Farmers get temporary reprieve

Commercial farmers got a temporary reprieve when two judges ruled against the acquisitions of two farms because the government had not followed the right procedure.

In one case, Judge Charles Hungwe ruled that the acquisition of Tengwe Estates was null and void because the government had failed to inform the National Merchant bank which was the holder of owner Andrew Kockett’s mortgage as required by the act.

The government had only served the notice on Kockett.

In another case Judge Benjamin Paradza ruled that the acquisition of Nyalungwe Farm, owned by George Quinell, was invalid because the notice had been issued by Lands Minister Joseph Made when he had ceased to be minister.

Full cable:

Viewing cable 02HARARE1826, POSSIBLE TEMPORARY REPRIEVE FOR SOME COMMERCIAL

If you are new to these pages, please read an introduction on the structure of a cable as well as how to discuss them with others. See also the FAQs

This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L HARARE 001826

SIPDIS

LONDON FOR CGURNEY

PARIS FOR CNEARY

NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER

NAIROBI FOR PFLAUMER

E.O. 12958: DECL: 08/08/2012

TAGS: PGOV EAGR ECON ZI

SUBJECT: POSSIBLE TEMPORARY REPRIEVE FOR SOME COMMERCIAL

FARMERS

REF: A) HARARE 1822 B) HARARE 1745

Classified By: political section chief Matt Harrington. Reasons: 1.5 (

B) and (D).

¶1. (C) The day before the August 8 deadline for designated

farmers to leave their properties (reftel), a High Court

judge issued a ruling that could give a temporary reprieve to

affected farmers. Judge Charles Hungwe ruled that the

government’s acquisition of Tengwe Estates farm was “null and

void” because proper procedures had not been followed.

Specifically, the GOZ had failed to inform the National

Merchant Bank, holder of owner Andrew Kockett’s mortgage, of

the acquisition, as required by the Land Acquisition Act.

Kockett’s attorney, Ray Barreto, told us that only his client

had been served an acquisition notice. Barreto surmised that

the Government may not make its usual waves over this

decision, as his client is currently growing winter wheat, a

commodity soon expected to be in very short supply.

¶2. (C) Comment: An ex-combatant in Zimbabwe’s liberation war

and recent appointee to the High Court, Hungwe disapproves of

the use to which war veterans have been put and is considered

one of the more independent thinkers on the bench. President

Mugabe’s recent comments on the judiciary (ref B) do not

inspire confidence that Hungwe’s decision will be honored.

That said, the GOZ has tried to appear to act consistent with

its own laws, and the failure to notify financial

institutions holding the mortgages of designated commercial

farms is a clear violation of the Land Acquisition Act.

Hungwe’s ruling could encourage other farmers to file suit,

but it is unclear how many of them are in a similar position.

The GOZ has three principal response options. It can ignore

the ruling, but doing so removes the thin veneer of legality

which currently envelops the fast track effort. It can

appeal the ruling to the Supreme Court, now firmly in ZANU-PF

hands, but Hungwe appears to be on very solid legal ground.

Third, it can comply with Hungwe’s ruling and begin the

acquisition process anew, which merely will delay the

government’s acquisition of designated land. Hungwe’s

decision, therefore, has at best bought designated farmers a

bit of extra time.

¶3. (U) Meanwhile, another case working its way through the

courts could have an impact on the GOZ’s resettlement

program. On July 4, High Court Judge Benjamin Paradza issued

a provisional order that the acquisition of Nyalugwe Farm,

owned by George Quinnell, was invalid. According to Paradza,

the holder of the mortgage had not been notified and

Agriculture Minister Joseph Made, who signed the acquisition

notice, ceased to be a government minister in legal terms on

April 1. The basis of his interpretation regarding Made is

section 31 (e) of the constitution, which states that the

“office of Vice-President, Minister, or Deputy Minister shall

become vacant upon the assumption of office of a new

President.” The opposition MDC and independent press have

used that provision to maintain that President Mugabe’s

current cabinet has no legal standing, since all of its

members held their positions prior to the March presidential

election and have not since been reappointed. However,

Quinnell’s lawyer, Ray Passaportis, told us that the issue of

whether Mugabe meets the definition of “new president” is

clearly open to interpretation. Paradza has solicited and

recently received a written GOZ response to his provisional

order and has given the plaintiff a chance to submit a

rebuttal.

¶4. (C) Comment: A decision by Paradza to uphold his earlier

ruling would likely have little practical effect, as

Government would certainly ignore the part of his judgment

stating that the current Cabinet has no legal standing. For

the reasons explained in para 2, however, the element

relating to failure to notify mortgage holders would be more

difficult for the GOZ to dismiss out of hand.

WHITEHEAD

(28 VIEWS)