WAR VETERANS PRESSURE GROUP and Others v MINISTER FOR LANDS, AGRICULTURE, WATER, CLIMATE AND RURAL RESETTLEMENT and Others (319 of 2025) [2025] ZWHHC 319 (27 May 2025)

8 HH 319-25 HCH 5028/20 WAR VETERANS PRESSURE GROUP and AMOS SIGAUKE and KOSSAM MUTSINZE and SHOORAI NYAMANGONDO and DAPHINE KANOTI and DADIRAI NJITIMANA and REUBEN ZULU and JOSEPH CHINGUWA and HAZVINEI MACHINGURA and CAIRO MHANDU and DIGMORE NDIYA and GODFREY GURIRA versus MINISTER FOR LANDS, AGRICULTURE, WATER, CLIMATE AND RURAL RESETTLEMENT, NO and MINISTER OF FINANCE and COMMERCIAL FARMERS UNION REPRESENTATIVE and SOUTH AFRICAN COMMERCIAL FARMERS ALLIANCE and VALUATION CONSORTIUM (PVT) LTD HIGH COURT OF ZIMBABWE MANYANGADZE J HARARE, November 2024 & 27 May 2025 Opposed application C W Kanoti, for the applicants L C Muradzikwa, for the 1st and 2nd respondents MANYANGADZE J: The applicants filed an application for a declaratory order and consequential relief in terms of s 14 of the High Court Act [Chapter 7:06]. They seek relief in the following terms: “1. That the Global Compensation Deed by the Government of Zimbabwe as represented by the 1st and 2nd Respondent on one part, and representatives of the former white race farmers of the other part, to pay only former white farmers for improvements on lawfully compulsorily acquired land be and is hereby declared discriminatory on the grounds of race and constitutes unfair, cruel and degrading treatment of the black indigenous race. 2. That performance of the Global Compensation Deed be and is hereby suspended pending government’s adequate attention towards full and final payment first to all the Zimbabwe indigenous black race’s white settler rule compensation concerns and claims occasioned over the centuries. 3. Alternatively, that the Global Compensation Deed be and is hereby declared void and of no force or effect for not being consistent with Section 295 (4) of the Constitution requiring that any such compensation be done through an Act of Parliament. 4. Alternatively, that the Government of Zimbabwe, as represented by 1st and 2nd Respondent be and is hereby declared to have no authority to enter into binding instruments over alienation of the Zimbabwe land outside consultation with the citizenry, the chiefs and the mhondoro of Zimbabwe. 5. There is no order as to costs.” This is a peculiar application in which the applicants are impugning the Global Compensation Deed which the Government of Zimbabwe entered into with representatives of former white commercial farmers who had their land compulsorily acquired under the Government’s land reform programme. The Global Compensation Deed (“GCD”) was concluded on 29 July 2020. Its main object is the provision of compensation to the former white farmers for improvements done on the acquired land. It appears this is a massive undertaking that requires large sums of money, given the magnitude of the land reform programme and the improvements done on the farms during the long years they were occupied by the white farmers. The first applicant is represented by the second applicant, who is its chairman. The second applicant avers that he is also bringing the application on his own behalf, alongside the other 11 applicants. The second applicant and the 11 others, who constitute the second to twelfth applicants, are members of the first applicant. There appears to be a mix up on capacity. The second to twelfth applicants seem to be asserting individual capacity at the same time claiming representative capacity as members of the first applicant. I shall advert to this point and its implication on this suit later in the judgment. In the founding affidavit, deposed to by the second applicant, the first applicant is described as “an informal politically unaffiliated grouping of the heroic war veterans of the Second Chimurenga/Umvukela national liberation struggle.” The founding affidavit denounces the GCD as discriminatory as it is favouring former white farmers against the black indigenous race, which has suffered under colonial rule. The applicants aver, in paragraph 3 of the founding affidavit, that the GCD; “constitutes unfair, cruel and degrading treatment of the black indigenous race, and consequently implementation of the Deed be suspended pending government’s adequate attention towards, and, (sic) full and final payment first to all the Zimbabwe indigenous black race white settler rule compensation concerns and claims occasioned over the centuries.” It is noted that this averment also constitutes para 1 and 2 of the applicants’ draft order. The applicants seek compensation for what the indigenous black race has suffered during pre-colonial, colonial and post-colonial Zimbabwe. The applicants do not clarify how such a colossal claim will be quantified. The founding affidavit goes into a lengthy narration of the history of Zimbabwe. It traces this history from 1890, when the Pioneer Column first settled in Harare. The affidavit highlights the developments that cemented British rule, such as the Moffat Treaty and the Rudd Concession. It then refers to early resistance to colonial rule, marked by the 1894 Matebele rebellion and the 1896 Shona rebellion (the 1st Chimurenga). The applicants take up their narrative to the 1970s war of liberation (the 2nd Chimurenga) until the Lancaster House Conference which led to independence in 1980. Against this background, the applicants aver that the GCD is “a cunning sell-out reversal of the national land reform and resettlement programme”. They contend that the Government will most probably fail to raise the funds required for the compensation, estimated to be 3.5 billion United States dollars. This will force the Government to offer payment in kind, which will be in the form of land. This will see the former white farmers coming back as beneficiaries of land meant for the national land reform programme. The applicants express disquiet and suspicion over the GCD, averring that; “The Deed has been shrouded in secrecy for no good reason, nor has its full contents been disclosed by the respondents. Something very serious is terribly not right there, we repeat for emphasis.” On the other hand, the respondents aver that there is nothing irregular or sinister about the GCD. It is not a reversal of the land reform programme. The respondents assert that the compensation they intend to implement is a valid process which is in fact being done in fulfilment of the Government's constitutional obligations. The respondents point out that the obligation to compensate improvements found on compulsorily acquired land is provided for in s 72 (3) of the Constitution. They further point out that any other form of compensation is in terms of s 295 of the Constitution. The respondents aver that there is no legal basis for the wider consultation with citizens, chiefs and mhondoro which the applicants are calling for. There is also no basis for the wider compensation for indigenous black Zimbabweans covering the entire pre-colonial, colonial and post-colonial period. The respondents make the comment that “applicants ought to argue law not history”. Indeed, as already indicated, the founding affidavit extensively covers the history of the country. In fact, about three quarters of it is on such history. Whilst the country’s history is to be cherished, as it shows how the imbalances in land distribution were created, it was not necessary for the applicants to dedicate almost the entire founding affidavit to this history. I note that the applicants have, in their heads of argument, raised a preliminary point to the effect that there is no opposition to their application. This is so because the first respondent’s opposing affidavit is fatally defective. It does not clearly disclose the name and designation of the Commissioner of Oaths. This point was not argued during oral submissions. No reference to it was made at all. It was virtually abandoned and will be safely regarded as abandoned. In any case, a look at the affidavit in question shows a date stamp in which the Commissioner of Oaths is designated as Legal Practitioner, Conveyancer and Notary Public. If there is any issue with it, it will probably be that the ink is rather faint. Surely, counsel could have asked to be served with a clearer copy instead of raising a point in limine. That possibly explains why the point was not pursued further. The respondents have raised some points in limine which must be disposed of before going into the details of the substantive issues. The four points in limine raised are that: The application is fatally defectiveThe applicants have no locus standiThe relief sought is incompetentThere is no privity of contract Defective application It is not clear what averment the respondents are making under this point. The point appears only in the second respondent’s opposing affidavit. The respondent avers that the applicant must indicate “the form of application in which their relief is premised” and “the Notice must indicate the foundational basis of the application”. These averments are not elaborated. It is not clear what precisely is being impugned. The point is not argued in the heads of argument. There is no reference to it at all. Having regard to its vagueness, and its absence both in the heads of argument and oral submissions, I can safely conclude that the point was abandoned. There is therefore no basis on which I can uphold this preliminary point and it is accordingly dismissed. Locus standi Under this point, the respondents aver that the first applicant is not a legal persona. The founding affidavit does not lay the basis on which the first applicant has legal capacity to institute the proceedings. The first applicant is simply described as an informal grouping of veterans of the liberation struggle. The respondents contend that at law, anyone who approaches the courts must have capacity to sue and be sued. In response to this, the applicants have, in their heads of argument, drawn the court’s attention to the case of War Veterans Pressure Group & 11 Ors v The Minister of Defence & War Veterans Affairs N.O. & 2 Ors HH 226/20. In that case, the respondents, of which the second respondent is the same as in casu, raised this very same point i.e. locus standi of the first applicant. The legal practitioners for the respondents were the same, being the Civil Division of the Attorney General’s Office. The point was dismissed, the court holding that the applicants had the requisite locus standi. That judgment, in which that finding was made, was not appealed against. It is not clear why the respondents have, once again, before the same court, in respect of the same applicants, raised the same preliminary point. It places this court in the invidious position where it is asked to revisit its decision. For this court to hold to the contrary would be tantamount to reviewing its own decision. See Unitrack (Pvt) Ltd v TelOne (Pvt) Ltd SC 10/18. The respondents chose to abide by the decision of the court, instead of taking it on appeal. For them to raise the same point, albeit before a different judge of the same court, is essentially asking that the position taken earlier on be reconsidered. For this reason, I am unable to uphold the second preliminary point, and it is accordingly dismissed. Incompetent relief The respondents aver that it is incompetent for the applicants to seek a declaratory order together with consequential relief. I find no merit in this point and wonder why the respondents have even raised it. A reading of s 14 of the High Court Act does not show that it is incompetent to seek consequential relief. The import of this provision is that the court is empowered to make a declaration on the rights of a litigant, even if such declaration does not incorporate consequential relief. That does not mean that consequential relief is something outside the parameters of the provision. This is in fact what the court granted in War Veterans Pressure Group & Others v Minister of Defence & War Veterans Affairs, supra. The court made a declaration of entitlement to the pension in question, and also granted a compelling order for the payment the pension. Again, I find no merit in the third point in limine, and it is accordingly dismissed.Though the first three preliminary points have been dismissed, the applicants’ legal predicament remains. It is the fourth preliminary point that creates problems for them. It brings a fundamental dimension to this suit, which is the doctrine of the privity of contracts. Mr Muradzikwa, for the respondents, expressed the point as follows during oral submissions: “I have one more point, premised on the relief sought in paragraph (3). It is the doctrine of the privity of contracts. The applicants, all of them, are not part of the GCD they seek to set aside. They cannot challenge something they are not a party to. The relief now being sought will fall on that basis. The matter should be disposed of on that basis.” In response to this averment, the applicants brought in the issue of public interest litigation. In this regard, Mr Kanoti, for the applicants, told the court during oral submissions: “It is trite that the Executive arm of the State represents the citizenry. They hold office on behalf of the citizens. If the citizens were not allowed to account for their (the Executive) conduct, then who will ask? The Executive are using public funds. They also have a public duty to account to the citizens and follow the rule of law, which in Zimbabwe is that they should always uphold the Constitution. To that extent, I will conclude that this application is one of the available methods to make the Executive arm account to the population.” Therein lies the applicants’ predicament. It is now murky as to what capacity they have instituted these proceedings. In War Veterans Pressure Group & others v Minister of Defence, supra, which the applicants have heavily relied on in establishing their locus standi, the applicants instituted litigation for the payment of monthly pension for war veterans. That litigation was peculiar to, and specific to, their interests as war veterans. Clearly, they had direct and substantial interest in the disbursement of their pension, as agreed to between them and the Government. Thus, the first applicant, in that suit, represented the interests of its members, drawn from the veterans of the liberation struggle. In casu, the applicants are challenging the validity of an agreement entered into by the Government and other parties, being the associations representing former white commercial farmers. The applicants are not alleging any breach of the agreement, as they did with the agreement that was breached by non-payment of their pensions. They did so as a party to that agreement, and as such were privy to the rights and obligations binding the parties to that agreement. This is not so with the agreement in the instant case. It has rights/obligations of a different nature, and to which the first applicant, and by association the rest of the applicants, are not a party to. See TBIL (Pvt) Ltd & Anor v Mangenje & Ors SC 13/18, Chitumba v Chadenga & 3 Ors HH 41/23, Landale (Pvt) Ltd v Jusashe (Pvt) Ltd t/a Pam Golding Properties Zimbabwe HH 205/24. Realising this predicament, the applicants now claim they are holding the Government to account, as the custodian of public funds. In other words, they have instituted these proceedings in the public interest. They are challenging the constitutional validity of the GCD in the public interest. This category of litigation is provided for in s 85 of the Constitution, which they have not pleaded. It has requirements the applicants must meet. They must allege, and substantiate, infringement of fundamental rights protected by the Constitution. The applicants will have to allege what fundamental rights have been or are likely to be infringed by the actions of the respondents. This is not the thrust of their pleadings. The pith of their pleadings is that they have a direct and substantial interest in the matter, being the conclusion of the GCD by the Government and representatives of the former white commercial farmers. This position is reflected in paragraph 16 of their founding affidavit, wherein it is submitted: “It is our respectful averment that we have managed to prove on a balance of probability that we are interested persons in the sense of having direct and substantial interest in the subject matter of this suit, and the judgment of which will affect our interests.” The basis on which a court may be approached for the enforcement of constitutionally protected rights is laid out in s 85 (1) of the Constitution. It provides: “(1) Any of the following persons, namely— (a) any person acting in their own interests; (b) any person acting on behalf of another person who cannot act for themselves; (c) any person acting as a member, or in the interests, of a group or class of persons; (d) any person acting in the public interest; (e) any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.” The applicants must be clear and specific as to the capacity and category in which their constitutional challenge is instituted. They should not mix this up. Is the first applicant bringing a class action on behalf of war veterans? Then it ought to have proceeded under s 85 (1)(c) or (e). Is the first applicant bringing the application in the public interest? If so, it should have done so under paragraph (d). Are the second to the twelfth applicants bringing the application in their own interest? Then they should have individually pleaded so, under paragraph (a). Whatever the capacity or category under which they bring the application, they must clearly allege the constitutionally protected right infringed and how it has been infringed by the conduct of the respondents. These critical averments are not clearly coming out of the applicants’ pleadings. In the case of Samuel Sipepa Nkomo v Minister of Local Government, Rural and Urban Development & Ors CCZ 6/16, the Constitutional Court emphasised the point that a person cannot approach the court alleging infringement of fundamental rights both in his individual capacity and in the public interest. Ziyambi Jcc stated, at pp 6-7: “[8] In so far as the applicant alleges an infringement of his fundamental right enshrined in Chapter 4 of the Constitution, he may, in the absence of the rules referred to in s 85(3), be permitted to access this Court directly. On this basis he has, prima facie, the locus standi to bring his application in terms of s 85 (1) (a). But he cannot, as he has sought to do, act in his own interest as well as the public interest. This point was emphasized in Loveness Mudzuri & Anor v Minister Of Justice, Legal & Parliamentary Affairs N.O & 2 Ors1 where Malaba DCJ, delivering the judgment of the Court, held that an applicant should confine himself to one of the capacities set out in s 85 (1). At p 8 of the judgment the learned judge said: “What is in issue is the capacity in which the applicants act in claiming the right to approach the court on the allegations they have made. In claiming locus standi under s 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding” And at page 9: “The rule requires that the person claiming the right to approach the court must show on the facts that he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person. In other words the person must have a direct relationship with the cause of action.” It is therefore improper and fatally irregular for the applicants to approach the court in their individual interest, in the interest of the public, and in the interest of the generality of their members, all at the same time. Based on the fatally defective pleadings, the application cannot be upheld. The proper course of action is to order that it be struck off the roll. However, in case I am wrong in adopting this approach, it is my considered view that the application still fails on the merits. What emerges from the applicants’ convoluted founding affidavit and heads of argument are three points of argument, on the basis of which the GCD is impugned. The first is that compensation should be holistic and cover indigenous Zimbabweans for the loss they have suffered under colonial rule. The GCD misses this aspect and therefore places the white farmers it seeks to compensate at an advantage over the black population. This point is highlighted in the factual background, supra, where certain paragraphs of the applicants’ founding affidavit are cited. The applicants further contend that the compensation process should involve wider consultation. They argue that land is sacred and cannot be alienated without the chiefs’ and mhodoros’ approval. In response to this, the respondents aver that there is no basis for the wider consultation the applicants are talking about. There is also no basis for the compensation that dates back to the colonial or even pre-colonial era. The constitution is clear as to the forms of compensation the Government is under an obligation to pay. The GCD fully complies with the constitution. In this regard, reference was made to the relevant sections of the Constitution. These are ss 72 (3) and 295. Section 72 (2) provides: “Where agricultural land, or any right or interest in such land, is compulsorily acquired for a purpose referred to in subsection (2)— (a) subject to section 295(1) and (2), no compensation is payable in respect of its acquisition, except for improvements effected on it before its acquisition; (b) no person may apply to court for the determination of any question relating to compensation, except for compensation for improvements effected on the land before its acquisition, and no court may entertain any such application; and (c) the acquisition may not be challenged on the ground that it was discriminatory in contravention of section 56.” This section is allowing compensation only in respect of improvements on the land. This provision must be read in conjunction with s 295, which reads as follows: “295 Compensation for acquisition of previously-acquired agricultural land (1) Any indigenous Zimbabwean whose agricultural land was acquired by the State before the effective date is entitled to compensation from the State for the land and any improvements that were on the land when it was acquired. (2) Any person whose agricultural land was acquired by the State before the effective date and whose property rights at that time were guaranteed or protected by an agreement concluded by the Government of Zimbabwe with the government of another country, is entitled to compensation from the State for the land and any improvements in accordance with that agreement. (3) Any person, other than a person referred to in subsection (1) or (2), whose agricultural land was acquired by the State before the effective date is entitled to compensation from the State only for improvements that were on the land when it was acquired. (4) Compensation payable under subsections (1), (2) and (3) must be assessed and paid in terms of an Act of Parliament.” This provision sets out the exceptions to the requirement that compensation be for improvements only. The exceptions are limited to indigenous Zimbabweans and those holding land under internationally protected agreements. If land falling under these categories is acquired, the Government is obliged to pay compensation for both the land and improvements thereon. In any other case, compensation is for improvements only. None of what the applicants are urging the Government to do is included in these provisions. The respondents point out that what the GCD seeks to do is within the purview of these constitutional provisions. Indeed, the applicants have not shown how these constitutional provisions accommodate the extent of compensation they want covered. Realising the inadequacy of their broader averments, the applicants ended up narrowing down their impugnment of the GCD to non-compliance with s 295(4). This subsection provides that compensation must be assessed and paid in terms of an Act of Parliament. They contend that a Ministerial level agreement like the GCD cannot be equated to an Act of Parliament. It in fact usurps the powers of Parliament. It is ultra vires the Constitution. I am unable to uphold the applicants’ contention. The respondents’ case, essentially, is that they are mandated by the Constitution to compensate the former white farmers for improvements. This is what they have set out to do, and they are doing so within the legislative framework available. In this regard, the first respondent submits, in paragraph 24 of his opposing affidavit: “The Global Compensation Deed is valid in that it will be implemented in terms of the Land Acquisition Act. Compensation for improvements is not a new development since it has always been done since the onset of the land reform programme.” The Land Acquisition Act [Chapter 20:10] which the respondents have referred to contains provisions which deal extensively with compensation for compulsorily acquired land. PART III deals with the procedure for compulsory acquisition. PART V and PART VA deal extensively with issues related to compensation. They cover ss 16-29 and 29 A-29 D, respectively. The provisions cover pertinent issues like the lodgement of claims for compensation, assessment of compensation, establishment of a Compensation Committee, and appeals. So, this Act, apart from outlining the procedure for compulsory acquisition, also outlines the implementation modalities. It therefore complements the Constitution, which confers the broad mandate for the acquisition of and payment of compensation, by providing for the operational modalities for such acquisition and compensation. It is not correct, as submitted by the applicants in para 8 of their heads of argument, that there is yet to be an Act of Parliament to address compensation modalities. When the current Constitution came into force, the Land Acquisition Act was already in existence, with its extensive provisions on the assessment and payment of compensation. It is also not correct, as submitted by the applicants, again in para 8 of their heads of argument, that the respondents have not rebutted the assertion by the applicants that they have arrogated to themselves the lawmaking powers of Parliament. The respondents have clearly indicated that the GCD will be implemented in terms of the Land Acquisition Act. It is therefore not correct that the GCD violates s 295 (4) of the Constitution. In the circumstances, the application to have the GCD declared invalid and set aside cannot succeed. In the result, it is ordered that: The application be and is hereby dismissed.There is no order as to costs. Manyangadze J:……………………………………………….. Kanoti and Partners, applicants’ legal practitioners Civil Division of the Attorney General’s Office, respondents’ legal practitioners 1 CCZ 12/2015 8 HH 319-25 HCH 5028/20 8 HH 319-25 HCH 5028/20 WAR VETERANS PRESSURE GROUP and AMOS SIGAUKE and KOSSAM MUTSINZE and SHOORAI NYAMANGONDO and DAPHINE KANOTI and DADIRAI NJITIMANA and REUBEN ZULU and JOSEPH CHINGUWA and HAZVINEI MACHINGURA and CAIRO MHANDU and DIGMORE NDIYA and GODFREY GURIRA versus MINISTER FOR LANDS, AGRICULTURE, WATER, CLIMATE AND RURAL RESETTLEMENT, NO and MINISTER OF FINANCE and COMMERCIAL FARMERS UNION REPRESENTATIVE and SOUTH AFRICAN COMMERCIAL FARMERS ALLIANCE and VALUATION CONSORTIUM (PVT) LTD HIGH COURT OF ZIMBABWE MANYANGADZE J HARARE, November 2024 & 27 May 2025 Opposed application C W Kanoti, for the applicants L C Muradzikwa, for the 1st and 2nd respondents MANYANGADZE J: The applicants filed an application for a declaratory order and consequential relief in terms of s 14 of the High Court Act [Chapter 7:06]. They seek relief in the following terms: “1. That the Global Compensation Deed by the Government of Zimbabwe as represented by the 1st and 2nd Respondent on one part, and representatives of the former white race farmers of the other part, to pay only former white farmers for improvements on lawfully compulsorily acquired land be and is hereby declared discriminatory on the grounds of race and constitutes unfair, cruel and degrading treatment of the black indigenous race. 2. That performance of the Global Compensation Deed be and is hereby suspended pending government’s adequate attention towards full and final payment first to all the Zimbabwe indigenous black race’s white settler rule compensation concerns and claims occasioned over the centuries. 3. Alternatively, that the Global Compensation Deed be and is hereby declared void and of no force or effect for not being consistent with Section 295 (4) of the Constitution requiring that any such compensation be done through an Act of Parliament. 4. Alternatively, that the Government of Zimbabwe, as represented by 1st and 2nd Respondent be and is hereby declared to have no authority to enter into binding instruments over alienation of the Zimbabwe land outside consultation with the citizenry, the chiefs and the mhondoro of Zimbabwe. 5. There is no order as to costs.” This is a peculiar application in which the applicants are impugning the Global Compensation Deed which the Government of Zimbabwe entered into with representatives of former white commercial farmers who had their land compulsorily acquired under the Government’s land reform programme. The Global Compensation Deed (“GCD”) was concluded on 29 July 2020. Its main object is the provision of compensation to the former white farmers for improvements done on the acquired land. It appears this is a massive undertaking that requires large sums of money, given the magnitude of the land reform programme and the improvements done on the farms during the long years they were occupied by the white farmers. The first applicant is represented by the second applicant, who is its chairman. The second applicant avers that he is also bringing the application on his own behalf, alongside the other 11 applicants. The second applicant and the 11 others, who constitute the second to twelfth applicants, are members of the first applicant. There appears to be a mix up on capacity. The second to twelfth applicants seem to be asserting individual capacity at the same time claiming representative capacity as members of the first applicant. I shall advert to this point and its implication on this suit later in the judgment. In the founding affidavit, deposed to by the second applicant, the first applicant is described as “an informal politically unaffiliated grouping of the heroic war veterans of the Second Chimurenga/Umvukela national liberation struggle.” The founding affidavit denounces the GCD as discriminatory as it is favouring former white farmers against the black indigenous race, which has suffered under colonial rule. The applicants aver, in paragraph 3 of the founding affidavit, that the GCD; “constitutes unfair, cruel and degrading treatment of the black indigenous race, and consequently implementation of the Deed be suspended pending government’s adequate attention towards, and, (sic) full and final payment first to all the Zimbabwe indigenous black race white settler rule compensation concerns and claims occasioned over the centuries.” It is noted that this averment also constitutes para 1 and 2 of the applicants’ draft order. The applicants seek compensation for what the indigenous black race has suffered during pre-colonial, colonial and post-colonial Zimbabwe. The applicants do not clarify how such a colossal claim will be quantified. The founding affidavit goes into a lengthy narration of the history of Zimbabwe. It traces this history from 1890, when the Pioneer Column first settled in Harare. The affidavit highlights the developments that cemented British rule, such as the Moffat Treaty and the Rudd Concession. It then refers to early resistance to colonial rule, marked by the 1894 Matebele rebellion and the 1896 Shona rebellion (the 1st Chimurenga). The applicants take up their narrative to the 1970s war of liberation (the 2nd Chimurenga) until the Lancaster House Conference which led to independence in 1980. Against this background, the applicants aver that the GCD is “a cunning sell-out reversal of the national land reform and resettlement programme”. They contend that the Government will most probably fail to raise the funds required for the compensation, estimated to be 3.5 billion United States dollars. This will force the Government to offer payment in kind, which will be in the form of land. This will see the former white farmers coming back as beneficiaries of land meant for the national land reform programme. The applicants express disquiet and suspicion over the GCD, averring that; “The Deed has been shrouded in secrecy for no good reason, nor has its full contents been disclosed by the respondents. Something very serious is terribly not right there, we repeat for emphasis.” On the other hand, the respondents aver that there is nothing irregular or sinister about the GCD. It is not a reversal of the land reform programme. The respondents assert that the compensation they intend to implement is a valid process which is in fact being done in fulfilment of the Government's constitutional obligations. The respondents point out that the obligation to compensate improvements found on compulsorily acquired land is provided for in s 72 (3) of the Constitution. They further point out that any other form of compensation is in terms of s 295 of the Constitution. The respondents aver that there is no legal basis for the wider consultation with citizens, chiefs and mhondoro which the applicants are calling for. There is also no basis for the wider compensation for indigenous black Zimbabweans covering the entire pre-colonial, colonial and post-colonial period. The respondents make the comment that “applicants ought to argue law not history”. Indeed, as already indicated, the founding affidavit extensively covers the history of the country. In fact, about three quarters of it is on such history. Whilst the country’s history is to be cherished, as it shows how the imbalances in land distribution were created, it was not necessary for the applicants to dedicate almost the entire founding affidavit to this history. I note that the applicants have, in their heads of argument, raised a preliminary point to the effect that there is no opposition to their application. This is so because the first respondent’s opposing affidavit is fatally defective. It does not clearly disclose the name and designation of the Commissioner of Oaths. This point was not argued during oral submissions. No reference to it was made at all. It was virtually abandoned and will be safely regarded as abandoned. In any case, a look at the affidavit in question shows a date stamp in which the Commissioner of Oaths is designated as Legal Practitioner, Conveyancer and Notary Public. If there is any issue with it, it will probably be that the ink is rather faint. Surely, counsel could have asked to be served with a clearer copy instead of raising a point in limine. That possibly explains why the point was not pursued further. The respondents have raised some points in limine which must be disposed of before going into the details of the substantive issues. The four points in limine raised are that: The application is fatally defective The applicants have no locus standi The relief sought is incompetent There is no privity of contract Defective application It is not clear what averment the respondents are making under this point. The point appears only in the second respondent’s opposing affidavit. The respondent avers that the applicant must indicate “the form of application in which their relief is premised” and “the Notice must indicate the foundational basis of the application”. These averments are not elaborated. It is not clear what precisely is being impugned. The point is not argued in the heads of argument. There is no reference to it at all. Having regard to its vagueness, and its absence both in the heads of argument and oral submissions, I can safely conclude that the point was abandoned. There is therefore no basis on which I can uphold this preliminary point and it is accordingly dismissed. Locus standi Under this point, the respondents aver that the first applicant is not a legal persona. The founding affidavit does not lay the basis on which the first applicant has legal capacity to institute the proceedings. The first applicant is simply described as an informal grouping of veterans of the liberation struggle. The respondents contend that at law, anyone who approaches the courts must have capacity to sue and be sued. In response to this, the applicants have, in their heads of argument, drawn the court’s attention to the case of War Veterans Pressure Group & 11 Ors v The Minister of Defence & War Veterans Affairs N.O. & 2 Ors HH 226/20. In that case, the respondents, of which the second respondent is the same as in casu, raised this very same point i.e. locus standi of the first applicant. The legal practitioners for the respondents were the same, being the Civil Division of the Attorney General’s Office. The point was dismissed, the court holding that the applicants had the requisite locus standi. That judgment, in which that finding was made, was not appealed against. It is not clear why the respondents have, once again, before the same court, in respect of the same applicants, raised the same preliminary point. It places this court in the invidious position where it is asked to revisit its decision. For this court to hold to the contrary would be tantamount to reviewing its own decision. See Unitrack (Pvt) Ltd v TelOne (Pvt) Ltd SC 10/18. The respondents chose to abide by the decision of the court, instead of taking it on appeal. For them to raise the same point, albeit before a different judge of the same court, is essentially asking that the position taken earlier on be reconsidered. For this reason, I am unable to uphold the second preliminary point, and it is accordingly dismissed. Incompetent relief The respondents aver that it is incompetent for the applicants to seek a declaratory order together with consequential relief. I find no merit in this point and wonder why the respondents have even raised it. A reading of s 14 of the High Court Act does not show that it is incompetent to seek consequential relief. The import of this provision is that the court is empowered to make a declaration on the rights of a litigant, even if such declaration does not incorporate consequential relief. That does not mean that consequential relief is something outside the parameters of the provision. This is in fact what the court granted in War Veterans Pressure Group & Others v Minister of Defence & War Veterans Affairs, supra. The court made a declaration of entitlement to the pension in question, and also granted a compelling order for the payment the pension. Again, I find no merit in the third point in limine, and it is accordingly dismissed.Though the first three preliminary points have been dismissed, the applicants’ legal predicament remains. It is the fourth preliminary point that creates problems for them. It brings a fundamental dimension to this suit, which is the doctrine of the privity of contracts. Mr Muradzikwa, for the respondents, expressed the point as follows during oral submissions: “I have one more point, premised on the relief sought in paragraph (3). It is the doctrine of the privity of contracts. The applicants, all of them, are not part of the GCD they seek to set aside. They cannot challenge something they are not a party to. The relief now being sought will fall on that basis. The matter should be disposed of on that basis.” In response to this averment, the applicants brought in the issue of public interest litigation. In this regard, Mr Kanoti, for the applicants, told the court during oral submissions: “It is trite that the Executive arm of the State represents the citizenry. They hold office on behalf of the citizens. If the citizens were not allowed to account for their (the Executive) conduct, then who will ask? The Executive are using public funds. They also have a public duty to account to the citizens and follow the rule of law, which in Zimbabwe is that they should always uphold the Constitution. To that extent, I will conclude that this application is one of the available methods to make the Executive arm account to the population.” Therein lies the applicants’ predicament. It is now murky as to what capacity they have instituted these proceedings. In War Veterans Pressure Group & others v Minister of Defence, supra, which the applicants have heavily relied on in establishing their locus standi, the applicants instituted litigation for the payment of monthly pension for war veterans. That litigation was peculiar to, and specific to, their interests as war veterans. Clearly, they had direct and substantial interest in the disbursement of their pension, as agreed to between them and the Government. Thus, the first applicant, in that suit, represented the interests of its members, drawn from the veterans of the liberation struggle. In casu, the applicants are challenging the validity of an agreement entered into by the Government and other parties, being the associations representing former white commercial farmers. The applicants are not alleging any breach of the agreement, as they did with the agreement that was breached by non-payment of their pensions. They did so as a party to that agreement, and as such were privy to the rights and obligations binding the parties to that agreement. This is not so with the agreement in the instant case. It has rights/obligations of a different nature, and to which the first applicant, and by association the rest of the applicants, are not a party to. See TBIL (Pvt) Ltd & Anor v Mangenje & Ors SC 13/18, Chitumba v Chadenga & 3 Ors HH 41/23, Landale (Pvt) Ltd v Jusashe (Pvt) Ltd t/a Pam Golding Properties Zimbabwe HH 205/24. Realising this predicament, the applicants now claim they are holding the Government to account, as the custodian of public funds. In other words, they have instituted these proceedings in the public interest. They are challenging the constitutional validity of the GCD in the public interest. This category of litigation is provided for in s 85 of the Constitution, which they have not pleaded. It has requirements the applicants must meet. They must allege, and substantiate, infringement of fundamental rights protected by the Constitution. The applicants will have to allege what fundamental rights have been or are likely to be infringed by the actions of the respondents. This is not the thrust of their pleadings. The pith of their pleadings is that they have a direct and substantial interest in the matter, being the conclusion of the GCD by the Government and representatives of the former white commercial farmers. This position is reflected in paragraph 16 of their founding affidavit, wherein it is submitted: “It is our respectful averment that we have managed to prove on a balance of probability that we are interested persons in the sense of having direct and substantial interest in the subject matter of this suit, and the judgment of which will affect our interests.” The basis on which a court may be approached for the enforcement of constitutionally protected rights is laid out in s 85 (1) of the Constitution. It provides: “(1) Any of the following persons, namely— (a) any person acting in their own interests; (b) any person acting on behalf of another person who cannot act for themselves; (c) any person acting as a member, or in the interests, of a group or class of persons; (d) any person acting in the public interest; (e) any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.” The applicants must be clear and specific as to the capacity and category in which their constitutional challenge is instituted. They should not mix this up. Is the first applicant bringing a class action on behalf of war veterans? Then it ought to have proceeded under s 85 (1)(c) or (e). Is the first applicant bringing the application in the public interest? If so, it should have done so under paragraph (d). Are the second to the twelfth applicants bringing the application in their own interest? Then they should have individually pleaded so, under paragraph (a). Whatever the capacity or category under which they bring the application, they must clearly allege the constitutionally protected right infringed and how it has been infringed by the conduct of the respondents. These critical averments are not clearly coming out of the applicants’ pleadings. In the case of Samuel Sipepa Nkomo v Minister of Local Government, Rural and Urban Development & Ors CCZ 6/16, the Constitutional Court emphasised the point that a person cannot approach the court alleging infringement of fundamental rights both in his individual capacity and in the public interest. Ziyambi Jcc stated, at pp 6-7: “[8] In so far as the applicant alleges an infringement of his fundamental right enshrined in Chapter 4 of the Constitution, he may, in the absence of the rules referred to in s 85(3), be permitted to access this Court directly. On this basis he has, prima facie, the locus standi to bring his application in terms of s 85 (1) (a). But he cannot, as he has sought to do, act in his own interest as well as the public interest. This point was emphasized in Loveness Mudzuri & Anor v Minister Of Justice, Legal & Parliamentary Affairs N.O & 2 Ors1 where Malaba DCJ, delivering the judgment of the Court, held that an applicant should confine himself to one of the capacities set out in s 85 (1). At p 8 of the judgment the learned judge said: “What is in issue is the capacity in which the applicants act in claiming the right to approach the court on the allegations they have made. In claiming locus standi under s 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding” And at page 9: “The rule requires that the person claiming the right to approach the court must show on the facts that he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person. In other words the person must have a direct relationship with the cause of action.” It is therefore improper and fatally irregular for the applicants to approach the court in their individual interest, in the interest of the public, and in the interest of the generality of their members, all at the same time. Based on the fatally defective pleadings, the application cannot be upheld. The proper course of action is to order that it be struck off the roll. However, in case I am wrong in adopting this approach, it is my considered view that the application still fails on the merits. What emerges from the applicants’ convoluted founding affidavit and heads of argument are three points of argument, on the basis of which the GCD is impugned. The first is that compensation should be holistic and cover indigenous Zimbabweans for the loss they have suffered under colonial rule. The GCD misses this aspect and therefore places the white farmers it seeks to compensate at an advantage over the black population. This point is highlighted in the factual background, supra, where certain paragraphs of the applicants’ founding affidavit are cited. The applicants further contend that the compensation process should involve wider consultation. They argue that land is sacred and cannot be alienated without the chiefs’ and mhodoros’ approval. In response to this, the respondents aver that there is no basis for the wider consultation the applicants are talking about. There is also no basis for the compensation that dates back to the colonial or even pre-colonial era. The constitution is clear as to the forms of compensation the Government is under an obligation to pay. The GCD fully complies with the constitution. In this regard, reference was made to the relevant sections of the Constitution. These are ss 72 (3) and 295. Section 72 (2) provides: “Where agricultural land, or any right or interest in such land, is compulsorily acquired for a purpose referred to in subsection (2)— (a) subject to section 295(1) and (2), no compensation is payable in respect of its acquisition, except for improvements effected on it before its acquisition; (b) no person may apply to court for the determination of any question relating to compensation, except for compensation for improvements effected on the land before its acquisition, and no court may entertain any such application; and (c) the acquisition may not be challenged on the ground that it was discriminatory in contravention of section 56.” This section is allowing compensation only in respect of improvements on the land. This provision must be read in conjunction with s 295, which reads as follows: “295 Compensation for acquisition of previously-acquired agricultural land (1) Any indigenous Zimbabwean whose agricultural land was acquired by the State before the effective date is entitled to compensation from the State for the land and any improvements that were on the land when it was acquired. (2) Any person whose agricultural land was acquired by the State before the effective date and whose property rights at that time were guaranteed or protected by an agreement concluded by the Government of Zimbabwe with the government of another country, is entitled to compensation from the State for the land and any improvements in accordance with that agreement. (3) Any person, other than a person referred to in subsection (1) or (2), whose agricultural land was acquired by the State before the effective date is entitled to compensation from the State only for improvements that were on the land when it was acquired. (4) Compensation payable under subsections (1), (2) and (3) must be assessed and paid in terms of an Act of Parliament.” This provision sets out the exceptions to the requirement that compensation be for improvements only. The exceptions are limited to indigenous Zimbabweans and those holding land under internationally protected agreements. If land falling under these categories is acquired, the Government is obliged to pay compensation for both the land and improvements thereon. In any other case, compensation is for improvements only. None of what the applicants are urging the Government to do is included in these provisions. The respondents point out that what the GCD seeks to do is within the purview of these constitutional provisions. Indeed, the applicants have not shown how these constitutional provisions accommodate the extent of compensation they want covered. Realising the inadequacy of their broader averments, the applicants ended up narrowing down their impugnment of the GCD to non-compliance with s 295(4). This subsection provides that compensation must be assessed and paid in terms of an Act of Parliament. They contend that a Ministerial level agreement like the GCD cannot be equated to an Act of Parliament. It in fact usurps the powers of Parliament. It is ultra vires the Constitution. I am unable to uphold the applicants’ contention. The respondents’ case, essentially, is that they are mandated by the Constitution to compensate the former white farmers for improvements. This is what they have set out to do, and they are doing so within the legislative framework available. In this regard, the first respondent submits, in paragraph 24 of his opposing affidavit: “The Global Compensation Deed is valid in that it will be implemented in terms of the Land Acquisition Act. Compensation for improvements is not a new development since it has always been done since the onset of the land reform programme.” The Land Acquisition Act [Chapter 20:10] which the respondents have referred to contains provisions which deal extensively with compensation for compulsorily acquired land. PART III deals with the procedure for compulsory acquisition. PART V and PART VA deal extensively with issues related to compensation. They cover ss 16-29 and 29 A-29 D, respectively. The provisions cover pertinent issues like the lodgement of claims for compensation, assessment of compensation, establishment of a Compensation Committee, and appeals. So, this Act, apart from outlining the procedure for compulsory acquisition, also outlines the implementation modalities. It therefore complements the Constitution, which confers the broad mandate for the acquisition of and payment of compensation, by providing for the operational modalities for such acquisition and compensation. It is not correct, as submitted by the applicants in para 8 of their heads of argument, that there is yet to be an Act of Parliament to address compensation modalities. When the current Constitution came into force, the Land Acquisition Act was already in existence, with its extensive provisions on the assessment and payment of compensation. It is also not correct, as submitted by the applicants, again in para 8 of their heads of argument, that the respondents have not rebutted the assertion by the applicants that they have arrogated to themselves the lawmaking powers of Parliament. The respondents have clearly indicated that the GCD will be implemented in terms of the Land Acquisition Act. It is therefore not correct that the GCD violates s 295 (4) of the Constitution. In the circumstances, the application to have the GCD declared invalid and set aside cannot succeed. In the result, it is ordered that: The application be and is hereby dismissed. There is no order as to costs. Manyangadze J:……………………………………………….. Kanoti and Partners, applicants’ legal practitioners Civil Division of the Attorney General’s Office, respondents’ legal practitioners 1 CCZ 12/2015 1 CCZ 12/2015