Zephaniah Dhlamini and Others v Minister of Lands, Agriculture, Water & Rural Resettlement and Others

The first three applicants are directors and shareholders of the fourth applicant, Kershelmar Farms (Private) Limited, which owns a farm in Nyamandlovu district. They acquired the shares in 2017 from Jeffrey Swindels. On 18 December 2020, the Minister of Lands gazetted the compulsory acquisition of the farm under section 72(2) of the Constitution (General Notice 3042 of 2020). On 14 June 2021, the Chief Lands Officer for Matabeleland North informed the applicants of the acquisition. The applicants, who are indigenous black Zimbabweans, were never given notice or an opportunity to make representations before the acquisition. The Minister did not inform them of his intention to acquire the farm before gazetting the acquisition. Offer letters were subsequently issued to other respondents based on the acquisition.

• Whether the acquisition of the farm was null and void for non-compliance with the Constitution and Administrative Justice Act
• Whether the Minister was required to give notice and opportunity for representations to affected landowners before acquiring land under section 72 of the Constitution
• Whether the acquisition was irrational and arbitrary given that the farm owners were indigenous black Zimbabweans
• Whether offer letters issued based on an invalid acquisition are themselves invalid
• Whether the applicants had locus standi to challenge the acquisition
• Whether the court had jurisdiction given the ouster clause in section 72 of the Constitution

1. The Notice of Acquisition (General Notice 3042/2020) was declared null and void for want of compliance with sections 68 and 72 of the Constitution and section 3 of the Administrative Justice Act. 2. Any offer letters issued based on the acquisition were declared null and void. 3. Costs were awarded against the respondents jointly and severally.

An administrative authority exercising compulsory land acquisition powers under section 72(2) of the Constitution must comply with section 68 of the Constitution and section 3 of the Administrative Justice Act by giving affected persons adequate notice and a reasonable opportunity to make representations before acquiring their land. The acquisition of land must be rationally connected to the constitutional purpose for which the power was given. Taking land from indigenous black Zimbabweans who acquired it for value to give to other black Zimbabweans is irrational and fails to further the purpose of land reform under section 72(7) of the Constitution, which aims to redress colonial dispossession. Administrative action that fails the rationality test is arbitrary, unconstitutional and invalid. An offer letter issued pursuant to an invalid acquisition is itself null and void.

The court made several observations regarding the nature of declaratory relief and the requirements for its grant under section 14 of the High Court Act. The court noted that the Administrative Justice Act and section 68 of the Constitution should be invoked together with common law principles of review when administrative conduct is challenged. The court observed that rationality concerns both the relationship between means and ends and has a procedural element - the process by which a decision is made must also be rational. The court commented that a policy allowing Zimbabweans to lose private property simply because they are critics of the ruling establishment would be 'downright uncouth and belongs to the dark ages.' The court remarked that administrative authorities cannot usurp the role of courts by purporting to determine the validity of agreements in the comfort of their offices without adjudicative proceedings.

This case establishes important limitations on the exercise of compulsory land acquisition powers under section 72 of the Constitution. It confirms that even though section 72 contains an ouster clause preventing review of acquisition decisions, administrative authorities must still comply with constitutional and statutory requirements of administrative justice when exercising acquisition powers. The judgment clarifies that the ouster clause is only activated when acquisition is made in accordance with constitutional provisions. It affirms that rationality is a minimum threshold for all exercises of public power, and that land reform acquisitions must be rationally connected to the constitutional purpose of redressing colonial land dispossession. The case protects indigenous black Zimbabwean landowners who acquired land for value from arbitrary acquisition, establishing that section 72 land reform provisions cannot be used to take land from black Zimbabweans to give to other black Zimbabweans.