Section
16B of the Constitution of Zimbabwe came into operation on the 14th of
September 2005. Subsections (2) and (3) of section 16B of the
Constitution of Zimbabwe..., provide as follows:
“(2) Notwithstanding anything contained in this Chapter –
(a) All agricultural land –
(i)
that was identified on or before the 8th of 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 of July 2005, but before the appointed day...,.; or
(iii)
that is identified in terms of this section by the acquiring authority,
after the appointed day...,.; 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.”
Subsections (5) and (6) of section 16B of the Constitution of Zimbabwe..., provide as follows:
“(5) Any inconsistency between anything contained in –
(a) a notice itemised in Schedule 7; or
(b)
a notice relating to land referred to in subsection (2)(a)(ii) or
(iii); and the title to which it refers, or is intended to refer, and
any error whatsoever contained in such notice, shall not affect the
operation of subsection (2)(a) or invalidate the vesting of title in the
State in terms of that provision.
(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.”...,.
Section 16(9b) of the Constitution of Zimbabwe..., was introduced by Act 14 of 1996.
Section 16(9b) of the Constitution of Zimbabwe provides that –
“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 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 organizations.”...,.
The
meaning and effect of section 16(9b) of the Constitution of Zimbabwe are clear
and unambiguous – nothing contained in section 16 of the Constitution of
Zimbabwe shall affect or derogate from the protection of property rights and
the compensation payable therefor as guaranteed in terms of any treaty
concluded by the Executive.
There
is no mention of anything contained in any other provision of the Constitution
of Zimbabwe.
In
contrast, the expropriation of agricultural land without compensation for the
land itself is stipulated by section 16B(2) of the Constitution of Zimbabwe so
as to apply, notwithstanding anything contained in Chapter III, viz. the
Declaration of Rights, which includes section 16(9b) of the Constitution of
Zimbabwe.
Applying
the maxim lex posterior priori derogant, or, as it is otherwise stated, leges posteriores
priores contrarias abrogant, the later section 16B of the Constitution of
Zimbabwe must be construed to take precedence and prevail over the earlier
section 16(9b) of the Constitution of Zimbabwe, to the extent that the latter
is inconsistent with the former.
On
the other hand, section 16B of the Constitution of Zimbabwe is couched in
general and all-embracing terms, whereas section 16(9b) of the Constitution of
Zimbabwe is specific in its scope of application to property rights protected
by international treaties that are binding upon Zimbabwe. Having regard to the
maxim generalia specialibus non derogant, it is perfectly permissible to
construe the later general provisions of section 16B of the Constitution of
Zimbabwe as not derogating from the special provisions of section 16(9b) of the
Constitution of Zimbabwe.
There
are several other general rules of statutory interpretation that come into play
in the present context.
The
first and foremost is the presumption against the retrospective operation of
statutes impinging on vested rights. One aspect of this rule is that where one
enactment repeals another, the repeal does not “affect any right, privilege,
obligation or liability, acquired, accrued or incurred under the enactment so
repealed.” See section 17(1)(c) of the Interpretation Act [Chapter 1:01].
Taking the presumption further, a later statute will only be construed as
affecting, or taking away, a right accrued under a previous statute if the
later enactment expressly intends to take away the prior existing right. See
Browne v Incorporated Law Society of Natal 1968 (3) SA 535(N).
To similar effect, it was held in Vice-Chancellor,
University of Zimbabwe & Anor v Mutashu & Anor 1993 (1) ZLR 162 (S)...,
that the removal of an existing right has to be done expressly and not
indirectly....,.
Turning
to the alteration of the Constitution itself, section 52(1) of the Constitution
of Zimbabwe declares as follows:
“Parliament
may amend, add to, or repeal, any of the provisions of this Constitution;
provided that, except as provided in subsection (6), no law shall be deemed to
amend, add to, or repeal any provision of this Constitution unless it does so
in express terms.”
As
already stated, section 16B(2) of the Constitution of Zimbabwe applies generally,
notwithstanding anything contained in Chapter III of the Constitution of
Zimbabwe, without adverting to any specific provisions in that Chapter.
On
the other hand, section 16B(3) of the Constitution of Zimbabwe expressly refers
to the provisions of sections 16(1), 18(1) and 18(9) of the Constitution of
Zimbabwe as not applying in relation to land acquired under section 16B(2) of
the Constitution of Zimbabwe, except for the purposes of determining the
payment of compensation.
It
is evident that section 16B of the Constitution of Zimbabwe does not make any
express reference to the provisions of section 16(9b) of the Constitution of
Zimbabwe. It is pertinent to note in this regard that section 16(1) of the
Constitution of Zimbabwe was specifically amended by Act 5 of 2000 to be made “subject
to section 16A”. Again, sections 18(1) and 18(9) of the Constitution of
Zimbabwe were explicitly amended by Act 4 of 1993 so as to be “subject to the
provisions of this Constitution.”
Arguably,
if Parliament had intended to subordinate section 16(9b) of the Constitution of
Zimbabwe to the provisions of section 16B of the Constitution of Zimbabwe, it
would have explicitly said so, either in section 16B of the Constitution of
Zimbabwe, or in section 16(9b) of the Constitution of Zimbabwe itself. In the
absence of any such express reference, the intention of Parliament to override section
16(9b) of the Constitution of Zimbabwe must be discerned by way of necessary
intendment from the general reference in section 16B(2) of the Constitution of
Zimbabwe to “anything contained in this Chapter.”
Does this transgress
the injunction contained in section 52(1) of the Constitution of Zimbabwe
against any law being “deemed to amend, add to, or repeal, any provision of
this Constitution unless it does so in express terms”?
Having
regard to the general rules of interpretation and the presumptions adumbrated
earlier, coupled with the absence of any express reference to section 16(9b) of
the Constitution of Zimbabwe in section 16B of the Constitution of Zimbabwe,
the answer to the question posed above must be in the affirmative.
It would then follow that section 16B of the
Constitution of Zimbabwe does not operate to amend, override, or detract from
the provisions of section 16(9b) of the Constitution of Zimbabwe....,.
In
the Constitutional context, there is a general presumption against the extinction,
or diminution, of pre-existing fundamental or substantive rights.
In
Nkomo & Anor v Attorney General & Ors 1993 (2) ZLR 422 (S), the State
sought to argue that the effect of the amendments to section 15 of the
Constitution was to deprive the applicants of the remedy they sought. On behalf
of the applicants, it was argued that the passing of the Amendment Bill was
contrary to the provisions of the Constitution and that, in any event, the
amendment did not affect existing rights vested in the applicants.
GUBBAY
CJ..., observed as follows –
“...,
I would stress that where fundamental human rights or freedoms are conferred on
individuals under a Constitution, derogations therefrom, as far as their
language permits, should be narrowly or strictly construed. See Minister of
Home Affairs & Ors v Dabengwa & Anor 1982 (1) ZLR 236 (S) at 244B-C,
1982 (4) SA 301 (ZS) at 306H; S v Ncube & Ors 1987 (2) ZLR 246 (S) at 264F,
1988 (2) SA 702 (ZS) at 715C; African National Congress (Border Branch) &
Anor v Chairman, Council of State of the Republic of Ciskei & Anor 1992 (4)
SA 434 (CKGD) at 447G-I...,.
Account is taken of the well-established rule
that a statute should be interpreted, where possible, so as not to impair or
extinguish substantive rights actually vested at the time of its promulgation.
Courts will only find that such an inequitable result was intended when
compelled to do so by language so clear as to admit of no other inference. See
Curtis v Johannesburg Municipality 1906 TS 308 at 311. The supposition is that
the Legislature intends to deal with future events and circumstances, and not
with those pertaining to the past. See Principal Immigration Officer v
Purshotam 1928 AD 435 at 450; R v Margolis & Ors 1936 OPD 143 at 144;
Bartman v Dempers 1952 (2) SA 577 (A) at 580C; Katzenellenbogen Ltd v Mullin
1977 (4) SA 855 (A) at 884 AD.”...,.
The
case of In re Munhumeso & Ors 1994 (1) ZLR 49 (S) is also instructive as to
the interpretative approach to be applied in the examination of provisions
which derogate from fundamental rights.
GUBBAY
CJ..., stated as follows –
“The second principle relates to the adoption of
a broad approach. All provisions bearing upon a particular subject are to be
considered together and construed as a whole in order to effect the true
objective. Derogations from rights and freedoms which have been conferred
should be given a strict and narrow, rather than a wide construction. Rights
and freedoms are not to be diluted, or diminished, unless necessity, or
intractability of language, dictates otherwise. See Minister of Home Affairs
& Ors v Dabengwa & Anor 1982 (1) ZLR 236 (S) at 244B-C, 1982 (4) SA 301
(ZS) at 306H; S v Ncube & Ors 1987 (2) ZLR 246 (S) at 264F, 1988 (2) SA 702
(ZS) at 715C; African National Congress (Border Branch) v Chairman, Council of
State of Ciskei 1992 SA 434 (CKG) at 447G-I.”...,.
Any
such construction, viz. that section 16B of the Constitution of Zimbabwe does not
operate to amend, override, or detract from the provisions of section 16(9b) of
the Constitution of Zimbabwe would render the opening words of section 16B(2)
of the Constitution of Zimbabwe entirely redundant in relation to land
protected under investment protection treaties, quite contrary to the
relatively clear intention of Parliament that all duly gazetted agricultural
land shall be acquired by and vest in the State without any right to
compensation, except for improvements effected on the land, notwithstanding
anything to the contrary contained in Chapter III, including section 16(9b) of
the Constitution of Zimbabwe.
On
balance, I am more inclined to lean towards the former approach predicated on
the provisions of section 52(1) of the Constitution of Zimbabwe, viz. in favour
of the preservation of property rights and correlative obligations guaranteed
by section 16(9b) of the Constitution of Zimbabwe.
Be
that as it may, it appears I am bound by the contrary position recently adopted
by the Supreme Court in Nyahondo Farm (Pvt) Ltd v Brigadier-General Tapfumaneyi
& Others SC176-08 to the effect that agricultural land covered by investment
protection agreements under section 16(9b) of the Constitution of Zimbabwe is
susceptible to acquisition in terms of section 16B of the Constitution of
Zimbabwe...,.
It follows from all of the foregoing that the
applicants have succeeded on many of the issues for determination in this
matter, but not on the paramount aspect relating to the status of the property
in casu in terms of sections 16B and 16(9b) of the Constitution of Zimbabwe.
