Constitutional Interpretation

Yoramu and Others v PG (CCZ 245/12) [2016] ZWCC 2 (21 January 2016);

Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – right to protection of the law – prosecution of former farm employees for unlawfully remaining on farm after acquisition – legislation creating an offence to do so constitutional – no constitutional issue arising

Land – acquisition – former employees remaining on farm – no right to do so – employment ceased on acquisition of farm – liable to prosecution for occupying gazetted land without lawful authority

The applicants were former employees on a farm that had been expropriated for resettlement and had been allocated to other beneficiaries. They did not vacate the farm when it was expropriated and continued to live and work on it.
The respondent had ordered that they vacate the farm as they were occupying the land unlawfully. They refused to do as they held that as part of their conditions of employment with the previous owner, he gave them accommodation, food and facilities. They maintained that the acquisition of the farm had not meant the automatic termination of their contract of employment, rather that it had resulted in a transfer of the farming undertaking and consequently, the beneficiaries had assumed the position of employer, with the concomitant responsibility of maintaining terms and conditions similar to those they previously enjoyed.

The court first had to decide whether a constitutional issue arose before the Court, if not then there would be no need to hear the matter any further.  Secondly, whether the applicants were guilty of a criminal offence and if so, whether the applicants would remain employees of the new farm owners.
The court held that Section 3 of the Gazetted Lands Act had been scrutinized by the Supreme Court on numerous occasions and was found to be constitutional. Therefore, the court re-affirmed  the provision that criminalized their unlawful occupation and held that there was no constitutional issue to be referred.

The matter was dismissed.

Hopcik Investments (Pvt) Ltd. v Minister, Environment, Water & Climate & Another (HH 137-16, HC 1796/14) [2016] ZWHHC 137 (17 February 2016);

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to water (s 77) – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

Human rights – right to water – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

The applicant sought an order compelling the respondents to supply water to its premises which they had failed to supply for about three years.  The applicant contended that the respondents were not doing enough to ensure adequate supply of water to residents. 

The respondents averred that the situation was out of their hands as they faced various obstacles for effective service delivery and further that when s 183 of the Urban Councils Act (the empowering provision) was enacted, the legislature was mindful of the fact that the respondents may not be able to provide water to residents because of the use of the word “may’’ in the section and that their failure to provide water was justifiable.

The court had to decide on the interpretation of the empowering provision and whether the reasons for failure were justifiable. The court held that the word “may” in s 183 was recognised that there were instances when a council may fail to provide and supply adequate water. The legislature was alive to the possibility that the institution delegated to supply the water, may at some stage, have been unable to comply with the requirement.

However, if such failure was justifiable, the court held that the explanation given for the respondent’s failure to supply water was simply lack of resources. It did not appear that any effort was being made to ensure that the applicant got adequate supplies of water and as such fell short of the justifiable threshold. The application was successful. 

Subscribe to Constitutional Interpretation