Gwenzi Mhondoro v The Minister of Lands, Agriculture Water and Rural Resettlement and The Attorney General of Zimbabwe

The applicant was allocated a farm (subdivision 6 of Sholliver in Zvimba District) on 13 October 2005 under the land reform programme in terms of the Agricultural Land Settlement Act. The farm was previously owned by Broxifield Enterprises Private Limited, an indigenous-owned company, whose land had been compulsorily acquired by the State. On 13 March 2020, the first respondent promulgated the Land Commission (Gazetted Land) (Disposal In Lieu of Compensation) Regulations, 2020 (S.I. 62 of 2020) in terms of section 21 as read with section 17 of the Land Commission Act. The regulations provided a mechanism for indigenous Zimbabweans and persons protected under BIPPA whose agricultural land was compulsorily acquired to reclaim title to their former land. The applicant feared that the former owners could apply under sections 3 and 4 of the regulations to reclaim the farm, which would result in his eviction without recourse. He challenged the constitutional validity of the regulations on multiple grounds.

• Whether the Land Commission (Gazetted Land) (Disposal In Lieu of Compensation) Regulations, 2020 (S.I. 62 of 2020) are ultra vires section 21 as read with section 17 of the Land Commission Act
• Whether the regulations are inconsistent with section 293 of the Constitution of Zimbabwe which requires procedures for alienation and allocation of agricultural land by the State to be prescribed through an Act of Parliament
• Whether the regulations violate section 72(2)(3) and (4) of the Constitution concerning State ownership of agricultural land
• Whether the regulations violate section 71(2) and (3) of the Constitution concerning the right to property
• Whether the regulations violate sections 68 and 69 of the Constitution concerning the right to administrative justice and the right to be heard
• Whether the regulations violate section 295 of the Constitution concerning compensation for previously acquired agricultural land

1. The application for a declaratur succeeds. 2. The Land Commission (Gazetted Land) (Disposal in lieu of Compensation) Regulations, 2020 (SI 62 of 2020) are ultra vires section 21 as read with section 17 of the Land Commission Act [Chapter 20:29], and section 293 of the Constitution and consequently invalid. 3. Each party shall bear its own costs.

Where the Constitution expressly provides that procedures for the alienation and allocation of agricultural land by the State must be prescribed by an Act of Parliament (section 293(3)), the Minister cannot make regulations under enabling legislation to provide for such alienation and allocation. Regulations made purporting to regulate the alienation of agricultural land, when the Constitution requires such procedures to be in an Act of Parliament, are ultra vires the enabling Act and unconstitutional. The correct approach to constitutional interpretation is to properly interpret the Constitution first to ascertain its true meaning, and only thereafter to assess whether the challenged legislation fits within the constitutional framework - the Constitution is not stretched to accommodate challenged legislation. Section 17 of the Land Commission Act, which deals with lease or alienation of State land, must be read in harmony with sections 289, 293 and 295 of the Constitution to avoid rendering it unconstitutional. Alienation of land and procedure for alienation cannot be divorced - alienation must be carried out through well-defined procedures and cannot occur in a vacuum.

The court noted that it would be pointless to interrogate other perceived constitutional violations (including alleged violations of sections 72, 71, 68, and 69 of the Constitution) once it had determined that the regulations lacked any legal foundation. The court also observed that courts are slow to make orders of costs in public interest litigation, indicating that this was properly characterized as a public interest case. The court acknowledged the provisions of section 175 of the Constitution as read with section 31 of the Constitutional Court Rules regarding further progression of the matter in connection with confirmation of the order of constitutional invalidity, though did not elaborate on the specific steps required. The court also implicitly recognized the legitimacy of the government's concern about addressing anomalies in the land reform programme where indigenous Zimbabweans' land was inadvertently acquired, but held that such remedial measures must be pursued through constitutionally proper channels.

This case is significant in Zimbabwean constitutional jurisprudence as it affirms the supremacy of the Constitution over subordinate legislation and establishes clear limits on executive regulation-making powers concerning agricultural land. The judgment reinforces the principle that where the Constitution expressly requires certain procedures to be prescribed by Act of Parliament (as in section 293(3) regarding alienation of agricultural land), the executive cannot circumvent this requirement by making regulations under enabling legislation. The case demonstrates the court's approach to constitutional interpretation, emphasizing that the Constitution must be interpreted first to ascertain its true meaning, and then challenged legislation must be assessed to determine if it fits within the constitutional framework. The judgment also highlights the doctrine of reading statutes in harmony with the Constitution to avoid unconstitutionality. Furthermore, the case is important in the context of Zimbabwe's land reform programme, clarifying that while the government has legitimate interests in addressing anomalies in land acquisition (such as inadvertent acquisition of indigenous-owned land), such remedial measures must be implemented through proper constitutional channels. The court's recognition of this as a public interest matter also contributes to jurisprudence on costs in constitutional litigation.