Kampion Tawurayi Garikayi and Others v Shereni Fisher and Others

The applicants were beneficiaries of Zimbabwe's land reform programme, each holding valid offer letters issued by government under the Agricultural Land Settlement Act, Cap 20:01, for land on Subdivision 5 of Murrayfield Farm in Murehwa District. The respondents were part of an original group of 55 occupiers who had taken possession of the farm, including areas allocated to the applicants. The other 45 occupiers had since left, but the 10 respondents refused to vacate. The applicants sought eviction, alleging interference with their occupation rights and destructive agricultural practices by the respondents, including stream bank cultivation causing siltation of the only water source. The respondents relied on a December 2005 order by Omerjee J permitting them to remain until lawfully evicted or resettled. The respondents had been offered alternative land but rejected it as unproductive.

• Whether holders of government offer letters for resettlement land have a right to evict persons without offer letters who are occupying their allocated land
• Whether the 2005 court order granted the respondents perpetual immunity from eviction
• Whether the respondents had been 'resettled' within the meaning of the 2005 order when they were offered but rejected alternative land
• Whether various procedural irregularities (late filing, improper representation, irregular affidavits) rendered the opposition invalid

The court granted the eviction order. Respondents 1-10 and all those claiming through them were ordered to vacate subdivisions 1-5 of Murrayfield Farm within 7 days of service. Failing compliance, the Deputy Sheriff was authorized to evict them forthwith. The respondents were ordered to pay costs jointly and severally.

A holder of an offer letter issued under the Agricultural Land Settlement Act for land acquired under Zimbabwe's land reform programme is entitled to occupy and use that land, and may sue for eviction of any person interfering with that right unless that person can prove a superior right of occupation. A court order permitting occupation 'until lawfully evicted or resettled' does not grant perpetual immunity from eviction but contemplates future lawful eviction proceedings. Where government offers alternative land to occupiers as resettlement, their subjective assessment of the quality of that land does not affect whether they have been 'resettled' for legal purposes. In civil procedure, a litigant who is not a legal practitioner and has no power of attorney cannot file process on behalf of other parties. An affidavit that merely adopts and incorporates another affidavit that is itself invalid or barred is without legal effect.

The court observed that no court would grant perpetual immunity from eviction under any circumstances. The court commented on the chaotic state of the respondents' filings and noted that the matter was in reality unopposed despite being heard on the merits, as all opposition papers were fundamentally defective. The court also noted that one cannot 'put something on nothing and expect it to stay there', citing Lord Denning in McFoy v United Africa Co Ltd [1963] 3 All ER 1169 (PC) to illustrate the principle that an affidavit incorporating a barred affidavit collapses for want of foundation.

This case clarifies the legal status and enforceability of offer letters issued under Zimbabwe's land reform programme. It establishes that holders of valid government offer letters have superior rights of occupation over persons without such letters and are entitled to evict unauthorized occupants. The case also demonstrates the courts' approach to procedural compliance in opposed applications, particularly regarding proper representation, timeous filing, and the consequences of being barred. It interprets previous interim orders permitting occupation 'until lawfully evicted or resettled' as not granting permanent rights, and confirms that rejection of alternative land offered by government still constitutes 'resettlement' for purposes of such orders.