Alistair Michael Fletcher v Minister of Lands Agriculture, Fisheries, Water & Rural Development N.O & 2 Ors

### Preamble
Judgment No. CCZ 14/25
1
Constitutional Application No. CCZ 19/24
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REPORTABLE (10)

ALISTAIR MICHAEL     FLETCHER

v

MINISTER     OF     LANDS     AGRICULTURE,     FISHERIES,     WATER     & RURAL     DEVELOPMENT     N.O     (2) REGISTRAR     OF     DEEDS     N.O     (3) ROBERT     NJANJI

CONSTITUTIONAL COURT OF ZIMBABWE

GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC,

MAKONI AJCC & MATHONSI AJCC

HARARE: 09 OCTOBER 2024 AND 29 JULY 2025.

T. Mpofu and G. R. J Sithole and B. Masamvu, for the appellant

L. T. Muradzikwa, for the first and second respondents

HLATSHWAYO JCC:

This is an appeal against the entire decision of the Supreme Court which held that the immovable property called Umguza Agricultural Lots of Umvutcha and Reigate, being gazetted land, belonged to the State. It went on to make a finding that the courts’ jurisdiction relating to the acquisition of the land was ousted by s 16B of the former Constitution. This is an appeal with leave granted on 11 June 2024 in the case of Fletcher v Minister of Lands & Ors CCZ 07-24.

FACTUAL BACKGROUND

The appellant is the occupant of a certain immovable property called Umguza Agricultural Lots of Umvutcha and Reigate. The property is registered under title deed 3188/83. Sometime in 1999, the land was incorporated into the City of Bulawayo through S.I 212 of 1999. On 25 August 2000, the land was listed in the Gazette Extraordinary under General Notice 405 of 2000. Subsequent to the gazetting of the land, the first respondent caused the endorsement of caveats 844/2000 and 77/2019 on the deed of transfer. In addition, caveat XN 26/2017 was also endorsed at the instance of the second respondent.

Aggrieved by this, the appellant approached the High Court under HC 2291/08 challenging the endorsements by the respective respondents. The High Court made a finding that the land was not subject to any act of acquisition or resettlement by the first respondent or any other person or persons acting under the instructions of the first respondent.  The High Court further declared that the first respondent was estopped from doing or carrying out any act connected with the subdivision or acquisition of the said land. The Court went further to order the first respondent to desist from any further act of demarcation of the said portions of land.

On 1 December 2022, the appellant approached the High Court seeking the upliftment of the caveats 844/2000, XN 26/2017 and 77/2019 placed on his title deeds. It was the appellant’s contention that the caveats had no legal basis. He further argued that the placement of the caveats interfered with his constitutional right to property. It was further contended that the caveats had no legal basis as they had been nullified by the court order granted under HC 229/08. He argued that the placement of the caveats would greatly prejudice his right to transfer title in the land should he wish to do so.

In opposition to the application, the first respondent argued that the judgment which the appellant alleged to have cancelled or nullified the caveats did not mention the caveats on the land or their fate. It was further averred that the appellant no longer had real ownership rights over the farm because the farm now formed part of State agricultural land under Schedule 7 of the Constitution. The first respondent went on to object to the court’s jurisdiction arguing that the court had no authority to determine challenges to acquired State land.

The court dismissed the objection regarding its lack of jurisdiction in the matter.  It held that the matter did not relate to the acquisition of agricultural land but rather the cancellation of caveats endorsed on the deed of transfer of the appellant’s property. On the merits, the court found that the first respondent did not challenge the existence of the court order in HC 2291/08 and that it was not up to it to vary or declare invalid an order of a judge of parallel jurisdiction as it had no such competence. It found that the order of the High Court was still extant and that it was therefore binding unless overturned on appeal or through rescission proceedings.

It further found that the existence of caveats 844/2000 and 77/2019 was not supported by law as the order of the High Court in HC 2291/08 declared that land held under deed of transfer 3188/83 was not subject to any act of acquisition or resettlement.  It held that the first respondent had no legal interest over the property. Consequently, it ordered that caveats 844/2000, XN Caveat 26/2017 and 77/2019 be cancelled. Aggrieved by this finding the first and second respondent appealed to the Supreme Court (court a quo). They challenged the finding that the High Court had jurisdiction to hear the matter. They also disputed the cancellation of the caveats by the High Court.

SUBMISSIONS IN THE COURT A QUO

Mr Muradzikwa, for the first and second respondents, submitted that the High Court had no jurisdiction to deal with the application for the upliftment of the caveats. He argued that the land in question was gazetted and itemized in Schedule 7 of the Constitution and, as such, it was State land and concluded that the High Court had erred in removing the caveats as the effect of doing so was to reverse the acquisition of the land. He further pointed out that the appellant had failed to challenge the gazetting of the land when it was done. Counsel relied on the case of Commercial Farmers Union v The Minister of Agriculture, Land and Rural Resettlement & Ors 2010 (2) ZLR 576 in arguing that the acquisition of agricultural land could not be challenged.

Per contra, Mr Sithole, for the appellant, argued that s 16B of the Constitution dealt with land acquired for agricultural purposes only and that the land in question was not agricultural land. He stated that the land in dispute had already been proclaimed under S.I 212 of 1992 as land within the boundaries of the City of Bulawayo and that such land formed part of Bulawayo City Council and that, therefore, the acquisition was done in error.

COURT A QUO’S DETERMINATION

The court a quo held that the listing of the appellant’s land in the Gazette indicated that the land had been acquired by the State and as such the appellant ceased to be the lawful owner of the land and any dispute arising over the acquisition of the land was to be settled through the provisions of s 16 B of the former constitution. The court relied on the cases of Campbell & Anor v The Minister of National Security Responsible for Land Reform and Resettlement & Anor SC 49/07 and Commercial Farmers Union v Minister of Lands and Rural Resettlement (supra) to find that s 16 B (3) of the 1980 Constitution had ousted the jurisdiction of courts from any cases which challenge the acquisition of agricultural land secured in terms of s 16 B (2) (a) of the Constitution.

It found that the caveat registered against the title deeds are caveats that relate to State land and that the appellant’s right to lay any claim over the property or to have the caveats cancelled was overtaken and extinguished by the law once the land was gazetted. It found that the fact that the appellant later on had a court order against the acquiring authority was irrelevant as the order is a brutum fulmen. It held that in the face of s 16 B of the former Constitution, and the Land Acquisition Act [Chapter 20:10], the reference to S.I 212 of 1992 could not override the Constitution and the statute. In the result, the court a quo ruled that the High Court had no jurisdiction to deal with the matter.

APPLICATION FOR LEAVE TO APPEAL TO THIS COURT

Aggrieved by this finding, the appellant approached this Court seeking leave to appeal. The application was successful. In granting the application, the Court analysed the import of s 16 B of the former Constitution and held that the meaning and import of this provision is unambiguously clear. It found that the provision expressly applies only to agricultural land which may be acquired by and vested in the State as provided for in the section. It does not apply to urban land. The Court found that urban land may not be acquired by the State in terms of this provision. The application was granted.

GROUND OF APPEAL

The appellant has appealed to this Court on the following ground:

“That the court a quo erred in law and misdirected itself when it held that the High Court, by operation of s 16B (3) of the former Constitution of Zimbabwe now section 72 of the Constitution of Zimbabwe, 2013, lacked the jurisdiction to determine an application for the removal of caveats that had been placed over urban farmland designated urban land by presidential proclamation by virtue of Statutory Instrument 212 of 1999. Thus, the order of the court a quo violates appellants right to use, hold, transfer and not to be compulsorily deprived of its property as enshrined in s 71(2)-(3) and his right to equal protection of the law as enshrined in s 56 of the Constitution of Zimbabwe, 2013.”

PROCEEDINGS IN THIS COURT

Mr Mpofu, for the appellant, submitted that urban land could not be acquired based on s 16 B of the former Constitution. He submitted that the land could not be acquired because in terms of S.I 212 of 1992, it had been declared as part of Bulawayo City Council land and hence could not fall for acquisition under the Land Reform Program which was confined to the acquisition of agricultural land.

In addition, counsel maintained that s 16 B (3) of the former Constitution and s 72 (3) of the current Constitution did not oust the jurisdiction of the courts to determine applications for the removal of unlawfully placed caveats over land not subject to acquisition for resettlement purposes. He contended that the court a quo wrongfully interpreted and invoked s 16 B where it did not apply. He submitted that the Government can acquire urban land using different laws but cannot acquire urban land under the Land Reform Program.

Conversely, Mr Muradzikwa, for the first and second respondents, submitted that the nub of the matter was whether a Statutory Instrument can override the provisions of the Constitution. He argued that s 16 B of the repealed Constitution prohibited any person having an interest in land acquired by the State from approaching the Court. When it was put to him that in light of the Mike Campbell case, supra, the courts could still step in if the acquisition is done unlawfully, Counsel submitted that once the land was itemized under schedule 7 of the Constitution, it remained State land. He sought to argue that the said Statutory Instrument had been issued in error. He submitted that the gazetting of the land was to correct the error.

However, Mr Muradzikwa conceded that once the relevant statutory instrument was gazette, the land in question became urban land.  He had no meaningful response when asked whether or not a corrective proclamation ought to have been issued to address the purported statutory instrument that had supposedly been issued in error.

Counsel further sought to argue that no constitutional issue arose in the matter before the High Court.  He averred that what was before the Court was a dispute over caveats to which the court then suggested to him that the constitutional issue arose from the preliminary objection regarding the High Court’s jurisdiction to determine disputes governed by s 16B of the Constitution.

ISSUE FOR DETERMINATION

The sole issue for determination before this Court is whether the Court a quo erred in law and misdirected itself when it held that the High Court, by operation of s 16B (3) of the former Constitution of Zimbabwe, now s 72 of the Constitution of Zimbabwe, 2013, lacked the jurisdiction to determine an application for the removal of caveats that had been placed over the appellant’s land.

APPLICATION OF THE LAW TO FACTS

The first consideration is to establish whether or not the appellant’s land was properly acquired by the State in terms of s 16B of the former Constitution as read with s 72 (2) and (4) of the Constitution of Zimbabwe, 2013. The basis upon which the court a quo held that the High Court had no jurisdiction to determine the application for the upliftment of the caveats was that the appellant had no legal cause for bringing such an application as the land now vested in the State. It is important to note that before the said land was gazetted in 2000, it was proclaimed by the President to be urban land in 1999 by S.I 212 of 1999. The relevant parts of S.1 212 of 1999 provide thus:

“… the boundaries of the Bulawayo City Council area by the addition of Umvutsha, Reigate, Umguza Agricultural Lots, Umguza EState, Southern Portion Nondwane to the said council area;”

The fact that the appellant’s land is regarded as non-agricultural is further exhibited by the letter from the Provincial Planning Officer dated 23 November 2016. This letter reaffirms that the land was included in the boundaries of the Bulawayo City Council by S.I 212 of 1999. There is also on record a letter dated 20 August 2015 from the Bulawayo City Council objecting to the acquisition of certain lots under Umvutcha and Umguza Agricultural Lots on the basis that they were designated for residential purposes.

Section 16B (2) of the former Constitution provides:

“(2) Notwithstanding anything contained in this Chapter—

all agricultural land—

(i)  that was identified on or before the 8th July, 2005, in the Gazette or the Gazette Extraordinary under the proviso to s 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in Schedule 7, being agricultural land required for resettlement purposes; or

(ii)  …

(iii) …

is acquired by and vested in the State with full title therein with effect from the appointed day or, in the case of land referred to in subparagraph (iii), with effect from the date it is identified in the manner specified in that paragraph.”

Section 16B (2) expressly states that it is gazetted agricultural land that is acquired by and vested in the State. It does not state that urban land may also be acquired and vested in the State. What constitutes ‘agricultural land’ was defined in the case of Vodage Investments (Pvt) Ltd v Toro & Ors 2015 (1) ZLR 509 (H) at 510G as follows:

“Agricultural land” means land used or suitable for agriculture, but does not include communal land or land within the boundaries of an urban local authority or within a township.”

In the above case, the court had to determine the legal implications of title to urban land as opposed to agricultural land, and whether the classification of land as urban or agricultural is interchangeable, and if so, what the implications are. It held as follows on p 518 B:

“Urban land does not fall under the Minister of Lands and Rural Resettlement. Title to urban land cannot be the same as title to agricultural land. Once the piece of land ceased to be agricultural land, on the date of the Proclamation, the offer letter fell away by operation of the law.”

In Toro v Vodage Investments (Pvt) Ltd & Ors SC 15-17, at p 2 the Minister of Lands conceded that urban land cannot be allocated for agricultural purposes and that he had no authority over such land.

In line with the above, from a reading of section 16B of the Constitution, urban land cannot be gazetted under s 16B of the Constitution of Zimbabwe, as the provision specifically deals with the acquisition of agricultural land for resettlement and other purposes. The definition and scope outlined in the provision focus on agricultural land, whether for resettlement, agricultural development, environmental conservation, or other land management purposes. The references in s 16B, particularly to land reorganisation, forestry, and the utilisation of natural resources, all pertain to activities traditionally associated with agricultural or rural land. Even though the provision allows for a broad range of purposes for which land may be acquired, it remains focused on agricultural purposes rather than the urban environment. Thus, urban land does not fall under the types of land that can be gazetted for acquisition under this specific constitutional provision.

The above position is reaffirmed and fortified by the definition of “agricultural land” in         s 72 (1) of the current 2013 Constitution, which reads as follows:

“agricultural land’ means land used or suitable for agriculture, that is to say for horticulture, viticulture, forestry or aquaculture or for any purpose of husbandry, including—

the keeping or breeding of livestock, game, poultry, animals or bees; or

the grazing of livestock or game; but does not include Communal Land or land within the boundaries of an urban local authority or within a township established under a law relating to town and country planning or as defined in a law relating to land survey.”

Given the above, only agricultural land could be acquired by the State in terms of the provisions of s 16B of the former Constitution. This same position was adopted by the Supreme Court in the case of Toro, supra, p 2 wherein land that was purportedly acquired by the State had been proclaimed part of urban land and it was held:

“The land in dispute was by Proclamation 3 of 2012 S.I. 115 of 2012 incorporated into Beatrice Urban area which is administered by the second respondent. By letter dated 10 June 2013, the third respondent handed over the land in dispute to the Minister of Local Government, Rural and Urban Development. It is now urban land which cannot be allocated for agricultural purposes.” See also Bowers & Anor v Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement & Ors HH 72/23.

Given the above, the appellant’s land, having been designated as urban land, was improperly acquired by the State.

OUSTER OF JURISDICTION

Having found that the land in dispute is urban land, the question that remains is whether the Court has the jurisdiction to interfere with the acquisition of such land by the State. Section 16 B (3) (a) of the former Constitution states thus:

“(3) The provisions of any law referred to in s 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, and the provisions of       s 18 (1) and (9), shall not apply in relation to land referred to in subsection (2) (a) except for the purpose of determining any question related to the payment of compensation referred to in subsection (2) (b), that is to say, a person having any right or interest in the land—

(a) shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge;

(b)	may, in accordance with the provisions of any law referred to in s 16(1)   regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired.”

A reading of this provision shows that it does oust the jurisdiction of the court in matters concerning the acquisition of agricultural land by the State, except for issues related to compensation for improvements on such land. The clause clearly states that a person with an interest in the land cannot challenge the acquisition itself in court and it further specifies that no court shall entertain such a challenge. This is a jurisdictional ouster, as it limits the court's power to hear cases related to the acquisition. The court's jurisdiction is only preserved to determine the amount of compensation related to improvements made on the land.

In the case of Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor SC 49/07 (1) ZLR 17 (S) Malaba JA (as he then was) on pp 36-38 remarked:-

“By the clear and unambiguous language of s 16B(3) of the Constitution the Legislature, in the proper exercise of its powers, has ousted the jurisdiction of courts of law from any of the cases in which a challenge to the acquisition of agricultural land secured in terms of s 16B(2) (a) of the Constitution could have been sought. The right to protection of law for the enforcement of the right to fair compensation in case of breach by the acquiring authority of the obligation to pay compensation has not been taken away. The ouster provision is limited in effect to providing protection from judicial process to the acquisition of agricultural land identified in a notice published in the Gazette in terms of s 16B(2) (a). An acquisition of the land referred to in s 16B (2) (a) would be a lawful acquisition. By a fundamental law, the Legislature has unquestionably said that such an acquisition shall not be challenged in any court of law. There cannot be any clearer language by which the jurisdiction of the courts is excluded.”

Even though, s 16B can be said to oust the Court’s jurisdiction as shown above, it is important to consider the extent of that ouster provision. From a reading of the provision, it is apparent that it specifically speaks to agricultural land. The language of the provision clearly indicates that the jurisdictional ouster is specifically limited to agricultural land. Subsection (2) (a) expressly refers to “all agricultural land” as the subject of acquisition, leaving no ambiguity that the provision is targeted solely at rural or farming land. The consistent use of the term “agricultural land” throughout the section highlights the legislative intent to confine the scope of the ouster to this category of land, thereby excluding urban land from its application.

Furthermore, the purposes outlined in the provision such as “resettlement,” “land reorganisation,” “forestry,” and “the utilisation of wildlife or other natural resources” are traditionally associated with agricultural or rural contexts. These functions do not generally pertain to urban land, which is governed by different statutory and regulatory frameworks. By focusing on these rural-oriented purposes, the provision reinforces the idea that it was not intended to cover urban land.

The Land Acquisition Act, which is referenced in this section, is primarily concerned with agricultural land required for resettlement purposes. The provision modifies the legal processes surrounding the compulsory acquisition of such land but does not extend those modifications to urban land. The omission of urban land from the provision, coupled with the specific focus on agricultural land, confirms that the court's jurisdiction remains intact in relation to urban land acquisitions unless explicitly restricted by another legislative provision. The legal principle “expressio unius est exclusio alterius” applies in situations where what is not expressly stated is considered to be excluded. This maxim means that the explicit mention of one or more items in a legal provision implies the exclusion of others that are not mentioned. This was well articulated in the case of Eagle Insuarance Co Ltd v Grant 1989 (3) ZLR 278 (SC) at 280 F, where the Court commented on the operation of the maxim and said:

“A rule which is variably resorted to in the interpretation of 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.”

Therefore, by omitting urban land, the law presumes that this was an intentional exclusion. In this light, the jurisdictional ouster in s 16B applies exclusively to agricultural land, and there is no basis to extend it to urban land. Therefore, the courts retain full authority to hear and determine disputes involving urban land acquisition, ensuring that such cases fall within the normal scope of judicial oversight.

In addition to the question of jurisdiction, it is important to also consider the finding by the court a quo that s 16B (2) (a) ousted its jurisdiction in matters concerning the legality of land acquisitions once the land had been gazetted by the State. While Section 16B(2) (a) limits the rights of individuals to challenge land acquisitions after the State has gazetted the land, the remarks of the Court in the Campbell case (supra), at 44E-H are apposite. The Court observed:

“Section 16B (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 the record, not in terms of s 16B(2) (a). This is that the acquisition must be on the authority of law. The question 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 jurisdictional question to be determined by the exercise of judicial power. The duty of a court of law 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 16B (2) (a) of the Constitution a court is under a duty to uphold the Constitution and 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 16B(2) (a) of the Constitution.”

This resonates with the position that s 16B (3) does not entirely remove the possibility of judicial review where the acquisition process itself is questioned as unlawful. The essence of this section lies in upholding the principle that any acquisition of land must be done in accordance with the law. Therefore, the courts retain the power to scrutinise whether the acquisition followed the requirements set forth in s 16B (2) (a), which stipulates that the land must be acquired by the authority of law. In this context, whether the acquisition of land was lawful or not constitutes a jurisdictional question that courts are empowered to determine. If the acquisition deviated from the requirements of s 16B (2) (a), then the courts are under a constitutional duty to declare the acquisition null and void.

The court’s role is not to challenge the validity of the expropriation but to ensure that the process conforms with the legal requirements prescribed in the Constitution. Thus, although s 16B (2) (a) imposes restrictions on landowners' ability to challenge land acquisitions post-gazetting,       s 16B (3) ensures that courts retain jurisdiction over cases where the acquisition is, on the face of it, not in compliance with the law. The principle underlying judicial review is the protection of legality ensuring that the State’s actions remain within the bounds of the law. Therefore, given the above, the jurisdiction of the court is not entirely ousted. Courts can still review whether the land acquisition adhered to constitutional and legal standards. If the acquisition fails to meet these standards, the courts have a duty to intervene, thus upholding the rule of law. This is in addition to the aspect of acquisition of urban land, which is not included in s 16B; hence the provision does not oust the jurisdiction of the courts in relation to urban land.

THE RIGHT TO EQUAL PROTECTION OF THE LAW

In bringing this appeal, the appellant has argued that the order of the court a quo violated his right to use, hold, transfer and not to be compulsorily deprived of his property as enshrined in s 71 (2) - (3) and his right to equal protection and benefit of the law as enshrined in s 56 of the Constitution of Zimbabwe, 2013.

In this case, the appellant’s land had been classified as urban land, as confirmed by the Provincial Planning Officer’s letter and the Bulawayo City Council’s objection to its acquisition for agricultural purposes. Despite this, the court a quo allowed the acquisition of the land as if it were agricultural, applying a legal framework meant for agricultural land acquisitions. This application of the law treated the appellant differently from other property owners whose urban land remains protected by the urban planning and regulatory frameworks governing city land. By failing to apply the proper legal standards governing urban land and instead treating the appellant’s land as agricultural, the court effectively denied the appellant the protection that should have been afforded under the law regulating urban property. This inconsistency in the application of legal protections violates s 56 (1), as it subjects the appellant to a legal regime that was not intended to apply to his property and deprives him of the full benefit of the law intended for urban landholders. Thus, by treating the appellant in a manner that discriminates against him as compared with other urban landholders, the decision infringed the appellant’s constitutional right to equal protection and benefit of the law.

DISPOSITION

Whilst s 16 B (3) (a) of the Constitution ousts the jurisdiction of the courts in respect of challenges to land acquisitions, it is crucial to note that this provision exclusively pertains to agricultural land. The appellant’s land falls within the category of urban land and is therefore exempting him from the ambit of compulsory acquisition under s 16 B.

In light of this distinction, the court a quo retained jurisdiction to adjudicate upon the application for removal of caveats. Therefore, the appeal has merit.

It is hereby ordered as follows:

1. 	The appeal succeeds with no order as to costs.

2. The whole judgment of the court a quo is set aside and substituted with the following:

“The appeal is hereby dismissed with costs.”

GARWE JCC		:		I Agree

MAKARAU JCC		:		I Agree

GOWORA JCC		:		I Agree

PATEL JCC			:		I Agree

MAKONI AJCC 		:		I Agree

MATHONSI AJCC		:		I Agree

Masamvu & Da Silva-Gustavo Law Chambers, appellant’s Legal Practitioners

Civil Division of the Attorney General’s Office, first and second respondents’ Legal Practitioners