High Court Orders Full Trial in Zvimba Farm Downsi...

High Court Orders Full Trial in Zvimba Farm Downsizing Row

By Nyashadzashe Ndoro - Chief Reporter

The High Court of Zimbabwe has ordered that a dispute between Chipo Dyanda and the Zvimba Rural District Council, concerning the alleged unlawful downsising of a farm, proceed to a full trial.

The ruling, delivered by Justice Philda Muzofa, comes after the Council raised a special plea of prescription, arguing the claim was time-barred.

Chipo Dyanda initiated legal proceedings seeking a declarator that the Council's actions to reduce her leasehold on Plot 190 Rainham Farm, Zvimba, by 12 hectares and a further attempted reduction of 10 hectares were unlawful and in contravention of Section 3 of the Administrative Justice Act [Chapter 10:28]. She also sought consequential relief and costs.

According to Dyanda's declaration, she held a lease agreement with the Council for 49.3 hectares of the farm. She had applied for and received approval for a change of use from agricultural to educational, with the intention of constructing a school. However, she alleges the Council, in breach of the lease, reduced the farm's size to 37.3 hectares and then further to 27.3 hectares without adhering to the Administrative Justice Act.

The Zvimba Rural District Council, in its plea in bar, contended that Dyanda's claim had prescribed, arguing that the original lease agreement terminated by effluxion of time in 2018 and was never renewed. They further asserted that the downsizing occurred in 2014, and therefore, the cause of action arose then, requiring the claim to be instituted within three years.

In her replication, Dyanda disputed the claim of prescription. She argued that despite the lease's termination in 2018, it was tacitly relocated, with her continued occupation and the Council's conduct indicating acceptance of this relocation. Regarding the 2014 downsizing, Dyanda averred that the Council had conceded its unlawful nature and accepted an obligation to compensate her.

Justice Muzofa, during the hearing, highlighted the precedent set in Brooker v Mudhanda & Anor and Pierce Mudhanda & Anor SC 5/18, which establishes that evidence must be heard to determine prescription, as it often derives from facts not immediately apparent from pleadings.

Despite this, the Council's legal representative, Mr. Phiri, initially argued that no evidentiary issues required resolution. However, Justice Muzofa found contradictions in the Council's submissions, noting that the plea itself presented two different dates for the cause of action (2014 and 2018) and that Dyanda's replication introduced the issue of tacit relocation and the Council's alleged concessions, all of which necessitate the leading of evidence.

The court referenced Supa Plant Investments Pvt Ltd v Chidavaenzi 2009 (2) ZLR 132 (H), which defines a material dispute of fact as one leaving the court "with no ready answer...in the absence of further evidence." Justice Muzofa concluded that Dyanda's replication indeed raised material disputes of fact concerning the tacit relocation of the lease and the alleged concessions made by the Council after the 2014 downsizing.

Consequently, the High Court ruled that the matter cannot be decided on affidavits alone and must proceed as a trial. The defendant, Zvimba Rural District Council, has been ordered to plead over in the main matter, and both the main case and the special plea of prescription will be addressed simultaneously during the trial.

Costs were ordered to be in the cause.