Jerania Antonyo and 24 Others v Euna Makamure

The respondent held a valid offer letter for Subdivision One, Ameva Extension in Chegutu (approximately 282.08 hectares), issued by the Ministry of Lands and Rural Resettlement on 24 March 2009, and had been in occupation since then. The appellants were former employees of the farm before it was gazetted for resettlement and had been resident on the land since before the land reform programme. On 30 October 2020, the respondent issued summons for eviction of the appellants. The appellants defended on grounds that: (1) they had been left by the previous owner when he lost title during land reform; (2) they entered into an agreement with the respondent to remain on the property; and (3) eviction without alternative accommodation would infringe their constitutional rights against arbitrary eviction. The respondent applied for summary judgment, which the Magistrates Court at Chegutu granted on 14 October 2021. The appellants appealed to the High Court.

• Whether the court a quo erred in failing to give credence to constitutional defences raised by the appellants, including freedom from arbitrary eviction (s 74), right to adequate shelter (s 28), and children's right to shelter (s 81(1)(f)) under the Constitution of Zimbabwe
• Whether the court a quo erred in failing to uphold the principle that what is not denied in affidavits is admitted, regarding the alleged agreement between parties to co-exist
• Whether an oral agreement for peaceful co-existence constitutes a bona fide defence to eviction proceedings
• Whether the appeal was properly constituted or was in fact a constitutional application disguised as an appeal
• Whether the appellants had lawful authority to occupy the gazetted land in terms of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]

The appeal was dismissed in its entirety. The appellants were ordered to pay costs.

1. Occupiers of gazetted land must possess lawful authority as defined in section 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] (i.e., an offer letter, permit, or land settlement lease) to lawfully occupy such land. Alleged oral agreements for peaceful co-existence do not constitute lawful authority and provide no defence to eviction by a lawful offer letter holder. 2. Constitutional issues cannot be raised for the first time on appeal when they were not placed before or determined by the lower court. An appeal cannot be used as a disguised constitutional application under section 85 of the Constitution. 3. The constitutional duty to provide alternative accommodation before eviction rests with the state and administrative authorities, not with private citizens who are lawful holders of land. 4. Eviction pursuant to a court order after following due legal process does not constitute "arbitrary eviction" prohibited by section 74 of the Constitution of Zimbabwe.

The court observed that the appellants had "deliberately sat on their hands and done nothing all along to secure accommodation from the relevant authorities the moment they realized the piece of land on which they were staying had been legally allocated to the respondent." While acknowledging the general principle from Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd that a question of law may be advanced for the first time on appeal if it involves no unfairness to the opposing party, the court indicated this principle did not apply where voluminous constitutional issues are introduced at appeal stage that require the respondent to respond to matters never litigated below. The court also noted that even if the allegation of peaceful co-existence were true (which was traversed and unproved), it would provide no legal basis to resist eviction by a lawful offer letter holder.

This case clarifies important principles in Zimbabwean land law and constitutional litigation: (1) It confirms that occupiers of gazetted land must have lawful authority as defined in the Gazetted Lands (Consequential Provisions) Act (offer letter, permit, or land settlement lease), and oral agreements or peaceful co-existence do not constitute lawful authority. (2) It establishes that constitutional challenges cannot be raised for the first time on appeal when they were not before the lower court - parties cannot use an appeal as a vehicle to introduce a constitutional application. (3) It distinguishes between state obligations and private citizen obligations regarding the constitutional right to shelter and freedom from arbitrary eviction - the duty to provide alternative accommodation rests with administrative authorities, not private landholders. (4) It confirms that following legal eviction procedures (obtaining a court order) does not constitute arbitrary eviction under s 74 of the Constitution. The case is significant in the context of Zimbabwe's land reform programme and the rights of former farm workers on resettled land.