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

The appellant occupied immovable property called Umguza Agricultural Lots of Umvutcha and Reigate, registered under title deed 3188/83. In 1999, the land was incorporated into the City of Bulawayo through S.I 212 of 1999, thereby becoming urban land. On 25 August 2000, the land was listed in the Gazette Extraordinary under General Notice 405 of 2000 as agricultural land subject to acquisition. The first respondent subsequently caused endorsement of caveats 844/2000, 77/2019 and XN 26/2017 on the deed of transfer. The appellant obtained a High Court order in HC 2291/08 declaring the land was not subject to acquisition or resettlement. The appellant then applied to the High Court in 2022 to uplift the caveats. The High Court granted the application, holding it had jurisdiction as the matter concerned caveat removal, not land acquisition. The respondents appealed to the Supreme Court, which found the land had been properly acquired by the State under s 16B of the former Constitution, that the land was now State land, and that the courts' jurisdiction was ousted by s 16B(3).

• Whether the Supreme Court erred in holding that the High Court lacked jurisdiction under s 16B(3) of the former Constitution (now s 72 of the 2013 Constitution) to determine an application for removal of caveats placed over urban land
• Whether urban land can be acquired by the State under s 16B of the former Constitution which deals with acquisition of agricultural land
• Whether the jurisdictional ouster in s 16B(3) applies to urban land
• Whether the court retains jurisdiction to determine if land acquisition was lawful under s 16B(2)(a)
• Whether the appellant's constitutional rights to property (s 71) and equal protection of the law (s 56) were violated

1. The appeal succeeds with no order as to costs. 2. The whole judgment of the Supreme Court is set aside and substituted with: "The appeal is hereby dismissed with costs."

Section 16B of the former Constitution (now s 72 of the 2013 Constitution) applies exclusively to agricultural land and does not extend to urban land. The definition of "agricultural land" expressly excludes "land within the boundaries of an urban local authority or within a township". The jurisdictional ouster in s 16B(3) applies only to challenges to the acquisition of agricultural land; it does not oust the court's jurisdiction over urban land matters. Courts retain jurisdiction to determine whether a purported land acquisition complies with the constitutional requirements of s 16B(2)(a) as a jurisdictional question, even where s 16B(3) applies. Once land has been proclaimed as urban land through a statutory instrument, it cannot subsequently be acquired as agricultural land under the land reform program. The application of agricultural land acquisition procedures to urban land violates the constitutional right to equal protection and benefit of the law under s 56.

The Court made observations reinforcing the principle from Mike Campbell that s 16B(3) does not remove the right of access to judicial review where expropriation is, on the face of the record, not in terms of s 16B(2)(a). The Court emphasized that the duty of courts is to uphold the Constitution and the law, and if a purported acquisition is not in accordance with s 16B(2)(a), the court has a duty to declare it null and void. The Court noted that the Minister of Lands has no authority over urban land and cannot allocate urban land for agricultural purposes. The Court also observed that urban land title differs from agricultural land title, and once land ceases to be agricultural land by proclamation, any agricultural offer letters fall away by operation of law. The Court commented that had the respondents believed the proclamation making the land urban was issued in error, the proper remedy would have been to issue a corrective proclamation, not to subsequently gazette it as agricultural land for acquisition.

This case is significant in Zimbabwean constitutional and land law as it clarifies the scope and limits of the State's power to acquire land under s 16B of the former Constitution and s 72 of the 2013 Constitution. The judgment establishes that the land acquisition provisions apply exclusively to agricultural land and cannot be extended to urban land. It protects urban landowners from improper acquisition under agricultural land reform legislation. The case reinforces the principle that constitutional provisions must be interpreted according to their express terms and that courts retain jurisdiction to determine whether land acquisitions comply with constitutional requirements, even where jurisdictional ouster clauses exist. The decision also affirms the right to equal protection of the law in property matters and prevents discriminatory application of land acquisition laws. It clarifies the relationship between urban planning legislation and land reform legislation, establishing that once land is proclaimed as urban land, it falls outside the agricultural land acquisition framework.