Court name
Supreme Court of Zimbabwe
Case number
SC 116 of 2002
Const. Application 264 of 2002

Frontline Marketing Services (Pvt) Ltd. v Grain Marketing Board and Others (64/02) (SC 116 of 2002, Const. Application 264 of 2002) [2003] ZWSC 116 (19 January 2003);

Law report citations
Media neutral citation
[2003] ZWSC 116













REPORTABLE
(95)


Judgment
No. SC 116/02


Const.
Application No. 264/02








FRONTLINE
MARKETING SERVICES (PRIVATE) LIMITED v





(1) THE
GRAIN MARKETING BOARD


(2) THE
MINISTER OF LANDS, AGRICULTURE AND RURAL
RESETTLEMENT N.O.


(3) THE
ATTORNEY-GENERAL OF ZIMBABWE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA  JA, CHEDA JA, MALABA JA & GWAUNZA
JA


HARARE,
NOVEMBER 26, 2001 & JANUARY 20, 2003








L
L Chipato
,
for the applicant





D
Machingura
,
for the first respondent





B
Patel
,
with him
Y
Dondo
,
for the second and third respondents





SANDURA  JA:
This application has been brought to this Court in terms of s 24(1)
of the Constitution of Zimbabwe
(“the Constitution”) for redress
in respect of alleged contraventions of the Declaration of Rights.
The applicant seeks the
following relief:





“IT
IS HEREBY DECLARED THAT:






1. Section 3
of Statutory Instrument 235A of 2001, the Grain Marketing (Controlled
Products Declaration) (Maize and Wheat) Notice,
2001, and section 29
of the Grain Marketing Act [
Chapter 18:14]
(are) inconsistent with section 16(1) of the Constitution of
Zimbabwe and (are) therefore invalid insofar as (they):






(a) vest
in the Minister of Lands, Agriculture and Rural Resettlement the
exclusive privilege of declaring any product to be a controlled
product; and






(b) vest
in the Grain Marketing Board the exclusive privilege of determining
whether or not to grant any person permission to remove
(from) or
bring into a prescribed area any controlled agricultural produce or
any product derived therefrom.







2. Section 26,
section 33 and section 34 of the Grain Marketing Act
[
Chapter 18:14]
and Statutory Instrument 235A of 2001 are inconsistent with
section 21(1) of the Constitution of Zimbabwe and (are)
therefore
invalid insofar as they:






(a) (have)
declared the whole of Zimbabwe to be a prescribed area; and






(b) vest
with the Grain Marketing Board the exclusive privilege of carrying on
the trade of marketing, importing, buying, selling,
acquiring and
disposing of all controlled products in Zimbabwe.






IT
IS ORDERED THAT:





3. The
applicant be and is hereby entitled to import the maize product into
Zimbabwe free from interference from the Grain Marketing
Board.





4. The
applicant be and is hereby entitled to market, distribute, acquire
and dispose of all grain, including the maize commodity
or any
product derived therefrom, free from interference from the Grain
Marketing Board.





5. The
second respondent is hereby directed to issue the applicant with
Import Permits in terms of the Control of Goods (Import and
Export)
(Agriculture) Order, 1993.





6. The
applicant is hereby entitled to commence the importation of maize
into Zimbabwe in line with the permits already granted to
it by the
second respondent.”






The
first respondent, through its counsel, indicated that it would abide
by the decision of this Court, but the second and third
respondents
opposed the application.






The
background facts are these. The applicant is a company duly
incorporated in accordance with the laws of Zimbabwe. It carries
on
the business of agents, importers, exporters, distributors, buyers
and sellers of all classes of goods and commodities. It would
like
to import maize into Zimbabwe and sell it in Zimbabwe without
involving the first respondent (“the GMB”). Although it
has
been issued with permits to import maize into Zimbabwe by the second
respondent (“the Minister”), once the maize has been
imported it
cannot be sold or otherwise disposed of to anyone other than the GMB.
That is so because in terms of the provisions
of the Grain
Marketing Act [
Chapter 18:14]
(“the Act”) the GMB has the monopoly of buying and selling maize.





In
the circumstances, the applicant challenges that monopoly on the
ground that it infringes the applicant’s constitutional rights
guaranteed in terms of s 16(1) and s 21(1) of the
Constitution.





I
now wish to set out the constitutional and statutory provisions in
issue.





Section
16(1) of the Constitution, in relevant part, reads as follows:





“… no
property of any description or interest or right therein shall be
compulsorily acquired except under the authority of a law that
–





(a) requires
–





(i) in
the case of land or any interest or right therein …; or






(ii) in
the case of any property, including land, or any interest or right
therein, that the acquisition is reasonably necessary in
the
interests of defence, public safety, public order, public morality,
public health, town and country planning or the utilization
of that
or any other property for a purpose beneficial to the public
generally or to any section of the public; and






(b)
to (f) …”.






Section 21(1)
of the Constitution, which deals with the protection of the freedom
of assembly and association, reads as follows:





“Except
with his own consent or by way of parental discipline, no person
shall be hindered in his freedom of assembly and association,
that is
to say, his right to assemble freely and associate with other persons
and in particular to form or belong to political parties
or trade
unions or other associations for the protection of his interests.”





Section 26
of the Act, which deals with the functions and duties of the GMB,
reads as follows:





“The
functions and duties of the Grain Marketing Board shall be –






(a) to do all things necessary
and consistent with the provisions of this Act to ensure the orderly
marketing of controlled products
within any prescribed area;





(b) to
buy and sell any controlled product which is delivered to or acquired
by it under the provisions of this Act;





(c) to
provide storage, handling and processing facilities for controlled
products;





(d) to
maintain stocks of controlled products as it may consider necessary;





(e) to
import or export controlled products as it may consider necessary;





(f) to
do such other things, whether in relation to a controlled product or
not, not inconsistent with this Act, as may be required
by the
Minister.”






Section 29(1)
of the Act, which deals with the declaration of controlled products,
reads:





“The
Minister may, by statutory instrument, declare any agricultural
product or any product derived therefrom to be a controlled product
and shall specify in the statutory instrument the area within which
the product shall be a controlled product.”





Section 33(1)
of the Act, which deals with the sale or disposal of controlled
products, reads:






“Subject
to subsection (8),
section
thirty-five

and any order made in terms of paragraph 1 of the Schedule, no
person shall sell or otherwise dispose of any controlled product
within the prescribed area except to the Grain Marketing Board.”





Finally,
section 34(1) of the Act, which deals with the acquisition of
controlled products, provides as follows:






“Subject
to subsection (8) of
section
thirty-three
,
section
thirty-five

and any order made in terms of paragraph 1 of the Schedule, no
person shall buy or otherwise acquire within the prescribed area
any
controlled product otherwise than from the Grain Marketing Board.”





It
is important to note that in terms of s 35(1) of the Act any
person who has acquired a controlled product from the GMB in
terms of
the Act is permitted to sell or otherwise dispose of the controlled
product within the prescribed area in the normal course
of business,
provided he complies with any terms and conditions set by the GMB.
Similarly, any person may acquire such controlled
product from the
person selling or otherwise disposing of it in the normal course of
business.





I
now come to the declaration of maize as a controlled product. On
16 July 2001 the Minister, acting in terms of s 29(1)
of
the Act, issued the Grain Marketing (Controlled Products Declaration)
(Maize and Wheat) Notice, 2001, published in Statutory Instrument
235A of 2001 (“the Notice”), which declared that maize,
maize-meal, wheat and wheat-flour were, with effect from that day,
controlled
products within the whole of Zimbabwe.





The
effect of the declaration, as far as the applicant was concerned, was
that if it imported maize into Zimbabwe it could not sell
or
otherwise dispose of it except to the GMB, as required by s 33(1)
of the Act.





The
most important issue which arises in this application is whether the
freedom of trade or economic activity is protected by s 16(1)
of
the Constitution. In my view, it is not. Unlike the South African
Constitution, the Constitution of Zimbabwe does not
have any
provision dealing with the freedom of trade, occupation or
profession, or the right freely to engage in economic activity.





Section
26 of the Interim Constitution of the Republic of South Africa
(Act 200 of 1993) reads as follows:






“26. Economic
activity






(1) Every person shall have the
right freely to engage in economic activity and to pursue a
livelihood anywhere in the national territory.





(2) Subsection (1)
shall not preclude measures designed to promote the protection or the
improvement of the quality of life,
economic growth, human
development, social justice, basic conditions of employment, fair
labour practices or equal opportunity for
all, provided such measures
are justifiable in an open and democratic society based on freedom
and equality.”





However,
the above section was not reproduced in the final Constitution of the
Republic of South Africa (Act 108 of 1996).
In this
regard, section 22 of the final Constitution, which replaced
section 26 of the Interim Constitution, reads as
follows:





“22. Freedom
of trade, occupation and profession





Every
citizen has the right to choose their trade, occupation or profession
freely. The practice of a trade, occupation or profession
may be
regulated by law.”





In
passing, I wish to say that there are important differences between
section 26 of the Interim Constitution and section 22
of
the final Constitution of the Republic of South Africa. As
JONES J said in
JR1013
Investments CC & Ors v Minister of Safety and Security & Ors

1997 (7) BCLR 925 (E) at 928 F-g:





“The
differences between the rights enshrined in the new Constitution and
the interim Constitution are significant. The old section,
section 26, entrenched a right to engage in economic activity
and to pursue a livelihood. It gave this right to any person.
The
new Constitution confines its application to citizens. It does not
give them the right to engage in or pursue anything.
Instead it
gives them a right to choose a trade, occupation or profession. The
new Constitution has deliberately brought about
a change. The right
to choose a trade, occupation or profession is entirely different in
nature from a right either to engage in
economic activity or to
pursue a livelihood. It is wider in content. It is sacrosanct.”





Thus,
although the final Constitution of the Republic of South Africa
grants to every citizen the right to choose his/her trade,
occupation
or profession, the practice of such a trade, occupation or profession
may be regulated by law.





It
is pertinent to note that in terms of s 11 of the Constitution
of Zimbabwe, which is the preamble to the Declaration of
Rights, the
fundamental rights and freedoms of the individual afforded protection
are those specified in the Declaration of Rights.
The section, in
relevant part, reads:





“Whereas
persons in Zimbabwe are entitled … to the fundamental rights and
freedoms of the individual specified in this Chapter, …
the
provisions of this Chapter shall have effect for the purpose of
affording protection to those rights and freedoms …”.





In
my view, the fact that the right freely to engage in economic
activity of one’s choice is not one of the fundamental rights and
freedoms of the individual specified in the Declaration of Rights is
significant. It must mean that the right is not one of those
afforded protection by the Constitution.





In
addition, I do not believe that the submission made on behalf of the
applicant, that “the applicant’s right to trade in the
maize
commodity is property within the meaning of, and is guaranteed by,
s 16(1) of the Constitution”, has any validity.
Such a right
is not an absolute right.





Commenting
on the right to trade, DE VILLIERS JA had this to say in
Mathews & Ors v
Young
1922 AD 492 at
507:





“In
the absence of special legal restrictions a person is without doubt
entitled to the free exercise of his trade, occupation or calling,
unless he has bound himself to the contrary. But he cannot claim an
absolute right to do so without interference from another.

Competition often brings about interference in one way or another
about which rivals cannot legitimately complain. But the
competition
and indeed all activity must itself remain within lawful
bounds. All a person can, therefore, claim is the right to exercise
his
calling without unlawful interference from others.”





The
same point is made, perhaps more forcefully, by McKerron in
The
Law of Delict
7 ed
at p 270, where the learned author says the following:





“But
this right is subject to and conditioned by the existence of like
rights in others. It is therefore not a right in the strict
sense,
in the sense of a legally protected interest, but merely a liberty or
power – that is, a capacity of doing something which
the law does
not forbid, a mere negation of duty.”





In
the circumstances, it would be wholly inappropriate and incorrect to
describe the alleged right to buy and sell maize as property
or as a
legally protected interest. Accordingly, it is not protected by
s 16(1) of the Constitution.





Having
come to that conclusion, the other issue, i.e. whether the
applicant’s right to trade with any person of its choice in
the
course of buying and selling maize is protected by s 21(1) of
the Constitution, falls away. That is so because the alleged
right
to buy and sell maize is not protected by the Constitution and can,
therefore, be regulated by law, which has been done by
the enactment
of the Grain Marketing Act [
Chapter 18:14].





It
therefore follows that the application is without merit and ought to
be dismissed.





Finally,
as far as costs are concerned, Mr 
Patel,
who appeared for the second and third respondents, informed the Court
that in view of the fact that important questions have been
raised in
this application, if the application is dismissed there should be no
order as to costs. I am in complete agreement with
that approach.





In
the circumstances, the application is dismissed with no order as to
costs.














CHIDYAUSIKU
CJ: I agree.














CHEDA
JA: I agree.














MALABA
JA: I agree.














GWAUNZA
JA: I agree.














Jabula,
applicant's legal practitioners


Dube,
Manikai & Hwacha
,
first respondent's legal practitioners


Civil
Division of the Attorney-General’s Office
,
second and third respondents' legal practitioners