Online Reporter
Fidelis Munyoro
Chief Court Reporter
The Supreme Court has upheld a High Court ruling that invalidated a 25-year lease agreement between Suscaden Investments (Private) Limited and the Zimbabwe Parks and Wildlife Management Authority (ZimParks) for operations at Chewore Lodge and Campsite.
The decision, handed down by Justices George Chiweshe, Justice Chinembiri Bhunu and Joseph Musakwa, confirms that the lease was null and void from the start due to the lack of ministerial approval as required by law.
The long-running legal dispute, which pitted Suscaden against ZimParks, the Ministry of Environment, Climate Change, Tourism and Hospitality Management, and rival safari operator Big Five Safaris, centred on whether the lease agreement complied with Section 37 of the Parks and Wildlife Management Act.
That provision stipulates that any lease in a safari area must be signed with the concurrence of the Minister of Environment.
Suscaden, which had operated the lodge since 2017, argued that the lease bore the required ministerial signature. ZimParks and the ministry challenged this, claiming the signature was not authentic.
In a judgment read by Justice Chiweshe, the court declared that Suscaden had failed to provide clear evidence that the former Minister, Oppah Muchinguri-Kashiri, had approved the lease.
“The burden of proof rests on the party asserting a fact,” Justice Chiweshe said. “The appellant has not satisfactorily demonstrated that the Minister signed or otherwise approved the lease agreement as required under Section 37 of the Act.”
The ruling upheld the High Court’s finding that the agreement was void “ab initio” due to non-compliance with statutory requirements.
The court also rejected Suscaden’s argument that ZimParks’ acceptance of rental payments and treatment of the lease as valid for five years stopped the respondents from challenging its legality.
“No amount of prior conduct can breathe life into an agreement that was void from the outset,” the court ruled.
The case hinged on conflicting evidence over the authenticity of the ministerial signature. Suscaden’s key witness, a former ZimParks official, testified that he had received a signed lease through routine channels.
However, he admitted under cross-examination that he had not personally witnessed the Minister signing the document and could not challenge her denial. Discrepancies between multiple versions of the lease further undermined the appellant’s case.
The court noted that the absence of a date on the purported ministerial signature was particularly problematic, as the date would have determined the lease’s duration under the statutory 25-year cap.
In its appeal, Suscaden argued that the High Court erred by failing to shift the burden of proof to the respondents and by not drawing an adverse inference from the Minister’s decision not to testify or submit to cross-examination.
However, the Supreme Court dismissed these claims, holding that the appellant had failed to establish a “prima facie” case requiring rebuttal. “In the absence of clear evidence, there was no case for the Minister to answer,” Justice Chiweshe said.
The ruling also emphasised that the statutory requirement for ministerial concurrence is mandatory and cannot be overridden by estoppel. The court cited longstanding principles that agreements violating statutory provisions are void and unenforceable, regardless of the parties’ actions.
The decision brings an end to Suscaden’s appeal, leaving the company with no legal basis to continue its operations at Chewore Lodge.
The Supreme Court ordered Suscaden to vacate the property within 90 days, failing which the Sheriff will enforce the eviction. Costs were awarded against the appellant.
The lease agreement was signed in September 2017 and granted Suscaden a portion of the Chewore North Safari Area. The dispute arose in 2023 when ZimParks and the ministry challenged the lease’s validity, arguing that it lacked the required ministerial approval.
The High Court ruled in their favour, leading Suscaden to appeal to the Supreme Court.
The case also involved Big Five Safaris, which operates in a neighbouring portion of the Chewore North Safari Area and expressed concerns about the impact of Suscaden’s lease on its own interests.
Although Big Five was not directly involved in the lease dispute, its involvement highlighted the competitive dynamics within Zimbabwe’s lucrative safari industry.
The ruling underscores the importance of adhering to statutory requirements for agreements involving public resources such as safari areas.
Legal experts say the decision could have broader ramifications for other operators with similar leases, particularly in cases where procedural compliance is in question.
The loss of the appeal marks the end of Suscaden operations at Chewore Lodge and Campsite, a property that has served as a hub for high-end tourism in the Zambezi Valley.
The eviction order is expected to be executed in the coming months, with ZimParks likely to issue a new tender for the operation of Chewore Lodge, paving the way for another safari operator to take over the property.
Advocate Tererai Rector Mafukidze with Ms Nokuthula Moyo, represented Suscaden.
Advocate Keith Kachambwa acted for ZimParks and the Ministry, while Adv Tafadzwa Mapuranga appeared for Big Five Safaris.
