After hearing and
assessing the evidence led in this case, on 27th of March 2013, I
pronounced the following order;-
“Consequently I
order as follows:-
1. The defendant
and all those claiming occupation or ownership through him of Subdivision 1 of
Roslin Farm in Seke District of Mashonaland East Province measuring
approximately 390.58 hectares in extent be and are hereby evicted from the said
farm on or before 30 May 2013.
2. That the
defendant pays costs of suit.”
I did indicate at
the time that my detailed reasons would follow. Here they are;-
The plaintiff is
the current holder of a valid offer letter entitling him to occupy Subdivision
1 of Roslin in Seke District of Mashonaland East Province. It is not in dispute
that this farm was properly acquired by the Government of Zimbabwe for purposes
of resettlement. The respondent, being the former owner of this farm, has
stubbornly refused to give vacant possession of the farm to the plaintiff.
The basis of the
respondent's refusal to pave way for the plaintiff's occupation of the farm is
the defendant's averment that he has been advised in some corridors of power
that he should stay put on the farm whilst some alleged replanning exercise on
the farm takes place. According to the defendant, the much talked about re-planning
is meant to accommodate both the plaintiff and the defendant on the farm.
In his testimony
in court, the defendant stated that he has remained on the farm in question
because the Ministry of Lands, Land Reform and Rural Resettlement officials and
the Governor of Mashonaland East Province have asked him to remain on the
property and continue with his farming activities.
Mr Paterson went
on to state that a Mrs Sakala and other Ministry officials have twice visited
the farm for purposes of the aforesaid re-planning after the defendant himself
had provided them with transport.
It is quite
significant that neither the Ministry officials nor the Governor referred to in
the defendant's testimony were called by the defendant himself to testify on
his behalf despite it being clear that the onus was on him to justify his
continued occupation of the land in the light of the plaintiff's documented
entitlement to occupy the same land. The averment by the defendant that the
acquiring authority, or the Minister responsible, had blessed his continued
occupation of the farm, remained unsubstantiated.
In the absence of
the evidence from the Ministry officials, or the Governor, let alone the
Minister concerned, one cannot avoid coming to the conclusion that the
defendant was merely determined to soil the integrity of the officials in
question. The Minister and the Governor's alleged oral and unsubstantiated promises
to the defendant cannot be afforded greater weight than the offer of land to
the applicant by the offer letter of 13 March 2008. In fact, I find it to be
inconceivable that the Minister, through his officials or via the Governor,
would have the audacity or guts to vary the applicant's offer letter by word of
mouth, or to try and counter the effect of such an offer letter by oral or
verbal assurances to the defendant.
I am in total
agreement with the plaintiff's counsel…., when he remarked that:-
“It was incumbent
upon the defendant to produce before this Honourable court evidence,
documentary or otherwise, of the replanning exercise, and to convince this
Honourable court as well that the legal effect of such ( if proven) would be to
set aside or suspend the rights accruing to the plaintiff as holder of an offer
letter.”
The need to
protect individuals with offer letters, like the plaintiff, has been emphasised
for times without number. Once an individual has been given an offer letter,
that letter cannot be unilaterally withdrawn by the acquiring authority. In the
case of Langton T. Masunda v Minister
of State for National Security, Lands, Land Reform and Resettlement and John Landa Nkomo HB75-05…,
where I had to deal with an almost similar argument I remarked as follows -
“The Act does not
give the Minister of Lands, Agriculture and Rural Resettlement or the Minister
of State for National Security, Lands, Land Reform and Resettlement in the
President's office (the then acquiring authority) unilateral powers to
withdraw “land offers” from beneficiaries of the Land Reform Programme.
If it were so, it
would make almost every citizen of this country who benefitted from the land
Reform Programme vulnerable. It would mean, for example, that such
beneficiaries (the two respondents inclusive) would wake up one day to find
that they have been evicted from their respective pieces of land in complete
violation of the audi alteram partem
rule.”
It is my
conviction that in the instant case if the acquiring authority had intended to
revisit the offer of the land to the plaintiff, as alleged by the defendant,
such an exercise could not have been clandestinely done without the knowledge
and involvement of the plaintiff. If it is true that there was such an
exercise, then it was a non-event; it had no legal effect.
In this regard, the Supreme Court could not have put it in
any better way when CHIDYAUSIKU CJ, in Commercial Farmers Union and 9 Others v
The Minister of Lands and Rural Resettlement and 6 Others SC31-10…, eloquently
stated as follows -
“An offer letter
issued in terms of the Act is a clear expression by the acquiring authority of
the decision as to who should possess or occupy its land and exercise the
lights of possession or occupation on it.
The holders of
the offer letters, permits or land resettlement leases have the right of
occupation and should be assisted by the courts, the police and other public
officials to asset their rights. The individual applicants as former owners or
occupiers of the acquired land lost all rights to the acquired land by
operation of the law. The lost rights have been acquired by the holders of the
letters, permits or land resettlement leases. Given this legal position, it is
the holder of offer letters, permits and land settlement leases and not the
former owners or occupiers who should be assisted by public officials in the
assertion of their rights.”
Having said this,
it is clear to me that the defendant has been unable to table anything before
me that justifies his continued occupation of the land in question, and,
consequently, the defendant has no lawful right to continue obstructing the
plaintiff, Mr John Hapazari, in his determined smooth occupation of the farm….,.
It was for these reasons that I granted the
order of 27 March 2013.
