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(HERALD) Supreme Court in landmark ruling

Supreme Court in landmark ruling
Court Reporter

THE Supreme Court has made a landmark ruling that allows the Government to acquire all farming equipment and machinery belonging to white former commercial farmers whose farms were compulsorily acquired for resettlement. Yesterday’s ruling follows a constitutional application by a group of former commercial farmers challenging the acquisition of their equipment stored at Manica Zimbabwe Limited.

"In the result, the application fails and is hereby dismissed," said Chief Justice Godfrey Chidyausiku.

Government acquired the equipment under the Acquisition of Farm Equipment (or) Material Act (Chapter: 18 23) which the farmers sought to invalidate.

After a close scrutiny of legal points raised by the farmers, Justice Chidyausiku considered first whether the Act provided that the acquisition was for the purpose beneficial to the public generally or any section of the public.

The court agreed with the State’s contention that the compulsory acquisition in terms of the Act was for purposes of furthering the land reform programme.

Justice Chidyausiku said the land reform programme was not a private activity but a scheme meant to benefit the public generally and certainly a section of the public.

"It is on this basis that I am satisfied that the compulsory acquisition in terms of the Act is for a purpose beneficial to the public generally or to a section of the public," he said.

"Accordingly, I am satisfied that the first ground of challenge to the Act fails."

On the second ground that the Act does not provide or fails to provide for the payment of fair compensation within reasonable time as required by Section 16 (1) (c) of the Constitution of Zimbabwe, Justice Chidyausiku was not convinced by the farmers’ interpretation of the law on that issue.

"The payment, in view, has to be made within a reasonable time. Whether payment will be in one lump sum or in instalments is something the Constitution chose not to prescribe," he said.

He noted that the outside time limits set out in the Act were indications of what the legislature considered as the outer limits of reasonable time for payment.

"They do not circumscribe the discretion of the court, which will decide the reasonableness of time for payment on the basis of the facts of each case. Accordingly, the second challenge fails," he said.

The court also found that the law was clear that where the Administrative Court refuses to confirm the acquisition of farm equipment, it would order the acquiring authority to return the property to the owner.

It noted there was no conflict between provisions of the Constitution of Zimbabwe and the Act complained against.

The farmers’ contention that the Act made no provision for the claimant to make an application to the higher court for determination of any question relating to compensation and appeal to the Supreme Court against such decision was also dismissed.

Government acquired the machinery in furtherance of the land reform programme.

Manica Zimbabwe, the storage company, Chirobi (Private) Limited, Dundori (Private) Limited and Mukoko (Private) Limited, owned by farmers whose equipment and machinery was held by the former, were the applicants in the constitutional challenge.

The farmers argued that the Act, which came into force in September 2004, was invalid because it failed to comply with the Constitution of Zimbabwe and in particular Section 16.

Through their lawyer Advocate Adrian de Bourbon, the farmers impugned the Act on four grounds.

They said that the Act does not provide for the acquisition of farm equipment for purposes provided in the Constitution.

The Act, Adv de Bourbon argued, does not provide for the payment of fair compensation within reasonable time as required by the supreme law.

Adv de Bourbon also argued that the Act was unconstitutional because it does not allow a person whose farm has been acquired to apply to the High Court or any other court for the immediate return of the acquired property or for fair compensation.

The Act does not enable an applicant to apply for compensation or to appeal to the Supreme Court again as provided for in the superior law, the farmers argued.

The farmers further attacked the Act claiming that it permitted the executive to acquire the equipment for private as opposed to public purpose to sell it for commercial advantage.

This was strongly opposed by the Government through the Minister of Lands, Land Reform and Resettlement, Cde Didymus Mutasa.

He said the Act explicitly spelt out that the acquisition was in furtherance of the land reform programme, that was beneficial to the public generally or a section of the public.

This, he argued, made the law fall within certain sections of the Constitution of Zimbabwe.

He urged the court to dismiss the application for lack of merit arguing that the law was proper and could not be faulted as there was no conflict with the Constitution.

Justice Chidyausiku heard the case with Justices Misheck Cheda, Vernanda Ziyambi, Elizabeth Gwaunza and Paddington Garwe, who all concurred with his ruling.

Labels: COURTS, WHITE FARMERS, ZIMABWE

posted by MrK @ 8:47 AM