The facts relevant to this dispute are as follows:The dispute centers around Dana Farm. This farm is now owned by the State after it was gazetted for resettlement under the land reform program.The first and second respondents are referred to on the papers as former owners of the farm, although ...
The facts relevant to this dispute are as follows:
The dispute centers around Dana Farm. This farm is now owned by the State after it was gazetted for resettlement under the land reform program.
The first and second respondents are referred to on the papers as former owners of the farm, although the exact nature of that ownership has not been stated nor is it relevant for present purposes.
What is relevant is that they were in occupation at the time the farm was acquired.
The third respondent is a beneficiary of the land reform program but he occupies a neighbouring farm. He is, however, a majority shareholder in a company in which the first and second respondents also own shares and which is undertaking certain farming operations on Dana A Farm.
According to the papers, the first and second respondents occupy subdivisions 2 and 3 of the farm.
The applicant was issued with an offer letter for subdivision 1 which he occupies.
The applicant seeks an interdict, both in interim and final terms, against the respondents from use and occupation of subdivision 1 of Dana Farm. In addition, he seeks their eviction from the same....,.
The sum total of the relief sought by the applicant is an interdict against the respondents from utilizing the permanent structures and improvements on the subdivision that he has been offered by Government....,.
In terms of section 3(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] no person may hold, use, or occupy gazetted land without lawful authority.
In the Gazetted Lands (Consequential Provisions) Act, lawful authority is defined as an offer letter, a permit, or a land settlement lease.
The applicant is in possession of an offer letter, and, therefore, he has lawful authority to occupy the part of the farm allocated to him.
The respondents have contended that the offer letter is irregular.
The lawfulness of the offer letter is not before me and I cannot comment on its validity. That is for the authorities to resolve.
What is at issue, however, is whether or not the applicant has the locus standi or right to claim the relief that he is claiming against the respondents.
In seeking redress from this honourable court, the applicant asserts a right predicated on the offer letter in terms of which he occupies the piece of land in question.
The applicant concedes, that, he has not been granted cession of rights by the owner of the land, the Government of Zimbabwe. The applicant contends, that, even though he is not the holder of a lease agreement in respect of the piece of land in question, nevertheless, the offer letter that he is in possession of accords him the entitlement to sue the respondents for possessory rights over the land....,.
The applicant herein does not have an agreement to lease the property. He has, instead, an offer letter which courts in this jurisdiction have found not to constitute a lease: see Airport Game Park P/L & Anor v Karidza & Anor 2004 (1) ZLR 391 (S) at 390C where ZIYAMBI JA stated;
“Not only is this basic requirement of a lease lacking in the offer letter, but, the contents of the letter do not admit of the interpretation sought to be placed thereon by the appellants, namely, that, the first respondent was constituted a lessee by the letter.”
And, later in the same judgment, at p396C-E, in discussing the judgment in Mgwaco Farm (Pvt) Ltd v Pasi & Ors 2003 (2) ZLR 478, the learned judge of appeal stated:
“I respectfully disagree with the conclusion of the learned judge. The letter clearly indicates, that, it is only if the Minister was satisfied that the conditions stated therein had been met that he would enter into a lease agreement with the first respondent. The duration of the lease and the rent payable were not set out in the letter. Although the duration of the lease need not be specified for a lease to be constituted, the same cannot be said of the quantum of the rental and when it should be paid. In the absence of any provision setting out the rental, the offer letter cannot be said to constitute a lease.”
Clearly, therefore, an offer letter is not a lease agreement.
