Moreblessings Mpofu and Leo T. Mpofu v F.A Stewart (Pvt) Ltd and Joseph Stewart and Minister of Lands and Rural Resettlement, N.O

The applicants were issued an offer letter by the Minister of Lands and Rural Resettlement on 3 December 2014 for a farm known as Subdivision 22 of Insindi in Gwanda, measuring 228 hectares under the Model A2 scheme. The farm had been gazetted by the Government on 2 June 2000 for re-allocation. When the applicants demanded that the first and second respondents vacate the farm, the respondents refused. The applicants sued for eviction (HC 371/16) and then brought a summary judgment application. The respondents defended on the basis that they occupied the farm pursuant to a Consent Court Order issued by the Administrative Court on 10 December 2002 (LA 125/00), which settled litigation concerning the acquisition. That order confirmed the acquisition of the eastern portion (6000 hectares) of Insindi Ranch but withdrew proceedings for acquisition of the western portion (7420 hectares), which the first respondent was entitled to continue occupying. The respondents claimed they had occupied the farm for 12 years pursuant to this agreement with the state.

• Whether the applicants' claim for eviction based on an offer letter was unassailable so as to warrant summary judgment
• Whether the first and second respondents disclosed a bona fide defence to the eviction claim
• Whether Constitutional Amendment No 17 (s16B) retrospectively nullified agreements and court orders concerning farm land by transferring ownership to the state
• Whether section 291 of the current Constitution protected the first respondent's right to occupy the farm pursuant to the 2002 agreement with the state
• Whether the Government could lawfully offer land to the applicants that was subject to a prior agreement and court order with the first respondent

The summary judgment application was dismissed. Costs were awarded to be costs in the main cause (HC 371/16).

Summary judgment will not be granted where the respondent has disclosed an arguable defence based on material facts. An offer letter holder's claim to evict occupiers is not unassailable where those occupiers can demonstrate occupation pursuant to a prior agreement or court order with the state. Section 291 of the Constitution of Zimbabwe protects the rights of persons who were occupying agricultural land by virtue of a lease or agreement with the state immediately before the effective date (22 August 2013), allowing them to continue occupation in accordance with that lease or agreement. Constitutional Amendment No 17 did not necessarily extinguish vested rights that existed prior to its promulgation.

The court noted that the founding affidavit did not comply with Rule 64(2) of the High Court Rules 1971 as it did not verify the cause of action, but condoned this failure in order to address the merits. The court observed that it was unnecessary to definitively decide all legal implications arising from the Administrative Court Order and section 291 of the Constitution, as it was sufficient that these raised arguable defences. The court noted it was arguable whether the Government had fettered its own entitlement to allocate the farm by entering into the 2002 agreement with the first respondent.

This case is significant in Zimbabwean land reform jurisprudence as it addresses the tension between new land allocations under offer letters and pre-existing agreements/court orders concerning farm land. It demonstrates judicial recognition that Constitutional Amendment No 17, which transferred farm ownership to the state, may not have nullified all vested rights. More importantly, it applies section 291 of the 2013 Constitution, which protects persons occupying agricultural land pursuant to agreements with the state as at the effective date of the Constitution. The judgment affirms that holders of offer letters do not have unassailable claims where prior legal arrangements exist, and that summary judgment will not be granted where arguable defences exist concerning competing land rights. It highlights the complexity of Zimbabwe's land reform and the need for proper acquisition procedures even after Constitutional Amendment No 17.