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HMA54-19 - TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO

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Procedural Law-viz citation re nominal interest party.
Administrative Law-viz the exercise of administrative discretion.
Law of Property-viz land acquisition re lawful authority to occupy gazetted land iro offer letter.
Law of Property-viz competing claims re double allocation.
Administrative Law-viz the presumption of validity of official documents issued in the course of duty.
Procedural Law-viz final orders re consent order.
Procedural Law-viz final orders re order by consent.
Procedural Law-viz jurisdiction re domestic remedies.
Procedural Law-viz jurisdiction re internal remedies.
Procedural Law-viz jurisdiction re local remedies.
Procedural Law-viz jurisdiction re judicial deference iro specialized courts.
Procedural Law-viz citation re legal status of litigating parties iro Constitutional bodies.
Procedural Law-viz legal status of a litigant re constitutional body iro section 297 of the Constitution.
Procedural Law-viz locus standi re legal status of litigants iro legal persona.
Procedural Law-viz interim interdict re provisional order pendente lite.
Procedural Law-viz provisional order re interim interdict pendente lite.
Procedural Law-viz final orders re relief conflicting with lawful conduct.
Procedural Law-viz final orders re ex tempore judgment iro entitlement of litigating parties to written reasons for judgement.
Legal Practitioners-viz correspondence with the court re medium of the office of the Registrar.
Legal Practitioners-viz professional ethics.
Procedural Law-viz the audi alteram partem rule re the exercise of administrative discretion.
Administrative Law-viz the exercise of administrative prerogative re the audi alteram partem rule.
Procedural Law-viz rules of evidence re findings of fact iro being candid with the court.
Procedural Law-viz rules of evidence re findings of fact iro candidness with the court.
Procedural Law-viz pleadings re admissions iro unchallenged statements.
Procedural Law-viz pleadings re admissions iro undisputed averments.
Procedural Law-viz pleadings re admissions iro uncontroverted submissions.
Procedural Law-viz rules of evidence re digital evidence iro GPS technology.
Procedural Law-viz rules of evidence re the principle that he who alleges must prove iro bald allegations.
Procedural Law-viz rules of evidence re the rule that he who avers must prove iro unsubstantiated averments.
Procedural Law-viz cause of action re legal basis for invoking the jurisdiction of the court.

Citation and Joinder re: Approach iro Third Party Notices ito Nominal Party and Financial Interest Party


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.

Jurisdiction re: Judicial Deference iro Specialised Courts and Tribunals


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

The first respondent obliged.

Jurisdiction re: Domestic, Internal or Local Remedies


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

The first respondent obliged.

Final Orders re: Nature, Amendment, Variation, Rescission iro Consent Papers, Consent Orders and Consent to Judgment


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

The first respondent obliged.

Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

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.

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).

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.

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.

Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

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.

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).

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.

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.

Administrative Law re: Approach, Discretionary Powers, Judicial Interference and the Doctrine of Legitimate Expectation


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

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.

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).

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.

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.

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.

Both the first and third respondents stated, in their opposing affidavits, that, all the parties were called to witness the Global Positioning System (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 Global Positioning System (GPS) survey was conducted. She would have had the opportunity to make whatever representations she might have had.

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.

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;”

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.

It was for the above reasons that I dismissed the application with costs.

Double Sales or Competing Claims and the Assessment of Bona Fides and Dominant Rights


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

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.

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).

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.

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.

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.

Both the first and third respondents stated, in their opposing affidavits, that, all the parties were called to witness the Global Positioning System (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 Global Positioning System (GPS) survey was conducted. She would have had the opportunity to make whatever representations she might have had.

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.

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;”

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.

It was for the above reasons that I dismissed the application with costs.

Land Acquisition re: Eviction, Offer Letters and the Lawful Authority to Occupy Gazetted Land


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

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.

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).

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.

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.

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.

Both the first and third respondents stated, in their opposing affidavits, that, all the parties were called to witness the Global Positioning System (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 Global Positioning System (GPS) survey was conducted. She would have had the opportunity to make whatever representations she might have had.

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.

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;”

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.

It was for the above reasons that I dismissed the application with costs.

Administrative Law re: Presumptions of Regularity and Validity of Official Documents or Advice & Doctrine of Estoppel


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

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.

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).

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.

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.

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.

Both the first and third respondents stated, in their opposing affidavits, that, all the parties were called to witness the Global Positioning System (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 Global Positioning System (GPS) survey was conducted. She would have had the opportunity to make whatever representations she might have had.

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.

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;”

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.

It was for the above reasons that I dismissed the application with costs.

Documentary Evidence, Certification, Commissioning, Authentication and the Best Evidence Rule re: Digital Evidence


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

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.

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).

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.

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.

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.

Both the first and third respondents stated, in their opposing affidavits, that, all the parties were called to witness the Global Positioning System (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 Global Positioning System (GPS) survey was conducted. She would have had the opportunity to make whatever representations she might have had.

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.

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;”

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.

It was for the above reasons that I dismissed the application with costs.

Audi Alteram Partem Rule re: Approach, Orders Granted Without a Hearing and the Doctrine of Notice


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

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.

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).

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.

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.

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.

Both the first and third respondents stated, in their opposing affidavits, that, all the parties were called to witness the Global Positioning System (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 Global Positioning System (GPS) survey was conducted. She would have had the opportunity to make whatever representations she might have had.

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.

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;”

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.

It was for the above reasons that I dismissed the application with costs.

Findings of Fact re: Witness Testimony iro Candidness with the Court and Deceptive or Misleading Evidence


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

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.

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).

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.

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.

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.

Both the first and third respondents stated, in their opposing affidavits, that, all the parties were called to witness the Global Positioning System (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 Global Positioning System (GPS) survey was conducted. She would have had the opportunity to make whatever representations she might have had.

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.

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;”

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.

It was for the above reasons that I dismissed the application with costs.

Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach


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.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 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 of the of the Administrative Justice Act. 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.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

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.

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.

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.

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.

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.

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).

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.

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.

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.

Both the first and third respondents stated, in their opposing affidavits, that, all the parties were called to witness the Global Positioning System (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 Global Positioning System (GPS) survey was conducted. She would have had the opportunity to make whatever representations she might have had.

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.

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;”

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.

It was for the above reasons that I dismissed the application with costs.

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

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