MINISTER OF LANDS AND RURAL RESETTLEMENT
MAX NOREST BHUTSU
HIGH COURT OF ZIMBABWE
HARARE, 25 February 2014
Ms E Drury, for the applicant
M. Chimombe, for the first respondent
E Jena, for the second respondent
ZHOU J: On 25 February 2014 I made the following order after hearing argument from the parties’ legal practitioners and indicated that my written reasons would be given upon request by any of the parties:
“IT IS ORDERED THAT:
- The decision of the first respondent to withdraw the offer of land made to the applicant dated 25th of September 2002 be and is hereby set aside.
- Applicant be and is hereby restored forthwith upon the grant of this order to his full and unimpeded occupation and use of Subdivision 1 of Journeys End in Hwedza District of Mashonaland East Province (hereinafter called ‘the property’).
- The offer letter issued to the second respondent on the 2nd of November 2011 be and is hereby set aside.
- 2nd respondent and his agents, employees, invitees and all other persons claiming occupation and use of the property through him be and are hereby interdicted, restrained and prohibited from interfering with the applicant’s occupation and use of the property allocated to him by the 1st respondent on the 25th September 2002 otherwise than in accordance with the law.
- Respondents pay the costs of this application jointly and severally, the one paying the other to be absolved.”
The second respondent has appealed against the above judgment and has, accordingly, requested to be furnished with the written reasons. These are the reasons for the judgment.
On 22 September 2002 the applicant was issued with an offer letter by the first respondent in respect of a piece of land described in the letter as Subdivision 1 of Journey’s End Farm, in Hwedza District. The offer was made in terms of the provisions of the Agricultural Land Settlement Act [Chapter 20:01]. The applicant duly accepted the offer. Pursuant to the offer the applicant took occupation of the piece of land concerned and commenced farming activities thereon. On 2 November 2011 the first respondent issued an offer letter to the second respondent in respect of the same piece of land albeit it is described differently as Subdivision 1 of Journeys End of Corby in Hwedza District of Mashonaland East. As a consequence of the double allocation of the same plot problems ensued between the applicant and the second respondent as to who between them was entitled to occupy the land and farm on it. Attempts were made to resolve the dispute. On 2 May 2012 the District Lands Officer for Hwedza wrote to the Provincial Lands Officer advising him that the second allocation had been made erroneously as the same piece of land had already been allocated to the applicant. In 2012 the second respondent instituted proceedings by urgent chamber application under Case No. HC 8454/12 for an interdict to prevent the applicant from entering the disputed piece of land. The application was withdrawn when it was discovered that the applicant had an offer letter which had been issued in 2002. In October 2012 the applicant was notified that his 2002 offer had been withdrawn by letter dated 2 November 2011, the same date which appears on the offer letter issued to the second applicant. The applicant was given a copy of the letter in terms of which the offer to him had been withdrawn. He states that the letter had a date stamp bearing the 20th February as the date on which it had been stamped. The applicant states in his founding affidavit that a file note of an offer letter issued to the second respondent had on the face of it the date stamp of 7 August 2012 which was the day after the second respondent had withdrawn his application in Case No. HC 8454/12.
On 9 November 2012 the applicant through his legal practitioners wrote to the first respondent disputing the withdrawal of his offer letter and demanding the revocation of the withdrawal. The second respondent responded by letter dated 13 November 2012. In that letter the first respondent states that the applicant’s offer letter was withdrawn after it had been observed that the applicant “was not available at the farm and that he had abandoned the farm for about 3 seasons prior to the date of withdrawal”. According to the first respondent the applicant was served with the letter withdrawing his offer of land in October 2012 because he could not be found at the land allocated to him.
The applicant instituted the application in casu seeking the setting aside of the withdrawal of his offer letter. The applicant’s contention is that the withdrawal of his offer letter was made contrary to the provisions of the Administrative Justice Act [Chapter 10:28]. The application is opposed by both respondents. In his opposing affidavit the first respondent raises essentially the same issues set out in the letter of 13 November 2012, namely, that the applicant had abandoned the farm and that another person who was the holder of a nearby plot was making use of the land allocated to the applicant. He repeats the assertion that the letter of withdrawal of the offer was not served upon the applicant because he could not be located at the farm. The second respondent took the point in limine that the application was out of time contrary to the provisions of r 259 of the High Court Rules, 1971. The second respondent states that when he took occupation of the farm there was no activity other than the grazing of cattle belonging to another person who was not the applicant. At the hearing Mr Jena for the second respondent indicated that the second respondent was not persisting with the point in limine.
At the time of the hearing of the matter the new Constitution, Constitution of Zimbabwe Amendment (No. 20) Act, 2013, had become effective. Section 68 of the Constitution provides as follows:
“(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.
(2) Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.
(3) An Act of Parliament must give effect to these rights, and must –
(a) provide for the review of administrative conduct by a court or, where appropriate, by an independent and impartial tribunal;
(b) impose a duty on the State to give effect to the rights in subsection (1) and (2); and
(c) promote an efficient administration.”
The entrenchment of a comprehensive and justiciable fundamental right to lawful, efficient, reasonable, proportionate, impartial and fair administrative conduct in the Constitution is a celebrated device to control abuse of governmental power in order to guard against executive autocracy. See Ian Currie and Johan de Waal, Bill of Rights Handbook 5th Ed., p. 642. The range and scope of discretionary powers of officials in the position of the first respondent are numerous. Section 68 constitutionalises not just the right to administrative justice which meets the criteria set out in ss (1), but also the requirement for reasons to be given in writing promptly to the person affected by the administrative conduct. It also constitutionalises administrative review powers, among other things. By s 68(3) the Legislature is enjoined to give effect to the right to administrative justice. The section introduces a new era of administrative law in terms of which the review power of the courts is no longer grounded in the common law or an Act of Parliament but in the supreme law of the land. The Administrative Justice Act must, therefore, be viewed as the legislation in place to give effect to the rights enshrined in s 68.
Mr Chimombe for the first respondent conceded that the applicant was entitled to be given an opportunity to be heard before his offer letter was withdrawn. No opportunity was given for the applicant to make representations on the matter. Procedural fairness entails that the opportunity to make representations be afforded to a person adversely affected by administrative conduct. In view of the fact that the reason for withdrawing the offer was the alleged abandonment of the farm by the applicant the opportunity should have been given to him to tell his side of the story. As it turned out, the applicant has now produced documents suggesting that he was, in fact, farming on the land and selling maize to some institutions. The conduct of the first respondent thus contravenes not just the provisions of section 68(1) of the Constitution but also s 3(2) (a) and (b) of the Administrative Justice Act which require an administrative authority making a decision which is adverse to the right, interest and legitimate expectation of a person to give adequate notice of the nature and purpose of the proposed action and a reasonable opportunity to the affected person to make adequate representations.
Further, the letter withdrawing the offer of land to the applicant does not contain reasons. The reasons only came more than twelve months after the letter withdrawing the offer was written. The Constitution requires that those written reasons be furnished “promptly”. There was therefore a contravention of the provisions of the Constitution. In any event, the giving of the reasons so late in the day would not validate the contraventions of the Constitution and the Administrative Justice Act which had already been committed by the first respondent.
In view of the clear contraventions of the Constitution and the Administrative Justice Act, I granted relief to the applicant in the terms set out above.
Honey & Blanckenberg, applicant’s legal practitioners
Civil Division of the Attorney-General’s Office, 1st respondent’s legal practitioners
Jena & Associates, 2nd respondent’s legal practitioners.