Court name
Supreme Court of Zimbabwe
Case number
SC 32 of 2005
Civil Appeal 6 of 2005

S C Shaw (Pvt) Ltd. v Minister of Lands and Agricultural Resettlement (06/05) (SC 32 of 2005, Civil Appeal 6 of 2005) [2005] ZWSC 32 (11 September 2005);

Law report citations
Media neutral citation
[2005] ZWSC 32


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
limine
which 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
limine
that 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