Opposed
Application
PATEL
J: The applicant in
this matter seeks an order declaring the legality of her occupation
of a piece of farm land in Seke District and the nullification of the
consolidation of that land with an adjoining farm.
She
also seeks the eviction of the 2nd
respondent and an order for costs against him.
The
1st
respondent (the Minister) resists the application on the ground that
the applicant's right to occupy the land was withdrawn.
The
2nd
respondent has not filed any notice of opposition and is accordingly
in default.
The
1st
respondent was required to file his heads of argument in March 2012
and, having failed to do so, was automatically barred.
However,
there being no objection from the applicant, the bar imposed upon the
1st
respondent was uplifted by consent and his failure to file heads
timeously was also condoned.
Any
costs incurred by reason of his late filing of heads of argument are
to be borne by the 1st
respondent.
Background
In
2002 the Minister allocated Subdivision 2 of Denby Farm to the
applicant through an offer letter dated 2 June 2002.
Thereafter,
the applicant took occupation, prepared the land, moulded bricks for
farm buildings and purchased equipment in anticipation of commencing
farming activities.
In
2005 the Provincial Lands Committee held a meeting chaired by the 2nd
respondent. The meeting took a decision to consolidate the
applicant's farm (Subdivision 2) with the farm allocated to the 2nd
respondent (Subdivision 9) and further resolved that the applicant
should vacate her farm.
The
Minister's position is that the consolidation in dispute was
procedurally effected and that the applicant's offer letter was
automatically withdrawn because she had failed to comply with the
conditions attaching to the offer of land.
It
is common cause that there was no formal communication of the
withdrawal to the applicant, even after a written request by her
lawyers.
The
applicant asserts that her right to occupy the farm has not lapsed or
been legally terminated and therefore still subsists.
She
also challenges the legality of the consolidation process as being
tainted by bias and corruption, having been influenced by the 2nd
respondent for his own benefit.
Additionally,
she contends that any offer letter or lease issued to the 2nd
respondent is not superior to her offer letter and cannot override
her right to occupy the farm.
Issues
for Determination
At
the hearing of this matter, applicant's counsel did not persist
with his point in
limine
contesting the authority of the deponent to the opposing affidavit.
Consequently, the following issues emerged for determination:
(a)
Whether the applicant had duly complied with the conditions attaching
to her offer letter.
(b)
The legality of the process consolidating Subdivisions 2 and 9 of
Denby Farm.
(c)
Whether the 1st
respondent was entitled or empowered to withdraw the offer letter.
(d)
Whether the applicant's offer letter was duly withdrawn or
cancelled.
(e)
Whether the applicant's right to occupy still subsists and whether
it is accordingly recognisable and enforceable.
Compliance
with Conditions
The
conditions applying to the applicant's offer letter required her to
take up personal and permanent residence on the holding upon
acceptance of the offer which was to be communicated to the Minister
within 30 days of receipt.
The
applicant avers that she took occupation of the farm soon after it
was allotted to her and confirmed her acceptance of the offer by
notice dated 29 June 2002.
The
Minister's deponent simply states that the applicant failed to take
up residence or to occupy the land, without addressing her detailed
averments as to the manner in which took occupation.
On
balance, I am satisfied that the applicant's evidence is to be
preferred over the Minister's bare denial. I accordingly find that
she did comply with the conditions of occupation stipulated in her
offer letter.
Legality
of Consolidation
According
to applicant's counsel, which position was not questioned by
counsel for the 1st
respondent, every Provincial Lands Committee is ordinarily chaired by
the appropriate Provincial Governor.
The
applicant's unchallenged evidence is that the relevant 2005 meeting
of the Committee in
casu was
chaired by the 2nd
respondent, who at that time was a Deputy Minister.
That
meeting decided to consolidate the applicant's farm with the farm
allocated to the 2nd
respondent and further resolved that the applicant should vacate her
farm.
The
applicant contends that the 2nd
respondent abused his influence in the Committee to push for the
consolidation of the two farms.
The
only response by the Minister's deponent is that “the 2nd
respondent is best placed to answer these averments”.
The
2nd
respondent himself has failed to oppose this application and has
simply not bothered to deal with the serious allegations against him.
On
the undisputed facts before me, the only inference that can
reasonably be drawn is that the 2nd
respondent did use his position to influence the consolidation
process and the consequent allocation of the consolidated land to
himself.
There
is no explanation as to why he chaired the meeting in question. Even
if such explanation were to be availed, there is no doubt whatsoever
that he simply should not have chaired that particular meeting of the
Committee.
The
basic tenet of our common law is that nemo
debet esse judex in propria sua causa
– no one should be an arbiter in his own cause.
This
time-honoured precept is codified in section 27(1)(b) of the High
Court Act [Chapter
7:06] and in
section 3(1)(a) as read with section 5 of the Administrative Justice
Act [Chapter
10:28].
This
is so for the obvious reason that the proceedings of a public body or
committee should be free from the possibility of bias and the
attendant risk of its incumbents serving their own personal
interests.
It
follows that the decision of the Provincial Lands Committee in 2005
to consolidate the applicant's farm with the 2nd
respondent's farm was vitiated by a fundamental irregularity. It
was tainted ab
initio and
must therefore be declared a nullity.
See
McFoy
v United
Africa Co. Ltd
[1961] 3 All ER 1169 (PC) at 1172; Muchakata
v Netherburn
Mine 1996 (1)
ZLR 153 (S) at 157.
Power
to Withdraw Offer Letter
One
of the conditions attaching to the applicant's offer letter (and
indeed all offer letters issued by the Minister) states that the
offer may be cancelled or withdrawn for breach of any of the
conditions set out therein.
The
applicant's position in this regard, as elaborated by her counsel,
is that the Minister can only exercise powers stipulated by statute.
He cannot withdraw the offer in the absence of an explicit statutory
power to that effect.
In
principle, where the power to create, grant or do anything is
conferred by statute, the administrative authority endowed with that
power can only terminate, revoke or undo that thing by or under that
or another statute.
In
any such case, any administrative action entailing the termination or
variation of statutory rights that is not expressly or impliedly
authorised by statute is ultra
vires the
enabling statute and consequently unlawful.
Powers
may be presumed to have been impliedly conferred because they
constitute a logical or necessary consequence of powers which have
been expressly conferred or because they are ancillary or incidental
to those powers.
As
regards implied powers generally, see Baxter: Administrative
Law (1984) at
pp.404-407.
What
arises for determination herein is the existence or otherwise of a
statutory basis for the creation and termination of rights granted by
offer letters.
The
standard offer letter in use under the Land Reform and Resettlement
Programme (Phase II) states that the offer is made in terms of the
Agricultural Land Settlement Act [Chapter
20:01].
However, no specific provision of the Act is cited in this regard.
Turning
to the Act itself, Part III thereof regulates the settlement of
agricultural land owned by the State.
Section
7 broadly enables the Minister of Lands to establish schemes or make
other provision for, inter
alia, the
settlement of persons on and the alienation to such persons of
agricultural land.
In
terms of section 8 and subject to the Act, the Minister may for this
purpose issue leases to applicants in respect of holdings of land.
By
virtue of section 9, no such lease may be issued to any applicant
until the application has been referred to the Agricultural Land
Settlement Board for its consideration and report under section 10.
Thereafter,
section 11 provides for the issuance of a lease on such terms and
conditions as may be fixed by the Minister.
Section
17(2) specifically empowers the Minister to cancel the lease if the
lessee fails to comply with any term or condition of his lease.
It
is evident from these provisions that the settlement of land under
the Act is to be effected through the issuance of leases following
investigations and reports by the Board.
The
Act clearly does not contemplate the allocation of land for
settlement through offer letters, either on their own or as
precursors to formal leases. By the same token, the Act does not
entitle the Minister or any other authority to cancel offer letters
or to terminate rights conferred thereunder.
The
only statutory reference to offer letters is to be found in the
Gazetted Lands (Consequential Provisions Act) [Chapter
20:28].
The
principal object of this Act is spelt out in its long title, viz.
to make certain provisions that are consequential to the enactment of
section 16B of the Constitution.
That
section was introduced by Act No. 5 of 2005 (Amendment No.17) and
provided for the compulsory acquisition of all Gazetted Land. More
particularly, section 16B(6) envisages an Act of Parliament making it
a criminal offence for any person, without lawful authority, to
possess or occupy Gazetted land or other State land.
In
keeping with this constitutional injunction, section 3(1) of the Act
stipulates that no person may hold, use or occupy Gazetted land
without lawful authority.
The
term “lawful authority” is defined in section 2(1) to mean an
offer letter or permit or land settlement lease, and the phrase
“lawfully authorised” is to be construed accordingly, while
“offer letter” means a letter issued by the acquiring authority
that offers to allocate to the offeree any Gazetted land described in
that letter.
Section
6 of the Act validates any offer letter issued on or before the fixed
date (i.e.
the date of commencement of the Act) that is not withdrawn by the
acquiring authority.
The
object of all of these provisions is quite clear.
It
is to endow the holder of a valid offer letter with the requisite
lawful authority to hold, use and occupy Gazetted land and thereby
shield him or her from being prosecuted, convicted and evicted under
section 3 of the Act.
Beyond
this, the Act does not provide for the actual allocation or
settlement of Gazetted Land, whether by offer letter, permit or
lease. Nor does it provide for the cancellation or withdrawal of any
such offer letter, permit or lease.
It
follows from all of the foregoing that there is no proper statutory
basis for the creation or termination of rights granted by offer
letters in general.
Their
basis is essentially administrative and their existence or otherwise
is consequently subject to purely administrative rules and discretion
– which must, of course, be exercised lawfully, reasonably and
fairly, but which are unavoidably open to the possibility of abuse
and malpractice. (This is precisely what appears to have happened in
this case).
I
am constrained to add that this is not an entirely satisfactory basis
for the implementation of the Land Reform Programme generally.
It
seems to me that the administration and allocation of land for
resettlement purposes, whatever the modality or form of allocation,
should be properly and effectively regulated, so as to create a land
allocation regime that is clear, transparent and accountable, and
susceptible to judicial scrutiny to ensure due process and
compliance.
This
could be achieved by way of regulations framed either under the
Agricultural Land Settlement Act [Chapter
20:01] or
under the Rural Land Act [Chapter
20:18].
I
am fortified in this view by the general proposition that there can
be no power without the requisite authority.
As
is explained by Baxter (op.
cit.) at
pp.386-387, citing Municipality
of Green Point
v Powell's
Trustees
(1848) 2 Menzies 380 at 380-381 and Roberts
v Hopwood
[1925] AC 578 (HL) at 602:
“Except
in the case of an exercise of power under the prerogative, a public
authority has no powers other than those which have been conferred
upon it by legislation”.
As
regards administrative practices evolved through directives,
circulars and the like, but without specific statutory authority, the
learned author observes, at p.399, that they are:
“permissible
– even desirable – for so long as they do not conflict in any way
with the empowering legislation under which the public authority acts
nor infringe legally protected rights and interests.
Such
practices cannot themselves constitute authority for the infringement
of rights and interests; the notion that the administration could
constitute a self-generating source of authority is completely alien
to the principle of constitutional legality.
It
is true that administrative practice may shape the procedures adopted
by public authorities, and this has been recognised by the courts. As
such, however, customary practices do not constitute a source of
authority which justifies the infringement of rights and interests;
at best they may be construed as necessary or incidental to the
proper functioning of the public authority concerned and therefore
impliedly authorised by the empowering legislation anyway.
The
claim that custom might constitute a source of administrative power
in itself is unacceptable and has been at least since Entick
v Carrington
(1765) 19 St Tr 1029, and there is no judicial authority to support
it”.
Whether
Offer Letter Withdrawn or Cancelled
In
terms of paragraph 3 of the conditions attaching to the applicant's
offer letter, the offer may be cancelled or withdrawn for breach of
any of the conditions set out in the letter.
In
view of my earlier finding that the applicant did comply with the
requisite conditions, there does not appear to have been any valid
ground entitling the Minister to cancel or withdraw the offer made to
the applicant.
Even
if any such ground did exist, it is abundantly clear that the
Minister did not take any specific steps to cancel or withdraw the
offer.
The
undisputed facts are that the offer was never formally terminated.
The
applicant was not given any notice of any alleged breach of the
conditions of offer. Nor was there any formal notice or communication
of the offer having been withdrawn. And there is absolutely nothing
in the opposing papers to suggest otherwise.
The
Minister's argument that the offer was automatically withdrawn
simply cannot be accepted.
As
I have already stated above, the power to withdraw or cancel an offer
of land must be exercised lawfully and procedurally, and this quite
obviously necessitates the giving of due notice to the holder of the
offer letter.
It
follows that the procedure for cancellation or withdrawal in
accordance with the conditions set out in the applicant's offer
letter was never followed.
Whether
Right to Occupy Subsists and is Enforceable
The
ineluctable conclusion from all of the foregoing is that the
applicant's right to occupy the farm allocated to her has not
lapsed or been lawfully terminated and therefore still subsists.
It
is accordingly duly recognisable and fully enforceable.
See
in this respect the remarks of Chidyausiku CJ in Commercial
Farmers Union & Others
v Minister
of Lands and Rural Resettlement & Others
SC31-2010, at p.23, highlighting the duty of the courts to assist the
holders of offer letters, permits and land settlement leases.
At
the end of her submissions, counsel for the Minister quite correctly
conceded that there was no basis for resisting the declaratory and
consequential relief sought by the applicant.
Disposition
As
regards costs, the applicant claims costs on the ordinary scale as
against the 2nd
respondent.
Given
the latter's highly questionable and irregular role in the
consolidation of his farm with that of the applicant, there appears
to be no reason for declining the applicant's claim for costs
against him.
In
the result, it is hereby declared that:
(a)
The applicant is lawfully authorised and entitled to be in occupation
of Subdivision 2 of Denby Farm in Seke District of Mashonaland East
Province in terms of the offer letter issued to her by the 1st
respondent on the 2nd
of June 2002.
(b)
The purported consolidation of Subdivisions 2 and 9 of Denby Farm in
Seke District of Mashonaland East Province by the 1st
respondent's officials is null and void.
Furthermore,
it be and is hereby ordered that:
(c)
The 2nd
respondent shall give vacant occupation of Subdivision 2 of Denby
Farm in Seke District of Mashonaland East Province to the applicant,
failing which the Deputy Sheriff is hereby authorised and directed to
evict the 2nd
respondent and give possession of the farm to the applicant.
(d)
The 2nd
respondent shall pay the costs of this application.
Mutamangira
& Associates,
applicant's legal practitioners
Civil
Division of the A-G's Office,
1st respondent's
legal practitioners
