MANGENJE v TBIC INVESTMENTS (PVT) LTD & ORS; MANGENJE v MIN OF LANDS & ORS 2013 (2) ZLR 534 (H)

Flynote

Administrative law — audi alteram partem rule — application — failure to grant hearing before taking decision — legitimate expectation on part of affected person that hearing would be granted — limited situations where subsequent hearing may constitute compliance with rule

Headnote

The applicant in these two amalgamated cases had been given an "offer letter" by the Minister (first respondent in the second case) in respect of a farm. The original owner had sub-divided the farm and sold two portions of it, leaving a little over half of the original farm. The remainder was then sold to the first respondent in the first case (TBIC), who leased it to the second respondent (the tenant) in that case. The following year, 2000, the whole property was identified for compulsory acquisition for resettlement, in spite of part having been sold previously. At that time, the period of validity of a notice of acquisition was one year. The acquisition of the property was not subsequently confirmed in court in accordance with the provisions of s 8 of the Land Acquisition Act [Chapter 20:10]. Another notice of acquisition was published in 2003, again referring to the full original property. This notice was withdrawn after about 10 weeks. A third notice of acquisition was published and withdrawn. In spite of these withdrawals, and the expiry of the first notice, the property was listed in Schedule 7 of the Constitution of Zimbabwe 1980. This Schedule had 157 preliminary notices that had been published in the Government Gazette. They listed the properties that had been "identified" for acquisition. The two notices of 2000 and 2003 were on the list. On 3 November 2005 the original title deed for the whole property was endorsed by the Registrar of Deeds in line with s 16B(4) of the Constitution to the effect that the farm was now State land.

In August 2006 the Minister, in terms of the standard term "offer letter", allocated the remainder of the farm to the applicant. The applicant accepted the offer in February 2007. When he tried to occupy the farm, he found the tenant in occupation. The tenant refused to move. In 2009 TBIC somehow managed to take transfer of the remainder of the farm, in spite of the endorsement by the Registrar of Deeds. The applicant sought a declaratory order that the compulsory acquisition of the property by government had been valid, as well as several other orders: the nullification of the transfer of the property to TBIC; the nullification of TBIC's lease of the property to the tenant; and the eviction of the tenant and anyone else claiming occupation through TBIC.

About four months before the date of hearing, the Minister gave the applicant a written notice of the immediate withdrawal of the offer letter. The withdrawal letter was said to be in terms of the conditions of offer attached to the offer letter. The applicant was required to forthwith cease all operations on the property and to immediately vacate. The withdrawal letter concluded by inviting the applicant to make representations, if he wished to do so, within seven days of the receipt of the letter. The reasons for the withdrawal letter were explained as being that the property was owned by an indigenous entity, that it was not the policy of the ministry to dispossess indigenous owners of land and that therefore the applicant could not insist on enforcing his rights against TBIC. An alternative piece of land in another district was offered, but the applicant found it unsuitable for his purposes. The Minister's withdrawal letter was not motivated by any breach by the applicant of the conditions contained in the offer letter. The Minister did not specify any such condition.

The applicant then brought the second case, against the Minister. He sought the setting aside of the withdrawal letter and the reinstatement of the offer letter on the grounds that the withdrawal letter had offended against the rules of natural justice in that he had not been afforded an opportunity to make representation before the Minister had taken the adverse decision against him. He also argued that by taking that administrative function the Minister had failed to act fairly and had therefore breached the Administrative Justice Act [Chapter 10:20]. The Minister and TBIC argued that it was a mistake that the property was included on Schedule 7 to the Constitution as the listing notices had either lapsed or been withdrawn.

Held, that the audi alteram partem rule holds that a man shall not be condemned without being given a chance to be heard in his own defence. The rule is so basic to jurisprudence that it is often termed a rule of natural justice. The legitimate expectation doctrine is an extension of the audi alteram partem rule. Fairness is the overriding factor in deciding whether a person may claim a legitimate entitlement to be heard. An administrative decision made in violation of natural justice can be set aside, especially if it is to be implemented immediately. Once a decision has been reached in violation of natural justice, even if it has not been implemented, a subsequent hearing will be no meaningful substitute. The prejudicial decision taken will be set aside as procedurally invalid. In this way the human inclination to adhere to the decision is avoided. There are some limited situations where a subsequent hearing will constitute compliance with natural justice, but only if, in all the circumstances, it was sufficiently fair as to have the effect of curing the failure to hold a hearing before. The Minister had not observed the rules of natural justice when he issued the withdrawal letter.

Held, further, that on the issue of the applicant's locus standi, the holder of an offer letter in respect of land acquired for resettlement in terms of the land reform programme is entitled to occupy the land and to use it. He is entitled to sue for the eviction of anyone interfering with that right, unless that person proves a superior right of occupation. In this case, therefore, the applicant had the requisite locus standi.

Held, further, that the Administrative Justice Act requires an administrative authority to observe the rules of natural justice whenever it makes an administrative decision or takes an administrative action adverse to vested rights or legitimate expectations. The Minister was undoubtedly an "administrative authority" within the meaning of s 2 of the Act. His withdrawal letter was an "administrative action." The Minister breached s 3 of the Act in relation to the manner the withdrawal letter was issued. He failed in his duty to act in a fair manner; he failed to give the applicant any notice of the nature of his action and he gave the applicant no opportunity to make adequate representations before he implemented his decision, let alone before making it.

Held, further, that the mode of compulsory acquisition of agricultural land that was ushered in by s 16B of the 1980 Constitution was materially different from that under the Land Acquisition Act. Under the Act it was the "acquiring authority" that was tasked with the duty to compulsorily acquire land for agricultural purposes. The "acquiring authority" was the President or any Minister authorised by the President. Section s 16B(2)(a), particularly subparagraphs (i) and (ii) thereof, short circuited the process under the Act. In one fell swoop, Parliament, and not the acquiring authority, cancelled the prior deeds of transfer in the names of the previous owners, and transferred ownership of the acquired lands to the State. In enacting s 16B, the Legislature was alive to the issue of possible mistakes that could have been made by the "acquiring authority" in the previous dispensation in relation to the identification of agricultural lands targeted for compulsory acquisitions. If the property appeared in the list then that would be the end of the matter. It would be the property being acquired by Parliament; the property the ownership of which was being divested from the previous owner and the property the ownership of which was being vested in the State. If indeed such a property would have been withdrawn but nonetheless found itself back on the list in terms of s 16B, then the acquisition in terms of the Constitution would prevail. Such an error, if ever it was one, would be "... any error whatsoever contained in such notice..." within the meaning of s 16B(5)(a) and (b).