The applicant (Mago) received an offer letter on 25 February 2019 from the Ministry of Lands for Subdivision 5 of Cambria Farm in Masvingo District. He embarked on agricultural activities on the farm. While abroad on business, the 1st respondent (Rusere) took occupation of the farm, grazing livestock and erecting structures. The 1st respondent claimed he had entered into a verbal lease agreement with the applicant for subletting the farm for a period of 10 years. The applicant denied any such agreement and sought to evict the 1st respondent. Efforts to engage Ministry officials for resolution proved fruitless, prompting the applicant to approach the court. The 2nd respondent (Ministry of Lands) consented to judgment, confirming the applicant held a valid offer letter.
The 1st respondent and all those claiming occupation through him were evicted from Subdivision 5 of Cambria Farm. The 1st respondent was ordered to vacate the farm within 6 months of the order. The 1st respondent was ordered to pay the costs of the application on the ordinary scale.
A subletting agreement or any form of alienation of rights in respect of agricultural land held under an offer letter, entered into without the prior written consent of the Minister of Lands as required by Section 28 of the Lands Commission Act [Chapter 20:29] and the express terms of the offer letter, is void ab initio and of no force and effect. Such illegal agreements cannot constitute a valid cause of action or defence, and courts will take cognizance of such illegality mero motu. The principle ex turpi vel iniusta causa non oritur actio applies inflexibly, preventing any claim based on an illegal agreement even where parties may not be aware of the illegality.
The court adopted a robust common-sense approach to resolving disputes on affidavit evidence, noting that justice can be defeated or impeded by an over-cautious approach requiring oral evidence where the matter is capable of determination on the papers. The court also observed that a respondent who alleges material disputes of fact bears the onus to prove their existence, and mere allegations are insufficient as they may be raised to delay proceedings. The court noted the patent contradiction in the 1st respondent's position of asserting facts were common cause while simultaneously claiming material disputes of fact existed.
This case is significant in Zimbabwean land law as it reinforces the strict statutory prohibition against subletting or alienating agricultural land allocated under offer letters without the Minister's prior written consent. It demonstrates the courts' approach to statutory illegality in land transactions under the land reform framework, establishing that such unauthorized transactions are void ab initio and unenforceable. The judgment also illustrates the application of the principle that courts will not aid illegality, even when dealing with disputes between private parties regarding land occupation rights.