N & R Agencies (Pvt) Ltd v The Minister of Lands & Rural Resettlement and Others (HC 3062/09) and N & R Agencies (Pvt) Ltd v Oscar Tshuma (HC 483/10)

The applicant, N & R Agencies (Pvt) Ltd, was a registered company that owned agricultural land which was acquired by the Government of Zimbabwe on 19 July 2002 under the land reform and resettlement programme, when it was gazetted in the Government Gazette. The applicant initially contested the acquisition under HC 2782/02, but these proceedings were abandoned after the Constitution of Zimbabwe Amendment (No. 17) Act, 2005 inserted section 16B into the Constitution, which vested ownership of acquired land in the state and ousted court jurisdiction to challenge such acquisitions. Under the Gazetted Land (Consequential Provisions) Act, the applicant was obliged to cease occupation within 45 days after 20 December 2006 or at least within 90 days thereafter, unless lawfully authorized by offer letter, permit or lease. The acquired land was subdivided into different portions. The portions subject to HC 3062/09 were offered to the 3rd and 4th respondents. The portion subject to HC 483/10 was originally offered to Khulekani Mpofu on 12 August 2004, but on 12 December 2008, Mpofu swapped land with Oscar Tshuma (the respondent in HC 483/10), with the acquiring authority's consent. When the respondents took possession, the applicant instituted spoliation proceedings seeking to recover possession.

• Whether the court had jurisdiction to entertain a spoliation application concerning land acquired under section 16B of the Constitution
• Whether a former owner whose land was acquired under the land reform programme could challenge possession through spoliation proceedings
• Whether the constitutional ouster of court jurisdiction in section 16B(3)(a) of the Constitution applied to spoliation remedies
• Whether land subject to a Bilateral Investment Protection Agreement (BIPAS) could be compulsorily acquired for resettlement purposes

Both applications (HC 3062/09 and HC 483/10) were dismissed with costs on the ordinary scale.

A former owner or occupier whose land has been acquired by the state under section 16B(2)(a) of the Constitution of Zimbabwe cannot challenge the legality of such acquisition in a court of law through any means, including spoliation proceedings. The jurisdiction of the courts is ousted by section 16B(3)(a) of the Constitution. Section 16B of the Constitution renders agricultural land, including land occupied under Bilateral Investment Protection Agreements (BIPAS), liable to compulsory acquisition if the acquiring authority considers it required for resettlement purposes or any other purpose prescribed under section 16B(2)(a)(iii) of the Constitution. A spoliation application seeking to recover possession of land acquired under the land reform programme constitutes an impermissible indirect challenge to the acquisition and falls outside the court's jurisdiction.

The court noted that it could have dismissed the applications on an alternative ground, namely that the land in dispute as described (being the remainder of Maritzburg measuring 885,17776 hectares held under Deed of Transfer number 722/93) no longer existed due to the subdivision of the acquired land into different portions. This observation suggests that even on technical grounds unrelated to the constitutional issues, the applications were defective.

This case confirms the comprehensive scope of the constitutional ouster clause in section 16B(3)(a) of the Zimbabwe Constitution as it relates to land reform. It establishes that former landowners cannot circumvent the prohibition on challenging land acquisition by framing their claims as spoliation applications. The judgment reinforces that the constitutional provisions regarding land reform effectively remove all judicial remedies for dispossessed landowners, including possessory remedies. The case also clarifies that land held under Bilateral Investment Protection Agreements (BIPAS) is not exempt from compulsory acquisition under the land reform programme. This decision is significant in the development of Zimbabwean land law and demonstrates the supremacy of constitutional land reform provisions over common law remedies and international investment protection agreements.