Joseph Macheka and Others v Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement

Five applicants held offer letters for subdivisions of Springs Farm in Goromonzi District under the Land Reform and Resettlement Programme. In June 2024, the Minister of Lands withdrew their offer letters, stating the reason as "re-planning and conversion of the land usage from agricultural to urban". The applicants had occupied the land for between 22-25 years. The first applicant was a liberation war veteran who had entered into a tripartite agreement with an investor and the government in 2018. The second applicant was a retired soldier who had invested over $500,000 in irrigation and structures. The third and fourth applicants were war collaborators/veterans. The fifth applicant was the son of a veteran. All had made substantial improvements and investments on their respective parcels. They made detailed written representations to the Minister objecting to the withdrawal, but the Minister proceeded to withdraw the offers. The applicants filed a review application under s 4 of the Administrative Justice Act and s 68 of the Constitution. The respondent filed opposition through an affidavit deposed to by the Permanent Secretary in the Ministry, Obert Jiri, who claimed authority to depose on behalf of the Minister. The applicants challenged this authority and argued there was no valid opposition.

• Whether there was valid opposition before the court where the opposing affidavit was deposed to by the Permanent Secretary rather than the Minister whose decision was under review
• Whether proof of authority must be produced when a deponent's authority to act on behalf of another party is challenged
• Whether a Permanent Secretary can competently depose to an affidavit on behalf of a Minister in judicial review proceedings concerning the Minister's exercise of statutory power
• Whether an affidavit deposed to by someone other than the decision-maker constitutes inadmissible hearsay evidence in administrative review proceedings
• Whether the Minister's decision to withdraw land offer letters was lawful, reasonable and fair as required by s 3 of the Administrative Justice Act and s 68 of the Constitution

1. The decision of the respondent to withdraw the offers of land held under the Land Reform Resettlement Programme by the applicants in respect of Springs Farm in Goromonzi District of Mashonaland Province is reviewed and set aside. 2. The withdrawal of the following offers is specifically set aside: 2.1. First Applicant - Subdivision 1 (350.3 hectares); 2.2. Second Applicant - Subdivision 2 (105.96 hectares); 2.3. Third Applicant - Subdivision 3 (88.3 hectares); 2.4. Fourth Applicant - Subdivision 6 (23.5 hectares); 2.5. Fifth Applicant - Subdivisions 4 & 5 (100.7 hectares). 3. The respondent shall pay the costs of the application.

When a deponent's authority to act on behalf of a party in legal proceedings is challenged, proof of such authority must be produced; failure to do so renders the pleadings invalid. In judicial review proceedings challenging the exercise of a Minister's statutory power, particularly where the Minister is required by the Administrative Justice Act and the Constitution to act lawfully, reasonably and fairly, only the Minister as the decision-maker can competently depose to an affidavit explaining the decision. A subordinate official such as a Permanent Secretary cannot depose to such an affidavit on the Minister's behalf, as this would constitute inadmissible hearsay evidence - only the Minister can testify as to what passed through his/her mind when exercising the statutory power. The exercise of statutory powers that require the application of the decision-maker's mind cannot be delegated in the absence of express statutory authority permitting delegation. An opposing affidavit based on hearsay rather than personal knowledge is invalid, resulting in no valid opposition before the court.

The court noted that land is a very important resource in Zimbabwe and members of the Executive must take matters concerning it seriously, suggesting a need for Ministers to be personally engaged rather than leaving such matters to officials. The court observed that there was no justification for awarding costs on a punitive scale despite the respondent's procedural failures. The court confirmed the legal position from Mukwaira v Minister of Lands SC 15/24 that the Minister's power to withdraw offer letters derives from condition 7 of the offer letters (as conditions he determines under ss 17, 23 and 26 of the Land Commission Act) rather than from s 27 which governs Presidential withdrawals, though the need for the Minister to act lawfully, reasonably and fairly when exercising such power cannot be overemphasized. The court acknowledged that while Ministers cannot give detailed attention to every administrative matter and must rely on departmental officers for advice on administrative detail, this does not extend to permitting delegation of the function of defending their decisions in judicial review proceedings.

This case is significant in Zimbabwean administrative law for establishing important procedural principles in judicial review proceedings. It reinforces the principle that when a Minister exercises statutory power that involves the application of his/her mind, that Minister must personally account for the decision in court proceedings challenging it - this duty cannot be delegated to officials. The case affirms the strict application of the rule that when authority to litigate is challenged, proof must be produced (following Dube v PSMAS). It emphasizes ministerial accountability in the exercise of administrative power, particularly concerning land - a sensitive national resource in Zimbabwe. The judgment strengthens the enforcement of the constitutional right to administrative justice under s 68 of the Constitution and s 3 of the Administrative Justice Act, ensuring that decision-makers cannot hide behind subordinates when their decisions are reviewed. It also has implications for land reform matters, protecting beneficiaries who have invested in and developed allocated land over extended periods.