The applicant also pleaded invalidity of section 2 of
the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and
mistake of law….,.
Is The
Definition of “Lawful Authority” Contained In the Gazetted Lands (Consequential
Provisions) Act [Chapter 20:28] Ultra Vires the Constitution?
In my view, the definition of 'lawful authority' in section 2
of the Gazetted Lands (Consequential ...
The applicant also pleaded invalidity of section 2 of
the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and
mistake of law….,.
Is The
Definition of “Lawful Authority” Contained In the Gazetted Lands (Consequential
Provisions) Act [Chapter 20:28] Ultra Vires the Constitution?
In my view, the definition of 'lawful authority' in section 2
of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is
intra vires section 16B(6) of the Constitution....,.
It was also submitted that the concept of 'lawful authority',
as defined in section 2(1) of the Gazetted Lands (Consequential
Provisions) Act [Chapter 20:28] is inconsistent with section 16B(6)
of the Constitution and therefore ultra vires.
Section 2(1) of the Gazetted Lands (Consequential
Provisions) Act [Chapter 20:28] provides as follows:
“2 Interpretation
(1) In this Act -
'acquiring authority' means the Minister responsible for
land or any other Minister to whom the President may, from time to time, assign
the administration of this Act;
'fixed date' means the date fixed in terms of
section 1(2) as the date of commencement of this Act;…,.
'lawful authority' means -
(a) An offer letter; or
(b) A permit; or
(c) A land settlement lease;
and 'lawfully authorised' shall be construed accordingly;
'offer letter' means 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;
'permit', when used as a noun, means a permit issued by the
State which entitles any person to occupy and use resettlement land;
'resettlement land' means land identified as resettlement
land under the Rural District Councils Act [Chapter 29:13].”
Section 16B(6) of the Constitution provides as
follows:
“16B (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.”
The issue here is whether or not the concept of 'lawful
authority' in the Constitution is fettered by the definition of 'lawful
authority' in the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].
The applicant, in his submission that section 2 of the
Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is ultra
vires section 16B(6) of the Constitution, relied heavily on the decision
of this Court in SC Shaw (Pvt) Ltd v Minister of Lands and Agricultural
Resettlement 2005 (2) ZLR 153 (SC), where it was held that the discretion of
the Administrative Court to determine what was reasonably necessary could not
be fettered or restricted by an Act of Parliament without first amending the
Constitution.
I am not persuaded by this submission for a number of
reasons.
It is common cause that section 16B(6) of the
Constitution does not define the concept of 'lawful authority.' As a result of
this, the applicant's contention that the Gazetted Lands (Consequential
Provisions) Act [Chapter 20:28] violates a concept which the Constitution
does not define is untenable. The
Constitution does not confer on the courts the power to determine what
constitutes 'lawful authority.' The Gazetted
Lands (Consequential Provisions) Act [Chapter 20:28] therefore cannot take
away from the courts that which the Constitution has not conferred on the
courts.
A careful reading of section 16B(6) of the
Constitution shows that it specifically allows Parliament to create a criminal
offence for any person, without lawful authority, to possess or occupy gazetted
land or other State land. For Parliament to successfully create such an offence
it has to define the concept of 'lawful authority' first. The framers of the
Constitution, by expressly conferring on Parliament the power to enact a law
that criminalises the possession or occupation of gazetted land by any person
“without lawful authority,” must have intended to confer on the Legislature the
power to define the concept of 'lawful authority.' Parliament could not have
properly enacted a valid law that criminalises the occupation or use of land
without defining what constitutes 'lawful authority.' A criminal enactment that
does not define what constitutes 'lawful authority' would be too vague….,.
A citizen is constitutionally entitled to know exactly when
he/she contravenes the law. The definition of 'lawful authority' enables the
citizen to know exactly when it is that he can occupy gazetted land lawfully
without committing a criminal offence.
The facts and circumstances of this case are
distinguishable from those in SC Shaw (Pvt) Ltd v Minister of Lands and
Agricultural Resettlement 2005 (2) ZLR 153 (SC).
In SC Shaw (Pvt) Ltd v Minister of Lands and Agricultural Resettlement
2005 (2) ZLR 153 (SC) Parliament had
enacted laws, which in effect limited the Administrative Court's discretion
that it previously enjoyed in determining whether reasonably necessary grounds
for the acquisition of the land existed. In this case, there was no form of 'lawful
authority' enjoyed by the former owners or occupiers of gazetted land that has
been negated by section 2 of the Gazetted Lands (Consequential Provisions)
Act [Chapter 20:28].
The allegation that the definition of 'lawful authority'
provided for in section 2 of the Gazetted Lands (Consequential Provisions)
Act [Chapter 20:28] impinges upon section 16B(6) of the Constitution
is far-fetched and premised on an incorrect interpretation of that provision.
Consequently, this submission also fails.
