REPORTABLE (29)

Judgment No SC 32/05

Civil Appeal No 6/05

S C SHAW (PRIVATE) LIMITED v THE MINISTER OF LANDS AND AGRICULTURAL RESETTLEMENT

SUPREME COURT OF ZIMBABWE

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

HARARE MARCH 10 & SEPTEMBER 12, 2005

A.P. de Bourbon S.C., with him J.B. Colegrave, for the appellant

N. Mutsonziwa, for the respondent

CHIDYAUSIKU CJ: This matter comes before this Court on referral from the Administrative Court. The referral is in terms of s 24(2) of the Constitution which provides as follows:-

“24 Enforcement of protective provisions

(2)  If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings shall, refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

The factual background of this matter is briefly as follows. The Minister of Lands, Agriculture and Resettlement ((as he then was called) and who hereinafter is referred to as “the respondent”) sought confirmation of the acquisition of ten properties which are registered under the name of SC Shaw (Private) Limited (hereinafter referred to as “the appellant”). The confirmation was sought in terms of s 7 of the Land Acquisition Act [Chapter 20:10](hereinafter referred to as “the Act”). Initially the matters were heard separately but were consolidated by consent. The consolidated matters were heard by the Administrative Court on 22 September 2004.

At the commencement of the hearing in the Administrative Court the appellant raised a number of preliminary objections or points in liminewhich were two-fold.

Firstly, the appellant raised the issue of the respondent’s failure to comply with the procedural requirements of the Act when he acquired six of the ten properties of the appellant. The court a quosaw merit in this and the application for confirmation was dismissed.

Secondly, the appellant raised a number of constitutional issues as points in limine. Some of the constitutional points in liminewere dismissed as vexatious while others were found to have merit and referred to this Court. In dismissing one of the points in liminethat the court considered vexatious the learned President of the Administrative Court made the following observation:-

“I now move on to deal with other issues raised on pages 2 and 3 of the respondent’s heads of argument, namely paragraphs 5.1 to 5.3. It is important for me to re-state what is stated in these heads. It was stated in the heads:-

‘Members of the government, which applicant is a minister have been party to providing improper inducements by making and exerting improper pressure on the judges of the Supreme Court, the High Court and the Administrative Court to ensure that such persons give judgments that are favourable to the acquiring authority, thus rendering the judicial officers in question judges in their own cause, thus denying the respondent a fair hearing by an independent and impartial court as required by section 18(9) of the Constitution. The respondent, in particular, wishes to lead evidence regarding improper inducements to members of the Administrative Court and wishes to lead evidence regarding inducements given to judges. Such evidence will be tabled at the commencement of the hearing.’

Then it went on:- (sic)

‘The respondent accordingly requests this honourable court in terms of section 24 of the Constitution to refer to the Supreme Court questions of whether or not the acceptance of offers of land by judges prior to the determination of the validity of the acquisition of the land together with improper pressures brought to bear on judges by members of the government and cabinet is compatible with constitutional concept of a fair trial before an independent tribunal.’

Counsel for respondent indicated in court that despite the fact that he did not himself prepare the heads, he stood by them. He went on to make submissions on the alleged improper pressure brought upon judicial officers. Departing from the specific averments in the heads of argument that evidence was going to be tabled in this regard, counsel went on and stated as follows:-

‘I want to say at the onset that I am not in a position to lead evidence on improper pressure brought upon judicial officers. However, I will reiterate the point that I made this morning that practitioners must have a huge concern that some powerful people living in government and other high places are endeavouring to exert pressure on unfortunate judicial officers. You know better than I that it was common knowledge what befell Mr Majuru. He was a colleague of yours, a brother member of the Bench. Indeed, before he was elevated to the Bench he was a colleague of my learned friend.’

Now the court did ask counsel to shed more light by way of evidence on what befell Majuru and counsel retorted:- ‘I cannot take this particular matter any further at the moment for reasons I have already stated.’

Now, this court takes the view that the allegations raised by counsel against members of the Bench are extremely serious allegations. Such allegations naturally scream to be supported by evidence. If such allegations are true, then it goes without saying that there is no judiciary to talk about in this country. Commenting on respondent’s averments, applicant’s counsel was of the view that respondent’s position was an attack on the Bench and that such allegations were spurious and unsubstantiated and as such must be censured by this court. I agree.

The allegations raised against the Bench were expressed in unsupported manner. It is unacceptable to this court that such senior members of the legal fraternity would gather such courage to denigrate the Bench and hope to get away with it. Such an approach lacks both professionalism and the dignity which is invariably associated with members of the legal fraternity particularly those who are officers of this court. It was wrong for counsel to try and use the unceremonious departure of Mr Majuru from service as indicative of conclusive evidence on the alleged pressure brought to bear upon members of the Bench in land related matters. One does not speculate on evidence. You table such evidence for scrutiny. I am guided by very simple foundational principles in litigation, that is, if one cannot sustain certain allegations by way of evidence, then one must not raise such allegations. What counsel did was merely to cast aspersions on the Bench. His actions border on naked contempt of the Bench.

The court will take judicial notice of the fact that at the time Mr Majuru left the Bench, the case which prompted his departure had nothing to do with the allocation of land and that both the public and private media in this country gave conflicting views surrounding his departure from service. There was no evidence led in this court to try and link Mr Majuru to the alleged inducements to ensure that he gave a judgment or judgments that were favourable to the acquiring authority in the manner captured in item 5.1 or in any other manner stated by counsel for the respondent.

In the final analysis, on this particular issue, I made the finding that the bold allegations made by counsel for respondent do not establish a prima faciebreach of section 18(9) of the Constitution. It is clear that the allegations in the form they have been presented are clearly frivolous and vexatious. It would be an abuse of the process of the Supreme Court to refer such issues to it. Indeed, it would be a miscarriage of justice on my part to do so. Accordingly, this particular issue cannot be referred to the Supreme Court.”

I agree with the learned President of the Administrative Court on the admonition of counsel for making irresponsible and unprofessional submissions. I, however, wish to add that courts in Zimbabwe, including the Administrative Court, have a responsibility to protect their dignity. Where legal practitioners, who are officers of the court, and as such, are expected to know better, make totally irresponsible submissions scandalizing the court mere admonition is inadequate and more appropriate action should be taken to punish such legal practitioners for contempt of court. I have previously issued warnings in this regard. Time for admonition and warnings is over. The courts should now deal firmly and decisively with such wayward legal practitioners.

The learned President of the Administrative Court however found merit in and referred the following issues to this Court:

1. Whether or not the amendments to Statutory Instrument 394 of 1998 (Administrative Court Rules) by Statutory Instrument 143A of 2004 which gives respondent two days within which to file its heads of arguments impinge s 18(9) of the Constitution of Zimbabwe which 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.”

2. Whether or not s 3(3) of Act 1 of 2004 impinges s 16(1)(a) of the Constitution by fettering the discretion of the Administrative Court.

3. Whether or not s 9(2) of Act 1 of 2004 impinges s 16 (1)(a) of the Constitution by fettering the discretion of the Administrative Court.

Section 4(4)(b) of the Rules that gave a respondent, in confirmation proceedings in terms of s 7 of the Act, two days in which to file heads of arguments in response to those filed on behalf of the acquiring authority has been amended to extend the dies induciafor the filing of a respondent’s heads of argument. The cause for complaint has fallen away and the issue was not pursued.

The arguments in respect of the constitutional validity of sections 3(3) and 9(2) of the Land Acquisition Amendment Act (hereinafter referred to as Act 1 of 2004) are substantially the same. I intend, therefore, to consider the referrals set out in paragraph 2 and 3 above together.

The appellant submits that both sections 3(3) and 9(2) of Act 1 of 2004 are irreconcilable with s 16(1)(a) of the Constitution as they purport to restrict or inhibit consideration of factors which might otherwise be relevant to the issue of whether it is “reasonably necessary” to acquire the land in question. Put differently, the appellant argues that the two sections fetter the discretion of the Administrative Court in determining what constitutes “reasonably necessary” in the process of acquiring land in terms of the Act.

The impugned provisions provide as follows:-

“3. Repeal of sections 6A and 6B of Cap. 20:10

(3) The fact that –

(a) any land was offered in substitution for agricultural land required for resettlement purposes, whether in terms of section 6A or 6B of the principal Act or otherwise; or

(b) any portion of agricultural land required for resettlement purposes was offered in substitution for the whole of such land, whether in terms of section 6A or 6B of the principal Act or otherwise;

(c) the offer of any land or portion of agricultural land was accepted in terms of section 6A or 6B of the principal Act and, before the commencement of this Act, was confirmed by the Administrative Court after the owner had initially objected to the proposed acquisition in terms of section 5 of the principal Act;

shall not constitute valid grounds for an objection to the compulsory acquisition of the whole or part (as the case may be) of the agricultural land required for resettlement purposes, nor shall it form the basis of any claim or right in law.

9. Declaratory provisions respecting application of the Land Reform Programme

(2) the avoidance of doubt it is declared that –

(a) the criteria listed in the Land Reform Programme for the acquisition of agricultural land required for resettlement purposes are not binding on the acquiring authority; accordingly the fact that the land to be acquired -

(i) is a plantation farm engaged in large-scale production of tea, coffee, timber, citrus fruit, sugar cane or other plantation crops;

(ii) is an agro-industrial property involved in the integrated production, processing or marketing of poultry, beef and dairy products and seed-multiplication;

(iii)is within an export processing zone or operates under a permit issued by the Zimbabwe Investment Centre;

(iv) is an approved conservancy;

(v) is the only piece of land belonging to the owner;

shall not constitute valid grounds for any objection to the compulsory acquisition of the land nor shall such criteria form the basis of any claim or right in law;

(b) the total hectarage of land required for resettlement purposes specified in the Land Reform Programme is indicative only of the minimum hectarage of such land: accordingly, the acquiring authority is not prevented by that Programme from acquiring land in excess of the hectarage so specified.” (underlining is mine)

Counsel for the respondent submitted that the background to the enactment of sections 3(2) and 9(2) of Act No 1 of 2004 was a change in policy in the criteria to be used in the identification of the land that was to be compulsorily acquired in terms of the Act.

The first Land Reform Programme Document published in April 2001 had a set of criteria that was used in the identification of farms for acquisition. The criteria in that document exempted a certain category of farms from acquisition. In other words once a farm fell into the exempted category it would not be acquired. Examples of land or farms excluded from acquisitions were plantations, agro-industrial properties, property with Export Processing Zone and Zimbabwe Investment permits etc.

The increase in demand for land led to the revision of the first Land Reform Programme Document. The revised document amended the initial document by removing the protection previously accorded to certain land. The protection from acquisition previously afforded plantations and agro-industrial properties in terms of the initial document was removed. The enactment of sections 3(3) and 9(2) of Act No 1 of 2004 was intended to realign the law and the Revised Land Reform Programme Document.

It was argued that as sections 3(3) and 9(2) of Act No 1 of 2004 were merely bringing the law into line with the revised Land Reform Programme Document, therefore, they could not be unconstitutional.

It was also argued in the alternative that in the event that this Court was not persuaded by the above argument it should not strike down sections 3(3) and 9(2) of the Act No 1 of 2004 but instead read them in such a manner that they conform with sections 16 and 16A of the Constitution. The intention of the legislature was to use the same test in acquiring any farm for resettlement purposes, the criteria being “reasonable necessity”.

The respondent also argued that section 3(3) of Act 1 of 2004 does not fetter the Administrative Court’s discretion. It only seeks to remove the consideration that the property being acquired was left out as a result of a settlement in terms of the repealed sections 6A and 6B of the Land Acquisition Act [Chapter 20:10] and places the property being acquired into the realm of being subjected to the test of reasonable necessity. The removal from protection from compulsory acquisition on the basis that the acquisition was once done in terms of sections 6A and 6B of the Land Acquisition Act [Chapter 20:10] is meant to place the respective properties being acquired in the same position with that being acquired for the first time. This development was necessitated by the need to acquire more land. The land required for resettlement was initially set at 6 million hectares. This was subsequently revised to a minimum of 11 million hectares. So the high demand for land for resettlement necessitated the enactment of sections 3(3) and 9(2) of Act No 1 of 2004 and the repealing of sections 6A and 6B of the Land Acquisition Act [Chapter 20:10] to facilitate the acquisition of more land for resettlement purposes. The respondent contends that the said provisions do not, in any way, fetter the discretion of the Administrative Court.

The respondent further submitted that the test applicable to properties affected by sections 3(3) and 9(2) of Act 1 of 2004 remains the same. The respondent still has to prove that it is “reasonably necessary” to acquire such property. Accordingly, the allegations that the sections impinge upon section 16(1)(a) of the Constitution are far fetched and premised on an incorrect interpretation of the provisions.

It is quite clear that the respondent, as the acquiring authority, prohibited himself from acquiring certain land such as plantations. The prohibition was enacted into law in the form of the repealed sections 6A and 6B of the Act. The prohibition was not necessary in terms of the Constitution. The respondent now wished to liberate himself from self imposed restriction by repealing sections 6A and 6B of the Act. The respondent sought to do so by enacting the impugned sections 3(3) and 9(2) of Act 1 of 2004. In my view, if sections 3(3) and 9(2) of Act 1 of 2004 merely repealed sections 6A and 6B of the Act they would not fall foul of the Constitution. I, however, agree with the appellant’s contention that the impugned provisions go beyond the mere repeal of sections 6A and 6B of the Act.

The impugned sections, in effect, prohibit the Administrative Court from taking into account factors previously set out in sections 6A and 6B of the Act in determining whether “reasonably necessary” grounds for acquisition of the land existed. That prohibition, ipso facto, inhibits the discretion of the Administrative Court. Put differently, the appellant contends that by effectively prohibiting the Administrative Court from considering that an acquired farm is a “plantation” in its determination of the question whether “reasonably necessary” grounds for the acquisition of the land existed the impugned sections are fettering the discretion of the Administrative Court. The appellant’s argument in this regard is succinctly set out in paragraphs 3 to 7 of the heads of argument wherein he submitted:-

“3. There can be no doubt at all that it is the duty of the Administrative Court in determining confirmation proceedings in terms of section 7 of the Act, to have the closest possible regard to what is ‘reasonably necessary’. Unless he is satisfied that the acquisition is ‘reasonably necessary’ for one of the three purposes set out in subparagraph (b) of section 7(4) of the Act, he cannot confirm the acquisition. More importantly, for present purposes, this provision essentially mirrors section 16(1)(a)(i) of the Constitution, which is the highest law of the land.

4. Prima facie, section 9(2) of Act 1 of 2004 does not restrict or inhibit a consideration of what is ‘reasonably necessary’. The argument which is currently being proffered by the Civil Division, representing the acquiring authority, is essentially the same in all cases where the point has arisen. It is submitted, on behalf of the acquiring authority, that the provisions are declaratory only and ‘ … do not in any way interfere with the court’s discretion’.

5. This argument is, with respect, not easy to follow because although the five possible objections set out in subparagraph (a) of section 9(2) of the Amending Act (Act 1 of 2004) refer specifically to the ‘ … compulsory acquisition of the land …’, which is the concern of section 8 of the Act, the discretion of the acquiring authority may not be restricted or inhibited either. To clarify this, the acquiring authority is bound by section 16(1)(a) of the Constitution. It may only acquire land where ‘reasonably necessary’ for one of the three purposes set out in subparagraph (i) thereof. This is reflected in section 3(1)(b) of the Land Acquisition Act. Therefore, no act of Parliament may truncate what is ‘reasonably necessary’ in acquiring land for purposes of section 8 of the Act. Section 9(2) of the Amending Act (Act 1 of 2004) does just this. It gives the acquiring authority wider powers of acquisition because it limits what is ‘reasonably necessary’.

6. Section 8 of the Act (the acquisition provision) and section 7 thereof (the confirmation provision) are inextricably linked. If the erstwhile landowner could not protest the acquisition on the basis, let us say, that he only had one farm, he cannot logically make the same protest when it came to the confirmation proceedings. Thus section 9(2) of the Amending Act (Act 1 of 2004) restricts or inhibits the acquisition procedure at both the section 8 stage and the section 7 stage. In both instances the procedure is out of harmony with section 16(1)(a) of the Constitution.

7. The argument in relation to section 3(3) of the Amending Act (Act 1 of 2004) is precisely the same. The three factors set out therein, in subparagraphs (a),(b) and (c) may be very relevant to the question of reasonable necessity. No Act of Parliament, other than a constitutional amendment, can constitutionally restrict or inhibit the discretion of the acquiring authority in deciding what is ‘reasonably necessary’. Similarly, for the purposes of section 7, relating to the confirmation proceedings, the Administrative Court cannot be precluded from considering these factors in its determination of the reasonable necessity for the acquisition. It would first require an amendment to the Constitution.”

I am persuaded by the above submissions that sections 3(3) and 9(2), by prescribing what shall not constitute valid grounds for objection to compulsory acquisition have, in effect, fettered the discretion of the Administrative Court at the confirmation stage of the acquisition of land. An invalid ground of objection by operation of law, namely sections 3(3) and 9(2) cannot be a valid ground for opposing confirmation by the Administrative Court. The two processes, as the appellant correctly submits, are inextricably linked. The discretion of the Administrative Court cannot be fettered without amending the Constitution. It is for the Administrative Court to determine what constitutes or does not constitute a valid ground for acquisition of the land. Parliament cannot fetter that discretion without first amending the Constitution.

In the result sections 3(3) and 9(2) of Act 1 of 2004 are struck down as unconstitutional as they are inconsistent with section 16(1)(a) of the Constitution. The appellant is entitled to its costs.

SANDURA JA: I agree.

ZIYAMBI JA: I agree.

MALABA JA: I agree.

GWAUNZA JA: I agree.

Webb Low & Barry, appellant's legal practitioners

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