Makandi Estate (Private) Limited v Temba Sithole and 10 Others

On 3 December 2021, first to third respondents went to the Remaining Extent of Christina Farm in Chipinge armed with an offer letter issued to the fourth respondent (Zanu PF Party Projects) dated 19 May 2021, with a view of taking occupation of 100 hectares of land. The applicant, a former owner of the farm which had been compulsorily acquired by the state, felt invaded by this conduct. Although admitting the land was compulsorily acquired by the state, the applicant contended it was in peaceful and undisturbed occupation of the farm for many decades. The applicant alleged that first to fourth respondents' acts were unlawful since they were not authorised by a court order to take occupation and evict the applicant from the farm. On 16 December 2021, Charewa J granted a provisional order in favour of the applicant by consent of fifth to tenth respondents (government officials), with first to fourth respondents in default, directing restoration of the applicant to possession and eviction of respondents. The applicant then sought a final order declaring the offer letter invalid and setting it aside, arguing there was an agreement with government to halt proceedings until ICSID compensation matters were finalised.

• Whether the preliminary points raised by first to fourth respondents (material disputes of fact and procedural irregularity) were valid and dispositive of the matter
• Whether a former owner or occupier of compulsorily acquired land, in occupation after expiry of the prescribed period, has standing to seek a declaratory order setting aside an offer letter issued to a new beneficiary
• Whether the court has jurisdiction to authorize continued use or possession of acquired land by former owners
• Whether the applicant could seek spoliation relief while being in illegal occupation of gazetted land
• Whether the offer letter issued to fourth respondent should be declared invalid and set aside
• Whether the holder of an offer letter must obtain a court order before taking occupation of allocated land

1. Applicant is in unlawful occupation of the Remaining Extent of Christina situated in Chipinge. 2. The applicant's prayer to declare the offer letter dated 19 May 2021 issued in favour of Fourth Respondent in respect of 100 hectares of the Remaining Extent of Christina is dismissed. 3. The interim order granted by this court on the 16th December 2021 is discharged. 4. Each party to bear its own costs.

1. Former owners or occupiers of compulsorily acquired land lose all rights to such land upon expiration of the prescribed period under the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]. 2. No court of law has jurisdiction to authorize continued use or possession of acquired land by former owners or occupiers who remain in occupation in open defiance of the law. 3. A former owner in illegal occupation of gazetted land has no standing (locus standi) to seek declaratory relief invalidating an offer letter issued by the Minister to a new beneficiary, as such a former owner has no legal interest in the manner or identity of persons to whom the Minister allocates land. 4. The Minister has legislative authority to issue offer letters, permits or land settlement leases to whomsoever he chooses, whether individual or universitas (corporate entity), and courts will not interfere with such ministerial discretion at the instance of illegal occupiers. 5. A litigant who is acting in open defiance of the law cannot approach a court for assistance (following Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity SC 111/04).

The court observed that the applicant claimed there was an agreement between itself and government to halt all proceedings until the matter was finalised by the International Centre for Settlement of Investment Disputes (ICSID), allowing applicant to continue using the land until fully compensated. However, the court noted that no Minister or President can grant a former owner the right to continue occupation of acquired land after the prescribed period, implicitly suggesting that any such agreement would be ineffective to confer legal rights of occupation. The court also noted in obiter that the applicant was free to approach the administrative court for relief if it had grounds to challenge the administrative decision to issue the offer letter, though this was not pursued in the present application. The court further observed that while fourth respondent was the lawful beneficiary of the land, "the only problem on fourth respondent's part is that it took occupation of the land without a court order," reinforcing that holders of offer letters must seek judicial enforcement of their rights rather than resorting to self-help.

This case reaffirms and applies the critical principles established in Commercial Farmers Union v Minister of Lands and Rural Resettlement SC 31/10 regarding land reform in Zimbabwe. It confirms that former owners of compulsorily acquired land who remain in occupation beyond the prescribed period are illegal occupiers with no standing to challenge ministerial decisions regarding land allocation. The case demonstrates that courts will not entertain applications from former owners seeking to invalidate offer letters or permits issued to new beneficiaries, regardless of the identity or nature of the beneficiary. The judgment also emphasizes that while holders of offer letters must seek court orders to enforce their rights (rather than resorting to self-help), former owners in illegal occupation cannot benefit from spoliation remedies or obtain declaratory relief that would effectively extend their unlawful occupation. The case is significant in the context of Zimbabwe's land reform program and clarifies the limited jurisdiction of courts to interfere with ministerial land allocation decisions where the applicant is an illegal occupier.