MANICA ZIMBABWE LTD & ORS v MINISTER OF STATE FOR NATIONAL SECURITY, LAND REFORM AND RESETTLEMENT & ANOR 2007 (2) ZLR 287 (S)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 16 — protection against acquisition of property — Acquisition of Farm Equipment or Material Act [Chapter 18:23] — whether complies with requirements of s 16

D Statutes — Acquisition of Farm Equipment or Material Act [Chapter 18:23] — ss 6, 8, 9 and 10 — constitutionality of

Headnote

The applicants contended that ss 7, 9 and 10 of the Acquisition of Farm Equipment or Material Act [Chapter 18:23] were invalid by reason of their non-compliance with s 16(1)(a)(ii), (c), (e) and (f) of the Constitution. They argued that

• the 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 s 16(1)(a)(ii) of the Constitution, in particular that it had to be for a purpose beneficial to the public generally or to any section of the public;

• the Act did not require the acquiring authority to pay fair compensation before or within a reasonable time after acquiring the property, as it made no provision for compensation to be paid before the acquisition, providing instead that a quarter of the compensation should be paid at the time of acquisition or within thirty days and the balance within five years in the case of farm equipment and one year in the case of farm material;

• the Act made no provision, as required by s 16(1) of the Constitution, to allow the owner of the property to apply to a court for prompt return of the property if the court does not confirm the acquisition, and made no provision for an appeal to the Supreme Court; and

• the Act made 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.

Held, that it is sufficiently clear from the language of ss 6 and 10 of the Acquisition of Farm Equipment or Material Act [Chapter 18:23] that the compulsory acquisition of farm equipment and materials is for the purpose of furthering a programme of land reform. As this programme is not a private activity, but one that is beneficial to the public generally and certainly to sections of the public, ss 6 and 10 of the Act are not in conflict with s 16(1)(f) of the Constitution of Zimbabwe which provides for compulsory acquisition of property "for a purpose beneficial to the public generally or to any section of the public:"

Held, further, that s 9 of the Act is not in conflict with s 16(1)(c) of the Constitution, as the latter cannot be construed as providing for one lump sum payment. To interpret the clear wording of that provision as prohibiting payment in installments would be doing violence to the plain language thereof, which simply provides that the payment be fair and that it should be made within a reasonable time. Whether the payment will be made in one lump sum payment or in installments is something for which the Constitution chooses not to provide.

Held, further, that 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 that event, 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, unlike s 16(1)(e) of the Constitution, does not confer on the claimant 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; it 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 thereby relieves the claimant of the burden of having to apply to the High Court or any other court for the return of the property. Section 8(5) of the Act is, therefore, complementary to s 16(1) of the Constitution. There was thus no inconsistency between s 16(1)(e) of the Constitution and s 8(5) and (6) of the Act that rendered the Act invalid.

Held, further, that s 8 of the Act provides that whenever compensation is contested the acquiring authority is required to apply within 30 days to the Administrative Court for confirmation of the acquisition. Thus in the event of a contestation relating to compensation, the Administrative Court will determine it. The only variation between the Act and s 16(1)(f) of the Constitution is that whereas the former makes the acquiring authority dominus litis, the latter provides for the claimant to be dominus litis of the proceedings. The difference between the Constitution and the Act relates to procedure and not substance and this difference does not amount to an inconsistency that would render the act invalid.