Urgent
chamber application
NDEWERE
J: The
applicant was issued with an offer letter, Annexure A on 7 October,
2004 for Subdivision 2 of Pimento Farm in Bindura District measuring
46 hectares.
On
28 November 2014, the applicant received a note from the Provincial
Chief Lands Officer advising him of a re-planning of the land carried
out in 2007 which resulted in his offer being withdrawn on 17 June
2013 by a withdrawal letter signed by the then Minister of Lands and
Rural Resettlement. The withdrawal letter of 17 June, 2013 was
attached to the note by the Provincial Chief Lands Officer.
The
applicant is challenging the withdrawal of the offer through a court
application HC10653/14 which is still pending.
On
2 December 2014, the applicant then filed the current urgent
application seeking an interdict against the first and second
respondent to stop interfering with his rights on the disputed land
pending the determination of his court application in HC10653/14.
Both
respondents opposed the application.
The
first respondent raised a point in
limine
that the Minister of Lands and Rural Resettlement is the one who
should have been cited as the first respondent and not the Chief
Lands Officer.
The
first respondent further said since the applicant's offer was
withdrawn, he has no locus
standi
to institute proceedings in connection with Plot 2 Pimento Farm.
Thirdly,
the first respondent said the matter was not urgent because the note
which the applicant received from the Chief Lands Officer on 28
November 2014 advised him to approach the Minister of Lands within
seven days with any representations.
The
first respondent said instead of approaching the High Court four days
after receiving notification from the Chief Lands Officer on behalf
of the Minister, he should have approached the Minister of Lands and
Rural Resettlement with his representations within the seven days
communicated to him.
The
first respondent submitted that the applicant should not have
approached the court before exhausting the domestic remedies
available to him as an occupier of State land.
The
first respondent said the urgency is therefore self-created by
applicant's failure to make representations to the Minister of
Lands and Rural Resettlement as advised; which was an alternative
remedy available to the applicant.
The
second respondent submitted that the application was not urgent and
that the applicant no longer had any rights to enforce because he had
abandoned the farm and thereafter there was re-planning of the farm
which led to new boundaries for the land and new offer letters to the
occupiers.
In
my view, the applicant has locus
standi
to institute any proceedings concerning the piece of land which was
withdrawn from him. Section 68 of the Constitution of Zimbabwe
referred to by the applicant addresses this point. So does section 4
of the Administrative Justice Act [Chapter
10:28]
which provides as follows:
“Subject
to this Act or any other law, any person who is aggrieved by the
failure of an administrative authority to comply with section 3 may
apply to the High Court for relief.”
So
the point in
limine
on locus
standi
is dismissed.
I
am however, persuaded by the arguments by the first respondent
firstly, that the applicant should have cited the Minister of Lands
and Rural Resettlement as the first respondent and not the Chief
Lands Officer.
It
is clear that the Chief Lands Officer, in his communication of 28
November 2014 which attached the withdrawal letter by the Minister of
Lands and Rural Resettlement, was simply acting on behalf of the
Minister. No legal justification was given to the court for citing
the Chief Lands Officer who has no legal role in matters of offer
letters and their withdrawals, instead of the Minister of Lands and
Rural Resettlement, who is the Acquiring Authority in terms of the
Gazetted Land (Consequential Provisions) Act [Chapter
20:28].
The
point in
limine that
the Chief Lands Officer was wrongly cited is therefore upheld.
The
first respondent's argument that this application is not urgent is
also convincing.
On
28 November 2014, the applicant received a note from the Chief Lands
Officer, attaching a withdrawal letter by the Minister of Lands and
Rural Resettlement. The last paragraph to that note of 28 November
2014 is very relevant. It stated as follows:
“Any
representations that seek to contest that decision have to be in
writing to the Acquiring Authority who is vested in the Minister of
Lands and Rural Resettlement Dr D. Mombeshora within a 7day period.”
In
that paragraph, the applicant, if aggrieved, was being given a chance
to ventilate his grievances to the Acquiring Authority within seven
days. The seven day period shows that the matter was being treated
urgently by the Acquiring Authority.
Instead
of using that avenue, the applicant decided to ignore it and instead
approached the High Court on an urgent basis.
In
my view, this is self-created urgency in that the applicant
deliberately refrained from utilising an alternative remedy available
to him of making representations to the Minister of Lands and Rural
Resettlement within 7 days.
In
addition, the act of issuing offer letters and withdrawing them is an
administrative act by the Acquiring Authority. It would be improper
for the High Court to get involved in that administrative act before
all the remedies provided in accordance with the Administrative
Justice Act have been exhausted. In this regard, section 7 of the
Administrative Justice Act [Chapter
10:28],
referred to by the first respondent's counsel, is instructive. It
provides as follows:
“Without
limitation to its discretion, the High Court may decline to entertain
an application made under section 4 if the applicant is entitled to
seek relief under any other law, whether by way of appeal or review
or otherwise and the High Court considers that any such remedy should
first be exhausted.”
The
invitation to the applicant to make representations to the Minister
within 7 days was an invitation to make the Minister review his
decision if necessary and applicant ought to have seized that
opportunity, instead of mounting an application to this court on an
urgent basis.
As
correctly pointed out in Musunga
v Utete
and Another
HH 90/2003, pages 2 to 3;
“….no
litigant is entitled as of right to have his matter heard on an
urgent basis - the test provided by the Rules is that the matter must
be so urgent and the risk of irreparable damage so great that the
matter cannot proceed within the normal time frames provided in the
Rules.”
Consequently,
this application cannot be dealt with as an urgent matter.
Having
ruled that the application is not urgent, I shall not delve into the
merits of the matter.
The
applicant shall pay the respondents' costs.
Mtamangira
& Associates,
applicant's legal practitioners
Civil
Division of the Attorney-General's Office,1st
respondent's legal practitioners
Gumbo
& Associates,
2nd
respondent's legal practitioners
