The Trustees of the Makomo E Chimanimani Share Ownership Community Trust v The Minister of Lands and Rural Resettlement and Border Timbers Limited (Under Judicial Management)

The applicant Trust, representing aboriginal people of Chimanimani who claim continuous occupation over hundreds of years, sought a declaration of aboriginal people's rights in land (including rights of usufruct) over territory known as "Tilbury Estate" and other tenements in Chimanimani district. The land was formerly owned by Border Timbers Limited (2nd respondent) before being compulsorily acquired by the government in 2005. The applicant claimed their ancestors enjoyed ownership and use of this territory prior to the colonial period and sought to reassert their constitutional rights under sections 71, 72 and 74 of the Constitution of Zimbabwe Amendment (20) Act, 2013. The 1st respondent (Minister) opposed on grounds that a Bilateral Investment Protection Promotion Agreement (BIPPA) with Germany existed, and the state could not resettle anyone until compensation was paid to Border Timbers. The 2nd respondent was under judicial management pursuant to a court order that stayed all proceedings against it without leave of court.

• Whether the applicant Trust had locus standi to bring the application on behalf of aboriginal communities
• Whether the deponent to the founding affidavit had proper authority to represent the Trust
• Whether there was fatal misjoinder by failure to cite the judicial manager separately
• Whether the applicant was required to seek leave of court before instituting proceedings against a company under judicial management
• Whether aboriginal people have enforceable constitutional rights to land under sections 71, 72 and 74 of the Constitution
• Whether section 85 of the Constitution expands standing to bring constitutional claims

1. The application is dismissed. 2. The applicant shall pay 60% of the 2nd respondent's costs on an attorney-client scale. 3. The applicant's lawyers shall not recover any fees for this application.

The binding legal principles established are: (1) Section 85 of the Constitution of Zimbabwe Amendment (20) Act, 2013 provides expanded locus standi for constitutional claims, allowing persons to act "as a member, or in the interests, of a group or class of persons" or "in the public interest" when alleging infringement of fundamental rights; (2) A Trust has locus standi to bring proceedings that fall within its stated objectives, and Trusts can sue and be sued in the name of the Trust under Order 2A rules 7 and 8 of the High Court Rules; (3) A deponent to an affidavit is qualified to swear to facts within their knowledge without requiring separate documentary proof of authority, provided the affidavit contains a statement of authority; (4) When citing a company under judicial management, it is sufficient to cite the company with the designation "(Under Judicial Management)" without separately citing the judicial manager; (5) Where a court order requires leave to be obtained before instituting proceedings against a party under judicial management, failure to obtain such leave is fatal to the proceedings and constitutes deliberate disregard of a valid court order that cannot be condoned; (6) Orders requiring leave to proceed against entities under judicial management serve the important purpose of protecting assets and filtering appropriate claims during the disability period.

The court made several non-binding observations: (1) The new Constitution has "ushered in some rights and freedoms which the previous Constitution did not provide" and individuals and entities "have embraced the new Constitution eagerly"; (2) The court acknowledged that land is "no doubt a very important resource, moreso when traced down heritage lines dating back a hundred years" and that the constitutional issue raised was "of considerable importance to applicant"; (3) The court noted that approaching court on a constitutional land rights issue was not vexatious or frivolous, despite the procedural defect; (4) The court observed that a trust "has no personality apart from the trustees" and "expresses itself through trustees"; (5) The court commented that it is the duty of legal practitioners as "experts trained in the intricacies of the law" to advise clients on proper procedure, and it would be unjust to penalize deponents for their lawyers' failure to follow proper procedure; (6) The court declined to address other preliminary objections (prescription, res judicata, material disputes of fact) as it would be "a futile exercise" given the fatal procedural defect already identified.

This case is significant for several reasons: (1) It is an early interpretation of the expanded constitutional rights under Zimbabwe's 2013 Constitution, particularly sections 71, 72, 74 and 85 relating to aboriginal/indigenous land rights and standing to bring constitutional claims; (2) It confirms the liberalized standing provisions under section 85 of the Constitution, which allows persons to act "in the interests of a group or class of persons" or "in the public interest" when alleging infringement of fundamental rights; (3) It establishes that Trusts have standing to pursue constitutional claims on behalf of beneficiaries where such action falls within the Trust's objectives; (4) It reinforces the strict requirement to obtain leave of court before instituting proceedings against entities under judicial management, emphasizing that non-compliance with such orders has fatal consequences regardless of the merits of the underlying claim; (5) It demonstrates judicial recognition of aboriginal land rights claims as constitutionally significant issues worthy of judicial consideration, even though the claim failed on procedural grounds; (6) It illustrates the interplay between new constitutional rights and established procedural requirements, showing that even meritorious constitutional claims must comply with court procedures.