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(HERALD) Court ruling on farm equipment progressive

Court ruling on farm equipment progressive
By Godwills Masimirembwa

IN ITS November 9-15, 2007 issue, the Zimbabwe Independent carried a commentary titled "Why we need a new constitution." The commentary was on the Supreme Court judgement in the case of Manica Zimbabwe Limited and Two Others vs The Minister of State for National Security, Lands, Land Reform and Resettlement in the President’s Office and Another, SC 31/07, in which white commercial farmers were challenging the constitutionality of the compulsory acquisition of farm equipment by the State.

The Supreme Court held that the acquisition was lawful.

The commentary is the familiar accusatorial repertoire against the Government and the judiciary that has become the trademark of the so-called independent media in Zimbabwe.

The editor of the Zimbabwe Independent does not agree with the finding by the Supreme Court that the compulsory acquisition by the State of farm equipment originally owned by white commercial farmers "in terms of the Act (the Acquisition of Farm Equipment or Materials Act) is for the purpose of furthering the land reform programme’’.

The Supreme Court went on to say "The land reform programme is not a private activity but is a programme that is beneficial to the public generally and certainly to sections of the public." This, the Zimind editor does not agree with.

Further, the said editor takes issue with the Supreme Court’s finding on the question of compensation for farm equipment so compulsorily acquired.

The constitution provides for fair compensation to be paid within a reasonable time.

The Chief Justice said "The plain language of section 16 (1) (c) of the Constitution is that compensation should be fair and that it should be paid within a reasonable time.

"I see nothing in the language of the section or the context of the provision that suggests such payment cannot be made in instalments. In my view, the fact that the Constitution is silent on this issue, that is, it does not specifically prohibit or specifically authorise payments in instalments, cannot be construed as prohibiting payment by instalments. I am not persuaded by the applicant’s argument that section 16(1) (c) is to be construed as providing for one lump sum payment.

"As I have stated, section 16 (1) (c) of the Constitution is intended to provide for two things:

l payment of fair compensation; and

l that such payment be made within reasonable time.

To interpret the clear wording of section 16 (1) (c) as outlawing payment in instalments would be doing violence to the plain language of a section that simply provides that the payment be fair and that it should be made within reasonable time.’’

The Zimind editor says of the judgement: "The Supreme Court ruling is remarkable more for its implications than what it actually says. The law is so vague that extraneous factors can be added to demonstrate why the compulsory acquisition of private property was for the benefit of the public."

The Zimind editor needs to be reminded that there is a legal subject called "Interpretation of Statutes." It is a universally recognised subject, which lays down the rules and principles that a court uses in interpreting statutes. In his book "Statutory Interpretation", Christo Botha says "the written or spoken words are imperfect renderings of human thought, and in the case of legislation, the courts are obliged to use specific rules of interpretation to construe the meaning of the documents."

Christo Botha quotes Devenish, who, in 1992 made the following statement concerning a new post-apartheid constitution in South Africa: "A new post-apartheid constitution for South Africa should contain a provision authorising a teleological method or theory of interpretation."

A teleological method of interpretation is a value-laden method, which addresses the fundamental values underpinning a constitution.

While the Constitution of Zimbabwe does not contain a provision of this nature, it is clear that judges play an important role in interpreting statutes in favour of or against a particular social, political and economic dispensation.

The Zimind editor’s commentary is obviously value-laden, seeking a constitution that protects private property without regard to how it was acquired, its impact on justice, fairness and ultimately social harmony.

The editor’s commentary takes as given and correct the Rhodesian economic dispensation. This is why he sees nothing wrong with whites owning farming equipment while blacks who lived under the same dispensation had nothing.

The legal dispensation that the editor cries for, the one that guarantees private property at any cost, that does not address past injustices, is diametrically opposed to the post-independence legal dispensation that of necessity has to correct past injustices and usher, uphold and protect a just social, political and economic legal dispensation. It is therefore not difficult to appreciate the lack of convergence between the interpretation of the Zimbabwean Constitution as rendered by the Supreme Court and that of the Zimind editor.

The value systems at play are like chalk and cheese.

The Supreme Court had no difficulty in concluding that the compulsory acquisition of farm equipment was in furtherance of the Land Reform Programme because section 6 of the Acquisition of Farm Equipment or Material Act, under whose provisions the compulsory acquisition was done, reads:

(1) "Subject to this Act, the acquiring authority may, either by agreement or compulsorily, acquire any farm equipment or material not currently being used for agricultural purposes on any agricultural land, where the acquisition is reasonably necessary for the utilisation of that farm equipment or material on any agricultural land."

Section 10 (1) puts the matter beyond doubt as follows: "Subject to subsection (2), any farm equipment or material acquired in terms of this Act shall vest in the State for the benefit of the Land Reform Programme."

The Land Reform Programme was instituted to address injustices created by colonialism. Land was forcibly taken from blacks and had to be returned to them through the Land Reform Programme. The whole colonial set up was wrong, allowing whites to loot our forefathers’ cattle and other property without compensation.

The Land Reform Programme, had of necessity to address the issue of farm equipment as it is in truth and fact part of the farm or the necessary tools for carrying out farming activities.

The justification for the compulsory acquisition of farm equipment is its connectivity to the land.

The Land Reform Programme, including the compulsory acquisition of farm equipment cannot be understood by a person who sees nothing wrong with colonialism and its attendant evils.

This explains the Zimind editor’s statement "In this case justification for the seizure of the farmers’ equipment was not because they had violated the law or done anything illegal, but that Government, of its own volition, embarked on the Land Reform Programme in 2000 allegedly for the ‘benefit’ of the public generally or a section of the public. Realising that it didn’t have adequate resources to equip those who had allegedly benefited, it turned on the weakest group, which already owned equipment and seized it. And we are told this is lawful."

The Zimind editor conveniently forgets to tell his readers that whites benefited and accumulated wealth through subjugating blacks. This is the plain and simple truth about colonialism that any serious journalist should tell the world.

This injustice had to be reversed through an equitable redistribution of the wealth so unjustly accumulated. This is the plain and simple truth about the obligation of the Government of Zimbabwe to black people after independence.

To write as if whites were equal citizens with blacks during the colonial era, with both races having equal access to resources, with whites having owned land and accumulated wealth, while blacks on their own failed to achieve the same on an equal playing field, is both myopic and a dangerous misrepresentation of history. To simply say whites "owned" equipment without explaining the circumstances leading to the whites "owning" and blacks "not owning" farm equipment is a dereliction of a journalist’s duty to inform and educate the public.

The compulsory acquisition of farms and farming equipment owned by whites was both just and fair. Without it, the liberation struggle would have been in vain.

The statutory provisions relating to the compulsory acquisition of farm equipment are therefore constitutional and are not in breach of the Declaration of Rights.

There was no lack of proper planning and adequate preparation regarding the Land Reform Programme. The truth is that whites, despite knowing that they were unjustly occupying vast tracts of land, refused to voluntarily surrender the same to the Government for resettlement purposes. The Government then had to move in and compulsorily acquire land in the midst of resistance from white farmers.

The Zimind editor further attacks the judgement on the ground that the court did not bother to inquire whether indeed the equipment so seized benefited the public "generally", arguing that the white farmers have a reasonable suspicion that their equipment was seized for the benefit of a few politically connected individuals.

This argument ought to be dismissed out of hand with the contempt it deserves.

The Acquisition of Farm Equipment or Material Act provides for the payment of adequate or fair compensation. The Zimind editor does not agree with the Chief Justice’s interpretation of the constitutional provisions regarding the payment of compensation arguing that the Constitution is defective by not providing a time limit within which compensation has to be paid saying it is "vague on what constitutes adequate and fair compensation, by failing to prescribe whether payment will be one lump sum or instalments."

Armed with his three "compelling" observations, the Zimind editor then calls for "a new, people-centred constitution" — but wait, the man is afraid of the same people power he advocates as he makes a volte-face, saying "not in the populist political sense, but to address real inadequacies in the basic law."

The inescapable dilemma the Zimind editor finds himself in is that if he accepts that a constitution acquires constitutional legitimacy only if it enshrines the values of the populace at large, in other words, embraces the populist agenda, then his defence of the indefensible Rhodesian relic as personified by a few recalcitrant whites will be in tatters.

The fact, Mr Zimind editor, is that for the majority of Zimbabweans, the Land Reform Programme and its ancillary appendages like the compulsory acquisition of farm equipment form the core of the "people-centred constitution" you talk about, for the purpose, the driving spirit of the liberation struggle was the repossession of our land.

Now that our Constitution addresses the fundamental desire of the Zimbabwean populace, inadequacies can be rectified through constitutional reform, rather than a new constitution.

Our Constitution guarantees private property to the extent that such rights do not adversely impinge on the rights of others. The irrefutable historical position prior to the land reform programme is that the private property rights acquired by whites were at the expense of the rights of blacks.

Consequently, constitutional provisions extinguishing or proscribing those illegitimate private rights are fair and a sine qua non to a democratic dispensation in any country.

Private investors who intend to return Zimbabweans to Rhodesian days can keep their investment. We do not need them. The landmark Supreme Court judgement upholding the State’s right to compulsorily acquire farm equipment in furtherance of the Land Reform Programme taught me one lesson — that a purposive interpretation of legislation is the surest way of achieving justice. It is a good judgement that has consolidated the Land Reform Programme.

Labels: COURTS, ZIMBABWE

posted by MrK @ 3:59 AM