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Chief Court Reporter
The late former Zanu-PF legislator, Cde Margaret Zinyemba, had her application challenging the subdivision of her farm thrown out for approaching the wrong court. Zinyemba had challenged Government’s decision to repossess 254 hectares of the 464 hectares initially allocated to her.
The matter was heard in the Constitutional Court on June 4 2014. She died the following year in October and was declared a liberation war heroine. In a judgment handed down last week, the full bench of the Constitutional Court threw out the application.
The application was brought under Section 85(1)(a) of the Constitution. Zinyemba was claiming that her fundamental rights to administrative conduct had been violated, because she had not been given an opportunity to be heard on the proposal to subdivide the piece of land allocated to her.
But Deputy Chief Justice Luke Malaba, who wrote the judgment, said unless there was no Administrative Justice Act or the complaint that the provisions of the Act did not give effect to the fundamental rights guaranteed under Section 68(1) of the Constitution could not find a complaint of its violation in terms of Section 85 of the Constitution.
He said there could not be an allegation in terms of Section 85(1) of the Constitution of administrative conduct, violating the fundamental right to administrative justice enshrined in Section 68 of the Constitution, when there is an Act of Parliament, which gives full effect to the requirements for the protection of fundamental rights. “The applicant is not challenging the constitutional validity of any provision of the AJA (Administrative Justice Act) nor is she seeking to use the constitutional rights to administrative justice to interpret the provisions of AJA,” said Deputy Chief Justice Malaba.
“The exceptional circumstances in which an applicant can rely on the constitutional rights to administrative justice do not apply to the applicant. She ought to have used the remedies provided for under AJA to enforce her rights to just administrative conduct.”
Chief Justice Godfrey Chidyausiku and seven other judges on the panel concurred. Zinyemba was in 2008 allocated Lot 1 of Manyewe Farm measuring 464 hectares. She accepted the allocation of the piece of land by signing an offer letter containing a number of terms and conditions.
One of the terms was that the Minister of Lands and Rural Resettlement reserved the right to withdraw or change the offer if he deemed it necessary, or if the holder of the offer letter was found to be in breach of any of the conditions of the offer letter.
Later in 2013, Government decided to subdivide the land allocated to Zinyemba into two portions measuring 210 and 254 hectares. Zinyemba was advised of the Government’s decision to withdraw the original offer letter, after the farm had been subdivided. She was given a fresh offer letter allocating her 210 hectares.
The remainder was allocated to a Mr Yakub Mahomed, irking Zinyemba. She approached the Constitutional Court arguing that her constitutional rights had been infringed as she was not afforded a chance to be heard on the proposed withdrawal of the offer letter. Advocate Thabani Mpofu acted for Mr Mohamed, while Mangwana and Partners acted for Zinyemba.
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