via ‘Cellphone’ farmers to lose offer letters | The Herald February 27, 2014 by Daniel Nemukuyu
The High Court says beneficiaries of the land reform programme who are underutilising their land should have their offer letters withdrawn to pave way for more deserving farmers.
Justice Nicholas Mathonsi made the remarks yesterday while confirming the withdrawal of an offer letter from Mutare businessman Mr Fungai Chaeruka, and the subsequent reallocation of the same land to the former owner Ms Heather Guild.
Mr Chaeruka lost the land after it came to the authorities’ attention that he was underutilising 498 hectares of Lot 5, Mazonwe Farm in Mutare.
The court heard that Mr Chaeruka was practising horticulture on less than one hectare, leaving more than 497ha idle.
The withdrawal was effected following a directive by the late Vice President Joseph Msika, who was at the time the chairperson of the National Lands Committee.
In a seven-page judgment delivered yesterday in the motion court, Justice Mathonsi said underutilisation of land was a breach of the conditions under which allocations were made under the land reform programme.
“The Government policy on land reform is not recreational, neither is it designed to accord beneficiaries some pastime. It is meant to benefit those willing and able to utilise land. One cannot be allowed to hold on to large tracts of land they are not using simply to baby-sit an inflated ego.
“If a beneficiary is not using the land, that is a breach of the conditions upon which that land is offered. It should therefore be withdrawn and given to more deserving candidates. For the applicant to utilise less than a hectare while leaving the remaining 497 hectares fallow, was scandalous.
“It entitled first respondent (Minister of Lands and Rural Resettlement) to withdraw the offer letter,” ruled Justice Mathonsi.
Advocate Thabani Mpofu acted for Ms Guild while Adv David Ochieng represented Mr Chaeruka.
Justice Mathonsi agreed with Adv Mpofu on the point that the minister is empowered to withdraw an offer whenever there is a breach of contract.
“I agree with Mr Mpofu for the second defendant that if the applicant accepted the offer letter, he accepted it on the basis of Clause 7, which gives the minister unfettered power to cancel or withdraw the land as a result of a breach or if he deems it necessary. The applicant has not disputed that he was under-utilising the land.
“In fact he boldly stated in paragraph 3 of his answering affidavit that: ‘The scale of one’s farming operations viz the size of land does not provide a basis for the unlawful withdrawal of an offer letter’.”
Justice Mathonsi blasted Mr Chaeruka for seeking political protection in a legal dispute, saying the courts were simply there to dispense justice.
“Mr Mpofu urged me to award costs on a punitive scale in light of of the applicant’s disdain of the provisions of the law having elected to pursue a political solution taking advantage of the chairman of Zanu-PF’s political clout on legal issues.
“In addition, right up to the time this matter was argued, the applicant remained rooted at the farm even as he had no lawful authority to do so.
“In so doing he dirtied his hands. His conduct deserves the court’s censure,” he said.
The judge said it was now time for the nation to know that the courts are there to dispense justice in a country that prides itself with its strict adherence to the rule of law.
“To set aside the due process of law in favour of something extra-legal, and in the process bring the administration of justice to disrepute will be penalised with punitive costs.
“In the result, the application is hereby dismissed with costs on a legal practitioner and client scale,” ruled the judge.