M.p Kruger (Private) Limited AND DR Munyaradzi Kereke Versus THE Minister OF Lands, Agriculture, Water AND Rural Resettlement N.O AND Second TO Sixty-Seven Respondents Named IN THE Schedule Attached TO THE Notice OF Application

### Preamble
1
HH 462-23
HC 6477/20
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M.P KRUGER (PRIVATE) LIMITED

and

DR MUNYARADZI KEREKE

versus

THE MINISTER OF LANDS, AGRICULTURE, WATER AND RURAL RESETTLEMENT N.O

and

SECOND TO SIXTY-SEVEN RESPONDENTS

NAMED IN THE SCHEDULE ATTACHED TO THE

NOTICE OF APPLICATION

HIGH COURT OF ZIMBABWE

KATIYO J

HARARE, 12 July 2022 & 27 July 2023

Opposed Application

T W Nyamakura with Professor L Madhuku, for the applicants

T S Musungwa, for the 1st respondent

A Dracos, for the 2nd respondent

KATIYO J: 	The applicants approached this court seeking a review in terms of ss 26-7 of the High Court Act as read with the common law, alternatively in accordance with s 4 of the Administrative Justice Act and in Accordance with Order 33, r 256 of the High Court Rules 1971.  The applicants further seek that the acquisition by the first respondent be declared invalid and be set-aside.

“ORDER SOUGHT

The decision by the first respondent to compulsorily acquire applicant's farm, namely a certain piece of land situate in the district of Mazowe, being subdivision A of Cranham Extension of Burley Bottom, commonly known as Cranham Extension Farm previously held under deed of transfer 3251/97 in accordance with the Government gazette dated 12 October 2020 is declared invalid, and is consequently reviewed and set aside.

Those of the respondents who opposed the application, the one paying for others to be absolved, are ordered to pay the applicants costs on an attorney and own client scale.”

BRIEF FACTS

On 12 October 2020 the land in issue was acquired by the state for agricultural settlement purposes (and the notice of acquisition was published in the Government Gazette).  The applicants are of the view that this decision was unreasonable as the land in question was entirely owned by a company whose entire beneficial ownership was reposed in a previously disadvantaged black man.  Moreso the applicants claims that the first respondent issued the second applicant with a Government Certificate of No Present Interest to pave way for the farm purchase by the second applicant. The applicants further avers that this decision by the first respondent is not in accordance with ss 72 and 85 of the Constitution of Zimbabwe.  The second applicant further claims that he is a Zimbabwean by births and decent and regards Zimbabwe as his permanent home and that when the Constitution refers to black Zimbabweans in the consideration of Land Reform and Land Redistribution it will be also talking about him.  The Second Applicant further avers that he has strong ties in this country and nowhere else in the world and he further explains how he has been appointed as a senior government official in several occasions (such as advisor to the governor of the Reserve Bank of Zimbabwe, elected member of Parliament for Bikita West  Constituency and many others to mention but a few)  and also about how he was put on the European sanctions list but remained devoted to his country because considered working for the government a patriotic duty and honor. He contends that he has a big family with two wives and 20 minor children and thus more reason for him to have a farm that is big to accommodate his family. The second to sixty-seventh respondents were joined in the proceedings simply because they are the beneficiaries to the land in question hence their interest. They do not in other words form part of the substantive arguments in this case but the outcome has an effect on them.  The first respondent is of the view that its conduct was within the confines of s 72 of the constitution and that there is nothing biased about its decision. The first respondent further claims that this application should be dismissed as it is frivolous.

The first respondent raised preliminary points to do with the proprietary of the second respondent locus standi where company is involved.  The jurisdiction of this court to deal with this matter was also raised as a preliminary point.

I do not see why the second applicant cannot be an interested party.  There are various authorities which dwell on those issues as to when locus standi applies when it cannot apply.  I will not detain myself on that issue as it is not capable of resolving the dispute before me.  As for the second point of jurisdiction it is the central issue in this case.  This issue will be discussed together with other issues as envisaged in this case.

ARGUMENTS

The applicants argue that the land reform programme in Zimbabwe, now codified in s 72 of the Constitution, is intended to ensure that past imbalances in the distribution of land are corrected and in favour of indigenous people. Put simply the land belonging to an indigenous person cannot be acquired in accordance with s 72 of the Constitution.  If this submission finds favour with the court, then we submit that the acquisition of the applicants’ farm is ultra vires the constitution and for that reason, null and void. The applicant put it that the only argument before the court is whether the Constitution allows the compulsory acquisition of indigenous land for settlement purposes. They argue that it does not.  They cite the famous words of Sir William Blackstone, in commentaries the on the Laws of England (The Legal Classics Library, 1765) Vol 1, bkl, ch 1,134, in which he says that:

“The third absolute right, inherent in every Englishman, is that of property, which consist in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land…. The laws of England are .. extremely watchful in ascertaining and protecting this right. Upon this principle the great charter has declared that no freeman shall be disseised, or divested, of his free hold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land.”

The applicant went further to argue that the current Constitution unlike the previous one does mot oust the jurisdiction of the court in Land questions.  Section 72(3); in part provides that:

“(b) no person may apply to court for the determination of any question relating to compensation for, except for compensation for improvements effected on the land before its acquisition; and

(c) the acquisition may not be challenged on the ground that it was discriminatory in contravention of section 56.”

Professor L Madhuku for the applicants argues that the position regarding the jurisdiction of the court on land issues under the old section 16B, was specifically ousted.  Despite that old position the courts did not shy away from interfering on the basis of the principle of legality and the principle of rationality.  In Mike Campbell (Pvt) Ltd v Minister of Lans & Anor 2008 (1) ZLR 17 (s) it said (at p 44 E-H):

“Section 16 B (3) of the Constitution has not however taken away, for the future, the right of access to the remedy of judicial review in a case where the expropriation is on the face of record, not in terms of s 16B (2)(a).  This is because the principle behind s 16B (2)(3) and 16B (2)(a) is that an acquisition must be on the authority law.  The question of whether an expropriation is in terms of s 16B (2) (a) of the constitution and therefore an acquisition within the meaning of that law is a jurisprudential question within the meaning of that law is a jurisdictional question to be determined by the exercise of the judicial function.  The duty of a court is to uphold the constitution and the law of the land.  If the purported acquisition is, on the face of the record, not in accordance with the terms of s 16 (B) (a) of the constitution, a court is under a duty to declare it null and void.  By no device can the legislature withdraw from the determination by a court of justice the question whether the state of facts, on the existence of which it provided that the acquisition of agricultural land must depend, existed in a particular case as required by the provisions of s (16) B(a) of the constitution.”

In Davies & Ors v Minister of Lands, Agriculture & Water Development 1996 (1) ZLR(S) at 693 G, Gubbay CJ (as he then was) remarked that:

“Moreover, the finality of the Minister’s division does not oust the control of the High Court over the administrative action by judicial review. see s 26 of the High Court Act. If the designee is able to establish one of the recognised grounds of illegality, irrationality or procedural impropriety, he will succeed in having the decision set aside or corrected.”

In Eagle Insurence Co v Grant 1989 (3) ZLR 1989 (3) ZLR 278 (SC) at 280 F, Korsah JA commenting on the operation of the maxim said:

“A rule which is variably resorted to in the interpretation of the statutes the expressio unius rule…is that the mention of one or more things of a particular class may be regarded as silently excluding all other members of the class.”

Argued that the courts, in the exercise of this unique jurisdiction, have to be alive to the doctrine of separation of powers.  This doctrine is implicit in the constitution in order to prevent the concentration of power in one branch of the government while at the same time preventing the branches of government from usurping power from another. This doctrine means that judiciary must exercise caution when reviewing a decision of the executive. While it must play an oversight role on the executive power it must not been seen to usurp its function.  Checks and balance ensures that all branches of government are independent, and no branch may act unilaterally e.g the President of the country is elected by Parliament and is sworn in by the Head of the Judiciary and the Head of the Judiciary is sworn in by the President.  This is according to South Africa Constitution also cited is an English case of R v Secretary of State for Work and Pensions (2003) All ER 577, para 73 (Laws LJ) explains it as follows:

“The powers of the courts and the powers of the other branches of government, if they do not overlap, they are not marked off the walls without windows, they are in constellation with each other, so that what government may settle as a policy may be qualified by the constraint of law, settled by the judges………….”

The High Court has jurisdiction over the exercise of all power, including constitutional power, a legality review is an important check in the exercise of constitutional power and ensures that powers are exercised in a manner that is not arbitrary and inconsistent with the constitution, argued the applicant. The case of Kaunda & Ors v President of the Republic of South Africa & Ors 2005(4) SA 235 Chakalson CJ held as follows, in the context of a request for diplomatic assistance lodged on behalf of a group of alleged mercenaries in Zimbabwe:

“If government refuses to consider a legitimate request,	or deals with it in bad faith or irrationally, a court could require government to deal with the matter properly.  Rationality and bad faith are illustrations of grounds on which a court may be persuaded to review a decision.  There may possibly be other grounds as well and these illustrations should not be understood as closed list.”

Submitted that in the United States, separation of powers is vindicated by the application of the “political question” doctrine.  The effect of this doctrine is that certain issues are deemed ipso facto outside the court’s jurisdiction.  Our courts, by contrast, count themselves competent to review decisions even in high profile cases involving matters of utmost importance.  The political doctrine simply has no place in Zimbabwean law.  In the United States judicial review of legislation is illegitimate, because it is counter-majoritarian.

According to the Professor Lovemore Madhuku the authorities cited clearly demonstrate that the court has subject matter jurisdiction over this issue. Any arguments contrary to are perhaps an issue of misreading the provisions of the law, or an unfortunate failure on the part of the first respondent to appreciate that all power is subject to the law and even the exercise of what the terms of constitutional power is also subject to the constitution. He further argues that s 72 (7) imposes a constitutional discretion that is overriding.   It reads as follows:

“In regards to the compulsory acquisition of agricultural land for the resettlement of agricultural land for settlement of people in accordance with a programme of land reform, the following factors must be regarded as of ultimate and overriding importance:

(a) 	under colonial domination the people of Zimbabwe were unjustifiably dispossessed of their land and other resources without compensation;

(b)	the people consequently took arms in order to regain their land and political sovereignty, and this ultimately resulted in the Independence of Zimbabwe in 1980;

the people of Zimbabwe must be enabled to re-assert their rights and regain ownership of their land and accordingly:

the former colonial power has an obligation to pay compensation for agricultural land compulsorily acquired for resettlement, through an adequate fund established for the purpose; and

if the colonial powers fails to pay compensation through such a fund, the government of Zimbabwe has no obligation to pay compensation for agricultural land compulsorily acquired for resettlement.”

He submits that a reading of the above provision shows that it is an engregious infraction on the part of the respondent to take the point that even land owned by indigenous Zimbabweans is not exempt from land reform.  The plain language of the provision makes the following points:

“(a)        the applicants are not entitled to compensation for the loss of the land itself;

(b)	the applicants may only be compensated for improvements made on the land, prior to its acquisition but they may not sue for this in any court in Zimbabwe;

(c) 	the whole purpose of land reform is to address the colonial imbalances imposed by colonization in which the indigenous people- “…were unjustifiably dispossessed of their land and other resources without compensation”.

the people of Zimbabwe, through s 72 “must be enabled to re-assert their rights and regain ownership of their land”.

the former colonial masters have to settle the compensation otherwise the       government of Zimbabwe has no obligation to pay for compensation for agricultural land compulsorily acquired for resettlement.”

In other words, the applicants asserts that once land is identified as indigenously owned then the position is that it is not subject to acquisition in terms of the provisions of the new Constitution. He further contends that this court has jurisdiction to deal with this matter. Further argued that the applicants are entitled to the protection of the law as given in s 56 of the new Constitution.  The court is urged to give the applicant equal protection of the law as given under that provision.   Section 85 of the same Constitution which is the enforcement provision of human fundamental rights against any infringement of those rights, mandates the court to observe and protect individuals upon asserting them in an open democratic society as ours. The court has been urged to critically examine and interpret s 46 of the constitution which deals with the interpretation of the constitution itself.

On the other hand, first respondent opposed the application arguing that the court has no jurisdiction and State is given a right under [Chapter 4] of the constitution that pertains to rights and freedoms enshrined under that Chapter and s 72, which relates to Agricultural land which may be compulsorily acquired by the State. The State is given a right in relation to Agricultural land, despite the land belonging to individuals and with full property rights.  Section 72(2) reads as follows where agricultural land or any right or interest in such land, is required for a public purpose, including….

settlement for agricultural or other purposes

Land reorganization, forestry, environmental conservation or the utilization of  wildlife or other natural resources; or

the relocation of persons dispossessed as a result of the utilization of land for purpose referred to (a), or (b) the land right or interest may be compulsorily acquired by the State by notice published in the gazette identifying the land, right or interest, whereupon the land, right or interest vests in the State with full tittle with effect from the date of publication.

Going by the above it therefore follows that if the land in question is classified as an agricultural land, then it qualifies to be acquired in terms of s 72(2) of the Constitution.  According to the Government Gazette of 12 October 2020 Annexure D of the founding affidavit, the land in issue was acquired by the State for agricultural settlement purpose, which is in tandem with s 72(2)(a).   It has been argued that s 72(3) of the Constitution states that the acquisition may not be challenged on the ground that it was discriminatory in contravention of s 56 of the same Constitution.  The section does not talk of race.  It has been argued that proper procedure was followed.  Further submitted that where legislation provides for a procedure, the common law position is trumped by the legislation, in this case the Constitution.  Amendment number 17 of 2005 of the constitution changed the procedure for acquisition of land for agricultural purposes. The position still subsists in the new Constitution.  The constitution provides that as soon as the notice is published in the Government gazette, ownership and interests immediately vests with the State.  There is no room for representations before the land is acquired.  Argued further that the certificate of No Present Interest is what it is not futuristic but presents the status quo.  It is also stated that the government will never wish to compulsorily acquire land in question.  The respondents concedes that there was an error when the certificate was issued after the farm already resettled A1 farmers. The settlement took place as far back as 2001.The respondent also denies that the applicant ever occupied this farm.  On the issue of race raised by the applicant the respondent submitted that doing so would fall foul of s 56(3) of the Constitution.  The fact that the farm belonged to an indigenous person does not preclude the Minister from acquiring it.

ANALYSIS

With these arguments both parties closed their pleadings.  Let me point out that point in limine cannot be disposed of without touching into merits of the matter.  From the applicants’ arguments, is that because he is of indigenous origin it then does not make sense that land belonging to an indigenous person would be taken and be given to another indigenous person.  He further submits that he relentlessly committed most of his life working for the betterment of the people of this country (Zimbabwe).  This culminated him to the position advisor of the then Governor of the Reserve Bank of Zimbabwe.  In short, he says with all these contributions he deserves a better treatment from the authorities.  This issue raised by the applicant I do not think it helps to resolve the legal issues before the court.  If at all, is an attempt to attract sympathy more than anything else.  Section 72(2) of the Constitution states as follows:

“Where agricultural land, or any right or interest in such a land, is required for public purpose, including:

settlement for agriculture or other purposes;

land re-organization, forestry, environmental conservation or the utilization of wild life or other natural resources; or

the relocation of persons dispossessed as a result of utilization of land for the purpose referred to in paragraph (a) or (b) the land, right or interests may be compulsorily acquired by the State by notice published in the Government Gazette identifying the land, right or interest, whereupon the land, right or interest, whereupon the land, right or interest vests in the State with full tittle with effect from the date of publication of the notice.”

The wording of the Constitution above is clear as to what is considered when land is to be acquired.  What is clear is that land which does not fall within the above definition does not qualify for that purpose as put above.  My understanding of the applicant when he connotes the word indigenous is in the context of him being black Zimbabwean hence his land does not qualify for compulsory acquisition. In Naval Phase Farming (Pvt) Limited & Ors v Minister of Lands and Rural Resettlement & Ors HH 765/15? Chigumba J made the following findings which were also adopted by Mutevedzi J in the case of Frances Mary Bowers & Anor N.O. v Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement & Ors HH 72/23:

“The applicants’ papers are permeated with an unfortunate equation of the perceived meaning of ‘indigenous Zimbabweans’, with Zimbabweans of black African descent. Section 16 A of the former Constitution speaks of the people of Zimbabwe and of a former colonial power. Section 289 of the current Constitution talks about addressing the need to redress the unjust and unfair pattern of land ownership which was brought about by colonialism and to bring about land reform and equitable access by all Zimbabweans to the country’s natural resources. Section 289 (b) entrenches in the Constitution the right of every Zimbabwean to acquire, use and to hold agricultural land regardless of his or her race or color. Section 289 (c) entrenches a policy that the allocation and distribution of agricultural land be fair, and equitable, regard being had to gender balance and diverse community interests. (The bolding is mine for emphasis).

With all due respect to the submissions put forward by the 3rd applicant, I am unable to agree that either the former or the current Constitutions entrench a policy that agricultural land must not be taken away from a black African Zimbabwean and given to another black African Zimbabwean. I am unable to accede to the contention that land that is already owned or occupied by ‘indigenous (read black) Zimbabweans cannot be said to be land required for resettlement purposes within the meaning of s 16 B of the former Constitution. The question of whether compulsory acquisition of agricultural land from one particular race in favor of another violated s 23 of the former Constitution, was considered and settled in Campbell (supra), at p 16-17:

“It must be stated at this stage that the law as embodied in the provisions of s 16(B)(2)(a)(i) of the Constitution and the acquisitions of the pieces of agricultural land which resulted from its operation had no reference at all to the race or color of the owners of the pieces of land acquired.  There was no question of violation of s 23 of the Constitution to be considered in this case.  No more shall be said on the alleged violation of s 23 of the Constitution.”

From the above, it is quite clear that the word indigenous is quite often misinterpreted to refer to Black Zimbabweans.  This is not the position as all Government intention is to correct the imbalances created by the former colonizers.  It would have not made sense in a scenario where a black Zimbabwean would own a whole-tracks of land or multiple farms at the expense of others in the name of indigenous Zimbabwean.  It would obviously violate s 56 of the constitution on the grounds racial of discrimination.  To vest this court with jurisdiction it has been argued that where the question of legality arises this court is enjoined to consider the matter along that line.   But as correctly put this issue would arise where the procedure as expected was not followed by the acquiring authority.  As alluded to above this court does not see anywhere the authority misfired.  The law does not require the Minister to give notice for representations other than a notification through government gazette for acquisition.   The mere fact that the second applicant had bought 100% shares from the first applicant does not take away the fact that the land was acquired in terms of the Supreme law of the country.  What the first respondent was acquiring was not the first applicant but the land owned by the second applicant through the first applicant.

Section 295 of the Constitution is in agreement with the interpretation that government is at liberty to expropriate land notwithstanding that it is indigenously owned.  It provides as follows:

“295 Compensation for acquisition of previously-acquired agricultural land

Any indigenous Zimbabwean whose land was acquired by the state before the effective date is entitled to compensation from the state for the land and any improvements that were on the land when it was acquired.

Any person whose agricultural land was acquired by the state before the effective date and whose property rights were guaranteed or protected by an agreement concluded by the Government of Zimbabwe and with the Government of another country, is entitled to compensation from the state for the land and any improvements in accordance that agreement

Any person, other than a person referred to in subsection (1) or (2), whose agricultural land was acquired by the state before the effective date is entitled to compensation from the improvements that were made from the land when it was acquired.

Compensation payable under subsections (1), (2) and (3) must be assessed and paid in terms of an Act of Parliament.”

The constitution makes it very clear that even the indigenous black Zimbabweans are not spared from the land reform programme but that the compensation will also include land.  Also, those which fall under the Bilateral, Investment and Protection Agreements Protocol are also entitled for compensation for land over and above the improvements made.  Turning to the applicants the argument does not follow.  In any case if the law were to discriminate on that ground then the whole purpose of land reform programme would be defeated.  It would be just a question of non-black indigenous people simply passing ownership to the Black Indigenous people then claim protection under the constitution.  In this case it is not like the second applicant owned the land previously but that he acquired it through the first applicant.  The two applicants had put in a real persuasive argument as a whole.  If at all in this it would have been a misnomer for the respondent to have dispossessed the 2nd to 67th respondents without first revoking offer letters as they were legally settled at the farm.  Whilst the argument by the applicants is quite sound on the interpretation of the law the question on the issue remains political.  But in cases where procedures were not followed as alluded to above, the courts cannot fold their hands and fail to protect the citizens.  In this case I have not found anything amiss as far the actions of the first respondent are concerned.   If at all the respondent has argued his case very well.

In the absence of no finding of any procedural irregularity in the manner the respondent acted, I will agree with my brother judge, Mutevedzi J in the matter of Frances Mary Bowers & Anor N.O. v Min of Lands, Agriculture, Fisheries, Water and Rural Settlement & Ors HH 72/23 wherein he remarked as follows:

“The question whether agricultural land owned by indigenous Zimbabwean can be expropriated under the land reform programme is a political rather than legal………..”

The issue of jurisdiction raised by the first respondent is therefore answered in the discussion.

Having discussed the issues as above, the court concluded that we cannot interfere with the executive constitutional function where it was exercised in terms of the law with no procedural irregularity found.   I therefore withhold my jurisdiction on the determination of this matter.

CONCLUSION

Therefore, it is ordered that the point in limine on jurisdiction be and is hereby upheld.

Each Party to bear its own costs.

LovemoreMadhuku Lawyers, applicants’ legal practitioners

Civil Division of the Attorney-General’s Office, first respondent’s legal practitioners

Honey and Blanckenberg, sixty-fifth respondents’ legal practitioners