NYAMBIRAI v NATIONAL SOCIAL SECURITY AUTHORITY & ANOR 1995 (2) ZLR 1 (S)

Flynote

Constitutional law - Constitution of Zimbabwe 1980 — Declaration of Rights — s 16 — protection against compulsory acquisition of property — compulsory pension scheme — whether scheme constitutes the imposition of tax — whether scheme reasonably justifiable in a democratic society

Headnote

The applicant objected to being forced to contribute to the NSSA scheme for pension and other benefits, arguing that his property or rights were being compulsorily acquired contrary to s 16 of the Constitution.

Held, that s 16 of the Constitution allows the acquisition in satisfaction of any tax, except if that tax is not reasonably justifiable in a democratic society.

Held, further, that a tax is a compulsory, not optional, contribution, imposed by the Legislature or other competent authority and imposed upon the public as a whole or a substantial sector thereof, with the revenue from the tax to be utilised for the public benefit or to provide a public service.

Held, further, that the mandatory contributions to the NSSA meets all these requirements and the scheme amounts to the imposition of a tax.

Held, further, that the scheme was formulated to provide a service in the public interest and the Minister's assessment of the public interest must be respected, unless it was manifestly without reasonable foundation as the national authorities are in principle better placed than the Judiciary to appreciate what is to the public benefit.

Held, further, that this tax was not shown to be unjustifiable in a democratic society. The tax satisfied the three criteria used by the court to determine

whether a measure was reasonably justifiable in a democratic society. That the legislative objective of the scheme was sufficiently important to justify limiting the fundamental right was demonstrated by the fact that Zimbabwe was lagging far behind most other countries in the provision of social security, despite international conventions calling for it, and was, before the introduction of the scheme, one of only five countries which provided the least coverage for employees. The fact that the measures designed to meet the legislative objective were rationally connected to it was demonstrated by the fact that Government could not carry the burden of providing social security alone. For the scheme to be viable, compulsory contributions by employees and employers were necessary. Finally, that the means used to impair the right or freedom were no more than is necessary to accomplish the objective was established by the fact that the compulsion to contribute to the scheme was outweighed by the importance of the major objective of this scheme.

Held, further, that in deciding this matter, the court should have regard to the attitude of many other countries towards similar schemes, and cases elsewhere where similar objections had been raised and rejected.

Held, therefore, that the application should be dismissed, but with no order as to costs as the issues raised were important and controversial.