Chido Matewa v Makoni Rural District Council and International Organisation for Migration

The plaintiff leased Dagbreek farm from the State since 6 February 2004. Between 2006 and 2009, the first defendant (Makoni Rural District Council) authorized the second defendant (International Organisation for Migration) to use Dagbreek Farm as a distribution center for food to needy villagers without consulting or informing the plaintiff. The plaintiff was unaware of this authorization and only discovered it through a letter from the first defendant dated 14 December 2011. During the distribution period, large numbers of villagers (300-400 people) converged on the farm using scotch carts and hired vehicles. The plaintiff alleged extensive vandalism and theft of her property, including the loss of 35 head of cattle in one day, destruction of ZESA equipment leading to failed crops due to inability to irrigate, and other property damage. Despite approaching various officials and the second defendant's offices in Harare, Mutare and Geneva, no action was taken. The Ministry of Lands eventually advised her to go to court. The plaintiff claimed US$100,000 for property loss and vandalism, and US$150,000 for unlawful interference with farming activities and loss of crops.

• Whether the first defendant owed a duty of care to the plaintiff when it designated her farm as a food distribution center without her knowledge or consent
• Whether the first defendant complied with the provisions of section 23 of the Civil Protection Act [Cap 10:06] when authorizing use of the plaintiff's farm
• Whether the plaintiff made out a sufficient case to resist the first defendant's application for absolution from the instance
• Whether the first defendant was liable for damage caused to the plaintiff's property during the food distribution operations
• What land was actually authorized - the entire farm or just a 20 metre servitude as claimed by the first defendant

The application for absolution from the instance was dismissed. The first defendant was ordered to pay costs in the ordinary scale. The matter was to proceed to trial with the first defendant required to present its evidence.

When a public authority designates private property for public use without the owner's knowledge or consent, it assumes a duty of care to protect that property from reasonably foreseeable harm arising from such use. Where facts material to a defense are peculiarly within the defendant's knowledge - particularly compliance with statutory requirements under legislation such as the Civil Protection Act - absolution from the instance will not be granted without the defendant leading evidence on those matters. A defendant relying on statutory authority (such as section 23 of the Civil Protection Act) must demonstrate compliance with all procedural safeguards in that statute, including written notice to the possessor, ministerial consent where required, and provisions for return of property and compensation.

The court observed that rules of procedure should not be used to cause injustice and that a defendant who might be afraid to testify should not be permitted to shelter behind the procedure of absolution from the instance. The court noted that section 23 of the Civil Protection Act seeks to balance helping the needy while preserving property rights of possessors, requiring land to be "promptly returned in the condition in which it was at the time of such taking of possession or control" and providing for adequate compensation. The court indicated sympathy with the plaintiff's position, noting she had sought help from multiple officials including councillors and ministers without success, and that the designation of her farm as a distribution center led people to believe it was "no man's land" and encouraged ongoing theft and vandalism. The court also observed that alternative public venues like Folkington Primary School could have been used instead of private property.

This case is significant in Zimbabwean law (applicable to South African jurisprudence as it involves similar common law principles) for establishing that: (1) public authorities owe a duty of care when they authorize use of private property for public purposes, particularly when done without the owner's knowledge or consent; (2) the Civil Protection Act's provisions impose strict procedural requirements on authorities seizing or using private land, including presidential declaration, parliamentary communication, written notice to the possessor, and provisions for compensation; (3) facts peculiarly within a defendant's knowledge, especially regarding compliance with statutory requirements, require the defendant to testify and prevent absolution from the instance; (4) the foreseeability test applies to determine whether public authorities breached their duty of care when their actions create risks to private property; and (5) public entities cannot shelter behind procedural applications without explaining their compliance with statutory safeguards for property rights.