MARGARET ZINYEMBA

v

1.  THE MINISTER OF LANDS AND RURAL RESETTLEMENT (2) YAKUB MOHAMED

CONSTITUTIONAL COURT OF ZIMBABWE

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC,

GWAUNZA JCC, GARWE JCC, GOWORA JCC,

HLATHSWAYO JCC, GUVAVA JCC & MAVANGIRA JCC

HARARE, JUNE 4, 2014 & JUNE 24, 2016

M H Chibanda with P Mangwana, for the applicant

T Mpofu, for the second respondent

MALABA DCJ: This is an application in terms of s 85(1)(a) of the Constitution of Zimbabwe Amendment (No. 20) 2013 (“the Constitution”) alleging that the applicant’s fundamental right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair enshrined in s 68(1) of the Constitution has been infringed.  The cause of the alleged infringement is the decision by the first respondent to withdraw an offer letter given to the applicant to occupy a piece of agricultural land without giving her an opportunity to be heard on the proposed withdrawal of the offer letter.

The background facts are that on 30 August 2002 the Government compulsorily acquired Lot 1 of the whole of Manyewe Farm in Mazowe District of Mashonaland Central Province which was then registered in the name of Ridwyn (Pvt) Ltd under Deed of Transfer No. 8426/2002.

On 10 July 2008 the acquiring authority offered the applicant the right to occupy, hold and use the whole of Lot 1 of Manyewe Farm measuring 464 hectares.  The applicant accepted the allocation of the piece of land by signing the offer letter containing a number of terms and conditions.  One of the terms of the offer letter was that the Minister of Lands and Rural Resettlement (“the Minister”) reserved the right to withdraw or change the offer if he deemed it necessary or if the holder of the offer letter was found to be in breach of any of the conditions of the offer letter.

In 2013 the Minister decided to subdivide the land allocated to the applicant into two portions measuring 210 and 254 hectares respectively.  On 23 July 2013 the applicant was advised of the decision to withdraw the offer letter relating to Lot 1 of Manyewe Farm which had already been subdivided.  On the same date an offer letter was sent to the applicant allocating to her the right to occupy, hold and use for agricultural settlement subdivision 2 of Lot 1 of Manyewe Farm measuring 210 hectares.  Subdivision 1 of Lot 1 of Manyewe Farm measuring 254 hectares was allocated to the second respondent who accepted the offer.  The applicant was served with the notice of withdrawal of the offer letter relating to Lot 1 and the offer letter relating to subdivision 2 of Lot 1 on 11 November 2013.

The applicant refused to accept the offer letter relating to subdivision 2 of Lot 1 of Manyewe Farm arguing that the land allocated to her was rocky and not arable land.  She subsequently applied to the High Court for review of the decision of the Minister to subdivide Lot 1 of Manyewe Farm.  She also sought a review of the decision of the Minister to withdraw the offer letter in respect of Lot 1 without giving her notice of the administrative conduct.  The applicant withdrew the application for review of the Minister’s decision after the second respondent opposed it on the ground that the application should have been made to the Administrative Court.

Instead of lodging the application with the Administrative Court after its withdrawal from the High Court, the applicant approached the Constitutional Court.  She made an application under s 85(1)(a) of the Constitution alleging that her rights under ss 68(1), 71(3) and 291 of the Constitution had been and were being infringed by the administrative conduct of the Minister.  The administrative conduct alleged to have violated the applicant’s rights was the decision to withdraw the offer letter relating to Lot 1 of Manyewe Farm without giving the applicant notice of the intended action and affording her a reasonable opportunity to make representation on the matter.

The application was opposed on four grounds.  The first was that the application was in the wrong forum as it should have been made to the Administrative Court.  The second ground was that s 291 of the Constitution is not part of Chapter 4 and did not enshrine a fundamental right.  The contention was that s 291 did not guarantee to the applicant a fundamental right the infringement of which entitled her to approach the Constitutional Court for appropriate relief in terms of s 85(1)(a) of the Constitution. 

The third ground on which the application was opposed was that s 71(3) of the Constitution had no bearing on the legality of the decision of the Minister because it was concerned with compulsory acquisition of property by the State and not the withdrawal of rights to occupy, hold and use State land given to a person in terms of an offer letter.

The fourth ground on which the application was opposed was that the existence of the Administrative Justice Act [Cap. 10:28] gives effect to the fundamental rights enshrined in s 68(1) and (2) of the Constitution and provides an effective remedy for their protection and enforcement.

All the four points raised by Mr Mpofu on behalf of the second respondent are unassailable.  Section 85(1) of the Constitution in terms of which the application was made grants locus standi to the persons listed therein who allege that a fundamental right enshrined in Chapter 4 has been, is being or is likely to be infringed. 

Section 291 is in Chapter 16 of the Constitution.  Its provisions do not enshrine a fundamental right.  It provides that any person who immediately before the effective date of the new Constitution was using or occupying, or was entitled to use or occupy any agricultural land by virtue of a lease or other agreement with the State continues to be entitled to use or occupy that land on or after the effective date in accordance with the lease or other agreement. The provision was intended to put beyond doubt the fact that the coming into effect of the new Constitution did not terminate existing rights to occupy, or use agricultural land.  It clearly did not interfere with the rights and obligations of the parties under the lease or any other agreement governing the occupation and use of State land.  Any person claiming lawful authority to occupy or use State land had to produce an offer letter, or lease relating to the agricultural land concerned.