PATEL
J:
The
1st
applicant in this matter is a business corporation registered in the
Netherlands. The other three applicants are commercial farming
entities registered in Zimbabwe. The applicants together, directly or
indirectly, are the registered owners and leaseholders of Fangudu
Farm (the farm). They claim the right to continue to own and occupy
the farm for commercial benefit.
The
1st
respondent is the Minister responsible for lands and resettlement.
The 2nd
respondent, who is not opposed to this application, is the Minister
of Foreign Affairs. The 4th
respondent is the Attorney-General, who is cited herein in his
official capacity.
The
1st
respondent filed his notice of opposition out of time and has applied
for condonation therefor. His application for condonation is not
opposed and is accordingly granted.
The
3rd
respondent, Major-General Chimonyo, is involved in this matter by
dint of his claim to occupy and utilise the farm for his own account.
His status with respect to the farm is predicated on the 1st
respondent's rights thereto.
He
filed his notice of opposition well out of time and later sought
condonation by way of a chamber application. He was served with the
notice of set-down of this matter for hearing by the Registrar and by
the applicants legal practitioners on the 11th
of May 2007. He has not filed his heads of argument and has not
appeared at the present hearing, having written to the Registrar two
days ago to indicate that he would not be appearing in court. He is
clearly barred for the late filing of his notice of opposition and
for the non-filing of his heads of argument. Accordingly, the
contents of his opposing papers must be disregarded for present
purposes.
Background
The
applicants together, as I have stated, seek to enforce their
ownership and leasehold rights in the farm. They claim protection
against compulsory acquisition by virtue of two separate bilateral
treaties concluded by the Government of Zimbabwe with the governments
of the Netherlands and Malaysia.
On
the 21st
of January 2005, the 1st
respondent published a preliminary notice of his intention to acquire
the farm for resettlement purposes. On the 10th
of June 2005, he issued an acquisition order compulsorily acquiring
the farm. Thereafter, on the 22nd
of July 2005, he lodged an application for the confirmation of the
acquisition. This application before the Administrative Court has yet
to be finalised, having been overtaken by legislative enactment.
On
the 8th
of August 2006, the 1st
respondent caused to be delivered a notice of eviction upon the
applicants. Subsequently, an arrangement was negotiated between the
parties not to enforce the eviction of the applicants. Nevertheless,
on the 8th
of November 2006, the 3rd
respondent arrived to occupy the farm on the strength of the earlier
notice of eviction and his letter of offer dated the 11th
of July 2006 from the 1st
respondent.
As
a result of the 3rd
respondent's actions, the applicants filed an urgent application to
this Court and were granted a Provisional Order on the 22nd
of November 2006.
The
present proceedings are instituted to confirm the Provisional Order.
The
Issues
The
issues for determination in this matter, as I perceive them and as
consequently argued by counsel, are as follows:
1.
Whether the farm has been duly acquired by the State in terms of
section 16B of the Constitution.
2.
The
effect of the notice of eviction served by the 1st
respondent upon the applicants; whether the applicants are entitled
to continue in occupation until evicted by order of a competent
court.
3.
The
effect of the letter of offer given to the 3rd
respondent by the 1st
respondent; whether this letter confers any right of occupation
before the current occupier vacates the farm or is duly evicted by a
court order or otherwise.
4.
Whether the applicants' rights and interests in the farm constitute
“investments” within the meaning of the relevant bilateral
treaties.
5.
The effect of the relevant bilateral treaties within the domestic
legal system and their enforceability at the national level.
6.
The interrelationship between sections 16(9b) and 16B of the
Constitution of Zimbabwe; whether or not and the extent to which the
former has been overridden by the latter.
Section
16B of the Constitution
Section
16B of the Constitution came into operation on the 14th
of September 2005. Subsections (2) and (3) thereof are directly
pertinent in
casu and
they provide as follows:
“(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 ………………………………..; 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 are also relevant for present purposes.
They 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 deed 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.”
Acquisition
of Farm
The
preliminary notice pertaining to the farm in
casu
was published on the 21st
of January 2005 as part of General Notice 18 of 2005. The latter is
listed as Item No. 148 in Schedule 7 to the Constitution. Mr.
Drury
for the applicants argues that this is not enough for the purposes of
acquisition in terms of section 16B(2)(a) of the Constitution
inasmuch as there is no proof of full compliance with section
5(1) of the Land Acquisition Act [Chapter
20:10].
Mrs.
Mwatse
in opposition submits that non-compliance with section 5(1) of the
Act is irrelevant in the context of the constitutional provision.
I
agree with Mrs. Mwatse.
The critical requisites for the application of section 16B(2)(a) of
the Constitution are, firstly, that the land in question was
identified
as being required for resettlement purposes on or before the 8th
of July 2005 in the Gazette
under section 5(1) of the
Act and, secondly, that it is itemised
as such in Schedule 7 to the Constitution. The question of compliance
with all the requirements of section 5(1) of the Act does not arise
for the purposes of acquisition of agricultural land and the vesting
of title thereto in the State in terms of section 16B of the
Constitution. I am fortified in this view by having regard to section
16B(5) which declares that any error contained in an itemised notice
shall not affect the operation of section 16B(2)(a) or invalidate the
vesting of title in the State in terms of that provision.
As
I have stated, the farm under consideration was identified in a
preliminary notice published under section 5(1) of the Act and that
notice is itemised in Schedule 7 to the Constitution. Accordingly,
prima facie
and subject to what follows later in this judgement, the farm has
been duly acquired by and has vested in the State in terms of section
16B(2)(a) of the Constitution.
Notice
of Eviction
Mr.
Drury
submits that the notice of eviction that was served by the 1st
respondent on the 8th
of August 2006 was not properly served. This is because it was handed
to the Director of the 3rd
applicant at the farm itself and not at its registered office as
required by section 40(2)(d) of the Interpretation Act [Chapter
1:01].
Section 40(2) provides that:
“Where
an enactment authorizes or requires a document to be served on any
person without directing it to be served in a particular manner, the
service of that document may be effected—
(a)
………………………………………………..; or
(b)
………………………………………………..; or
(c)
………………………………………………..; or
(d)
in the case of a corporate body, or an association of persons whether
incorporated or not, by delivering it to a director, the secretary or
clerk of the body or association at the registered or principal
office of the body or association, or serving it by post on such
director, secretary or clerk at such office; or
(e)
………………………………………………….”
Mr.
Drury
further argues that even if the notice of eviction was properly
served it has no statutory or other basis inasmuch as section 16B(3)
of the Constitution excludes the application of the notice provisions
stipulated in the Land Acquisition Act with respect to land acquired
under section 16B(2). Moreover, there was at that time no other law
catering for eviction as envisaged by section 16B(6). Mrs.
Mwatse
concedes the statutory gap but submits that the notice of eviction
was issued under the common law right of an owner to give any tenant
or occupier reasonable notice to vacate the land or premises in
question.
Given
the wording employed in section 40(2) of the Interpretation Act, viz.
“service …………may
be effected”, I am not entirely persuaded that its provisions are
peremptory to the extent of requiring strict compliance in every
case. However, it seems unnecessary to decide this point for the
following reasons. Section 16B of the Constitution did in my view
create a statutory gap vis-à-vis the vacation of land acquired under
that provision. By virtue of subsection (3) as read with subsection
(6), Parliament specifically contemplated the enactment of
legislation dealing with the criminal prosecution and eviction of
unlawful possessors or occupiers of State land. As a matter of
principle, where the Constitution enjoins that anything should be
done by or under statute then that is the manner in which that thing
should be done. In the absence of such legislation, the State cannot
resort to any other non-statutory basis for evicting a recalcitrant
occupier. Accordingly, as was eventually conceded by Mrs.
Mwatse,
the notice of eviction in
casu
cannot be relied upon to secure the eviction of the applicants from
the farm.
Gazetted
Land
The
Gazetted Lands (Consequential Provisions) Act [Chapter
20:28]
was promulgated on the 20th
of December 2006 to
make certain provisions consequential to the enactment of section 16B
of the Constitution with respect to Gazetted land, viz. agricultural
land referred to in section 16B(2) of the Constitution. Section 3 of
the Act in its relevant portions stipulates as follows:
“(1)
Subject to this section, no person may hold, use or occupy Gazetted
land without lawful authority.
(2)
…………………………………………………………………………………
(3)
If a former owner or occupier of Gazetted land who is not lawfully
authorised to occupy, hold or use that land does not cease to occupy,
hold or use that land after the expiry of the appropriate period
referred to in subsection (2)(a)
or (b),
or, in the case of a former owner or occupier referred to in section
2(b),
does not cease to occupy his or her living quarters in contravention
of proviso (ii) to section 2(b),
he or she shall be guilty of an offence and liable to a fine not
exceeding level seven or to imprisonment for a period not exceeding
two years or to both such fine and such imprisonment.
(4)
Any person, other than a person referred to in subsection (2), who
contravenes subsection (1), shall be guilty of an offence and liable
to a fine not exceeding level seven or imprisonment for a period not
exceeding two years or to both such fine and such imprisonment.
(5)
A court which has convicted a person of an offence in terms of
subsection (3) or (4) shall issue an order to evict the person
convicted from the land to which the offence relates.”
As
is apparent, section 3 of the Act is clearly designed to address the
lacuna
in the law that I have adverted to earlier. It specifically provides
for the prosecution and conviction of any person who continues to
hold, use or occupy Gazetted land after the stipulated period and for
the eviction of such person upon conviction. What this means in the
instant case is that the applicants are at large to remain in
occupation of the farm and cannot be evicted therefrom except by due
process, viz. by order of court after prosecution and conviction in
terms of section 3 of the Act.
Offer
Letter
The
3rd
respondent founds his claim to occupy the farm on his letter of offer
dated the 11th
of July 2006 from the 1st
respondent. In this respect, Mr.
Drury
contends that this offer letter is invalid for want of compliance
with the provisions of the Agricultural Land Settlement Act [Chapter
20:01].
Sections 8 and 9 of this Act enable the relevant Minister
to issue leases to applicants in respect of holdings of State land –
but only after any such application has been referred to the
Agricultural Land Settlement Board for its consideration and report.
In any event, the Minister is not bound by any recommendation or
report of the Board. In the instant case, there is no evidence that
the 3rd
respondent's application to occupy and use the farm was granted
after consideration by the Board and the issuance of its report.
Does this render his offer letter invalid?
Section
2(1) of the Gazetted Lands (Consequential Provisions) Act defines an
“offer letter” to mean:
“a
letter issued by the acquiring authority to any person that offers to
allocate to that person any Gazetted land, or a portion of Gazetted
land, described in that letter”.
By
virtue of section 6 of the Act:
“Any
offer letter issued on or before the fixed date that is not withdrawn
by the acquiring authority is hereby validated.”
Taken
in its literal and grammatical terms, section 6 of the Act must be
construed to validate every offer letter that was issued before the
20th
of December 2006, including the 3rd
respondent's offer letter, notwithstanding any non-compliance with
the requirements of the Agricultural Land Settlement Act. Such
construction would obviously operate to render nugatory the
provisions of that earlier Act and this cannot have been what was
intended by Parliament.
Be
that as it may, I do not deem it necessary to decide the point in the
context of the earlier Act. What is relevant for present purposes is
the 3rd
respondent's right to enter, occupy and use the farm in
counterposition to the applicants' pre-existing and continuing
entitlement to do so. The latter, as I have stated, are at liberty to
remain in occupation until they are duly evicted by a court of
competent jurisdiction. In contrast, the 3rd
respondent is presently armed with nothing more than his letter of
offer. This letter, as defined by statute, merely constitutes an
offer by the State to allocate to the 3rd
respondent the piece of land described in the letter. It does not per
se
confer any proprietary rights of use or occupation without due
process. In other words, the 3rd
respondent cannot rely on the letter to enter or occupy the farm
until the applicants have been duly evicted by court order issued in
terms of section 3 of the
Gazetted Lands (Consequential Provisions) Act. He cannot resort to
self-help in order to obtain vacant possession. See in this respect
the very pertinent remarks of KUDYA J in Karori
& Another v Brigadier Mujaji
HH 23-2007, at p. 5 in
fine.
It follows that the applicants are entitled to the relief that they
seek as against the 3rd
respondent.
Meaning
of Investments
There
are two bilateral treaties to be considered in
casu.
The first is the Agreement on Encouragement and Reciprocal Protection
of Investments between the Republic of Zimbabwe and the Kingdom of
the Netherlands (the Netherlands Agreement). The second is the
Agreement between the Government of Malaysia and the Government of
the Republic of Zimbabwe for the Promotion and Protection of
Investments (the Malaysia Agreement). In both Agreements the term
“investments” is extensively defined to comprise every kind of
asset, including movable and immovable property and other rights in
rem
as well as rights derived from shares and other interests in
companies.
In
the instant case, the 1st
applicant holds all of the shares in the 2nd
applicant which in turn holds all the shares in the 3rd
applicant. The latter has a lease agreement with the 4th
applicant and also holds 6% of its shares. The 4th
applicant is the registered title holder of Fangudu Farm. The 2nd,
3rd
and 4th
applicants are corporations registered in Zimbabwe, while the 1st
applicant is duly incorporated in the Netherlands. The shares of the
1st
applicant are held by two other corporations, one of which (Rainbow
Century) is the majority shareholder registered in Malaysia while the
other (Rozanante Beleitigungs) is the minority shareholder registered
in Austria.
Having
regard to the foregoing, there is little doubt that the 1st
applicant is a “national” within the meaning of the Netherlands
Agreement and an “investor” within the meaning of the Malaysia
Agreement. It is equally clear, and this was quite properly conceded
by Mrs.
Mwatse,
that the 1st
applicant's rights and interests in the farm as well as those of
its subsidiary companies, i.e. the other three applicants, constitute
“investments” within the meaning of both Agreements.
Legal
Effect of Bilateral Treaties
The
applicability of international law within the domestic sphere is
generally subject to two divergent doctrines. The doctrine of
incorporation asserts that the rules of international law are
automatically incorporated into and form part of the domestic law.
The doctrine of transformation, on the other hand, restricts the
internal applicability of international law to those rules which have
been clearly transformed into rules of the domestic legal system.
The
position in most Commonwealth jurisdictions is that customary
international law is generally regarded as having been internally
incorporated insofar as it is not inconsistent with statute law and
judicial precedent. In contrast, the internal reception of treaty law
is perceived as standing on an entirely different footing.
Under
the arrangements prevailing in most Commonwealth countries, the
constitutional separation of powers requires that the Executive's
treaty-making powers should not override Parliament's law-making
functions. Accordingly, it is constitutionally necessary to subject
the domestic application of treaties to the doctrine of
transformation. It follows, therefore, that a treaty does not form
part of the domestic law except by virtue of enabling legislation.
Thus, the mere ratification of a treaty does not serve to incorporate
its provisions into domestic law. What is required for that purpose
is Parliamentary intervention in the shape of legislation clearly
designed to transform the relevant treaty provisions into rules of
national law.
In
Zimbabwe, as far as I am aware, the opportunity for any definitive
judicial pronouncement on the subject has never properly arisen.
In Barker
McCormac (Pvt) Ltd v Government of Kenya 1983
(2) ZLR 72, at 77, the Supreme Court observed that international law
formed part of the law of Zimbabwe except to the extent that it was
in conflict with statute or prior judicial precedent. The principal
issue before the court concerned the propriety of applying the
restrictive doctrine of sovereign immunity. The reception of
international law was not fully argued or analysed and the court's
observation in that regard must accordingly be treated as being
somewhat obiter.
Be that as it may,
given that the Zimbabwean constitutional system and attendant
conventions are derived from the English constitutional model, and in
light of our consistent legislative practice since the attainment of
independence in 1980, I am of the firm opinion that Zimbabwean law
has inherited the doctrine of transformation to the same extent as
other Westminster jurisdictions. Accordingly, under our common law, a
treaty only becomes part of the domestic law if enabling legislation
is specifically enacted to give it internal effect.
In
any event, insofar as concerns treaties concluded on or after the 1st
of November 1993 (following
the entry into force of Act
No. 4 of 1993) the common law position has been specifically codified
and embodied in the Constitution. Section
111B(1)
now expressly declares that:
“(1)
Except as otherwise provided by this Constitution or by or under an
Act of Parliament, 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—
(a)
shall be subject to approval by Parliament; and
(b) shall not form part of the law
of Zimbabwe unless it has been incorporated into the law by or under
an Act of Parliament.”
It
is common cause that both the Netherlands Agreement and the Malaysia
Agreement were approved by Parliament and ratified by the President
in conformity with section 111B(1) of the Constitution. However, they
have not been directly incorporated by or under an Act of Parliament
so as to form part of the law of Zimbabwe. In any event, section
16(9b) of the Constitution was specifically enacted in December 1996
to protect and safeguard proprietary rights and obligations created
under multilateral and bilateral treaties. Section 16(9b) 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 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
organizations.”
Arguably,
as was submitted by both Mr.
Drury
and Mr.
Mutsonziwa,
this provision must be taken to incorporate into our law, indirectly
and by necessary implication, every investment protection treaty duly
concluded by the Executive. I am not convinced that this approach is
entirely correct and in keeping with the intention behind section
111B(1)(b). Nevertheless, whether or not investment protection
treaties can properly be regarded as having been incorporated into
our domestic law, I have no doubt that the courts of Zimbabwe are
bound to give effect to the terms of such treaties in accordance with
the constitutional guarantee afforded by section 16 (9b).
For
present purposes, the relevant terms of the Netherlands Agreement and
the Malaysia Agreement regulating the expropriation of protected
investments are contained in Article 6 of the former and Article 4 of
the latter. The conditions governing expropriation are essentially
threefold: the measures taken must be for a public purpose or in the
public interest and under due process of law; they must not be
discriminatory; and they must be accompanied by provision for the
payment of just or prompt, adequate and effective compensation.
Relationship
between Sections 16(1), 16(9b) and 16B of the Constitution
Section
16(1) of the Constitution stipulates, in essence, that the compulsory
acquisition of property must be effected under the authority of a law
and be reasonably necessary in the public interest, subject to the
giving of reasonable notice and the payment of fair compensation
within a reasonable time, and amenable to contestation before the
courts. In its original and unamended form, the Constitution required
the payment of prompt and adequate compensation and the
justiciability of any question relating to compensation. By Act 30 of
1990 the standard of compensation was amended to that of fair
compensation within a reasonable time. Subsequently, through Act 9 of
1993 and Act 14 of 1996, the contestability of compensation was
restricted to compensation for property and land other than land
compulsorily acquired for resettlement purposes.
The
constitutional amendments that I have mentioned were obviously
inconsistent with the international standards embodied in prevailing
investment protection treaties governing the form, nature and
justiciability of compensation in the event of expropriation. Section
16(9b) of the Constitution, as I understand it, was introduced by Act
14 of 1996 with the specific policy objective of preserving
pre-existing international norms notwithstanding the diminution of
those norms in section 16(1). In effect, section 16(9b) operates to
confer a greater degree of protection against expropriation in favour
of foreign investors in contradistinction to local nationals whose
rights and interests are governed by the lower standards of
protection contained in section 16(1).
The
legal effect of section 16B(2)(a) of the Constitution, as I have
already stated, is to compulsorily acquire all agricultural land that
was identified in the notices of acquisition itemised in Schedule 7.
Full title in such land vested in the State with effect from the 14th
of September 2005. Moreover, by virtue of section 16B(2)(b), no
compensation is payable for this land except for any improvements
effected thereon before it was acquired.
In
my view, the provisions of section 16B(2) clearly conflict with the
objectives underlying section 16(9b) in several material respects.
Firstly, the act of expropriation itself is effectuated summarily by
operation of law and is explicitly declared by section 16B(3) to be
unchallengeable before any court, contrary to the due process
requirements of investment protection treaties. Secondly, no
compensation is payable for agricultural land acquired under the
Constitution in respect of the land itself. Thirdly, the governing
standards of compensation for improvements, viz. fair compensation
within a reasonable time, are clearly inconsistent with the
compensatory norms recognised and applied under prevailing investment
protection treaties.
The
large question that the Court is asked to adjudicate is this: Does
section 16B operate to supersede and negative the protection afforded
by section 16(9b) either partially or in
toto?
Dealing with the latter question first, it is evident that the
operation of section 16B is confined to agricultural land acquired
for resettlement purposes. The provision clearly does not apply to
non-agricultural land or to any other form of immovable or movable
property. Therefore, if section 16B was designed to override section
16(9b), it would so operate pro
tanto,
viz. so as to dilute or amend the latter in respect of the
acquisition of agricultural land only, and not as regards the
protection of any other property or investment covered by section
16(9b). It follows that investment protection treaties falling within
the ambit of section 16(9b) would not be rendered entirely nugatory
or illusory for the purpose of their domestic application.
The
meaning and effect of section 16(9b) are clear and unambiguous:
nothing contained in section 16 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. In contrast, the expropriation of agricultural land
without compensation for the land itself is stipulated by section
16B(2) so as to apply notwithstanding anything contained in Chapter
III, viz. the Declaration of Rights, which includes section 16(9b).
Applying
the maxim lex
posterior priori derogat
or, as it is otherwise stated, leges
posteriores priores contrarias abrogant,
the later section 16B must be construed to take precedence and
prevail over the earlier section 16(9b) to the extent that the latter
is inconsistent with the former. On the other hand, section 16B is
couched in very general and all-embracing terms, whereas section
16(9b) 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 as not derogating from the prior special provisions of
section 16(9b).
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 Mutasah & Anor
1993 (1) ZLR 162 (S), at 173-174, that the removal of an existing
right has to be done expressly and not indirectly.
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,
at 432-433, 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 884D.”
The
case of In
re Munhumeso & Ors
1994 (1) ZLR 49 (S) is also instructive as to the interpretive
approach to be applied in the examination of provisions which
derogate from fundamental rights. GUBBAY CJ, at 59-60, 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 (4) SA 434 (CkG) at 447G–I.”
It
is also necessary in this matter to consider the international
ramifications of the large question posed earlier. There is little
doubt that the abridgement
of section 16(9b) and the diminution of the rights protected by that
provision would involve a violation of Zimbabwe's obligations at
international law. There would thus be a contradiction between our
domestic law and the State's international obligations. That in
itself does not necessarily negate or invalidate the conflicting
domestic law. If the clear intention of Parliament is to take away
property rights recognised at international law, our courts are bound
to apply and give effect to that intention as expressed in the
domestic law, even if it entails a breach of international law. On
the pragmatic approach that has come to be adopted in international
practice, neither legal system enjoys primacy over the other. In
principle, they both hold sway and supremacy in their respective
domains. See Brownlie: Principles
of Public International Law
(4th
ed.) at pp. 34-35. The resultant divergence between the two systems
is reconciled on the basis that the State incurs international
responsibility for having violated its international obligations and
must accordingly effect the requisite reparations in order to satisfy
its international responsibility. See Brownlie, op.
cit.,
at pp. 35-37.
In
any event, what is pertinent for present purposes is that in
interpreting and applying the domestic law the courts cannot entirely
disregard international law and the obligations of the State
thereunder. In enacting domestic legislation Parliament is presumed
to be aware of the State's solemn undertakings at the international
level and to have legislated without intending to extinguish or
diminish rights vested under international law. In other words,
insofar as it is possible, domestic laws must be construed and
applied in conformity with international custom and treaties binding
upon the State. See Brownlie, op.
cit.,
at pp. 48-50. In my, view, this presumption must apply a
fortiori
where those treaties have been directly or indirectly transformed
into rules of domestic law.
Turning
to the alteration of the Constitution itself, section 52(1) of the
Constitution 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) applies generally notwithstanding
anything contained in Chapter III, without adverting to any specific
provision in that Chapter. On the other hand, section 16B(3)
expressly refers to the
provisions of sections 16(1), 18(1) and 18(9) as not applying in
relation to land acquired under section 16B(2), except for the
purpose of determining the payment of compensation. It is evident
that section 16B as a whole does not make any express reference to
the provisions of section 16(9b). It is pertinent to note in this
regard that section 16(1) of the Constitution was specifically
amended by Act 5 of 2000 to be made “subject to section 16A”.
Again, sections 18(1) and 18(9) were also 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) to the provisions of section 16B, it would have
explicitly said so, either in section 16B or in section 16(9b)
itself. In the absence of any such express reference, the intention
of Parliament to override section 16(9b) must be discerned by way of
necessary intendment from the general reference in section 16B(2) to
“anything contained in this Chapter”. Does this transgress the
injunction contained in section 52(1) 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) in section 16B, the answer to the question posed
above must be in the affirmative. It would then follow that section
16B does not operate to amend, override or detract from the
provisions of section 16(9b). On the other hand, any such
construction would render the opening words of section 16B(2)
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 II, including section
16(9b).
On
balance, I am more inclined to lean towards the former approach,
predicated on the provisions of section 52(1), viz. in favour of the
preservation of the property rights and correlative obligations
guaranteed by section 16(9b). Be that as it may, it appears that I am
bound by the contrary position recently adopted by the Supreme Court
in Nyahondo
Farm (Pvt) Ltd v Brigadier-General Tapfumaneyi & Others
SC 176/08 to the effect that agricultural land covered by investment
protection agreements under section 16(9b) is susceptible to
acquisition in terms of section 16B. Regrettably, the Supreme Court's
reasons for judgement in that case have not as yet been availed and
my understanding of the Court's decision is largely dictated by
written submissions filed by counsel.
Final
Order
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. Consequently, they are not
entitled to the declarations sought in paragraphs 1 and 2 of the
draft final order but are entitled to the declarations and relief
sought in paragraphs 3 to 6 of the order (with the necessary
amendments excluding all references to “the Agreements”). They
are also entitled to an order for costs but only as against the 3rd
respondent.
It
is accordingly declared and ordered as follows:
1.
It
be and is hereby declared that the Notice of Eviction delivered up to
Fangudu (being Lot 1 of Fangudu in the District of Umtali and two
contiguous pieces of land called Lot 1 of Essex and Remainder of
Bomponi in the District of Umtali) on the 8th
of August 2006 is invalid and of no force or effect.
2.
It
be and is hereby declared that the occupation of Fangudu by the 3rd
respondent and all other persons claiming occupation of Fangudu
through him and/or the 1st
respondent was and continues to be unlawful.
3.
It
be and is hereby declared that all plantation crops, crops and
movable property on Fangudu belonging to the applicants are not
subject to compulsory acquisition by the 1st
respondent or to appropriation by any person other than a
representative, employee or invitee of the applicants, except in
accordance with the law.
4.
It
be and is hereby declared with regard to applicants' movable
property that the mandatory and peremptory provisions of the
Acquisition of Farm Equipment and Materials Act [Chapter
18:23]
have not been initiated or complied with and that, accordingly, the
possession, control and appropriation of the applicants' movable
property by the 3rd
respondent was and continues to be unlawful.
5.
There
shall be no order of costs as between the applicants and the 1st,
2nd
and 4th
respondents. The 3rd
respondent shall pay the applicants' costs of suit.
Gollop
& Blank,
applicants' legal practitioners
Civil
Division of the Attorney-General's Office,
1st
& 4th
respondents' legal practitioners
