Michael Peter Hitschmann v City of Mutare and The Town Clerk of City of Mutare

The applicant, a resident of Mutare, applied twice (on 2 September 2014 and December 2014) to be allocated a specific piece of land described as an infill area bordering Arcadia Road, Muvambi Road, Cecil Kops Nature Reserve and an access road. The respondents initially advised the land was reserved for Zimbabwe Republic Police, then later stated it was 'an open space not subject to sale'. The applicant subsequently received information that the respondents had sold the land to certain individuals. The applicant believed he had a right to participate in the sale process and suspected the respondents failed to follow procedures under the Urban Councils Act in alienating the land. The applicant requested access to documents from the respondents to verify compliance with statutory requirements, which request was refused. The applicant then approached the court for an order compelling disclosure of records relating to the sale. During the hearing, the applicant amended his claim to only seek documents showing compliance with statutory procedures, dropping the request for information about third party purchasers.

• Whether the applicant failed to exhaust domestic remedies under the Access to Information and Protection of Privacy Act (AIPPA) before approaching the court
• Whether the applicant was entitled to access information held by the respondents as a public body
• Whether the requested information was protected from disclosure under sections 14, 19 and 25 of AIPPA
• Whether the applicant demonstrated that the information was required for the exercise or protection of a right as required under section 62(2) of the Constitution and AIPPA
• Whether the applicant had a right to participate in the land alienation process under section 152 of the Urban Councils Act

1. The respondents shall within fourteen (14) days furnish the applicant with records and documents showing compliance with section 152(b) of the Urban Councils Act, namely the advertisement and notice published relating to the sale and alienation of the land in question. 2. The respondents shall jointly and severally pay the applicant's costs of suit.

A person is entitled to access information held by a public body under section 62(2) of the Constitution and AIPPA where: (1) the information is required for the exercise or protection of a right; (2) the applicant has complied with the requirements of AIPPA in requesting access; and (3) access cannot be refused on grounds provided in sections 14-25 of AIPPA. An applicant must identify the right they wish to exercise or protect, specify what information is required, and demonstrate how the information would assist in exercising or protecting that right. Where a person has applied for land and a local authority is required under section 152 of the Urban Councils Act to publish notice and allow objections before alienating land, that person has a right to participate in the alienation process and is entitled to access records showing whether the statutory procedures were followed. When an applicant approaches the court under section 4(1) of the Administrative Justice Act alleging failure to comply with section 3, the requirement to exhaust domestic remedies under AIPPA falls away. Public institutions hold information as custodians of the public good and access to such information is essential for transparency and accountability, enabling citizens to hold public actors to account.

The court observed that open and democratic societies would not encourage 'fishing expeditions' for information, referencing the Unitas Hospital case, but distinguished the present case on the basis that the applicant sought specific records directly relevant to his stated purpose. The court commented on the evolution of the constitutional right to information in Zimbabwe, noting that the current Constitution specifically provides for this right in section 62(2), whereas previous constitutions did not cover situations where one could demand information from another. The court emphasized that granting access to information promotes early settlement of disputes and can bring litigation to 'a short, sharp end' either by settlement or abandonment, citing Van Niekert v Pretoria City Council. The court noted that Zimbabwe has ratified the International Covenant on Civil and Political Rights and the African Charter on Human and People's Rights, both of which provide for the right to access information, and that these instruments should inform interpretation of domestic law. The court observed that if courts fail to give effect to constitutional provisions promoting transparency and accountability, the ability of citizens to hold public actors to account will be violated.

This case is significant in Zimbabwean administrative law and constitutional jurisprudence for several reasons: (1) It affirms the constitutional right of access to information under section 62(2) of the Constitution of Zimbabwe, marking a departure from the previous constitutional position established in Matebeleland Zambezi Water Trust v Zimbabwe Newspapers where no such right existed. (2) It clarifies the relationship between the Access to Information and Protection of Privacy Act (AIPPA) and the Administrative Justice Act, holding that approaching the court under the latter obviates the need to exhaust domestic remedies under the former. (3) It establishes that public bodies hold information as custodians of the public good and that transparency and accountability require citizens to have access to information showing compliance with statutory procedures. (4) It interprets the requirements under AIPPA for access to information, clarifying when information is 'required for the exercise or protection of a right'. (5) It emphasizes the importance of procedural fairness in administrative action by local authorities, particularly regarding land alienation under the Urban Councils Act. (6) It demonstrates judicial commitment to giving effect to international and regional human rights instruments (ICCPR and ACHPR) on access to information in the post-2013 constitutional dispensation.