Section
16B(2) of the former Constitution provides:
“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, ...
Section
16B(2) of the former Constitution provides:
“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 re-organization, forestry, environmental
conservation or the utilization of wildlife 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; 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)
As soon as practicable after the appointed day, or after the date
when the land is identified in the manner specified in subsection
(2)(a)(iii),
as the case may be, the person responsible under any law providing
for the registration of title over land shall, without further
notice, effect the necessary endorsements upon any title deed and
entries in any register kept in terms of that law for the purpose of
formally cancelling the title deed and registering in the State title
over the land.
(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.”…,.
In
Mike Campbell (Pvt)
Ltd & Ors v Minister of National Security Responsible for Land,
Land Reform and Resettlement & Anor
2008
(1) ZLR 17 (S), MALABA
JA…, commented on the import of section 16B of the former
Constitution…,
as
follows:
“By
the clear and unambiguous language of s16B(3) of the Constitution the
Legislature, in the proper exercise of its powers, has ousted the
jurisdiction of courts of law from any of the cases in which a
challenge to the acquisition of agricultural land secured in terms of
s16B(2)(a) of the Constitution could have been sought. The right to
protection of law for the enforcement of the right to fair
compensation, in case of breach by the acquiring authority of the
obligation to pay compensation, has not been taken away. The ouster
provision is limited, in effect, to providing protection from
judicial process to the acquisition of agricultural land identified
in a notice published in the Gazette in terms of s16B(2)(a). An
acquisition of the land referred to in s16B(2)(a) would be a lawful
acquisition. By a fundamental law, the Legislature has unquestionably
said that such an acquisition shall not be challenged in any court of
law. There cannot be any clearer language by which the jurisdiction
of the courts is excluded.”
At
page 44E-H, the learned judge went on to observe:
“Section
16B(3) of the Constitution has not, however, taken away, for the
future, the right of access to the remedy of judicial review in a
case where the expropriation is, on the face of the record, not in
terms of s16B(2)(a). This is because the principle behind s16B(3) and
s16B(2)(a) is that the acquisition must be on the authority of law.
The question whether an expropriation is in terms of s16B(2)(a) of
the Constitution and therefore an acquisition within the meaning of
that law is a jurisdictional question to be determined by the
exercise of judicial power. The duty of a court of law is to uphold
the Constitution and the law of the land. If the purported
acquisition is, on the face of the record, not in accordance with the
terms of s16B(2)(a) of the Constitution a court is under a duty to
uphold the Constitution and declare it null and void. By no device
can the Legislature withdraw from the determination by a court of
justice the question whether the State of facts on the existence of
which it provided that the acquisition of agricultural land must
depend, existed in a particular case as required by the provisions of
s16B(2)(a) of the Constitution.”…,.
Mike
Campbell (Pvt)
Ltd & Ors v Minister of National Security Responsible for Land,
Land Reform and Resettlement & Anor
2008
(1) ZLR 17 (S) makes it clear, therefore, that a court of law only
has jurisdiction in a case where the aggrieved party seeks
compensation for the improvements of the compulsorily acquired farms
and where they allege that the acquisition was not in terms of the
law, that is, it is not in terms of section 16B (2)(a) of the former
Constitution.
The
appellants questioned the validity of the acquisition of the farms by
the first respondent hence it is the court's view that the court
has jurisdiction in the matter. In effect, the appellants questioned
whether the identification of the farms under Schedule 7 of the
former Constitution was proper.
The
first respondent's argument on the question of jurisdiction on this
point is therefore without merit and is accordingly dismissed.
