Beata Emily Chigwedere v Nora Developments (Private) Limited and Minister of Lands and Rural Resettlement and Registrar of Deeds

In July 2013, the High Court granted an unopposed order in HC 5233/13 uplifting an endorsement on Nora Developments' title deeds that designated the land as state land. The land in question, the Remainder of Binder measuring 1,335,3681 hectares in the District of Salisbury, had been compulsorily acquired by the state on several occasions. The order was granted with the consent of the Minister of Lands and Rural Resettlement, through an affidavit by Mr. Marius Dzinoreva, Director of Acquisition, who stated the land belonged to an indigenous Zimbabwean and should not have been acquired under land reform. The applicant, Beata Emily Chigwedere, held an offer letter from 2004 to a portion of the same farm, which had never been revoked. She was not cited as a party in the original proceedings. She applied for rescission under Rule 449(a), arguing she was an interested party whose rights were affected without notice. The first respondent opposed, claiming the applicant's offer letter was effectively cancelled when the entire farm was reallocated to Lucy Pratt in 2011, and that the applicant was given alternative land in Macheke.

• Whether the applicant was an interested party who should have been notified of the proceedings in HC 5233/13
• Whether the judgment in HC 5233/13 was erroneously granted in the absence of an interested party
• Whether the applicant's offer letter remained valid despite the reallocation of the farm to Lucy Pratt in 2011
• Whether land constitutionally declared as state land under the former Constitution could be delisted through a court order with ministerial consent
• Whether the applicant had locus standi to bring the rescission application

1. The order handed down by default on 24 July 2013 in the matter of Nora Development (Pvt) Ltd v Minister of Lands and Rural Settlement and Registrar of Deeds in case No. HC 5233/13 is rescinded in its entirety in accordance with Rule 449(1)(a) as the judgment was erroneously granted in the absence of the applicant, who was a party affected by the judgment. 2. The first respondent to bear the costs of this application.

The binding legal principles established are: (1) A holder of an offer letter to agricultural land remains an interested party in all matters pertaining to that land unless and until the offer letter is lawfully withdrawn with proper notice and due process; (2) Under Rule 449(a), a judgment will be set aside as erroneously granted where an interested party whose rights are directly affected was not given notice of the proceedings, even where the Minister consented to the original order; (3) The power to withdraw or cancel an offer of land must be exercised lawfully and procedurally, necessitating giving of due notice to the holder of the offer letter; (4) A purported reallocation of land to another party does not automatically extinguish a prior offer letter holder's rights without formal, lawful cancellation and notice.

The court made several important non-binding observations: (1) While all acquired land remains state land by virtue of the Constitution, and acquisitions may be revoked under section 10A of the Land Acquisition Act within six months through gazette notice, applications for upliftment of endorsements do not fall within the ambit of this statutory provision; (2) If it is the intention or operational policy of the acquiring authority to give back farms that were listed which belong to indigenous owners, there must be a clear legal basis for doing so that is in harmony with constitutional provisions and the principles outlined under section 289 of the new Constitution; (3) In view of land being a finite resource, the constitutional principles relating to agricultural land hint strongly at redistributive justice informed by moderation and proportionality, and are informed by a quest for productivity and rationality in land use - not just about doing away with colonial-based ownership but about infusing a new ethos with respect to agricultural land; (4) It may very well be that specific legislation is called for in terms of how farms that are state land and that are indigenously owned are to be dealt with; (5) The task of ensuring that the Minister undertakes his duties within the recognized confines of the rule of law including the right to be heard has been well articulated by the courts.

This case is significant in Zimbabwean land reform jurisprudence for several reasons: (1) It reinforces the principle that holders of offer letters for agricultural land have enforceable rights that cannot be extinguished without lawful notice and due process; (2) It clarifies that even where land is constitutionally declared state land, procedural fairness requires that all interested parties be notified of proceedings that may affect their rights; (3) It highlights the tension between the constitutional provisions declaring all acquired land as state land and administrative practices of delisting farms owned by indigenous Zimbabweans; (4) It suggests that if government policy is to return indigenously-owned farms, specific legislation may be required to harmonize this with constitutional provisions on agricultural land; (5) It demonstrates the courts' willingness to uphold the rule of law and procedural fairness even in the politically sensitive context of land reform; (6) It affirms the application of the audi alteram partem principle (right to be heard) in administrative matters affecting property rights.