MAKAZA N.O v Jani and others (38 of 2025) [2025] ZWHHC 38 (24 January 2025)

4 HH 38 - 25 HCH 2351/24 DORCAS MAKAZA N.O. (in her capacity as the Executrix Dative of the Estate of the late James Robert Dambaza Chikerema) versus TIMOTHY JANI and PETER NYATSANGA and TINOS MANUNGUVERE and ZACKARIAH CHAKWIZIRA and TICHAONA BENNET and DAINA KUTAMA and ZANO KUTAMA and STELLA CHAKWIZIRA and CHRISTINE KUTAMA and SUSAN MANUNGUVERE and GODFREY NYATSANGA and THE MASTER OF THE HIGH COURT HIGH COURT OF ZIMBABWE MAMBARA J HARARE; 21 & 24 January 2025 Opposed Application Mr K. Mutyasira, for the applicant Mr J. Zuze, for 1st – 11th Respondents MAMBARA J: Introduction The legacy of Cde James Robert Dambaza Chikerema (hereinafter referred to as “Chikerema”) looms large in Zimbabwe’s history. A man of unyielding conviction, Chikerema’s life was marked by his unrelenting pursuit of justice and his controversial stances. Even in death, he remains a figure of debate and admiration. Despite his ostracism during his lifetime, he was posthumously conferred National Hero status, a testament to his enduring impact. The present application is brought by the executrix dative of Chikerema’s estate, seeking an order for rei vindicatio on the basis that the respondents are unlawfully occupying Diana Farm, part of Hunyani Estate. The case raises complex issues surrounding land acquisition, ownership rights, and the historical redistribution of land in Zimbabwe. Background Zimbabwe’s history of land acquisition is deeply intertwined with its colonial past and subsequent independence. The Land Acquisition Act of 1992 and subsequent constitutional amendments, including s72 of the Constitution of Zimbabwe, facilitated the compulsory acquisition of land by the State for resettlement and public use. This process, though aimed at redressing historical inequities, has been fraught with legal and administrative challenges. Chikerema’s Hunyani Estate, registered under Deed of Transfer No. 797/89, was acquired by the State in 2005 under s16B(4) of the Constitution. The land was subsequently utilized for the Kutama Resettlement Scheme, accommodating families displaced by the construction of Father “O” Hea Hospital and Kutama Business Centre. Houses were constructed by the District Development Fund (DDF), and the respondents were settled there. Letters from government departments, including one from the Office of the District Development Coordinator dated 15 May 2024, confirm that the resettlement was sanctioned by the government. The letter explicitly states that the eleven families occupying Hunyani Estate were resettled following due process and recommends compensating Chikerema’s estate with alternative land to avoid disrupting the settled families. Another letter dated 28 September 1995 details the government’s plan to build houses for these families as part of the resettlement scheme. The Constitution of Zimbabwe is also central to this case. Section 72(5) states: "All agricultural land that was identified and acquired for resettlement purposes under the Land Acquisition Act shall vest in the State and shall not be capable of being transferred to another party unless the State consents to such transfer." This provision underscores the enduring nature of State ownership post-acquisition. Issues for Determination Whether the applicant has established a case for rei vindicatio.The legal effect of the cancellation endorsement on the title deed.Whether the respondents’ occupation is lawful. The Applicant’s Case The applicant’s case is premised on the following: The late Chikerema’s estate is the registered owner of the property, as evidenced by Deed of Transfer No. 797/89.The respondents are unlawful occupiers and have no consent to remain on the property.The cancellation of the acquisition endorsement restored private ownership to the estate. During oral arguments, the applicant’s counsel raised additional claims that the respondents were erroneously settled on Subdivision “F” of Diana Farm, which was not subject to acquisition. However, these claims were not pleaded in the founding affidavit. The Respondents’ Case The respondents argue that: The land was lawfully acquired by the State in 2005, rendering the title deed null and void.Their settlement was part of a government resettlement scheme, supported by official documents from the Ministry of Lands and the DDF.The cancellation of the acquisition endorsement does not automatically restore ownership; a formal process is required.The applicant lacks locus standi to evict them. Analysis Rei Vindicatio The principle of rei vindicatio requires the applicant to prove ownership of the property, the respondents’ possession of the property, and the absence of consent for such possession. While the applicant asserts ownership, the respondents’ occupation is rooted in a government-sanctioned resettlement scheme. This undermines the claim of unlawful possession. Effect of the Cancellation Endorsement Section 72(5) of the Constitution provides that land acquired by the State becomes State property. The endorsement cancelling the acquisition does not, in itself, restore title. The Registrar of Deeds has no authority to unilaterally reverse an acquisition. Case law supports this position: Mike Campbell v Minister of National Security SC 49/07: Land acquisition, once completed, is presumed valid unless overturned by a competent court.Naval Phase Farming (Pvt) Ltd v Minister of Lands SC 50/18: The restoration of title requires a formal process, including the issuance of a new deed of transfer.Commercial Farmers Union v Minister of Lands SC 31/10: Even if land is acquired in error, the acquisition remains presumed valid unless proven otherwise through a formal process. The applicant failed to present evidence of a juristic act or formal process to restore ownership. Without such evidence, the endorsement on the title deed remains legally ineffective. Lawfulness of the Respondents’ Occupation The respondents’ occupation is supported by letters from government officials and evidence of houses constructed by the DDF. This establishes their lawful settlement under the resettlement scheme. The letter dated 15 May 2024 from the District Development Coordinator explicitly states: "The eleven families are not illegal settlers because due process was followed by the government in the allocation of land." The letter also warns that evicting these families would disrupt public infrastructure, including Father “O” Hea Hospital. The applicant’s failure to join the relevant government ministries further weakens her case. The ministries are the rightful parties to address issues of land resettlement and acquisition. Findings The applicant’s reliance on the cancellation endorsement is misplaced. No evidence was presented to show a formal restoration of title to the estate.The respondents’ occupation is lawful, as it was sanctioned by the State through the resettlement scheme.The applicant’s departure from her pleaded case, by raising new arguments during oral submissions, is procedurally improper. DISPOSITION The application is devoid of merit. The applicant has failed to establish a case for rei vindicatio. The respondents were lawfully settled on the land, and their eviction would be contrary to public policy and the principles underpinning the land reform program. In the result, it is ordered as follows; The application is dismissed.The applicant shall bear the respondents’ costs. Mambara J: …………………………………………… Mubangwa and Partners, applicant’s legal practitioners Antonio and Associates, 1st – 11th respondents’ legal practitioners 4 HH 38 - 25 HCH 2351/24 4 HH 38 - 25 HCH 2351/24 DORCAS MAKAZA N.O. (in her capacity as the Executrix Dative of the Estate of the late James Robert Dambaza Chikerema) versus TIMOTHY JANI and PETER NYATSANGA and TINOS MANUNGUVERE and ZACKARIAH CHAKWIZIRA and TICHAONA BENNET and DAINA KUTAMA and ZANO KUTAMA and STELLA CHAKWIZIRA and CHRISTINE KUTAMA and SUSAN MANUNGUVERE and GODFREY NYATSANGA and THE MASTER OF THE HIGH COURT HIGH COURT OF ZIMBABWE MAMBARA J HARARE; 21 & 24 January 2025 Opposed Application Mr K. Mutyasira, for the applicant Mr J. Zuze, for 1st – 11th Respondents MAMBARA J: Introduction The legacy of Cde James Robert Dambaza Chikerema (hereinafter referred to as “Chikerema”) looms large in Zimbabwe’s history. A man of unyielding conviction, Chikerema’s life was marked by his unrelenting pursuit of justice and his controversial stances. Even in death, he remains a figure of debate and admiration. Despite his ostracism during his lifetime, he was posthumously conferred National Hero status, a testament to his enduring impact. The present application is brought by the executrix dative of Chikerema’s estate, seeking an order for rei vindicatio on the basis that the respondents are unlawfully occupying Diana Farm, part of Hunyani Estate. The case raises complex issues surrounding land acquisition, ownership rights, and the historical redistribution of land in Zimbabwe. Background Zimbabwe’s history of land acquisition is deeply intertwined with its colonial past and subsequent independence. The Land Acquisition Act of 1992 and subsequent constitutional amendments, including s72 of the Constitution of Zimbabwe, facilitated the compulsory acquisition of land by the State for resettlement and public use. This process, though aimed at redressing historical inequities, has been fraught with legal and administrative challenges. Chikerema’s Hunyani Estate, registered under Deed of Transfer No. 797/89, was acquired by the State in 2005 under s16B(4) of the Constitution. The land was subsequently utilized for the Kutama Resettlement Scheme, accommodating families displaced by the construction of Father “O” Hea Hospital and Kutama Business Centre. Houses were constructed by the District Development Fund (DDF), and the respondents were settled there. Letters from government departments, including one from the Office of the District Development Coordinator dated 15 May 2024, confirm that the resettlement was sanctioned by the government. The letter explicitly states that the eleven families occupying Hunyani Estate were resettled following due process and recommends compensating Chikerema’s estate with alternative land to avoid disrupting the settled families. Another letter dated 28 September 1995 details the government’s plan to build houses for these families as part of the resettlement scheme. The Constitution of Zimbabwe is also central to this case. Section 72(5) states: "All agricultural land that was identified and acquired for resettlement purposes under the Land Acquisition Act shall vest in the State and shall not be capable of being transferred to another party unless the State consents to such transfer." This provision underscores the enduring nature of State ownership post-acquisition. Issues for Determination Whether the applicant has established a case for rei vindicatio. The legal effect of the cancellation endorsement on the title deed. Whether the respondents’ occupation is lawful. The Applicant’s Case The applicant’s case is premised on the following: The late Chikerema’s estate is the registered owner of the property, as evidenced by Deed of Transfer No. 797/89. The respondents are unlawful occupiers and have no consent to remain on the property. The cancellation of the acquisition endorsement restored private ownership to the estate. During oral arguments, the applicant’s counsel raised additional claims that the respondents were erroneously settled on Subdivision “F” of Diana Farm, which was not subject to acquisition. However, these claims were not pleaded in the founding affidavit. The Respondents’ Case The respondents argue that: The land was lawfully acquired by the State in 2005, rendering the title deed null and void. Their settlement was part of a government resettlement scheme, supported by official documents from the Ministry of Lands and the DDF. The cancellation of the acquisition endorsement does not automatically restore ownership; a formal process is required. The applicant lacks locus standi to evict them. Analysis Rei Vindicatio The principle of rei vindicatio requires the applicant to prove ownership of the property, the respondents’ possession of the property, and the absence of consent for such possession. While the applicant asserts ownership, the respondents’ occupation is rooted in a government-sanctioned resettlement scheme. This undermines the claim of unlawful possession. Effect of the Cancellation Endorsement Section 72(5) of the Constitution provides that land acquired by the State becomes State property. The endorsement cancelling the acquisition does not, in itself, restore title. The Registrar of Deeds has no authority to unilaterally reverse an acquisition. Case law supports this position: Mike Campbell v Minister of National Security SC 49/07: Land acquisition, once completed, is presumed valid unless overturned by a competent court. Naval Phase Farming (Pvt) Ltd v Minister of Lands SC 50/18: The restoration of title requires a formal process, including the issuance of a new deed of transfer. Commercial Farmers Union v Minister of Lands SC 31/10: Even if land is acquired in error, the acquisition remains presumed valid unless proven otherwise through a formal process. The applicant failed to present evidence of a juristic act or formal process to restore ownership. Without such evidence, the endorsement on the title deed remains legally ineffective. Lawfulness of the Respondents’ Occupation The respondents’ occupation is supported by letters from government officials and evidence of houses constructed by the DDF. This establishes their lawful settlement under the resettlement scheme. The letter dated 15 May 2024 from the District Development Coordinator explicitly states: "The eleven families are not illegal settlers because due process was followed by the government in the allocation of land." The letter also warns that evicting these families would disrupt public infrastructure, including Father “O” Hea Hospital. The applicant’s failure to join the relevant government ministries further weakens her case. The ministries are the rightful parties to address issues of land resettlement and acquisition. Findings The applicant’s reliance on the cancellation endorsement is misplaced. No evidence was presented to show a formal restoration of title to the estate. The respondents’ occupation is lawful, as it was sanctioned by the State through the resettlement scheme. The applicant’s departure from her pleaded case, by raising new arguments during oral submissions, is procedurally improper. DISPOSITION The application is devoid of merit. The applicant has failed to establish a case for rei vindicatio. The respondents were lawfully settled on the land, and their eviction would be contrary to public policy and the principles underpinning the land reform program. In the result, it is ordered as follows; The application is dismissed. The applicant shall bear the respondents’ costs. Mambara J: …………………………………………… Mubangwa and Partners, applicant’s legal practitioners Antonio and Associates, 1st – 11th respondents’ legal practitioners