Suscaden Investments (Private) Limited v Parks and Wildlife Management Authority and Others

On 8 September 2017, the appellant (Suscaden Investments) and the first respondent (Parks and Wildlife Management Authority) entered into a 25-year lease agreement for a portion of the Chewore North Safari Area. The first and second respondents (the Minister) subsequently sought a declaration that the lease agreement was null and void ab initio on the grounds that: (1) it had not been sanctioned by the Minister as required by s 37 of the Parks and Wildlife Management Act; and (2) the agreement exceeded the maximum 25-year period provided in the Act. The Minister who was in office when the agreement was executed (O. Muchinguri-Kashiri) filed a supporting affidavit stating she never signed the agreement and would not have done so without inserting a date, as this was crucial for determining the lease commencement and duration. The appellant contended the Minister had signed the agreement and produced various versions showing her signature. The appellant admitted it had relied on an unsigned version in previous litigation (HC 6592/22 and HC 6806/22) but insisted the Minister had signed. The High Court invited parties to call witnesses. The appellant called George Manyumwa, the first respondent's Deputy Director-General, who testified about the signing procedure but admitted he did not personally witness the Minister signing and could not contest her denial. Three different versions of the agreement were produced with inconsistent signatures and dates.

• Whether the Minister signed or otherwise approved the lease agreement as required under s 37(1)(a) of the Parks and Wildlife Management Act
• Whether the High Court erred in finding that the Minister had not signed the lease agreement
• Whether the High Court correctly allocated the burden of proof regarding the Minister's signature
• Whether an adverse inference should be drawn from the Minister's failure to testify and submit to cross-examination
• Whether the respondents were estopped from denying the validity of the lease agreement based on prior conduct, including acceptance of rentals

The appeal was dismissed with costs. The High Court's judgment declaring the lease agreement null and void ab initio was upheld, along with the consequential orders interdicting the appellant from conducting activities in the Safari Area and ordering it to vacate within 90 days.

1. An agreement that does not comply with mandatory statutory provisions is void ab initio and of no legal force or effect. 2. Where a statute requires ministerial concurrence for a lease agreement (as under s 37(1)(a) of the Parks and Wildlife Management Act), absence of such concurrence renders the agreement a legal nullity. 3. The burden of proof rests on the party asserting a fact (in this case, that the Minister signed the agreement) to prove it on a balance of probabilities, particularly when that fact is denied by the other party. 4. An adverse inference from failure to testify can only be drawn where a party has first established a prima facie case; if no prima facie case exists, there is no case to answer and no adverse inference arises. 5. Prior conduct, such as acceptance of rental payments or silence, cannot estop a party from challenging the validity of an agreement that fails to comply with mandatory statutory requirements. 6. An appellate court will not interfere with factual findings of a trial court unless such findings are so outrageous in their defiance of logic that no sensible person could have made them.

The Court observed that the Minister's explanation that she would not have signed the lease without entering the date was logical and prudent, as the date determines the 25-year statutory cap. The Court also noted that in applying the rule in R v Blom 1939 AD 188 regarding inferential reasoning, while criminal cases require that proved facts exclude every reasonable inference except the one sought to be drawn, in civil cases it is sufficient if the inference sought is the most probable reasonable inference, though it must still be consistent with all proved facts. The Court commented that calling the Minister to testify would have served no purpose other than harassment given the appellant's failure to establish a prima facie case.

This case establishes important principles in Zimbabwean administrative and property law regarding statutory compliance in lease agreements involving public authorities. It reinforces that agreements failing to comply with mandatory statutory provisions (such as Ministerial approval requirements) are void ab initio and cannot be validated through subsequent conduct or estoppel. The judgment clarifies the burden of proof when a party asserts the existence of statutory compliance in the face of denial by the relevant authority. It also provides guidance on when adverse inferences may be drawn from failure to testify, requiring the party seeking the inference to first establish a prima facie case. The decision protects the integrity of statutory safeguards in public resource management and prevents parties from circumventing mandatory approval processes through procedural arguments or reliance on past conduct.