Liziwe Museredza and 385 Others v Minister of Agriculture, Lands, Water and Rural Resettlement and Others

The applicants (386 persons) resided on agricultural land known as Kingsdale of Johannesburg in the District of Hartley, apparently as beneficiaries of Zimbabwe's land reform programme. The land had previously been owned by Pieter Nicholas Nel (now deceased) and was listed in Schedule 7 of the repealed Constitution. In 2015, the Constitutional Court issued a consent order in case CCZ 43/15 declaring the land to be private property vesting in Maparahwe Properties (Private) Limited (the second respondent), ordering the Minister to withdraw acquisition proceedings, and authorizing eviction of persons in illegal occupation except registered members of a housing cooperative. The applicants, who were not parties to the 2015 proceedings, sought rescission of that order under Rule 449 of the High Court Rules 1971 (as read with Rule 45 of the Constitutional Court Rules 2016), arguing that the land remained State land by virtue of section 72(4)(a) of the Constitution and that the Court's declaration was unconstitutional. The applicants filed their application without first seeking leave of the Court.

• Whether leave of the Constitutional Court is required before bringing an application to rescind an earlier order of the Constitutional Court under Rule 449 of the High Court Rules
• Whether Rule 21 of the Constitutional Court Rules is exhaustive regarding matters that do not require leave
• Whether the gate-keeping function of applications for leave applies to matters within the exclusive jurisdiction of the Constitutional Court
• The distinction between jurisdiction of a court and access to that jurisdiction
• The interpretation and application of section 167(5) of the Constitution regarding direct access to the Constitutional Court

The application was struck off the roll with no order as to costs. The Court ruled that the applicants were required to seek leave before bringing their Rule 449 application and, having failed to do so, the matter could not proceed.

An application to rescind a prior order of the Constitutional Court under Rule 449 of the High Court Rules (as applied through Rule 45 of the Constitutional Court Rules) requires leave of the Court before it may be instituted, even though only the Constitutional Court has jurisdiction to rescind its own orders. Such applications constitute fresh causes introducing new parties, new facts, and new legal arguments, and are not merely procedural matters arising during the course of existing litigation. Applications for leave serve a gate-keeping function to ensure that the Court exercises its constitutional review powers only in cases where it is in the interests of justice to do so. The fact that a matter falls within the exclusive jurisdiction of the Constitutional Court does not automatically dispense with the requirement for leave where the matter is not listed in Rule 21 and does not arise as a procedural incident of existing litigation.

Makarau JCC observed that the Constitutional Court Rules have developed a distinct practice and procedure for constitutional litigation with fine nuances that litigants and legal practitioners must familiarize themselves with. The Court noted that it would be illogical to require leave for routine procedural applications during litigation (such as postponements, joinder, amendments, consolidation, or recusal applications) merely because they are not specifically listed in Rule 21 - such matters arise from the Court's inherent jurisdiction under section 176 to protect and regulate its processes. The Court also observed that the exact nature of the applicants' tenure on the disputed land (whether as land reform beneficiaries) was not clearly described but was ultimately not material to the preliminary point. The judgment referenced the filtering mechanism articulated in Lytton Investments (Private) Limited CCZ 11/18, emphasizing that leave requirements prevent abuse of constitutional remedies.

This judgment clarifies fundamental principles regarding access to the Constitutional Court of Zimbabwe. It establishes that: (1) Rule 21 of the Constitutional Court Rules is not exhaustive but its exceptions are limited to routine procedural matters arising during litigation; (2) Applications to rescind prior orders under Rule 449, even though within the exclusive jurisdiction of the Constitutional Court, require leave because they constitute fresh causes with new parties and new facts/arguments; (3) The requirement for leave serves a crucial gate-keeping function to prevent abuse of direct access even in matters of exclusive jurisdiction; (4) There is a clear distinction between a court's jurisdiction (substantive law) and access to that jurisdiction (procedural law governed by court rules); (5) Section 167(5) of the Constitution does not itself grant direct access without leave but empowers the making of Rules to regulate such access. The judgment reinforces that constitutional litigation has developed distinct practice and procedure requiring specialized knowledge, and that access to the Constitutional Court must be regulated to ensure the interests of justice while preventing the floodgates from opening.