Forrester Estate (Private) Limited v Lovemore Makunun'unu and The Minister of Lands, Land Reform and Resettlement N.O

The applicant, Forrester Estate (Private) Limited, carried on farming operations at Frogmore Farm in Mazoe. The first respondent took occupation of part of the farm on 13 May 2007 based on an offer letter issued by the Minister of Lands (second respondent). The applicant issued summons claiming spoliatory relief. After a full trial, the court granted the applicant's claim on 29 July 2009. On 30 July 2009, the first respondent filed a Notice of Appeal to the Supreme Court. The applicant then brought the present application for leave to execute pending the appeal. The farm had been the subject of preliminary notices under the Land Acquisition Act, which had been set aside by various court judgments, but was subsequently listed in Schedule 7 of Constitutional Amendment Act No. 17 of 2005, which purported to vest title in the State.

• Whether leave to execute pending appeal should be granted
• What factors should be considered in an application for leave to execute pending appeal
• Whether the farm had been lawfully acquired by the State despite prior court orders setting aside preliminary notices
• Whether an offer letter entitles a person to occupy land without consent of the owner or a court order
• Whether unlawful occupation can constitute a defence to a claim for mandament van spolie
• The balance of convenience between the parties pending appeal

The application for leave to execute pending appeal was dismissed. The applicant was ordered to pay the first respondent's costs.

In applications for leave to execute pending appeal, the court must consider: (1) the prospects of success on appeal; (2) the potentiality of irreparable harm or prejudice to the parties; and (3) where there is potential irreparable harm to both parties, the balance of hardship or convenience. Where High Court judgments on a particular legal issue are divergent and conflicting, and the issue is pending authoritative determination by the Supreme Court, a party relying on one line of authorities has reasonable prospects of success on appeal. In such circumstances, the balance of convenience becomes the determining factor. Section 16B of the Constitution read with Schedule 7, brought into operation through Constitutional Amendment Act No. 5 of 2005, had the specific and clear intention to validate the acquisition of all properties listed in Schedule 7 and to effectuate the vesting of title in the State, notwithstanding any prior court decisions to the contrary.

The court noted with respect to PATEL J's view in a similar matter that the respondent had minimal prospects of success, but expressed a different view based on the quality of judgments supporting the respondent's position (citing Konrad Van der Merwe v Nixon Chirinda HC 3217/07, Top Crop (1976) Pvt Ltd v Minister of Lands HH 74-09, and Andrew Roy Ferera v Bessie Nhendera HC 3995/08). The court observed that these judgments "make very good reading" and suggested that in the circumstances, the best approach would be to await the Supreme Court decision which might go either way. The court also commented that while CHIDYAUSIKU CJ's remarks in Chikafu were made obiter, they nevertheless accurately reflected the state of divergence in the High Court authorities on the issue of whether unlawful occupation can be a defence to spoliation.

This case is significant in Zimbabwean land reform jurisprudence as it addresses the intersection of constitutional land acquisition provisions, spoliatory relief, and the execution of judgments pending appeal. It illustrates the court's recognition of conflicting High Court authorities on whether unlawful occupation can constitute a defence to mandament van spolie, acknowledging that this issue required authoritative determination by the Supreme Court. The case also demonstrates the court's interpretation of Constitutional Amendment Act No. 17 and section 16B as having retrospective validating effect on land acquisitions listed in Schedule 7, notwithstanding prior court orders setting aside preliminary acquisition notices. It provides guidance on the application of the South Cape Corporation test in the specific context of land reform disputes.