Clovet Consultancy (Private) Limited & Anor v Minister of Lands and Rural Resettlement & Anor

### Preamble
Judgment No. SC 60/20
1
Civil Appeal No. SC 350/17
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DISTRIBUTABLE:       (51)

CLOVET     CONSULTANCY      (PRIVATE)     LIMITED     (2)     CASSIAN      BEN     MACHERERE     (3)      MABEL     MACHERERE

v

MINISTER     OF     LANDS     AND     RURAL     RESETTLEMENT     (2)     OTTOMAN     MAGAYA

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MAKARAU JA & GUVAVA JA

HARARE, MAY 23, 2019 & MAY 18, 2020

O Mushuma, for appellants

K Chimiti, for first respondent

L Uriri, for second respondent

MAKARAU JA:		 By an order dated 8 March 2018, and with the consent of the parties, this Court referred to the Constitutional Court in terms of s 175(4) of the Constitution, what it perceived to be a constitutional question arising in the appeal.  By its order dated 27 June 2018, the Constitutional Court in turn struck the referral off its roll, with an appropriate order of costs.  It was the view of the Constitutional Court that the appeal did not raise any constitutional matter, and in particular, that an interpretation of s 72 of the Constitution, which had been part of the question referred to the Constitutional Court, was not necessary for the determination of the appeal.

This is the determination of the appeal, which is against the decision of the High Court handed down on 31 May 2017, dismissing the appellants’ application for review against the decision of the first respondent to acquire their farm.

Background facts

The facts giving rise to this appeal are amply set out in the judgment a quo.  I summarise below the facts pertinent for this judgment.

The second and third appellants are husband and wife.  They are co- directors of the first appellant. In 1998, together with their two sons, they acquired a piece of land called Subdivision C of Elvington.  It is a farm.  The farm was registered in the name of the first appellant. In 2013, the first respondent offered the farm to the second respondent and others for their resettlement.  This he did believing that the farm had been acquired by the State for resettlement purposes.  When it was brought to his attention that the farm had not been lawfully acquired, the first respondent published the requisite notice acquiring the farm on 30 January 2015.  The land was thereafter re- offered to the second respondent and six or seven others whose exact number and identities are not on record.

The application a quo

Aggrieved by the acquisition of the farm and its subsequent allocation to the second respondent and others, the appellants filed an application for review in the court a quo raising five grounds of review.  In essence, the appellants alleged in the grounds, that the first respondent and the officers in his ministry acted illegally and unlawfully at the instigation of the second respondent to dispossess the appellants of the farm.  They also alleged that the first respondent and the officials in his ministry openly sided with the second respondent who was relentless in his efforts to dispossess the appellants of their farm thereby showing favoritism to the second respondent. Finally, they alleged that the acquisition of the farm was tainted by underhand dealings, corruption and bribery.

The application was opposed.

The first respondent averred in the main that he had lawfully and procedurally acquired the farm for resettlement purposes.  He further averred that the farm had been earmarked for resettlement purposes after it was established that it was under-utilised and had been left idle by its owners.  He denied that there was any favouritism shown towards the beneficiaries and that there had been any underhand dealings regarding the acquisition and re-allocation of the farm to the second respondent and others.

Regarding the applicable law, the first respondent averred that s 72 of the Constitution, being the law under which he acquired the farm did not permit any challenge to his discretion to acquire land for resettlement on the grounds that the acquisition was unfair or inequitable.  He further averred that the Constitution in any event did not provide any ground upon which acquisition of agricultural land for resettlement could be challenged.  Finally, the first respondent averred that the appellants had not adduced any proof that he acted unlawfully or un-procedurally.

The second respondent denied that the farm had been acquired by the first respondent at his instigation.  He denied that he colluded with any person to dispossess the appellants of the farm.  In particular, he denied that he had influenced the first respondent to act as he did and put the appellants to the proof thereof.

Two sequential issues arose before the court a quo for determination.  These were whether the decision of the first respondent to acquire the appellants’ farm is subject to control by way of judicial review, and if so, whether the acquisition of the appellant’s farm should be set aside on the grounds alleged by the appellants in the application for review.

The decision a quo

The court a quo agreed in part with the submission by Mr Mushuma for the appellants that any decision by the first respondent to acquire agricultural land for resettlement purposes is subject to control by way of judicial review on all the permissible grounds of review, save those specifically excluded in s 72 (3) of the Constitution.  In so holding, the court a quo effectively dismissed the contention by the first respondent that the constitution has not provided any grounds upon which his discretion to acquire agricultural land for resettlement can be challenged.  It was the court a quo’s finding that acquisition of land under the Constitution is an administrative act which is subject to control by way of judicial review unless expressly excluded by the Constitution or by statute.

The court a quo further found that whilst the discretion of the first respondent to acquire land was reviewable, such discretion was exercisable only in terms of s 72 which exhaustively laid out the procedures and formalities that the first respondent had to observe in acquiring the land.  It was thus the finding of the court a quo that agricultural land is acquired exclusively in terms of s 72 of the Constitution.  Put differently, it was the court a quo’s finding that s 72 of the Constitution is a complete and stand-alone provision on the procedures and formalities necessary for the lawful acquisition of agricultural land for resettlement purposes.

The import of this finding was to dismiss the contention and argument by the appellants that in acquiring their farm, the first respondent was bound to observe the procedures and formalities set out in s 71 of the Constitution and that failure to do so constitutes procedural unfairness.  Section 71 of the Constitution protects property rights and restricts the conditions under which persons may be compulsorily deprived of their property.

I pause here briefly to note that the decision a quo marks a distinct departure from the decision of this Court in Mike Campbell (Pvt) Ltd & Anor v Minister of Lands & Anor 2008 (1) ZLR 17 (S) which interpreted the predecessor to s 72 of the Constitution under which agricultural land is compulsorily acquired for settlement.   It was the finding of this court in the Mike Campbell case, and the position at law for the past dozen years that s 16 (b) of the former constitution ousted the jurisdiction of courts of law from all cases in which a challenge to the acquisition of agricultural land secured in terms of the section could be sought.  The position at law is now that a party who is aggrieved by the compulsory acquisition of agricultural land may approach a court of law challenging the acquisition on the recognized grounds of review, except those alleging a contravention of s 56 of the Constitution.  Whilst a review is now possible, the grounds of review remain circumscribed in view of the provisions of ss 72 (2) and 71 (3) of the Constitution.

After setting out the common law grounds upon which administrative conduct is reviewable by the courts, the court a quo found that the appellants had not adduced evidence in support of any of these grounds, which became its ratio decidendi, and on short order, dismissed the application with costs.

The appeal

Dissatisfied with the decision, the appellants noted this appeal, raising six grounds of appeal.  At the hearing of the matter, the appellants abandoned all but two of the grounds.  The remaining grounds read as follows:

The court a quo misdirected itself and therefore erred in law in treating s 72 of the Constitution of Zimbabwe as a complete and self-contained code on the acquisition of privately owned agricultural land by the State for public purposes.  Accordingly, the court a quo erred in failing to find that under ss 68 and 69 of the Constitution which have not been ousted by s 72, the question as to what property should be acquired and in what manner, is now a judicial question.

The court a quo therefore misdirected itself on the facts and thus erred in filing to find that on the totality of the evidence before it, the acquisition of the appellant’s farm was unlawful, unreasonable or irrational and unfair on the basis of the common law grounds of review specified in the application and alternatively on the statutory grounds specified therein.

The respondents did not file any cross appeal.

Issues for determination

In view of the order of the Constitutional Court referred to in the opening paragraph of this judgment, the appellants conceded that the first ground of appeal had fallen by the way side. I believe that the concession was properly made.  This is so because the ground purportedly seeks to attack the finding of the court a quo that the provisions of s 72 are not justiciable.  It is common cause that the court a quo did find that s 72 of the Constitution is justiciable save on those grounds which the Constitution and statute have specifically excluded.  Thus, the appellants cannot appeal against a finding in their favour.  The first sentence of the ground, to the extent that can constitute a stand-alone ground of appeal, seeks an interpretation of s 72 of the Constitution, which is unnecessary for the determination of this appeal.

I also note in passing that the appellant’s first ground of appeal could have been settled with greater precision and clarity than is the case.

The sole issue that remained for determination is whether the appellants led sufficient evidence before the court a quo to sustain the allegations that the acquisition of the appellants’ farm was unlawful, unreasonable or irrational and unfair.

I turn to consider each below.

Illegality

A quo, the appellants alleged that the acquisition of the farm was unlawful.  In other words, the appellants alleged that the acquisition of their farm was tainted with illegality.  On appeal they contend that the court a quo misdirected itself in failing to find that there was evidence of such illegality before it.

As explained by Kosah JA in Secretary for Transport and Anor v Makwavarara 1991 (1) ZLR 18 (SC), the decision of the administrative authority is set aside on the ground of illegality where the decision maker is guilty of an error in law.

An administrative authority is guilty of an error of law if they act in defiance of a specific provision of a statute or disregard the provisions of the statute granting them the discretion. (Shidiack v Union Government (Minister of the Interior) 1912 AD 642).  To avoid illegality, the administrative decision or act must be within the framework of the empowering law and must have been made after applying the criteria given in the empowering law.  (G Feltoe: “A Guide to Administrative and Local Government Law in Zimbabwe”).

To succeed in having his decision to acquire their farm set aside on the basis of illegality, the appellants had to allege and prove that in acquiring their farm, the first respondent acted in defiance of or in contravention of the empowering law.

Taken in their totality, the allegations made by the appellants come nowhere near suggesting that the first respondent was guilty of an error in the law that empowered him to acquire the farm.  It is common cause that when it was brought to his attention that the farm had not been lawfully acquired, the first respondent retraced his steps and published the requisite notice thereby acquiring the farm, before reallocating it to the second respondent and others.

The decision a quo that there was no evidence to support this ground of review cannot therefore be faulted.

Irrationality

The appellants have used the terms “unreasonable” and “irrational” separately in describing the decision of the first respondent to acquire their farm.  These two refer to the same ground of review which is referred to in the authorities as irrationality.  This is the ground that is relied upon to set aside an administrative decision or conduct that is so outrageous in its defiance of logic that no sensible person or authority, applying his mind to the question to be decided, could have arrived at the decision made or could have conducted himself or herself in the manner under challenge.

In casu, it is common cause that the first respondent decided to acquire the appellants’ farm after it had been identified for resettlement.  Even if it is accepted that this was at the instigation of the second respondent who had identified the farm and had set out to be allocated part of it as alleged by the appellants, the position remains the same.  The decision of the first respondent to acquire the farm in the circumstances of this matter cannot be described as being so outrageous in its defiance of logic that no other acquiring authority, applying its mind to the question, would have desisted from acquired the farm.

I find no basis for faulting the finding of the court a quo that the appellants did not prove that the decision of the first respondent to acquire their farm was irrational.

Fairness

The appellants allege that the court a quo erred in failing to find that the second respondent acted unfairly when acquiring their farm.

In support of the argument, having abandoned the allegations of bias, malice, underhand dealings, corruption and bribery, the appellants relied on the fact that the first respondent did not follow the procedures set out in s 71 of the Constitution.  In particular, it was argued that the first respondent must have given the appellants prior notice of the acquisition of the farm and should have called upon the appellants to make representations before the farm was acquired.

It was the appellants’ specific argument a quo that in acquiring the farm, the first respondent ought to have observed the procedural steps set out in s 71, failing which his conduct would be procedurally improper.

The court a quo rejected the argument that s 71 was applicable and held instead that agricultural land is acquired exclusively under s 72 which exhaustively lays out the procedures and formalities required of the first respondent.

As is apparent from the above, the specific issue whether or not prior notice is required for the acquisition of agricultural land under s 72 of the Constitution did not arise in the proceedings a quo.  Thus, the duty to act fairly by the first respondent under s 72 was not an issue a quo and was not accordingly debated.

It is therefore my finding that whilst the appellants raised the ground of review of fairness in their papers, they argued it under s 71 of the Constitution, which was held by the court a quo to be inapplicable to the discretion that the first respondent exercised.

Whether or not lack of prior notice and or representations from the erstwhile owner of the farm acquired under s 72 is a ground upon which the acquisition of the farm in dispute can be reviewed remains an open or unanswered question.  I say so notwithstanding that the court a quo did make some findings in this regard.  This issue did not arise before the court a quo and any remarks by the court a quo in this regard can only be orbiter.

I make this finding conscious of the fact that the standards of fairness as they apply to administrative decisions and actions are not immutable.  They are situation specific and there is no one size fits all concept of fairness.  Whilst fairness often requires that the person adversely affected by the decision must have an opportunity to make representations before or after the decision has been made, this is not a hard and fast rule and the nature and mode of the representations to be made where this is deemed to be fair, are also context specific.

As aptly put by ZULMAN JA in Chairman, Board on Tariffs and Trade, and Others v Brenco Inc and Others 2001 (4) SA 511 (SCA),

“There is no single set of principles for giving effect to the rules of natural justice which will apply to all investigations, inquires and exercises of power, regardless of their nature. On the contrary, courts have recognized and restated the need for flexibility in the application of the principles of fairness in a range of different contexts.”

Thus, a debate dedicated to what constitutes fairness in the context of land acquisition in terms of s 72 ought to have ensued before the court a quo could make the remarks that it did.

Consequently, and on the basis of the above, it is my finding that issue of what constitutes fairness in relation to acquisition of land under s 72 of the Constitution cannot and does not arise in this appeal.

In addition and in any event, the Constitutional Court order of 27 June 2018 referred to above is binding on me.  It precludes an interpretation by this court of s 72 of the Constitution.

I therefore do not determine the issue.

In conclusion, it is my finding that the appeal cannot succeed.

In coming to an appropriate order of costs in this matter, I have taken into account the convoluted route that this appeal has taken.  Whilst the invalid referral to the Constitutional Court was with the consent of the parties, it was the order of this Court that referred the matter to the Constitutional Court and for which the court takes full responsibility.   I also take into account the importance of the questions arising from this appeal regarding the extent to which the compulsory acquisition of agricultural land is subject to judicial control.  It is therefore appropriate in the circumstances that each party be made to bear its own costs.

In the result, I make the following order:

The appeal is dismissed with each party bearing its own costs.

GWAUNZA DCJ	:			I agree

GUVAVA JA		:			I agree

Mushuma Law Chambers, appellants’ legal practitioners

Civil Division of the Attorney-General’s Office, 1st respondent’s legal practitioners

Debwe & Partners, 2nd respondent’s legal practitioners