A FARMER, Wonder Mukwaira, who was challenging his farm takeover by the Zimbabwe Defence Forces, has won his appeal at the Supreme Court after the apex court ordered the Lands minister to explain reasons behind the takeover.
Mukwaira had his court application thrown out by the High Court last year for failing to justify his request. Mukwaira had sued Agriculture minister Anxious Masuka for the withdrawal of his offer letter. Aggrieved, Mukwaira took the matter up to the Supreme Court which reversed the High Court ruling, demanding reasons for the withdrawal of the offer letter.
A three-member bench comprising Justices Elizabeth Gwaunza, Susan Mavangira and Alpius Chitakunye ruled that Mukwaira is entitled to an explanation.
“Consequently, we are of the view that it is not necessary to determine the issue of whether the appellant was entitled to compensation at this juncture as respondent must provide rea[1]sons for his decision taking into account the appellant’s representations.
“The court is of the view that a period of 21 days is reasonable for the respondent to provide the reasons. “In light of the foregoing analysis, the court finds that the decision of the court a quo cannot stand as the respondent must provide reasons for his decision,” the court ruled.
“Accordingly, it is hereby ordered that the appeal be and is hereby allowed with costs. “The judgment of the court a quo is hereby set aside and substituted with the following: “The respondent shall supply written reasons for the withdrawal of the applicant’s offer of land within 21 days from the date of grant of this order failing which it shall be presumed that the decision to withdraw the offer of land constituted an improper exercise of the pow[1]er conferred on him by the Land Commission Act, [chapter 20:29] and his decision, dated 10 March 2022, withdrawing the applicant’s offer of land shall stand as set aside.”
The background is that 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 Sub-division 3 of Ingleborough Farm in Mazowe district, Mash[1]onaland Central province, for agricultural pur[1]poses. 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 Janu[1]ary 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 no[1]tice of withdrawal of 29 June 2021.
As a result of this letter, Mukwaira, through his lawyers, wrote back to the minister raising issue 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 High Court 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 him 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 with[1]drawal is found to be valid, the government 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”.
The minister said it was common cause that before the notice of withdrawal letter of 29 June 2021, Mukwaira was served with several notices of intention to withdraw the offer of land and cease operations on the farm.
Through a letter dated 9 February 2015, he was directed to cease all farming operations, the reason being that the ministry of Defence had found an investor to carry out meaningful operations on 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 stated 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.
On 28 January 2016 another notice of intention to withdraw the land offer was issued by the minister. The reason stated was that 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 let[1]ters 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 agreed with the minister.
In his appeal, Mukwaira, among other arguments, had submitted that the High Court erred and misdirected itself when it found that he was not entitled to compensation in terms of section 27 of the Land Commission Act [Chapter 20:29] when in fact he qualifies for and is entitled to compensation in terms of that section of the Act. — STAFF WRITER.
