Farmer’s legal bid to thwart army’s land takeover flops
A FARMER, Wonder Mukwaira, who was challenging his farm takeover by the Zimbabwe Defence Forces, had his court application thrown out by the High Court for failing to justify his request. Mukwaira had sued Agriculture minister Anxious Masuka (pictured) for withdrawal of his offer letter.
On 25 June 2013, Mukwaira was offered a piece of land under the Land Reform and Resettlement Programme (Model A2 Phase II) by the minister. The offer was in respect of Subdivision 3 of Ingleborough Farm in Mazowe district, Mashonaland Central province, for agricultural purposes.
The piece of land measured 253 hectares. In October 2017, the ministry handed over the entire farm measuring 602.7 hectares to the Zimbabwe Defence Forces for institutional agricultural use. By a similarly worded letter dated 11 January 2005 the minister of Special Affairs in the Office of the President and Cabinet in charge of Lands, Land Reform and Resettlement had handed over the farm to the Zimbabwe Defence Forces.
On 29 June 2021, Masuka notified Mukwaira of the ministry’s intention to withdraw the land offer in respect of the farm. He was told that the land was to be used for public purposes and that he would be given another farm.
Through a letter dated 10 March 2022, the minister withdrew the land offer as per his notice of withdrawal of 29 June 2021.
As a result of this letter, Mukaira through his legal practitioners of record, wrote back to the minister raising issues about not being furnished with reasons of the withdrawal, not being advised of his right to either appeal or seek review, the minister’s powers to withdraw offers of land and no offer of compensation.
This culminated in the present application. Mukwaira said by withdrawing the offer of land, the minister had acted unlawfully as he does not have the powers or jurisdiction to withdraw an offer of land.
He said Masuka acted unfairly by failing to give the applicant notice of any right of review or appeal and by not paying or offering any compensation to him.
Mukwaira sought relief to the effect that Masuka’s decision to withdraw the offer of land be set aside. Alternatively he sought relief that if the withdrawal is found to be valid, the government should be ordered to pay compensation as may be agreed or determined by an arbitrator.
Masuka challenged the application. He said reasons were availed in the various notices given to Mukwaira and “that the main one was that the land was withdrawn for public purposes”.
He said it was common cause that before the notice of withdrawal letter of the 29 June 2021, Masuka was served with several notices of intention to withdraw the offer of land, cease operations on the farm.
Through a letter dated 9 February 2015, he was informed to cease all farming operations on the farm, the reason being that the ministry of Defence had found an investor to carry out meaningful operations at the farm.
The letter was from the ministry of Defence. On 10 September 2015, a notice of intention to withdraw the land offer was issued by the minister of Lands.
The reason for the withdrawal was given as double allocation as the farm had been issued to the Zimbabwe Defence Forces for security purposes. In his response to the letter of 10 September 2015, the court said Mukwaira was not averse to the withdrawal of the land offer.
“He pleaded with the Minister to extend the notice period to allow him to work on the administration of his current projects, and for the Minister to find him alternative land,” read court papers.
On 28 January 2016 another notice of intention to withdraw the land offer was issued by the minister. The reason was given as the farm was acquired and handed over to the Local Government ministry.
It was also Masuka’s position that the respondent, being the custodian of all state land, is empowered by section 23 of the Land Commission Act [Chapter 20:29] to issue offer letters and in terms of section 26 is empowered to set terms and conditions for leases of gazetted or state land to applicants.
The farm being state land, Masuka said he had the powers to withdraw the offer letter. He said he had the right to withdraw or change the offer if he deems it necessary.
The judge concurred.
“In my view the applicant’s submission that he meant reasons for the withdrawal and not for the intention to withdraw is to look for a difference where there is no difference.
“Indeed applicant was not advised of his rights in terms s 2(1)(c) of AJA. He was not advised that he could seek review of or appeal the decision to withdraw his offer of land. “Neither was he advised of the time frame within which to vacate the land. Was this irregularity so fatal that it caused applicant prejudice or resulted in substantial injustice?
“Applicant did not allude to any prejudice he suffered. Respondent conceded that administratively the irregularity will be addressed. In my view therefore, the non-compliance with s 2(1)(c) is not so fatal an irregularity that it calls for the setting aside of the respondent’s decision,” ruled the judge. — STAFF WRITER