After hearing argument on the preliminary point whether the applicants required leave of the court to bring their application, the court ruled that leave was necessary.Having been filed without leave, the matter brought by the applicants was struck off the roll with no order as to costs with the court ...
After hearing argument on the preliminary point whether the applicants required leave of the court to bring their application, the court ruled that leave was necessary.
Having been filed without leave, the matter brought by the applicants was struck off the roll with no order as to costs with the court indicating that its reasons would follow in due course.
I now set these out.
The matter is an application in terms of the then Rule 449 of the High Court Rules 1971, now Rule 29 of the High Court Rules 2021, as read with Rule 45 of the Constitutional Court Rules 2016 (“the Rules”).
Rule 449 of the High Court Rules provided:
“449 Correction, variation and rescission of judgments and orders
(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —
(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or
(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or
(c) That was granted as the result of a mistake common to the parties.
(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”
This rule of the High Court is applicable in this Court by virtue of the provisions of Rule 45 of the Constitutional Court Rules.
There is no equivalent of Rule 449 of the High Court Rules in the Constitutional Court Rules or in the rules of the Supreme Court.
The applicants seek the rescission of an order of this Court dated 18 November 2015 on the basis that the order, handed down with the consent of the parties to that suit, was sought and granted in error and in the absence of the applicants who are adversely affected by it.
They further contend, that, they bring the application in terms of section 167(5)(a) as read with section 176 of the Constitution of Zimbabwe.
Section 167(5)(a) of the Constitution provides for the enactment of rules for this Court to allow litigants, when it is in the interests of justice, with or without leave of the court, to bring matters directly to the Constitutional Court whilst section 176 of the Constitution grants this court inherent powers to protect and regulate its own processes.
I shall advert to these two sections of the Constitution in detail below.
Factual Background
The applicants allegedly reside on a piece of land in the District of Hartley known as Kingsdale of Johannesburg. I note, in passing, that the exact nature of each applicant's tenure on the land in dispute was not described in the founding affidavit.
Fleeting mention is however made in the opposing affidavit that the applicants may be occupying the land as beneficiaries of the land reform programme that was undertaken by the State commencing in the year 2000.
The tenure of each applicant on the land in question was however of no import in the determination of the preliminary point.
Kingsdale of Johannesburg was agricultural land, owned by one Pieter Nicholas Nel (“Nel”), now deceased and represented herein by the fourth respondent, Adam James Hartnack.
In or about 2015, the land was identified for acquisition by the State under the Land Acquisition Act [Chapter 20:10] and processes to acquire the land were put underway.
The acquisition of the land was contested.
At the time the current Constitution became operative in 2013, Kingsdale of Johannesburg, together with other pieces of agricultural land, had been listed in Schedule 7 of the repealed Constitution.
The significance of such listing is to be found in section 72(4)(a) of the Constitution which provides, that, ownership of all agricultural land which was itemized in Schedule 7 to the former Constitution continues to be vested in the State.
Following litigation brought by the second respondent herein, Maparahwe Properties (Private) Limited, Pieter Nicholas Nel and five others over the nature and ownership of the land, which litigation commenced before the Constitution became operative, this Court, with the consent of the parties in case Number CC43-15, issued an order declaring that Kingsdale of Johannesburg is private land.
In consequence thereof, the first respondent herein, the Minister of Agriculture, Lands, Water and Rural Resettlement, was ordered to withdraw his or her acquisition of the land under the Land Acquisition Act and to publish such withdrawal in the Government Gazette and in the Herald Newspaper within 14 days of the order.
It was further declared, that, ownership of the land vested in the second respondent, Maparahwe Properties (Private) Limited, which had purchased the land from Pieter Nicholas Nel during his lifetime.
The order authorized the second respondent herein to proceed with its development of the land into urban residential stands.
I reproduce the order in full:
“1. Kingsdale Housing Cooperative Society Limited be and is hereby joined to these proceedings as the second respondent.
2. It is declared that the applicant's right under section 68(1) of the Constitution of Zimbabwe to fair, just and prompt administrative action has been violated.
3. It is declared that Kingsdale of Johannesburg measuring 161,8238 hectares in the District of Hartley is private land.
4. Consequently, it is ordered that:
4.1. The first respondent be and is hereby ordered to withdraw its acquisition of land aforesaid and shall cause the publication of such withdrawal in the Government Gazette and the Herald Newspaper within fourteen (14) days of this order.
4.2. The land aforesaid vests in the first applicant who shall proceed with urban development of the said land up to the issuance of title surveys in accordance with permits issued or to be issued by the relevant town planning authority.
4.3. Any agreements of sale between first applicant and any other person as of the 26th February 2015 (the date of purported acquisition) remain valid and enforceable.
4.4. All persons, with the exception of the second respondent's registered members as at 12 November 2013, in illegal occupation or possession of any portion of the said land forthwith vacate the land failing which the Sheriff of Zimbabwe or his lawful Deputy be and is hereby authorized to eject them.
4.5 The First applicant hereby donates to the Government of Zimbabwe twenty-one (21) hectares of land in the area covered by Garikai/Hlalani Kuhle Housing Scheme and ZESA Servitudes.
4.6 The first applicant shall develop the land in terms of paragraph 4.2 above and the members of the second respondent, and persons referred to in paragraph 4.3 above, shall compensate the first applicant for the remaining land measuring 140 hectares at US$5 per square metre in accordance with the terms of a Deed of Settlement to be signed by the parties and incorporated in the order of the Administrative Court.
5. Each party to bear its own costs.”
Contending, that, the declaration by this Court, under paragraph 3, and the consequential relief granted under paragraph 4 of its order, are unconstitutional as they violate the provisions of section 72(4)(a) of the Constitution, the applicants approached this Court as detailed above.
To support the contention, it was argued, that, this Court cannot override or ignore the express provisions of the Constitution on what is and is not State land.
By virtue of being itemized under Schedule 7 of the repealed Constitution, it was argued, Kingsdale of Johannesburg remained and is State land. In the circumstances of the matter, the argument proceeded, it was clearly an error for this Court to declare, as it did, that the land is private land.
Strongly believing, and still arguing at the hearing of the application, that such was not necessary, the applicants legal practitioner and counsel did not seek leave of this Court as is provided for in Rule 21(1) of the Constitutional Court Rules.
The non-observance of the provisions of Rule 21(1) of the Constitutional Court Rules gave rise to the preliminary point taken by the respondents as to whether the application was properly before the court.
The precise issue that arose for the determination of the Constitutional Court was whether leave of the Constitutional Court, in accordance with Rule 21(1) of the Constitutional Court Rules is required for an application for the setting aside of an order of this Court under Rule 449 of the High Court Rules 1971 as read with Rule 45 of the Constitutional Court Rules.
As indicated above, the Constitutional Court ruled that such leave is a pre-requisite.
The Arguments
Counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel) made the simple point, that, the matter before the court, being an application in terms of Rule 449 of the High Court Rules, is not listed in Rule 21 of the Constitutional Court Rules as one that does not require leave of the court before it is instituted.
He invoked the expressio unius est exclusio alterius maxim to buttress his argument in this regard.
By invoking the expressio unius est exclusio alterius maxim, counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel) was, in essence, arguing that the Constitutional Court Rules are exhaustive, and, consequently, if a matter has been excluded from the list of matters for which leave is not required, then leave is always required....,.
There are matters that are not listed in Rule 21 of the Constitutional Court Rules as not requiring leave and for which leave is not necessary. Examples of such matters are applications for joinder of parties for instance, or for the consolidation of causes already before the court. These primarily are cases that routine and arise incidentally during the determination of causes properly before the court....,.
Submitting that the point in limine was well taken, counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) associated himself fully with the arguments advanced by counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel) and made no additional submissions.
Counsel for the applicants, on the other hand, strongly argued, that, leave of the court, in the circumstances of this application, was unnecessary. He made three distinct submissions:
(i)...,.
(ii)...,.
(iii) Finally, and to counter the invocation of the maxim expressio unius est exclusio alterius by counsel for the fourth respondent, counsel for the applicants submitted, that, the rules of this Court are not exhaustive and were not drafted to be so or with the intention that they be so....,.
As correctly argued by counsel for the applicants, the Constitutional Court Rules are not exhaustive.
The Constitution, in section 167, defines the jurisdiction of this Court. This is in respect of the subject matter that can be brought before the court.
In section 176, it grants this Court inherent jurisdiction to protect and regulate its own processes. Matters that will then arise procedurally from the exercise of this inherent jurisdiction to protect and control its processes are naturally in the exclusive jurisdiction of this Court.
