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ground that the applicant's right to occupy the land was withdrawn.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effected and that the applicant's offer letter was automatically withdrawn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 SC 31-2010, 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
