Opposed
Application
MAFUSIRE
J:
[1] This
was an opposed application. The original and main dispute was between
the applicant and the third respondent. But in this particular
application the applicant sought a remedy against the first and
second respondents. I guess the third respondent was cited merely as
a nominal respondent being so much of an interested party.
[2] The
applicant captioned her application as one in terms of section 4 of
the Administrative Justice Act, Cap
10:28.
She complained that, being administrative bodies and therefore
entities governed by that Act, the first and second respondents had
failed to adhere to the standards set out in section 3. Briefly these
are:
(i)
the right of a person to receive adequate notice of the nature and
purpose of any action proposed to be taken by an administrative body;
(ii)
the right to a reasonable opportunity to make adequate
representations; and
(iii)
the right to adequate notice of any right of review or appeal where
applicable.
[3] In
terms of section 4 of the Act, an aggrieved person has the right to
approach the High Court for relief.
[4] The
details were these. The applicant was quarrelling with the third
respondent over a piece of sugar cane land on which they had been
allocated by Government in terms of its land reform programme. The
applicant had an offer letter dated 2004 over a piece of land that
was plus or minus 50 hectares in extent. The third respondent also
had an offer letter issued sometime in 2017 over a piece of land plus
or minus 21 hectares in extent.
[5] The
applicant claimed the 21 hectares offered to the third respondent had
been carved out of her own 50 hectares without due process. She said
in September 2017, the third respondent, buoyed by that recent offer
letter to him, had tried to force his way onto her land, yet for
thirteen years she had been growing sugar cane undisturbed on the
entire land, including the 21 hectares allegedly offered to the third
respondent unprocedurally.
[6] In
September 2017 the applicant brought an urgent chamber application
against the third respondent for an interdict to bar him from
interfering with her farming operations on the disputed land. I heard
it. I never had to decide the matter. The parties agreed to an order
by consent. Essentially the agreement was to have the matter referred
to the first respondent for determination. The first respondent is
the proper forum for such disputes. It is a constitutional body. In
terms of section 297 of the Constitution, it is empowered to
investigate and determine complaints and disputes regarding, among
other things, the allocation of agricultural land.
[7] On
14 September 2017 I issued an order by consent. The operative part
said the applicant would harvest the crop of cane on the disputed
portion of the land but that thereafter all operations on it would
cease pending the resolution of the dispute by the first respondent
within thirty days.
[8] The
first respondent obliged. In its notice of opposition to the present
application the first respondent said it had resolved the dispute in
terms of the High Court order and in accordance with its
constitutional mandate. It said on the appointed day it had called
the parties for a survey of the land boundaries. Using the advanced
GPS facility (Global Positioning System), it had established that the
21 hectares allocated to the third respondent had been over and
above, and quite separate from the 50 hectares allocated to the
applicant. Her 50 hectares were intact. Of those, about 48 were
arable. The respondent might have been farming the extra 21 hectares
over the years but she had no lawful authority or any right over
them.
[9] It
was this decision by the first respondent that sparked the present
application. The applicant said she was disgruntled by the decision.
She claimed her representative had not been given an opportunity to
make representations. She claimed the decision was unfair,
unprocedural, illegal and irrational. In this regard she merely
regurgitated the language of Secretary
for Transport & Anor v Makwavarara
1991 (1) ZLR 18 (SC).
[10] The
applicant sought the following orders:
(i)
that the resolution made by the first respondent on the dispute
between the applicant and the third respondent be set aside;
(ii)
that the offer of 21 hectares by the second respondent to the third
respondent over the applicant's plot be cancelled;
(iii)
that the applicant should continue to tend to her sugar cane crop on
the 21 hectares pending finalisation of the dispute;
(iv)
that the first and second respondents had to invite the applicant and
the third respondent to submit representations in respect of the
disputed land within thirty days of the court order; and
(v)
that the second respondent should make a determination into the
matter giving written reasons within ninety days of the date of the
court order.
[11] The
application was manifestly ill-conceived. I dismissed it soon after
the presentation of oral submissions and gave my reasons ex
tempore.
That was on 2 February 2019. The record was returned to the Registry.
Only in August 2019 did the Registry receive a letter from the
applicant's lawyers wanting written reasons for my decision and
claiming that a previous request had by mistake not been delivered.
But regrettably, I could not oblige soon enough. For much of the
second term vacation and the third term I was indisposed. That
explains the delay in rendering this judgment.
[12] The
application was ill-conceived, because apart from regurgitating the
principles of review of an administrative decision as set out by case
law, there was little or nothing of the factual background upon which
the application was based.
[13] Both
the first and third respondent stated in their opposing affidavits
that all the parties were called to witness the GPS survey. The
applicant was completely silent about this crucial fact, both in her
founding and answering affidavits. So, I find that the applicant was
present when the GPS survey was conducted. She would have had the
opportunity to make whatever representations she might have had.
[14] The
first respondent said the results of the GPS survey showed that the
applicant's 50 hectares were not interfered with and that the 21
hectares allocated to the third respondent were not carved out of her
portion. The applicant proffered no counter argument, let alone
present any facts to rebut the survey findings. She was simply
adamant that the 21 hectares allocated to the third respondent had
been chopped off her own allocation. That was ill-conceived.
[15] Part
of the applicant's argument was that the first respondent wrongly
treated the dispute between herself and the third respondent as a
dispute over boundaries, yet it was not, but was a dispute of land
invasion by the third respondent over land lawfully allocated and
utilised by herself. But the dispute was indeed a dispute over
boundaries. The order by consent in September 2017 expressly
recognised the dispute as one over boundaries. The very first line to
the preamble to that order read:
“Whereas
there is a dispute relating to boundaries and allocation of land on
Farm 38, Hippo Valley Estates, Chiredzi as between and among the
parties;”
[16] There
was no basis for the remedies sought in the draft order. The real
dispute had been competently and properly resolved by the first
respondent. That the applicant had farmed on the disputed portion of
the land for thirteen years did not preclude the second respondent
from properly allocating it to deserving beneficiaries as the
applicant had not acquired rights over it. When the first respondent
resolved the dispute, it issued out a written determination. No
breach of the Administrative Justice Act was shown to have occurred.
[17] It
was for the above reasons that I dismissed the application with
costs.
13
November 2019
Kwirira
& Magwaliba,
applicant's legal practitioners
Civil
Division of the Attorney-General's Office,
legal practitioners for the first and second respondents
