Court name
Supreme Court of Zimbabwe
Case number
SC 31 of 2007
Civil Application 306 of 2006

Manica Zimbabwe Ltd. and Others v Minister of State for National Security Lands Land Reform and Resettlement in the President's Office and Another (06/06) (SC 31 of 2007, Civil Application 306 of 2006) [2007] ZWSC 31 (04 November 2007);

Law report citations
Media neutral citation
[2007] ZWSC 31




























REPORTABLE (30)


Judgment
No. SC 31/07


Civil Application No.
306/06








(1) MANICA
ZIMBABWE LIMITED (2) CHIROBI (PRIVATE) LIMITED (3)
DUNDORI (PRIVATE) LIMITED (4) MUKOKO
(PRIVATE) LIMITED





v (1) THE
MINISTER OF STATE FOR NATIONAL SECURITY,
LANDS, LAND REFORM AND RESETTLEMENT
IN THE
PRESIDENT’S OFFICE


(2) THE PRESIDENT
OF THE ADMINISTRATIVE COURT OF ZIMBABWE








SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ, CHEDA
JA, ZIYAMBI JA, GWAUNZA JA & GARWE JA


HARARE, FEBRUARY 1 &
NOVEMBER 5, 2007








A P de Bourbon,
SC, for the applicants





E M Mwatse, with
her Mr Mutsonziwa and V Mabhiza, for the
respondents






CHIDYAUSIKU CJ: This is an application in terms of s 24(1)
of the Constitution of Zimbabwe, which provides:






“24 (1) If any person alleges that the Declaration of
Rights has been, is being or is likely to be contravened in relation
to him (or, in
the case of a person who is detained, if any other
person alleges such a contravention in relation to the detained
person), then,
without prejudice to any other action with respect to
the same matter which is lawfully available, that person (or that
other person)
may, subject to the provisions of subsection (3), apply
to the Supreme Court for redress.”









The respondents have taken a point in limine. The
point in limine taken is that this matter was heard and
determined in the Administrative Court, after an application for
referral to the Supreme
Court in terms of s 24(2) of the
Constitution was made to and refused by the Administrative Court.
The respondents contend
that it is not open to a litigant in a matter
where a referral has been refused to make a direct application to
this Court in terms
of s 24(1) of the Constitution.





It is quite clear
that s 24(3) of the Constitution, which provides:






“24(3) Where in any proceedings such as are mentioned in
subsection (2) any such question as is therein mentioned is not
referred to the
Supreme Court then, without prejudice to the right to
raise that question on any appeal from the determination of the court
in those
proceedings, no application for the determination of that
question shall lie to the Supreme Court under subsection (1).”,






prohibits the making of
such an application.






Consequently, the applicants can only approach this Court by way of
an appeal for a review of the proceedings of the Administrative
Court.






The applicants have
raised two defences to the point in limine. Firstly,
the applicants contend that the Administrative Court should not have
refused to grant the application for referral to
the Supreme Court
because the application was neither frivolous nor vexatious. The
refusal to refer the matter to the Supreme Court
by the
Administrative Court, it was argued, constitutes a violation of the
applicants’ constitutional right to due process. Secondly,
the
applicants contend that the second, third and fourth applicants were
not party to the proceedings before the Administrative Court.

Consequently, s 24(3) of the Constitution does not apply to
these three respondents.





It is common cause
that the second, third and fourth applicants were not party to the
proceedings before the Administrative Court.
It admits of no debate
that as the second, third and fourth applicants were not party to the
proceedings before the Administrative
Court, s 24(3) of the
Constitution does not apply to them.





The first applicant’s
cause of action is identical to that of the second, third and fourth
applicants. Thus, even if I were
to uphold the point in limine
in respect of the first applicant, that would not resolve the dispute
in this matter. The second, third and fourth applicants are
entitled to a determination of the same issue raised by the first
applicant. This renders the issue of referral raised in limine
academic. I do not intend to dwell on the issue of referral as it
has been rendered academic. I leave that issue entirely open.





I will now proceed to
deal with the substantive issues in this case.





The applicants
contend that the Acquisition of Farm Equipment or Material Act
[Cap. 18:23] (hereinafter referred to as “the Act”),
which came into force in September 2004, is invalid by reason of its
non-compliance
with the Constitution of Zimbabwe (“the
Constitution”) and in particular with s 16 thereof. I note
in passing that s 16
of the Constitution forms part of the
Declaration of Rights. Consequently, its violation in respect of a
party entitles such party
to approach this Court directly in terms of
s 24(1) of the Constitution.





The applicants seek
the relief set out in the draft order, which reads as follows:






“IT IS DECLARED/ORDERED THAT:






1. The Acquisition of Farm Equipment (or) Material Act
[Chapter 18:23] fails to comply with the requirements set
out in section 16(1) of the Constitution of Zimbabwe and is
accordingly void.






Alternatively







Sections 7, 9 and 10 of the Acquisition of Farm Equipment (or)
Material Act [Chapter 18:23] are in conflict with
section 16(1)(a)(ii), (c), (e) and (f) of the Constitution of
Zimbabwe and are accordingly void.





The costs of this
application be borne by the first respondent.”









The particulars of
the cause of action in this application are set out in para 9 of
the founding affidavit, which reads:






“9. The Constitutional issues that were raised before the
Administrative Court were:






a) That the Acquisition of Farm Equipment (or) Material Act did not
provide that the acquisition of the farming equipment had to
be in
terms of legislation which provided that such acquisition was for one
of the purposes set out in section 16(1)(a)(ii)
of the
Constitution of Zimbabwe;





b) The legislation in
question did not require the acquiring authority to pay fair
compensation before or within a reasonable time
after acquiring the
property. In fact, the legislation makes no provision for such
compensation to be paid before the acquisition.
Furthermore,
section 9 of the Act makes provision for the payment of one
quarter of the compensation at the time of acquisition
or within
thirty days. The balance of the compensation is to be paid within
five years in the case of farm equipment and one year
in the case of
farm material;





c) The legislation
makes no provision as required by section 16(1) of the
Constitution to allow the owner of the property that
has been
acquired to apply to a court for prompt return of the property if the
court does not confirm the acquisition, and makes
no provision for an
appeal to the Supreme Court;





d) The legislation
makes no provision to allow a claimant for compensation to apply to
the High Court or some other court for the
determination of any
question relating to compensation, and to appeal against such a
decision to the Supreme Court.”









It is clear from the founding affidavit and the submissions made on
behalf of the applicants that they impugn the Act on four grounds,
namely –






(1) that the Act does not provide for the acquisition of farm
equipment for purposes provided for in the Constitution in terms of
s 16(1)(a)(ii) of the Constitution;







(2) that the Act does not provide for the payment of fair
compensation with a reasonable time, as is required by s 16(1)(c)
of the Constitution;





(3) that the Act does
not enable the person whose property has been acquired to apply to
the High Court or any other court for the
immediate return of the
acquired property or for fair compensation, as is required by
s 16(1)(e) of the Constitution; and







(4) that the Act does not enable an applicant to apply for
compensation or to appeal to the Supreme Court, as is provided for by
s 16(1)(f) of the Constitution.






In short, the
contention is that the Act does not comply with s 16 of the
Constitution.





Section 16(1) of
the Constitution sets out the essential elements that should be
contained in any law that provides for the
compulsory acquisition of
property of any description or interest or right therein. As I have
already said, s 16 is part of
the Declaration of Rights accorded
special protection in terms of the Constitution.






As s 16 of the Constitution sets out the essential provisions
that should be in any law that provides for the compulsory
acquisition
of property of any description, it follows that failure
to provide for any of such requirements will render such law or
enactment
for compulsory acquisition invalid to the extent of the
non-compliance or inconsistency. See s 3 of the Constitution.










I now turn to the specific grounds of challenge –






(1) COMPLIANCE WITH S 16(1)(a)(ii) OF THE
CONSTITUTION






The applicants contend that the Act does not comply with
s 16(1)(a)(ii) of the Constitution.





Section 16(1)(a)(ii)
of the Constitution reads:






“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) requires –






(i) …; 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 utilisation
of that
or any other property for a purpose beneficial to the public
generally or to any section of the public
;”. (the underlining
is mine)






The critical issue
here is whether the Act provides that the acquisition in terms
thereof is for a purpose beneficial to the public
generally or any
section of the public.






The applicants argue that the Act permits the Executive to acquire
property for private as opposed to public purpose in order to
sell it
for commercial advantage. The applicants argue that this is not
permissible in terms of s 16(1)(a)(ii) of the Constitution.






The respondents, on
the other hand, contend that the Act clearly spells out that the
acquisition is in furtherance of the land reform
programme, a
programme that is beneficial to the public generally or a section of
the public. This, it is contended, brings the
Act within the ambit
of s 16(1)a)(ii) of the Constitution. The respondents’
contention is based on the provisions of s 6,
as read with s 10,
of the Act.





Sections 6 and
10 of the Act in relevant part provide as follows:






“6 Acquisition of farm equipment or material by acquiring
authority






“(1) Subject to this
Act, the acquiring authority may, either by agreement or
compulsorily, acquire any farm equipment or material
not currently
being used for agricultural purposes on any agricultural land, where
the acquisition is reasonably necessary for the
utilisation of that
farm equipment or material on any agricultural land.





(2) - (3) . …





10 Use of acquired
farm equipment or material





(1) Subject to
subsection (2), any farm equipment or material acquired in terms
of this Act shall vest in the State for the
benefit of the Land
Reform Programme.





(2) The State may,
subject to such conditions as are prescribed under section twelve
sell or otherwise dispose of for valuable consideration any farm
equipment or material acquired in terms of this Act to any private
individual, institution or corporation requiring to use the equipment
or material for agricultural purposes on any agricultural land:





Provided that if the
person from whom the farm equipment or material was acquired by the
State contests the acquisition, the State
shall not sell or otherwise
dispose of it in terms of this subsection until the matter is finally
determined in accordance with section eight







While the language of the above two sections leaves a lot to be
desired in terms of spelling out succinctly the purpose of the
acquisition
in terms of the Act, it is however sufficiently clear
that the compulsory acquisition in terms of the Act is for the
purpose of furthering
the land reform programme. The land reform
programme is not a private activity but is a programme that is
beneficial to the public
generally and certainly to sections of the
public.





It is on this basis
that I am satisfied that the compulsory acquisition in terms of the
Act is for a purpose beneficial to the public
generally or to a
section of the public.






Accordingly, I am
satisfied that the first ground of challenge to the Act fails.






(2) DOES THE ACT PROVIDE FOR OR FAIL TO PROVIDE FOR THE
PAYMENT OF FAIR COMPENSATION WITHIN A REASONABLE TIME AS IS REQUIRED
BY S 16(1)(c)
OF THE CONSTITUTION?






The second ground of
challenge is that the Act does not comply with s 16(1)(c) of the
Constitution, in that it fails to provide
for payment of fair
compensation within a reasonable time.





Section 16(1)(c)
of the Constitution provides as follows:






“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) - (b) … ; and





(c) subject to the
provisions of subsection (2), requires the acquiring authority
to pay fair compensation for the acquisition
before or within a
reasonable time after acquiring the property, interest or right; …”.









It is very clear that the Constitution requires that the Act should
provide for the payment of fair compensation within a reasonable
time. The Act in this case seeks to achieve this through s 9,
which provides thus:






“9 Payment for farm equipment or material





(1) The acquiring
authority shall pay to the owner or holder of any farm equipment or
material acquired in terms of this Act the
compensation offered,
agreed or fixed therefor, as the case may be, within a reasonable
time and, in any event, where the farm equipment
or material is
compulsorily acquired –






(a) at least one quarter of the compensation payable shall be paid at
the time the equipment or material concerned is acquired, or
within
thirty days thereafter; and





(b) the balance of the
compensation payable shall be paid within –






(i) five years after the acquisition thereof in the case of farm
equipment;





(ii) one year after the
acquisition thereof in the case of farm material.







(2) The compensation to be paid to the owner or holder of any farm
equipment or material in terms of subsection (1) shall accrue
interest at the prescribed rate from date of acquisition thereof.”






It is sufficiently
clear from s 9 of the Act that payment of compensation can be
made by way of instalments.





The applicants’
contention in this ground of challenge is that s 16(1)(c) of the
Constitution prohibits the payment of compensation
in instalments, as
is provided for in s 9 of the Act.





The plain language of
s 16(1)(c) of the Constitution is that compensation should be
fair and that it should be paid within
a reasonable time. I see
nothing in the language of the section or the context of the
provision that suggests that such payment
cannot be made in
instalments. In my view, the fact that the Constitution is silent
on this issue, that is, it does not specifically
prohibit or
specifically authorise payment in instalments, cannot be construed as
prohibiting payment by instalments. The fact
that previous
constitutional enactments specifically authorised payment by
instalments does not mean failure to make specific mention
is
prohibition.





I am not persuaded by
the applicants’ argument that s 16(1)(c) is to be construed as
providing for one lump sum payment.
As I have stated, s 16(1)(c)
of the Constitution is intended to provide for two things –






(1) payment of fair compensation; and







(2) that such payment be made within a reasonable time.






To interpret the clear wording of s 16(1)(c) as outlawing
payment in instalments would be doing violence to the plain language
of a section that simply provides that the payment be fair and that
it should be made within a reasonable time. The payment, in
my
view, has to be made within a reasonable time. Whether the payment
will be made in one lump sum or in instalments is something
the
Constitution chose not to prescribe.





The outside time
limits set out in the Act are indications of what the Legislature
considers as the outer limits of reasonable time
for payment. They
do not circumscribe the discretion of the court, which will decide
the reasonableness of the time for payment
on the basis of the facts
of each case.





Accordingly, the
second challenge fails.






(3) DOES THE ACT PROVIDE FOR THE PERSON WHOSE PROPERTY
HAS BEEN ACQUIRED TO APPLY TO THE HIGH COURT OR ANY OTHER COURT FOR
PROMPT RETURN
OF PROPERTY IF THE COURT DOES NOT CONFIRM THE
ACQUISITION AND THE RIGHT TO APPEAL TO THE SUPREME COURT
?









Section 16(1)(e) of the Constitution provides as follows:






“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) - (d) …;





(e) enables any person
whose property has been acquired to apply to the High Court or some
other court for the prompt return of the
property if the court does
not confirm the acquisition, and to appeal to the Supreme Court; …”
(the underlining is mine)









Section 16(1)(e) of the Constitution requires the Act to
provide for two things – (1) to allow the claimant to apply for
the
prompt return of the acquired property if there is no confirmation
and (2) to confer on the claimant the right to appeal to the
Supreme
Court.





The applicants
contend that the Act does not provide for the above. The
respondents contend that s 8 (5) and (6) of the Act
meet the
above requirements of the Constitution.





Section 8 (5)
and (6) of the Act reads as follows:






“8 Application for order confirming acquisition of farm
equipment or material






(1) - (4);






(5) Where the Administrative Court refuses to grant an order
confirming the acquisition of farm equipment or material, it shall
order the acquiring authority to return the farm equipment or
material to the owner or holder thereof.





(6) Where the owner or
holder of the farm equipment or material concerned or the acquiring
authority is dissatisfied with any decision
of the Administrative
Court, whether in relation to the acquisition of the farm equipment
or material or the compensation fixed therefor,
either party may
appeal to the Supreme Court against that decision.” (the emphasis
is mine)






Both s 16(1)(e)
of the Constitution and s 8 (5) and (6) of the Act deal with a
situation where confirmation of the acquisition
has been refused.
In the event of that occurrence the Constitution confers on the
claimant the right to apply to the High Court
or any other court for
the prompt return of the property. Although s 8(5) of the Act
does not confer on the claimant (which
s 16(1)(e) of the
Constitution does) the right to apply to the High Court or any other
court, it however directs the Administrative
Court to order the
return of the property to the claimant upon its refusal to confirm
the compulsory acquisition. Thus, whenever
the Administrative Court
refuses to confirm a compulsory acquisition, it is required as a
matter of law to order the return of the
acquired property to the
claimant. The Administrative Court has no discretion in the matter.
Thus, the claimant is granted the
order for the return of the
property without having to apply for such an order. Section 8(5)
of the Act relieves the claimant
of the burden of having to apply to
the High Court or any other court for the return of the property.
It is simply returned to
him by operation of law.






I see complementarity and not conflict between s 16(1)(e) of the
Constitution and s 8(5) of the Act. In my view, s 8(5)
of
the Act meets the requirements of s 16(1)(e) of the
Constitution.





Section 8(6) of
the Act confers on the claimant the right to appeal to the Supreme
Court, as is required in terms of s 16(1)(e)
of the
Constitution.






I see no
inconsistency between s 16(1)(e) of the Constitution and s 8 (5)
and (6) of the Act that renders the Act
invalid. If anything, the
claimant is relieved of the need to apply to the High Court or any
other court for the prompt return
of property, because such return
will be ordered as a matter of law, upon an order of refusal to
confirm a compulsory acquisition.
Accordingly this ground of
challenge fails.






(4) DOES THE ACT ENABLE A CLAIMANT FOR COMPENSATION TO
APPLY TO THE HIGH COURT OR ANY OTHER COURT AS IS REQUIRED BY
S 16(1)(f) OF
THE CONSTITUTION
?






Section 16(1)(f)
of the Constitution provides as follows:






“16 (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
– …







(f) enables any claimant for compensation to apply to the High Court
or some other court for the determination of any question relating
to
compensation and to appeal to the Supreme Court:







Provided that the law need not make such provision where –







(i) the property concerned is land or any interest or right therein;
and





(ii) the land is
substantially unused or is used wholly or mainly for agricultural
purposes or for environmental conservation or the
utilisation of wild
life or other natural resources; and





(iii) the land or
interest or right therein, as the case may be, is acquired for a
purpose referred to in paragraph (a)(i)






In terms of the above
provision, the Act should enable an applicant or claimant to apply
to the High Court or to any other court
for the determination of any
question relating to compensation and to appeal to the Supreme Court
against such determination. The
applicants’ contention is that
the Act makes no provision for the claimant to make such an
application.





It is common cause
that the Act has no specific provision allowing a claimant to apply
to the High Court or to any other court as
the dominis litis
in the determination of any question relating to compensation.





The respondents
contend that, despite the absence of a specific provision enabling a
claimant to apply to the Administrative Court,
the claimant has
access to that court. I assume that the respondents’ argument is
predicated on the provisions of s 8 of
the Act, which I have
already quoted above.





The issue, however,
is whether s 8 of the Act constitutes compliance with s 16(1)f)
of the Constitution. Whenever property
is compulsorily acquired,
either the parties agree on all the issues relating to the
acquisition, that is, the acquisition itself
and the level and terms
of payment of compensation for the property, or the compulsory
acquisition and/or the compensation is contested.
In the event of
the compensation being contested, s 16(1)(f) of the Constitution
requires that there be a provision in the
Act that entitles a
claimant to apply to the High Court or to any other court to
determine the issue of compensation and the right
of appeal to the
Supreme Court thereafter.





Thus s 16(1)(f)
of the Constitution guarantees a claimant the right to have the
contestation for compensation to be adjudicated
upon by either the
High Court or by any other court. The section also guarantees the
claimant the right to appeal, as of right,
against that adjudication
to the Supreme Court. The wording of s 16(1))f) of the
Constitution makes the claimant the dominis litis.





However, s 8 of
the Act provides, among other things, that whenever compensation is
contested the acquiring authority is required
as a matter of law to
apply within thirty days to the Administrative Court for the
confirmation of the acquisition. Thus, in the
event of a
contestation relating to compensation, the contestation as a matter
of law will be determined by the Administrative Court
in terms of s 8
of the Act. The only variation between the Act and s 16(1)(f)
of the Constitution is that whereas the
Act makes the acquiring
authority the dominis litis, s 16(1)(f) of the
Constitution provides for the claimant to be the dominis litis
in the proceedings.





The difference
between the Constitution and the Act relates to procedure and not
substance. What is important is that the contestation
or
compensation is determined by the High Court or by any other court
and this is provided for in s 8 of the Act.





Section 8(6) of the
Act confers on either party the right of appeal to the Supreme Court,
if either party is not satisfied with
the adjudication of the
Administrative Court. In my view, the fact that the Constitution
makes the claimant the dominis litis while the Act makes the
acquiring authority the dominis litis does not amount to an
inconsistency that would render the Act invalid.





The critical issue is
that the dispute is subject to determination by the High Court or by
any other court, and that is provided
for in the Act. Accordingly,
this ground of appeal must fail.





In the result, the
application fails and is hereby dismissed. There will be no order
as to costs.








CHEDA  JA:
I agree








ZIYAMBI  JA:
I agree








GWAUNZA  JA:
I agree








GARWE  JA:
I agree










Coghlan, Welsh & Guest, applicants' legal practitioners


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