(a) Are the applicants being treated in a
discriminatory manner in contravention of section 23 of the Constitution?
The applicants allege that the discrimination against them
is in the following three respects –
(i) They allege that it is only land belonging to white
commercial farmers that has been compulsorily acquired;
(ii) It is only white ...
(a) Are the applicants being treated in a
discriminatory manner in contravention of section 23 of the Constitution?
The applicants allege that the discrimination against them
is in the following three respects –
(i) They allege that it is only land belonging to white
commercial farmers that has been compulsorily acquired;
(ii) It is only white commercial farmers who are being
prosecuted in terms of section 3 of the Gazetted Lands (Consequential
Provisions) Act [Chapter 20:08]; and
(iii) White commercial farmers are not being allocated land
in terms of the Land Reform Programme.
It is common cause that the land in casu, which the
individual applicants occupy, was acquired by the State in terms of sections 16A
and 16B of the Constitution. Sections 16A and 16B of the Constitution, in
relevant part, provide as follows:
"16A
Agricultural land acquired for resettlement
(1) In regard to the compulsory acquisition of agricultural
land for the resettlement of people in accordance with a programme of land
reform, the following factors shall be regarded as of ultimate and overriding
importance –
(a) Under colonial domination, the people of Zimbabwe were
unjustifiably dispossessed of their land and other resources without
compensation;
(b) The people consequently took up arms in order to regain
their land and political sovereignty, and this ultimately resulted in the
Independence of Zimbabwe in 1980;
(c) The people of Zimbabwe must be enabled to re-assert
their rights and regain ownership of their land;
and, accordingly –
(i) The former colonial power has an obligation to pay
compensation for agricultural land compulsorily acquired for resettlement,
through an adequate fund established for the purpose; and
(ii) 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.
(2) In view of the overriding considerations set out in
subsection (1), where agricultural land is acquired compulsorily for the
resettlement of people in accordance with a programme of land reform, the
following factors shall be taken into account in the assessment of any
compensation that may be payable –
(a)-(g)…,.
16B Agricultural land
acquired for resettlement
(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], and
which is itemised in Schedule 7, 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 re-organisation, forestry,
environmental conservation or the utilisation of wildlife or other natural
resources; or
C. The relocation of persons dispossessed in consequence of
the utilisation 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; 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)…,.
(5)…,.
(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."
In terms of section 16B of the Constitution, the
individual applicants have been stripped of all the rights to the land they
previously owned or occupied. Section 16B of the Constitution vests all
the rights of previous owners and occupiers in the State. In casu, the
only link the individual applicants have to the land is their continued
occupation of the acquired land, which continued occupation has been rendered a
criminal offence by an Act of Parliament authorised by section 16B(6) of
the Constitution.
Section 16B of the Constitution contains a non
abstante clause.
Consequently, section 16B prevails over all other
sections of the Declaration of Rights provisions of the Constitution. All other
sections in the Declaration of Rights or Chapter III of the Constitution
are subject to section 16B of the Constitution. In other words, any rights
conferred on anybody in terms of the Declaration of Rights or Chapter III
of the Constitution can be derogated in terms of section 16B of the
Constitution. Such derogation would not constitute a violation of the
Constitution.
In terms of section 16B of the Constitution, a
litigant cannot successfully contend that the acquisition of his or her land is
unlawful because it violates a right conferred on the litigant in terms of the
Declaration of Rights contained in Chapter III of the Constitution.
It follows that a litigant whose land was
acquired in terms of section 16B of the Constitution cannot seek to set
aside the acquisition of that land on the basis that such acquisition violated
the rights conferred on the litigant by a provision contained in the
Declaration of Rights or Chapter III of the Constitution - such as sections 18
and 23 of the Constitution….,.
