TRUSTEES, MAKOMO E CHIMANIMANI SHARE OWNERSHIP COMMUNITY TRUST v MINISTER OF LANDS & ANOR 2016 (2) ZLR 347 (H)

Flynote

Company: " proceedings against " company under judicial management " court's authority required to proceed against such company

Constitutional law: " Constitution of Zimbabwe 2013 " Declaration of Rights " application to enforce such rights " who may bring " trust acting on behalf of its members

Practice and procedure: " parties " locus standi " constitutional application " trust acting on behalf of members, seeking to assert constitutional right " wide scope of s 85 of Constitution in regard to infringements of constitutional rights

Headnote

The applicant alleged it represented people who, prior to the colonial period, enjoyed use of the land that became known as the Tilbury Estate and claimed the right to this land. This land was owned by the second respondent before being compulsorily acquired by the Government of Zimbabwe in 2005. It was now held in terms of a Bilateral Investment Protection Promotion Agreement between the Zimbabwe and the German Federal Republic. The applicant sought to assert that it had rights granted by s 72(7)(c) of the Constitution, such that that the compulsory acquisition of land for the resettlement of people in accordance with the land reform process must be conducted in such a manner as to ensure that the peopleof Zimbabwe are enabled to reassert their rights and regain ownership of their land. A number of points in limine were dealt with by the court to resolve the application.

Held, that in regard to the claim of lack of locus standi and absence of authority on the part of the applicant, the applicant trust had locus standi to bring the application. The object of the trust was to further the interest of the aboriginal people of the Chimanimani area. Furthermore, s 85 of the Constitution greatly widened the group of persons who can take action when there are allegations of infringement of constitutional rights.

Held, further, that the applicant's deponent's statement that he had authority to depose the founding affidavit on behalf of the applicant was sufficient.

Held, further, that failure to cite the judicial manager of the second respondent was not a fatal misjoinder. It was sufficient to cite the second respondent company and specify that it was under judicial management.

Held, further, that there was, however, a specific court order requiring all actions against the second respondent under judicial management not to be proceeded with, without the leave of the court. Accordingly the applicant's attempt to bring proceedings against the second respondent without obtaining the leave of the court was fatal to the application.