Defence Minister Muchinguri under fresh scrutiny over cantonment declaration

By Staff Reporter

Defence Minister Oppah Muchinguri has come under fresh scrutiny over declaration of Falcon Golf Club as a cantonment area.

This follows a fresh challenge submitted at the High Court yesterday where Falcon Golf Club presented full blown heads of arguments for review of Muchinguri’s declaration.

The application challenges the gross irregularity of the proceedings and that decision for declaration of cantonment on basis it was irrational, had procedural impropriety and lacked jurisdiction due to an ulterior motive and infringement of fundamental rights of Falcon Golf Club’s trustees and the generality of its membership.

As the applicant, Falcon Golf Club seeks to challenge the declaration on the grounds of gross irregularity in the proceedings or decision of turning the area into a cantonment zone.

On the of June 1971 the then City or Salisbury now the City of Harare entered into a
lease agreement with the applicant wherein the City of Harare leased to the applicant
several stands.

The lease agreement is currently extant as it is due to expire on 29th June 2070. In terms
of the lease agreement, the applicant undertook to inter alia, setting up a golf course and
ancillary Club buildings and other amenities for a Golf Club and pursuant to its
contractual obligations, the applicant did construct a golf course, and some club buildings
and related amenities, which improvements are believed to run into millions.

From the date on which the applicant took occupation of the said immovable property
until recent developments that took place from the 5th of September 2026 to 12th
September 2026, the applicant was in peaceful and undisturbed possession of the Golf
Club buildings and other physical amenities which it constructed on the stand in question.

Part of the fresh answering affidavit reads:

“ Applicant submits that the decision to declare the cantonment and the process on which the decision is premised were grossly irregular. Applicant alleges that the respondents cannot act in defiance of the law by disregarding the procedures that need to be invoked by a land owner to lawfully evict any third party that is enjoying peaceful and undisturbed possession of certain properties under a lease with the State. The applicant obviously holds an improvement lien against the respondents should it eventually turn out that the 1st Respondent decision to declare the
land is valid or if it found that the Respondents own the land in question.”

“The Applicant has been deprived of its possession, use and enjoyment of the land under
lease with the City of Harare. The Applicant stands to lose more financially if the status
quo is not restored because, as it has already made substantial payments towards the land
and also in terms of the material developments that it has since made on the property. All that points to prejudice on the Applicant’s part which is irreparable and as it stands there is even a reasonable apprehension of severe and or further harm.

“The Courts are there to regulate Respondent’s conduct in terms of the law and to make
sure that they do not take it into their own hands ensuring that due process is followed
before decisions that affect land rights of others are taken.”

The supremacy and binding nature of the Constitution of Zimbabwe Amendment (No
20) Act 2013 and effect of actions that violate its provisions is summed up in section 2
wherein it states:
2. Supremacy of Constitution
(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct
inconsistent with it is invalid to the extent of the inconsistency.
(2) The obligations imposed by this Constitution are binding on every person, natural or
juristic, including the State and all executive, legislative and judicial institutions and agencies
of government at every level, and must be fulfilled by them.
(My underlining and emphasis)
15 Regards property rights and their limitation the Constitution of Zimbabwe is very clear in
its provisions per section 71 which states:
71. Property rights
(1) In this section—
“pension benefit” means ……
“property” means property of any description and any right or interest in property.
(2) Subject to section 72 , every person has the right, in any part of Zimbabwe, to acquire, hold,
occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually
or in association with others.
(3) Subject to this section and to section 72 , no person may be compulsorily deprived of their
property except where the following conditions are satisfied—
(a) the deprivation is in terms of a law of general application
(b) the deprivation is necessary for any of the following reasons—
(i) in the interests of defence, public safety, public order, public morality, public health
or town and country planning; or
(ii) in order to develop or use that or any other property for a purpose beneficial to the
Community.

The law requires the acquiring authority— to give reasonable notice of the intention to acquire the property to everyone whose interest or right in the property would be affected by the acquisition;
to pay fair and adequate compensation for the acquisition before acquiring the
property or within a reasonable time after the acquisition; and if the acquisition is contested, to apply to a competent court before acquiring the property, or not later than thirty days after the acquisition, for an order confirming the acquisition.

Again, the law entitles any person whose property has been acquired to apply to a competent court
for the prompt return of the property if the court does not confirm the acquisition; and
(e) the law entitles any claimant for compensation to apply to a competent court for the
determination of— (i) the existence, nature and value of their interest in the property concerned;
(ii) the legality of the deprivation; and (iii) the amount of compensation to which they are entitled; and to apply to the court for an order directing the prompt payment of any compensation.

In defending its position, Falcon Golf Club cites procedural impropriety. It says Muchinguri failed to observe fundamental rules of natural justice or constitutional procedural requirements by denying affected land occupiers an opportunity to make representations or receive prior notice of the cantonment as required by law.

“1st Respondent did not notify the Applicant by giving prior notice in writing to the Applicant of its intention to declare a cantonment as required at law despite being aware of Applicant’s open occupation of fifty-five years. Mere placement in a government gazette which does not even identify the Applicant and Applicant’s piece of land properly was not enough or adequate at law. The notice in the gazette does not even refer to the Applicant, it simply states “ Falcon” .Section 89 of the Defence Act can not override section 2, 68 and 71 of the Constitution of Zimbabwe,” reads the application.

“The 1ST Respondent as the declaring authority acted in bad faith and was influenced by
irrelevant considerations, or used the power for an ulterior purpose unconnected with
military administration and national defence. It is clear that there declaration for a
cantonment is tainted with malice at the 1st Respondent did not to use the land on the
basis of any pressing military emergency, need or security threat. For clarity the land was
forcibly grabbed by the 1st Respondent under the guise of a cantonment for social
recreational purposes of the military.

“Taking land from citizens under the guise of cantonment simply for the military to play golf is not exactly what a genuine cantonment is designed for. There is not justification as to why the 1st Respondent specifically chose land in which Applicant have interest in.”

The applicant stands and submits the same grounds for review as stated in the founding
affidavit.

“The process proclaiming or declaring the cantonment was flawed as no prior notice
to object the decision was requested of the Applicant as of right. The Constitution is clear
that anything contrary to its provisions is illegal and invalid. Placing the 1st Respondent’s
decision in a government gazette or writing letter post the decision is not the notification
required of an administrator at law or per the Constitution. The notice must come prior the
Declaration,” reads the application.

“The 1st Respondent’s decision or proclamation is manifestly irrational or unreasonable,
procedurally improper and its based on ulterior motives and infringes Applicant rights
recognized in terms of the Constitution and other branches of law for reasons already
outlined in the Founding affidavit. The declaration ,the procedure and merits underlying it is
always reviewable as the Minister is just an administrator at law whose decision can be set
aside on reviewable grounds. The Defence Act as a statute is subservient to the Constitution
not superior to it.”

The purported limitation of Constitutional property rights by a law of general application
is a justiciable issue challengeble at law, especially if the limitation is without notice.

Falcon Golf Club says none the less the Cantonment via Statutory Instrument 28 of 2026 is premised on the wrong section, that is section 87 instead of 89 of the Defence Act.

“Its a publicized nullity which no obligations or legal effect can arise from,” says application.