Clovet Consultants (Pvt) Ltd and Others v Minister of Lands and Rural Resettlement and Another

The second and third applicants were husband and wife, directors and shareholders of the first applicant company. They purchased all shares in the first applicant on 15 June 1998. On 31 December 1998, the first applicant acquired Subdivision C of Elvington farm measuring 286.0621 hectares, which was registered under Deed of Transfer No. 12064/98. The applicants were in peaceful possession from 1998 to 2013. In 2013, the second respondent applied for land allocation and identified the farm as vacant. The first respondent erroneously issued offer letters to the second respondent and six other beneficiaries on 17 July 2013, believing the farm was already state land, though it had never been gazetted. Disputes ensued between the parties. Upon realizing the error, the first respondent published notice of compulsory acquisition in the Government Gazette on 30 January 2015, and issued new offer letters on 25 February 2015 to the second respondent and the other beneficiaries. The applicants protested and sought review of the compulsory acquisition.

• Whether the compulsory acquisition of agricultural land under section 72 of the Constitution requires prior notice to the landowner and judicial confirmation as required under section 71 for other property
• Whether section 3 of the Administrative Justice Act applies to compulsory acquisition of agricultural land under section 72 of the Constitution
• Whether the acquisition was tainted with illegality, irrationality, or procedural impropriety sufficient to warrant judicial review
• Whether the acquisition was motivated by bias, malice, bad faith, corruption, collusion, or favouritism
• Whether agricultural land owned by indigenous black farmers can be compulsorily acquired under the land reform programme

The application for review and declaratory relief was dismissed with costs.

Section 72 of the Constitution is the exclusive provision governing compulsory acquisition of agricultural land for public purposes including settlement, and it operates independently of section 71 which applies to other property. Compulsory acquisition of agricultural land under section 72(2) is effected by publication of a notice in the Gazette identifying the land and stating the purpose, whereupon title vests in the State with full title from the date of publication. The procedural requirements of section 71(3) - including prior notice to affected persons, payment of compensation for the property, and judicial confirmation if contested - do not apply to agricultural land acquisitions under section 72. The proviso to section 5(1) of the Land Acquisition Act confirms that for 'specially Gazetted Land' (agricultural land), publication in the Gazette and local newspaper constitutes sufficient notice. The Administrative Justice Act does not apply to compulsory acquisition of agricultural land as section 72 of the Constitution specifically governs such acquisitions. Compensation under section 72 is payable only for improvements made on the land prior to acquisition, not for the land itself. Such acquisitions can be challenged on grounds of illegality, irrationality, or procedural impropriety, but not on grounds of discrimination under section 56 or for compensation for the land (section 72(3)).

The court observed that section 72(7) of the Constitution, which refers to the historical dispossession of land under colonial rule and the obligation of the former colonial power to pay compensation, appears to guard against compulsory acquisition of land owned by indigenous black people. However, the court declined to fully ventilate this provision as it was not the thrust of the applicants' argument and was not properly pleaded as a ground for review or fully argued by the parties. The court noted that both counsels submitted there was no law prohibiting compulsory acquisition of land owned by indigenous black people, but did not make a definitive finding on this issue. The court also observed that there is nothing inherently improper about an applicant for land allocation identifying idle or vacant land to the acquiring authority, as the authority will conduct its own investigations to verify the position.

This case is significant in Zimbabwean land law as it clarifies the constitutional framework for compulsory acquisition of agricultural land under the land reform programme. It establishes that section 72 of the Constitution operates as a complete code for acquisition of agricultural land, distinct from and not subject to the procedural requirements of section 71 which governs other property. The judgment confirms that such acquisitions do not require prior notice to landowners, compensation for the land itself (only improvements), or judicial confirmation. It also establishes that the Administrative Justice Act does not apply to such acquisitions. The decision reinforces the State's wide discretion in acquiring agricultural land for resettlement purposes and limits the grounds upon which such acquisitions can be challenged to illegality, irrationality, and procedural impropriety (excluding discrimination under section 56 and claims for compensation for land). The judgment also hints at, but does not decide, that section 72(7) may protect land owned by indigenous black farmers, leaving this question for future cases.