Joseph 'Ginger' Chinguwa and Others v The President of the Republic of Zimbabwe and Others

The Applicants challenged a new land tenure policy announced by the President on 8 October 2024, under which title deeds would be issued to beneficiaries of the Land Reform Programme in respect of agricultural land previously acquired by the State. The Applicants argued that this policy was unconstitutional and violated Sections 72(5), 293(3), and 297(1)(a) of the Constitution. They contended that all agricultural land vested in the State cannot be disposed of without an Act of Parliament as defined in Section 293(3), that all previous title deeds for acquired agricultural land were cancelled under Section 72(5), and that any land tenure policy must be approved by the Zimbabwe Land Commission established under Section 296 of the Constitution. The Respondents opposed the application, arguing that the Land Commission Act [Chapter 20:29] was the Act of Parliament contemplated by Section 293(3), that the executive is not bound by the recommendations of the Zimbabwe Land Commission, and that the policy was introduced following consultation as required by Section 17 of the Land Commission Act and was consistent with Section 292 of the Constitution which obliges the State to promote security of land tenure.

• Whether the land tenure policy introduced by the first Respondent is ultra vires the provisions of Sections 72(5), 293(3) and 297(1)(a) of the Constitution
• Whether old title deeds in respect of agricultural land acquired by the State must be declared cancelled
• Whether the first Respondent introduced the land tenure system without complying with Section 293(3) of the Constitution
• Whether alienation of agricultural land requires approval of the Zimbabwe Land Commission

The application was dismissed with costs.

The binding legal principles established are: (1) Under Section 17 of the Land Commission Act read with Section 339(2) of the Constitution, "consultation" with the Zimbabwe Land Commission does not require the executive to obtain approval or follow the Commission's recommendations when alienating State agricultural land. (2) Section 297(3) of the Constitution subordinates the Zimbabwe Land Commission's functions to ministerial policy directives. (3) The Land Commission Act [Chapter 20:29], enacted on 26 February 2018, constitutes the Act of Parliament required by Section 293(3) of the Constitution to prescribe procedures for alienation and allocation of agricultural land. (4) Section 72(5) of the Constitution, which requires cancellation of title deeds upon compulsory acquisition of agricultural land, does not prohibit the State from subsequently issuing new title deeds to new owners under Section 293(1). (5) Section 292 of the Constitution obliges the State to take measures, including legislative measures, to enhance security of land tenure, which authorizes policies facilitating the issuance of title deeds to land reform beneficiaries. (6) An application must stand or fall on its founding affidavit; new grounds cannot be introduced in replying papers to the prejudice of respondents who have no opportunity to file further affidavits.

The court observed that if the Applicants believed the provisions of the Land Commission Act were insufficient to capture all principles in Section 289 or procedures in Section 293(2) of the Constitution, they would need to lodge a fresh application raising those specific grounds. The court also noted that it would not make declaratory orders regarding the undisputed legal position (that old title deeds were cancelled under Section 72(5)), as doing so would be a futile academic exercise with no practical effect, citing Johnson v AFC 1995 (1) ZLR 65 (S). The court emphasized that for a declaratory order under Section 14 of the High Court Act, an applicant must have a direct and substantial interest that could be prejudicially affected, and the court will not decide abstract, academic or hypothetical questions. The court also noted that the sixth Applicant's standing (locus standi) was raised as a preliminary point by Respondents but not pursued in heads of argument or oral submissions, leading to an inference that the point was abandoned.

This case clarifies important principles regarding Zimbabwe's land reform framework under the 2013 Constitution: (1) It confirms that the Zimbabwe Land Commission's role is consultative rather than decisional, and that the executive retains ultimate authority over land policy subject to ministerial directives. (2) It establishes that the Land Commission Act [Chapter 20:29] fulfills the constitutional requirement in Section 293(3) for an Act of Parliament to prescribe procedures for alienation and allocation of agricultural land. (3) It affirms that the State's constitutional obligation under Section 292 to enhance security of land tenure authorizes the issuance of new title deeds to beneficiaries of land reform, notwithstanding the cancellation of previous title deeds under Section 72(5). (4) It reinforces procedural rules that an application must stand or fall on its founding affidavit and that new grounds cannot be introduced in replying papers. The judgment provides important guidance on the balance between the executive's land policy-making power and the consultative role of independent commissions in Zimbabwe's constitutional framework.