Online Reporter
Fidelis Munyoro
Chief Court Reporter
THE High Court has ordered the Ministry of Local Government and Public Works and other public authorities to complete the transfer of compensation land in Mabelreign to Cabletron Enterprises (Private) Limited after striking out the minister’s opposing affidavit as fatally defective.
In a judgment last week, Justice Joel Mambara ruled that the affidavit filed on behalf of the minister could not be relied upon because it was not properly dated, leaving the application effectively unopposed.
“The point in limine is therefore upheld,” the judge said. “The first respondent’s opposing affidavit is fatally defective. It is struck out. There being no valid opposing affidavit, there is no opposition properly before the court.”
The dispute arose from Cabletron’s claim to compensation land measuring 30.773 hectares in Mabelreign Township.
According to court papers, the company paid for land in 2008 and later approached the ministry seeking finalisation of its compensation claim.
Investigations carried out by ministry officials resulted in recommendations that Cabletron be allocated 30.773 hectares.
The ministry subsequently issued an offer letter on September 29, 2021, offering the land as compensation.
The company accepted the offer, and various administrative processes followed, including identification of the land, preparation of site diagrams and processing of plan references HOA1374 to HOA1391.
Justice Mambara said documentary evidence showed that the ministry had gone beyond merely considering the claim.
“The memorandum recommended that the applicant be allocated 30.773 hectares and that the ministry identify and allocate the balance due to the applicant,” he noted.
The judge said the Ministry’s own records demonstrated that officials had accepted Cabletron’s entitlement and had already initiated the processes necessary to facilitate the transfer of the land.
However, in March 2024, the Ministry changed its position, arguing that demand for land in Mabelreign had increased and that public interest considerations made it inappropriate for a single entity to receive the full allocation. It proposed a smaller allocation and alternative land elsewhere.
Justice Mambara described the change of position as unjustified.
“That was a material volte-face,” he said. “The first respondent’s Ministry had investigated the claim, accepted the applicant’s entitlement, offered 30.773 hectares, accepted that land had been identified, caused maps to be used, and allowed plan reference numbers to be processed. It could not later disown those processes by bare assertion.”
A key aspect of the case was the validity of the Minister’s opposing affidavit. The court found that the affidavit’s jurat—the section confirming when the oath was administered—had been left blank. Although the document bore an official stamp, Justice Mambara held that the omission was fatal.
“The issue is not whether the document passed through a lawyer’s office,” he said. “The issue is whether the court can be satisfied, on the face of the document, that the oath was administered on a stated date in the presence of the commissioner and the deponent.”
The court relied on previous judgments holding that an affidavit without a properly completed date of attestation is invalid because the court cannot verify when or how the oath was administered.
“Courts may overlook errors which do not affect the sworn character of the evidence,” the judge ruled. “They may not create an oath by inference.”
Even after treating the matter as unopposed, Justice Mambara said the court was still required to determine whether Cabletron had established a legal basis for the relief sought. He concluded that it had.
“Where a ministry investigates a claim, makes a recommendation, approves it, communicates it, acts upon it, and causes further administrative steps to be taken, it creates at the very least a legitimate expectation that the process will be completed unless lawfully withdrawn after due process,” he said.
The judge found no evidence that the ministry had lawfully cancelled the allocation or withdrawn the offer after following fair administrative procedures.
The court ordered the City of Harare to process stand numbering for the affected properties and directed the Minister to issue survey instructions.
The Surveyor-General was ordered to facilitate title surveys and issue dispensation certificates, while the Registrar of Deeds was directed to transfer the land to Cabletron.
In a further enforcement measure, the court authorised the Sheriff of the High Court to sign the necessary documents if the responsible authorities failed to comply with the order.
Justice Mambara said Cabletron had suffered years of delay despite a clear paper trail showing that the allocation process was already underway.
“The applicant has had to litigate to compel public officers to perform steps which their own records show were already underway,” he observed.
The court granted the application in full and ordered the Minister of Local Government and Public Works to pay the costs of the proceedings.
Cabletron Enterprises (Private) Limited was represented by Jairos Matandire of John Mugogo Attorneys, while the Minister of Local Government and Public Works was represented by F. Chimunoko of the Civil Division of the Attorney-General’s Office.
