DEPRIVATION OF PROPERTY

The applicants contended that the provisions of section 38B(1) and (2) as read with section 38E(1)(h)(i) of the Broadcasting Services Act [Chapter 12:06] violate the fundamental right protecting them against compulsory deprivation of property guaranteed under section 16(1) of the  Constitution.

Section 16(1) of the Constitution provides as follows:

“16: Protection from deprivation of property

(1) Subject to section sixteen A, no property of any description or interest or right therein shall be compulsorily acquired except under the authority of a law that”…,.

[The terms, substance and purpose of the provisions of the law on the basis of which property other than agricultural land acquired for resettlement of people in accordance with a programme of land reform may be compulsorily acquired are then set out].

Section 16(7) of the Constitution provides:

“(7) Nothing contained in or done under the authority of any law shall be held to be in contravention of subsection (1) to the extent that the law in question makes provision for the acquisition of any property or any interest or right therein in any of the following cases -

(a) In satisfaction of any tax or rate.

(b)…,.”

The Constitution demands that statutory provisions be looked at from the point of view of fundamental human rights and freedoms enshrined in the Declaration of Rights. That means that, taking into consideration the requirements of permissible limitation, statutory provisions must not violate fundamental human rights. If the provisions of the Act, the validity of which is impugned, are provisions in respect of taxation, the effect of section 16(7)(a) of the Constitution is that they are not a violation of the right to property. They are an infringement of the right if they are shown not to be reasonably justifiable in a democratic society.

The obligation to pay the fee and obtain a licence for possession of a receiver is imposed by law. The imposition of the obligation in respect of the possession of a receiver, the fixing and collection of the licence fee are all designed to enable the Zimbabwe Broadcasting Corporation to compulsorily acquire property, in the form of money, from a person who possesses a receiver.

The question for determination is whether the provisions of section 38(b)(1) and (2) of the Broadcasting Services Act [Chapter 12:06], for the acquisition of the licence fee, compulsorily paid to the Zimbabwe Broadcasting Corporation or its agents, are in satisfaction of a tax within the meaning of section 16(7)(a) of the Constitution?

There is no question that the mechanism of funding given effect to by the provisions of the Broadcasting Services Act [Chapter 12:06], the validity of which is challenged, is based on the public as the source of the revenue needed by the Zimbabwe Broadcasting Corporation to finance its operations. The method of funding chosen gives the Zimbabwe Broadcasting Corporation direct access to and control of the use of the revenue collected.

Section 16(7)(a) of the Constitution relates to acquisition of property under the authority of a provision of a law enacted by the State in the exercise of the constitutional power of taxation vested in the Legislature by section 50. Section 50 of the Constitution provides that “Parliament may make laws for peace, order and good government of Zimbabwe.”

The power of the State to impose taxes has been described by COOLEY in Constitutional Limitations…, as:

“One so unlimited in force, and so searching in extent, that we scarcely venture to declare that it is subject to any restrictions whatever except such as are put in the discretion of the authority which exercises it. It reaches to every trade or occupation, to every object of industry, use, or enjoyment; to every species of possession; and it imposes a burden which, in case of failure to discharge it, may be followed by seizure and sale or confiscation of property. No attribute of sovereignty is more pervading.”

There is no denying the general power of the Legislature to impose taxes.

Although the constitutional power to impose taxes is wide as to matters that may be chosen as subjects of taxation, a measure representing its exercise must be strictly scrutinized to protect the right to property.  The provisions must be construed with the view of giving a full measure of protection to the fundamental human right alleged to be infringed. It is also a well settled rule that the citizen is exempt from taxation unless the same is imposed by clear and unequivocal language….,.

The general principle is that a tax is the obligation or burden (debt) to pay a specific amount of money to a designated agent imposed (levied) on a person by the State, in the exercise of the constitutional power of taxation. The obligation is imposed in relation to or by reference to an activity in respect of property selected in the exercise of a wide discretion as the subject of taxation. The obligation for the payment of the tax is imposed by the State in terms of a law of general application on the public or a substantial section of the public to raise money for a public purpose. The primary meaning of taxation is, therefore, raising money for the purposes of Government by means of compulsory contributions from individual persons.

A tax is not a tax merely because the word “tax” is used to describe the obligation to be paid for a public purpose. The word 'tax' is a generic term or 'genus' covering a variety of species of obligations to pay money for public purposes.

An obligation of the same cannot be excluded from proper classification because of the name by which it is called. In other words, the fact that the fixed amount of money compulsorily payable by members of the public who possess receivers is called a 'licence fee' would not alter the fact of its being a 'tax'. The term 'licence fee' is not a definition but is a conclusion. It is a label describing a debt imposed on a person by a statute in respect of an activity in relation to property.

There are many kinds of taxes that may be imposed by the State in the exercise of the power of taxation. 

In the American case of Hylton v United States 3 Dall 171 (Supreme.justice.com) it was held that the term 'taxation' covers every conceivable exaction which it is possible for a Government to make, whether under the name of a tax or under such names as rates, assessments, duties, imposts, excise, licences, fees or toll. In fact, section 113(1) of the Constitution defines 'tax' to include 'duty or due'. The Concise Oxford Dictionary (7ed) defines the word 'due' to include 'fee' as the concepts connote an obligation or debt owed to some other person.

In Alberts v Roodepoort - Maraisburg Municipality 1921 TPD 133…, money compulsorily paid under the name 'sanitary fees' charged by a local authority was held to be a 'tax.' In Permanent EST Finance Co Ltd v Johannesburg City Council 1952 (4) SA 249 (W) RAMSBOTTOM J…, expressed the view that “to require any person who carries on a business or who owns a dog or a motor car to pay a prescribed fee is…., to impose a tax.”

So a tax is not any the less a tax because a different name is given to it.

In the Australian case of Leake v COT (State) (1934) 36 WALR 66 DWYER J…, said:

“A compulsory contribution or an impost may be nonetheless a tax, though not so called; the distinguishing features of a tax being in fact that it is a compulsory contribution imposed by the sovereign authority on and required from the general body of subjects or citizens.”

In Constantinides v Electricity Authority of Cyprus (1982) 3 CLR 798, the Supreme Court of Cyprus held that:

“An imposition is a tax if it is found to fulfil certain characteristics, namely;

(a) It is compulsory and not optional;

(b) It is imposed or executed by the competent authority;

(c) It must be enforceable by the law;

(d) It is imposed for the public benefit and for public purposes; and

(e) It must not be for a service for specific individuals but for a service to the public as a whole, a service in the public interest.”

In this jurisdiction, the authority on the elements which designate a tax is the decision of the Supreme Court in Nyambirai v National Social Security Authority & Anor 1995 (2) ZLR 1 (S). Tax was defined in Nyambirai v National Social Security Authority & Anor 1995 (2) ZLR 1 (S)…., as “a compulsory, and not an optional contribution, imposed by the legislature, or other competent authority upon the public as a whole or a substantial sector thereof, the revenue from which is to be utilised for the public benefit and to provide a service in the public interest.”

The question whether the provisions of the Broadcasting Services Act [Chapter 12:06], the validity of which is challenged, are provisions in respect of taxation requires a finding to be made on the nature of the law. 'Law' is used to mean a provision of the Act as is so defined in section 113 of the Constitution. In determining the nature of a law, a court should examine the substance of the provisions to decide whether the matter they deal in is a matter in respect to which the State has power to legislate. The court would be concerned with what the provisions of the law are doing.

The applicants conceded, through counsel, that the obligation to pay a licence fee provided for under section 38B(1) as read with section 38E(1)(h)(i) of the Broadcasting Services Act [Chapter 12:06] ensures that the licence fee is a compulsory contribution to the general funds of the corporation. The provisions impose an obligation to pay the money to the Zimbabwe Broadcasting Corporation for a public purpose.  It was common cause that the obligation is imposed on a substantial sector of the public. All persons who have in their possession equipment capable of receiving broadcasting service bear the obligation to pay the licence fee for the possession of the gadget.

On the question whether the compulsory contribution is imposed by the legislature or other competent authority, the applicants' position was that it is the Zimbabwe Broadcasting Corporation that exacts the licence fee. Counsel for the applicants argued that as the Zimbabwe Broadcasting Corporation was incorporated in terms of the Companies Act [Chapter 24:03] it is a private company carrying on the business of providing broadcasting service. He argued that a provision of a law which gives a private company power to fix and collect licence fees to raise funds for its own operations is not a law in respect of taxation.

According to counsel for the applicants, the purpose of the provisions of the Broadcasting Services Act [Chapter 12:06], the validity of which is challenged, is to give the Zimbabwe Broadcasting Corporation an unfair financial advantage over other competitors in the business of providing broadcasting services.

Counsel for the respondents argued that notwithstanding its incorporation in terms of the Companies Act [Chapter 24:03], the Zimbabwe Broadcasting Corporation is a 'public broadcaster.' The effect of counsel for the respondents' argument is that the Zimbabwe Broadcasting Corporation is a 'public broadcaster' because the statute, in terms of which its incorporation was authorized, says it is a 'public broadcaster.'

The argument by the applicants is misplaced.

The obligation to pay the licence fee is imposed by the Legislature on every person who possesses a receiver. It is the Legislature that exercised its wide discretion to select possession of a receiver as the subject for the purposes of imposing the obligation to pay the money on all persons who get to be in control of a receiver. The fact that the Legislature gave the Zimbabwe Broadcasting Corporation the power to fix the value of the obligation with the approval of the Minister of State for Information and Publicity in the President's Office (“the Minister”) by a statutory instrument does not make the Zimbabwe Broadcasting Corporation the legislative authority.

The Legislature is unrestricted in its choice of subjects on the basis of which to impose the obligation to pay the money….,.

The contention that the obligation payable by those who are in possession of receivers is not a tax because its value is fixed by the Zimbabwe Broadcasting Corporation and collected by it for payment into general funds for use in its operations overlooks important factors. Firstly, the fixing of the amount to be paid is an obligation imposed on the Zimbabwe Broadcasting Corporation by the Parliament. It is part of the obligation to pay the money imposed on every person in possession of a receiver who falls outside the class of people exempted from the liability.

There is no legal limitation on the value of the obligation the Zimbabwe Broadcasting Corporation may fix. 

That fact attests to the exercise of the constitutional power of the State to impose taxes. The Zimbabwe Broadcasting Corporation would be exercising delegated power. As long as the delegated power is exercised in the manner set out, and within the limits imposed by the delegating law for the specific purpose prescribed, the result is the same at law as if the power is exercised by the principal. The Zimbabwe Broadcasting Corporation would be exercising the power to fix the amount of the obligation to be paid as tax on behalf of the Parliament. That is why the delegation is in the form of an obligation.

Collection of the payment of the obligation imposed on those who are in possession of receivers is imposed on the Zimbabwe Broadcasting Corporation as an obligation. When the Zimbabwe Broadcasting Corporation and its appointed agents demand, in appropriate circumstances, production of a listener's licence from a citizen, they are discharging a legal obligation. Collection is in aid of revenue. It occurs after the obligation to pay the money fixed by the Zimbabwe Broadcasting Corporation, in terms of the Broadcasting Services Act [Chapter 12:06], has been imposed.

Collection has no relevance in the determination of the question whether the obligation to pay the money is a tax or not.

The requirement that the money collected as payment of licence fees should be paid into the general funds of the Zimbabwe Broadcasting Corporation and not into the Consolidated Revenue Fund is consistent with the provisions of section 101 of the Constitution. The earmarking of the money for payment into the general funds to be used as revenue by the Zimbabwe Broadcasting Corporation to meet the costs of its operations underscores the intention to protect the financial independence of the Zimbabwe Broadcasting Corporation. State revenue cannot be earmarked except at the point of expenditure by appropriation. The section provides:

“101 Consolidated Revenue Fund

All fees, taxes and other revenues of Zimbabwe from whatever source arising, not being moneys that -

(a) Are payable by or under an Act of Parliament into some other fund established for a specific purpose; or

(b) May, by an Act of Parliament, be retained by the authority that received them for the purpose of defraying the expenses of that authority;

shall be paid into and form one Consolidated Revenue Fund.”

In the first place, it may be admitted that revenue is essential to the effective operation of the public broadcasting service and the existence of the Zimbabwe Broadcasting Corporation. The State used its power to provide the Zimbabwe Broadcasting Corporation with a reliable source of funding to enable it to properly fulfil its statutory obligations. The money received constitutes the proceeds of the discharge of the obligation. The obligation is separate and precedent to the proceeds. The authorization of any agent, by the Legislature, to collect the proceeds of the performance of the obligation to pay the money is a matter that cannot be prevented by any legal decision.

The Legislature, with full power over the subject of taxation, short of arbitrary and unreasonable action which is not to be assumed, inserted these provisions on payment of the revenue into the general funds operated by the Zimbabwe Broadcasting Corporation in an Act specifically providing for the raising of revenue. It is sufficient for determination of the question of their validity that these provisions have a reasonable relation to the exercise by the Legislature of the taxing power conferred on it by the Constitution.

It must follow that the Zimbabwe Broadcasting Corporation is required to use the revenue to meet its obligations in the performance of its functions as a public broadcaster. The revenue raised from compulsory payment of the money is to be used in the provision of broadcasting services in the public interest. The Zimbabwe Broadcasting Corporation is required, under Part 1 of the Seventh Schedule to the Broadcasting Services Act [Chapter 12:06], to make programmes available to Zimbabweans in all the languages commonly used in Zimbabwe. One of the purposes of providing public broadcasting services is to meet the needs of the unserved sections of the population…..,.

The mechanism of funding was adopted as an alternative to ordinary State budget appropriations because it would enable the Zimbabwe Broadcasting Corporation to operate free of Government administrative regulations. The method of funding would also enable the Zimbabwe Broadcasting Corporation to avoid Government oversight of its day-to-day operations. The idea was to keep the Government out of control of the purse strings of the Zimbabwe Broadcasting Corporation and ensure that the Zimbabwe Broadcasting Corporation receives its funding directly from the public through taxation. State funding would give the Government the power to control the public broadcaster's activities, particularly the selection and presentation of television and radio programmes. There is nothing unusual about the obligation to pay the amount of money fixed by the Zimbabwe Broadcasting Corporation with the approval of the Minister by statutory instrument as a licence tax on possession of a receiver.

Whilst giving effect to a tax-based mechanism of funding, the provisions also give the public broadcaster the right of direct access to and control of the use of the revenue thereby protecting it from interference by the State. The mechanism of funding given effect to by the provisions of the Broadcasting Services Act [Chapter 12:06], the validity of which is challenged, shows that the scheme of public broadcasting service provided for is not a State enterprise nor is it a State-sponsored enterprise. 

It is a public-sponsored enterprise.

In imposing the obligation on every person who possessed a receiver to pay the amount of money fixed and collected by the Zimbabwe Broadcasting Corporation as a licence fee, the provisions authorized the acquisition, by the Zimbabwe Broadcasting Corporation, of property in satisfaction of the obligation. 

Section 38(B)(2) of the Broadcasting Services Act [Chapter 12:06] makes provision for the acquisition of property in satisfaction of a tax within the meaning of section 16(7)(a) of the Constitution. The primary object of section 38(b)(1) and (2) of the Broadcasting Services Act [Chapter 12:06] is the raising of revenue.

However labeled, the obligation imposed by section 38(b)(1) of the Broadcasting Services Act [Chapter 12:06] on persons in possession of receivers is a 'tax.'

In the light of the contention advanced on behalf of the applicants, that the money compulsorily paid to the Zimbabwe Broadcasting Corporation as a licence fee is not a tax, no argument was made to the effect that section 38(B)(1) as read with section 38E(1)(h)(1) of the Broadcasting Services Act [Chapter 12:06] is not reasonably justifiable in a democratic society. The onus was on the applicants to show that the provisions went further than was reasonably justifiable in a democratic society. The standard of proof is a preponderance of probability. See Nyambirai v National Social Security Authority & Anor 1995 (2) ZLR 1 (S)…,. 

In further developing its argument, it was submitted on behalf of the appellant that the National Employment Council's insistence on payment of subscription dues was tantamount to unlawful expropriation of its private property.

It was finally submitted that the court a quo's determination in this respect amounted to a denial of the right to protection of property under section 71 of the Constitution….,.

This is an appeal against a judgment of the High Court declaring unlawful the demolition of the respondents' houses in Budiriro 4 in the absence of a court order….,.

“2 Supremacy of Constitution

(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of Government at every level, and must be fulfilled by them.”

“74 Freedom from arbitrary eviction

No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.”…,.

I…, agree with the learned Judge that the appellant must comply with the dictates of the Constitution and follow the procedure prescribed therein. It must obtain a court order before it can lawfully demolish the homes of the respondents.

ALTERNATIVE ARGUMENT

The appellant raised, in its heads of argument, the alternative argument that the structures sought to be demolished are not 'homes' in terms of section 74 of the Constitution.

This argument, though advanced by the appellant in the court a quo, is not supported by its opposing affidavit in which it maintained that the structures erected by the respondents are illegal but made no denial of the averments made in the founding affidavit of the respondents that the houses and structures earmarked for demolition are their homes.

More importantly, however, the Constitution gives no definition of 'home'. The word must therefore be attributed its ordinary meaning, which is:

A “dwelling place; fixed residence of a family or household; dwelling-house”; Concise Oxford Dictionary of English 7th ed.

“A house or apartment that is the usual place where one lives”; WordReference Random House Learner's Dictionary of American English 2018.

“The place in which one's family life and affections are centred.” Ibid. See also Port Elizabeth v Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC)…,.

Quite clearly, on the evidence presented in the papers, the respondents lived in those houses or structures with their families and regarded them as their homes. In the premises, no basis has been established for setting aside the judgment of the High Court as prayed by the appellant….,. It is accordingly ordered as follows:

1. The appeal is dismissed.

The first respondent argued that…, section 74 of the Constitution is not applicable in this case because what the applicants illegally erected cannot be defined as home. It relied on the interpretation in the case of Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7, 2005 (1) SA 217 (CCO)…, where SACHIS J said:-

“Section 26(3) evinces special constitutional regard for a person's place of abode. It acknowledged that a home is more than just a shelter from the elements. It is a zone, a personal intimacy, and family security. Often, it will be the only relatively secure space of privacy and tranquillity in what (for poor people in particular) is a turbulent and hostile world.”

However, according to the papers filed of record, the applicants are members of Tembwe Housing Co-operative, and have constructed houses of various sizes in Budiriro 4, on land acquired through the co-operative. Some have been staying on completed and uncompleted structures.

In my view, these people regarded some of these structures as their homes….,.

The provisions of section 74 of the Constitution are clear and unambiguous. Before any person, whatsoever, can lawfully demolish the houses or homes of any person, that person has to first of all obtain a court order.

Section 71(3) of the Constitutions says:

“Subject to this section, and to section 72, no person may be compulsorily deprived of their property except where the following conditions are satisfied…,.”

Section 28 of the Constitution obliges the State and all institutions at every level to take all steps necessary within their means to enable every person to have access to adequate shelter.

COMPULSORY DEPRIVATION OF PROPERTY

The applicants alleged that the transitional provision infringes their right to property enshrined in section 71(2) and protected under section 71(3) of the Constitution. Section 71(2) and 71(3) provide as follows:

“71 Property Rights

(1)…,.

(2) Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others.

(3) Subject to this section and to section 72, no person may be compulsorily deprived of their property except where the following conditions are satisfied -

(a) The deprivation is in terms of a law of general application;

(b) The deprivation is necessary for any of the following reasons -

(i) In the interests of defence, public safety, public order, public morality, public health or town and country planning; or

(ii) In order to develop or use that or any other property for a purpose beneficial to the community;”

The applicants' case was that, by operation of the transitional provision, they were made to incur a financial obligation which they were not required to fulfil at the time they terminated the employment relationships with former employees on notice. They argued that, as a result of the retrospective imposition of the obligation to pay the employees, whose contracts were terminated, the minimum retrenchment package, they were being compulsorily deprived of private property in the form of money in violation of section 71(3) of the Constitution.

The retrospective imposition of the financial obligation on employers who terminated employees' contracts on notice on or after 17 July 2015 to pay the minimum retrenchment package based on length of service has already been held to be constitutional. The question is whether the action constitutes compulsory deprivation of property within the meaning of section 71(3) of the Constitution.

There is a distinction between compulsory deprivation and compulsory acquisition of private property by the State. Deprivation does not necessarily amount to acquisition or taking away of property by the State. It may be confined to the imposition of restrictions on the use, enjoyment or exploitation of the private property.

In that case, deprivation must be by a law of general application and be for the purpose of one of the public interests listed in section 71(3)(b) of the Constitution. Where the compulsory deprivation involves the acquisition or taking away or dispossession of private property, there is expropriation.

It cannot be disputed that acquisition means, and implies, the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be. The whole bundle of rights which were vested in the original holder would pass on acquisition to the acquirer, leaving nothing in the former. Expropriation requires the payment of a fair and adequate compensation. In that case, all the requirements of validity of the law prescribed under section 71(3) of the Constitution must be met.

Whichever way one looks at the facts of this case, section 71(3) of the Constitution is not applicable, whether in the broad sense of compulsory deprivation or the narrow meaning of expropriation. There was no retrospective compulsory deprivation of vested rights in property. The retrospective imposition of the financial obligation on employers who terminated their employees' contracts on notice to pay them the minimum retrenchment package as compensation for loss of employment cannot be passed as compulsory deprivation of employers of private property in the form of money by the State. There is obviously no taking of money from the employers by the State.

The objective of the retrospective imposition of the financial obligation, on employers who terminated employees' contracts on notice, to pay a minimum retrenchment package, was not the taking of the employers' money. There was a pre-determined liability by the employer to the employee whose contract was terminated for damages caused by the loss of employment as a result of termination on notice. Compulsory deprivation of property, prohibited under section 71(3) of the Constitution, would not be premised on a pre-determined liability for a debt owed by one person to another. It is clear from the provisions of section 71(3) of the Constitution that the right to property is protected against compulsory deprivation by the State.

The mechanism by which the retrospective application of the financial obligation on the applicants on account of their having terminated employees' contracts on notice during the relevant period is unlike an act of deprivation of the applicants of specific and identified property. It would be incongruous to call the effect of the retrospective application of the obligation to pay compensation to employees whose contracts were terminated on notice deprivation of property within the meaning of section 71(3) of the Constitution.

The transitional provision gives retrospective effect to legislation that simply imposes an obligation on an employer, the content of which is payment of the minimum retrenchment package to the employee whose contract was terminated on notice as compensation for the loss of employment. The retrospective application of the obligation did not target a specific property interest, nor did it depend upon any particular property for the operation of the statutory mechanism. The Government took nothing for its own use. It imposed an obligation on employers which was within its legislative powers to impose. The money was to be paid to employees whose contracts were terminated on notice.

The retrospective application of section 12C(2) of the Labour Act placed the responsibility of bearing the burden of loss of employment by the employee whose contract was terminated on notice fairly on those who would have caused the loss. It is not a burden that should, in fairness and justice, have been borne by the public as a whole. The employers who terminated employees' contracts on notice would have benefitted from the fruits of their labour.

The financial obligation imposed on the employers is owed to the employees whose contracts were terminated on notice. No specific amount of money is represented by the obligation. The law provides a formula which the parties must use to arrive at the specific amount of money to be paid.

An employer who terminated an employee's contract on notice is placed under an obligation, retrospectively, to assess the value of the entitlement of the employee to compensation for loss of employment based on length of service. The payment to the employee, by the employer, is made after calculation of what is due and payable as damages for loss of employment at the initiative of the employer. The money the employer would have had to pay to the employee, whose contract of employment was terminated on notice, is a measure of the damages for loss of employment caused by the employer.

It would be absurd to say that Government should pay the employer compensation for the money paid to the employee for loss of employment, which payment it would be bound to pay if there was expropriation. The employer may even not pay the money if he or she or it successfully pleads financial incapacity and consequent inability to pay the minimum retrenchment package to the employment council established for the undertaking, or, if there is no employment council for the undertaking concerned, the Retrenchment Board, and gets an exemption from the obligation to pay the full minimum retrenchment package or any part of it.

Payment by money was simply the means which the Legislature employed to fulfil its purpose. Nothing in section 71 of the Constitution prohibits the Legislature from employing monetary means in this way. Selection of the most effective means for the achievement of a legislative purpose is a prerogative of the Legislature. Section 71 of the Constitution was altogether irrelevant for the purposes of the applicants' case.