REPORTABLE (81)

Judgment No S.C. 47/04

Const. Application No 13/04

GEORGE PRETORIUS QUINNELL

v

(1) MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT

(2) MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS

(3) ATTORNEY-GENERAL OF ZIMBABWE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA JA, CHEDA JA, ZIYAMBI JA & MALABA JA

HARARE MAY 27 & NOVEMBER 11, 2004

W. Trengove S.C., with him, J.C. Andersen S.C., for the applicant

N. Matanda-Moyo, with her, N. Mutsonziwa, for the respondents

MALABA JA: On 4 May 2004 the High Court, with the consent of the parties, referred for determination by this Court the following constitutional questions:

“1. Whether or not the Land Acquisition Amendment Act No 6 of 2002, was not lawfully enacted by Parliament and is therefore invalid and of no force and effect.

Alternatively:

Whether or not the amendments to sections 8, 9 and 10 of the Land Acquisition Act [Chapter 20:10] made in terms of the Land Acquisition Amendment Act No 6 of 2002, are invalid and of no force and effect by reason of being in conflict with sections 11, 16(1)(b), 16(1)(c), 16(1)(d), 18(5), 18(9) and 23(1) of the Constitution of Zimbabwe.

2. Whether or not Mr Patrick Anthony Chinamasa MP ceased to be the Minister of Justice, Legal and Parliamentary Affairs with effect from 1 April 2002.

3. Whether or not Dr Joseph Mutakwese Made MP ceased to be the Minister of Lands, Agriculture and Rural Resettlement with effect from 1 April 2002 and that the section 8 acquisition order signed by him on 29 April 2002 concerning applicant’s farm known as Nyalugwe is invalid and of no force and effect.”

At the hearing of the application it was indicated that the relief sought by the applicant was an order in the following terms:

“1. It is declared that the Land Acquisition Amendment Act 6 of 2002 was not lawfully enacted and is consequently invalid and of no force or effect.

2. Alternatively, it is declared that the amendment of sections 8 and 9 of the Land Acquisition Act [Chapter 20:10] made by the Land Acquisition Amendment Act 6 of 2002, violates sections 16(1)(b) and 18(9) of the Constitution and are consequently invalid and of no force or effect.

3. The respondents are ordered jointly and severally to pay the applicant’s costs.”

It will be seen from the relief sought that the allegations that amendments to section 10 of the Land Acquisition Act [Chapter 20:10] (“the Act”) contravened any of the provisions of the Constitution of Zimbabwe (the Constitution) mentioned in paragraph 1 of the referral order or that the amendments to sections 8 and 9 violated sections 11, 16(1)(c), 16(1)(d), 18(5) and 23(1) were not proceeded with.

PARTIES

The applicant was the owner of agricultural land known as Nyalugwe Farm situated in the district of Lomagundi (the land). The land became the subject of compulsory acquisition for resettlement purposes under the Act.

The first respondent is the acquiring authority as defined in section 2 of the Act. He caused a preliminary notice of the intention of the State to acquire the land to be published in the Government Gazette (G.N. 322C of 2001) on 29 June 2001. On 29 April 2002 he made an order acquiring the land in terms of subsection (1) of section 8 of the Act. It was, however, conceded on behalf of the first respondent in proceedings before the High Court, that the preliminary notice and order of acquisition lacked legal effect because the former had not been served upon the bondholder with interest in the land and in respect of the latter an application to the Administrative Court had not been made not later than 30 days from the date the order of acquisition was served on the applicant for an order confirming the acquisition as required by subsection (1) of section 7 of the Act.

The second respondent introduced into Parliament the Land Acquisition Amendment Bill which became Act No 6 of 2002. He is also cited because it is alleged that he was not a “Minister” when he introduced the bill because under Standing Order 102 only a “Minister” has authority to introduce into Parliament a bill without having obtained prior leave of the House to do so. The allegations were that in terms of the provisions of section 31E(1)(c) of the Constitution the second respondent ceased being a Minister on 1 April 2002 when the President assumed office.

The third respondent was cited in compliance with section 24(6) of the Constitution to the effect that if in any proceedings it falls to be determined whether any law is in contravention of the Declaration of Rights the Attorney-General shall be entitled to be heard by the court on that question.

FACTS

The facts and circumstances on which the relief sought by the applicant is based are not in dispute. They start on 8 January 2002 when the General Laws Amendment Bill which was to amend 48 Acts of Parliament was rejected at the third reading stage when the House got divided with 36 votes against and 24 votes in favour of the bill being read a third time. The second respondent later successfully applied for the suspension by the House of Standing Order 127 which prohibits the introduction of a bill of the same substance as another bill which has been introduced during the same session and which has not been withdrawn. On 10 January the bill was read a third time. It became law on 4 February 2002.

In subsection (1) of section 27 the General Laws Amendment Act sought to amend the Land Acquisition Act in the following manner:

“(a) in section 8 -

(i) in subsection (1) by the insertion of the following proviso after proviso (ii) -

‘(iii) where land is offered for acquisition by

the owner in terms of subsection (2), (3) or (4) of section six A or subsection (2) or (3) of section six B and accepted by the acquiring authority, it shall not be necessary for the acquiring authority to make an order in terms of this subsection, and such land shall vest immediately in the acquiring authority upon acceptance of the offer as if an order had been made in terms of this subsection.’

(ii) by the repeal of subsection (2) and the substitution of -

‘(2) Immediately after making an order in terms of subsection (1) an acquiring authority may -

(a) in relation to land other than agricultural land required for resettlement purposes, exercise any right specified in that order if the exercise of that right does not require the eviction of the owner or occupier of the land concerned; and

(b) in relation to any agricultural land required for resettlement purposes, exercise any right of ownership, including the right to survey, demarcate and allocate the land concerned for agricultural purposes, without undue interference to the living quarters of the owner or occupier of that land:

Provided that this subsection shall not permit an acquiring authority, other than the President or a Minister, to do anything which interferes with rights acquired in terms of the Mines and Minerals Act [Chapter 21:05] without the permission in writing of the Minister responsible for mines.’;

(iii)by the insertion after subsection (6) of the following section -

‘(7) Any owner or occupier of the land concerned or other person who, after an order is made in terms of subsection (1), interferes with the exercise by the acquiring authority of any right in terms of subsection (2) or anything done pursuant to the exercise of such right, without the permission in writing of the acquiring authority, otherwise than in the exercise of rights acquired in terms of the Mines and Minerals Act [Chapter 21:05], shall be guilty of an offence and liable to a fine not exceeding twenty thousand dollars or imprisonment for a period not exceeding two years or to both such fine and such imprisonment.’;

(b) by the repeal of section 9 and the substitution of –

‘9. Eviction of owner or occupier

The following provisions shall, subject to subsection (5) of section seven and subsections (3) and (4) of section eight, apply to the vacation by the owner or occupier of land acquired in terms of this Act –

(a) in relation to land other than agricultural land required for resettlement purposes, any person who, immediately prior to the date on which an order is made in terms of subsection (1) of section eight, owned, occupied, held or used the land to which such order relates shall, if so required by not less than three months’ notice in writing by the acquiring authority, cease to occupy, hold or use that land, and if he fails to do so, he shall be liable to be evicted by order of a competent court;

(b) in relation to any agricultural land required for resettlement purposes, the making of an order in terms of subsection (1) of section eight shall constitute notice in writing to the owner or occupier to cease to occupy, hold or use that land immediately on the date of service of the order upon the owner or occupier, and if he fails to do so, he shall be liable to be evicted by order of a competent court:

Provided that the owner or occupier of that land may remain in occupation of his living quarters on that land for a period of not more than three months after the date of service of the order.’

(c) in section 10 in subsection (1) by the repeal of paragraph (a) and the substitution of –

‘(a) a copy of the order made in terms of that subsection or, where no such order was required in terms of proviso (iii) to that subsection, written confirmation to that effect; and’

(2) Sections 8, 9 and 10 of the principal Act as amended by this Act shall be deemed to have come into operation on the 23r^d May, 2000:

Provided that where an order in terms of subsection (1) of section 8 of the principal Act was made before the date of commencement of this Act, the date of the notice referred to in paragraph (b) of section 9 of the principal Act, and the date from which the period of three months referred to in the proviso to that paragraph shall be counted, shall be the date of commencement of this Act.”

These are all the provisions of section 27(1) of the General Laws Amendment Bill.

On 27 February 2002 Tendai Laxton Biti, a Member of Parliament belonging to the opposition political party, the Movement for Democratic Change (MDC), brought a constitutional application in which he challenged the validity of the General Laws Amendment Act on the ground that the bill from which it was made had been re-introduced into the House in contravention of the provisions of Standing Order 127. The case, not yet reported, is Biti & Anor v The Minister of Justice Legal and Parliamentary Affairs and Anor S-10-02. By a majority of four to one the Court held that the re-introduction of the General Laws Amendment Bill after its rejection by the House upon a division contravened the provisions of Standing Order 127. The Act was declared invalid and of no force or effect.

On 9 and 10 March 2002 an election to the office of President was held. The term of office of the President was to expire on 1 April. The incumbent President was re-elected and assumed office in the new term on 1 April 2002 after taking and subscribing the oaths of loyalty and office.

On 7 May 2002 the second respondent introduced into Parliament the Land Acquisition Amendment Bill. He used the procedure prescribed by Standing Order 102 (2)(i) in terms of which a Minister can introduce a bill on notice of presentation without having sought and obtained the leave of the House. Unlike the procedure on notice of motion for leave, presentation of a bill without leave effectively prevents debate on the substance of the bill as very little information on the bill is given and no question on the propriety of its introduction is asked once the notice of presentation has not been ruled out of order. The bill was presented to the House when the Clerk read its short title at the invitation of the second respondent.

On 8 May the second respondent moved that the bill be read a second time. He made a brief speech explaining the principle of the bill. He also disclosed to the House that he intended moving amendments and additions to the substance of the bill at the committee stage. The propriety of introducing the bill was not raised by any of the members of the House at this stage. No objection was made to the introduction of the bill on the ground that it was of the same substance as section 27(1) of the General Laws Amendment Bill which had been introduced into the House during the same session and which had not been withdrawn. Objections to the introduction of the bill on the grounds that it contravened the provisions of Standing Order 127 should have been taken at this stage of the proceedings and before the second reading. It is not the practice to order bills to be withdrawn, after they are committed, on account of any irregularity which can be cured while the bill is in committee.

The bill was read a second time and thereafter went into the committee stage. Here there was heated and extensive debate on the substance of the amendments and additions to the provisions of the bill proposed by the second respondent. Eventually the proposed amendments and additions to the provisions of the bill were agreed to and adopted to stand as parts of the bill, as reflected in the Committee report. The bill with the amendments and additions was read a third time upon a motion put and agreed to. The bill became the Land Acquisition Amendment Act No 6 of 2002 on 10 May 2002.

The amendments and additions to the provisions of the bill at the committee stage are significant in that their inclusion rendered the bill substantially different from the substance of the provisions of section 27(1) of the General Laws Amendment Bill. It is common cause that at the time of its presentation to the House the former bill was of the same substance as section 27(1) of the latter bill which had been introduced in the same session and had not been withdrawn.

An interesting question was raised on behalf of the respondents whether or not a bill can be described as a bill introduced in the same session and which has not been withdrawn when the Act made from it has been declared invalid and of no force or effect by a court. It has not been found necessary to determine this question because we can proceed on the assumption that the introduction of the General Laws Amendment Bill and the proceedings of the House in respect to it are matters of fact the occurrence of which cannot be denied.

I digress from the narration of the facts to highlight the main differences in substance which made the two bills incompatible at the time the Land Acquisition Amendment Bill became law. The opportunity to occupy, hold or use the acquired land for forty-five days after the service of the order of acquisition was now subject to the right of the acquiring authority to survey, demarcate and allocate the agricultural land required for resettlement purposes as long as these activities did not interfere with the living quarters. Section 27(1) of the General Laws Amendment Bill had required the owner or occupier of agricultural land acquired for resettlement purposes to cease to occupy, hold or use the land immediately on the date of service of the order of acquisition. The Land Acquisition Amendment Bill imposed an obligation on the owner or occupier to vacate the land at the end of forty-five days from the date of service of the order of acquisition subject to the exercise by the acquiring authority of its rights under subsections (2),(3),(4) and (7) of section 8.

Section 27(1) of the General Laws Amendment Bill had provided for the eviction by order of a competent court of an owner or occupier who failed to immediately cease to occupy, hold or use the land acquired for resettlement purposes. The Land Acquisition Amendment Bill changed this and created a criminal offence out of the failure by the owner or occupier to cease to occupy, hold or use the agricultural land acquired for resettlement purposes at the end of the prescribed period.

Instead of dealing with the prescription of the time at the expiry of which the obligation on the owner or occupier was to commence, the Land Acquisition Amendment Bill now added, as a subject-matter for legislation, the criminalisation of the failure to comply with the order to cease to occupy, hold or use the land at the expiry of forty-five days from the date of service of the order of acquisition. The offence was made punishable with a fine not exceeding twenty thousand dollars or imprisonment for a period not exceeding two years or both such fine and such imprisonment. A court was now required, upon convicting the owner or occupier charged with the offence to order his eviction from the acquired land.

Whilst section 27(1) of the General Laws Amendment Bill had not criminalised the failure by the owner or occupier to vacate the living quarters at the end of three months from the date of service of the order of acquisition, the Land Acquisition Amendment Bill brought it in as a subject-matter of its provisions. The requirement that upon convicting an owner or occupier of the offence of failing to vacate the living quarters at the expiry of ninety days from the date of service of the order of acquisition a court must order his eviction was an entirely new subject-matter.

Section 5 of the Land Acquisition Amendment Bill also brought in as a new subject-matter for legislation the payment of compensation for any other improvements on or to the land which enhanced its value for agricultural purposes and with the agreement of the owner, for movables used in connection with the land for agricultural purposes including irrigation equipment not embedded in the ground, tractors, ploughs, disc harrows, trailers, combine harvesters, pumps not permanently attached to the land, sprinklers, risers and movable storage facilities.

Section 6 of the Land Acquisition Amendment Bill gave retrospective effect (from 23 May 2000) to the Act. The substance of the Schedule of the Act had not been affected insofar as its retrospective application was concerned by subsection (2) of section 27 of the General Laws Amendment Bill in terms of which sections 8, 9 and 10 of the Act were to have retrospective effect from 23 May 2000.

I now continue with the narration of the facts. Before its repeal by Act No 6 of 2002 subsection (2) of section 8 had provided that the acquiring authority could immediately after making an order of acquisition in terms of subsection (1) of section 8, exercise any rights specified in that order if the exercise of that right did not require the eviction of the owner or occupier of the land concerned. If the acquiring authority required the eviction of the owner or occupier it was obliged to give him three months’ notice to cease to occupy, hold or use the acquired land and if he failed to obey the notice, he could be evicted by an order of a competent court.

Whether the owner or occupier was placed under an obligation to cease to occupy, hold or use the land and when that happened depended upon the exercise of executive discretion by the acquiring authority. Whilst the acquiring authority could, in certain circumstances, survey, demarcate and allocate the acquired land during the period of the three months’ notice given to the owner or occupier to cease to occupy, hold or use the land, without undue interference to the living quarters and the activities and operations of the owner or occupier of the acquired land, it could not do so in respect of agricultural land the acquisition of which had been objected to in terms of section 5 and not been authorised or confirmed by the Administrative Court.

The effect of the amendment to sections 8 and 9 of the Act is that the period at the end of which the owner or occupier has to cease to occupy, hold or use agricultural land acquired for resettlement purposes is fixed by statute at forty-five days in respect of the land and ninety days in respect of the living quarters and both periods are made to run from the date of service of the order of acquisition. The acquiring authority can now exercise the right to survey, demarcate and allocate agricultural land acquired for resettlement purposes regardless of the fact that an application for an order confirming the acquisition has been made to the Administrative Court.

In Airfield Investment (Pvt) Ltd v The Minister of Lands, Agriculture and Rural Resettlement and Ors S-36-04 at p 6, it was held that the fact that the application for an order confirming the acquisition was pending before the Administrative Court was no longer a restriction to the exercise by the acquiring authority of the rights of ownership vested in it by the order of acquisition made and served on the owner or occupier of agricultural land required for resettlement purposes.

DETERMINATION OF QUESTIONS

The first question is based on the proposition that the introduction of a bill in contravention of the provisions of Standing Order 127 spells invalidity in the resultant Act regardless of the circumstances and the procedure used to present the bill to the House. Standing Order 127 provides that:-

“127. Subject to the provisions of the Constitution, no bill shall be introduced which is of the same substance as some other bill which has been introduced during the same session and which has not been withdrawn.”

Legislative power in Zimbabwe is vested by section 32(1) of the Constitution in the Legislature consisting of the President and Parliament. This plenary power is in terms of section 51(1) of the Constitution exercised by bills passed by Parliament and assented to by the President. Power is given to Parliament under section 57(1) of the Constitution to make standing orders for the regulation and conduct of its proceedings provided that the standing orders are not inconsistent with the Constitution and any other law. Once made, standing orders have the force of a constitutional provision.

The contention advanced on behalf of the applicant was that the Land Acquisition Amendment Bill was the same in substance as section 27(1) of the General Laws Amendment Bill which had been introduced during the same session and had not been withdrawn. The argument was that the presentation of the Land Acquisition Amendment Bill was in violation of Standing Order 127. The resultant Act was therefore invalid and of no force or effect.

I have no difficulty in accepting as a fact that the Land Acquisition Amendment Bill was the same in substance as section 27(1) of the General Laws Amendment Bill. There was, of course, a violation of Standing Order 127 although it was of a technical nature. I do not accept the general proposition that presentation of a bill in contravention of Standing Order 127 in all circumstances spells as its necessary consequence invalidity in the resultant Act.

Courts do not concern themselves with what happens in Parliament as such but with its effect on the validity of the enacted legislation. Standing orders are made by Parliament principally to regulate and control its own proceedings. Not every contravention of a standing order would, therefore, have the effect of invalidating the resultant Act. Breach of a standing order may by its nature remain a matter for the internal proceedings of Parliament. In such a case presenting a bill in breach of a standing order is one thing and enacting a valid law another. The onus is on the applicant to show that invalidity of an Act is the necessary consequence of a breach of the provisions of the standing order the construction of which forms the basis of the claim. The determination of the question depends upon the construction of the language of Standing Order 127.

The makers of the standing order could by express language have declared that the happening of an event such as the breach of its provisions shall have as its effect the invalidation of the resultant Act. The court would, in that case, give effect to the intention of Parliament because what it would be involved in is a judicial examination of the regularity of the legislative procedure by which the statute, the validity of which is impugned, would have been enacted. There would have to be such a defect of constitutional procedure as would result in it being impossible to say that the bill proceeded with became a valid law before a court can declare an Act of Parliament invalid on grounds of procedural irregularity.

In Clayton & Ors v Heffron & Ors 105 CLR 214 DIXON CJ, McTIERNAN J, TAYLOR J and WINDEYER J, in a joint judgment, said at p 246:-

“In this case there are two matters with which we are dealing: the legislative power and the procedure for its exercise. The principles of the common law distinguished sharply between invalid attempts to exercise a legislative power and departures from the prescribed course for its exercise which may not or do not bring invalidity as a necessary consequence. In the end the distinction must be governed by the intention expressed by the legislature conferring the power and prescribing the steps to be taken in the course of its exercise. But commonly no express declaration is to be found in a statutory power as to the effect on validity of departures from the procedure laid down. The question is then determined by reference to the nature of the power conferred, the consequences which flow from its exercise, the character and purpose of the procedure prescribed.”

At p. 235 of the judgment in Clayton’s case, supra, the learned Justices stated the principle that it was up to the legislature to make it clear that a breach of the standing order in question shall have as its necessary consequence invalidity in the resulting Act:-

“… the framers of a Constitution may make the validity of a law depend upon any fact, event or consideration they may choose, and if one is chosen which consists in a proceeding within Parliament the courts must take it under their cognizance in order to determine whether the supposed law is a valid law.”

In this case Standing Order 127 does not have the words to the effect that any law enacted from a bill introduced in violation of its provisions shall be void and of no force or effect. In the absence of such language the mere fact of a contravention of Standing Order 127 cannot, in the circumstances, of necessity result in the invalidity of Act No 6 of 2002. The object of Standing Order 127 is to protect Parliament from the embarrassment of having to debate the same matter twice in one session.

The question of the validity of Act No 6 of 2002 has to be determined by reference to other factors such as the character and purpose of the procedure prescribed. One cannot ignore in the enquiry the fact that the procedure of presenting the bill to Parliament without leave resulted in amendments and additions being made to the bill with the result that when it was passed into law it was substantially different from section 27(1) of the General Laws Amendment Bill. One cannot also ignore the fact that as a result of these steps taken in the procedure in the exercise of its legislative power, Parliament did not decide the same matter twice. The result, the prevention of which is the object of Standing Order 127, did not occur from its violation. The contravention remained of a technical or incidental nature having no effect at all on the substance of the law-making process in Parliament.

The court must, of course, take into account the fact that Standing Order 127 is couched in language which imposes a negative duty. It is couched in mandatory terms. Does this mean, as appears to have been accepted by the majority in Biti’s case, supra, that in every case of breach of Standing Order 127 the intention of the makers thereof is that the resultant Act must be declared invalid? I do not think so. Courts in other jurisdictions faced with the same question have considered the provisions of standing orders as directory rather than mandatory. See Namoi Shire Council v Attorney-General for New South Wales (1980) 2 NSWLR 639: (1981) 7 Commonwealth Law Bulletin 1233.

Constitutional provisions like standing orders which relate to proceedings in the House are generally considered directory. At p. 247 of the joint judgment in Clayton’s case, supra, the learned Justices said:-

“Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard yet failure to fulfil them does not mean that the resulting act is wholly ineffective is null and void.”

At p. 266 of Clayton’s case, supra, KITTO J, who wrote a separate opinion from the other four judges said:-

“It is familiar law that in many contexts legislative prescriptions to be observed in the exercise of powers or authorities or in the performance of functions are to be regarded as directory only, so that if the powers or authorities are in fact exercised or the functions performed without observance of the prescription, what is done is nevertheless of full legal efficacy. In the case of a legislative body the prescription of something to be done in the course of law-making should no doubt often be treated as in the nature of a direction to the Legislature or to one or more of its constituent elements and not as laying down conditions of validity for legislation."

In Victoria v The Commonwealth and Connor 134 CLR 81 at 179 STEPHEN J said that:-

“A directory construction will not assist in securing validity, unless despite the non-compliance which is the occasion for invoking that construction, there may nevertheless be seen to be substantial compliance with the general object at which the statutory provision aims. … If in such a case a directory construction be adopted the extent of non-compliance in the particular case must then be examined to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute.”

The procedure used by the second respondent to present the Land Acquisition Amendment Bill into Parliament was not the procedure on notice of motion for leave. Erskine May Parliamentary Practice 22 ed suggests that the procedure on motion for leave cannot be used to introduce a bill containing the same substance as some other bill which has been introduced during the same session and which has not been withdrawn. It is clear that the learned authors are not so unequivocal when it comes to the presentation of a bill without leave of the House.

The House can be prevented from raising any questions on the substance of the bill until it gets to the committee stage where amendments and additions made to it simply cure the effect of the irregularity that may have been occasioned by its introduction. That is exactly what happened in this case. Although the Land Acquisition Amendment Bill was the same in substance as section 27(1) of the General Laws Amendment Bill at the time it was introduced into the House, the procedure used by the second respondent effectively prevented the House from deciding on the same matter twice. What he did was lawful.

The amendments and additions made to the bill which he proposed at the committee stage and which were later adopted as part of the bill at the consideration of the committee report, produced a bill which was substantially different from section 27(1) of the General Laws Amendment Bill. The enactment of Act No 6 of 2002 from the Land Acquisition Amendment Bill was not the kind of result the prevention of which is the general object of Standing Order 127. In other words despite non-compliance with the provisions of the standing order at the time the bill was introduced into the House there was substantial compliance with its general object.

The violation of Standing Order 127 in this case was, therefore, of a technical nature confined to matters of procedure in the House and with no effect on the validity of the resultant Act. A court must be extremely cautious in such a case before it declares an Act of Parliament invalid on a ground of a technical violation of rules enacted by Parliament principally to regulate and control its own proceedings. According to the principles governing the invalidation of statutes for deviation from the legislative procedure laid down by law, I am of the view that no such invalidity should be held to have resulted in this case. The validity of a law that follows from what Parliament did is one thing. The proceedings of Parliament which could lead to a valid or an invalid law are another.

I agree with the remarks of GRIFFITH CJ in Osborne v The Commonwealth [1911] 12 CLR 321 at p. 337. He said when courts of law are faced with the question whether to declare a statute invalid on the ground of a technical violation or a rule of procedure they should:

“… lean rather to support than to deny the validity of an Act in case of a mere technical or incidental transgression of the injunction not affecting the substance of the legislation and if the provision objected to were capable of two constructions would if possible adopt that which would not invalidate the law.”

On the above principle it is clear that the conclusion must be reached that the Land Acquisition Amendment Act No 6 of 2002 cannot be declared invalid on the ground that the bill from which it was made law was introduced into Parliament in breach of the provisions of Standing Order 127.

SECTION 31E(1)(c) OF THE CONSTITUTION

The validity of Act No 6 of 2002 was also challenged on the ground that when the second respondent invoked the procedure for presenting its bill without leave under Standing Order 102(2)(i), he was not a Minister and, therefore, had no authority to introduce the bill in that way. Only a Minister can present a bill to Parliament without having sought and obtained leave of the House in terms of Standing Order 102(2)(i).

The contention was that on a proper construction of the provisions of section 31E(1)(c) of the Constitution when the President assumed office on 1 April 2002 he did so as “a new President” within the meaning of that section.

Section 31E(1) provides that:-

“(1) The office of a Vice President, Minister or Deputy Minister shall become vacant –

(a) if the President removes him from office; or

(b) if he resigns his office by notice in writing addressed and delivered to the President, or

(c) upon the assumption of office of a new President.” (the underlining is mine)

If the ordinary and grammatical meaning of section 31E(1)(c) is that the President was a new President on assumption of office on 1 April 2002, then the second respondent was not a Minister when he introduced the Land Acquisition Amendment Bill into Parliament. It seems to me that every person elected as President is required to assume office by taking and subscribing oaths of loyalty and office as prescribed in subsections (5) and (6) of section 28 of the Constitution. The purpose of assuming office in the manner prescribed is to have the person bestowed with the executive authority of the State vested in the office of President so that he or she can perform its duties and functions.

It is clear, however, that not every assumption of office of President has as its legal consequence the creation of a vacancy in the office of a Minister. It is to the assumption of office by “a new President” that the framers of the Constitution subjected the creation of a vacancy in the office of a Minister. The expression “… of a new President” is descriptive of the assumption of office suggesting that there is an assumption of office by some other person not describable as “a new President” which would not have as its necessary consequence the creation of a vacancy in the office of a Minister.

It may not be possible to give an exhaustive definition of what the word “new” means and implies but ordinarily when it is used to describe a thing, the idea is to contrast the attributes of that thing with those of another of the same kind or class. In Black’s Law Dictionary 3 ed, it is stated on the word “new” that:-

“as an element in numerous compound terms and phrases of the law, this word may denote novelty, or the condition of being previously unknown or of recent or fresh origin but ordinarily it is a purely relative term and is employed in contrasting the date, origin, or character of one thing with the corresponding attributes of another thing of the same kind or class.”

It is clear from the provisions of section 31E(1)(c) that by the time the person assumes the office of President he is already a new President. The word “new” must therefore have been used to contrast one person elected as President from another. A person does not become a new President within the meaning of section 31E(1)(c) of the Constitution because he assumes office of President in a new term as contended by the applicant. A person becomes a President under our Constitution upon being elected as President.

The Constitution specifies four events the happening of which will result in the holding of an election to the office of President. These are the expiry of the term of office; the death, removal or resignation of the President. There is no doubt that in an election to fill a vacancy in the office of the President occurring as a result of his death, removal or resignation “a new President” is elected. So is the case in an election to fill a vacancy caused by the expiry of the term of office of the President in which a person other than the incumbent President is elected as President. “A new President” would have been elected.

That leaves one occasion only when a person elected is not “a new President”. That is when the incumbent President is re-elected as President. In my view his assumption of office cannot be described as an “assumption of office of a new President” within the meaning of section 31E(1)(c) of the Constitution. The attribute he does not share with any of the other people elected as President is that he was the President before the election.

It is also important to consider the meaning of section 31E(1)(c) from the point of view of its purpose. A Minister is a means by which the President performs the duties and functions of his office. It is the President who has the power to appoint a Minister who does what he is asked by the President to do as long as it is lawful. As such, a Minister holds office during the pleasure of the President who can dismiss him at any time.

What this means is that the relationship between the President and a Minister is such that each person assuming office as “a new President” must have the freedom to choose a team of men and women he or she believes will perform the duties and functions of the office efficiently and effectively under his or her direction.

The framers of the Constitution saw it necessary to provide for the vacation of the office of a Minister on assumption of office of “a new President” to enable him to exercise the freedom to choose his own team of Ministers. It was unnecessary to provide for the vacation of the office of a Minister on assumption of office of a re-elected incumbent President because being the person who would have appointed a Minister he would have the power to remove him from office.

Mr Trengove argued that a re-elected incumbent President becomes “a new President” because he would be assuming the office of President in a new term. If that were the case it would have been unnecessary to use the word “new” in section 31E(1)(c) of the Constitution. A new President is a person who was not the President during the term of office the expiry of which would have led to the holding of the election to the office.

Mr Trengove also argued that a re-elected incumbent President is also the person referred to in section 28(5)(a) of the Constitution as the “previous President”. He can, by contrast, be described as a new President. Section 28(5)(a) of the Constitution provides that where a person is elected as President because the term of office is about to expire he shall assume office “on the expiry of the term of office of the previous President”.

The term “previous President” does no more than describe the person the expiry of whose term of office would have led to the holding of the election to the office of President. It also provides the basis for fixing the time when the person elected as President must assume office. If the words were to be given the meaning the applicant seeks to give them they would apply to both situations of assumption of office of President by a person re-elected and to the one who would have defeated the incumbent President in the election. There is no doubt at all that the latter person is “a new President". His being a new President arises from the very fact that he cannot be called a “previous President” within the meaning of section 28(5)(a) of the Constitution. By the same token a person re-elected as President who can be described as a previous President for the purposes of section 28(5)(a) cannot be described as “a new President” for the purposes of section 31E(1)(c) of the Constitution. The second respondent was a Minister on the day he introduced the Land Acquisition Amendment Bill into Parliament.

I would answer the first question in the negative.

SECTION 16(1)(b)

The contention advanced on behalf of the applicant was that the amendments to sections 8 and 9 of the Act introduced by Act No 6 of 2002 are in conflict with the provisions of section 16(1)(b) of the Constitution. Section 16(1)(b) of the Constitution provides as follows:-

“Section 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 –

(a) …; and

(b) requires the acquiring authority to give reasonable notice of the intention to acquire the property, interest or right to any person owning the property or having any other interest or right therein that would be affected by such acquisition.” (the underlining is mine for emphasis)

Two points were taken on the alleged violation of section 16(1)(b) of the Constitution by Parliament in enacting the amendments to sections 8 and 9 of the Act. The first was that the acquiring authority was not required to give the owner or occupier of agricultural land required for resettlement purposes a reasonable notice of when the acquisition itself was to take place. The second point was that after the acquisition of the land the former owner or occupier is not afforded a reasonable opportunity to wind up his affairs on the acquired land. The period of 45 days at the expiry of which from the date of service of the order of acquisition the former owner or occupier is obliged to cease to occupy, hold or use the acquired land was said to be too short to provide a reasonable opportunity to wind up affairs on the acquired land.

I take the first point. The Constitution directs Parliament to give the power of compulsory acquisition of agricultural land required for resettlement purposes to the executive and specifies what the executive must be obliged to do for the acquisition to have constitutional validity. Section 16(1)(b) of the Constitution authorises the compulsory acquisition of agricultural land required for resettlement purposes under the authority of a law which requires the acquiring authority to give to the owner or occupier of the agricultural land “reasonable notice of the intention to acquire the property” (the underlining is mine). The obligation on Parliament is to pass a law for the compulsory acquisition of agricultural land required for resettlement purposes which contains a provision requiring the acquiring authority to make known to the owner or occupier of the land for a reasonable time of the fact of its intention to acquire his or her land for resettlement purposes. There is nothing in section 16(1)(b) requiring Parliament to provide as a matter for legislation for the compulsory acquisition of agricultural land for resettlement purposes, a requirement on the acquiring authority to give reasonable notice to the owner or occupier of the land of the date when the acquisition was to take place.

Where the Constitution prescribes for Parliament specific matters that a statute should contain, not dealing with a matter which the constitutional provision prescribing the matters to be dealt with under the law in question does not prescribe, cannot constitute a violation of the constitutional provision. The framers of section 16(1)(b) of the Constitution specified in express terms the matters in respect to which Parliament had to legislate for compulsory acquisition of agricultural land for resettlement purposes to be constitutionally valid. The duty of the court in considering the question of violation of section 16(1)(b) of the Constitution is to determine whether or not Parliament provided in the statute for the matters prescribed in that section.

The power of the State to compulsorily acquire private property for public purposes is a power the owner or occupier of agricultural land should know can be exercised in respect of his property at any time provided fair compensation is paid for the acquisition of his rights. Davies & Ors v Minister of lands, Agriculture and Water Development 1996 (1) ZLR 681 (S) at 692G.

Having received the preliminary notice of the intention of the acquiring authority to acquire his agricultural land for resettlement purposes, the applicant had no constitutional right to be given a reasonable notice of when actual acquisition was to take place. Nonetheless subsection (1) of section 8 of the Act in terms of which the compulsory acquisition of the agricultural land the nature and extent of which would have been described in the preliminary notice, provides that an order of acquisition shall not be made by the acquiring authority before the expiry of 30 days from the date of the publication of the preliminary notice in the Gazette.

There is, therefore, a minimum period of 30 days from the date of publication of the preliminary notice of the intention to acquire the agricultural land within which actual acquisition is prohibited. There is a maximum period of two years within which compulsory acquisition can be effected. In prescribing the period of two years to mark the duration of the time within which the preliminary notice published in the Gazette in terms of subsection (1) of section 5 of the Act remained operative, Parliament placed a definite time limit within which the acquiring authority had to act to effect the acquisition of the agricultural land described in the preliminary notice. Commercial Farmers’ Union v Minister of Lands and Ors 2000 (2) ZLR 469 (S) at 485 D-F.

The applicant decided to challenge the constitutionality of section 8(1) of the Act on the ground that its provisions were in conflict with provisions in section 16(1)(b) of the Constitution. He had to show that what he accused Parliament of having left out of the provisions of section 8(1) of the Act was prescribed as a matter for legislation in section 16(1) of the Constitution. That he failed to do.

The second point was that section 9(1)(b) of Act No 6 of 2002 in requiring the former owner or occupier of the acquired land to cease to occupy, hold or use the land at the expiry of 45 days violates the provisions of section 16(1)(b) of the Constitution in that it fails to afford the former owner or occupier a reasonable opportunity to wind up his affairs on the acquired land. Once again, how can Parliament be accused of having violated the provisions of section 16(1)(b) of the Constitution in this regard when the matters it is said to have failed to legislate upon are not part of the subject matters specifically required by section 16(1)(b) of the Constitution to be provided for by Parliament in a law under the authority of which agricultural land can be compulsorily acquired for resettlement purposes?

The provisions of section 16(1)(b) of the Constitution do not require Parliament to enact a law requiring the acquiring authority to give the former owner or occupier a reasonable time within which to wind up his affairs on the acquired land. In fact it says nothing at all about the rights of the former owner or occupier on the acquired land. The concept of reasonable notice is used in section 16(1)(b) of the Constitution in respect of the specific subject of an intention to acquire the property. It cannot, in my view, be extended in its general usage to say the acquiring authority is also required to give reasonable time to a former owner or occupier to wind up his affairs on the acquired land.

The argument is based on the assumption that the former owner or occupier has a right to remain on the acquired land for the purposes of winding up his affairs. If there was such a right it could only be a statutory creation. A careful examination of section 16(1)(d) of the Constitution suggests that, once agricultural land has been compulsorily acquired for resettlement purposes in terms of the procedure prescribed by the law under the authority of which the acquisition is being effected, rights of ownership immediately vest in the acquiring authority. The acquisition is a single and complete act which takes away the rights and interests of the owners or occupiers in the agricultural land. The real rights are extinguished to the former owner or occupier of the acquired land.

Apart from the right to have the application for an order confirming the acquisition determined by the Administrative Court the former owner or occupier has no real rights expressed in the form of winding up farming operations on the acquired land. Section 9(1)(b) of the Act imposes an obligation on the former owner or occupier to vacate the acquired land at the end of 45 days from the date of service of the order of acquisition. It does not create a positive right in the former owner or occupier to remain on the acquired land to wind up his affairs.

Forty-five days is the maximum period within which the obligation must be discharged. There is no right created in the former owner or occupier by section 9(1)(b) of the Act to wind up his affairs on the acquired land. The right of occupation of the acquired land is vested in the acquiring authority. The fact that its physical manifestation may still be with the former owner or occupier does not mean that he has the right of occupation of the acquired land.

It is clear that whatever activities the former owner or occupier is able to carry on during the period of 45 days are subject to the acquiring authority not exercising its rights of ownership including the right to survey, demarcate and allocate the acquired land. This suggests that the activities the former owner or occupier may be able to carry out on the acquired land would not be in the exercise of a statutory right because the statute does not give him such a positive right. His activities would be on sufferance of the acquiring authority.

It is, therefore, not possible to accept the argument that the provisions of section 9(1)(b) of the Act No 6 of 2002 do not give the former owner or occupier a reasonable time within which to wind up his affairs on the acquired land when there is no clear right let alone a constitutional right vested in him to carry on operations on the acquired land. If a clear right was established, the reasonableness of its duration would then arise as a subject for determination. There is a clear statutory right in the former owner or occupier to occupy, hold or use the living quarters for a period of 90 days without any interference from the acquiring authority from the date of the service of the order of acquisition. This is because the statute imposes a duty on the acquiring authority not to interfere with the living quarters during the period of ninety days from the date of service of the order of acquisition on the owner or occupier of the acquired land.

Even if the point taken on behalf of the applicant was to be determined on the basis of an assumption of the existence of rights in the former owner or occupier to wind up his farming operations on the acquired land it is clear that in fixing the period at the end of which he was to cease to occupy, hold or use the land at 45 days the legislature gave supremacy to public interest over the private interests of the former owners or occupiers of acquired land.

The agricultural land would have been compulsorily acquired for a public purpose of resettling people on it. The acquiring authority in whom the rights of ownership are vested was given the right to survey, demarcate and allocate the acquired land to satisfy the public purpose of resettling the landless on the land.

The period of 45 days would have been fixed with the public interest in mind. The question whether or not the period gives the former owners or occupiers a reasonable opportunity to wind up their affairs on the acquired land does not arise in a case in which it is clear that public interest was given supremacy over the private interests of the former owners or occupiers unless the period is so grossly unreasonable as to ground an inference that Parliament failed to act constitutionally in the exercise of legislative powers. That conclusion cannot be reached on the facts of this case.

It is not enough to highlight the disadvantages experienced by former owners or occupiers in having to wind up their affairs on the acquired land within 45 days from the date of the service of the order of acquisition. In a case of compulsory acquisition of private property hardships are bound to be suffered by the owners or occupiers of expropriated property especially agricultural land and it is for that reason that the law recognises that because public interest overrides the private interests of individual landowners or occupiers they suffer the unpleasant consequences of having to stop farming operations on acquired land in the public interest.

It was also argued that Parliament should have left the question of eviction of former owners or occupiers of acquired land to the exercise of executive discretion by the acquiring authority as was the case before the amendment to section 9 by Act No 6 of 2002. The answer to this argument is that choice of a method by which Parliament decides to deal with a matter involves policy in which this Court has no interest.

I would answer the question on the alleged violation of section 16(1)(b) of the Constitution in the negative.

SECTION 18(9)

The contention was that the amendment to section 8(1) of the Act, so that agricultural land required for resettlement purposes can be compulsorily acquired and the acquiring authority proceed to exercise the rights of ownership such as the survey, demarcation and allocation of the acquired land before confirmation of the acquisition by the Administrative Court, infringed the owner or occupier’s right to be heard as enshrined in section 18(9) of the Constitution.

Section 18(9) provides that:-

“Subject to the provisions of this Constitution every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations.”

In Holland & Ors v Minister of the Public Service, Labour and Social Welfare 1998 (1) SA 389 this Court held that the right to be heard as guaranteed to a person under section 18(9) of the Constitution included a case where a public body is to take a decision which would not only have “prejudicial effect on property and liberty” but also on “the reasonable and legitimate expectations of the aggrieved person” (p 392H).

Whether or not the requirements of a “fair hearing” have been met in a particular case depends upon the specific nature of the proceedings. Mrs Matanda-Moyo argued on behalf of the respondents that in amending section 8(1) of the Act the Legislature did not infringe the applicant’s right to be heard before the decision to acquire his agricultural land for resettlement purposes was made.

The owner or occupier’s right to lodge a written objection to the proposed acquisition with the acquiring authority not later than 30 days from the date of publication of the preliminary notice in the Gazette remained intact. Written objections are an adequate means by which the owner or occupier of the land can exercise the right to be heard. The right is protected and its exercise made effective by the fact that the acquiring authority cannot make an order of acquisition before the expiry of 30 days from the date of the publication of the preliminary notice in the Gazette. The prohibition against the making of an order of acquisition before the expiry of 30 days from the date of publication of the preliminary notice in the Gazette ensures that where a landowner has lodged a written objection to the proposed acquisition the decision to acquire the land is taken after the written objections have been considered.

The applicant lodged written objections to the proposed acquisition of his agricultural land with the acquiring authority. The fact that an order of acquisition was nonetheless made in respect of his land does not mean that the written objections were not considered. He was given an opportunity to make representations on the proposed acquisition of his land.

The amendment to section 8(1) of the Act did not take away the right of the owner or occupier where agricultural land has been compulsorily acquired to put his case before the Administrative Court when the application for an order confirming the acquisition is heard. That there may be nothing to show for it in a practical sense if the Administrative Court refused to confirm the acquisition, does not detract from the fact that the owner or occupier’s right to be heard was not infringed by Parliament in enacting amendments to section 8(1) of the Act.

The allegation that the applicant’s right to be heard was infringed by the amendments to section 8 of the Act seems to have been prompted by the repeal of subsection (2) of section 8 thereof which had prohibited the acquiring authority from exercising rights of ownership, particularly the right to survey, demarcate and allocate the acquired land during the period of three months’ notice given to the owner or occupier to vacate the acquired land in respect to which there was a written objection to the acquisition and which acquisition had not been confirmed by the Administrative Court.

The removal of that provision from the Act did not give rise to a constitutional question of the infringement of a guaranteed right to be heard. It had not been enacted in compliance with a particular constitutional requirement. It was not a requirement under the provisions of section 16 of the Constitution. It only remained binding upon the acquiring authority during the period of the three months’ notice. Yet there was no guarantee that the application for an order confirming the acquisition would have been heard during the period that the restriction on the acquiring authority’s exercise of rights of ownership on the acquired land was in operation. It could not have been imposed for the purpose of protecting the former owner or occupier’s right to be heard by the Administrative Court. It must also follow that having enacted the provision in the exercise of the plenary legislative powers Parliament was at liberty to remove it from the statute without infringing any constitutional right of the former owner or occupier of acquired land.

I would hold that, insofar as the questions referred for determination were to raise a case for the granting of the relief sought, there was no merit in them.

COSTS

The applicant has been unsuccessful on all the constitutional questions referred for determination. The general rule that costs should follow the result must apply unless there are special circumstances on the basis of which the court, in the exercise of its discretion, may decline to apply the general rule. Mr Trengove argued that even if the applicant was unsuccessful his costs, including the costs for two counsel, should be paid by the State because the questions referred to this Court raised matters of national interest.

Mrs Matanda-Moyo, on the other hand, contended that the applicant was first and foremost interested in protecting private property from compulsory acquisition. She urged the court to adopt the approach on costs adopted in the line of similar cases referred to in Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S) at 126F-G and not make an order as to costs. I agree with Mrs Matanda-Moyo that although the questions referred for determination involved questions of constitutional importance they were a result of an application lodged by the applicant with the main object of protecting private property from compulsory acquisition by the State. The costs incurred by the applicant were not incurred in pursuit of a public interest. It would not be proper to mulct the State with costs for having successfully defended the public interest in the land reform programme from a constitutional attack. There shall therefore be no order as to costs.

I need to say one last thing. The parties asked the court to make an order, by consent, on the two matters relating to the invalidity of the preliminary notice published and the order of acquisition made in respect of the applicant’s land. This matter was not referred for determination by this Court by the High Court. It means that the High Court is seized with the matter and is the proper court to make the order sought. We must, therefore, decline the kind invitation to obliquely undermine the authority of that court over a matter still properly pending its decision.

The application is accordingly dismissed with no order as to costs.

CHIDYAUSIKU CJ: I agree

CHEDA JA: I agree

ZIYAMBI JA: I agree

SANDURA JA: I have read the judgment prepared by MALABA JA but respectfully disagree with it. In my view, the Land Acquisition Amendment Act No 6 of 2002 (“the Amendment Act”) was not lawfully enacted and is, therefore, invalid and of no force or effect. I say so because it was not enacted in accordance with the provisions of Standing Orders 102(2)(i) and 127 of the Standing Orders of Parliament (“the Standing Orders”).

The Standing Orders were made by Parliament in terms of s 57(1) of the Constitution of Zimbabwe (“the Constitution”). That section, in relevant part, reads as follows:

“57. Standing Orders

(1) Subject to the provisions of this Constitution and any other law, Parliament may make Standing Orders with respect to -

1. the passing of Bills;

(b) - (d) …”

The Standing Orders, therefore, have the force of constitutional provisions. Indeed, this is acknowledged by MALABA JA.

Standing Order 127 reads as follows:

“Subject to the provisions of the Constitution, no bill shall be introduced which is of the same substance as some other bill which has been introduced during the same session and which has not been withdrawn.” (emphasis added)

The applicant’s contention was that as the substance of the Land Acquisition Amendment Bill (“the Amendment Bill”) was the same as s 27(1) of the General Laws Amendment Bill which had been introduced during the same session and had not been withdrawn, the Amendment Bill was introduced in violation of Standing Order 127. In my view, the correctness of that contention cannot be questioned. It was, indeed, accepted by MALABA JA.

Once it is accepted, as it obviously must be, that the Amendment Bill was introduced in violation of Standing Order 127, cadit quaestio. That is the end of the matter. The Amendment Act is invalid and of no force or effect. That is what this Court said in Tendai Laxton Biti & Anor v The Minister of Justice, Legal and Parliamentary Affairs & Anor SC-10-2002 (not yet reported).

It is, indeed, crystal clear from the wording of Standing Order 127 that the introduction of a second Bill of the same substance as another Bill which has already been introduced during the same session but not withdrawn is prohibited or barred. I have no doubt in my mind that ignoring or overlooking such a clear prohibition must be fatal to the resultant Act of Parliament.

I now turn to the provisions of Standing Order 102(2)(i). That Standing Order reads as follows:

“Every bill shall be ordered to be brought in upon motion moved after notice that leave be granted to bring in such bill, unless such bill is brought up by a committee appointed to draft it to give effect to a resolution of the House, in which case such bill shall be read the first time without any question being put:

Provided that –

(i) a Minister may, after having given notice, present a bill without having previously obtained leave.”

It was common cause that the Amendment Bill was presented, without having previously obtained leave, by the second respondent. He purported to do so in his capacity as a Minister.

The issue which arises for determination is whether at the time the second respondent presented the Amendment Bill on 7 May 2002 he was a Minister. If he was, the presentation of the Amendment Bill by him, without having previously obtained leave, was proper. On the other hand, if he was not a Minister at the relevant time, he could not present the Bill without having previously obtained leave.

The applicant’s contention was that as the second respondent had not taken and subscribed the oaths of loyalty and office in terms of s 31D(2) of the Constitution, pursuant to the President’s re-election and assumption of office on 1 April 2002, he had not yet entered upon his office, was not a Minister and could not, therefore, present the amendment Bill without having previously obtained leave. In my view, there is merit in this contention.

However, before considering this issue in some detail I shall set out the relevant constitutional provisions. They are found in sections 28, 31D and 31E of the Constitution.

Section 28, in relevant part, reads as follows:

“28. Qualifications and election of President

(1) – (2) …

3. An election to the office of President shall take place within ninety days –

1. before the term of office of the President expires in terms of section 29; or

2. …

3. …

3. A person elected as President shall assume office –

1. where he has been elected in accordance with paragraph (a) of subsection (3), on the expiry of the term of office of the previous President;

2. …

(6) Before entering upon his office, a person elected as President shall take and subscribe before the Chief Justice or other judge of the Supreme Court or the High Court the oaths of loyalty and office …” (emphasis added)

Section 31D, in relevant part, reads as follows:

“31D Ministers and Deputy Ministers

1. The President -

(a) shall appoint Ministers and may assign functions to such Ministers …; and

(b) may appoint Deputy Ministers of any Ministry …

2. Any person appointed under this section shall, before entering upon his office, take and subscribe before the President or some other person authorized by the President in that behalf the oaths of loyalty and office …

(3) – (4) …” (emphasis added)

And section 31E, in relevant part, reads as follows:

“31E Tenure of office of Vice-Presidents, Ministers and Deputy Ministers

1. The office of a Vice-President, Minister or Deputy Minister shall become vacant –

1. – (b) …; or

(c) upon the assumption of office of a new President.

2. – (3) …”

In my view, the reference in s 31E(1)(c) of the Constitution to “a new President” simply means a newly elected President, whether or not he is an incumbent President who has been re-elected.

In this regard, it is pertinent to note that the Constitution does not at all distinguish between the assumption of office by the incumbent President who has been re-elected, and the assumption of office by a person elected as President for the first time. The same rules govern the assumption of office by both.

In the first place, where an election to the office of President takes place in terms of s 28(3)(a) of the Constitution, i.e. within ninety days before the term of office of the President expires, s 28(5)(a) of the Constitution provides that the person elected as President shall assume office on the expiry of the term of office of the previous President. That applies, not only to a person elected as President for the first time, but also to an incumbent President who has been re-elected.

Secondly, in terms of s 28(6) of the Constitution, before entering upon his office, a person elected as President is obliged to take and subscribe before the Chief Justice or other judge of the Supreme Court or the High Court the oaths of loyalty and office. That applies to an incumbent President who has been re-elected and to a person who has been elected as President for the first time.

And thirdly, in terms of s 31D(1)(a) of the Constitution the President is obliged to appoint Ministers. There is nothing in that section which exempts from that obligation an incumbent President who has been re-elected.

It was common cause that the presidential election held on 9 and 10 March 2002 was held in terms of s 28(3)(a) of the Constitution, and that the incumbent President was re-elected. That election was held because the President’s term of office was due to expire on 1 April 2002.

Pursuant to his re-election, the President assumed office, in terms of s 28(5)(a) of the Constitution, “on the expiry of the term of office of the previous President”, which was 1 April 2002. It is significant that the Constitution describes him as “the previous President” when it refers to him in his previous term of office.

In addition, it is pertinent to note that pursuant to the President’s re-election and assumption of office the second respondent, and the other members of the Cabinet which was in existence before the President entered upon his office on 1 April 2002, took and subscribed before the President the oaths of loyalty and office in terms of s 31D(2) of the Constitution on 26 August 2002.

In my view, the President obviously appreciated that he was a new President in terms of s 31E(1)(c) of the Constitution.

I am, therefore, satisfied that in terms of s 31E(1)(c)of the Constitution the second respondent ceased to be a Minister upon the assumption of office by the President on 1 April 2002. He could not, therefore, present the Amendment Bill on 7 May 2002 without previously having obtained leave.

Consequently, the Amendment Act was enacted in violation of the peremptory provisions of Standing Order 102(2)(i), and is, therefore, invalid and of no force or effect.

Having arrived at that conclusion, I do not consider it necessary to deal with the applicant’s submissions in respect of the alternative order sought by him, i.e. “that the amendment of ss8 and 9 of the Land Acquisition Act [Chapter 20:10] made by the Land Acquisition Amendment Act No 6 of 2002 violates ss 16(1)(b) and 18(9) of the Constitution and (is) consequently invalid and of no force or effect.”

In the circumstances, I would have made the following order:

1. It is declared that the Land Acquisition Amendment Act No 6 of 2002 was not lawfully enacted and is consequently invalid and of no force or effect.

2. The costs of this application shall be paid by the respondents, jointly and severally, the one paying the others to be absolved.

Stumbles & Rowe, applicant’s legal practitioners

Civil Division of the Attorney-General’s Office, respondents’ legal practitioners