No. SC 116/02
Application No. 264/02
MARKETING SERVICES (PRIVATE) LIMITED v
GRAIN MARKETING BOARD
MINISTER OF LANDS, AGRICULTURE AND RURAL
ATTORNEY-GENERAL OF ZIMBABWE
COURT OF ZIMBABWE
CJ, SANDURA JA, CHEDA JA, MALABA JA & GWAUNZA
NOVEMBER 26, 2001 & JANUARY 20, 2003
for the applicant
for the first respondent
with him Y
for the second and third respondents
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
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):
in the Minister of Lands, Agriculture and Rural Resettlement the
exclusive privilege of declaring any product to be a controlled
in the Grain Marketing Board the exclusive privilege of determining
whether or not to grant any person permission to remove
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
and Statutory Instrument 235A of 2001 are inconsistent with
section 21(1) of the Constitution of Zimbabwe and (are)
invalid insofar as they:
declared the whole of Zimbabwe to be a prescribed area; and
with the Grain Marketing Board the exclusive privilege of carrying on
the trade of marketing, importing, buying, selling,
disposing of all controlled products in Zimbabwe.
IS ORDERED THAT:
applicant be and is hereby entitled to import the maize product into
Zimbabwe free from interference from the Grain Marketing
applicant be and is hereby entitled to market, distribute, acquire
and dispose of all grain, including the maize commodity
product derived therefrom, free from interference from the Grain
second respondent is hereby directed to issue the applicant with
Import Permits in terms of the Control of Goods (Import and
(Agriculture) Order, 1993.
applicant is hereby entitled to commence the importation of maize
into Zimbabwe in line with the permits already granted to
it by the
first respondent, through its counsel, indicated that it would abide
by the decision of this Court, but the second and third
opposed the application.
background facts are these. The applicant is a company duly
incorporated in accordance with the laws of Zimbabwe. It carries
the business of agents, importers, exporters, distributors, buyers
and sellers of all classes of goods and commodities. It would
to import maize into Zimbabwe and sell it in Zimbabwe without
involving the first respondent (the GMB). Although it
been issued with permits to import maize into Zimbabwe by the second
respondent (the Minister), once the maize has been
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.
the circumstances, the applicant challenges that monopoly on the
ground that it infringes the applicants constitutional rights
guaranteed in terms of s 16(1) and s 21(1) of the
now wish to set out the constitutional and statutory provisions in
16(1) of the Constitution, in relevant part, reads as follows:
property of any description or interest or right therein shall be
compulsorily acquired except under the authority of a law that
the case of land or any interest or right therein ; or
the case of any property, including land, or any interest or right
therein, that the acquisition is reasonably necessary in
interests of defence, public safety, public order, public morality,
public health, town and country planning or the utilization
or any other property for a purpose beneficial to the public
generally or to any section of the public; and
to (f) .
of the Constitution, which deals with the protection of the freedom
of assembly and association, reads as follows:
with his own consent or by way of parental discipline, no person
shall be hindered in his freedom of assembly and association,
to say, his right to assemble freely and associate with other persons
and in particular to form or belong to political parties
unions or other associations for the protection of his interests.
of the Act, which deals with the functions and duties of the GMB,
reads as follows:
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;
buy and sell any controlled product which is delivered to or acquired
by it under the provisions of this Act;
provide storage, handling and processing facilities for controlled
maintain stocks of controlled products as it may consider necessary;
import or export controlled products as it may consider necessary;
do such other things, whether in relation to a controlled product or
not, not inconsistent with this Act, as may be required
of the Act, which deals with the declaration of controlled products,
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.
of the Act, which deals with the sale or disposal of controlled
to subsection (8), section
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.
section 34(1) of the Act, which deals with the acquisition of
controlled products, provides as follows:
to subsection (8) of section
and any order made in terms of paragraph 1 of the Schedule, no
person shall buy or otherwise acquire within the prescribed area
controlled product otherwise than from the Grain Marketing Board.
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
the Act is permitted to sell or otherwise dispose of the controlled
product within the prescribed area in the normal course
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
now come to the declaration of maize as a controlled product. On
16 July 2001 the Minister, acting in terms of s 29(1)
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,
products within the whole of Zimbabwe.
effect of the declaration, as far as the applicant was concerned, was
that if it imported maize into Zimbabwe it could not sell
otherwise dispose of it except to the GMB, as required by s 33(1)
of the Act.
most important issue which arises in this application is whether the
freedom of trade or economic activity is protected by s 16(1)
the Constitution. In my view, it is not. Unlike the South African
Constitution, the Constitution of Zimbabwe does not
provision dealing with the freedom of trade, occupation or
profession, or the right freely to engage in economic activity.
26 of the Interim Constitution of the Republic of South Africa
(Act 200 of 1993) reads as follows:
(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
the above section was not reproduced in the final Constitution of the
Republic of South Africa (Act 108 of 1996).
regard, section 22 of the final Constitution, which replaced
section 26 of the Interim Constitution, reads as
of trade, occupation and profession
citizen has the right to choose their trade, occupation or profession
freely. The practice of a trade, occupation or profession
regulated by law.
passing, I wish to say that there are important differences between
section 26 of the Interim Constitution and section 22
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:
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.
new Constitution confines its application to citizens. It does not
give them the right to engage in or pursue anything.
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.
although the final Constitution of the Republic of South Africa
grants to every citizen the right to choose his/her trade,
or profession, the practice of such a trade, occupation or profession
may be regulated by law.
is pertinent to note that in terms of s 11 of the Constitution
of Zimbabwe, which is the preamble to the Declaration of
fundamental rights and freedoms of the individual afforded protection
are those specified in the Declaration of Rights.
The section, in
relevant part, reads:
persons in Zimbabwe are entitled to the fundamental rights and
freedoms of the individual specified in this Chapter,
provisions of this Chapter shall have effect for the purpose of
affording protection to those rights and freedoms .
my view, the fact that the right freely to engage in economic
activity of ones 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.
addition, I do not believe that the submission made on behalf of the
applicant, that the applicants right to trade in the
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.
on the right to trade, DE VILLIERS JA had this to say in
Mathews & Ors v
Young 1922 AD 492 at
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
and indeed all activity must itself remain within lawful
bounds. All a person can, therefore, claim is the right to exercise
calling without unlawful interference from others.
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:
this right is subject to and conditioned by the existence of like
rights in others. It is therefore not a right in the strict
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.
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.
come to that conclusion, the other issue, i.e. whether the
applicants right to trade with any person of its choice in
course of buying and selling maize is protected by s 21(1) of
the Constitution, falls away. That is so because the alleged
to buy and sell maize is not protected by the Constitution and can,
therefore, be regulated by law, which has been done by
of the Grain Marketing Act [Chapter 18:14].
therefore follows that the application is without merit and ought to
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
this application, if the application is dismissed there should be no
order as to costs. I am in complete agreement with
the circumstances, the application is dismissed with no order as to
CJ: I agree.
JA: I agree.
JA: I agree.
JA: I agree.
applicant's legal practitioners
Manikai & Hwacha,
first respondent's legal practitioners
Division of the Attorney-Generals Office,
second and third respondents' legal practitioners