By Victor Fanuel
HARARE — The military’s occupation of Falcon Golf Club has triggered a legal battle over the limits of state power, property rights and the use of defence legislation to take control of civilian premises.
Defence minister Oppah Muchinguri-Kashiri insists that the declaration of Falcon’s Hatfield property as a cantonment was lawful.
She argues that the designation superseded the club’s leasehold rights and authorised the Air Force to enforce the military’s control.
However, a closer examination of the Gazette notices and the minister’s opposing affidavit reveals a statutory discrepancy that the court may have to consider.
The original cantonment declaration, Statutory Instrument 210 of 2025, was published on 5 December 2025 under section 89 of the Defence Act (Chapter 11:02).
A subsequent notice, SI 28 of 2026, published on 13 February 2026, amended the Falcon cantonment notice and cited section 87 as its enabling provision.
That distinction matters because the minister’s affidavit in HCH 5002/26 repeatedly relies on section 89 to defend the decision under challenge.
Although the Gazette cites section 87 as the authority for the February 2026 notice, the discrepancy does not, in itself, establish that the amendment is invalid.
It does, however, require the respondents to explain the statutory basis for the decision Falcon is asking the High Court to review.
In her opposing affidavit, Muchinguri-Kashiri states: “I acted strictly within the confines of the law. The declaration of the FALCON GOLD CLUB cantonment area was executed pursuant to explicit provisions of Section 89 of the DEFENCE ACT (Chapter 11:02).”
She describes the process as “entirely lawful, regular, and procedurally compliant”, insisting that all statutory steps were followed in the interests of national security and defence administration.
Yet the central issue is not simply whether the Defence Act empowers the minister to declare a cantonment.
It is whether the power to designate an area automatically extinguishes an existing leasehold interest and permits the military to take physical possession without a separate acquisition process or court determination.
Muchinguri-Kashiri argues that SI 28 of 2026 is constitutionally valid because the enabling provisions of section 89 remain in force.
In paragraph 10.6, she says: “Statutory Instrument 28 of 2026 completely derives its authority from the enabling statute and is constitutionally valid.”
“The provisions of Section 89 of the DEFENCE ACT remain fully valid and have never been set aside or declared unconstitutional by any Court of law,” she adds.
That argument does not, by itself, settle the legality of the particular decision under challenge.
The continued validity of an enabling law is different from whether a minister exercised the powers it confers lawfully and in accordance with the Constitution.
Muchinguri-Kashiri also argues that the statutory instrument remains in force because no court has set it aside.
In paragraph 10.8, she says it “constitutes a valid piece of legislation which carries full force and effect of law; it has neither been set aside nor struck down by any Court of law.”
However, Falcon’s review application is asking the court to examine the legality of the decision and the process that led to the declaration.
The fact that the instrument has not yet been struck down does not, on its own, answer the grounds on which it is being challenged.
Muchinguri-Kashiri goes further, arguing that the Air Force is enforcing the land under a valid statutory instrument and that this “destroys any claims of unlawfulness.”
That argument appears to conflate the legality of the cantonment declaration with the separate question of whether the military lawfully took physical possession of the premises.
The distinction is reflected in the separate proceedings before the High Court.
In HCH 5002/26, filed on 5 October 2026, Falcon is challenging the minister’s decision to declare the property a cantonment.
In HCH 5010/26, the club is pursuing spoliatory relief against the Air Force, alleging that it was physically dispossessed.
An earlier urgent spoliation application, HCH 4662/26, was withdrawn in September before the court determined its merits.
NewsHour’s earlier report of 7 October identified HCH 5002/26 as a fresh judicial review application challenging the underlying cantonment decision.
The withdrawal of HCH 4662/26 did not, by itself, amount to a judicial determination that the military lawfully took possession of Falcon’s premises.
State media reported on 2 October that the Air Force had said Falcon conceded that its earlier application lacked merit and was ill-conceived.
That account was attributed to a statement by the military. It should not be confused with a court judgment determining the legality of the takeover or the merits of Falcon’s subsequent review application.
Falcon trustee Alex Elias Mashamhanda rejects the suggestion that the earlier withdrawal prevents the club from pursuing its current claim.
“Urgent matter HCH 4662/26 was a matter simply withdrawn by the Applicant and not dealt with on the merits.
“There is nothing binding on the Applicant to which Estoppel applies,” he says in his answering affidavit.
Falcon argues that even if the cantonment declaration remains in force, the military must still demonstrate the legal basis on which it took physical possession.
The club maintains that the declaration did not give the Air Force an automatic licence to dispossess it without following the law.
Muchinguri-Kashiri also rejects Falcon’s argument that private leaseholders or occupiers should have received individual written notice before the property was declared a cantonment.
In paragraph 11.1, she says: “The Applicant’s contention that it was entitled to prior individually written notices before the gazette of the cantonment is legally incorrect.”
She adds: “There is no requirement under Section 89 of the DEFENCE ACT for the Minister of Defence to serve individual notices on private leaseholders or occupiers before delaying a military cantonment.”
However, the absence of an express notice requirement in the provision relied on by the minister does not automatically resolve the constitutional question.
Section 68 of the Constitution guarantees administrative justice and requires administrative conduct to be lawful, reasonable, proportionate and procedurally fair.
Whether Falcon should have been notified or given an opportunity to make representations is therefore an issue for the court to consider, particularly given the club’s claim that it had occupied the property for decades under a lease running until 2070.
The dispute also turns on the protection of property rights.
Section 71 of the Constitution protects the right to acquire, hold, occupy, use and lease property. Its safeguards are not limited to registered ownership of land.
Muchinguri-Kashiri repeatedly stresses that Falcon does not own the underlying property.
She says the club is merely a tenant under a lease agreement with the City of Harare.
In paragraph 35, she states: “The Applicant’s claim to ‘peaceful and undisturbed possession’ is legally flawed and unsustainable.
The Applicant admits in its Founding Affidavit that even before the declaration of cantonment, it was not the owner of the land in question, but merely a tenant holding a leasehold agreement derived from the CITY OF HARARE.”
She describes Falcon’s rights as “strictly conditioned, precarious and subordinate to the superior title of the ownership and the overriding sovereign rights of the state.”
Yet a leasehold interest is itself a recognised property interest.
Falcon does not have to prove ownership of the land to argue that its rights as a lessee, or its possession of the premises, were unlawfully interfered with.
Section 71(3) of the Constitution sets out safeguards where property is compulsorily acquired.
These include reasonable notice, compensation and access to a competent court where an acquisition is contested.
Whether the cantonment declaration and subsequent occupation amount to a deprivation of Falcon’s protected interest is a matter for judicial determination.
Another provision of the Defence Act adds to the legal complexity.
Section 89 provides for the declaration of cantonments by statutory instrument, while section 96 separately provides for the acquisition of land or an interest in land for defence purposes, subject to the prescribed legal process.
This distinction is critical because the cantonment declaration could effectively be used to acquire or extinguish Falcon’s private leasehold interest without complying with the legal safeguards governing such deprivation.
Muchinguri-Kashiri argues that Falcon’s contractual and possessory rights were automatically displaced once the cantonment was declared.
In paragraph 37, she says: “Consequently, any contractual or possessory rights, the Applicant enjoyed under its lease agreement with the Local Authority were automatically attenuated and superseded by operation of law.”
She argues that if Falcon suffered disruption to its enjoyment of the lease, its remedy lies in a commercial claim against the City of Harare rather than a spoliation application against the military.
In paragraph 38, she maintains that any claim arising from disruption to the lease should be pursued against the local authority as the lessor.
“It cannot use mandament van spolie, a remedy meant to punish unlawful self help to override a valid, gazetted public security decree which binds both landlord and tenant,” she adds.
That argument directs Falcon towards its landlord, despite the club’s allegation that the Air Force physically took control of the premises.
It also overlooks the distinction between ownership and possession.
The legal remedy known as mandament van spolie is designed to prevent parties from taking the law into their own hands.
It seeks to restore possession after unlawful dispossession. It does not finally determine who owns the property.
Mashamhanda invokes that principle in his answering affidavit, arguing: “Even in the worst of cases spoliatory relief can even protect a thief. The idea being to avoid citizens resorting to self help.”
He further states: “Declaring a cantonment and evicting someone or dispossessing someone are two distinct acts.”
Muchinguri-Kashiri disputes the availability of restoration.
She argues that returning the premises to their previous recreational state is legally barred and practically impossible.
In paragraph 34, she maintains that restoration is “legally barred and practically impossible” and that the spoliation remedy is therefore unavailable.
That argument appears to conflate restoration of possession with the future use of the property.
Spoliatory relief does not necessarily determine whether the land can continue operating as a golf club.
The court must consider whether Falcon was in possession and whether that possession was unlawfully disturbed.
Muchinguri-Kashiri’s affidavit also warns of criminal consequences for civilians entering or remaining in a declared cantonment without authorisation.
In paragraph 10.3, she says: “As shall be addressed hereunder, Part IX of the DEFENCE ACT specifically governs protected cantonment areas; any civilian who enters, remains, or loiters within a declared cantonment area without the express written authorization of the military authority commits a strict criminal offence which may attract imprisonment.”
Section 90 of the Defence Act prohibits entry into a cantonment but provides for exceptions.
These include certain people employed by the state, people permanently residing in the area when the declaration is published and those authorised under the Act.
The statutory position is therefore more specific than a blanket assertion that every civilian who enters or remains in a cantonment automatically commits an offence.
In HCH 5002/26, Commander of the Defence Forces Emmanuel Matatu and Air Force Commander Jacob John Nzvede filed supporting affidavits adopting Muchinguri-Kashiri’s opposing affidavit.
Both state that they have read it and “do hereby state that I abide by the founding opposing affidavit signed by the 1st Respondent in this matter and I pray that it be read as if specifically deposed by myself.”
Their affidavits align the senior military command with the minister’s defence.
However, they do not independently provide a detailed account of the Air Force’s conduct at the premises or explain the circumstances surrounding the alleged takeover.
The ownership argument is also contested in the possession proceedings.
Mashamhanda refers to public assertions by the military that the Remaining Extent of Lot 227 has always belonged to the Air Force of Zimbabwe.
He argues that this position sits uneasily with the military’s reliance on the cantonment declaration to justify its occupation.
Mashamhanda disputes the compatibility of the military’s ownership claim with its reliance on the cantonment declaration, arguing that an owner would not need such a designation to exercise ownership rights.
“One can only be a lessee of an OWNER,” he adds.
Mashamhanda concludes: “The Respondent cannot claim ownership and at the same time seek to justify declaring a cantonment. The Respondents must pick their poison.”
Although ownership and cantonment designation are not necessarily mutually exclusive, Falcon is challenging the military to explain how its ownership claim relates to the club’s existing leasehold and possession.
The answering affidavit also disputes the Air Force’s account of an alleged meeting between military personnel and club members.
“Applicant’s members never met with any military employees,” Mashamhanda says.
He argues that the Air Force should have provided sworn statements from the alleged participants.
“The least 2nd Respondent could have done is to supply the Court with his subordinate’s statements under oath,” he says.
Mashamhanda further accuses the second respondent of “concocting non existing events.”
Those are Falcon’s allegations and remain to be tested against the evidence before the court.
Mashamhanda’s affidavit sets out a chronology of the alleged takeover.
He says Group Captain Kereke contacted him on 6 July 2026 about occupying the club manager’s house but did not provide the written explanation he requested.
On 5 September 2026, he alleges, Group Captains Kereke and Dube entered the premises, removed doors and ceilings, and began painting buildings in Air Force colours.
Falcon further alleges that its members were denied access on 12 September during the Zimbabwe Inter-Service Golf Team Championship.
At the event, the Air Force Commander allegedly delivered the keynote address and officially opened the facility as “Airforce Falcon Golf Club.”
Mashamhanda describes the events as “a brazen hostile takeover of the premises that belong to the applicant.”
The competing accounts will ultimately be tested by the High Court.
Beyond the future of a golf club, the dispute concerns the limits of executive power, the protection of leasehold interests and the military’s authority to take possession of civilian property.
National security responsibilities do not, by themselves, settle whether the powers exercised in Falcon’s case were lawful or constitutionally compliant.
The High Court must determine whether Muchinguri-Kashiri lawfully declared the premises a cantonment and whether the Air Force had a separate legal basis for taking physical possession.
A decision on the judicial review application will not automatically resolve the distinct spoliation proceedings.
