Margaret Zinyemba v The Minister of Lands and Rural Resettlement and Yakub Mohamed

The Government compulsorily acquired Lot 1 of Manyewe Farm in 2002. On 10 July 2008, the applicant was given an offer letter to occupy, hold and use the entire Lot 1 measuring 464 hectares. In 2013, the Minister of Lands and Rural Resettlement decided to subdivide the land into two portions (210 and 254 hectares). On 23 July 2013, the applicant was advised of the withdrawal of her original offer letter and was offered subdivision 2 (210 hectares), while subdivision 1 (254 hectares) was allocated to the second respondent. The applicant was served with the notice on 11 November 2013. She refused the new offer, claiming the allocated land was rocky and not arable. She initially applied to the High Court for review but withdrew the application after opposition on jurisdictional grounds. She then approached the Constitutional Court alleging violation of her rights under sections 68(1), 71(3) and 291 of the Constitution, arguing she was not given notice or an opportunity to be heard before the withdrawal of the offer letter.

• Whether the Constitutional Court was the proper forum for the application or whether it should have been made to the Administrative Court
• Whether section 291 of the Constitution enshrines a fundamental right capable of founding an application under section 85(1)(a) of the Constitution
• Whether section 71(3) of the Constitution applied to the withdrawal of an offer letter for State land
• Whether the existence of the Administrative Justice Act providing remedies for administrative conduct precluded direct reliance on section 68 of the Constitution
• The relationship between constitutional rights to administrative justice and the statutory framework giving effect to those rights

The application was dismissed. No order as to costs was made.

Where an Act of Parliament (the Administrative Justice Act) validly gives full effect to the fundamental rights to administrative justice enshrined in section 68 of the Constitution, including substantive and procedural requirements for protection of those rights, the Act must govern the process for determining whether specific administrative conduct meets the standards of administrative justice. Section 68 of the Constitution cannot found a complaint under section 85(1) when there is enabling legislation that comprehensively gives effect to the constitutional rights. The constitutional rights to administrative justice play an indirect rather than direct role once the Administrative Justice Act is in force. Only provisions in Chapter 4 of the Constitution enshrine fundamental rights enforceable under section 85(1)(a); section 291, being in Chapter 16, does not enshrine such a right.

The Court observed that section 291 was intended to put beyond doubt that the coming into effect of the new Constitution did not terminate existing rights to occupy or use agricultural land, and did not interfere with the rights and obligations of parties under leases or agreements governing occupation and use of State land. The Court noted that the meaning of section 68 had "escaped the applicant's legal representative," suggesting poor understanding of the constitutional framework. The Court also commented favorably on South African jurisprudence regarding the relationship between constitutional administrative justice rights and enabling legislation (PAJA), citing Currie and De Waal's Bill of Rights Handbook on principles of avoidance and subsidiarity. The Court noted that exceptional circumstances in which an applicant can rely on constitutional rights to administrative justice (such as challenging constitutional validity of the Act or seeking constitutional interpretation) did not apply to the applicant.

This case is significant in Zimbabwean constitutional law as it clarifies the relationship between constitutional rights to administrative justice enshrined in section 68 of the Constitution and the Administrative Justice Act that gives effect to those rights. It establishes that where comprehensive enabling legislation exists that fully gives effect to constitutional administrative justice rights, litigants must pursue remedies under that legislation rather than directly invoking the constitutional provision. The case affirms the principles of avoidance and subsidiarity in constitutional litigation, requiring resort to statutory remedies before constitutional remedies. It also clarifies that section 291 of the Constitution does not enshrine a fundamental right enforceable under section 85(1)(a) as it falls outside Chapter 4. The judgment demonstrates the influence of South African constitutional jurisprudence on Zimbabwean administrative law, particularly regarding the Promotion of Administrative Justice Act (PAJA).