This is an application for leave for direct access to the Constitutional Court brought in terms of section 167(5)(a) of the Constitution as read with Rule 21 of the Rules of the Constitutional Court 2016.
The applicants are a group of persons residing on a piece of land over which the second respondent claims ownership. They intend to approach the Constitutional Court, under section 24 of the Constitutional Court Act 2021, for the rescission of a judgment of the Constitutional Court issued under CC43-15.
BACKGROUND FACTS
The applicants are residents on a piece of land described as a certain piece of land situated in Hartley District, being Kingsdale of Johannesburg, measuring 161,8238 hectares.
In 2001, the State gazetted the land described above, and, through that process, compulsorily acquired it under the land reform programme. In support, the applicants have attached to their papers an Extraordinary Government Gazette dated 22 June 2001 confirming the acquisition. The applicants contend, that, consequently, title to the land is vested in the Government of Zimbabwe.
Further, the applicants claim, that, they were allocated stands on the piece of land under the programme. However, they have not produced any documents to the Court to sustain their claim.
The applicants claim, that, unbeknown to them, the first to ninth respondents (Minister of Agriculture, Lands, Water and Rural Resettlement, Maparahwe Properties (Pvt) Ltd, Kingsdale Housing Co-operative Society Ltd, Executor, Estate of Late Pieter Nicholas Nel, Hardwork Chiminya, Givemore Dube, Pretty Kurera, Spiwe Matambo and Executor, Estate of Late Sibangani Kokera) obtained an order by consent under CC43-15.
The second respondent (Maparahwe Properties (Pvt) Ltd) was permitted, in terms of that order, to obtain necessary permits have the land surveyed and to sell any Stands to any other party or parties. They allege, that, as a result of this, and contrary to their wishes, they entered into agreements of sale in respect of their individual Stands. Thus, the second respondent erroneously continues to hold itself as the owner of the piece of land to their prejudice.
The parties are agreed that the following facts are common cause.
In 2001, the piece of land described above was gazetted for acquisition under the land reform programme. It is common cause that the Administrative Court set aside the acquisition in 2003.
On 2 October 2013, this Court set aside the acquisition of the piece of land following its further gazetting in 2005. This order was followed by an order obtained by consent under CC43-15, the causa for the application in casu. This order, issued on 18 November 2015, was in the following terms:
“IT IS ORDERED BY CONSENT THAT:
1. Kingsdale Housing Cooperative Society Limited be and is hereby joined to these proceedings as the second respondent.
2. It is declared, that, the applicants 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 agreement of sale between first applicant and any other person, as of 26 February 2015 (the date of purported acquisition), remains 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 authorised 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 para 4.2 above, and the members of the second respondent and persons referred to in para 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 into the order of the Administrative Court.
5. Each party to bear its own costs.”
It is common cause, that, the applicants have entered into separate agreements of sale in respect of the individual Stands that each applicant occupies.
The applicants contend, that, the judgment issued under CC43-15 should be set aside.
They place reliance for this contention on section 24 of the Constitutional Court Act [Chapter 7:22] (“the Act”). They allege that the judgment was granted in their absence. They allege that the judgment was granted in error as the land is State land following its acquisition in 2001.
They further allege, that, they were forced, by circumstances, into purchasing from the second respondent the Stands allocated to them under the land reform programme pursuant to the judgment.
They contend that they have been, and continue to be, prejudiced by the erroneous order in CC43-15.
On the premises stated above, the applicants approach the Constitutional Court for leave to have the judgment under CC43-15 rescinded.
Rescission is sought on the basis, that, the judgment was erroneously sought or granted.
The applicants aver, that, the land in question was State land and remains State land under section 72(4)(a) of the Constitution due to its listing in Schedule 7 of the former Constitution in 2005. The parties erred in not bringing this fact to the attention of the Constitutional Court at the hearing.
The applicants contend, that, the judgment is unconstitutional as it is contrary to section 72(4)(a) of the Constitution.
They argue, that, none of them was party to the consent order under CC43-15.
THE REQUIREMENTS FOR LEAVE FOR DIRECT ACCESS
The Constitutional Court is a specialised court with jurisdiction to hear only deserving cases. Direct access to the Court is an extraordinary procedure granted in deserving cases that meet the requirements set out in the rules of the Court.
Rule 21(3) of the Rules of the Constitutional Court 2016 requires that an applicant for leave for direct access to the Constitutional Court must show that it is in the interests of justice for access to be granted by the Court. Thus, Rule 21(3) of the Constitutional Court Rules provides as follows:
“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —
(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and
(b) The nature of the relief sought and the grounds upon which such relief is based; and
(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”
Rule 21(8) of the Constitutional Court Rules provides:
“(8) In determining whether or not it is in the interests of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account —
(a) The prospects of success if direct access is granted;
(b) Whether the applicant has any other remedy available to him or her;
(c) Whether there are disputes of fact in the matter.”
In Zimbabwe Development Party & Anor v The President & Ors 2018 ZLR 485 (CC)…, MALABA CJ commented thus:
“In order for direct access to be granted, the applicants had to show that they had prospects of success in the main matter. In Transvaal Agricultural Union v Minister of Land Affairs and Another 1996 (12) BCLR 1573, 1997 (2) SA 621 (CC) at para [46], the Constitutional Court of South Africa said in part:
'[46] The applicant has failed to establish that this is a case in which the ordinary procedures ought not to have been followed. There are important issues which are within the jurisdiction of the Supreme Court and which need to be resolved by it before this Court is approached for relief. As far as the other issues are concerned, there is neither the urgency nor the prospects of success necessary to justify direct access to this Court. The application for direct access must therefore be dismissed.'”…,.
In Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC), 1998 (4) BCLR 415 (CC)…, CHAKALSON P remarked:
“[7] Whilst the prospects of success are clearly relevant to applications for direct access to this Court; there are other considerations which are at least of equal importance. This Court is the highest Court on all constitutional matters.
The correct approach in dealing with an application for an order of direct access to the Court is one that accepts the principle that all relevant factors required to be taken into account must be made available for consideration. The Court or Judge must consider all the relevant factors in deciding the question whether the interests of justice would be served by an order granting direct access to the Court. The weight placed on the different factors in the process of decision making will depend on the circumstances of each case and the broader interests of a society governed by the rule of law.”…,.
It is common cause that the applicants are in occupation of individual Stands on the land, which is the subject of the dispute, under agreements of sale concluded between them and the second respondent. It is also common cause that the contracts of sale have not been cancelled in respect of some of the applicants.
The record shows, that, the second respondent obtained a judgment for the eviction of the first applicant from the Stand.
However, none of the applicants are claiming a right of occupation through the agreements of sale. Rather, their alleged right to occupation is premised on the allegation that they were allocated Stands under the land reform programme.
If granted access, the applicants seek an order in the following terms:
“1. That, it be and is hereby ordered that the judgment by this Court in CC43-15, handed down as an order on 18 November 2015, is rescinded for the reason that it was granted in error.
2. That, for the avoidance of doubt, and arising from the order in para 1, in the exercise of the Court's inherent powers under section 176 of the Constitution as read with section 175(6)(b) of the same Constitution, it is declared that certain piece of land known as Kingsdale of Johannesburg, in the district of Hartley, measuring 161,8238 hectares, is State land under section 72(4) of the Constitution of Zimbabwe.
3. The respondents (if they oppose this order) shall pay the costs of this application jointly and severally, the one paying the others being absolved.”
SUBMISSIONS BEFORE THE COURT
Submissions in relation to the two issues went as follows:
Counsel for the applicants contended, that, the High Court Rules are inapplicable in casu, and that the matter may be brought to the Constitutional Court by way of section 24 of the Constitutional Court Act. To that end, he argued, that, there was no question of delay in bringing the application for rescission as section 24 of the Constitutional Court Act did not make provision for a timeframe for filing the application.
He contended further, that, there were no time limits placed on alleged violation of the Constitution.
In so far it related to the locus standi of the applicants, counsel for the applicants argued, that, the applicants had an interest to protect. He further contended, that, they were absent from the process when the judgment was issued and have, therefore, the requisite locus standi in judicio.
Counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) was of a contrary view.
He argued, that, whilst section 24 of the Constitutional Court Act restates the substantive power of the Constitutional Court, the procedural aspects are provided for in section 26 of the Constitutional Act.
In his view, section 24 of the Constitutional Court Act restates the substantive power of the Court. The procedural aspects of the exercise of that power are set out in section 26 of the Constitutional Court Act where the Chief Justice is empowered to promulgate rules of court to provide for the procedure the Constitutional Court is to follow.
He contended, that, the failure by the applicants to adhere to the rules of the Court was fatal to the application.
He suggested that the application was in fact a nullity.
Coming to the question of locus standi, counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) submitted, that, the applicants had not established, on the papers, that they had locus standi to apply for the rescission of the judgment. They had not established that they had an interest that required protection through the setting aside of the judgement in question. He reiterated that interest, in the context of locus standi, must be personal as relates to the person seeking relief.
Counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel), on the other hand, made the following submissions:
He argued, that, it was not in the interests of justice for the application to be granted. The applicants had become aware, as early as July 2017, of the existence of the judgment. The application was filed after a period of four years and there was no attempt to explain the delay in bringing it to the Constitutional Court.
He contended, that, Rule 29 of the Rules of the High Court applied in casu, and, on the premises of the rule, the applicants were not entitled to the relief they were seeking.
There were no submissions on the question of locus standi by the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel).
I propose to consider the two issues ad seriatim....,.
The Court holds, that, it is not in the interests of justice that the applicants be granted leave for direct access in this matter. The view of the Court is that, upon considering the matter, the applicants have not established that the application has prospects of success on the merits. The reasons for so finding are on two bases:
(i)...,.
(ii) The second, the more important basis, is that the applicants have not established the requisite locus standi in judicio to apply for rescission of the judgment....,.
I turn to the second issue for determination, that of locus standi in judicio.
For the Court to invoke its jurisdiction to exercise power granted under section 24 of the Constitutional Court Act, the applicants must establish that they are parties affected by the judgment.
It cannot be set aside on a mere whim.
The applicants have to show that some right has been prejudiced by the issuance of the judgment in question. Since they allege that the land is State land, it is incumbent that they establish locus standi in judicio to invoke the jurisdiction of the Court to exercise its power in their favour.
“In law, standing or locus standi, is a condition that a party seeking a legal remedy must show that they have by demonstrating to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.”…,.
In Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc SC49-18, HLATSHWAYO JA considered the principle of locus standi and stated the following:
“It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point, that, to establish locus standi, a party must show a direct and substantial interest in the matter: see United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415A-C and Matambanadzo v Goven SC23-04.
In casu, it is common cause, that, the respondent is a branch of the parent church. However, the respondent is endowed with the power to sue and be sued in its own name. It is further common cause that the respondent is under the leadership appointed by the parent church. The Constitution of the respondent is approved by the mother church. The first appellant has been in control of the respondent's assets on the basis of being an overseer appointed by the mother church. The main allegation a quo was that the appellants were no longer members of the respondent and hence should cease to control the assets of the respondent.
The respondent, as a branch of the mother church, had an unfettered direct interest in the matter in that the first appellant purported to act on the respondent's behalf when he was on suspension. The first appellant had been divested of the power to act on behalf of the respondent. It is common cause that the first appellant was on suspension when he caused the letter of 3 February 2012 to be drafted. He purported to communicate to the mother church an incorrect position that the respondent was also the author of the letter in question. The respondent, who had not authored the letter in question, surely has a direct interest in a matter where its previous leader purports to act on its behalf without its authority. Therefore, the respondent's locus standi in the Court a quo cannot be gainsaid.”
It is settled, that, the principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Thus, a party needs to show that they have a direct, personal, and substantial interest in the matter in contention.
In Zimbabwe Stock Exchange v Zimbabwe Revenue Authority SC56-07, MALABA JA..., said:
“The common law position on locus standi in judicio of a party instituting proceedings in a court of law is, that, to justify participation in the action, the party must show that he or she has a direct and substantial interest in the right which is the subject matter of the proceedings and the relief sought.”
The above authorities speak to the legal position as pertains to locus standi generally.
As this application is concerned with an alleged violation of the Constitution, it is only appropriate that the Court considers the issue of locus standi in the light of decided authority on constitutional matters.
This Court, in the case of Mawarire v R G Mugabe & Ors CC01-13, accepting the applicant's right to access the court stated:
“Even under the pre-2009 requirements, it appears to me, that, the applicant is entitled to approach this Court for relief. Certainly, this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them. This Court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave the threat, moreso under the liberal post-2009 requirements.”
This decision was followed by a long line of authorities that established a trend in which the Courts sought to broaden the principle that locus standi should not be strictly construed in constitutional matters. To otherwise and apply too strict a construction would result in deserving cases failing to see the light of day further prejudicing an applicant deserving protection in pursuit of a fundamental right properly protected under the Constitution.
The position is settled, that, the new Constitution has expanded the locus standi of persons seeking to approach the Constitutional Court for the enforcement of an alleged breach of a fundamental right. Accordingly, in Meda v Matsvimbo Sibanda & Ors CC10-16, MALABA CJ made the following pertinent remarks:
“It is clear from a reading of section 85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental right for the Court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to the courts on questions of violation of fundamental human rights and freedoms with minimal technicalities.”
See also the dicta in Chirambwe v Parliament of Zimbabwe & Ors CC04-20 and Gonese & Anor v President of Zimbabwe & Ors CC10-18.
The applicants claim that they are beneficiaries to State land under the land reform programme.
While the acquisition of the land is provided for in the Constitution, the right to occupy gazetted land is provided for in the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. Thus, any right of occupation on the part of the applicants must be consistent with the rights set out in the relevant legislation, in this instance, the Gazetted Lands Act. In addition, a person claiming such right must show that he or she has lawful authority to occupy the land claimed.
Section 3(1) of the Gazetted Land (Consequential Provisions) Act reads:
“3 Occupation of Gazetted land without lawful authority
(1) Subject to this section, no person may hold, use or occupy Gazetted land without lawful authority.”
What is lawful authority?
The Gazetted Land (Consequential Provisions) Act sets out several categories of documents under which lawful authority may be granted. The Gazetted Land (Consequential Provisions) Act defines lawful authority as follows:
“'lawful authority' means —
(a) An offer letter; or
(b) A permit; or
(c) A land settlement lease; and 'lawfully authorised' shall be construed accordingly;
'offer letter' means a letter issued by the acquiring authority to any person that offers to allocate to that person any Gazetted land, or a portion of Gazetted land, described in that letter;
'permit' when used as a noun, means a permit issued by the State which entitles any person to occupy and use resettlement land;
'resettlement land' means land identified as resettlement land under the Rural District Councils Act [Chapter 29:13].
(2) Any word or expression to which a meaning has been assigned in the Land Acquisition Act [Chapter 20:10] shall have the same meaning when used in this Act.”
In addition, the Gazetted Land (Consequential Provisions) Act provides for land settlement leases described in the following terms:
“'land settlement lease' means a lease of any Gazetted land, or a portion of Gazetted land, issued by the State to any person, whether in terms of the Rural Land Act [Chapter 20:18] or the Agricultural Land Settlement Act [Chapter 20:01] or otherwise;”
The applicants needed to establish a real and substantial interest in the rescission of the judgment. They had to show that the judgment in issue directly affected their rights, interests, or potential rights or interests. They needed to show that the interests of justice favoured a finding of locus standi in judicio in their favour. Alternatively, they needed to establish a connection to and harm from the judgment sought to be rescinded.
They did not.
Apart from a bald statement in the founding affidavit that the applicants were beneficiaries under the land reform programme, no one has attached any document as proof of the claim.
To claim a right of occupation to Gazetted land under the programme, a person must exhibit any of the documents described as constituting lawful authority.
Neither the first applicant nor her cohorts have even alluded to having such lawful authority. Instead, what is before the Court are copies of agreements of sale between the applicants and the second respondent.
The agreements of sale are not the lawful authority contemplated under the Gazetted Land (Consequential Provisions) Act.
Any person claiming lawful authority to occupy or use State land must produce an offer letter, permit, or lease relating to the agricultural land in question: see Taylor-Freeme v The Senior Magistrate, Chinhoyi CC10-14; Zinyemba v The Minister of Lands & Rural Resettlement & Anor CC03-16.
The Constitutional Court has already settled what constitutes lawful authority under the Gazetted Land (Consequential Provisions) Act. In Taylor-Freeme v The Senior Magistrate, Chinhoyi CC10-14, the Court defined lawful authority as follows:
“'Lawful authority' means an offer letter, a permit and a land settlement lease. The documents attached to the defence outline are not offer letters, permits, or land settlement leases issued by the acquiring authority. They do not constitute 'lawful authority' providing a defence to the charge the applicant is facing.”
The Constitutional Court is of the view, that, the applicants lack the necessary locus standi to bring an application for the rescission of the judgment in CC43-15. They have failed to establish their claim to be beneficiaries under the land reform programme with lawful authority to occupy the land in question which they assert remains vested in the State. It follows, that, they cannot claim to be parties affected by the judgment that they seek to rescind within the meaning of section 24(1)(a) of the Constitutional Court Act.
The absence of locus standi, in this case, leaves the applicants without a paddle. It means that the application they intend to bring in the main matter has no prospects of success.
In the premises, for this additional reason, it is only appropriate that the Court makes a finding, that, it is not in the interests of justice for the applicants to be granted direct access to the Court.
