Frances Mary Bowers & Anor v Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement & 7 Ors

### Preamble
Judgment No. 7/25
Court Application No. CCZ 16/251
(1)FRANCES MARY BOWERS
---------


(1)FRANCES     MARY      BOWERS

(2) BERNADETTE      ROSE      COSTAS      N.O

(In her capacity as executive Dative of Estate Late VERNON REUBEN BOWERS)

v

(1) MINISTER     OF      LANDS,     AGRICULTURE,     FISHERIES,     WATER     AND     RURAL     RESETTLEMENT

(2)MARGIE     SIZIBA     (3) COLLIN     SHIRICHENA

(4)NYASHA     MANYAKARA     (5) TENDAI     MUNEDZI     (6) PEARSON     NDORO     (7) EMMANUEL     MATIZANADZO     (8) TARIRO     ELFORD     MOYO

Harare 15 April and 15 May 2025

Chamber application for condonation of the late filing of an application for leave to appeal.

T. Mpofu for applicants

J. Shumba for 1st respondent

T. Kamwemba for 2nd to 8th respondents

Makarau JCC-

[1]	This is an application for condonation for the late filing of an application for leave to appeal against a judgment of the Supreme Court. An ex tempore order was handed down on 23 May 2023 with reasons for judgment being furnished to the parties on 27 February 2025. An earlier application for condonation and extension of time to appeal was filed with this Court in October 2024. It was struck off the roll for want of reasons from the Supreme Court.

Background facts.

[2]	The historical facts giving rise to this application are not complex. They are common cause, appearing as they do from the record of proceedings a quo, and, from the terse ruling by the Zimbabwe Land Commission.

[3]	The first applicant and her husband, now late, owned agricultural land that was acquired by the State in 2005. They applied for the delisting of the land without success.  In 2011, the first respondent subdivided the farm and settled five farmers on the land. Whilst the Resident Minister for the province in which the farm is situate endorsed on the title deeds of the farm that the five resettled farmers would be allocated alternative land in due course, this did not happen, prompting the applicants to lodge a complaint with the Zimbabwe Land Commission. It was the view of the then Resident Minister that the farm should not have been acquired as it is owned by indigenous Zimbabweans.

[4]	The Land Commission investigated the complaint and resolved that the first respondent had to withdraw the letters offered to the second to the eighth respondent and find them alternative land. It further resolved that the land had to revert to the applicants. Armed with the “decision” of the Zimbabwe Land Commission, the applicants approached the High Court seeking a mandamus against the first respondent.

[5]	The application for a mandamus was dismissed in circumstances and for the reasons that I shall detail shortly.

[6]	The applicants appealed to the Supreme Court against the decision of the High Court. On the turn, the Supreme Court dismissed the appeal with costs. Again it is necessary that I advert in some detail to the proceedings that unfolded before the Supreme Court and ultimately resulted in the reasons for judgment that were made available in February 2025.

The proceedings before the High Court.

[7]	As indicated above, the applicants approached the High Court, armed with the “decision” or resolution of the Land Commission, seeking a mandamus against the first respondent. The Land Commission, acting under the powers granted to it by s 297 (1) (d) of the Constitution had resolved in favour of the applicants and which resolution the applicants wanted implemented through the mandamus.

[8]	The application was opposed.

[9]	The first respondent opposed the application on three main grounds. These were that the farm had been properly acquired and the court had no jurisdiction to review the acquisition of the farm, that the application before the court was for a “mandamus van spolie,” which was misplaced and whose requirements had not been met and, finally, that approaching the Land Commission of Zimbabwe for the delisting of the farm was a procedure not recognised at law.

[10]	While the High Court proceedings are clearly not before me, I merely detail them herein to give the appropriate context to the decision of the court a quo on appeal.  It is also in this context that I must point out the patent misapprehension that misinformed part of the proceedings before the High Court.

[11]	Whilst the applicants had approached the High Court for a mandamus, that is a common law remedy compelling the first respondent to perform the obligation that had been imposed upon him by the Land Commission, the first respondent mistook this for a mandament van spolie, again a common law remedy seeking restoration of lost possession, and argued part of his case on this basis. In the opposing affidavit filed on his behalf, the remedy sought is referred to as “a mandamus van spolie”, which language the High Court borrowed and used without qualification or further ado.

[12]	As a consequence, the granting or the refusal of the mandamus, the very cause of action before the High Court, appears not to have been directly pronounced on. If it was indirectly refused, with the withholding of jurisdiction by the High Court, then the resolution by the Land Commission of Zimbabwe, a validly made resolution, was not specifically reviewed and set aside. It may arguably be extant. Put differently, it would appear that the question raised by the common law remedy sought for in the High Court went by unanswered and instead, a constitutional answer was preferred and relied upon to determine the dispute.

[13]	It is in these circumstances that the High Court, relying on Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Resettlement & Anor  2008 (1) ZRL (1) (S),  withheld its jurisdiction and issued the order that it did. This is the order that the applicants appealed against.

The Proceedings a quo.

[14]	For the purposes of this judgment, it is not necessary that I set out the grounds of appeal that the applicants raised a quo.

[15]	It is common cause that on the turn, the court a quo dismissed the appeal with costs.  Reasons for the dismissal of the appeal were not immediately sought.

[16]	It is further common cause that after this Court handed down the judgment in Fletcher v Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement & Others CCZ7/2024, the applicants were advised to appeal against the judgment of the Supreme Court to this Court. The applicants then requested for reasons for the court a quo’s order and also filed an application for condonation for the late filing of an application for leave to appeal.

[17]	The first application for condonation and ancillary relief was struck off the roll on 12 December 2024. By this date, the reasons for judgment were not yet available.

[18]	On 24 December 2024, the Registrar of the Supreme Court wrote to the parties as follows:

“Please be advised that the respective judges have decided to respond as follows:

‘In view of the request for reasons for the court’s order of 23 May 2023, whilst considering judgment in this matter, the court realised that this is an appeal which should have been made to the Constitutional Court because the issue purely depends on the interpretation of constitutional provisions. Relying on the provisions of r 29 sub rule 3 of the High Court Rules, 2021, as read with Rule 73 of the Supreme Court Rules, 2018, we intend to rescind our order and substitute it with an order declining jurisdiction in a constitutional matter as this court has no jurisdiction to deal with constitutional matters. The Rules require that the parties are notified accordingly.” (The underlining is mine.)

[19]	 On 15 January 2025, the parties had not reacted to the advice from the Court. A letter putting the parties to terms for the purposes of the R 29 procedure was once again written to them by the Registrar. The letter requested the parties to file their written responses to the proposed order by the close of business on 31 January 2025.

[20]	The legal practitioner for the applicants responded to the notification by indicating that he or she wanted an opportunity to address the court in person as the error upon which the court intended to act was, in his/her view, not provided for under the cited rule. The response concluded with the following remark:

“In the circumstances, and should the Court not adopt the position that reasons must be handed down based on the order already issued, we would ask for an opportunity to put  our contentions in full before the  Court.”

[21]	The respondents did not file any written response in relation to the r 29 (3) procedure.

[22]	On 23 May 2025, without any further communication to the parties, the Supreme Court handed down its written reasons.

[23]	In the reasons for judgment, the court a quo raised as the sole issue for its determination whether or not the High Court had erred in declining jurisdiction in the matter. Again, relying on Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Resettlement & Anor (supra), it held that the High Court had no jurisdiction in the matter and proceeded to dismiss the appeal with no order as to costs.

[24]	One cannot avoid but notice that in its written judgment disposing of the appeal, the Supreme Court did not discuss the issue of its own jurisdiction nor did it conclude let alone advert to the procedure that it had commenced under Rule 29 of the High Court Rules.

The issue.

[25]	The issue that immediately arose at the hearing of the application before me was the status and validity of the judgment of the Supreme Court, comprising as it does of the ex tempore order of May 2023 and the reasons for judgment of February 2025.

[26]	From its introductory part, and indeed from a reading of the entire judgment, it is clear that the written judgment is meant to provide the reasons for the ex tempore order that was given in 2023 and no more. Put differently, the written reasons are indifferent to the proceedings that were commenced in December 2024 to rescind the ex tempore order.

[27]	If the above reflects the correct factual position, then arguably, the written judgment of February 2025 does not reflect the true intention and considered position that the court a quo arrived at when it was drafting the judgment. This is so because when considering the reasons for judgment, mero motu and unreservedly, the court a quo formed the view that it lacked jurisdiction to determine the appeal. This position was reached after mature consideration of the appeal and the requisite consultation amongst the members of the court. The court a quo thereafter resolved to rescind its order and substitute it with one declining jurisdiction in the matter. It accordingly commenced the procedure set out in the rules of court for rescinding the order.  By so doing, it voided the validity of the order of 23 May 2023.

[28] 	In due course, the court communicated its conviction about the invalidity of its order to the parties and of the process it had commenced to substitute the invalid order with the correct order.

[29]	Viewed from another angle, the reasons for judgment furnished to the parties in February 2025 cannot constitute the final decision of the court a quo. This is so because the intention to rescind the order made ex tempore and especially the basis upon which it was formed, was not debated and explained away in the wriiten reasons for judgment.  In these circumstances, it is arguable that the view that the court a quo did not have the requisite jurisdiction to determine the appeal, may still  remain in the collective mind of the court a quo as reflecting the correct position at law and an order to that effect may still issue.

[30]	It is also highly likely that the court a quo, upon receipt of the written response from the applicants’ legal practitioners, was suitably persuaded by the ultimate paragraph in the written response and which remarks I cite above, and changed its mind to revert to the position that it had to give reasons for the original order made. It thereafter proceeded to give reasons for its ex tempore order without hearing the parties further. It thereafter merely overlooked the need to explain in the written reasons that it had changed its mind. However, in the absence of a full debate and conclusion of the Rule 29 procedure that the court had put in motion mero motu, the final position of the court a quo cannot be ascertained with certainty.

[31]	I have considered without making a definitive and binding finding on the matter, whether the error that the court a quo purported to act on mero motu is such an error as in envisioned by the application of R 29 (or the purported procedure was still born ab initio). It appears that it is.  There is an abundance of authority on the matter. Therefore, the court a quo could have validly vacated its earlier order for want of jurisdiction, if it was convinced that this was the correct position of the law.

[32]	ln Dhlamini & Ors v Ncube & Ors HH 11-18, Mathonsi J, relying on Mushosho v Mudimu and Another 2013 (2) ZLR 642 (H) at 652G”, explained the general import of the predecessor of Rule 29, (then Rule 449), which was similarly worded as the current rule, as addressing any error that is a result of the court acting in oblivion of the existence of a material fact.  Where the court proceeds oblivious of the scope of its competence, the proceedings are clearly conducted in error as  the competence or absence of jurisdiction of any court is a material if not the most material fact underlying the validity of any order granted by the court. (See Mutebwa v Mutebwa 2001 (2) SA 193.)

[33]	However, of more concern to me was the lack of any formality that the court a quo appears to have attached to the procedure that it had commenced under Rule 29.

[34] 	It is not in dispute that where an application has been made by any of the parties or interested parties for the correction, variation or rescission of a judgment under Rule 29, such an application constitutes a formal procedure of court and cannot be abandoned midstream or be ignored without much ado.  The application will have to be disposed of by an order of court either granting it in full or in part or dismissing the application.

[34]	When the procedure is initiated by the court mero motu, the rules are clear that no application need be filed. This notwithstanding, it would appear to me that the procedure, once commenced by the court communicating its intention to correct, vary or rescind its judgment to the parties, still constitutes a formal court process that must be concluded in formal terms  by the court.  The disposition of the procedure, started mero motu by the court, must be communicated to all parties, albeit not in the form of a court order.  It is thus my view broadly, that such a process, having been commenced by the court, cannot and should not be regarded as mere idle conversation between the court and the litigants that can be discontinued at any time and with little or no ceremony.

[30]	It is on the basis of these concerns, exhibiting some disconcerting degree of ambivalence on the part of the court a quo over the validity and finality of its judgment, that at the end of the hearing, the parties submitted to me a draft consent order in the following terms:

1.	In the exercises of the powers in terms of section 19 of the Constitutional Court Act

[Chapter 7.22], the judgment of the Supreme Court in case number SC98/23, being judgment number SC15/25 be and is hereby set aside.

The matter is remitted to the Supreme Court for a hearing de novo before a different panel of judges.

There shall be no order as to costs.”

[31]	I am inclined to agree. The observations and submissions by all three counsel in respect of the judgment of the court a quo are cogent and compelling. The result appears to me to be inescapable. The validity of the order a quo is mired in doubt, such doubt having been created by the court itself.

[32]	However, upon consideration, it is not necessary that I direct that the matter be placed before a different panel of judges for a fresh hearing as indicated in the second paragraph of the draft order. I leave that discretion to the court itself.

[33]	In the result, I make the following order:

By consent:

In the exercise of the powers granted to this Court by s 19 of the constitutional Court Act, [Chapter 7.22], the order                                                                                                  of the Supreme Court of 23 May 2023 as read with the  judgment of the Supreme Court being judgment number SC15/25 be and is hereby set aside.

The matter is remitted to the Supreme Court for a fresh hearing.

3.	There shall be no order as to costs.

Atherstone & Cook, applicants’ legal practitioners.

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

Tavenhave and Machingauta, 2nd to 6th respondents’ legal practitioners.