant.
The first defendant said that whilst he was never served with a written withdrawal of the land offer the District Administrator phoned him and told him over the phone that his land offer had been withdrawn. He said that he has not relocated because he has not been served with a withdrawal letter in respect of Plot number 28 Lion Kopje Farm.
The third defendant said that the District Administrator came to address them as a group and told them to move out of Lion Kopje Farm. He said that other than that no written communication was served on him.
All the three defendants said that because when the District Administrator addressed them he told them that he wanted to remove them by force they came to this court and made an application for an interdict on 14 August 2012 under case number HC 9107-2012. It is common cause that they obtained an interdict in their favour under judgement no. HH 359-2012. In granting the interdict Zhou J interdicted the respondents who included the plaintiff, fourth defendant, the District Administrator and the Officer Commanding Police, Mashonaland West Province from evicting the now defendants from Lion Kopje Farm without an order of the court. However, this was an interim interdict. The now first to third defendants were still going to ask for a final interdict ordering the respondents not to evict them from Lion Kopje Farm until after 30 April 2013. It was not made known to me if the first to third defendants ever came back to get the final interdict. Be that as it may, the fact is that these three defendants have remained on the farm up to this day, hence the present proceedings to have them evicted.
In short the first and the third defendants are refusing to vacate the farm because they were neither served with written withdrawal letters of their land offers nor were they served with any documents which stated that they had been relocated elsewhere.
The second defendant is refusing to vacate because according to him the withdrawal of his land offer on Lion Kopje Farm was done irregularly and as such it is invalid.
This is a case where evidence from the Ministry of Lands and Rural Resettlement would have been very crucial. None of the parties saw the wisdom of calling personnel from this ministry. Their evidence would have helped resolve issues that are in dispute. The issues are as follows:
- Whether or not the letters (exh(s) 2, 5 and 6) which were issued to the defendants by the District Administrator are valid documents that are issued under the A1 settlement scheme giving the holder thereof legal authority to occupy land.
- If these letters give legal authority can they be withdrawn by word of mouth alone without a written withdrawal letter?
In terms of s 2 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] the acquiring authority is the Minister of Lands. In terms of s 3 of the same Act a person may not use or occupy gazetted land without lawful authority. What constitutes lawful authority is an offer letter or a permit or a land settlement lease: See s 2 thereof.
In casu the defendants produced documents which were issued to them by the District Administrator, but since they are not the authors thereof they could not explain much about them. However, the court took judicial notice of the fact that these letters that the defendants produced as exh(s) 2, 5 and 6 which they kept on referring to as offer letters are actually called A1 permits and these are valid permits under the A1 settlement scheme. These permits give the holders thereof the legal right to occupy the allocated land. Two things confirm the validity of these documents and they are as follows.
The first confirmation is the document which was produced as exh 3 which document originated from the Ministry of State Security in the President’s Office in charge of Land Reform and Resettlement in Mashonaland West on 21 March 2007. I have already alluded to this document above. In short it is a report which was written following a visit to Lion Kopje Farm by the Land Committee after the plaintiff had come with an offer letter in 2007 which entitled him to 350 hectares at Lion kopje Farm. The Land Committee indicated that the farm measured 623 hectares and had already been pegged to 31 A1 subdivisions and as such there was no room for an A2 subdivision on the farm. Consequently, the plaintiff was not allocated land on that farm at that time. The Land Committee made a recommendation that the plaintiff be allocated land elsewhere. The report and the recommendation of the Land Committee show that the Land Committee recognised the validity of the permits that the defendants and other occupants had. If these A1 permits were not valid then the plaintiff’s offer letter of 2006 which entitled him to 350 hectares would have supplanted the permits the 31 A1 farmers who occupied the farm had.
The second confirmation is the letter which withdrew the land offer to the second defendant. It is the document which was produced as exh 4 which is titled ‘WITHDRAWAL OF LAND OFFER AND RELOCATION UNDER THE LAND REFORM AND RESETTLEMENT PROGRAMME (MODEL A1): ZVIMBA DISTRICT.’ It goes on to read,
“Kindly be advised that the Zvimba District Land Committee is withdrawing the offer of land made to you in respect of plot number 29 of Lion Kopje Farm in Zvimba District.”
If exh 2 which offered the second defendant title to this land was not a valid permit then exh 4 would not have been written to withdraw the land offer. It would have been unnecessary to make a withdrawal of an invalid document.
A question may be asked about the validity of these permits since they were issued by the District Administrator. Section 2 of the Gazetted Land (Consequential Provisions) Act says:
“ ‘permit’ when used as a noun means a permit issued by the State which entitles any person to occupy and use resettlement land.”
The District Administrator is a State employee. It seems to me that in issuing these permits he was acting as a member of the Zvimba District Land Committee. He is the one who wrote exhibit 4 which is the withdrawal letter. In that letter he said,
“Kindly be advised that the Zvimba District Land Committee is withdrawing the offer of land made to you……Due to the above withdrawal, the same committee is relocating you to Wiy Wichens Farm Plot 96” .
This letter is evidence that the District Administrator was exercising his powers to issue permits and to withdraw them as a member of the District Land Committee. In Maria Sjamok and another v Trust Chinyama and Anor HH 118-15 Mathonsi J said that the Minister of Lands can lawfully delegate the power to issue offer letters, permits or land settlement leases to individuals or bodies like the Rural District Council and/or the Land Committee. He further said that the people on the ground in the Districts who are the eyes of the Minister are the District Land Committees.
In view of the foregoing I conclude that the permits which were issued to the defendants are valid permits as envisaged in s 2 of the Gazetted Land (Consequential Provisions) Act.
Having made a finding that exh(s) 2, 5 and 6 are valid permits entitling the defendants to occupy Lion Kopje Farm the next issue which ought to be determined is the withdrawal of the land offer which was made to the second defendant. It is a fact that the second defendant was served with a letter of withdrawal dated 1 August 2012. That letter of withdrawal remains in force as it has not been set aside. The effect of it is to set aside the permit (exh 2) which was once issued in favour of the second defendant. So as it is, the second defendanthas no lawful authority to remain on Plot number 29 Lion Kopje Farm. Nothing entitles or authorises him to remain on that plot anymore. The argument that the withdrawal is a nullity because it was done irregularly is without substance because the second defendant never sought to challenge the withdrawal from the time he was served with the letter (exh 4) in August 2012. As such it remains in force. In the present case I am not mandated to determine the validity or otherwise of the withdrawal as this is not the issue which is before me.
The first and third defendants were not served with letters of withdrawal. There was verbal communication that they were supposed to vacate from the plots they were allocated in 2004. In the absence of written letters of withdrawal as what was done to the second defendant I am not inclined to grant the plaintiff’s claims against them. There is nothing which sets aside the permits they were given in 2004 and as such they have the lawful authority to remain on the farm.
In the result, the plaintiff’s claim against the first and third defendants is dismissed with costs. In respect of the second defendant, the plaintiff’s claim succeeds in relation to the prayer for eviction and costs only. I will not grant the declaratur that the plaintiff is the lawful occupier of Lion Kopje Farm and the rest of the plaintiff’s claim as he has not succeeded with his claim against the first and third defendants. These two still have permits which entitle them to be on this farm. I will award costs on an ordinary scale for the reason that the second defendant’s defence was not frivolous. He had a permit to stay on the land and having stayed on this farm for more than a decade he queries the way his permit was withdrawn. The unfortunate thing though is that he did not take action to challenge the validity of the withdrawal. He said that it was out of ignorance. He is an unsophisticated rural man. I am not inclined to penalise him for his ignorance. It will be unfair to award costs on a higher scale against him.
It be and is hereby ordered that:
- The second defendant and all those claiming ownership through him are evicted from Lion Kopje Farm in Zvimba District of Mashonaland West Province;
- The second defendant pays the plaintiff’s costs on an ordinary scale.
Nyakutombwa/Mugabe Legal Practitioners, plaintiff’s legal practitioners
Munangati & Associates, Inc Goneso & Associates, 1st – 3rd defendants’ legal practitioners
