Charles Chamisa and Winfred Machara v Landberry Trading Private Limited and Others

On 28 June 2021, the first respondent issued summons against the applicants in case HC 3460/21, which were served on 15 July 2021. The applicants entered an appearance to defend on 28 July 2021 but failed to serve it on the first respondent as required by the rules. On 2 September 2021, the first respondent telephonically reminded the applicants of the need to serve the court process. The applicants failed to do so, and only reacted after being informed by the first respondent on 16 September 2021 that a bar had come into operation in terms of Rule 20(6) of the High Court Rules. On 17 September 2021, the applicants served the appearance to defend (nine days late) and simultaneously applied for the upliftment of the bar. The underlying action concerned eviction proceedings where the applicants had settled on land as "invaders" during the Land Acquisition and resettlement schemes era without any official authorization, while the first respondent had acquired the land through proper transfer from the Zvimba Rural District Council, which had received it from the Ministry of Local Government.

• Whether the applicants' delay in serving the appearance to defend was excusable and not wilful default
• Whether the applicants provided a reasonable explanation for the nine-day delay
• Whether the applicants had reasonable prospects of success in the main eviction case
• Whether occupiers of state land without official authorization (offer letter, permit, or lease) have a bona fide defence to eviction proceedings

1. The application for upliftment of the bar is dismissed. 2. Each party to pay its own costs.

For the upliftment of a bar to succeed, an applicant must satisfy essential elements including providing a reasonable explanation for default and demonstrating reasonable prospects of success on the merits. Even where an explanation for procedural default is reasonable and acceptable, the application will fail if the applicant has no bona fide defence and no prospects of success in the main action. Occupiers of state land acquired under the Land Acquisition and resettlement schemes must possess official authorization in the form of an offer letter, permit, or land resettlement lease as required by sections 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and section 8 of the Land Resettlement Act [Chapter 20:01]. Without such authorization, such occupiers are illegal occupiers with no legal basis to resist eviction. There is a presumption in favor of the validity of official documents issued by government officials in the course of their duties.

The court noted that a former owner or occupier of acquired land who without lawful authority continues in occupation after the prescribed period of ninety days commits a criminal offence. The court also observed that although the applicants' case failed on the merits, it was not so frivolous as to justify costs at a higher scale, hence the order that each party bear its own costs. The court emphasized that under the COVID-19 circumstances, the lack of coordination of support staff and the nine-day delay were excusable, showing judicial recognition of the extraordinary business environment during the pandemic.

This case reinforces important principles in Zimbabwean land law regarding unauthorized occupation of state land post-land reform. It establishes that persons who occupied state land during the Land Acquisition and resettlement schemes without obtaining official authorization (in the form of an offer letter, permit, or lease) have no legal basis to resist eviction, even against subsequent legitimate purchasers. The case also demonstrates the application of the presumption of validity of official government documents and confirms that courts will not condone continued occupation of acquired land in defiance of statutory requirements. It serves as a cautionary example that while procedural defaults may be excused, particularly during exceptional circumstances like COVID-19, the absence of merits will ultimately defeat an application for condonation or upliftment of a bar.