Court name
Supreme Court of Zimbabwe
Case number
SC 47 of 2004
Const. Application 13 of 2004

Quinnell v Minister of Lands Agriculture and Rural Resettlement and Others (13/04) (SC 47 of 2004, Const. Application 13 of 2004) [2004] ZWSC 47 (10 November 2004);

Law report citations
Media neutral citation
[2004] ZWSC 47




REPORTABLE
(81)














Judgment
No S.C. 47/04


Const.
Application No 13/04

















GEORGE
PRETORIUS QUINNELL


v



(1) MINISTER OF LANDS,
AGRICULTURE AND RURAL RESETTLEMENT


(2)
MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY
AFFAIRS


(3)
ATTORNEY-GENERAL OF ZIMBABWE











SUPREME
COURT OF ZIMBABWE


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


HARARE
MAY 27 & NOVEMBER 11, 2004








W.
Trengove S.C.,
with
him,
J.C. Andersen
S.C.,
for the
applicant





N.
Matanda-Moyo,
with
her,
N. Mutsonziwa,
for the respondents









MALABA JA: On 4 May 2004
the High Court, with the consent of the parties, referred for
determination by this Court the following
constitutional questions:






“1. Whether or not the Land
Acquisition Amendment Act No 6 of 2002, was not lawfully enacted by
Parliament and is therefore invalid
and of no force and effect.





Alternatively:






Whether or not the amendments to
sections 8, 9 and 10 of the Land Acquisition Act [Chapter 20:10] made
in terms of the Land Acquisition
Amendment Act No 6 of 2002, are
invalid and of no force and effect by reason of being in conflict
with sections 11, 16(1)(b), 16(1)(c),
16(1)(d), 18(5), 18(9) and
23(1) of the Constitution of Zimbabwe.






2. Whether or not Mr Patrick
Anthony Chinamasa MP ceased to be the Minister of Justice, Legal and
Parliamentary Affairs with effect
from 1 April 2002.





3. Whether
or not Dr Joseph Mutakwese Made MP ceased to be the Minister of
Lands, Agriculture and Rural Resettlement with effect from
1 April
2002 and that the section 8 acquisition order signed by him on 29
April 2002 concerning applicant’s farm known as Nyalugwe
is invalid
and of no force and effect.”









At the hearing of the
application it was indicated that the relief sought by the applicant
was an order in the following terms:






“1. It is declared that the
Land Acquisition Amendment Act 6 of 2002 was not lawfully enacted and
is consequently invalid and of no
force or effect.





2. Alternatively,
it is declared that the amendment of sections 8 and 9 of the Land
Acquisition Act [Chapter 20:10] made by the Land
Acquisition
Amendment Act 6 of 2002, violates sections 16(1)(b) and 18(9) of the
Constitution and are consequently invalid and of
no force or effect.





3. The
respondents are ordered jointly and severally to pay the applicant’s
costs.”









It will be seen from the relief
sought that the allegations that amendments to section 10 of the Land
Acquisition Act [Chapter 20:10]
(“the Act”) contravened any of
the provisions of the Constitution of Zimbabwe (the Constitution)
mentioned in paragraph 1 of
the referral order or that the amendments
to sections 8 and 9 violated sections 11, 16(1)(c), 16(1)(d), 18(5)
and 23(1) were not
proceeded with.







PARTIES



The applicant was the owner of
agricultural land known as Nyalugwe Farm situated in the district of
Lomagundi (the land). The land
became the subject of compulsory
acquisition for resettlement purposes under the Act.






The
first respondent is the acquiring authority as defined in section 2
of the Act. He caused a preliminary notice of the intention
of the
State to acquire the land to be published in the Government Gazette
(G.N. 322C of 2001) on 29 June 2001. On 29 April 2002
he made an
order acquiring the land in terms of subsection (1) of section 8 of
the Act. It was, however, conceded on behalf of
the first
respondent in proceedings before the High Court, that the preliminary
notice and order of acquisition lacked legal effect
because the
former had not been served upon the bondholder with interest in the
land and in respect of the latter an application
to the
Administrative Court had not been made not later than 30 days from
the date the order of acquisition was served on the applicant
for an
order confirming the acquisition as required by subsection (1) of
section 7 of the Act.






The second respondent
introduced into Parliament the Land Acquisition Amendment Bill which
became Act No 6 of 2002. He is also
cited because it is alleged
that he was not a “Minister” when he introduced the bill because
under Standing Order 102 only a
“Minister” has authority to
introduce into Parliament a bill without having obtained prior leave
of the House to do so. The
allegations were that in terms of the
provisions of section 31E(1)(c) of the Constitution the second
respondent ceased being a Minister
on 1 April 2002 when the President
assumed office.






The
third respondent was cited in compliance with section 24(6) of the
Constitution to the effect that if in any proceedings it
falls to be
determined whether any law is in contravention of the Declaration of
Rights the Attorney-General shall be entitled to
be heard by the
court on that question.






FACTS



The facts and circumstances on
which the relief sought by the applicant is based are not in dispute.
They start on 8 January 2002
when the General Laws Amendment Bill
which was to amend 48 Acts of Parliament was rejected at the third
reading stage when the House
got divided with 36 votes against and 24
votes in favour of the bill being read a third time. The second
respondent later successfully
applied for the suspension by the House
of Standing Order 127 which prohibits the introduction of a bill of
the same substance as
another bill which has been introduced during
the same session and which has not been withdrawn. On 10 January
the bill was read
a third time. It became law on 4 February 2002.






In
subsection (1) of section 27 the General Laws Amendment Act sought to
amend the Land Acquisition Act in the following manner:






“(a) in section 8 -





(i) in
subsection (1) by the insertion of the following proviso after
proviso (ii) -






‘(iii) where land is offered
for acquisition by



the owner in terms of subsection
(2), (3) or (4) of section six A or subsection (2) or (3) of section
six B and accepted by the acquiring
authority, it shall not be
necessary for the acquiring authority to make an order in terms of
this subsection, and such land shall
vest immediately in the
acquiring authority upon acceptance of the offer as if an order had
been made in terms of this subsection.’






(ii) by the repeal of subsection
(2) and the substitution of -






‘(2) Immediately after making
an order in terms of subsection (1) an acquiring authority may -






(a) in relation to land other
than agricultural land required for resettlement purposes, exercise
any right specified in that order
if the exercise of that right does
not require the eviction of the owner or occupier of the land
concerned; and





(b) in
relation to any agricultural land required for resettlement purposes,
exercise any right of ownership, including the right
to survey,
demarcate and allocate the land concerned for agricultural purposes,
without undue interference to the living quarters
of the owner or
occupier of that land:






Provided that this subsection
shall not permit an acquiring authority, other than the President or
a Minister, to do anything which
interferes with rights acquired in
terms of the Mines and Minerals Act [Chapter 21:05] without the
permission in writing of the Minister
responsible for mines.’;







(iii)by the insertion after
subsection (6) of the following section -






‘(7) Any owner or occupier of
the land concerned or other person who, after an order is made in
terms of subsection (1), interferes
with the exercise by the
acquiring authority of any right in terms of subsection (2) or
anything done pursuant to the exercise of
such right, without the
permission in writing of the acquiring authority, otherwise than in
the exercise of rights acquired in terms
of the Mines and Minerals
Act [Chapter 21:05], shall be guilty of an offence and liable to a
fine not exceeding twenty thousand dollars
or imprisonment for a
period not exceeding two years or to both such fine and such
imprisonment.’;






(b) by the repeal of section 9
and the substitution of –






‘9. Eviction
of owner or occupier







The
following provisions shall, subject to subsection (5) of section
seven and subsections (3) and (4) of section eight, apply to
the
vacation by the owner or occupier of land acquired in terms of this
Act –







(a) in relation to land other
than agricultural land required for resettlement purposes, any person
who, immediately prior to the
date on which an order is made in terms
of subsection (1) of section eight, owned, occupied, held or used the
land to which such
order relates shall, if so required by not less
than three months’ notice in writing by the acquiring authority,
cease to occupy,
hold or use that land, and if he fails to do so, he
shall be liable to be evicted by order of a competent court;





(b) in
relation to any agricultural land required for resettlement purposes,
the making of an order in terms of subsection (1) of
section eight
shall constitute notice in writing to the owner or occupier to cease
to occupy, hold or use that land immediately on
the date of service
of the order upon the owner or occupier, and if he fails to do so, he
shall be liable to be evicted by order
of a competent court:






Provided that the owner or
occupier of that land may remain in occupation of his living quarters
on that land for a period of not
more than three months after the
date of service of the order.’






(c) in section 10 in subsection
(1) by the repeal of paragraph (a) and the substitution of –






‘(a) a copy of the order made
in terms of that subsection or, where no such order was required in
terms of proviso (iii) to that subsection,
written confirmation to
that effect; and’






(2) Sections 8, 9 and 10 of the
principal Act as amended by this Act shall be deemed to have come
into operation on the 23r
d
May, 2000:







Provided that where an order in
terms of subsection (1) of section 8 of the principal Act was made
before the date of commencement
of this Act, the date of the notice
referred to in paragraph (b) of section 9 of the principal Act, and
the date from which the period
of three months referred to in the
proviso to that paragraph shall be counted, shall be the date of
commencement of this Act.”









These are all the provisions of
section 27(1) of the General Laws Amendment Bill.






On 27 February 2002 Tendai
Laxton Biti, a Member of Parliament belonging to the opposition
political party, the Movement for Democratic
Change (MDC), brought a
constitutional application in which he challenged the validity of the
General Laws Amendment Act on the ground
that the bill from which it
was made had been re-introduced into the House in contravention of
the provisions of Standing Order 127.
The case, not yet reported,
is
Biti & Anor v
The Minister of Justice Legal and Parliamentary Affairs and Anor

S-10-02. By a majority of four to one the Court held that the
re-introduction of the General Laws Amendment Bill after its
rejection
by the House upon a division contravened the provisions of
Standing Order 127. The Act was declared invalid and of no force or
effect.






On
9 and 10 March 2002 an election to the office of President was held.
The term of office of the President was to expire on 1
April. The
incumbent President was re-elected and assumed office in the new term
on 1 April 2002 after taking and subscribing the
oaths of loyalty and
office.






On 7 May 2002 the second
respondent introduced into Parliament the Land Acquisition Amendment
Bill. He used the procedure prescribed
by Standing Order 102 (2)(i)
in terms of which a Minister can introduce a bill on notice of
presentation without having sought and
obtained the leave of the
House. Unlike the procedure on notice of motion for leave,
presentation of a bill without leave effectively
prevents debate on
the substance of the bill as very little information on the bill is
given and no question on the propriety of
its introduction is asked
once the notice of presentation has not been ruled out of order.
The bill was presented to the House
when the Clerk read its short
title at the invitation of the second respondent.







On 8 May the second respondent
moved that the bill be read a second time. He made a brief speech
explaining the principle of the
bill. He also disclosed to the
House that he intended moving amendments and additions to the
substance of the bill at the committee
stage. The propriety of
introducing the bill was not raised by any of the members of the
House at this stage. No objection was
made to the introduction of
the bill on the ground that it was of the same substance as section
27(1) of the General Laws Amendment
Bill which had been introduced
into the House during the same session and which had not been
withdrawn. Objections to the introduction
of the bill on the
grounds that it contravened the provisions of Standing Order 127
should have been taken at this stage of the proceedings
and before
the second reading. It is not the practice to order bills to be
withdrawn, after they are committed, on account of any
irregularity
which can be cured while the bill is in committee.







The bill was read a second time
and thereafter went into the committee stage. Here there was heated
and extensive debate on the
substance of the amendments and additions
to the provisions of the bill proposed by the second respondent.
Eventually the proposed
amendments and additions to the provisions of
the bill were agreed to and adopted to stand as parts of the bill, as
reflected in
the Committee report. The bill with the amendments and
additions was read a third time upon a motion put and agreed to.
The bill
became the Land Acquisition Amendment Act No 6 of 2002 on 10
May 2002.







The amendments and additions to
the provisions of the bill at the committee stage are significant in
that their inclusion rendered
the bill substantially different from
the substance of the provisions of section 27(1) of the General Laws
Amendment Bill. It is
common cause that at the time of its
presentation to the House the former bill was of the same substance
as section 27(1) of the
latter bill which had been introduced in the
same session and had not been withdrawn.







An interesting question was
raised on behalf of the respondents whether or not a bill can be
described as a bill introduced in the
same session and which has not
been withdrawn when the Act made from it has been declared invalid
and of no force or effect by a
court. It has not been found
necessary to determine this question because we can proceed on the
assumption that the introduction
of the General Laws Amendment Bill
and the proceedings of the House in respect to it are matters of fact
the occurrence of which
cannot be denied.







I digress from the narration of
the facts to highlight the main differences in substance which made
the two bills incompatible at
the time the Land Acquisition Amendment
Bill became law. The opportunity to occupy, hold or use the
acquired land for forty-five
days after the service of the order of
acquisition was now subject to the right of the acquiring authority
to survey, demarcate and
allocate the agricultural land required for
resettlement purposes as long as these activities did not interfere
with the living quarters.
Section 27(1) of the General Laws
Amendment Bill had required the owner or occupier of agricultural
land acquired for resettlement
purposes to cease to occupy, hold or
use the land immediately on the date of service of the order of
acquisition. The Land Acquisition
Amendment Bill imposed an
obligation on the owner or occupier to vacate the land at the end of
forty-five days from the date of service
of the order of acquisition
subject to the exercise by the acquiring authority of its rights
under subsections (2),(3),(4) and (7)
of section 8.







Section 27(1) of the General
Laws Amendment Bill had provided for the eviction by order of a
competent court of an owner or occupier
who failed to immediately
cease to occupy, hold or use the land acquired for resettlement
purposes. The Land Acquisition Amendment
Bill changed this and
created a criminal offence out of the failure by the owner or
occupier to cease to occupy, hold or use the
agricultural land
acquired for resettlement purposes at the end of the prescribed
period.







Instead of dealing with the
prescription of the time at the expiry of which the obligation on the
owner or occupier was to commence,
the Land Acquisition Amendment
Bill now added, as a subject-matter for legislation, the
criminalisation of the failure to comply
with the order to cease to
occupy, hold or use the land at the expiry of forty-five days from
the date of service of the order of
acquisition. The offence was
made punishable with a fine not exceeding twenty thousand dollars or
imprisonment for a period not
exceeding two years or both such fine
and such imprisonment. A court was now required, upon convicting
the owner or occupier charged
with the offence to order his eviction
from the acquired land.







Whilst section 27(1) of the
General Laws Amendment Bill had not criminalised the failure by the
owner or occupier to vacate the
living quarters at the end of three
months from the date of service of the order of acquisition, the Land
Acquisition Amendment Bill
brought it in as a subject-matter of its
provisions. The requirement that upon convicting an owner or
occupier of the offence of
failing to vacate the living quarters at
the expiry of ninety days from the date of service of the order of
acquisition a court must
order his eviction was an entirely new
subject-matter.







Section 5 of the Land
Acquisition Amendment Bill also brought in as a new subject-matter
for legislation the payment of compensation
for any other
improvements on or to the land which enhanced its value for
agricultural purposes and with the agreement of the owner,
for
movables used in connection with the land for agricultural purposes
including irrigation equipment not embedded in the ground,
tractors,
ploughs, disc harrows, trailers, combine harvesters, pumps not
permanently attached to the land, sprinklers, risers and
movable
storage facilities.







Section 6 of the Land
Acquisition Amendment Bill gave retrospective effect (from 23 May
2000) to the Act. The substance of the
Schedule of the Act had not
been affected insofar as its retrospective application was concerned
by subsection (2) of section 27
of the General Laws Amendment Bill in
terms of which sections 8, 9 and 10 of the Act were to have
retrospective effect from 23 May
2000.







I now continue with the
narration of the facts. Before its repeal by Act No 6 of 2002
subsection (2) of section 8 had provided
that the acquiring authority
could immediately after making an order of acquisition in terms of
subsection (1) of section 8, exercise
any rights specified in that
order if the exercise of that right did not require the eviction of
the owner or occupier of the land
concerned. If the acquiring
authority required the eviction of the owner or occupier it was
obliged to give him three months’
notice to cease to occupy, hold
or use the acquired land and if he failed to obey the notice, he
could be evicted by an order of
a competent court.






Whether
the owner or occupier was placed under an obligation to cease to
occupy, hold or use the land and when that happened depended
upon the
exercise of executive discretion by the acquiring authority. Whilst
the acquiring authority could, in certain circumstances,
survey,
demarcate and allocate the acquired land during the period of the
three months’ notice given to the owner or occupier to
cease to
occupy, hold or use the land, without undue interference to the
living quarters and the activities and operations of the
owner or
occupier of the acquired land, it could not do so in respect of
agricultural land the acquisition of which had been objected
to in
terms of section 5 and not been authorised or confirmed by the
Administrative Court.






The effect of the amendment to
sections 8 and 9 of the Act is that the period at the end of which
the owner or occupier has to cease
to occupy, hold or use
agricultural land acquired for resettlement purposes is fixed by
statute at forty-five days in respect of
the land and ninety days in
respect of the living quarters and both periods are made to run from
the date of service of the order
of acquisition. The acquiring
authority can now exercise the right to survey, demarcate and
allocate agricultural land acquired
for resettlement purposes
regardless of the fact that an application for an order confirming
the acquisition has been made to the
Administrative Court.







In Airfield
Investment (Pvt) Ltd v The Minister of Lands, Agriculture and Rural
Resettlement and Ors

S-36-04 at p 6, it was held that the fact that the application for an
order confirming the acquisition was pending before the
Administrative
Court was no longer a restriction to the exercise by
the acquiring authority of the rights of ownership vested in it by
the order
of acquisition made and served on the owner or occupier of
agricultural land required for resettlement purposes.







DETERMINATION OF
QUESTIONS



The first question is based on
the proposition that the introduction of a bill in contravention of
the provisions of Standing Order
127 spells invalidity in the
resultant Act regardless of the circumstances and the procedure used
to present the bill to the House.
Standing Order 127 provides
that:-






“127. Subject to the provisions
of the Constitution, no bill shall be introduced which is of the same
substance as some other bill
which has been introduced during the
same session and which has not been withdrawn.”









Legislative power in Zimbabwe
is vested by section 32(1) of the Constitution in the Legislature
consisting of the President and
Parliament. This plenary power is
in terms of section 51(1) of the Constitution exercised by bills
passed by Parliament and assented
to by the President. Power is
given to Parliament under section 57(1) of the Constitution to make
standing orders for the regulation
and conduct of its proceedings
provided that the standing orders are not inconsistent with the
Constitution and any other law.
Once made, standing orders have the
force of a constitutional provision.







The contention advanced on
behalf of the applicant was that the Land Acquisition Amendment Bill
was the same in substance as section
27(1) of the General Laws
Amendment Bill which had been introduced during the same session and
had not been withdrawn. The argument
was that the presentation of
the Land Acquisition Amendment Bill was in violation of Standing
Order 127. The resultant Act was
therefore invalid and of no force
or effect.







I have no difficulty in
accepting as a fact that the Land Acquisition Amendment Bill was the
same in substance as section 27(1)
of the General Laws Amendment
Bill. There was, of course, a violation of Standing Order 127
although it was of a technical nature.
I do not accept the general
proposition that presentation of a bill in contravention of Standing
Order 127 in all circumstances
spells as its necessary consequence
invalidity in the resultant Act.







Courts do not concern
themselves with what happens in Parliament as such but with its
effect on the validity of the enacted legislation.
Standing orders
are made by Parliament principally to regulate and control its own
proceedings. Not every contravention of a
standing order would,
therefore, have the effect of invalidating the resultant Act.
Breach of a standing order may by its nature
remain a matter for the
internal proceedings of Parliament. In such a case presenting a
bill in breach of a standing order is one
thing and enacting a valid
law another. The
onus
is on the applicant to show that invalidity of an Act is the
necessary consequence of a breach of the provisions of the standing
order the construction of which forms the basis of the claim. The
determination of the question depends upon the construction of
the
language of Standing Order 127.






The
makers of the standing order could by express language have declared
that the happening of an event such as the breach of its
provisions
shall have as its effect the invalidation of the resultant Act. The
court would, in that case, give effect to the intention
of Parliament
because what it would be involved in is a judicial examination of the
regularity of the legislative procedure by which
the statute, the
validity of which is impugned, would have been enacted. There would
have to be such a defect of constitutional
procedure as would result
in it being impossible to say that the bill proceeded with became a
valid law before a court can declare
an Act of Parliament invalid on
grounds of procedural irregularity.






In Clayton
& Ors v Heffron & Ors

105 CLR 214 DIXON CJ, McTIERNAN J, TAYLOR J and WINDEYER J, in a
joint judgment, said at p 246:-







“In
this case there are two matters with which we are dealing: the
legislative power and the procedure for its exercise. The
principles
of the common law distinguished sharply between invalid
attempts to exercise a legislative power and departures from the
prescribed
course for its exercise which may not or do not bring
invalidity as a necessary consequence. In the end the distinction
must be
governed by the intention expressed by the legislature
conferring the power and prescribing the steps to be taken in the
course of
its exercise. But commonly no express declaration is to
be found in a statutory power as to the effect on validity of
departures
from the procedure laid down. The question is then
determined by reference to the nature of the power conferred, the
consequences
which flow from its exercise, the character and purpose
of the procedure prescribed.”










At p. 235 of the judgment in
Clayton’s
case,
supra,
the learned Justices stated the principle that it was up to the
legislature to make it clear that a breach of the standing order
in
question shall have as its necessary consequence invalidity in the
resulting Act:-







“… the framers of a
Constitution may make the validity of a law depend upon any fact,
event or consideration they may choose, and if
one is chosen which
consists in a proceeding within Parliament the courts must take it
under their cognizance in order to determine
whether the supposed law
is a valid law.”









In this case Standing Order 127
does not have the words to the effect that any law enacted from a
bill introduced in violation of
its provisions shall be void and of
no force or effect. In the absence of such language the mere fact
of a contravention of Standing
Order 127 cannot, in the
circumstances, of necessity result in the invalidity of Act No 6 of
2002. The object of Standing Order
127 is to protect Parliament
from the embarrassment of having to debate the same matter twice in
one session.







The question of the validity of
Act No 6 of 2002 has to be determined by reference to other factors
such as the character and purpose
of the procedure prescribed. One
cannot ignore in the enquiry the fact that the procedure of
presenting the bill to Parliament
without leave resulted in
amendments and additions being made to the bill with the result that
when it was passed into law it was
substantially different from
section 27(1) of the General Laws Amendment Bill. One cannot also
ignore the fact that as a result
of these steps taken in the
procedure in the exercise of its legislative power, Parliament did
not decide the same matter twice.
The result, the prevention of
which is the object of Standing Order 127, did not occur from its
violation. The contravention
remained of a technical or incidental
nature having no effect at all on the substance of the law-making
process in Parliament.







The court must, of course, take
into account the fact that Standing Order 127 is couched in language
which imposes a negative duty.
It is couched in mandatory terms.
Does this mean, as appears to have been accepted by the majority in
Biti’s
case,
supra,
that in every case of breach of Standing Order 127 the intention of
the makers thereof is that the resultant Act must be declared
invalid? I do not think so. Courts in other jurisdictions faced
with the same question have considered the provisions of standing
orders as directory rather than mandatory. See
Namoi
Shire Council v Attorney-General for New South Wales

(1980) 2 NSWLR 639: (1981) 7 Commonwealth Law Bulletin 1233.







Constitutional provisions like
standing orders which relate to proceedings in the House are
generally considered directory. At
p. 247 of the joint judgment in
Clayton’s
case,
supra,
the learned Justices said:-







“Lawyers speak of statutory
provisions as imperative when any want of strict compliance with them
means that the resulting act, be
it a statute, a contract or what you
will, is null and void. They speak of them as directory when they
mean that although they
are legal requirements which it is unlawful
to disregard yet failure to fulfil them does not mean that the
resulting act is wholly
ineffective is null and void.”









At p. 266 of Clayton’s
case,
supra,
KITTO J, who wrote a separate opinion from the other four judges
said:-







“It is familiar law that in
many contexts legislative prescriptions to be observed in the
exercise of powers or authorities or in the
performance of functions
are to be regarded as directory only, so that if the powers or
authorities are in fact exercised or the
functions performed without
observance of the prescription, what is done is nevertheless of full
legal efficacy. In the case of
a legislative body the prescription
of something to be done in the course of law-making should no doubt
often be treated as in the
nature of a direction to the Legislature
or to one or more of its constituent elements and not as laying down
conditions of validity
for legislation."









In Victoria
v The Commonwealth and Connor

134 CLR 81 at 179 STEPHEN J said that:-







“A directory construction will
not assist in securing validity, unless despite the non-compliance
which is the occasion for invoking
that construction, there may
nevertheless be seen to be substantial compliance with the general
object at which the statutory provision
aims. … If in such a
case a directory construction be adopted the extent of non-compliance
in the particular case must then
be examined to determine whether
what has in fact occurred nevertheless gives effect to the general
object of the statute.”









The procedure used by the
second respondent to present the Land Acquisition Amendment Bill into
Parliament was not the procedure
on notice of motion for leave.
Erskine May
Parliamentary Practice 22 ed suggests that the procedure on motion
for leave cannot be used to introduce a bill containing the same
substance as some other bill which has been introduced during the
same session and which has not been withdrawn. It is clear that
the
learned authors are not so unequivocal when it comes to the
presentation of a bill without leave of the House.







The House can be prevented from
raising any questions on the substance of the bill until it gets to
the committee stage where amendments
and additions made to it simply
cure the effect of the irregularity that may have been occasioned by
its introduction. That is
exactly what happened in this case.
Although the Land Acquisition Amendment Bill was the same in
substance as section 27(1) of
the General Laws Amendment Bill at the
time it was introduced into the House, the procedure used by the
second respondent effectively
prevented the House from deciding on
the same matter twice. What he did was lawful.







The amendments and additions
made to the bill which he proposed at the committee stage and which
were later adopted as part of the
bill at the consideration of the
committee report, produced a bill which was substantially different
from section 27(1) of the General
Laws Amendment Bill. The
enactment of Act No 6 of 2002 from the Land Acquisition Amendment
Bill was not the kind of result the
prevention of which is the
general object of Standing Order 127. In other words despite
non-compliance with the provisions of the
standing order at the time
the bill was introduced into the House there was substantial
compliance with its general object.






The
violation of Standing Order 127 in this case was, therefore, of a
technical nature confined to matters of procedure in the House
and
with no effect on the validity of the resultant Act. A court must
be extremely cautious in such a case before it declares an
Act of
Parliament invalid on a ground of a technical violation of rules
enacted by Parliament principally to regulate and control
its own
proceedings. According to the principles governing the invalidation
of statutes for deviation from the legislative procedure
laid down by
law, I am of the view that no such invalidity should be held to have
resulted in this case. The validity of a law
that follows from what
Parliament did is one thing. The proceedings of Parliament which
could lead to a valid or an invalid law
are another.






I agree with the remarks of
GRIFFITH CJ in
Osborne
v The Commonwealth

[1911] 12 CLR 321 at p. 337. He said when courts of law are faced
with the question whether to declare a statute invalid on the
ground
of a technical violation or a rule of procedure they should:







“… lean
rather to support than to deny the validity of an Act in case of a
mere technical or incidental transgression of the injunction
not
affecting the substance of the legislation and if the provision
objected to were capable of two constructions would if possible
adopt
that which would not invalidate the law.”










On the above principle it is
clear that the conclusion must be reached that the Land Acquisition
Amendment Act No 6 of 2002 cannot
be declared invalid on the ground
that the bill from which it was made law was introduced into
Parliament in breach of the provisions
of Standing Order 127.






SECTION 31E(1)(c) OF THE
CONSTITUTION


The
validity of Act No 6 of 2002 was also challenged on the ground that
when the second respondent invoked the procedure for presenting
its
bill without leave under Standing Order 102(2)(i), he was not a
Minister and, therefore, had no authority to introduce the bill
in
that way. Only a Minister can present a bill to Parliament without
having sought and obtained leave of the House in terms of
Standing
Order 102(2)(i).







The contention was that on a
proper construction of the provisions of section 31E(1)(c) of the
Constitution when the President assumed
office on 1 April 2002 he did
so as “a new President” within the meaning of that section.







Section 31E(1) provides that:-







“(1) The
office of a Vice President, Minister or Deputy Minister shall become
vacant –







(a) if the President removes him
from office; or





(b) if
he resigns his office by notice in writing addressed and delivered to
the President, or






(c) upon
the assumption of office of a new President

(the underlining is mine)










If the ordinary and grammatical
meaning of section 31E(1)(c) is that the President was a new
President on assumption of office on
1 April 2002, then the second
respondent was not a Minister when he introduced the Land Acquisition
Amendment Bill into Parliament.
It seems to me that every person
elected as President is required to assume office by taking and
subscribing oaths of loyalty and
office as prescribed in subsections
(5) and (6) of section 28 of the Constitution. The purpose of
assuming office in the manner
prescribed is to have the person
bestowed with the executive authority of the State vested in the
office of President so that he
or she can perform its duties and
functions.







It is clear, however, that not
every assumption of office of President has as its legal consequence
the creation of a vacancy in
the office of a Minister. It is to the
assumption of office by “a new President” that the framers of the
Constitution subjected
the creation of a vacancy in the office of a
Minister. The expression “… of a new President” is
descriptive of the assumption
of office suggesting that there is an
assumption of office by some other person not describable as “a new
President” which would
not have as its necessary consequence the
creation of a vacancy in the office of a Minister.






It
may not be possible to give an exhaustive definition of what the word
“new” means and implies but ordinarily when it is used
to
describe a thing, the idea is to contrast the attributes of that
thing with those of another of the same kind or class. In Black’s
Law Dictionary 3 ed, it is stated on the word “new” that:-






“as an element in numerous
compound terms and phrases of the law, this word may denote novelty,
or the condition of being previously
unknown or of recent or fresh
origin but ordinarily it is a purely relative term and is employed in
contrasting the date, origin,
or character of one thing with the
corresponding attributes of another thing of the same kind or class.”









It is clear from the provisions
of section 31E(1)(c) that by the time the person assumes the office
of President he is already a
new President. The word “new” must
therefore have been used to contrast one person elected as President
from another. A person
does not become a new President within the
meaning of section 31E(1)(c) of the Constitution because he assumes
office of President
in a new term as contended by the applicant. A
person becomes a President under our Constitution upon being elected
as President.







The Constitution specifies four
events the happening of which will result in the holding of an
election to the office of President.
These are the expiry of the
term of office; the death, removal or resignation of the President.
There is no doubt that in an
election to fill a vacancy in the office
of the President occurring as a result of his death, removal or
resignation “a new President”
is elected. So is the case in an
election to fill a vacancy caused by the expiry of the term of office
of the President in which
a person other than the incumbent President
is elected as President. “A new President” would have been
elected.







That leaves one occasion only
when a person elected is not “a new President”. That is when
the incumbent President is re-elected
as President. In my view his
assumption of office cannot be described as an “assumption of
office of a new President” within
the meaning of section 31E(1)(c)
of the Constitution. The attribute he does not share with any of
the other people elected as President
is that he was the President
before the election.







It is also important to
consider the meaning of section 31E(1)(c) from the point of view of
its purpose. A Minister is a means
by which the President performs
the duties and functions of his office. It is the President who has
the power to appoint a Minister
who does what he is asked by the
President to do as long as it is lawful. As such, a Minister holds
office during the pleasure
of the President who can dismiss him at
any time.






What
this means is that the relationship between the President and a
Minister is such that each person assuming office as “a new
President” must have the freedom to choose a team of men and women
he or she believes will perform the duties and functions of
the
office efficiently and effectively under his or her direction.





The
framers of the Constitution saw it necessary to provide for the
vacation of the office of a Minister on assumption of office
of “a
new President” to enable him to exercise the freedom to choose his
own team of Ministers. It was unnecessary to provide
for the
vacation of the office of a Minister on assumption of office of a
re-elected incumbent President because being the person
who would
have appointed a Minister he would have the power to remove him from
office.






Mr Trengove
argued that a re-elected incumbent President becomes “a new
President” because he would be assuming the office of President in
a new term. If that were the case it would have been unnecessary to
use the word “new” in section 31E(1)(c) of the Constitution.
A
new President is a person who was not the President during the term
of office the expiry of which would have led to the holding
of the
election to the office.







Mr Trengove
also argued that a re-elected incumbent President is also the person
referred to in section 28(5)(a) of the Constitution as the “previous
President”. He can, by contrast, be described as a new President.
Section 28(5)(a) of the Constitution provides that where
a person
is elected as President because the term of office is about to expire
he shall assume office “on the expiry of the term
of office of the
previous President”.







The term “previous President”
does no more than describe the person the expiry of whose term of
office would have led to the
holding of the election to the office of
President. It also provides the basis for fixing the time when the
person elected as President
must assume office. If the words were
to be given the meaning the applicant seeks to give them they would
apply to both situations
of assumption of office of President by a
person re-elected and to the one who would have defeated the
incumbent President in the
election. There is no doubt at all that
the latter person is “a new President". His being a new
President arises from
the very fact that he cannot be called a
“previous President” within the meaning of section 28(5)(a) of
the Constitution. By
the same token a person re-elected as
President who can be described as a previous President for the
purposes of section 28(5)(a)
cannot be described as “a new
President” for the purposes of section 31E(1)(c) of the
Constitution. The second respondent was
a Minister on the day he
introduced the Land Acquisition Amendment Bill into Parliament.






I
would answer the first question in the negative.






SECTION 16(1)(b)



The contention advanced on behalf
of the applicant was that the amendments to sections 8 and 9 of the
Act introduced by Act No 6 of
2002 are in conflict with the
provisions of section 16(1)(b) of the Constitution. Section
16(1)(b) of the Constitution provides
as follows:-







“Section
16.
Protection
from deprivation of property







(1) Subject to section sixteen A,
no property of any description or interest or right therein shall be
compulsorily acquired except
under the authority of a law that –





(a) …;
and






(b) requires the acquiring
authority to give
reasonable
notice of the intention to acquire the property,

interest or right to any person owning the property or having any
other interest or right therein that would be affected by such
acquisition.” (the underlining is mine for emphasis)










Two points were taken on the
alleged violation of section 16(1)(b) of the Constitution by
Parliament in enacting the amendments to
sections 8 and 9 of the Act.
The first was that the acquiring authority was not required to give
the owner or occupier of agricultural
land required for resettlement
purposes a reasonable notice of when the acquisition itself was to
take place. The second point
was that after the acquisition of the
land the former owner or occupier is not afforded a reasonable
opportunity to wind up his affairs
on the acquired land. The period
of 45 days at the expiry of which from the date of service of the
order of acquisition the former
owner or occupier is obliged to cease
to occupy, hold or use the acquired land was said to be too short to
provide a reasonable opportunity
to wind up affairs on the acquired
land.






I take the first point. The
Constitution directs Parliament to give the power of compulsory
acquisition of agricultural land required
for resettlement purposes
to the executive and specifies what the executive must be obliged to
do for the acquisition to have constitutional
validity. Section
16(1)(b) of the Constitution authorises the compulsory acquisition of
agricultural land required for resettlement
purposes under the
authority of a law which requires the acquiring authority to give to
the owner or occupier of the agricultural
land “
reasonable
notice of the intention to acquire the property
”
(the underlining is mine). The obligation on Parliament is to pass
a law for the compulsory acquisition of agricultural land
required
for resettlement purposes which contains a provision requiring the
acquiring authority to make known to the owner or occupier
of the
land for a reasonable time of the fact of its intention to acquire
his or her land for resettlement purposes. There is nothing
in
section 16(1)(b) requiring Parliament to provide as a matter for
legislation for the compulsory acquisition of agricultural land
for
resettlement purposes, a requirement on the acquiring authority to
give reasonable notice to the owner or occupier of the land
of the
date when the acquisition was to take place.







Where the Constitution
prescribes for Parliament specific matters that a statute should
contain, not dealing with a matter which
the constitutional provision
prescribing the matters to be dealt with under the law in question
does not prescribe, cannot constitute
a violation of the
constitutional provision. The framers of section 16(1)(b) of the
Constitution specified in express terms the
matters in respect to
which Parliament had to legislate for compulsory acquisition of
agricultural land for resettlement purposes
to be constitutionally
valid. The duty of the court in considering the question of
violation of section 16(1)(b) of the Constitution
is to determine
whether or not Parliament provided in the statute for the matters
prescribed in that section.







The power of the State to
compulsorily acquire private property for public purposes is a power
the owner or occupier of agricultural
land should know can be
exercised in respect of his property at any time provided fair
compensation is paid for the acquisition of
his rights.
Davies
& Ors v Minister of lands, Agriculture and Water Development

1996 (1) ZLR 681 (S) at 692G.






Having
received the preliminary notice of the intention of the acquiring
authority to acquire his agricultural land for resettlement
purposes,
the applicant had no constitutional right to be given a reasonable
notice of when actual acquisition was to take place.
Nonetheless
subsection (1) of section 8 of the Act in terms of which the
compulsory acquisition of the agricultural land the nature
and extent
of which would have been described in the preliminary notice,
provides that an order of acquisition shall not be made
by the
acquiring authority before the expiry of 30 days from the date of the
publication of the preliminary notice in the Gazette.






There is, therefore, a minimum
period of 30 days from the date of publication of the preliminary
notice of the intention to acquire
the agricultural land within which
actual acquisition is prohibited. There is a maximum period of two
years within which compulsory
acquisition can be effected. In
prescribing the period of two years to mark the duration of the time
within which the preliminary
notice published in the Gazette in
terms of subsection (1) of section 5 of the Act remained operative,
Parliament placed a definite
time limit within which the acquiring
authority had to act to effect the acquisition of the agricultural
land described in the preliminary
notice.
Commercial
Farmers’ Union v Minister of Lands and Ors

2000 (2) ZLR 469 (S) at 485 D-F.







The applicant decided to
challenge the constitutionality of section 8(1) of the Act on the
ground that its provisions were in conflict
with provisions in
section 16(1)(b) of the Constitution. He had to show that what he
accused Parliament of having left out of the
provisions of section
8(1) of the Act was prescribed as a matter for legislation in section
16(1) of the Constitution. That he
failed to do.







The second point was that
section 9(1)(b) of Act No 6 of 2002 in requiring the former owner or
occupier of the acquired land to
cease to occupy, hold or use the
land at the expiry of 45 days violates the provisions of section
16(1)(b) of the Constitution in
that it fails to afford the former
owner or occupier a reasonable opportunity to wind up his affairs on
the acquired land. Once
again, how can Parliament be accused of
having violated the provisions of section 16(1)(b) of the
Constitution in this regard when
the matters it is said to have
failed to legislate upon are not part of the subject matters
specifically required by section 16(1)(b)
of the Constitution to be
provided for by Parliament in a law under the authority of which
agricultural land can be compulsorily
acquired for resettlement
purposes?







The provisions of section
16(1)(b) of the Constitution do not require Parliament to enact a law
requiring the acquiring authority
to give the former owner or
occupier a reasonable time within which to wind up his affairs on the
acquired land. In fact it says
nothing at all about the rights of
the former owner or occupier on the acquired land. The concept of
reasonable notice is used
in section 16(1)(b) of the Constitution in
respect of the specific subject of an intention to acquire the
property. It cannot,
in my view, be extended in its general usage
to say the acquiring authority is also required to give reasonable
time to a former
owner or occupier to wind up his affairs on the
acquired land.






The
argument is based on the assumption that the former owner or occupier
has a right to remain on the acquired land for the purposes
of
winding up his affairs. If there was such a right it could only be
a statutory creation. A careful examination of section
16(1)(d) of
the Constitution suggests that, once agricultural land has been
compulsorily acquired for resettlement purposes in terms
of the
procedure prescribed by the law under the authority of which the
acquisition is being effected, rights of ownership immediately
vest
in the acquiring authority. The acquisition is a single and
complete act which takes away the rights and interests of the
owners
or occupiers in the agricultural land. The real rights are
extinguished to the former owner or occupier of the acquired
land.





Apart
from the right to have the application for an order confirming the
acquisition determined by the Administrative Court the
former owner
or occupier has no real rights expressed in the form of winding up
farming operations on the acquired land. Section
9(1)(b) of the Act
imposes an obligation on the former owner or occupier to vacate the
acquired land at the end of 45 days from the
date of service of the
order of acquisition. It does not create a positive right in the
former owner or occupier to remain on the
acquired land to wind up
his affairs.





Forty-five
days is the maximum period within which the obligation must be
discharged. There is no right created in the former
owner or
occupier by section 9(1)(b) of the Act to wind up his affairs on the
acquired land. The right of occupation of the acquired
land is
vested in the acquiring authority. The fact that its physical
manifestation may still be with the former owner or occupier
does not
mean that he has the right of occupation of the acquired land.





It
is clear that whatever activities the former owner or occupier is
able to carry on during the period of 45 days are subject to
the
acquiring authority not exercising its rights of ownership including
the right to survey, demarcate and allocate the acquired
land. This
suggests that the activities the former owner or occupier may be able
to carry out on the acquired land would not be
in the exercise of a
statutory right because the statute does not give him such a positive
right. His activities would be on sufferance
of the acquiring
authority.






It is, therefore, not possible
to accept the argument that the provisions of section 9(1)(b) of the
Act No 6 of 2002 do not give
the former owner or occupier a
reasonable time within which to wind up his affairs on the acquired
land when there is no clear right
let alone a constitutional right
vested in him to carry on operations on the acquired land. If a
clear right was established, the
reasonableness of its duration would
then arise as a subject for determination. There is a clear
statutory right in the former
owner or occupier to occupy, hold or
use the living quarters for a period of 90 days without any
interference from the acquiring
authority from the date of the
service of the order of acquisition. This is because the statute
imposes a duty on the acquiring
authority not to interfere with the
living quarters during the period of ninety days from the date of
service of the order of acquisition
on the owner or occupier of the
acquired land.






Even
if the point taken on behalf of the applicant was to be determined on
the basis of an assumption of the existence of rights
in the former
owner or occupier to wind up his farming operations on the acquired
land it is clear that in fixing the period at the
end of which he was
to cease to occupy, hold or use the land at 45 days the legislature
gave supremacy to public interest over the
private interests of the
former owners or occupiers of acquired land.





The
agricultural land would have been compulsorily acquired for a public
purpose of resettling people on it. The acquiring authority
in whom
the rights of ownership are vested was given the right to survey,
demarcate and allocate the acquired land to satisfy the
public
purpose of resettling the landless on the land.





The
period of 45 days would have been fixed with the public interest in
mind. The question whether or not the period gives the
former
owners or occupiers a reasonable opportunity to wind up their affairs
on the acquired land does not arise in a case in which
it is clear
that public interest was given supremacy over the private interests
of the former owners or occupiers unless the period
is so grossly
unreasonable as to ground an inference that Parliament failed to act
constitutionally in the exercise of legislative
powers. That
conclusion cannot be reached on the facts of this case.





It
is not enough to highlight the disadvantages experienced by former
owners or occupiers in having to wind up their affairs on
the
acquired land within 45 days from the date of the service of the
order of acquisition. In a case of compulsory acquisition
of
private property hardships are bound to be suffered by the owners or
occupiers of expropriated property especially agricultural
land and
it is for that reason that the law recognises that because public
interest overrides the private interests of individual
landowners or
occupiers they suffer the unpleasant consequences of having to stop
farming operations on acquired land in the public
interest.





It
was also argued that Parliament should have left the question of
eviction of former owners or occupiers of acquired land to the
exercise of executive discretion by the acquiring authority as was
the case before the amendment to section 9 by Act No 6 of 2002.
The
answer to this argument is that choice of a method by which
Parliament decides to deal with a matter involves policy in which
this Court has no interest.





I
would answer the question on the alleged violation of section
16(1)(b) of the Constitution in the negative.






SECTION 18(9)



The contention was that the
amendment to section 8(1) of the Act, so that agricultural land
required for resettlement purposes can
be compulsorily acquired and
the acquiring authority proceed to exercise the rights of ownership
such as the survey, demarcation
and allocation of the acquired land
before confirmation of the acquisition by the Administrative Court,
infringed the owner or occupier’s
right to be heard as enshrined in
section 18(9) of the Constitution.





Section
18(9) provides that:-






“Subject
to the provisions of this Constitution every person is entitled to be
afforded a fair hearing within a reasonable time by
an independent
and impartial court or other adjudicating authority established by
law in the determination of the existence or extent
of his civil
rights or obligations.”










In Holland
& Ors v Minister of the Public Service, Labour and Social Welfare

1998 (1) SA 389 this Court held that the right to be heard as
guaranteed to a person under section 18(9) of the Constitution
included
a case where a public body is to take a decision which would
not only have “prejudicial effect on property and liberty” but
also
on “the reasonable and legitimate expectations of the
aggrieved person” (p 392H).







Whether or not the requirements
of a “fair hearing” have been met in a particular case depends
upon the specific nature of the
proceedings. Mrs
Matanda-Moyo
argued on behalf of the respondents that in amending section 8(1) of
the Act the Legislature did not infringe the applicant’s right
to
be heard before the decision to acquire his agricultural land for
resettlement purposes was made.







The owner or occupier’s right
to lodge a written objection to the proposed acquisition with the
acquiring authority not later
than 30 days from the date of
publication of the preliminary notice in the Gazette remained intact.
Written objections are an adequate
means by which the owner or
occupier of the land can exercise the right to be heard. The right
is protected and its exercise made
effective by the fact that the
acquiring authority cannot make an order of acquisition before the
expiry of 30 days from the date
of the publication of the preliminary
notice in the Gazette. The prohibition against the making of an
order of acquisition before
the expiry of 30 days from the date of
publication of the preliminary notice in the Gazette ensures that
where a landowner has lodged
a written objection to the proposed
acquisition the decision to acquire the land is taken after the
written objections have been
considered.






The
applicant lodged written objections to the proposed acquisition of
his agricultural land with the acquiring authority. The
fact that
an order of acquisition was nonetheless made in respect of his land
does not mean that the written objections were not
considered. He
was given an opportunity to make representations on the proposed
acquisition of his land.





The
amendment to section 8(1) of the Act did not take away the right of
the owner or occupier where agricultural land has been compulsorily
acquired to put his case before the Administrative Court when the
application for an order confirming the acquisition is heard.
That
there may be nothing to show for it in a practical sense if the
Administrative Court refused to confirm the acquisition, does
not
detract from the fact that the owner or occupier’s right to be
heard was not infringed by Parliament in enacting amendments
to
section 8(1) of the Act.






The allegation that the
applicant’s right to be heard was infringed by the amendments to
section 8 of the Act seems to have been
prompted by the repeal of
subsection (2) of section 8 thereof which had prohibited the
acquiring authority from exercising rights
of ownership, particularly
the right to survey, demarcate and allocate the acquired land during
the period of three months’ notice
given to the owner or occupier
to vacate the acquired land in respect to which there was a written
objection to the acquisition and
which acquisition had not been
confirmed by the Administrative Court.







The removal of that provision
from the Act did not give rise to a constitutional question of the
infringement of a guaranteed right
to be heard. It had not been
enacted in compliance with a particular constitutional requirement.
It was not a requirement under
the provisions of section 16 of the
Constitution. It only remained binding upon the acquiring authority
during the period of the
three months’ notice. Yet there was no
guarantee that the application for an order confirming the
acquisition would have been
heard during the period that the
restriction on the acquiring authority’s exercise of rights of
ownership on the acquired land
was in operation. It could not have
been imposed for the purpose of protecting the former owner or
occupier’s right to be heard
by the Administrative Court. It must
also follow that having enacted the provision in the exercise of the
plenary legislative powers
Parliament was at liberty to remove it
from the statute without infringing any constitutional right of the
former owner or occupier
of acquired land.






I
would hold that, insofar as the questions referred for determination
were to raise a case for the granting of the relief sought,
there was
no merit in them.






COSTS



The applicant has been
unsuccessful on all the constitutional questions referred for
determination. The general rule that costs
should follow the result
must apply unless there are special circumstances on the basis of
which the court, in the exercise of its
discretion, may decline to
apply the general rule. Mr
Trengove
argued that even if the applicant was unsuccessful his costs,
including the costs for two counsel, should be paid by the State
because
the questions referred to this Court raised matters of
national interest.







Mrs Matanda-Moyo,
on the other hand,
contended that the applicant was first and foremost interested in
protecting private property from compulsory acquisition.
She urged
the court to adopt the approach on costs adopted in the line of
similar cases referred to in
Attorney-General
v Blumears & Anor

1991 (1) ZLR 118 (S) at 126F-G and not make an order as to costs. I
agree with Mrs
Matanda-Moyo
that although the questions referred for determination involved
questions of constitutional importance they were a result of an
application
lodged by the applicant with the main object of
protecting private property from compulsory acquisition by the State.
The costs
incurred by the applicant were not incurred in pursuit of
a public interest. It would not be proper to mulct the State with
costs
for having successfully defended the public interest in the
land reform programme from a constitutional attack. There shall
therefore
be no order as to costs.






I
need to say one last thing. The parties asked the court to make an
order, by consent, on the two matters relating to the invalidity
of
the preliminary notice published and the order of acquisition made in
respect of the applicant’s land. This matter was not
referred for
determination by this Court by the High Court. It means that the
High Court is seized with the matter and is the proper
court to make
the order sought. We must, therefore, decline the kind invitation
to obliquely undermine the authority of that court
over a matter
still properly pending its decision.





The
application is accordingly dismissed with no order as to costs.








CHIDYAUSIKU
CJ: I agree








CHEDA
JA: I agree








ZIYAMBI
JA: I agree









SANDURA JA: I have read the
judgment prepared by MALABA JA but respectfully disagree with it.
In my view, the Land Acquisition
Amendment Act No 6 of 2002 (“the
Amendment Act”) was not lawfully enacted and is, therefore, invalid
and of no force or effect.
I say so because it was not enacted in
accordance with the provisions of Standing Orders 102(2)(i) and 127
of the Standing Orders
of Parliament (“the Standing Orders”).






The
Standing Orders were made by Parliament in terms of s 57(1) of the
Constitution of Zimbabwe (“the Constitution”). That
section, in
relevant part, reads as follows:






“57. Standing
Orders





(1) Subject to the provisions of
this Constitution and any other law, Parliament may make Standing
Orders with respect to -






  1. the
    passing of Bills;







(b) - (d) …”









The Standing Orders, therefore,
have the force of constitutional provisions. Indeed, this is
acknowledged by MALABA JA.





Standing
Order 127 reads as follows:






“Subject
to the provisions of the Constitution,
no
bill shall be introduced

which is of the same substance as some other bill which has been
introduced during the same session and which has not been withdrawn.”
(emphasis added)










The applicant’s contention
was that as the substance of the Land Acquisition Amendment Bill
(“the Amendment Bill”) was the
same as s 27(1) of the General
Laws Amendment Bill which had been introduced during the same session
and had not been withdrawn,
the Amendment Bill was introduced in
violation of Standing Order 127. In my view, the correctness of
that contention cannot be
questioned. It was, indeed, accepted by
MALABA JA.







Once it is accepted, as it
obviously must be, that the Amendment Bill was introduced in
violation of Standing Order 127,
cadit
quaestio
. That is
the end of the matter. The Amendment Act is invalid and of no force
or effect. That is what this Court said in
Tendai
Laxton Biti & Anor v The Minister of Justice, Legal and
Parliamentary Affairs & Anor

SC-10-2002 (not yet reported).






It
is, indeed, crystal clear from the wording of Standing Order 127 that
the introduction of a second Bill of the same substance
as another
Bill which has already been introduced during the same session but
not withdrawn is prohibited or barred. I have no
doubt in my mind
that ignoring or overlooking such a clear prohibition must be fatal
to the resultant Act of Parliament.





I
now turn to the provisions of Standing Order 102(2)(i). That
Standing Order reads as follows:






“Every bill shall be ordered to
be brought in upon motion moved after notice that leave be granted to
bring in such bill, unless such
bill is brought up by a committee
appointed to draft it to give effect to a resolution of the House, in
which case such bill shall
be read the first time without any
question being put:





Provided
that –






(i) a Minister may, after having
given notice, present a bill without having previously obtained
leave.”









It was common cause that the
Amendment Bill was presented, without having previously obtained
leave, by the second respondent.
He purported to do so in his
capacity as a Minister.






The issue which arises for
determination is whether at the time the second respondent presented
the Amendment Bill on 7 May 2002
he was a Minister. If he was, the
presentation of the Amendment Bill by him, without having previously
obtained leave, was proper.
On the other hand, if he was not a
Minister at the relevant time, he could not present the Bill without
having previously obtained
leave.







The applicant’s contention
was that as the second respondent had not taken and subscribed the
oaths of loyalty and office in terms
of s 31D(2) of the Constitution,
pursuant to the President’s re-election and assumption of office on
1 April 2002, he had not yet
entered upon his office, was not a
Minister and could not, therefore, present the amendment Bill without
having previously obtained
leave. In my view, there is merit in
this contention.






However,
before considering this issue in some detail I shall set out the
relevant constitutional provisions. They are found in
sections 28,
31D and 31E of the Constitution.





Section
28, in relevant part, reads as follows:






“28. Qualifications
and election of President






(1)
– (2) …






  1. An
    election to the office of President shall take place within ninety
    days –









    1. before
      the term of office of the President expires in terms of section 29;
      or









    1. …








  1. …








  1. A
    person elected as President shall assume office –









    1. where he has been elected in
      accordance with paragraph (a) of subsection (3),
      on
      the expiry of the term of office of the previous President
      ;










    1. …








(6) Before entering upon his
office, a person elected as President shall take and subscribe before
the Chief Justice or other judge
of the Supreme Court or the High
Court the oaths of loyalty and office …” (emphasis added)









Section 31D, in relevant part,
reads as follows:






“31D Ministers
and Deputy Ministers







  1. The
    President -








(a) shall
appoint Ministers
and
may assign functions to such Ministers …; and






(b) may
appoint Deputy Ministers of any Ministry …






  1. Any
    person appointed under this section shall, before entering upon his
    office, take and subscribe before the President or some
    other person
    authorized by the President in that behalf the oaths of loyalty and
    office …







(3)
– (4) …” (emphasis added)









And section 31E, in relevant
part, reads as follows:






“31E Tenure
of office of Vice-Presidents, Ministers and Deputy Ministers







  1. The
    office of a Vice-President, Minister or Deputy Minister shall become
    vacant –









    1. –
      (b) …; or









(c) upon the assumption of office
of a new President.






  1. –
    (3) …”











In my view, the reference in s
31E(1)(c) of the Constitution to “a new President” simply means a
newly elected President, whether
or not he is an incumbent President
who has been re-elected.





In
this regard, it is pertinent to note that the Constitution does not
at all distinguish between the assumption of office by the
incumbent
President who has been re-elected, and the assumption of office by a
person elected as President for the first time.
The same rules
govern the assumption of office by both.





In
the first place, where an election to the office of President takes
place in terms of s 28(3)(a) of the Constitution, i.e. within
ninety
days before the term of office of the President expires, s 28(5)(a)
of the Constitution provides that the person elected as
President
shall assume office on the expiry of the term of office of the
previous President. That applies, not only to a person
elected as
President for the first time, but also to an incumbent President who
has been re-elected.






Secondly, in terms of s 28(6) of
the Constitution, before entering upon his office, a person elected
as President is obliged to take
and subscribe before the Chief
Justice or other judge of the Supreme Court or the High Court the
oaths of loyalty and office. That
applies to an incumbent President
who has been re-elected and to a person who has been elected as
President for the first time.






And
thirdly, in terms of s 31D(1)(a) of the Constitution the President is
obliged to appoint Ministers. There is nothing in that
section
which exempts from that obligation an incumbent President who has
been re-elected.





It
was common cause that the presidential election held on 9 and 10
March 2002 was held in terms of s 28(3)(a) of the Constitution,
and
that the incumbent President was re-elected. That election was held
because the President’s term of office was due to expire
on 1 April
2002.






Pursuant to his re-election, the
President assumed office, in terms of s 28(5)(a) of the Constitution,
“on the expiry of the term
of office of the previous President”,
which was 1 April 2002. It is significant that the Constitution
describes him as “the
previous President” when it refers to him
in his previous term of office.






In
addition, it is pertinent to note that pursuant to the President’s
re-election and assumption of office the second respondent,
and the
other members of the Cabinet which was in existence before the
President entered upon his office on 1 April 2002, took and
subscribed before the President the oaths of loyalty and office in
terms of s 31D(2) of the Constitution on 26 August 2002.





In
my view, the President obviously appreciated that he was a new
President in terms of s 31E(1)(c) of the Constitution.






I am, therefore, satisfied that
in terms of s 31E(1)(c)of the Constitution the second respondent
ceased to be a Minister upon the
assumption of office by the
President on 1 April 2002. He could not, therefore, present the
Amendment Bill on 7 May 2002 without
previously having obtained
leave.






Consequently,
the Amendment Act was enacted in violation of the peremptory
provisions of Standing Order 102(2)(i), and is, therefore,
invalid
and of no force or effect.





Having
arrived at that conclusion, I do not consider it necessary to deal
with the applicant’s submissions in respect of the alternative
order sought by him, i.e. “that the amendment of ss8 and 9 of the
Land Acquisition Act [Chapter 20:10] made by the Land Acquisition
Amendment Act No 6 of 2002 violates ss 16(1)(b) and 18(9) of the
Constitution and (is) consequently invalid and of no force or
effect.”





In
the circumstances, I would have made the following order:






1. It is declared that the Land
Acquisition Amendment Act No 6 of 2002 was not lawfully enacted and
is consequently invalid and of
no force or effect.






2. The costs of this application
shall be paid by the respondents, jointly and severally, the one
paying the others to be absolved.













Stumbles & Rowe,
applicant’s legal practitioners


Civil
Division of the Attorney-General’s Office
,
respondents’ legal practitioners