Judgment No.

CCZ 03/23
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Constitutional Application No. CCZ 02/22

REPORTABLE (3)

(1) LIVISON CHIKUTU (2) PHENEAS CHITSANGE (3) ALBERT

DHUMELA

(1) MINISTER OF LANDS, AGRICULTURE, CLIMATE AND

RURAL SETTLEMENT & ORS (2) MINISTER OF LOCAL
GOVERNMENT AND PUBLIC WORKS (3) THE PRESIDENT
OF THE REPUBLIC OF ZIMBABWE (4) ATTORNEY
GENERAL OF ZIMBABWE

CONSTITUTIONAL COURT OF ZIMBABWE

MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC,
HLATSHWAYO JCC, AND PATEL JCC
HARARE: JUNE 22, 2022 & APRIL 27, 2023

T. Biti, for the appellants

O. Zvedi for the respondents

GOWORA JCC:

[1] This is an appeal against the entire judgment of the High Court, sitting at Harare,

in which it dismissed a constitutional application placed before it. The appellants

approached the court a quo seeking an order that s 4 and s 6 (1) (b) of the

Communal Land Act [Chapter 20:04] (hereinafter the “Communal Land Act”) be

declared ultra vires the Constitution of Zimbabwe, 2013 (“the Constitution”). The

application was prompted by a series of legal instruments passed by the

Government which gave notice of the setting aside of 12 940 hectares in the

administrative district of Chiredzi, initially for ‘lucerne production.’ A

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subsequent statutory instrument altered the purpose of the reservation of the area

to an “irrigation scheme.”

[2] The court a quo did not find merit in the application. It held that there was

nothing unconstitutional with the provisions of ss 4 and 6 of the Communal Land

Act. It accordingly dismissed the application. Irked by that decision, the

appellants appealed to this Court in terms of s 175 (4) of the Constitution.

FACTUAL BACKGROUND

[3] The appellants in this matter are members of the Hlengwe Shangani ethnic group.

They are peasant farmers who occupy tracts of land in the Chilonga area in

Chiredzi. They practise mixed farming. The community occupies the south-

eastern Lowveld of Zimbabwe, particularly areas bordering or falling within

Chikombedzi, Chiredzi, Gonarezhou, Hippo Valley, Malilangwe, Mwenezi, and

Triangle. The land in question falls along the Save, Runde, and Limpopo Rivers.

The same ethnic group also occupies parts of Mozambique and South Africa. It

claims occupation of the land in question well before the advent of colonialism in

the 1890s.

[4] The first and second respondents are Cabinet Ministers responsible for the

administration of the Ministry of Lands, Agriculture, Water, Climate, and Rural

Settlement and the Ministry of Local Government and Public Works,

respectively.
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[5] The third respondent is the President of the Republic of Zimbabwe (hereinafter

referred to as the “President”), with the fourth respondent being the State’s

principal legal advisor.

[6] On 26th February 2021, a statutory instrument, S.I. 50/21, was published by the

Minister of Local Government, Urban, and Rural Development, giving notice

that, acting in terms of s 10 of the Communal Land Act, he had set aside 12, 940

hectares in the district of Chiredzi for lucerne production. On the same date, the

President, acting under s 6 of the Communal Land Act, published S.I. 51/21,

giving notice that a piece of land in extent of 12 940 hectares had been set aside

from the district of Chiredzi. It is common cause that the two legal instruments

contained errors. The first, S.I. 50/21, cited the wrong Minister as the

administrative authority. This was corrected by the publication of S.I. 63A/21 on

9 March 2021 which cited the Minister of Local Government and Public Works.

In addition, the purpose for the setting aside of the 12 940 hectares was altered

from that of lucerne production to an irrigation scheme. On the same day, the

President published S.I. 72A/21. The Statutory Instrument repealed S.I. 51/21and

gave notice that, the President, acting in terms of s 10 of the Communal Land

Act, had set aside a piece of land in extent of 12 940 hectares in the district of

Chiredzi for the setting up of an irrigation scheme.

[7] Feeling threatened by the imminent reservation of land within their area of

habitat, the appellants applied to the High Court (“the court a quo”), impugning

the constitutional validity of section 4 and section 6 (1) (b) of the Communal

Land Act. The first appellant averred that the land that had been set aside, in
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extent 12 940 hectares, formed a significant part of their ancestral lands. He

averred that the land was part of their ancestral heritage and that the Hlengwe-

Shaangani communities had inhabited the area for over half a millennium. He

averred that, given the length of time the community had been in occupation of

the same, they could not be dispossessed of the land at the mere whim of the

respondents and that, as a result, the reservation of the identified piece of land

impacted on their fundamental human rights.

[8] The first appellant listed the fundamental rights contained in ss 51, 48, 71, 63, and

s 56 (1) of the Constitution of Zimbabwe as being violated by the respondents'

actions. He asserted that ss 4 and 6(1) (b) of the Communal Land Act were the

offending sections that enabled the violation of their fundamental rights.

[9] Section 4 of the Communal Land Act was criticized as unconstitutional and

labelled a relic from the colonial era that reinforced the notion that Africans could

not own or vindicate property rights. The first appellant challenged the status

quo, which he alleged prevented “indigenous peoples” from owning property

rights to their ancestral homes in communal areas. Section 4 of the Communal

Land Act was further impugned as being discriminatory due to the absence of

private individual ownership rights for inhabitants of communal lands.

[10] He averred that s 6 (1) (b) of the Communal Land Act enabled the excision of

portions of communal land by the third respondent and that this provision

breached the property rights enshrined in s 71 of the Constitution. He tied this

breach to the right to life as protected by s 48 of the Constitution. Furthermore, he

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asserted that the prospective loss of their ancestral land would negatively impact

on their right to dignity, which he tied to their ancestral land.

[11] The first appellant averred that their right to practise their culture under s 63 of

the Constitution would be affected by their forced relocation from their ancestral

lands. He posited that this also violated their dignity. He stated that the impugned

provisions violated their community’s fundamental human rights as enshrined in

the Constitution.

[12] The appellants categorized the application before the court a quo as an attempt to

reverse two hundred years of colonialism. The first appellant alleged that there

existed inconsistencies in the system of land tenure in that the law had permitted

the expropriation of commercial farmland from white farmers through the Land

Reform Programme and yet, in contrast, the communal land ownership system

remained intact. He asserted that s 6 (1) (b) of the impugned Act enabled the

expropriation of communal land without any due process and compensation.

[13] He submitted that the evolution of the Communal Land Act from the purported

racist Land Apportionment Act and the Tribal Trust Land Act are regarded as

incontrovertible evidence of its unconstitutionality. He reiterated that the

impugned sections were discriminatory as they breached the appellants’ right to

equal protection of the law enshrined in s 56 (1) of the Constitution.

[14] He stated that the land was a source not only of their food but their medicine as

well. He averred that the proposed irrigation scheme was dubious, and he felt it
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was just an excuse to scout for mineral deposits in the area. The first appellant

also insisted that the true purpose of their displacement was to pave the way for

lucerne production in favour of a company named DenDairy (Pvt) Ltd.

[15] In addition, the first appellant averred that there was no prior consultation with

the local people by the third respondent before the exercise of the prerogative

under s 6 (1) (b) of the Communal Land Act. This was said to be a breach of the

Administrative Justice Act [Chapter 10:28] and, consequently, s 68 of the

Constitution. He, therefore, sought a retrospective order nullifying the notices

published by the respondents earlier in the year.

[16] The first appellant embarked on a rendition of the background of his community’s

occupation of the land. He submitted that the community’s existence in the

territory had long been established before the Mfecane upheaval in the 19 th

century. To that end, he attached a case study by J.H. Bannerman that provided an

exposition of the history of the Hlengwe community. He recounted clashes with

the imperial white community that attempted to establish irrigation systems in

areas that contained the graves of their ancestors. The first appellant stated that

these graveyards were now part of the land sought to be annexed by the third

respondent. He asserted that the prospective dispossession would strip them of

their cultural heritage.

[17] The first appellant made extensive reference to international law in support of the

application. He indicated that the universal principle of free prior informed

consent (hereinafter “fpic”) was not observed due to the outdated provisions of
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the Communal Land Act, which did not mandate their inclusion in the decision-

making process. In addition, the first appellant cited article 17 of the Universal

Declaration of Human Rights to support his assertion that the impugned Act was

arbitrary in depriving them of their ancestral property. Further allusion was made

to the International Covenant for Civil and Political Rights and the African

Charter on Human and People’s Rights in support of the application.

[18] Concerning the issue of locus standi, the first appellant averred that the

application was anchored on s 85 (1) (d) of the Constitution. He asserted that it

was a matter of public interest as his community had a direct interest in the

matter. He conflated public interest with his community’s interests. Part of his

reasoning was that the land question was the essence of the struggle for liberation

in Zimbabwe.

[19] The second and third appellants also deposed to affidavits supporting the

constitutional application in the court a quo. They reiterated the same concerns

regarding the negative implications of the reservation of the land on their human

dignity and other related cultural rights. Accordingly, the appellants sought an

order declaring ss 4 and 6 (1) (b) of the Communal Land Act ultra vires the

Constitution.

[20] The respondents opposed the application before the High Court. The fourth

respondent deposed to an opposing affidavit on behalf of all the respondents. He

raised a preliminary objection alleging the misjoinder of the second and third
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respondents. He asserted that he was also a victim of misjoinder in the

proceedings as he had no legal interest in the matter.

[21] As to the merits, he refuted the appellants’ claim to ownership of the reserved

piece of land stating that their community was a mere beneficiary of the

communal land whose title was vested in the President. He also refuted the

appellants’ claim that the project's true intent was not an irrigation project.

Lastly, he highlighted that, contrary to the appellants’ averments, s 12 of the

Communal Land Act provided for compensation in instances of displacement

from communal areas.

[22] He further asserted that the State had engaged the Chilonga community regarding

the establishment of an irrigation project and that the proposed project was not

aimed at displacing the appellants’ community. In addition, he highlighted that a

relatively large portion of the target area was uninhabited. He added that various

similar developmental schemes had been established in other communal areas.

The proposed project was, therefore, not out of the ordinary.

[23] The respondents contended that the application was both frivolous and vexatious

and lacked a solid basis as the impugned provisions did not militate against the

fundamental rights of the appellants as enshrined in the Constitution. He disputed

the contention that the Communal Land Act was a colonial construct and, in

support of the legislation in question, stated that it served a practical purpose: to

regulate the universal national development of communal land. He stressed the

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existence of a compensation clause under s 12 of the impugned Act, which was

available and accessible to any potentially affected parties.

[24] The appellants replicated and filed answering affidavits. The first appellant

objected to the failure on the part of the respondents to attach a notice of

opposition to their opposing affidavit. He also took issue with the fourth

respondent deposing to an affidavit on behalf of the first to third respondents.

[25] Regarding the substance of the respondents’ opposition, the appellants averred

that the fourth respondent lacked the capacity to make assertions on matters of

government policy. The first appellant reiterated his apprehension that valuable

minerals had been discovered in the area and that this discovery constituted the

primary reason for the drive to set aside the targeted portion of their ancestral

communal land. The appellants refuted the contention by the respondents that

there was prior consultation with the community before the impugned actions

were taken. They alleged that the community was not allowed to make any

meaningful submissions when the government delegation advised them of the

plan to annex the disputed territory. Further, meetings with government officials

were characterized as hostile and futile.

[26] Following the hearing of the matter, the court a quo dismissed the application.

The appellants’ argument regarding the unconstitutionality of the impugned

provisions was rejected. The court was of the view that it was not sufficiently

qualified to provide a holistic solution to their predicament. The court a quo

opined that the executive and legislature were better placed to provide an
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effective remedy. Dissatisfied with the disposition a quo, the appellants filed the

instant appeal before the Court on the following grounds:

GROUNDS OF APPEAL

[27] The court a quo grossly erred and misdirected itself in failing to hold that s 4 and

s 6 (1) (b) of the Communal Land Act [Chapter 20:04] are ultra vires the

provisions of s 48, s 51, s 72, s 63, s 56 (1) and s 68 of the Constitution of

Zimbabwe.

[28] More fully, the court a quo grossly erred in failing to hold that the legal position

codified in the Communal Land Act [Chapter 20:04] denying indigenous

aboriginal black Zimbabweans the right to own their land was unconstitutional.

[29] On a very technical level, the court a quo erred in implicitly holding that the

provisions sought to be impugned were reasonable and justified in a democratic

society and in making such a finding without expressly holding that section 4 and

6 of the Communal Land Act [Chapter 20:04] violated the applicant’s rights.

[30] The court a quo further erred in failing to appreciate that it could have granted an

order, declaring s 4 and s 6 of the Communal Land Act [Chapter 20:04]

unconstitutional and then suspending such declaration in terms of s 175(6) of the

Constitution, allowing the executive and indeed Parliament time to consult or set

up a Land Commission on a new system of land tenure consistent with the

Constitution.
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[31] More fully, the court a quo thus erred in failing to appreciate that what was before

it was a legal issue for the declaration of the appellants’ rights as opposed to the

policy issue of a new tenure system for communal land.”

APPELLANTS’ SUBMISSIONS ON APPEAL

[32] Mr. Biti, counsel for the appellants, made the following submissions. He argued

that the court a quo’s determination was wrong in failing to find that ss 4 and 6

(1) (b) of the Communal Land Act were unconstitutional. He submitted that the

court a quo’s judgment contained three contradictory views. The first was that the

court a quo made positive findings as to the racist import of the impugned

provisions. Secondly, the court a quo held the matter to be one of policy,

notwithstanding the mandate of courts to interpret laws. He vehemently objected

to such an approach regard being had to s 175 (6) of the Constitution, which

imbues the courts with authority to grant a ‘just and equitable remedy.’ The third

facet allegedly contained in the judgment related to the determination that there

was nothing objectionable with vesting of land in the President as a consequence

of s 4 of the aforesaid Act. Mr. Biti submitted that this was in contrast with the

court a quo’s earlier findings of racial connotations in the impugned provisions.

In addition, he contended that it was a condescending view that land barons

would overrun communal lands should “natives” be granted title to their land.

[33] To bolster his stance on the alleged racial connotations of the impugned

provisions, counsel embarked on a rendition of the historical background giving

rise to the present-day Communal Land Act. To this end, Mr. Biti advanced that

racist undertones were prevalent in the expropriation of communal lands from the
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native people of Zimbabwe. He implored the Court to consider judicial

pronouncements in Latin America that dealt with the land previously excised

from the indigenous people in that region during the colonial era. He argued that

the appellants’ dignity was tied to their ancestral land. He thus proposed that the

course adopted in the Inter-American cases on similar circumstances be followed

and given effect to.

[34] As regards the remedy, Mr. Biti submitted that the order of unconstitutionality, in

this case, ought to be suspended to enable the legislature to make the relevant

consultations in formulating a comprehensive land tenure system.

[35] The Court noted that the appellants had not sought to impugn s 10 of the

Communal Land Act and whether there existed a cause of action in the matter due

to the failure to attack the particular statutory instrument that set aside the

appellants’ land. Mr Biti submitted that despite the first respondent’s use of

section 10 of the Communal Lands Act in setting aside land for an irrigation

scheme there was a cause of action before the Court. He argued that at the

relevant time of filing in the court a quo, there were three statutory instruments in

terms of which the first respondent had acted when he set aside the land in

contention. Mr. Biti advanced that there thus was a sufficient basis for

challenging the constitutionality of sections 4 and 6 of the impugned Act.

RESPONDENTS’ SUBMISSIONS ON APPEAL

[36] Per contra, Ms. Zvedi submitted that the court's decision a quo could not be

faulted. She submitted that this was a polycentric matter which was the sole
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preserve of the executive and legislature and that the impugned sections did not

infringe the appellants' property rights. In addition, Ms. Zvedi contended that the

vesting of communal lands in the President was aimed at managing development

in the country.

[37] She further submitted that the irrigation scheme development project would not

compel the relocation of the Hlengwe Community from their ancestral lands as

the land earmarked for the project is currently unoccupied. As a result, they

would not be forcibly relocated; hence the issue of violation of rights could not be

sustained.

[38] She posited that in the event that the community was relocated, s 12 of the

Communal Land Act provides for appropriate compensation to be paid to persons

affected by any such relocation. She further submitted that in terms of the

Constitution, a person might be compulsorily deprived of their property in terms

of a law of general application and that the Communal Land Act is such a law.

[39] She argued that the Constitution sanctioned the purpose of the reservation of the

land in question and that it was in the public interest and further for the benefit of

the local community as it paved the way for an irrigation scheme to be set up. Ms.

Zvedi averred that a notice for the reservation of the land was provided and the

Hlengwe people had also participated in the deliberations and hence they had

been able to approach the Court for recourse.

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[40] She argued further that communal land is vested in the President, who has the

authority to permit land usage within the confines of the Communal Land Act. As

a consequence, she submitted that all the procedures were followed.

[41] She contended that the appellants’ failure to impugn s 10 of the Communal Lands

Act left them bereft of a cause of action. Ms. Zvedi insisted that the intended

development would not affect the appellants. She further argued that the

Communal Land Act provided adequate remedies in the unlikely event that they

were dislodged from their homes.

[42] In conclusion, she submitted that the matter was not yet ripe for determination

and that the court a quo had not erred at all by finding that the matter is one of

policy and a political issue. That the law currently vests all communal land in the

President, who may set aside part of such land under the provisions of the

Communal Land Act, was beyond dispute. She argued that whether or not that

land should no longer remain vested in the President and title given to communal

land occupants is a matter for the executive and parliament.

[43] She accordingly moved for the dismissal of the appeal.

ISSUES FOR DETERMINATION

[44] The appellants have raised five grounds of appeal. However, from those grounds,

only three arise issues for determination. The first is whether or not the court a

quo erred in failing to find that sections 4 and 6 of the Communal Land Act were

unconstitutional, as contended by the appellants. Aligned to this is whether the

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appellants' claim to a right to property under s 71 is well founded. The second is

whether or not the court a quo correctly found that the matter was one of policy

and entirely in the hands of the executive and the legislature. The third and last

issue is whether or not the court erred in concluding that the provisions were

reasonable and justifiable in a democratic society and, thus, did not violate the

appellants’ constitutional rights as alleged.

THE LAW ON CONSTITUTIONAL CONSTRUCTION

[45] The Constitution is a statute. As such, it is subject to the established canons of

interpretation. Accordingly, a court must construe the provisions of the

Constitution literally to give effect to its ordinary meaning unless doing so would

result in an absurdity. Where, however, this is not possible, a court is enjoined to

construe the provisions in a manner that gives effect to the rights being protected.

[46] As submitted by Mr. Biti, the Constitution is a product of negotiation between

various stakeholders and thus embodies the values and aspirations of the people

of Zimbabwe. It marks a departure from a colonial past. It has a bill of rights that

is justiciable that is binding on all arms of the State and the citizenry at large.

[47] With these principles in mind, the Court must then examine the constitutional

provision to determine its meaning and interpret the challenged legislation to

decide if the alleged violations have been established. This accords with canons

of interpretation and has been emphasized time and time by the courts in this

jurisdiction in a long line of authorities. The approach by the court was settled by
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GUBBAY CJ in In Re Munhumeso & Ors 1994(1) ZLR 49(S), at 59B-E, where

the learned former Chief Justice said the following:

“Two general interpretational principles are to be applied. The first was

lucidly expressed by Georges CJ in Zimbabwe Township Developers (Pvt) Ltd
v Lou‘s Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S) at 382B-D; 1984 (2) SA 778
(ZS) at 783A-D, to this effect:

‘Clearly a litigant who asserts that an Act of Parliament or a

Regulation is unconstitutional must show that it is. In such a case the
judicial body charged with deciding that issue must interpret the
Constitution and determine its meaning and thereafter interpret the
challenged piece of legislation to arrive at a conclusion as to whether it
falls within that meaning or it does not. The challenged piece of
legislation may, however, be capable of more than one meaning. If that
is the position then if one possible interpretation falls within the
meaning of the Constitution and others do not, then the judicial body
will presume that the law makers intended to act constitutionally and
uphold the piece of legislation so interpreted. This is one of the senses
in which a presumption of constitutionality can be said to arise. One
does not interpret the Constitution in a restricted manner in order to
accommodate the challenged legislation. The Constitution must be
properly interpreted, adopting the approach accepted above. Thereafter
the challenged legislation is examined to discover whether it can be
interpreted to fit into the framework of the Constitution.’

See also Minister of Home Affairs v Bickle & Ors 1983 (2) ZLR 431 (S) at 441E–H,
1984 (2) SA 39 (ZS) at 448F–G; S v A Juvenile 1989 (2) ZLR 61 (S) at 89C, 1990 (4)
SA 151 (ZS) at 167G–H.”

[48] The above authority has been followed and given effect by our courts in

enforcing fundamental rights even before the incidence of the current

Constitution. On several occasions, this court has pronounced upon the proper

approach to constitutional construction embodying fundamental rights and

protections. One of the leading authorities in this regard is Rattigan & ORS v

Chief Immigration Officer & ORS 1994 (2) ZLR 54 (S) where this court said the

following on pp57-58:

“THE RULE OF CONSTITUTIONAL CONSTRUCTION

This court has on several occasions in the past pronounced upon the
proper approach to constitutional construction embodying fundamental
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rights and protections. What is to be avoided is the imparting of a

narrow, artificial, rigid and pedantic interpretation; to be preferred is
one which serves the interest of the Constitution and best carries out its
objects and promotes its purpose. All relevant provisions are to be
considered as a whole and where rights and freedoms are conferred on
persons, derogations therefrom, as far as the language permits, should
be narrowly or strictly construed. See Min of Home Affairs & Ors v
Dabengwa & Anor 1982 (1) ZLR 236 (S) at 243G-244A, 1982 (4) SA
301 (ZS) at 306E-H; Bull v Min of Home Affairs 1986 (1) ZLR 202 (S)
at 210E-211C; 1986 (3) SA 870 (ZS) at 880J-881D; Nkomo & Anor v
A-G, Zimbabwe & Ors 1993 (2) ZLR 422 (S); 1994 (1) SACR 302
(ZS) at 309E-F. A recent reminder that courts cannot allow a
Constitution to be “a lifeless museum piece” but must continue to
breathe life into it from time to time when opportune to do so, was
graphically expressed by Aguda JA in Dow v A-G [1992] LRC (Const)
623 (Botswana Court of Appeal) at 668f-h:

‘―… the over-riding principle must be an adherence to the

general picture presented by the Constitution into which each
individual provision must fit in order to maintain in essential
details the picture which the framers could have painted had
they been faced with circumstances of today. To hold otherwise
would be to stultify the living Constitution in its growth. It
seems to me that a stultification of the Constitution must be
prevented if this is possible without doing extreme violence to
the language of the Constitution. I conceive it that the primary
duty of the Judges is to make the Constitution grow and
develop in order to meet the just demands and aspirations of an
ever-developing society which is part of the wider and larger
human society governed by some acceptable concepts of
human dignity’.

See, too, Hunter et al v Southam Inc (1984) 9 CRR 355 (SC Canada) at 364; Govt
of the Republic of Namibia & Anor v Cultura 2000 & Anor 1994 (1) SA 407
(NmS) at 418F-G.”

[49] The appellants have alleged a violation of several provisions of the Constitution.

In considering the impugned legislative provisions, the task of the Court is to

interpret the Constitution to safeguard and guarantee the protection and

enforcement of enshrined fundamental rights under Chapter 4. Accordingly, the

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Court must adopt an approach that results in an expansive and broad

interpretation of the provisions that protect human rights. It is often said that the

Constitution is a living document, and that the courts must strive to breathe life

into its provisions. In this endeavour the court must have reference to language in

the provision, and, the historical origins of the concept thus enshrined. The

provision has be construed in a manner that must give meaning and purpose to

any other rights associated with any particular provisions. Thus, it is construed to

reflect the citizens' values and aspirations. See in this regard S v Zuma 1995(2)

SA 642, (CC); R v Big Mart Ltd (1985) 18 DLR (4th) 321.

[50] It follows, therefore, that the Court must eschew a narrow and restrictive

approach. Consequently, the Court must consider and interpret all relevant

provisions to give effect to the objects of the Constitution and best serve its

interest and purpose. Following up on the test established in Munhumeso (supra),

a guiding tool for the Court was found in the case of Kawenda v Minister of

Justice, Legal & Parliamentary Affairs $ Ors CCZ 2/22. In that case MAKARAU

JCC stated the following:

“There is an expansive body of jurisprudence from this jurisdiction and

beyond on the approach that a court must take when determining
whether a statute or other law is in conflict with the Constitution. One
begins with an interpretation of the relevant provisions of the
Constitution. The purpose of interpreting the Constitution first is to set
the framework, the backdrop, or the yardstick against which the
impugned law will then be examined or measured. One starts with a
discernment of the law. (See Zimbabwe Township Developers (Pvt)
Ltd v Lous’ Shoes (Pvt) Ltd 1983 (2) ZLR 376 (SC) at 383 F; and
Democratic Assembly for Restoration and Empowerment & Ors v
Suanyama CCZ 9/18).

In interpreting the constitutional provisions, the ordinary rules of

interpretation of statutes apply. The Constitution is but a statute. It is
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however settled that in interpreting constitutional provisions, the

preferred construction “is one which serves the interest of the
Constitution and best carries out its objects and promotes its purpose”.
(See Rattigan and Others v The Chief Immigration Officer and Others
1994(2) ZLR 54. See also Smythe v Ushewokunze and Another 1997(2)
ZLR 544(S)). In particular, when interpreting provisions that guarantee
fundamental rights, the widest possible interpretation is adopted to give
each right its fullest measure or scope.

After interpreting the appropriate provisions of the Constitution, one

then presumes that the impugned law is constitutionally valid. The
presumption of constitutional validity serves firstly to place the onus
on whoever is alleging invalidity to prove such invalidity and,
secondly and, equally important, to guide the court in interpreting the
impugned law in favour of validity where the piece of legislation is
capable of two meanings. The presumption holds that where a piece of
legislation is capable of two meanings, one falling within and the other
falling outside the provisions of the Constitution, the court must
perforce uphold the one that falls within.

The presumption in favour of constitutionality is entrenched in our

law.

As the next and final logical step, the Court must then examine the
effect of the impugned law on the fundamental right or freedom in
question. If the effect of the impugned law is to abridge a fundamental
right or freedom or is inconsistent with the provisions of the
Constitution providing for the right or freedom, the object or subject
matter of the impugned law will be less important or irrelevant. (See
In re Mhunhumeso 1994 (1) ZLR 49 (S)).

If the court finds the impugned law to infringe upon a fundamental

right or freedom or to be inconsistent with the provisions of the
Constitution on a fundamental right or freedom, the court must proceed
to determine whether the infringement or inconsistency is permissible
in terms of s 86 (2) of the Constitution.”

[51] The remarks of MAKARAU JCC are apposite. The steps to be followed have

been settled and it will not add value to the above remarks to make any further

comment. I will therefore proceed accordingly. I commence with the claimed

rights of ownership.
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RIGHT TO OWNERSHIP UNDER SECTIONS 71 AND 72

[52] It seems to me that the fundamental rights upon which the appellants base their

claim for breach of the Constitution have their genesis in an alleged right to

ownership over the piece of communal land which the appellants occupy that has

been set aside under the Communal Land Act. The right is claimed under s 71 of

the Constitution. The appellants link the rights to dignity and life premised on the

right under s 71.

[53] An applicant who alleges a violation of a fundamental right must establish the

existence of the right, that the provision under which the right is claimed applies

to the applicant and that the respondent has violated the right. The appellants have

alleged that they own the land they occupy in their affidavits. They allege that

their right to ownership of this land is guaranteed under s 71 (2) of the

Constitution and they contend that this right has been violated by the setting aside

of 12 940 hectares of the land they occupy. They aver that the vesting of the land

in the President has violated this right to ownership. Furthermore, they claim the

right to ownership due to continued occupation for several hundred years before

the incidence of colonialism.

[54] As a consequence, it seems to me that s 71 is the premise upon which all the other

claimed rights must flow from. It is the provision that must inform the Court of

the existence of the other alleged rights. It is only logical that the inquiry into the

dispute commence with an examination of s 71 and what rights it provides for and

protects. That section provides, in relevant part, as follows:

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“71 Property rights

(1) (not relevant)

(2)Subject to section 72, every person has the right, in any part of
Zimbabwe, “to acquire, hold, occupy, use, transfer, hypothecate,
lease, or dispose of all forms of property, either individually or in
association with others.” (my emphasis)

[55] Since the rights enshrined under s 71(2) are subject to s 72, before the Court can

determine whether or not the appellants can claim a right under s 71(2), the Court

inevitably must construe the provisions of s 72. In casu, the Constitution has

made s 72 the dominant provision, and the two sections must be construed

together. This is in tandem with the canons of interpretation that a court must

construe all the relevant provisions of the Constitution to arrive at an

interpretation that best serves the objects and interests of the Constitution.

Accordingly, the right to ownership of the land claimed by the appellants under s

71(2) must be construed in light of the provisions of s 72.

[56] The section provides as follows:

“72 Rights to agricultural land

(1) In this section— “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—
(a) the keeping or breeding of livestock, game, poultry, animals, or
bees; or
(b) 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;” (my emphasis)
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[57] The appellants seek to assert rights under the Bill of Rights in respect of ancestral

land located within the country's rural areas. The appellants claim that they

survive on the land for all aspects of their livelihood. This is not in dispute; their

land use is in keeping and in accord with the law. As such, it is land that serves

many purposes for the community that occupies it. It is where their residences are

located. It is also land upon which the community farms and is thus a source of

livelihood. They aver that some of the inhabitants do contract farming for Delta

Beverages Corporation and some are cotton producers. Finally, when regard is

had to the meaning ascribed to “agricultural land usage” their land constitutes

farmland in that it is land used for agriculture, including the keeping of animals,

whether domestic or wild, poultry, and all other facets that go with agricultural

land.

[58] Section 72 of the Constitution provides that land located in a communal land or

within the boundaries of an urban local authority or a township is expressly

excluded from the definition of what constitutes agricultural land. It seems to me

that s 72 has not provided for the right to occupy or use agricultural land. What it

has done in subsection (1) is to delineate what constitutes agricultural land. Most

importantly for this dispute, section 72 of the Constitution has stated explicitly

that rights to agricultural land in communal areas are to be governed by the

Communal Land Act.

[59] The appellants have not, either before this Court or even the court a quo, made

any attempt to establish the alleged violation of the right sought to be relied on

under s 71. They have also not linked their alleged right of ownership to the
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provisions of section 72. All that they contend is that the impugned provisions of

the Communal Land Act continue to serve a colonial construct denying local

indigenous people proprietary rights to land, which they allege are enshrined

under section 71.

[60] Given that the land in issue is communal land, it is governed by the Communal

Land Act and the right they assert is specifically to be found in that Act. I am

persuaded that the Constitution itself has excluded in specific terms a right to own

land under s 71 for communal land dwellers except for the specific rights of

occupation and ownership spelt out in the Communal Land Act itself. In turn,

despite s 71 being subject to s 72, section 72 has not spelt out any provisions

related to communal land rights. This means that to assert a right under s 71 as

read with s 72 of the Constitution, regard must be had to the Communal Land Act

itself.

[61] Therefore, this Court must construe all provisions relating to the occupation, use,

and deprivation of land provided in the Act. In my view, sections 4, 6, 8, 9, 10,

and 12 of the Act are relevant and pertinent in establishing the rights of dwellers

in communal land. These sections in my view, confirm or lay to rest the

allegations by the appellants of the violations of their fundamental rights on the

implementation or exercise of statutory power by the President and the second

respondent, respectively.

[62] I therefore proceed to consider the law relating to their right to occupy land in

communal areas.
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RIGHTS OF OCCUPATION UNDER THE COMMUNAL LAND ACT

[63] I start the inquiry by examining s 8 of the Communal Land Act. That section

reads as follows:

“8 Occupation and use of Communal Land for agricultural or

residential purposes
(1) Subject to this Act and the Regional, Town, and Country Planning
Act [Chapter 29:12] and any order issued in terms thereof, a person
may occupy and use Communal Land for agricultural or
residential purposes with the consent of the rural district council
established for the area concerned.
(2) Subject to subsection (3) and the Regional, Town, and Country
Planning Act [Chapter 29:12] and any order issued in terms thereof,
when granting consent in terms of subsection (1), a rural district
council shall—
(a) where appropriate, have regard to customary law relating to the
allocation, occupation, and use of land in the area concerned; and
(a1) consult and co-operate with the chief appointed to preside over the
community concerned in terms of the Traditional Leaders Act
[Chapter 29:17]; and
(b) grant consent only to persons who, according to the customary
law of the community that has traditionally and continuously
occupied and used land in the area concerned, are regarded as
forming part of such community or who, according to such
customary law, may be permitted to occupy and use such land:
Provided that, if no community has traditionally and continuously
occupied and used land in the area concerned, the district council shall
grant consent only to such class of persons as the Minister, by notice in
writing to the district council, may specify.
(3)………… n/a
(4)………….n/a
(5)………….n/a
(6) Where a rural district council is established for any area of
Communal Land or any area of Communal Land is incorporated within
the area of a rural district council, any person lawfully occupying or
using land in such area for agricultural or residential purposes on
the date of such establishment or incorporation, as the case may
be, shall be deemed to have obtained the consent of such rural
district council for the purposes of subsection (1).” (my emphasis)

[64] Thus, s 8 of the Communal Land Act gives rights of occupation to community

members that have occupied the land traditionally and continuously for extended

periods. My reading of the section leads me to conclude that a community

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member in occupation of such land only has to prove that he or she is a member

of a community that has traditionally and continuously been in occupation of such

land. That established an entitlement to occupation. All that is required is that the

person is part of a community that has continuously and traditionally occupied the

land.

[65] However, a community must have services through schools, churches, hospitals,

and other amenities. The law provides the grant of permits for occupation by

persons or parties who are not part of the traditional dwellers. The provision that

permits such rights is found in s 9 of the Act. It provides:

“9 Permits to occupy and use Communal Land

(1) A rural district council may, with the approval of the Minister,
issue a permit authorizing any person or class of persons to occupy and
use, subject to the Regional, Town, and Country Planning Act
[Chapter 29:12] and any order issued in terms thereof, any portion of
Communal Land within the area of such rural district council, where
such occupation or use is for any of the following purposes—
(a) administrative purposes of the State or a local or like authority;
(b) religious or educational purposes in the interests of inhabitants of
the area concerned;
(c) hospitals, clinics, or other such establishments for the benefit of
inhabitants of the area concerned;
(d) hotels, shops, or other business premises;
(e) any other purpose whatsoever which, in the opinion of the rural
district council, is in the interests of inhabitants of the area concerned;”

[66] Although the word “permit” has not been defined in the Act, s 2 defines use as:

“use, in relation to Communal Land, includes the erection of any

building or enclosure, ploughing, hoeing, the cutting of vegetation,
the depasturing of animals or the taking of sand, stone or other
materials therefrom.”
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[67] This definition accords with the purposes or definition of agricultural land in s 72

of the Constitution. The appellants occupy land that they utilise both for

agricultural and residential purposes. Their right to occupy as a community can

only be in accordance with s 8 of the Act. A perusal of the section reveals that the

law recognizes the right of a community to occupy communal land that such a

community has occupied continuously. It does not define the amount or length of

time for such occupation. When regard is had to section 71 (1) of the

Constitution, it becomes clear that the provisions of s 8(1) of the Act are not only

consistent with but give effect to the right to property being claimed by the

appellants. That right is not restricted to ownership. It is broader than ownership.

It is the right to acquire, hold, occupy, use, transfer, hypothecate, lease, or

dispose of all forms of property. The suggestion by the appellants that the right in

s 71 is strictly that of individual private ownership of land wherever situate is not

borne out by the text of the constitutional provision being relied on. The

appellants do not challenge the right accorded under the governing Act. They do

not suggest that this right is not in accordance with that enshrined under s 71(2)

or that they are not permitted to acquire, hold, use, transfer, hypothecate, lease,

or dispose of land within the boundaries of communal land.

[68] It is apparent from the above that the occupation of communal land is entirely

consistent with the occupation of agricultural land under s 72 of the Constitution.

An occupier requires permission or consent from an authority duly empowered by

an Act of Parliament. Thus, there is no discernible difference between an occupier

of communal land and an occupier of agricultural land. This is because both

classifications of land are vested in the State.

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[69] The further contention by the appellants that the right in s 71 relates to individual

ownership of property is incorrect. Individuals or persons can exercise the right in

association with others. In terms of s 8 (2) (b) of the Act, the right of a

community that has traditionally and continuously occupied land located in

communal lands is guaranteed by the denial of permits of occupation to persons

who have not continuously and traditionally been in occupation thereof.

[70] In addition, it is clear that s 8 (2) (a) and (b) accord preference to the customs of

the community that has been in occupation. The special provision ensures that a

rural district council, in granting consent to dwellers, must have regard to

customary law. Therefore, the customs of a community take precedence when the

local authority is making decisions affecting the community itself. In addition,

where a community has been in continuous occupation of communal land, a

district council shall deem that such community has the appropriate consent to

occupy the same.

[71] It, therefore, stands to reason that the same meaning should be ascribed to the

word permit in s 8 of the Communal Land Act. Consequently, contrary to the

position adopted by the appellants, the rights they claim are fully protected under

sections 8 and 9 of the Communal Land Act. The Act is not inconsistent with the

Constitution, as suggested by the appellants. A careful reading of s 8 (2) (b) of the

Act, taken as a whole, establishes that the law has been crafted to protect the

community's rights to occupy communal land.

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[72] It is the case for the appellants that the beneficiaries of the Land Reform

Programme have better conditions and rights in relation to the agricultural land

allocated to them under the aegis of s 72 of the Constitution. The right to

occupation of agricultural land is not found in s 72. It is provided for in the

Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. It provides as

follows in relevant part:

“3 Occupation of Gazetted land without lawful authority

(1) Subject to this section, no person may hold, use or occupy Gazetted
land without lawful authority.”

[73] This provision must be read together with sub-sections (4) and (6) of s 72 of the

Constitution in so far as these subsections set out the status of agricultural land

within the country. Subsections (4) and (6) provide as follows:

“(4) All agricultural land which—

(a) was itemised in Schedule 7 to the former Constitution; or
(b) before the effective date, was identified in terms of section 16B(2)
(a)(ii) or (iii) of the former Constitution;
continues to be vested in the State, and no compensation is payable in
respect of its acquisition except for improvements effected on it before
its acquisition.
(5)………….. (not relevant)

(6) An Act of Parliament may make it an offence for any person,

without lawful authority, to possess or occupy agricultural land
referred to in this section or other State land.”

[74] The above provisions dispel the contention by the appellants that beneficiaries

under the Land Reform Programme have rights of private and individual

ownership over the land they have been allocated. All acquired agricultural land

is vested in the State. Beneficiaries can only occupy land in terms of a document

granting such beneficiaries lawful authority for such occupation. What constitutes

lawful authority has been decided by this Court in several authorities. The

meaning to be ascribed to lawful authority was set out in the seminal judgment by
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this Court in Taylor-Freeme v The Senior Magistrate Chinhoyi & Anor CCZ

10/2014, wherein CHIDYAUSIKU CJ remarked as follows:

“I finally turn to deal with the issue of what constitutes ‘lawful

authority’ and whether the applicant had “lawful authority” to occupy
the farm.
………………………………………………………………………………………

The clear and unambiguous meaning of s 2(1) of the Act is that ‘lawful
authority’ means an offer letter, a permit and a land settlement lease.
Nothing more, nothing less. A letter from the late Vice President, the
Presidium or any other member of the Executive does not constitute
“lawful authority” in terms of the Act.

In the case of Commercial Farmers Union and Ors v The Minister of

Lands and Rural Resettlement and Ors (supra), this Court had this to
say at p 19 of the cyclostyled judgment:

‘The Legislature in enacting the above provision clearly

intended to confer on the acquiring authority the power to issue
to individuals offer letters which would entitle the individuals
to occupy and use the land described in those offer letters. The
draftsman could have used better language to convey the
legislative intent, but there can be no doubt that s 2 of the Act
confers on the acquiring authority the power to allocate land
using the medium of an offer letter. This provision is not in any
way inconsistent with ss 16A and 16B of the Constitution. If
anything, it fits in well with the overall scheme envisaged in
ss 16A and 16B of the Constitution, which is that the acquiring
authority acquires land and reallocates the land so acquired.
The acquisition of land and its redistribution lies at the heart of
the land reform programme. I have no doubt that the Minister
as the acquiring authority can redistribute land he has acquired
in terms of s 16B of the Constitution by means of the following
documents -(a) an offer letter; (b) a permit; and (c) a land
settlement lease. The Minister is entitled to issue a land
settlement lease in terms of s 8 of the Land Settlement Act
[Cap 20:01]. However, if the Minister allocates land by way
of a land settlement lease in terms of s 8 of the Land Settlement
Act he is enjoined to comply with the other provisions of that
Act, such as s 9 which requires him to consult the Land
Settlement Board which obviously has to be in existence. I do
not accept the contention by the applicants that the Minister can
only allocate acquired land by way of a land settlement lease
which he presently cannot do because there is no Land
Settlement Board in existence.

The Minister has an unfettered choice as to which method he

uses in the allocation of land to individuals. He can allocate
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the land by way of an offer letter or by way of a permit or by

way of a land settlement lease. It is entirely up to the Minister
to choose which method to use. I am not persuaded by the
argument that because the offer letter is not specifically
provided for in the Constitution it cannot be used as a means of
allocating land to individuals.

I am satisfied that the Minister can issue an offer letter as a

means of allocating acquired land to an individual.

Having concluded that the Minister has the legal power or

authority to issue an offer letter, a permit or a land settlement
lease, it follows that the holders of those documents have the
legal authority to occupy and use the land allocated to them by
the Minister in terms of the offer letter, permit or land
settlement lease.’

‘Lawful authority’ means an offer letter, a permit and a land settlement lease.
The documents attached to the defence outline are not offer letters, permits or
land settlement leases issued by the acquiring authority. They do not constitute
‘lawful authority’ providing a defence to the charge the applicant is facing.”

[75] It is trite that in any jurisdiction with a justiciable bill of rights, the Constitution is

the supreme law in that jurisdiction. However, over and above that, a constitution

encompasses the citizens' values, aspirations, and expectations. It embodies the

sense of entitlement to the realization of citizens' rights. As such, it constitutes a

compass for the judiciary in adjudicating disputes where rights are enforced

before the courts. Therefore, it stands to reason that in construing the

Constitution, the Court must uphold the community values that the Constitution

and the judiciary individually and jointly serve. The Constitution must therefore

be construed with due regard to its content and the context under which it came

into being.

[76] Both s 72 of the Constitution and the Communal Land Act have delineated land

use, in the case of former agricultural land and communal land respectively. Both
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classifications are specific to land located within the rural areas and where the

communities utilise the land for agriculture: that is to say;

“for horticulture, viticulture, forestry or aquaculture or for any

purpose of husbandry, including—
(a) the keeping or breeding of livestock, game, poultry, animals, or
bees; or
(b) the grazing of livestock or game;.”

[77] This definition of what constitutes “agriculture” accords with that found in the

Constitution in relation to agricultural land. On the other hand, the Act in s 8 (1),

provides that a rural district council may grant consent to any person to occupy

and use Communal Land for agricultural or residential purposes.

[78] It seems to me that the appellants, in contending that their right to occupy land in

the communal areas is lesser than that of beneficiaries under the Land Reform

Programme, have completely misconstrued the constitutional provisions that

apply to the two regimes. The primary purpose of land use in communal land is

agricultural as well as residential. Agricultural land has been codified, and its

occupation and use are determined by the definition accorded to it under the

governing legislation.

[79] On a proper construction, the law on the occupation of State land, which includes

communal land and agricultural land under s 72 of the Constitution, makes it

clear that occupation of land utilised for agricultural purposes must be in terms of

lawful authority under s 72 of the Constitution or the consent of a rural council

under ss 8 and 9 of the Communal Land Act. Thus, occupation is at the pleasure

of the State. It is apparent from the above that the occupation of communal land is
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entirely consistent with the occupation of agricultural land under s 72 of the

Constitution. An occupier in both instances requires permission or consent from

an authority duly empowered by an Act of Parliament.

[80] As the law currently provides, occupiers of agricultural land under the Land

Reform Programme and those occupying pieces of land situate in a communal

area both occupy State land. They are given authority or permission to occupy by

statute. None of the occupants own the land in their own right. Therefore, there is

no apparent difference between occupiers of land found in communal lands and

those in occupation of agricultural land as defined in s 72. Thus, there is no

discernible difference between an occupier of communal land and an occupier of

agricultural land. This is because, as earlier explained, both classifications of land

are ultimately vested in the State.

[81] In addition, authority to occupy communal land by persons who are not part of

the community is not easily granted or is only granted under special

circumstances. It becomes evident that the provisions of the Act are not

inconsistent with the Constitution. There has been no breach of s 71 established

on the papers.

APPLICATION OF INTERNATIONAL LAW

[82] The appellants have, in their quest, made reference to international law and

pronouncements from foreign jurisdictions regarding the right to property,

especially regarding land associated with indigenous communities.

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[83] A constitution is comprised of laws that protect human rights. The law on human

rights is universal in substance as well as application. In keeping with the

generally accepted principle in constitutional law, the Constitution provides that a

court or tribunal seized with a matter where the Bill of Rights is an issue for

determination, that court or tribunal must consider international law. Accordingly,

it may also have regard to foreign law. S 46 is relevant in this regard and provides

as follows:

APPLICATION AND INTERPRETATION OF CHAPTER 4

46 Interpretation of Chapter 4

(1) When interpreting this Chapter, a court, tribunal, forum, or body—

(a) must give full effect to the rights and freedoms enshrined in this
Chapter;
(b) must promote the values and principles that underlie a democratic
society based on openness, justice, human dignity, equality, and
freedom, and in particular, the values and principles set out in section
3;
(c) must take into account international law and all treaties and
conventions to which Zimbabwe is a party;
(d) must pay due regard to all the provisions of this Constitution, in
particular, the principles and objectives set out in Chapter 2; and
(e) may consider relevant foreign law;
in addition to considering all other relevant factors that are to be taken
into account in the interpretation of a Constitution.
(2) When interpreting an enactment, and when developing the common
law and customary law, every court, tribunal, forum or body must
promote and be guided by the spirit and objectives of this Chapter.”

[84] In considering the appellants' rights under the Communal Land Act, the Court

has paid due regard to the principles set out in the foreign judgments that the

appellants referred to and more specifically to the following decisions which

have spelt out such rights are pertinent; viz- the case of the Sawhoyamaxa

Indigenous Community v. Paraguay, the case of the Xákmok Kásek v. Paraguay,

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the Indigenous Community of Yakye Axa v. Paraguay, the Endorois Community v

Kenya, Comm’n No 276/2003, African Commission on Human & Peoples Rights

(2006) and Malawi African Association v Mauritania Comm Nos 54/91, 61/91,

164/97. It is these cases that Mr Biti, for the appellants, suggested should be

followed by this court.

[85] Having considered the authorities in question, the Court finds that they do not

advance the case for the appellants as contended. The Court notes that the

petitioners or claimants in the cases referred to were indigenous peoples in the

different jurisdictions where the disputes emanated from. The facts from the cases

establish that the respective governments had, variously, restricted the petitioners’

access to land, basic essential services, means of livelihood, property rights to

ancestral land, and in one case, had caused the relocation of a community

subsequent to the conversion of their land to a game reserve. The common relief

sought was the resumption of rights to the land or the affording of essential

services by governments while awaiting the determination of disputes. The

common thread running through the authorities is that the governments in

question had either removed the communities from their ancestral lands or

deprived them of their use and enjoyment. In casu, there is a discernible

difference.

[86] The converse is the case in the present dispute. In terms of s 8 of the Act, the

community’s right to occupy is guaranteed. The provisions of the Act are on all

fours with the law applied in the authorities relied upon. The suggestion that the

cases recommended individual ownership of ancestral lands as sought by the

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appellants in casu is not borne out by the facts in the judgments or the

conclusions by the respective tribunals. The appellants, just like the petitioners in

the foreign decisions referred to above, occupy communal land. These areas are

reserved for communities that have been in occupation since time immemorial.

Occupation is not based on individual rights but on collective rights. Their rights

of occupation were established when their ancestors moved onto the lands in

question and set up the communities. This is why s 8 recognizes the right of

people who have traditionally and continuously occupied land in communal

areas. Such rights are distinct and utterly disparate from the rights of holders of

property in urban areas. While rights of occupation and use under the Communal

Land Act are community-based, the rights to own and occupy urban areas are

primarily based on individual rights. The latter comprises a whole spectrum of

categories, which are provided for in s 71 (2) of the Constitution and those rights

are not the premise upon which the appellants approach the Court for relief and it

is not germane to discuss them for the purpose of this dispute. Their cause of

action is primarily based on the community’s right to occupy or own land.

[87] The rider is that the mode of occupation under the Act permits the appellants to

live in harmony with nature and use the land according to their culture and

heritage. They can also embark on all kinds of business and agricultural

enterprises. Those living in places like Borrowdale are restricted to residential

use. The stands are restricted, and land use is strictly regulated. There are massive

differences between the two. By living in communal areas, the appellants have

elected to be bound by the strictures of occupation and use as set out in the

Communal Land Act.

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WHETHER THE APPELLANTS’ RESPECTIVE RIGHTS HAVE BEEN VIOLATED

[88] Turning to the grounds of appeal, the case for the appellants is that s 4 of the Act

is a colonial construct that reinforces the notion that people of African descent or

indigenous people cannot own land in their own right. As such, the provision has

no room in post-independent Zimbabwe because white people can own land,

while Africans are denied this right through the impugned provision. Thus, it

offends the dignity of the people and their humanity. Furthermore, the appellants

allege that the provision confirms the stereotype that Africans are a lower form of

human being than other races.

[89] In addition, it is suggested that s 4 offends against s 71 of the Constitution. It is

contended that the provision denies the appellants their right to own property. By

the same token, it offends against their dignity as a people. Without their land,

they lose their essence as a people. It also militates against their right to culture

under s 63. The intended reservation of part of their land may result in their

displacement to various parts of the country. They will, as a result, be unable to

exercise their cultural beliefs as the Hlengwe-Shangaan people.

[90] As regards s 6, the contention is that its net effect is to expropriate communal

land from its owners without compensation. Both statutory provisions are said to

infringe the rights to life, dignity, equal protection of and benefit of the law, the

right to property, the right to culture and language, and the right to be heard.

Cumulatively, the provisions are said to be in breach of ss 48, 51, 56 (1), 63, 71,

and 68 of the Constitution of Zimbabwe. However, the appellants only motivate

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the violation of four fundamental rights: ss 71 on property rights, 51 on the right

to human dignity, 48 on the right to life, and 56 on equality and non-

discrimination. Despite the citation of those they have not addressed in detail the

other alleged infringements. As a consequence, the Court will only consider the

matter relative to the arguments presented before it.

[91] The occupation of the land issue by the community is not in dispute. What is in

dispute and is of paramount importance is whether or not that occupation has

been interfered with by the measures undertaken by the government to set aside

part of the land for developmental purposes. Implicit in their contention is that the

control of communal land should not be the preserve of the government,

specifically the President, but that ownership thereof should vest in the

community. On that basis, they claim that the community has a right to property

under the Constitution, which is enforceable under s 71 as read with s 72 of the

Constitution. It is this right upon which the appellants hinge all the other rights in

respect of which they seek enforcement by the Court. The approach to the Court

has been predicated on a right that the appellants contend allows them “in any

part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease

or dispose of property” and that this is provided for in s 71.

[92] The appellants contend that the concept of dignity is enshrined in the Constitution

through s 51, which stipulates that every person has inherent dignity in his or her

private and public life and that he or she has the right to have that dignity

respected and protected. They argue that the removal of their community from

their ancestral land without compensation impairs their constitutional right to

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dignity and harms their self-worth, renders them homeless, landless, and destitute,

and jeopardizes their ability to meet the bare necessities of life, including food,

nutrition, clothing, shelter, and water. The allegations surrounding the alleged

violation of the right to life under s 48 are tied to the issue of human dignity by

the appellants. They submitted that the right to dignity is recognized as the

founding source of all other fundamental rights. This is substantiated by s 46 of

the Constitution.

[93] In the case of The State v Willard Chokuramba CCZ 10/19, this court considered

the content of the right to human dignity. MALABA DCJ (as he then was)

posited the following:

“Section 46 of the Constitution is the interpretative provision. It makes

it mandatory for a court to place reliance on human dignity as a
foundational value when interpreting any of the provisions of the
Constitution which protect fundamental human rights and freedoms.
This is because human dignity is the source for human rights in
general. It is human dignity that makes a person worthy of rights.
Human dignity is therefore both the supreme value and a source for the
whole complex of human rights enshrined in Chapter 4 of the
Constitution. This interdependence between human dignity and human
rights is commented upon in the preambles to the International
Covenant on Economic, Social and Cultural Rights (1966) and the
International Covenant on Civil and Political Rights (1966). The
preambles state in express terms that human rights ‘derive from the
inherent dignity of the human person’. They all refer to ‘… the
inherent dignity … of all members of the human family as the
foundation of freedom, justice and peace in the world’. The rights and
duties enshrined in Chapter 4 of the Constitution are meant to
articulate and specify the belief in human dignity and what it requires
of the law.”

[94] It seems to me that the provisions of s 8 of the Communal Land Act above ensure

that the communities occupying communal lands are afforded the right to practice
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their culture and to utilise the land to best advantage. The law does not curtail in

any manner such usage. Therefore, the claim that somehow the actions of the

government have compromised their dignity and right to benefit from the land for

socio-economic reasons is not sustainable. The right accorded to them under s 8

of the Communal Land Act includes the erection of any building or enclosure,

ploughing, hoeing, the cutting of vegetation, the depasturing of animals or the

taking of sand, stone or other materials therefrom.

[95] Despite extensive research, I have not been able to find any authority in which

dignity has been defined as a concept. The general view is that it is impossible to

ascribe any meaning to human dignitas and that it can only be measured in terms

of an alleged infringement of a specific right or injury.

[96] The communities in the communal areas are at large in how they live and use the

land. All the benefits that the appellants aver they obtain from the land are

covered when the use that they can put to the land is adverted to. There is no

limitation on the manner of living or economic enterprise for which such land can

be utilized. Their dignity is fully recognized. Consequently, I do not see any

inconsistencies with s 51 of the Constitution. I am fortified in this view by the

comments by the learned authors I Currie and J De Waal, The Bill of Rights

Handbook, 6 ed (2013), in which, citing an extract from Chaskalson, they posit

the following on the import of the right to dignity:

“As an abstract value, common to the core values of our Constitution,

dignity informs the content of all the concrete rights and plays a role in
the balancing process necessary to bring different rights and values
into harmony. It, too, however, must find its place in the constitutional
order. Nowhere is this more apparent than in the application of the
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social and economic rights entrenched in the Constitution. These rights

are rooted in respect for human dignity, for how can there be dignity in
a life lived without access to housing, health care, food, water or in the
case of persons unable to support themselves, without appropriate
assistance? But social and economic policies are pre-eminently policy
matters that are the concern of government. In formulating such
policies, the government has to consider not only the rights of
individuals to live with dignity, but also the general interests of the
community concerning the application of resources. Individualised
justice may have to give way here to the general interests of the
community.”

[97] In casu, the appellants’ allegation of the infringement of the right to life is said to

arise from the alleged limitation of the socio-economic rights of the Hlengwe

Shaangani community. The appellants cite s 77 of the Constitution to support

their claim to the right to food and water. However, the justiciability of s 77 is

qualified by the provision that the State must take reasonable legislative and other

measures, within the limits of the resources available to it, to achieve the

progressive realization of this right. As such, the Court is unable to fault the

reasoning by the court a quo that the bundle of positive rights flowing from the

right to dignity was a matter of policy.

[98] It appears, however, that the main bone of contention of the appellants is not

concerned with occupation. Instead, their grievance is that the law, as it relates to

rights under communal land, does not permit the inhabitants to own the land in

their personal right. The appellants contend that there is no reason why

community dwellers in their particular situation should not be granted rights to

own pieces of land, as is the case in people who reside in urban areas. Thus, it is

contended that the law is discriminatory against them and violates s 56 (1) of the

Constitution. Section 56 provides:

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“56 Equality and non-discrimination

(1) All persons are equal before the law and have the right to equal
protection and benefit of the law.
(2) Women and men have the right to equal treatment, including the
right to equal opportunities in political, economic, cultural and social
spheres.
(3) Every person has the right not to be treated in an unfairly
discriminatory manner on such grounds as their nationality, race,
colour, tribe, place of birth, ethnic or social origin, language, class,
religious belief, political affiliation, opinion, custom, culture, sex,
gender, marital status, age, pregnancy, disability or economic or social
status, or whether they were born in or out of wedlock.”

[99] The appellants have not specified the subsection they rely on, but from a general

consideration of their argument, it is clear that they are invoking s 56 (1) as the

premise upon which their claim for relief is based. The ambit of s 56 (1) was in

this jurisdiction, in Nkomo v Minister of Local Government, Rural & Urban

Development & Ors CCZ 6/16. ZIYAMBI JCC stated:

“It envisages a law which provides equal protection and benefit for the
persons affected by it. It includes the right not to be subjected to
treatment to which others in a similar position are not subjected. In
order to found his reliance on this provision the applicant must show
that by virtue of the application of a law he has been the recipient of
unequal treatment or protection that is to say that certain persons have
been afforded some protection or benefit by a law, which protection or
benefit he has not been afforded; or that persons in the same (or
similar) position as himself have been treated in a manner different
from the treatment meted out to him and that he is entitled to the same
or equal treatment as those persons.”

[100] The meaning to be ascribed to s 56(1) was reaffirmed in the case of Mupungu v

Minister of Justice, Legal, and Parliamentary Affairs & Ors CCZ 07/21.

Commenting on the nature of the right enshrined in s 56 (1), PATEL JCC posited

the following:
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“As regards s 56 (1), the court a quo opined that this section is wider in
its scope than the equivalent s 18 in the former Constitution. This, so it
reasoned, is because it qualifies the protection and benefit of the law
by the use of the word “equal”. Again, with the greatest of respect, this
reasoning is fatally flawed. The use of the word “equal” does indeed
qualify the protection and benefit of the law, but it does so by
restricting rather than broadening the scope of s 56 (1). What this
provision means is that all persons in a similar position must be
afforded equality before the law and the same protection and benefit of
the law… In essence, s 56 (1) is a non-discrimination clause that
guarantees equality under the law. The applicant a quo (the third
respondent in casu) did not make any allegation of unequal treatment
or differentiation. He did not demonstrate that he was denied the
protection of the law, while others similarly positioned were afforded
such protection. He failed to show that the enactment or amendment of
s 186 of the Constitution operated to discriminate against him in favour
of others in the same or similar position. He thereby failed to establish
that he had been denied equal protection and benefit of the law. In the
event, he entirely failed to establish any infringement of the rights
guaranteed by s 56 (1).”

[101] In casu, the appellants compare their position to that of the indigenous population

who are afforded ownership rights in areas such as Borrowdale. They had

perforce to demonstrate that the law treats dwellers in communal areas differently

from those in urban areas. However, in my view, the critical distinction is that

urban areas do not constitute agricultural land. As such, the allegation of unequal

treatment of persons in a similar position cannot be sustained inasmuch as a

comparison of ownership in Borrowdale or urban areas is concerned.

[102] That the rights to occupy the land they claim are guaranteed under the Communal

Land Act is apparent from the language in s 8 of the Act. What needs clarity is

whether or not our law has no provision for individual ownership of communal

land. It is suggested that the vestiture of the land in the President militates against

several rights. I now consider how the President is empowered to deal with the

land the law has vested in him.

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[103] I turn to consider s 6 of the Communal Land Act, one of the sections the

appellants identified as repugnant. It reads as follows:

“6 Additions to and subtractions from Communal Land

(1) Subject to this Act, the Forest Act [Chapter 19:05] and the Parks
and Wild Life Act [Chapter 20:14], the President may, by statutory
instrument—
(a) declare that any State Land shall form part of Communal Land;
(b) after consultation with any rural district council established for the
area concerned, declare that any land within Communal Land shall
cease to form part of Communal land
(2) Whenever the President has published a declaration in terms of
subsection (1), the Minister shall, by statutory instrument, amend the
instrument published in terms of subsection (1) or (3) of section five, as
the case may be, to reflect such declaration.
(3) Whenever any land ceases to form part of Communal Land in terms
of a declaration published in terms of subsection (1), such land shall
thereupon become State land until it is granted, sold or otherwise
disposed of in terms of this Act or any other law.” (the emphasis is
mine)

[104] Tenure and security, especially for communities residing on communal land

governed by customary law principles, has been a contentious issue during and

after the colonial era. Customary land tenure is regarded as the most insecure land

tenure system currently applicable, given the advancement and recognition of

private land tenure as the best and superior mode of land tenure. A perusal of s 6

(3) of the Communal Land Act puts paid to the contention by the appellants that,

as a community occupying communal land, the law discriminates against them by

not giving them the right to ownership of land as individuals. The provision

empowers the President to excise land from within the boundaries of a communal

area. Once a declaration to that effect has been made, the land becomes State land

which may then be granted, sold, or disposed of in any other manner under the

Communal Land Act or any other law within the country. This provision gives
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the President the authority to pave the way for the ownership of such land in any

of the methods described above. The law enables any person who so wishes to

acquire as owner land that is no longer part of communal land. It is not

unconstitutional, as contended by the appellants. It serves a purpose for the

majority of rural dwellers within the length and breadth of the country. In this

endeavour, it is difficult to discern how s 6, which permits individual ownership

of previously communal land, can be found unconstitutional as alleged.

[105] In contending that the law governing communal land was inimical to rights of

individual ownership, the appellants ought to have invited the Court to construe

this provision against the law that they contend permits private ownership to

pieces of land in urban areas. They have not established that their rights as

dwellers of communal land are discriminatory against them as opposed to those

of urban dwellers. This would have necessitated a comparison of the relevant

laws and an analysis showing discrimination within the law against communal

land dwellers as opposed to urban dwellers. The appellants do not even advert to

the law governing ownership in areas other than communal land. In this regard,

the Court finds that the appellants have not established the allegation that s 6 of

the Communal Land Act violates s 56 (1) of the Constitution.

THE LAND TENURE REGIME

[106] It is appropriate at this juncture to examine the contention that s 4 of the

Communal Land Act bestows rights of ownership over that land on the President.

The Regional Town and Country Planning Act [Chapter 29:12] defines what

ownership as it pertains to property means. An owner means:

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“(a) in the case of land which is vested in the President—

(i) if it is not Communal Land, the Minister responsible for the
administration of the land concerned; or
(ii) if it is Communal Land, the Minister responsible for the
administration of the Communal Land Act [Chapter 20:04];
(b) in the case of land which is not vested in the President—
(i) the person who is registered in the Deeds Registry as the owner of
the property; or
(ii) a local authority or a statutory body to which the ownership of the
property has been transferred or vested by any enactment; or
(iii) the person lawfully holding the property in accordance with any
enactment or agreement with the State or a local authority or a
statutory body which entitles that person to obtain title thereof on the
fulfilment by him of the conditions fixed by or in terms of such
enactment or agreement; and includes—
A. the legal representative of a person referred to in subparagraph (i) or
(iii) of paragraph (b) who has died, has become insolvent, is a minor, is
of unsound mind or is otherwise under disability; or
B. the liquidator of a company which is a person referred to in
subparagraph (i) or (iii) of paragraph (b)”

[107] Land is a national resource and its use and occupation must be regulated. It is,

therefore, only logical that a central authority be vested with the power and the

obligation to ensure that use and domain are held for the good and benefit of the

country's inhabitants. Ownership and control are, as a result, therefore vested in a

responsible party or authority in a nominal capacity. As is evident from the

above, the President merely holds the land in communal areas as a trustee. In

casu, the law has vested ownership of communal land in the Minister responsible

for administering the Act, currently, the Minister of Local Government and

Public Works who is cited herein as the second respondent in this suit. It seems to

me that the contention that s 4 is unconstitutional, given the governing law on

vestiture, is ill-conceived.

The preamble to the Communal Land Act reads:

“AN ACT to provide for the classification of land in Zimbabwe as
Communal Land and for the alteration of such classification; to
alter and regulate the occupation and use of Communal Land; and
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to provide for matters incidental to or connected with the

foregoing.”

[108] In turn, s 4, which is the provision at the centre of this litigation, reads:
“4 Vesting of Communal Land
Communal Land shall be vested in the President, who shall permit it to
be occupied and used in accordance with this Act.”

[109] In defining agricultural land, s 72 of the Constitution makes a positive

pronouncement that excludes communal land and land within the boundaries of

an urban local authority or a township. Therefore, I consider the relevant

provisions of the Urban Councils Act [Chapter 29:15]. Perusal of s 4 of the Act

reveals that land, unless excised to a council, is vested in the President.

Accordingly, the pertinent provisions of s 4 sections are set out hereunder and

read as follows:

“4 Provisions relating to establishment, alteration or abolition of

municipalities, towns, councils and council areas
(1) Whenever the President considers it desirable he may, subject to
this Act, by proclamation in the Gazette, after any local authority
concerned has been consulted, establish a municipality or town and—
(a) shall establish a municipal council or a town council, as the case
may be, therefor; and
(b) shall fix the area of the municipality or town; and
(c) shall assign a name to the municipality or town; and
(d) may, after consultation with the Commission, divide the council
area into any number of wards.
(2) At any time after the establishment of a council the President may,
subject to this Act, by proclamation in the Gazette and after
consultation with the council and (in relation to the division or
redivision of the council area into wards) the Commission—
(a) alter the name of the municipality or town;
(b) divide or redivide the council area into any number of wards, create
one or more additional wards, alter or abolish one or more wards or
abolish the division of the council area into wards;
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(c) alter the boundaries of the council area by adding thereto and
additionally, or alternatively, subtracting therefrom any area, determine
any question arising therefrom and redefine the council area:
(d) abolish the municipality, town or council.
(3) Where a municipality or town is abolished or the whole or any part
of the area of a local authority is included in a council area or a
separate council is established for that area, the President shall—
(a) make such transfer, disposal or apportionment of property, assets,
rights and liabilities; and
(b) …….n/a
(4)…….n/a
(5)……. n/a
(6) Where the President has—
(a) in terms of subsection (3) transferred or apportioned any property
or assets to a municipality or town, the ownership of such property or
assets shall vest in that council with effect from such date as may be
specified by the President and, in the case of immovable property, a
Registrar of Deeds shall, at the request of that council, cause, free of
charge, the name of that municipality or town to be substituted as the
owner of the property concerned in the appropriate register in the
Deeds Registry and on the deeds relating to that property;
(b) given any direction in terms of subsection (3), the person to whom
that direction has been given shall forthwith comply with that
direction.”

[110] Under the sections referred to above, the President is empowered to transfer land

and alter boundaries within municipal areas. Once he has done so, the property

transferred vests in the local authority concerned. Where it involves immovable

property, the municipality then owns the land, with ownership thereof being

registered in the Deeds Registry. This is in accord with the description of owner

that is found in the Regional, Town, Country, and Planning Act.

[111] If regard is had to the provisions of s 4 of the Communal Land Act and the

definition of “owner” that appears in the Regional, Town, and Country Planning

Act, it stands to reason that the claim by the appellants that they are owners in
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their own right of the land they occupy is not justified under the law. It goes

without saying that all land that is not privately owned is State land and is vested

in the President. It becomes evident that all State land is controlled by and the

manner of dealing with it is the preserve of the Executive. The appellants have

not shown that their land is not part of State land. Their claim to its ownership is,

therefore, devoid of merit. It is not consistent with the general law, nor is it

consistent with the Constitution and, in particular, ss 71 and 72. The Constitution

has made all land acquired under the Land Reform Programme State land. This is

evident from a perusal of s 72 (4) of the Constitution, which I have referred to

above.

[112] The appellants suggest that the provisions of the Communal Land Act are

disparate and distinct from those of urban land in that whereas communities in

communal areas are not permitted by law to private individual ownership over

land. In contrast, there is provision for private ownership of land in urban areas

such as Borrowdale. The same right is not accorded to communal land occupiers.

While a fair bit of criticism has been levelled at the legislation, little or no effort

has been made to discuss the alleged infringement. An examination of the law

pertaining to urban land becomes inevitable. The powers exercised by the

President under the Communal Land Act are also found in the Regional, Town,

Country, and Planning Act. That Act provides:

“45 Powers of acquisition

(1) Subject to this Act, land within the area of a local planning
authority may be acquired—
(a) for the implementation of any proposal, including development,
redevelopment or improvement, contained in an operative master plan
or local plan or an approved scheme; or
(b) in terms of section forty-seven or forty-eight.
(2) An acquisition of land in terms of this Act may be by way of—
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(a) purchase, exchange, donation or other agreement with the owner of

the land; or
(b) expropriation in accordance with section forty-six; or
(c) the imposition in a permit of a condition referred to in section
forty-one.
(3) n/a
(4) n/
(5) Any land acquired in terms of this Part by a local planning
authority which—
(a) is a local authority shall vest in such local authority;
(b) is not a local authority shall vest in the President.
(6) n/a

[113] Mr. Biti conceded during an exchange with the Court that the law permitted rights

of ownership of land located in communal lands even though he said this was a

rare occurrence. The provision in 6 (3) of the Act permitting the grant of State

land, therefore, allows the transfer of such land to any person depending on the

reason for transfer. Consequently, it seems that when regard is had to the

provisions of s 6 (3) of the Communal Land Act, the President may declare any

part of communal land as State land and that thereafter such land remains State

land until granted or disposed of in terms of any law.

[114] The designation of land as communal land is not adverse to ownership of such

land once the designation is altered. The law permits the alteration and changes in

boundaries of land classified as communal land. The designation is not cast in

stone. The law governing security of tenure, whether it is urban or rural land, is

consistent. The contention that s 56 has been violated under the law on tenure

relating to rural communities has not been justified in this dispute. Consequently,

the premise upon which the appellants approached the court a quo is without

legal or factual basis.

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[115] The contention by the appellants that the vestiture of communal land in the

President as provided for in s 4 of the Communal Land Act is unconstitutional is

therefore not justified in law. Where land is vested in the President, it is vested in

him as a trustee. Accordingly, it is transferred, excised, or disposed of, as the case

may be, in accordance with the legislative provisions pertaining to the particular

land designation that the law provides.

[116] In sum, therefore, in terms of s 72 (4) of the Constitution, all agricultural land

acquired under the Land Reform Programme remains State land. In terms of s 43

of the Regional, Town and Country Act, any land acquired under that section by a

planning authority that is not a local authority shall vest in the President. In turn, s

4 of the Communal Land Act vests such land in the President. Despite the

provisions that vest land in the President or local authority under the Regional

Town and Country Planning Act, the owner of the land in question for purposes

of the law is the Minister assigned with the administration of the land in terms of

an Act of Parliament. In all other cases, the owner is either the person holding

title deeds or the local authority. Many other specified species of ownership are

not pertinent for discussion.

[117] The inescapable conclusion is that s 4 of the Communal Land Act is not

unconstitutional. It is consistent with other statutory provisions relating to land

tenure and dovetails with s 72 (4) of the Constitution. When read with s 71 (2) of

the Constitution, I find the Communal Land Act is replete with guarantees of

occupation and use for the communities ad infinitum. The rights of the

communities are unfettered. The appellants have sought to impugn sections 4 and
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6 of that Act on the premise that they are a relic from the past. The law on land

tenure does not reflect the racial connotation they allege.

[118] As the alleged infractions by the respondents were based upon a non-existent

right to land under s 71, it follows that all the other alleged rights cannot be

vindicated. In the case of Mutasa and Anor v The Speaker of the National

Assembly and Ors CCZ 9/15, it was held at page 14 that:

“It would be absurd to come to a conclusion that an act done in terms

of the provisions of the Constitution can violate someone’s rights
under the same Constitution. In other words, the applicants could not
have been successful in challenging an act that was sanctioned by the
supreme law of the land.

The Constitution is one document that contains provisions that are

consistent with each other. One provision of the Constitution cannot be
used to defeat another provision in the Constitution. Different
provisions of the Constitution must be interpreted with a view to
ensuring that they operate harmoniously to achieve the objectives of
the Constitution.”

[119] A constitution is an ultimate law in any jurisdiction. It can be amended where its

amendment is provided for. However, it binds all that is subject to it. It cannot be

challenged or impugned, and it cannot be criticized. It represents the will of its

subjects. In this case, the Constitution has found it appropriate to set out the rights

to occupy and own land in communal land within the parameters and the four

corners of the statute governing occupation of that land. The same conditions of

occupation of that land are replicated in the provisions of s 72 of the Constitution.

The Court cannot, in the circumstances, hold that the provisions of the Communal

Land Act are inconsistent with the Constitution. The Constitution itself has given

the Act validity.

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DISPOSITION

[120] The appellants have always occupied communal land. Unless the classification of

such land is altered, they cannot be heard to allege that the law is

unconstitutional. After all, they are not the only community inhabiting communal

land. Given the provisions of ss 71 and 72 of the Constitution, wherein the

property rights relating to communal land are subject to the Communal Land Act,

the rights of the appellants to rural land are to be found in the Act. As all the

alleged violations stemmed from a perceived right under s 71, it stands to reason

that the whole case has no merit and must be dismissed.

[121] Accordingly, it is ordered as follows:

The appeal is dismissed with no order as to costs.

MALABA CJ: I agree

GWAUNZA DCJ: I agree

GARWE JCC: I agree

MAKARAU JCC: I agree

HLATSHWAYO JCC: I agree

PATEL JCC: I agree

Tendai Biti Law legal practitioners for the appellants

Civil Division of the Attorney General’s Office legal practitioners for the respondents