This is an application in terms of section 85(1)(a) of
the Constitution of Zimbabwe Amendment (No.20) 2013 (“the Constitution”) alleging
that the applicant's fundamental right to administrative conduct that is
lawful, prompt, efficient, reasonable, proportionate, impartial and both
substantively and procedurally fair, enshrined in section 68(1) of the
Constitution, has been infringed.
The cause of the alleged infringement is the decision by
the first respondent to withdraw an offer letter given to the applicant to
occupy a piece of agricultural land without giving her an opportunity to be
heard on the proposed withdrawal of the offer letter.
The background facts are that on 30 August 2002 the
Government compulsorily acquired Lot 1 of the whole of Manyewe Farm in Mazowe
District of Mashonaland Central Province which was then registered in the name
of Ridwyn (Pvt) Ltd under Deed of Transfer No. 8426/2002.
On 10 July 2008, the acquiring authority offered the
applicant the right to occupy, hold and use the whole of Lot 1 of Manyewe Farm
measuring 464 hectares. The applicant accepted the allocation of the piece of
land by signing the offer letter containing a number of terms and conditions.
One of the terms of the offer letter was that the Minister of Lands and Rural
Resettlement (“the Minister”) reserved the right to withdraw or change the
offer if he deemed it necessary or if the holder of the offer letter was found
to be in breach of any of the conditions of the offer letter.
In 2013, the Minister decided to subdivide the land
allocated to the applicant into two portions measuring 210 and 254 hectares
respectively. On 23 July 2013, the applicant was advised of the decision to
withdraw the offer letter relating to Lot 1 of Manyewe Farm which had already
been subdivided. On the same date, an offer letter was sent to the applicant
allocating to her the right to occupy, hold and use for agricultural settlement,
subdivision 2 of Lot 1 of Manyewe Farm measuring 210 hectares. Subdivision 1 of
Lot 1 of Manyewe Farm measuring 254 hectares was allocated to the second
respondent who accepted the offer.
The applicant was served with the notice of withdrawal of
the offer letter relating to Lot 1 and the offer letter relating to subdivision
2 of Lot 1 on 11 November 2013.
The applicant refused to accept the offer letter relating
to subdivision 2 of Lot 1 of Manyewe Farm arguing that the land allocated to
her was rocky and not arable land. She subsequently applied to the High Court
for review of the decision of the Minister to subdivide Lot 1 of Manyewe Farm.
She also sought a review of the decision of the Minister to withdraw the offer
letter in respect of Lot 1 without giving her notice of the administrative
conduct.
The applicant withdrew the application for review of the
Minister's decision after the second respondent opposed it on the ground that
the application should have been made to the Administrative Court.
Instead of lodging the application with the Administrative
Court after its withdrawal from the High Court, the applicant approached the
Constitutional Court. She made an application under section 85(1)(a) of the
Constitution alleging that her rights under sections 68(1), 71(3) and 291 of
the Constitution had been and were being infringed by the administrative
conduct of the Minister. The administrative conduct alleged to have violated
the applicant's rights was the decision to withdraw the offer letter relating
to Lot 1 of Manyewe Farm without giving the applicant notice of the intended
action and affording her a reasonable opportunity to make representation on the
matter.
The application was opposed on four grounds.
(i) The first was that the application was in the wrong
forum as it should have been made to the Administrative Court.
(ii) The second ground was that section 291 of the
Constitution is not part of Chapter 4 and did not enshrine a fundamental
right.
The contention was that section 291 did not guarantee to
the applicant a fundamental right the infringement of which entitled her to
approach the Constitutional Court for appropriate relief in terms of section
85(1)(a) of the Constitution.
(iii) The third ground on which the application was opposed
was that section 71(3) of the Constitution had no bearing on the legality of
the decision of the Minister because it was concerned with compulsory
acquisition of property by the State and not the withdrawal of rights to
occupy, hold and use State land given to a person in terms of an offer letter.
(iv) The fourth ground on which the application was opposed
was that the existence of the Administrative Justice Act [Chapter 10:28] gives
effect to the fundamental rights enshrined in section 68(1) and (2) of the
Constitution and provides an effective remedy for their protection and
enforcement.
All the four points raised by counsel for the second
respondent are unassailable….,.
The applicant founded her cause of action on section 68 of
the Constitution. In paragraphs 17 and 18 of the founding affidavit, the
applicant avers as follows:
“17. Second respondent was allocated the arable portion of
the property which I was using in my rose production. This is the portion of
the property where one can engage in farming activities as compared to the
other portion which is not arable.
18. The decision of the 1st respondent to
subdivide the property and allocate the 2nd respondent the portion
that I was using and shoving me to the rocky, mountainous, and unarable portion
is grossly arbitrary and unreasonable.”
The meaning of section 68 of the Constitution escaped the
applicant's legal representative.
Section 68(1) of the Constitution gives every person the
right to administrative conduct and sets out the standards the conduct has to
meet. Section 68(1) of the Constitution defines the scope, substantive and
procedural content of the right concerned. Section 68(2) gives a person whose
right has been infringed by an administrative conduct a right to be given,
promptly, written reasons for the conduct. Section 68(3) of the Constitution
goes on to provide that there shall be an Act of Parliament that gives effect
to the rights given under subsections (1) and (2).
Subsection (3) of section 68 of the Constitution provides
that the Act of Parliament giving effect to the rights given under subsections
(1) and (2) must require that administrative conduct should meet the standards
set out in subsection (1) and that there be the substantive and procedural
protection required under subsection (2) in the event of alleged infringement
of the right by an administrative conduct.
Subsection (3) of section 68 of the Constitution provides that the Act
of Parliament must include remedies for effective judicial review of
administrative conduct complained of to ensure that it meets the standards set
out in subsection (1). The remedy would include the right of access to a court
with power to review administrative conduct.
Once an Act of Parliament, which gives effect to all the
rights to just administrative conduct set out in subsections (1), (2) and (3),
is enacted, section 68 of the Constitution takes a back seat.
The question whether any administrative conduct meets the
requirements of administrative justice must be determined in accordance with
the provisions of the Administrative Justice Act. Unless there is no
Administrative Justice Act or the complaint is that the provisions of the Act
do not give effect to the fundamental rights guaranteed under section 68(1) of
the Constitution in the terms required by subsection (3), section 68 cannot
found a complaint of its violation in terms of section 85 of the Constitution.
Where there is an Administrative Justice Act which gives
full effect to all the substantive and procedural requirements for effective
protection of the fundamental rights guaranteed under section 68, the Act must
surely govern the process for the determination of the question whether a
specific administrative conduct is in accordance with the standards of
administrative justice. There cannot be an allegation in terms of section 85(1)
of the Constitution of administrative conduct violating the fundamental right
to administrative justice enshrined in section 68 of the Constitution when
there is an Act of Parliament which validly gives full effect to the
requirements for the protection of the fundamental right against the provision
of which the legality of the administrative conduct must be tested.
Section 33(1) of the Constitution of the Republic of South
Africa 1996 on which section 68 of the Constitution is broadly modeled
provides:
“Just Administrative
Action
33(1) Every one has the right to administrative action that
is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to
these rights and must –
(a) Provide for the review of administrative action by a
court or, where appropriate, an independent and impartial tribunal;
(b) Impose a duty on the State to give effect to the rights
in subsections (1) and (2); and
(c) Promote an
efficient administration.”
The rights given under subsections (1) and (2) of section
33 of the Constitution of the Republic of South Africa were given effect to by
the Promotion of Administrative Justice Act No.3 of 2000 (PAJA) which is the
equivalent of our Administrative Justice Act (AJA). Commenting on the
relationship of the Promotion of Administrative Justice Act No.3 of 2000 to
administrative justice rights and the status of rights in section 33 of the
Constitution of the Republic of South Africa, CURRIE I and DE WAAL J, in the 'Bill
of Rights Handbook', JUTA & Co. 6 ed….., say:
“Since the commencement of the PAJA judicial review of
administrative action generally has a legislative basis. In other words, it is
based on the rights, duties and remedies provided for in the Act itself. The
rights to just administrative action in the Constitution now play an indirect
rather than direct role in judicial review.”
At page 649 of the 'Bill of Rights Handbook' the learned
authors state:
“Before the introduction of PAJA, challenges to the
validity of administrative action were constitutional challenges based on the
rights to administrative justice in the Bill of Rights - rights that are
interpreted by reference to corresponding rights in the common law. But what is
the status of the constitutional rights in section 33 today?
The PAJA 'gives effect to' the constitutional rights in
section 33. This means that the Act makes the rights effective by providing an
elaborated and detailed expression of the rights to just administrative action
and providing remedies to vindicate them. The constitutional rights exist independently
of the statute that gives effect to them but retreat to a background role. This
is because Parliament chose to give effect to the rights in section 33 by
enacting a general and comprehensive administrative action as defined by the
Act.”
Two principles discourage reliance on the constitutional
rights to administrative justice.
(i) The first is the principle of avoidance which dictates
that remedies should be found in legislation before resorting to constitutional
remedies.
(ii) The second principle is one of subsidiarity which
holds that norms of greater specificity should be relied on before resorting to
norms of greater abstraction.
The applicant is not challenging the constitutional
validity of any provision of the Administrative Justice Act nor is she seeking
to use the constitutional rights to administrative justice to interpret the
provisions of the Administrative Justice Act. The exceptional circumstances in
which an applicant can rely on the constitutional rights to administrative
justice do not apply to the applicant.
She ought to have used the remedies provided for under the
Administrative Justice Act to enforce her rights to just administrative
conduct.
The application is dismissed. There shall be no
order as to costs.
