CHIDYAUSIKU CJ: This is an appeal against the judgment of
MUSAKWA J. After hearing
submissions by counsel and considering the matter, the appeal was dismissed and
the Court issued the following order:
“1. The appeal be and is
hereby dismissed in its entirety.
2. There will be no order
as to costs.”
The Court
indicated that reasons for judgment would follow. The file in this matter, together with a
number of other similar files where judgment had been given with reasons to
follow, was inadvertently filed with the completed matters. This accounts for the delay in handing down
the following reasons for judgment.
The appellant's case,
and indeed also his case in the court a quo,
is aptly set out in paras 4.2 and 5 of the notice of appeal, which read as
follows:
“4.2 Article 5 of the
BIPA Agreement prohibits the expropriation of protected investments except
for expropriations made in the public interest; on a basis of
non-discrimination; carried out under due process of law and against prompt,
adequate and effective compensation.
4. This protection and
prohibition is entrenched in the Constitution of Zimbabwe by
section 16(9b) thereof.”
Section 16(9b) of
the old Constitution of Zimbabwe (“the Constitution”) provides as follows:
“(9b)
Nothing in this section shall affect or derogate from —
(a) any obligation
assumed by the State; or
(b) any right or
interest conferred upon any person;
in relation to the protection
of property and the payment and determination of compensation in respect of the
acquisition of property, in terms of any convention, treaty or agreement
acceded to, concluded or executed by or under the authority of the President
with one or more foreign states or governments or international organisations.”
The learned judge in the
court a quo concluded that the
land was lawfully acquired. This is the
conclusion that the appellant challenged on appeal.
It is common cause that
Nyahondo Farm (“the farm”), the subject of this litigation, was acquired for
agricultural purposes by the third respondent in terms of s 16B of the Constitution
and allocated to the first and second respondents in terms of an offer letter.
Section 16B of the Constitution
provides as follows:
“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 reorganization,
forestry, environmental conservation or the utilization of wild life or other
natural resources; or
C. the relocation of
persons dispossessed in consequence of the utilization of land for a purpose
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; …” (my underlining)
On the face of it,
s 16(9b) is in conflict with s 16B of the Constitution. However, s 16B contains a non abstante clause. What this means is that whenever there is a
conflict between s 16B of the Constitution and any other section of the Constitution,
s 16B shall prevail.
The Agreement which the
appellant relies on is protected by s 16(9b) of the Constitution. However, as I have stated, the farm was
acquired in terms of s 16B of the Constitution. Section 16B of the Constitution, as previously
stated, contains a non abstante
clause, which means s 16B of the Constitution overrides all other sections
of the Declaration of Rights contained in Chapter III
of the Constitution, including s 16(9b) of the Constitution, which
guarantees the appellant's right to the farm.
In other words when the third respondent acts in terms of s 16B of
the Constitution, as he did in this case, he can lawfully abrogate any right of
the appellant to the farm despite the guarantee in terms of s 16(9b) of
the Constitution.
On the facts of this
case, it follows that the rights of the appellant in terms of Article 5 of
the Agreement, guaranteed by s 16(9b) of the Constitution, were derogated
by the third respondent acting in terms of s 16B of the Constitution. In terms of the non abstante clause in s 16B of the Constitution, such
derogation is intra vires the Constitution
and therefore lawful.
In the result,
the appeal could not succeed and was dismissed with no order as to costs.
MALABA DCJ: I
agree
SANDURA JA: (Retired)
CHEDA JA: (Retired)
GARWE JA: I
agree
Coghlan, Welsh & Guest, appellant's
legal practitioners
Antonio, Mlotshwa & Co, first and
second respondents' legal practitioners
Civil Division of the Attorney-General's Office, third respondent's
legal practitioners
