Court name
Supreme Court of Zimbabwe
Case number
SC 49 of 2007
Const. Application 124 of 2006

Mike Campbell (Pvt) Ltd. and Another v Minister of National Security Responsible for Land, Land Reform and Resettlement (124/06) (SC 49 of 2007, Const. Application 124 of 2006) [2008] ZWSC 49 (21 January 2008);

Law report citations
Media neutral citation
[2008] ZWSC 49













REPORTABLE
(43)



Judgment No. SC 49/07


Const.
Application No. 124/06









(1)
MIKE CAMPBELL (PRIVATE) LIMITED


(2)
WILLIAM MICHAEL CAMPBELL v





(1)
THE MINISTER OF NATIONAL SECURITY RESPONSIBLE
FOR LAND, LAND REFORM AND RESETTLEMENT


(2)
THE ATTORNEY-GENERAL








SUPREME
COURT OF ZIMBABWE


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


HARARE,
MARCH 22, 2007 & JANUARY 22, 2008








J Gauntlett
SC
, with him A P de Bourbon SC, for the
applicants





Ms
E Mwatse
, with her N Mutsonziwa, for the
respondents










MALABA  JA: This is an application for redress in terms
of s 24(1) of the Constitution of Zimbabwe (“the
Constitution”)
on the allegation that the enactment of the
Constitution of Zimbabwe Amendment (No. 17) Act, 2005 (“the
Amendment”), which
introduced s 16B into the Constitution, and
the acquisition of agricultural land belonging to the first applicant
and on which
the second applicant resides, violated the Declaration
of Rights in relation to the applicants contained in ss 11, 16(1)
(the right
not to have private property compulsorily acquired without
the authority of a law), 18(1) (the right to protection of law),
18(9)
(the right to a fair hearing and determination of civil rights
or obligations by a court of law) and 23(1) (the right not to be
treated
in a discriminatory manner on the grounds of race and
colour).





The
relief applied for by the applicants is an order in these terms:







“1. THAT the Constitution of Zimbabwe Amendment (No. 17) Act,
2005 that introduced s 16B into the Constitution of Zimbabwe,
in
its effect and implementation with particular regard to the
provisions of s 16B(3)(a) thereof constitutes an abrogation of
the applicants’ fundamental rights to protection of the law (the
rule of law) and to due process (the right to a hearing). To
that
end the section violates the essential features or core values of the
Constitution insofar as the Constitution’s provisions
as to
security and protection of fundamental rights as contemplated for
under section 11 as further read with section 16(1),
16A,
section 18(1), section 18(9) and section 23 of the
Constitution are concerned. To that end the ‘Amendment’
is
inconsistent with the essential features of the Constitution as to
the right to due process and protection afforded every person
in
Zimbabwe and accordingly the ‘Amendment’ is null and void.





2. THAT it
be and is hereby declared that the applicants’ right to protection
from deprivation of property and to the obligation
on the State
through the acquiring authority to ‘pay fair compensation for the
acquisition (of property) before or within a reasonable
time after
acquiring the property, interest or right’ as provided for under
section 16(1)(c) of the Constitution of Zimbabwe
has been
violated.





Accordingly
to the extent of such declared violation, the acquisition of the
applicants’ property is declared null and void and
of no force and
effect.





Alternatively:







THAT it be and is hereby declared that the applicants’ right to the
payment of ‘fair compensation’ for improvements on the
property
and as provided for under section 16(1)(c) of the Constitution
of Zimbabwe as further read with sections 29B and 29C
of the Land
Acquisition Act [Cap. 20:10] has been violated.





Accordingly
the State through the acquiring authority is forthwith and in any
event not later than thirty (30) days of the date of
this order
directed to attend to complying with the provisions of section 29
of the Act subject to the applicants’ right and
entitlement to
challenge such compensation as may be fixed by the Compensation
Committee and further subject to the applicants’
further rights at
law.






3. THAT the first respondent pay the costs of this application.”







The granting of the relief in terms of para (1) of the order
depends on an affirmative determination of the question whether
there
is anything in the provisions of the Constitution, including those
relating to fundamental rights, which debarred the Legislature,
in
the exercise of the powers conferred on it under s 50 and in
compliance with the manner and form for the making of fundamental
laws prescribed under s 52(1) of the Constitution, from
providing under legislation for the taking away of the right of
property
in agricultural land by compulsory acquisition for public
purposes as well as the right to the remedies provided for its
protection.





The
granting of the relief sought under para (2) of the order
depends on an affirmative answer to the question whether failure
by
the acquiring authority to pay fair compensation within a reasonable
time from the date of acquisition of the agricultural land
required
for resettlement purposes has the effect of invalidating the
acquisition.





The
alternative relief is based on the presumed affirmative answer to the
question whether there has been a violation by the acquiring
authority of the right of the applicants to be paid compensation for
the land acquired to justify the issuing of an order of mandamus
directing the acquiring authority to perform its duty within thirty
days of the date of the order.





I now
set out the facts and provisions of the Constitution, the
interpretation of the terms of which is material to the determination
of the questions raised.





I start
with s 11 of the Constitution, which is a preamble at the
beginning of Chapter III headed “DECLARATION OF
RIGHTS”. It provides:







“11 Preamble





Whereas
persons in Zimbabwe are entitled, subject to the provisions of this
Constitution, to the fundamental rights and freedoms
of the
individual specified in this Chapter, and whereas it is the
duty of every person to respect and abide by the Constitution and the
laws of Zimbabwe the provisions of this
Chapter shall have effect for
the purpose of affording protection to those rights and freedoms
subject to such limitations on that
protection as are contained
herein, being limitations designed to ensure that the enjoyment of
the said rights and freedoms by any
person does not prejudice the
public interest or the rights and freedoms of other persons.”






By the
use of the word “Whereas” the makers of the Constitution intended
that two things be considered to have been in existence
as a matter
of fact at the time of the enactment of s 11. The first was
the fact that persons in Zimbabwe were entitled to
fundamental rights
and freedoms of the individual specified in Chapter III.
The second was the fact that every person has the duty to respect
and abide by the Constitution and the laws of Zimbabwe. Section 11
does not, in my view, give to persons in Zimbabwe the fundamental
rights and freedoms of the individual specified in Chapter III.
The section presupposes the existence of those rights and freedoms
and simply reinforces the fact that persons in Zimbabwe were
already
entitled to the specified fundamental rights and freedoms. The
section goes on to explain why the provisions of Chapter III
were enacted. They were enacted for the purpose of affording
protection to the fundamental rights and freedoms specified in
Chapter III to which the persons in Zimbabwe were already
entitled. It is explained under s 11 that the protection shall
be subject only
to those limitations contained in Chapter III
of the Constitution. It is further explained that the limitations
are designed to ensure that the enjoyment of the said rights
and
freedoms by any person does not prejudice the public interest or the
rights and freedoms of other persons. The provisions relating
to the
fundamental rights and the limitations thereof are then enacted in
confirmation of the fact that what is contained in s 11 was
set out by way of a preamble.





It is
important to note that s 11 provides that the entitlement of
persons in Zimbabwe to the fundamental rights specified
in
Chapter III and to the protection afforded to them by the
provisions of that Chapter are “subject to the provisions of” the
Constitution.
One of the provisions of the Constitution to which
the entitlement to fundamental rights specified in Chapter III
and the protection afforded to them under the provisions of the
Chapter are subject is s 52(1) of the Constitution.
That section gives the Legislature the power to “amend, add to or
repeal any
of the provisions” of the Constitution, provided it
complies with the special procedure prescribed thereunder.





The
fundamental right to property is specified in s 16 of the
Constitution. Before the Amendment, the right of property in
agricultural land was protected by the provisions of s 16(1),
which prohibited any compulsory acquisition of agricultural land,
right or interest in the land by the State except under the authority
of a law. No agricultural land could be acquired on the orders
of
the Executive acting without the authority of a law. Compulsory
acquisition of agricultural land had to be on terms prescribed
by the
Legislature. Further protection was afforded to the fundamental
right of property in agricultural land by the requirement
that the
Legislature had to enact the law authorising the acquisition in the
prescribed terms.





Section 16(1)
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) requires –






(i) in the case of land or any interest or right therein, that the
acquisition is reasonably necessary for the utilisation of that
or
any other land –






A. for settlement for agricultural or other purposes; or





B. for
purposes of land reorganisation, forestry, environmental conservation
or the utilisation of wild life or other natural resources;
or





C. for the
relocation of persons dispossessed in consequence of the utilisation
of land for a purpose referred to in subparagraph
A or B;






(ii) …






(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; and





(c) requires
the acquiring authority to pay fair compensation for the acquisition
before or within a reasonable time after acquiring
the property,
interest or right; and





(d) requires
the acquiring authority, if the acquisition is contested, to apply to
the High Court or some other court before, or not
later than thirty
days after, the acquisition for an order confirming the acquisition;
and





(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.”









It will be noticed that s 16(1) of the Constitution proceeds upon the
basis that the power to compulsorily acquire private property
exists
and that it can be exercised.






In
enacting the Land Acquisition Act [Cap. 20:10] (“the
Act”) the Legislature complied with these requirements which were
designed to afford protection to the fundamental right
of property in
agricultural land. It required the acquiring authority to give to
the owner of the land or any person having a right
or interest in the
land a preliminary notice of intention to acquire the land and an
opportunity to submit written objections to
the proposed acquisition.
The acquiring authority was obliged to show that the acquisition
was reasonably necessary for utilisation
of the land for resettlement
purposes. It was also required to apply to the Administrative Court
for an order authorising the acquisition
or confirming the
acquisition where it was contested.





Section 16
of the Act, which falls under Part V, provides that the
acquiring authority has a duty to pay fair compensation within a
reasonable time to the owner of the agricultural
land acquired for
resettlement purposes or to a person having a right or interest in
the land acquired.





Section 29A,
which falls under Part VA of the Act, establishes a
committee to be known as the Compensation Committee (“the
Committee”). The duty of the Committee
is to assess and fix the
amount of compensation payable to the claimant for improvements on or
to the land acquired, provided that
compensation shall be payable for
the land or interest or right therein where an adequate fund for that
purpose is established in
accordance with subs (1) of s 16A
of the Constitution. The factors and principles to be taken into
account by the Committee
in the assessment of the amount of
compensation payable to the claimant are laid down under subs (2)
of s 16A of the Constitution
and Part II of the Act.





Section 16A
of the Constitution was inserted by the Constitution of Zimbabwe
Amendment (No. 16) Act 2000. It prescribes
the factors which
must be regarded as of ultimate and overriding importance in regard
to the compulsory acquisition of agricultural
land for the
resettlement of people in accordance with a programme of land reform.
These factors are that under colonial domination
the people of
Zimbabwe were unjustifiably dispossessed of their land and other
resources without compensation and that consequently
the people took
up arms in order to regain their land and political sovereignty
resulting in the independence of Zimbabwe in 1980.
It declares that
the people of Zimbabwe must be enabled to reassert their rights and
regain ownership of their land. The section
declares further that
the former colonial power has an obligation to pay compensation for
agricultural land compulsorily acquired
for resettlement purposes
through an adequate fund established for the purpose and if the
former colonial power fails to pay compensation
through such a fund
the Government of Zimbabwe has no obligation to pay compensation for
agricultural land compulsorily acquired
for resettlement purposes.





Further
protection of the entitlement to the fundamental right of property in
agricultural land from compulsory acquisition was
provided under
subss 18 (1) and (9) of the Constitution. Section 18(1)
gave the owner of agricultural land or any person
having a right or
interest in the land the right to the protection of the law of
compulsory acquisition of land contained in s 16(1)
of the
Constitution and the Act. It also gave them the right to remedies
such as access to courts of law for the enforcement of
that right.
The right to protection of law which the expropriated owner or any
person having a right or interest in the land acquired
could claim or
enforce against the State included the right to have his or her case
heard and the existence of his or her rights
or obligations
determined within a reasonable time by an independent and impartial
court established by law.





The
provisions of the Constitution in Chapter III relating to
fundamental rights and their protection form part of the fundamental
law of the land. They form part of the supreme
law of the land by
which the validity of ordinary laws such as Acts of Parliament is
measured. Section 3 of the Constitution
provides that any law
inconsistent with the supreme law of Zimbabwe shall, to the extent of
the inconsistency, be void. Dicey in
his book The Law of the
Constitution
(1889) at pp 22-23 defines constitutional or
fundamental law as including “all rules which directly or
indirectly affect the
distribution or the exercise of the sovereign
power in the State”. Fundamental law is thus mainly concerned
with the creation
of the three great organs of the State, that is to
say, the Legislature, the Executive and the Judiciary, and the
distribution of
governmental power among them according to their
spheres. A fundamental law, being a supreme law, cannot have any
other law above
it by the authority of which its validity may be
tested.





Zimbabwe
has a controlled Constitution. Its provisions cannot be amended,
added to or repealed without compliance with the prescribed
special
formality. Dicey supra at pp 118-119 says that a
controlled constitution “is one under which certain laws generally
known as constitutional or fundamental
laws cannot be changed in the
same manner as ordinary laws”. The fact that the provisions of
the Constitution relating to the
fundamental right of property in
agricultural land, and the protection of it afforded by the
provisions under ss 16(1), 18(1) and
18(9) of the Constitution, could
not be taken away or diminished with the same degree of ease and in
the same manner as changes to
ordinary law could be made was an
additional protection for the fundamental rights.





Zimbabwe,
like many other nations with controlled Constitutions, has, in the
Constitution, a section which prescribes with meticulous
precision
the special procedure for the alteration of its fundamental laws.
That section is s 52(1) of the Constitution to
which s 11
makes the provisions relating to fundamental rights subject.





Section 52
of the Constitution provides:







“52 Alteration of the Constitution





(1) Parliament
may amend, add to or repeal any of the provisions of this
Constitution;





Provided
that except as provided in subsection (6) no law shall be
deemed to amend, add to or repeal any provision of this Constitution
unless it does so in express terms
. [the underlining is mine
for emphasis]





(2) A
Constitutional Bill shall not be introduced into Parliament unless
the text of the Bill has been published in the Gazette not
less than thirty days before it is so introduced.





(2)(a) A
Constitutional Bill shall not be deemed to have been duly passed by
Parliament unless, at the final vote thereon in Parliament,
it
received the affirmative votes of not less than two-thirds of the
total membership of Parliament.





(3) -
(4) …





(5) Subject
to the provisions of subsection (8) a Constitutional Bill shall
not be submitted to the President for assent unless
it is accompanied
by a certificate from the Speaker that on the final vote thereon in
Parliament the Bill received the affirmative
votes of not less than
two-thirds of the total membership of Parliament.”






Section 50
of the Constitution gives the Legislature, consisting of the
President and Parliament, full power to make laws for
the peace,
order and good government of Zimbabwe. This means that the decision
as to the matters which require legislative control
is for the
Legislature alone to make. It also means that no law made by the
legislature can be declared repugnant to an international
instrument
on the fundamental rights unless a provision of the Constitution or
an Act of Parliament has incorporated it into the
law of the country
as required by s 111B(1) of the Constitution.





The
circumstances which gave rise to the enactment of the Amendment are
these.





The
acquiring authority showed interest in compulsorily acquiring the
farm known as Mount Carmel of Railway 19, situated in
the
District of Hartley measuring 1200.6484 hectares (“the land”) for
resettlement purposes under the provisions of the Act in
1997. The
land was then registered in the second applicant’s name. It was
transferred into the first applicant’s name in
1999 under Deed of
Transfer No. 10301/99. Commercial farming activities
undertaken on the land included horticulture, fruit-growing
and
ranching. The second applicant is a director and shareholder in the
first applicant.





On
28 November 1997 the acquiring authority served on the second
applicant a preliminary notice of intention to acquire the
land for
resettlement purposes in terms of subs (1) of s 5 of the
Act. The preliminary notice had been published in the
Gazette
and the Herald newspaper. A written objection to the
proposed acquisition was lodged with the acquiring authority on the
ground that the acquisition
was not reasonably necessary for
utilisation of the land for settlement for agricultural purposes.
The preliminary notice was withdrawn
by the acquiring authority on
15 March 1998.





On
22 June 2001 another preliminary notice was served on the
applicants. The proposed acquisition of the land was opposed
on the
same ground, namely, that it was not reasonably necessary for the
purposes of utilisation of the land for settlement for agricultural
purposes. An order for compulsory acquisition of the land was
nonetheless made by the acquiring authority in terms of subs (1)
of s 8 of the Act on 4 April 2002. An application for an
order of confirmation of the acquisition was made by the acquiring
authority to the Administrative Court on 10 May 2002. On
11 December 2002 the preliminary notice issued on 22 June
2001, on the authority of which the order of acquisition made on
4 April 2002 had been made, was declared invalid and set aside
by the High Court.





On
23 July 2004 a fresh preliminary notice of the intention to
compulsorily acquire the land was published in the Gazette and
the Herald newspaper as required by s 5 of the Act. A
written objection to the proposed acquisition was served on the
acquiring authority
on the same day. No order of acquisition was
made in terms of subs (1) of s 8 of the Act, nor was an
application made
by the acquiring authority to the Administrative
Court for an order authorising the acquisition.





It
appears from the opposing affidavit deposed to by the first
respondent, who is the acquiring authority, and from Schedule 7
to s 16B of the Constitution, that owners or occupiers of at
least one hundred and fifty-seven pieces of agricultural land in
respect of which the acquiring authority issued preliminary notices
of the intention to acquire them during the period extending
from
2 June 2000 to 8 July 2005 submitted written objections to
the proposed acquisitions. The litigation in the Administrative
Court was viewed as obstructive of the land reform programme. The
first respondent alleges in the opposing affidavit that litigation
was being mounted by the owners of the pieces of agricultural land
earmarked for compulsory acquisition for purposes of delaying
the
finalisation of the land reform programme in the hope that it could
be reversed.





To stop
what was considered obstructive litigation and secure finality in
cases of compulsory acquisition of agricultural land for
public
purposes, the Legislature enacted the Constitution of Zimbabwe
Amendment (No. 17) Act, 2005 on 14 September 2005.
After
stating that its purpose is to amend the Constitution, it provides as
follows:







“2 New section inserted in Constitution





The
Constitution is amended by the insertion after section 16A of
the following section –





16B Agricultural
land acquired for resettlement and other purposes





(1) In
this section –






‘acquiring authority’ means the Minister responsible for Lands or
any other Minister whom the President may appoint as an acquiring
authority for the purposes of this section.





‘appointed
day’ means the date of commencement of the Constitution of Zimbabwe
Amendment (No. 17) Act, 2005.







(2) Notwithstanding anything contained in this Chapter –






(a) all agricultural land –






(i) that was identified on or before the 8th July
2005, in the Gazette or Gazette Extraordinary under
section 5(1) of the Land Acquisition Act [Chapter 20:10],
and which is itemised in Schedule 7, being agricultural land
required for resettlement purposes; or





(ii) that
is identified after the 8th July 2005, but before the
appointed day, in the Gazette or Gazette Extraordinary
under section 5(1) of the Land Acquisition Act [Chapter 20:10],
being agricultural land required for resettlement purposes; or





(iii) that
is identified in terms of this section by the acquiring authority
after the appointed day in the Gazette or Gazette
Extraordinary
for whatever purpose, including, but not limited to
–







A. settlement for agricultural or other purposes; or





B. the
purposes of land reorganisation, forestry, environmental conservation
or the utilisation of wild life or other natural resources;
or





C. the
relocation of persons dispossessed in consequence of the utilisation
of the land referred to in subparagraph A or B;






is acquired by and vested in the State with full title therein with
effect from the appointed day or in the case of land referred
to in
subparagraph (iii) with effect from the date it is identified in
the manner specified in that paragraph; and







(b) no compensation shall be payable for land referred to in
paragraph (a) except for any improvements effected on such land
before it was acquired.






(3) The provisions of any law referred to in section 16(1)
regulating the compulsory acquisition of land that is in force
on the
appointed day and the provisions of section 18 (1) and (9) shall
not apply in relation to land referred to in subsection (2)(a)
except for the purpose of determining any question related to the
payment of compensation referred to in subsection (2)(b),
that
is to say, a person having any right or interest in the land –






(a) shall not apply to a court to challenge the acquisition of the
land by the State, and no court shall entertain any such challenge;





(b) may,
in accordance with the provisions of any law referred to in
section 16(1) regulating the compulsory acquisition of land
that
is in force on the appointed day, challenge the amount of
compensation payable for any improvements effected on the land before
it was acquired.






(4) As soon as practicable after the appointed day, or after the
date when the land is identified in the manner specified in
subsection (2)(a)(iii),
as case may be, the person responsible
under any law providing for the registration of title over land
shall, without further notice,
effect the necessary endorsements upon
any title deed and entries in any register kept in terms of that law
for the purpose of formally
cancelling the title deed and registering
in the State title over the land.





(5) Any
inconsistency between anything contained in –






(a) a notice itemised in Schedule 7;






(b) a notice relating to land referred to in subsections (2)(a) (ii)
or (iii);






and the title deed to which it refers or is intended to refer, and
any error whatsoever contained in such notice, shall not affect
the
operation of subsection (2)(a) or invalidate the vesting of
title in the State in terms of that provision.





(6) An
Act of Parliament may make it a criminal offence for any person,
without lawful authority, to possess or occupy land referred
to in
this section or other State land.





(7) This
section applies without prejudice to the obligation of the former
colonial power to pay compensation for land referred to
in this
section that was acquired for resettlement purposes.”






Schedule 7
contains a list of one hundred and fifty-seven preliminary notices
published in the Gazette or Gazette Extraordinary, on
the basis of which the pieces of agricultural land to which they
related were acquired by and vested in the State with full title
therein with effect from the appointed day, that is to say,
14 September 2005. Mount Carmel was acquired by the State
on the appointed day in terms of s 16B(2)(a)(i) of the
Constitution by virtue of the preliminary notice published in the
Gazette on 23 July 2004. At the time of the hearing of
the application by the Supreme Court, the amount of compensation
payable for
the land acquired had not been fixed. It must be stated
at this stage that the law as embodied in the provisions of
s 16(B)(2)(a)(i)
of the Constitution and the acquisitions of the
pieces of agricultural land which resulted from its operation had no
reference at
all to the race or colour of the owners of the pieces of
land acquired. There was no question of violation of s 23 of the
Constitution
to be considered in this case. No more shall be said on
the alleged violation of s 23 of the Constitution.





Section 16B
of the Constitution is a complete and self-contained code on the
acquisition of privately owned agricultural land
by the State for
public purposes. Its provisions relate exclusively to the
acquisition of agricultural land. By the use of the
non obstante
clause, “notwithstanding anything contained in this Chapter” at
the beginning of subs (2) the Legislature gave the provisions
of
s 16B overriding effect in respect of the regulation of matters
relating to the acquisition of all agricultural land identified
by
the acquiring authority in terms of s 16B(2)(a).





Underlying
s 16B is the principle which is almost a universal law to the
effect that every sovereign, independent State like
Zimbabwe has an
inherent right to compulsorily acquire private property within its
territory for public purposes with an obligation
to pay fair
compensation for the property acquired. The makers of our
Constitution proceeded from the position that as the power
to
compulsorily acquire private property for public purposes is inherent
in the State, the duty on the legislature was to determine
the
restrictions or conditions under which the power was to be exercised.
As a result of the operation of this fundamental principle
two
separate but related procedures underlie the provisions of s 16B.





The
first procedure under s 16B(2)(a) relates to the actual
acquisition of the land, whilst the second procedure under
s 16B(2)(b)
relates to the right to payment of fair
compensation. Under the first procedure, the acquisition is made to
depend on the existence
of a state of facts established by purely
administrative acts of the acquiring authority. These facts are
that the Minister Responsible
for Lands or any other Minister whom
the President may appoint as an acquiring authority publishes a
notice in the Gazette identifying the agricultural land to be
acquired and stating therein the purpose for which the land is
required.





It is to
be noticed that under the new procedure for compulsory acquisition of
agricultural land for public purposes a number of
restrictions and
conditions imposed in the process of the acquisition have been
removed. There is no requirement for a notice of
intention to
acquire to be given to the owner of the land before acquisition.
The acquiring authority does not have to state that
the acquisition
is reasonably necessary for utilisation of the land for resettlement
purposes. Reasonable necessity of the acquisition
would have been a
judicial question, the determination of which would have required the
exercise of judicial power. The acquiring
authority is no longer
under a duty to apply to a court of law for an order confirming the
acquisition. Acquisition in terms of
s 16B(2)(a) of the
Constitution is a lawful acquisition of the agricultural land
affected. As the acquisition of agricultural
land in terms of
s 16B(2)(a) is lawful, s 16B(3) provides that subss 18
(1) and (9) of the Constitution, which provide
the right to
protection of law and appropriate remedies against unlawful
interference with or infringements of fundamental rights,
shall not
apply to the acquisition. An application to a court of law to
challenge a lawful acquisition would in effect be an abuse
of the
right to protection of law. The provisions of s 16B(3) would
not afford protection from the application of the provisions
of
subss 18 (1) and (9) of the Constitution to an acquisition of
agricultural land which is not in terms of s 16B(2)(a)
of the
Constitution. The section does not apply to an acquisition of
property in any other land which is not agricultural land.
The
provisions of s 16(1); 18(1) and (9) of the Constitution continue to
regulate the acquisition of any property other than agricultural
land.





The
provisions of s 52(1) of the Constitution empower the
Legislature to enact any law the effect of which is the taking away
of any of the fundamental rights specified in Chapter III,
provided the restrictions or conditions of the exercise of that power
prescribed thereunder are complied with. In enacting s 16B
of
the Constitution, the Legislature complied with all the requirements
of the special procedure for making fundamental law prescribed
under
s 52(1) of the Constitution. The Constitutional Bill which
became s 16B was published in the Gazette thirty days
before it was introduced into Parliament. It contained express
terms to the effect that its purpose was to amend the
Constitution.
The subject matter of the Constitutional Bill, that is to say,
acquisition of agricultural land by the State for
public purposes is
a matter in respect to which the Legislature has power to make law.
At the final reading the Constitutional
Bill received the affirmative
vote of two-thirds of the total membership of Parliament. When it
was presented to the President
for his assent, the Constitutional
Bill was accompanied by the requisite certificate of the Speaker of
Parliament.





It is
important to appreciate the fact that the Constitution does not have
a section, the provisions of which entrench any of the
provisions of
fundamental rights beyond the reach of the exercise of the
legislative power “to amend, add to or repeal any of the
provisions
of the Constitution”. The ultimate protection afforded
fundamental rights specified in Chapter III is the requirement
that the provisions of the Constitution relating to them cannot be
altered or repealed by ordinary law-making
process and that the
Legislature must comply with the requirements of the special
procedure prescribed under s 52(1) of the
Constitution.
Section 11 provides that the entitlement of persons in Zimbabwe
to the fundamental rights specified in Chapter III,
including the right to the protection of law, is subject to the
provisions of s 52(1) of the Constitution. In other words,
the
fundamental rights are not immutable. They are subject to being
amended, added to or repealed by the Legislature in the exercise
of
the legislative power, provided there is strict compliance with the
requirements of the special procedure for the making of fundamental
laws prescribed under s 52(1) of the Constitution.






I now turn to consider closely the contentions advanced on behalf of
the applicants. The first is based on the doctrine of essential
features or core values of a Constitution. The doctrine established
and expounded by the Supreme Court of India in the case of
Kesavananda v Kerala [1973] Supp. SCR 1 is to the effect that
certain provisions of the Constitution of India constitute essential
features or core values
or basic elements of that Constitution, so
that they are unchangeable by the exercise of the amending power
conferred on the Legislature
under Article 368 of that country’s
Constitution. In my view the doctrine is irrelevant to the
determination of the question
of what limitations there are to the
scope of the legislative power conferred on the Legislature under
s 50 and its exercise
under s 52(1) of our Constitution.
It appears to me that the proviso to s 52 (i) of the Constitution is
a rule of construction
directed to the courts to assist them in
applying the law so that they do not rely on the doctrine of
necessary intendment or implied
limitation which is not different
from the doctrine of essential features or core values of a
Constitution.






The
doctrine of essential features or core values of a Constitution was
expounded by the Supreme Court of India as an aid to the
construction
of the language used in Article 368 of the Indian Constitution
to find the intention of the makers of that Constitution.
The power
conferred on the Legislature in terms of Article 368 was “to
amend the Constitution by way of addition, variation
or repeal” of
any provision of the Constitution. The question which arose for
determination was due to the language used, which
was unfortunately
not so clear and unambiguous. It was whether or not the Legislature
could in the exercise of the power so conferred
on it by the terms of
Article 368 annihilate the whole Constitution.





It was
in the course of grappling with the difficult question of the
construction of Article 368 that six of thirteen learned
Judges
held that provisions of the Constitution of India relating to
fundamental rights constituted essential features or core values
of
that Constitution and as such were unchangeable by the Legislature in
the exercise of the constituent power. KANNA J and
six other
learned Judges, whilst accepting the proposition that there was a
basic structure or framework of the Constitution which
could not be
destroyed by the exercise of the amending power as defined under
Article 368 of the Indian Constitution so as to
annihilate the
entire Constitution, did not accept the proposition that fundamental
rights specified in Part III constituted essential
features or core
values of the Constitution so as to be unchangeable by the
Legislature in the exercise of the constituent power.
It is a
controversial doctrine which has not received much support outside
India for the simple reason that its application depended
upon the
construction of the language used in that country’s constitution
and over which the learned Judges failed to agree.





RAY J,
at p 409 of the judgment, said that the petitioner’s
submission that the fundamental rights were unamendable
was “a
baseless vision”. He went on to state at pp 409-410:







“To find out essential or non-essential features is an exercise in
imponderables. When the Constitution does not make any distinction
between essential and non-essential features it is incomprehensible
as to how such a distinction can be made. Again, the question
arises as to who will make such a distinction. Both aspects expose
the egregious character of inherent and implied limitations
as to
essential features or core of essential features of the Constitution
being unamendable.”









PALEKAR J
at p 600 said:






“Whatever one may say about the legitimacy of describing all the
rights conferred in Part III as essential features, one
thing is
clear. So far as the right to property is concerned, the
Constitution, while assuring that nobody shall be deprived of
property except under the authority of law and that there shall be a
fair return in case of compulsory acquisition [Article 31(1)
and
(2)], expressly declared its determination, in the interest of the
common good, to break up concentrations of wealth and means
of
production in every form and to arrange for redistribution of
ownership and control of the material resources of the community.

That is the central issue in the case before us, however, dexterously
it may have been played down in the course of an argument
which
painted the gloom resulting by the denial of the fundamental rights
under Article(s) 14, 19 and … in the implementation of
that
determination.”







The restrictions or conditions imposed on the exercise of a power of
the State conferred on any of the three organs of State must
be
ascertained from the language of the Constitution. The language
used in the provisions of ss 11, 50 and 52(1) of the Constitution
is
clear and unambiguous. The question of construction which would
have required the application of the doctrine of essential features
or core values as an aid to the ascertainment of the intention of the
makers of the Constitution does not arise in this case. The
words
used in these provisions define with express precision the only
restrictions and conditions which the Legislature has to comply
with
in the exercise of the power conferred on it. There is no room for
implied limitations.






Maxwell
in The Interpretation of Statutes 12 ed at pp 1-2
states that:







“If there is one rule of construction for statutes and other
documents it is that you must not imply anything in them which is
inconsistent with the words expressly used. … If the language
is clear and explicit, the court must give effect to it for in
that
case the words of the statute speak the intention of the
Legislature.”






At p 29
the learned author states:







“Where the language is plain and admits of but one meaning the task
of interpretation can hardly be said to arise. Where, by
the use of
clear and unequivocal language capable of only one meaning, anything
is enacted by the Legislature, it must be enforced
however harsh or
absurd or contrary to common sense the result may be.”






There is
nothing in the provisions of Chapter III and s 52(1)
of the Constitution to indicate that a limitation, other than the
special and explicit restrictions and conditions
prescribed
thereunder, was intended on the power to amend or repeal when it is
exercised to take away or diminish fundamental rights.
To the
contrary, s 11 makes the entitlement to the fundamental rights
specified in Chapter III and the rights to remedies
thereto, subject to the provisions of s 52(1) of the
Constitution. The effect of s 11 is that
there is nothing in
the Constitution which confers on the Legislature any power to
amend, add to or repeal any of the provisions
of the Constitution
otherwise than in such manner and form as is provided in s 52(1). If
the intention was to immunise the fundamental
rights specified in
Chapter III from the reach of the exercise of the
legislative power to amend, add to or repeal conferred in terms of
s 52(1) of the Constitution,
it would have been easy for the
makers of the Constitution to express that intention in language of
equal clarity.





The
language used is that which gives the Legislature full power to
amend, add to or repeal any of the provisions of the
Constitution. Nothing can be more mischievous than an attempt to
cut back power given by the Constitution
in so wide language. The
use of the word “any” shows that all the provisions of the
Constitution, including those relating
to fundamental rights, share
one common feature of being liable to alteration or repeal.





In Isle
of Wight Railways Co v Tahourdim
(1883) 25 Ch.D. 320 it was said
that the word “any” is a word which ordinarily excludes
limitation or qualification.





In
George Divisional Council v Ministry of Labour and Anor 1954
(3) SA 300 at 307D HERBSTEIN J said that the word “any” in
its natural and ordinary meaning is an indefinite term which
included
all of the things to which it relates.





In R
v Hugo
1926 AD 268 at 271 the word “any” was described as a
word which is, upon the face of it, a word of wide and unqualified
generality.






The word “provisions” does not refer to the formal statements set
out in sections of the Constitutional document only, but refers
mainly to the particular matters, that is to say, rights or powers
and obligations provided for by the words used in the formal
statements.







It would be improper for the Court to create by construction its own
limitations, restrictions or conditions in addition to those
imposed
in express terms by the makers of the Constitution under s 52(1)
of the Constitution. So in deciding the question whether
fundamental
rights guaranteed to individuals in a Constitution can be diminished,
modified or abolished, one must look not so much
at the Courts as at
the nature of the power to alter the Constitution and in particular
the limitations embodied in it.






In The
Queen v Burah
[1878] 3 AC 881 LORD SELBOURNE stated at
pp 904-905:







“The established courts of justice, when a question arises whether
the prescribed limits have been exceeded, must of necessity
determine
that question and the only way in which they can properly do so, is
by looking to the terms of the instrument by which
affirmatively the
legislative powers were created and by which negatively they are
restricted. If what has been done is legislation,
within the
general scope of the affirmative words which give the power and if it
violates no express condition or restriction by
which the power is
limited … it is not for any court of justice to enlarge
constructively those conditions or restrictions.”






Section 52(1)
of the Constitution gives the Legislature the power by law to take
away or diminish any fundamental rights specified
in Chapter III
and amend or repeal the provisions of the Constitution relating to
them provided it complied with the requirements of the prescribed
special procedure.





Section 16B
of the Constitution, which makes provision for the valid acquisition
of agricultural land by the State, is legislation
which falls within
the general scope of the affirmative words by which the power is
given under s 52(1) of the Constitution
and in its enactment the
Legislature did not violate any of the conditions by which the power
is limited.





The
proposition that the duty of the Court in the circumstances is
limited to the determination of the question whether in enacting
s 16B the Legislature complied with the prescribed procedural
and substantive requirements under s 52(1) of the Constitution
also finds authority in the case of Minister of the Interior and
Anor v Harris and Ors
1952 (4) SA 769 (A). The Appellate
Division of the Supreme Court of South Africa in that case had
to decide the question whether
Act 35 of 1952, which had
established a High Court of Parliament consisting of all senators and
members of the House of Assembly
with power to review decisions of
the Appellate Division of the Supreme Court of South Africa and
altered s 152 of the
Constitution of South Africa was
valid, as it had not been passed in the manner prescribed by the
second proviso to s 152.
CENTLIVERS CJ at 779 D-G
said:







“Section 152 of the Constitution enacts that ‘Parliament
may by law repeal or alter any of the provisions of this Act’.

There are two provisos, the first of which is irrelevant. The
second proviso, insofar as it is material to this case, enacts
that:






‘No repeal or alteration of the provisions contained in this
section … or in secs 35 and 137 shall be valid unless the Bill
embodying such repeal or alteration shall be passed by both Houses of
Parliament sitting together and at the third reading be agreed
to by
not less than two-thirds of the total number of members of both
Houses.’






It is
clear from secs 35, 137 and 152 of the Constitution that certain
rights are conferred on individuals and that these rights
cannot be
abolished or restricted unless the procedure prescribed by sec 152
is followed.





In
construing these sections it is important to bear in mind that these
sections give the individual the right to call on the judicial
power
to help him resist any legislative or executive action which offends
against these sections or, to put it another way, these
sections
contain constitutional guarantees creating rights in individuals the
duty of the Courts, where the question arises in litigation
being to
ensure that the protection of the guarantee is made effective, unless
and until it is modified by legislation in such a form as under the
Constitution can validly effect such modification
.” (the
underlining is mine for emphasis)






It is
clear from the above statement that the ratio decidendi of the
case was that compliance with the requirements of the prescribed
procedure for the enactment of legislation repealing or altering
especially entrenched provisions of the Constitution was the only
measure of the validity of the exercise of the affirmative
legislative
power the court had to consider.





The case
of Bribery Commissioner v Ranasinghe [1964] 2 All ER 785
is also illustrative of the application of the principle of law under
discussion. The voting and legislative
powers of the Ceylon
Parliament were dealt with under s 18 and s 29 of the
Constitution of Ceylon. The sections provided
that:







“18 Save as otherwise provided in subsection (4) of
section 29 any question proposed for decision by either Chamber
shall be determined by a majority of votes of the senators and
members, as the case may be, present and voting …





29 (1) Subject
to the provisions of this order, Parliament shall have power to make
laws for the peace, order and good government
of the Island.





(2) No
such law shall –






(a) prohibit or restrict the free exercise of any religion.”







There followed subss (b), (c) and (d) which set out further
entrenched religious and racial matters, which were not to be the
subject
of legislation. They represented the solemn balance of
rights between the citizens of Ceylon, the fundamental conditions on
which
inter se they accepted that Constitution, and were
therefore unalterable under that Constitution. Section 29 then
continued:







“29 (3) Any law made in contravention of subsection (2) of
this section shall, to the extent of such contravention, be void.





(4) In
the exercise of its powers under this section, Parliament may amend
or repeal any of the provisions of this order, or of
any other order
of Her Majesty in Council in its application to the Island.





Provided
that no bill for the amendment or repeal of any of the provisions of
this order shall be presented for the royal assent
unless it has
endorsed on it a certificate under the hand of the Speaker that the
number of votes cast in favour thereof in the House
of
Representatives amounted to not less than two-thirds of the whole
number of members of the House (including those not present).





Every
certificate of the Speaker under this subsection shall be conclusive
for all purposes and shall not be questioned in any court
of law.”






The
Bribery Amendment Act 1958 was not endorsed with the Speaker’s
certificate. There was nothing to show that it had been passed
by
the requisite majority of two-thirds of the whole number of members
of the House. There was a conflict between s 41 of
the Act of
1958 and s 55 of the Constitution.





The
Judicial Committee of the Privy Council held that where an Act
involves a conflict with the Constitution, the certificate of
the
Speaker is a necessary part of the Act-making process and its
existence must be apparent. Where the certificate is not apparent,
there is lacking an essential part of the process necessary for
amendment.





LORD PEARCE,
delivering the Board’s opinion, remarked at 792 D-I that:







“… a legislature had no power to ignore the conditions of
lawmaking that are imposed by the instrument which itself regulates
its power to make law. Such a constitution can indeed be altered or
amended by the legislature, if the regulating instrument so
provides
and if the terms of those provisions are complied with: and the
alteration or amendment may include the change or abolition
of those
very provisions. … In the present case … the legislature has
purported to pass a law which, being in conflict with
section 55
of the Order in Council, must be treated, if it is to be valid, as an
implied alteration of the constitutional provisions
about the
appointment of judicial officers. Since such alterations, even if
express, can only be made by laws which comply with
the special
legislative procedure laid down in section 29(4), the Ceylon
legislature has not got the general power to legislate
so as to amend
its Constitution by ordinary majority resolutions …”









The ratio decidendi of the Bribery Commissioner Case supra
was that if the legislature of Ceylon intended to effect an amendment
to that country’s Constitution by the exercise of legislative
power
it was “compelled to operate a special procedure in order to
achieve the desired result”. See also Hinds v The Queen
[1977] AC 195 at 213.





The
clear indication is that the makers of the Constitution did not
intend to make the fundamental rights and freedoms specified
in
Chapter III immune from the exercise of legislative power
to effect constitutional amendments in compliance with the special
procedure prescribed
under s 52(1) of the Constitution. The
fundamental rights bind the three organs of the State, that is to
say, the Legislature,
the Executive and the Judiciary and are
directly enforceable by law until the Legislature in the exercise of
legislative power acts
in terms of s 52(1) of the Constitution.






As for s 16B of the Constitution, it is clear that in
prescribing the requirements for the acquisition by the State of
agricultural
land owned by individuals for resettlement purposes, the
makers of the Constitution definitely refused to accept the doctrine
of
essential features or core values with regard to the fundamental
right to property where the land was required for public purposes.

The form taken by s 16B of the Constitution is not uncommon. The
wording of s 16B(2)(a) is similar to the wording of s 3
of
the Wheat Acquisition Act 1914 of the State of New South Wales, which
provided that the Governor might:



“… by notification published in the Gazette declare that any
wheat therein described or referred to is the property of
His Majesty,
and that upon such publication the wheat shall
become the absolute property of His Majesty, and the proprietary
rights of every
person in the wheat at the date of publication shall
be taken to be converted into a claim for compensation in pursuance
of the provisions
of the Act relating to compensation.”






Section 15(2)
of the Lands Acquisition Act 1906-1936 of Australia was in similar
terms with regard to compulsory acquisition
of land by the State for
public use. See The State of New South Wales v The Commonwealth
20 CLR 54 at 65-66; Grace Brothers (Pty) Ltd v The Commonwealth
72 CLR 269. Pretoria City Council v Modimola 1966(3) SA
250(a).





Section
16B of the Constitution is a legitimate exercise of the legislative
power to determine the conditions under which the power
inherent in
the State to compulsorily acquire private property in agricultural
land for public purposes can be validly exercised.





The next
point on the relief sought under para (1) of the order was that
the taking away of the fundamental rights under subss 18
(1) and
(9) by the enactment of s 16B(3) of the Constitution is not an
exercise of the power to amend the provisions of those
subsections.





I do not
agree. The argument is based on an unnecessarily restrictive
interpretation of s 52(1) of the Constitution. Section 113(1)
of the Constitution provides that, unless the context otherwise
requires, the word “amend”, as used in the Constitution,
“includes
vary, alter, modify or adapt”. A material alteration
of the substance of a provision such as the taking away of a right
granted
thereunder would protanto have the effect of amending
the provision within the meaning of that concept in s 52(1) of
the Constitution. The amendment is
effected by way of providing for
the taking away from an individual the rights of property in
agricultural land only and denying
him or her the rights under s
18(1) and (9) in respect of the acquisition of agricultural land
whilst leaving the same provisions
of the Constitution unchanged in
respect of all other cases of compulsory acquisition of property.





The
provisions of s 16B were not part of the Constitution until that
section was inserted after s 16A. It is clear that
the
provisions of s 16B are an addition to the provisions of the
Constitution. That makes the provisions of subs (3)
of s 16B
an addition to the provisions of the Constitution. The clear
intention of the Legislature in enacting s 16B(3)
was to modify
the provision of subss 18 (1) and (9) of the Constitution with
respect to any challenges of the acquisition of
agricultural land
effected in terms of s 16B(2)(a) of the Constitution. The fact
that s 16B(3) has the effect of taking
from the expropriated
owner of the land referred to in s 16B(2)(a) of the Constitution
the fundamental right in question does
not detract from the fact that
its provisions were added to the other provisions of the
Constitution. There is in fact no contextual
amendment of the
provisions of subss 18 (1) and (9) by the provisions of
s 16B(3).





In
Zainal bin Hashim v Government of Malaysia [1979] 3 All ER
241, Article 135(1) of the Federal Constitution of Malaysia
provided that no members of the police force
should be dismissed by
an authority subordinate to that which at the time of the dismissal
had power to appoint a member of that
service of equal rank. The
Malaysian Police Force Commission, under power conferred on it by the
Constitution delegated to chief
police officers the power to dismiss
constables but not the power to appoint them. On 20 January
1972 a chief police officer
made an order dismissing the appellant
from the police force, with effect from the date of his conviction.
The appellant brought
an action against the Malaysian Government,
claiming a declaration that his dismissal was void and inoperative.
On 21 March
1975 the trial Judge gave judgment in favour of the
appellant on the ground that his dismissal contravened Article 135(1)
because
the chief police officer had no power to appoint constables.
On 27 August 1976 a proviso to Article 135(1) was inserted
by the Constitution (Amendment) Act in these terms:







“And provided further that this clause shall not apply to a case
where a member of any of the services mentioned in that clause
is
dismissed or reduced in rank by an authority in pursuance of a power
delegated to it by a commission to which this Part applies
…”.






It was
accepted by the Judicial Committee of the Privy Council that the
proviso was an addition to the provisions of the Constitution
despite
the fact that its effect was to render Article 135(1) by
referential operation inapplicable through the use of the
device of
the words “shall not apply to”.





Referring
to Zainal’s case supra in Nkomo and Anor v
Attorney-General and Ors
1993 (2) ZLR 422 (S) for purposes of the
illustration of the application of the rule on the presumption
against the retrospective
construction of statutes GUBBAY CJ
accepted at p 430B as a fact that the proviso to Article 135(1)
was an addition
to the provisions of the Federal Constitution of
Malaysia and ipso facto that the effect it had on the
substance of Article 135(1) by referential operation through the
use of the exclusionary words
“shall not apply to” was a
reduction of rights.





Section 16B(3)
also affects the provisions of subss 18 (1) and (9) of the
Constitution by referential operation by providing
that they “shall
not apply in relation to land referred to in subsection (2)(a)”
of s 16B. The terms of the provisions
of s 16B(3) are express
and directed specifically at the operation of s 18 (1) and (9) of the
Constitution with respect to the institution
of proceedings in any
Court of law to challenge the acquisition of agricultural land
secured in the prescribed manner.





The
effect of s 16B(3) on the provisions of subss 18 (1) and
(9) of the Constitution, is the taking away of the right
to
protection of law afforded to the right of property in agricultural
land acquired in terms of s 16B(2)(a), just as the effect
of the
proviso on the provisions of Article 135(1) of the Federal
Constitution of Malaysia was the taking away of the right
of a member
of the police force not to be dismissed from the force by a police
officer with no power to appoint members of his rank.
In other
words, the effect of the added proviso was to deprive a constable
dismissed for misconduct by a chief police officer,
to whom power to
dismiss him had been properly delegated, of the right to maintain
that his dismissal was invalid owing to the omission
to delegate to
the chief police officer power to appoint constables.





So s
16B(3) may be regarded as an amendment of subss 18 (1) and (9)
of the Constitution. As it forms part of s 16B,
it may also be
regarded as an addition to the provisions of the Constitution. The
enactment of s 16B(3) was in compliance with
the requirements of
s 52(1) of the Constitution. It is a legitimate expression of the
exercise of the power to amend or add to any
of the provisions of the
Constitution.





The last
point taken on the relief sought in para (1) of the order was in
respect of the ouster of the jurisdiction of courts
of law under
s 16B(3) of the Constitution from cases in which the acquisition
of land in terms of s 16B(2)(a) would have
been sought to be
challenged. The contention advanced by Mr Gauntlett on
behalf of the applicants was that the right of access to a court of
law and the right to be heard by such a tribunal in the determination
of rights or obligations are fundamental to the protection an
individual has under the Constitution against the demands of the
Government.
The contention was that any law having the effect of
taking these rights away from an individual must be declared invalid
for interfering
with essential features or core values of the
Constitution. The essential features or core values referred to were
the principles
of the separation of powers of the State and rule of
law.





The
question whether the Legislature had power to take away the right of
access to courts of law and the right to be heard from
an
expropriated owner or a person having a right or interest in the
agricultural land acquired by ousting the jurisdiction of courts
of
law from a case in which he sought to challenge the acquisition is of
great importance, as are all other questions which run along
the line
of the validity of the exercise of legislative power to interfere
with the protection the individual has under the Constitution
against
the demands of Government.





The
question what protection an individual should be afforded under the
Constitution in the use and enjoyment of private property
is a
question of a political and legislative character. In other words,
what property should be acquired and in what manner is
not a judicial
question. The general principle is that provisions of the
Constitution should not be construed so as to take away
the
jurisdiction of courts of law. It is however subject to the first of
all principles of construction that when in clear and unambiguous
language the Legislature in the proper exercise of its powers has
provided that courts of law shall not have jurisdiction in a specific
class of cases not pending before the courts at the time the ouster
is made operational the intention of the Legislature must be
respected and enforced.





In
Winter v Administrator-in-Executive Committee 1973 (1) SA 873
(A) at 884 OGILVIE THOMPSON CJ said:







“The Legislature’s competence to enact a statutory provision
ousting the jurisdiction of the courts in respect of certain matters
(however undesirable in itself) is indisputable.”






See also
Smith v East Elloe Rural District Council [1956] AC 756 at
750-751.





By the
clear and unambiguous language of s 16B(3) of the Constitution
the Legislature, in the proper exercise of its powers,
has ousted the
jurisdiction of courts of law from any of the cases in which a
challenge to the acquisition of agricultural land secured
in terms of
s 16B(2)(a) of the Constitution could have been sought. The
right to protection of law for the enforcement of
the right to fair
compensation in case of breach by the acquiring authority of the
obligation to pay compensation has not been taken
away. The ouster
provision is limited in effect to providing protection from judicial
process to the acquisition of agricultural
land identified in a
notice published in the Gazette in terms of s 16B(2)(a).
An acquisition of the land referred to in s 16B(2)(a) would be
a lawful acquisition. By a fundamental
law the Legislature has
unquestionably said that such an acquisition shall not be challenged
in any court of law. There cannot
be any clearer language by which
the jurisdiction of the courts is excluded.





The
right to protection of law under s 18(1) of the Constitution,
which includes the right of access to a court of justice,
is intended
to be an effective remedy at the disposal of an individual against an
unlawful exercise of the legislative, executive
or judicial power of
the State. The right is not meant to protect the individual against
the lawful exercise of power under the
Constitution. Once the state
of facts required to be in existence by s 16B(2)(a) of the
Constitution does exist, the owner
of the agricultural land
identified in the notice published in the Gazette has no right not to
have the land acquired. The conduct
and circumstances of the owner
of the agricultural land identified for compulsory acquisition would
be irrelevant to the question
whether or not the expropriation of his
or her property in the land in question is required for any of the
public purposes specified
in s 16B(2)(a) of the Constitution.
In the circumstances there is no question of prejudice to the rights
of the individual
since his personal conduct or circumstances are
irrelevant to the juristic facts on which the lawful acquisition
depends. No purpose
would be served in giving the expropriated owner
the right to protection of law under s 18(1) and (9) of the
Constitution when an
attempt at the exercise of the right would
amount to no more than its abuse.





Section 16B(3)
of the Constitution has not however taken away for the future the
right of access to the remedy of judicial
review in a case where the
expropriation is, on the face of the record, not in terms of
s 16B(2)(a). This is because the principle
behind s 16B(3)
and s 16B(2)(a) is that the acquisition must be on the authority
of law. The question whether an expropriation
is in terms of
s 16B(2)(a) of the Constitution and therefore an acquisition
within the meaning of that law is a jurisdictional
question to be
determined by the exercise of judicial power. The duty of a court
of law is to uphold the Constitution and the law
of the land. If
the purported acquisition is, on the face of the record, not in
accordance with the terms of s 16B(2)(a) of
the Constitution a
court is under a duty to uphold the Constitution and declare it null
and void. By no device can the Legislature
withdraw from the
determination by a court of justice the question whether the state of
facts on the existence of which it provided
that the acquisition of
agricultural land must depend existed in a particular case as
required by the provisions of s 16B(2)(a)
of the Constitution.





Taking
into account the narrow ambit of the application of the provisions of
s 16B(3) of the Constitution, I do not find attractive
the
argument that the provision undermines the balance of powers of the
State between the Legislature and the Judiciary. The taking
away of
the functions of judicial power and giving them to a tribunal which
is not a court of law is as valid an exercise of legislative
power as
the taking away of the functions and letting them lie dormant without
giving them to any other body to discharge. What
is objectionable
as being in violation of the principle of separation of powers is for
the Legislature to take the functions of judicial
power and exercise
them itself under the guise of a legislative judgment over facts and
circumstances of a particular case. See
Liyanage v The Queen
[1967] AC 259 at p 291.





It
appears to me that without the misconception of its enactment as a
violation of the principle of separation of powers of the
State the
ouster of the jurisdiction of court in the limited circumstances
prescribed in s 16B(2)(a) of the Constitution does
not have the
obnoxious effect on the principle of the rule of law which was
suggested in the course of the argument against the ouster
provision.





The
relief sought under para (2) of the order depended upon an
affirmative answer to the question whether failure by the acquiring
authority to pay compensation for the agricultural land acquired in
terms of s 16B(2)(a)of the Constitution within a reasonable
time
after the acquisition invalidates the acquisition. The acquisition
of land referred to in s 16B(2)(a) of the Constitution
is a
lawful acquisition. It takes place by operation of the law on
account of the existence of the state of the specific facts
prescribed under that subsection. The right to fair compensation
moves with title in the sense that, upon the acquisition of private
property in the agricultural land for public purposes having taken
place, the acquiring authority assumes the obligation to pay the
expropriated owner or the person having a right or interest in the
land acquired fair compensation for the improvements effected
on such
land before it was acquired.





The
right to fair compensation arises by operation of the law on the
state of the facts on the existence of which the validity of
acquisition depends. The ability to pay the amount of compensation
within a reasonable time after the acquisition is not however
one of
the juristic facts upon which the law operates to effect the
acquisition. The duty on the acquiring authority is to pay
the
amount of compensation payable, which means that the determination of
the question whether a reasonable time has expired must
take into
account all the circumstances bearing upon the question of assessment
and the fixing of the amount of compensation payable.





The
legal consequences of an acquisition in terms of s 16B(2)(a) of
the Constitution, such as the right in the State to demarcate,
allocate and without delay register full title in the land acquired,
are consistent with the view that payment of fair compensation
for
improvements effected on such land within a reasonable time after the
acquisition is not a pre-condition for the acquisition.
If
authority is required for this statement of law, it is provided by
the case of Attorney-General v De Keyser’s Royal Hotel
[1920] AC 508. In his speech at p 542 LORD ATKINSON said:



“… the legal obligation to pay for the land or its use,
temporarily or permanently acquired, is not a restriction upon the
acquisition
of either or a condition precedent to its acquisition.”






At p 581
LORD MOULTON said:



“The duty of payment of compensation cannot be regarded as a
restriction. It is a consequence of the taking but in no way
restricts
it.”









LORD SUMMER
at p 558 also said:






“The obligation to pay compensation to the dispossessed owner which
that Act provides for is, however, not a restriction on the
acquisition of his land. It might discourage the exercise of the
power of acquisition but it does not limit that power. The power
is
complete independently of payment and it is fully exercised before
the obligation to pay arises.”






The
lawfulness of the acquisition of the land by the State is founded
upon a state of facts which does not change, whether or not
compensation has been paid to the expropriated owner or a person
having a right or interest in the land acquired within a reasonable
time. The requirement that compensation be paid within a reasonable
time after the acquisition is based on provisions of the Constitution
and the Act relating to compensation for property lawfully acquired.
What would have happened would not be described as an acquisition
of
agricultural land by the State unless it would have happened in
accordance with the provisions of s 16B(2)(a) of the
Constitution.
It is clear from the wording of s 16B(3) of the
Constitution that the intention of the Legislature is that the
acquisition
of agricultural land in terms of s 16B(2)(a) must
not be put in the category of justiciable controversies. Although Mr
de Bourbon
argued that failure by the acquiring authority to pay fair
compensation within a reasonable time after acquisition invalidates
the
acquisition he failed to point at any provision of the
Constitution or the Act to that effect.





The
right of the owner of the land acquired or any person having a right
or interest in the agricultural land acquired to fair compensation
is
legally guaranteed. It is an absolute right, the conferment of
which on the owner of the land acquired or a person having a
right or
interest in the land is not reversible upon failure by the acquiring
authority to pay the amount of compensation within
a reasonable time.
Like any other legal right its enforcement upon established
violation may be secured by legal remedies ordinarily
available in a
court of law. To hold that failure by the acquiring authority to
pay the amount of compensation for the land acquired
within a
reasonable time after the acquisition invalidates the acquisition
would defeat the clear intention of the Legislature to
define the
acquisition as a political and legislative question on the one hand
and the payment of fair compensation which arises
after acquisition
has taken place as a judicial question on the other. The contention
is rejected.





The
alternative relief sought raises the question whether this Court has
the legal basis of granting the order of mandamus sought in
the terms directed to the acquiring authority. Ordinarily an order
of mandamus will be made to compel the performance of a public
legal duty which the person who is subject to the duty has refused to
perform
in a case where the performance of the duty cannot be
enforced by any other adequate legal remedy.





The duty
to pay the amount of compensation to the owner of agricultural land
acquired or to any other person whose right or interest
in the land
has been acquired in terms of s 16B(2)(a) of the Constitution is
imposed on the acquiring authority under s 16(1)
of the Act.
The acquiring authority can only discharge that duty once the amount
of compensation payable to a claimant has been
assessed and fixed by
the Committee established in terms of s 29A of the Act. It is
the duty of the Committee to determine
the compensation payable.
The procedure the Committee has to follow in the discharge of its
duties is set out under s 29B
of the Act.






The duty of the Minister who is the acquiring authority is to appoint
members of the Committee in terms of the power conferred on
him/her
by s 29A of the Act. He/she does not have a direct influence
on the discharge by the Committee of its functions under
the Act.
Under s 29D the Minister can appeal to the Administrative Court
against an assessment by the Committee of the compensation
payable to
a claimant if he or she considers that in assessing the compensation
the Committee did not observe any of the principles
prescribed under
ss 21 or 29C of the Act.






There is
nothing in the application to show that the Minister refused to
perform his duty to appoint members of the Committee.
It was not
argued that the Committee does not exist. The Committee has not
been cited as a party to these proceedings and no order
of mandamus
directed to it to compel it to perform the public legal duty imposed
on it under s 29A of the Act has been sought from the Court.

As the acquiring authority is not subject to the duty imposed on the
Committee, he cannot be found to have refused to perform the
duty to
assess and fix the amount of compensation payable to the applicants
within a reasonable time after the agricultural land
was acquired by
the State. There is no basis on which an order of mandamus
may be made against the acquiring authority in this case. This last
contention also fails.





The
respondents did not seek costs should the application be
unsuccessful, perhaps because this was a constitutional matter
raising
questions of national importance. It appears to me that
under the circumstances the proper order to make is that each party
bears
its own costs.





The
application is accordingly dismissed. Each party should bear its
own costs.








CHIDYAUSIKU 
CJ: I agree.








ZIYAMBI
JA: I agree








GWAUNZA
JA: I agree








GARWE
JA: I agree








Gollop
& Blank
, applicants' legal practitioners


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