GOWORA
JCC:
[1] This
is an appeal against the entire judgment of the High Court, sitting
at Harare, in which it dismissed a constitutional application placed
before it. The appellants approached the court a
quo
seeking an order that section 4 and section 6(1)(b) of the Communal
Land Act [Chapter
20:04]
(hereinafter the “Communal Land Act”) be declared ultra
vires
the Constitution of Zimbabwe, 2013 (“the Constitution”). The
application was prompted by a series of legal instruments passed by
the Government which gave notice of the setting aside of 12,940
hectares in the administrative district of Chiredzi, initially for
'lucerne production.' A subsequent statutory instrument altered
the purpose of the reservation of the area to an “irrigation
scheme.”
[2] The
court a
quo
did not find merit in the application. It held that there was nothing
unconstitutional with the provisions of sections 4 and 6 of the
Communal Land Act. It accordingly dismissed the application. Irked by
that decision, the appellants appealed to this Court in terms of
section 175(4) of the Constitution.
FACTUAL
BACKGROUND
[3] The
appellants in this matter are members of the Hlengwe Shangani ethnic
group. They are peasant farmers who occupy tracts of land in the
Chilonga area in Chiredzi. They practise mixed farming. The
community occupies the south-eastern Lowveld of Zimbabwe,
particularly areas bordering or falling within Chikombedzi, Chiredzi,
Gonarezhou, Hippo Valley, Malilangwe, Mwenezi, and Triangle. The land
in question falls along the Save, Runde, and Limpopo Rivers. The same
ethnic group also occupies parts of Mozambique and South Africa. It
claims occupation of the land in question well before the advent of
colonialism in the 1890s.
[4] The
first and second respondents are Cabinet Ministers responsible for
the administration of the Ministry of Lands, Agriculture, Water,
Climate, and Rural Settlement and the Ministry of Local Government
and Public Works, respectively.
[5] The
third respondent is the President of the Republic of Zimbabwe
(hereinafter referred to as the “President”), with the fourth
respondent being the State's principal legal advisor.
[6] On
26th
February 2021, a statutory instrument, S.I.50/21, was published by
the Minister of Local Government, Urban, and Rural Development,
giving notice that, acting in terms of section 10 of the Communal
Land Act, he had set aside 12,940 hectares in the district of
Chiredzi for lucerne production. On the same date, the President,
acting under section 6 of the Communal Land Act, published S.I.51/21,
giving notice that a piece of land in extent of 12,940 hectares had
been set aside from the district of Chiredzi. It is common cause that
the two legal instruments contained errors. The first, S.I.50/21,
cited the wrong Minister as the administrative authority. This was
corrected by the publication of S.I.63A/21 on 9 March 2021 which
cited the Minister of Local Government and Public Works. In addition,
the purpose for the setting aside of the 12,940 hectares was altered
from that of lucerne production to an irrigation scheme. On the same
day, the President published S.I.72A/21. The Statutory Instrument
repealed S.I.51/21and gave notice that, the President, acting in
terms of section 10 of the Communal Land Act, had set aside a piece
of land in extent of 12,940 hectares in the district of Chiredzi for
the setting up of an irrigation scheme.
[7] Feeling
threatened by the imminent reservation of land within their area of
habitat, the appellants applied to the High Court (“the court a
quo”),
impugning the constitutional validity of section 4 and section
6(1)(b) of the Communal Land Act. The first appellant averred that
the land that had been set aside, in extent 12,940 hectares, formed a
significant part of their ancestral lands. He averred that the land
was part of their ancestral heritage and that the Hlengwe-Shaangani
communities had inhabited the area for over half a millennium. He
averred that, given the length of time the community had been in
occupation of the same, they could not be dispossessed of the land at
the mere whim of the respondents and that, as a result, the
reservation of the identified piece of land impacted on their
fundamental human rights.
[8] The
first appellant listed the fundamental rights contained in sections
51, 48, 71, 63, and section 56(1) of the Constitution of Zimbabwe as
being violated by the respondents actions. He asserted that sections
4 and 6(1)(b) of the Communal Land Act were the offending sections
that enabled the violation of their fundamental rights.
[9] Section
4 of the Communal Land Act was criticized as unconstitutional and
labelled a relic from the colonial era that reinforced the notion
that Africans could not own or vindicate property rights. The first
appellant challenged the status
quo,
which he alleged prevented “indigenous peoples” from owning
property rights to their ancestral homes in communal areas. Section 4
of the Communal Land Act was further impugned as being discriminatory
due to the absence of private individual ownership rights for
inhabitants of communal lands.
[10] He
averred that section 6(1)(b) of the Communal Land Act enabled the
excision of portions of communal land by the third respondent and
that this provision breached the property rights enshrined in section
71 of the Constitution. He tied this breach to the right to life as
protected by section 48 of the Constitution. Furthermore, he asserted
that the prospective loss of their ancestral land would negatively
impact on their right to dignity, which he tied to their ancestral
land.
[11] The
first appellant averred that their right to practise their culture
under section 63 of the Constitution would be affected by their
forced relocation from their ancestral lands. He posited that this
also violated their dignity. He stated that the impugned provisions
violated their community's fundamental human rights as enshrined in
the Constitution.
[12] The
appellants categorized the application before the court a
quo
as an attempt to reverse two hundred years of colonialism. The first
appellant alleged that there existed inconsistencies in the system of
land tenure in that the law had permitted the expropriation of
commercial farmland from white farmers through the Land Reform
Programme and yet, in contrast, the communal land ownership system
remained intact. He asserted that section 6(1)(b) of the impugned Act
enabled the expropriation of communal land without any due process
and compensation.
[13] He
submitted that the evolution of the Communal Land Act from the
purported racist Land Apportionment Act and the Tribal Trust Land Act
are regarded as incontrovertible evidence of its unconstitutionality.
He reiterated that the impugned sections were discriminatory as they
breached the appellants right to equal protection of the law
enshrined in section 56(1) of the Constitution.
[14] He
stated that the land was a source not only of their food but their
medicine as well. He averred that the proposed irrigation scheme was
dubious, and he felt it was just an excuse to scout for mineral
deposits in the area. The first appellant also insisted that the true
purpose of their displacement was to pave the way for lucerne
production in favour of a company named DenDairy (Pvt) Ltd.
[15] In
addition, the first appellant averred that there was no prior
consultation with the local people by the third respondent before the
exercise of the prerogative under section 6(1)(b) of the Communal
Land Act. This was said to be a breach of the Administrative Justice
Act [Chapter
10:28]
and, consequently, section 68 of the Constitution. He, therefore,
sought a retrospective order nullifying the notices published by the
respondents earlier in the year.
[16] The
first appellant embarked on a rendition of the background of his
community's occupation of the land. He submitted that the
community's existence in the territory had long been established
before the Mfecane upheaval in the 19th
century. To that end, he attached a case study by J.H. Bannerman that
provided an exposition of the history of the Hlengwe community. He
recounted clashes with the imperial white community that attempted to
establish irrigation systems in areas that contained the graves of
their ancestors. The first appellant stated that these graveyards
were now part of the land sought to be annexed by the third
respondent. He asserted that the prospective dispossession would
strip them of their cultural heritage.
[17] The
first appellant made extensive reference to international law in
support of the application. He indicated that the universal principle
of free prior informed consent (hereinafter “fpic”) was not
observed due to the outdated provisions of the Communal Land Act,
which did not mandate their inclusion in the decision-making process.
In addition, the first appellant cited article 17 of the Universal
Declaration of Human Rights to support his assertion that the
impugned Act was arbitrary in depriving them of their ancestral
property. Further allusion was made to the International Covenant for
Civil and Political Rights and the African Charter on Human and
People's Rights in support of the application.
[18] Concerning
the issue of locus
standi,
the first appellant averred that the application was anchored on
section 85(1)(d) of the Constitution. He asserted that it was a
matter of public interest as his community had a direct interest in
the matter. He conflated public interest with his community's
interests. Part of his reasoning was that the land question was the
essence of the struggle for liberation in Zimbabwe.
[19] The
second and third appellants also deposed to affidavits supporting the
constitutional application in the court a
quo.
They reiterated the same concerns regarding the negative implications
of the reservation of the land on their human dignity and other
related cultural rights. Accordingly, the appellants sought an order
declaring sections 4 and 6(1)(b) of the Communal Land Act ultra
vires
the Constitution.
[20] The
respondents opposed the application before the High Court. The fourth
respondent deposed to an opposing affidavit on behalf of all the
respondents. He raised a preliminary objection alleging the
misjoinder of the second and third respondents. He asserted that he
was also a victim of misjoinder in the proceedings as he had no legal
interest in the matter.
[21] As
to the merits, he refuted the appellants claim to ownership of the
reserved piece of land stating that their community was a mere
beneficiary of the communal land whose title was vested in the
President. He also refuted the appellants claim that the project's
true intent was not an irrigation project. Lastly, he highlighted
that, contrary to the appellants averments, section 12 of the
Communal Land Act provided for compensation in instances of
displacement from communal areas.
[22] He
further asserted that the State had engaged the Chilonga community
regarding the establishment of an irrigation project and that the
proposed project was not aimed at displacing the appellants
community. In addition, he highlighted that a relatively large
portion of the target area was uninhabited. He added that various
similar developmental schemes had been established in other communal
areas. The proposed project was, therefore, not out of the ordinary.
[23] The
respondents contended that the application was both frivolous and
vexatious and lacked a solid basis as the impugned provisions did not
militate against the fundamental rights of the appellants as
enshrined in the Constitution. He disputed the contention that the
Communal Land Act was a colonial construct and, in support of the
legislation in question, stated that it served a practical purpose:
to regulate the universal national development of communal land. He
stressed the existence of a compensation clause under section 12 of
the impugned Act, which was available and accessible to any
potentially affected parties.
[24] The
appellants replicated and filed answering affidavits. The first
appellant objected to the failure on the part of the respondents to
attach a notice of opposition to their opposing affidavit. He also
took issue with the fourth respondent deposing to an affidavit on
behalf of the first to third respondents.
[25] Regarding
the substance of the respondents opposition, the appellants averred
that the fourth respondent lacked the capacity to make assertions on
matters of government policy. The first appellant reiterated his
apprehension that valuable minerals had been discovered in the area
and that this discovery constituted the primary reason for the drive
to set aside the targeted portion of their ancestral communal land.
The appellants refuted the contention by the respondents that there
was prior consultation with the community before the impugned actions
were taken. They alleged that the community was not allowed to make
any meaningful submissions when the government delegation advised
them of the plan to annex the disputed territory. Further, meetings
with government officials were characterized as hostile and futile.
[26] Following
the hearing of the matter, the court a
quo
dismissed the application. The appellants argument regarding the
unconstitutionality of the impugned provisions was rejected. The
court was of the view that it was not sufficiently qualified to
provide a holistic solution to their predicament. The court a
quo
opined that the executive and legislature were better placed to
provide an effective remedy. Dissatisfied with the disposition a
quo,
the appellants filed the instant appeal before the Court on the
following grounds:
GROUNDS
OF APPEAL
[27] “The
court a
quo
grossly
erred and misdirected itself in failing to hold that section 4 and
section 6(1)(b) of the Communal Land Act [Chapter
20:04]
are ultra
vires
the provisions of section 48, section 51, section 72, section 63,
section 56(1) and section 68 of the Constitution of Zimbabwe.
[28] More
fully, the court a
quo
grossly
erred in failing to hold that the legal position codified in the
Communal Land Act [Chapter
20:04]
denying indigenous aboriginal black Zimbabweans the right to own
their land was unconstitutional.
[29] On
a very technical level, the court a
quo
erred
in implicitly holding that the provisions sought to be impugned were
reasonable and justified in a democratic society and in making such a
finding without expressly holding that section 4 and 6 of the
Communal Land Act [Chapter
20:04]
violated the applicant's rights.
[30] The
court a
quo
further
erred in failing to appreciate that it could have granted an order,
declaring section 4 and section 6 of the Communal Land Act [Chapter
20:04]
unconstitutional and then suspending such declaration in terms of
section 175(6) of the Constitution, allowing the executive and indeed
Parliament time to consult or set up a Land Commission on a new
system of land tenure consistent with the Constitution.
[31] More
fully, the court a
quo
thus
erred in failing to appreciate that what was before it was a legal
issue for the declaration of the appellants rights as opposed to the
policy issue of a new tenure system for communal land.”
APPELLANTS
SUBMISSIONS ON APPEAL
[32] Mr.
Biti,
counsel for the appellants, made the following submissions. He
argued that the court a
quo's
determination was wrong in failing to find that sections 4 and
6(1)(b) of the Communal Land Act were unconstitutional. He submitted
that the court a
quo's
judgment contained three contradictory views. The first was that the
court a
quo
made positive findings as to the racist import of the impugned
provisions. Secondly, the court a
quo
held the matter to be one of policy, notwithstanding the mandate of
courts to interpret laws. He vehemently objected to such an approach
regard being had to section 175(6) of the Constitution, which imbues
the courts with authority to grant a 'just and equitable remedy.'
The third facet allegedly contained in the judgment related to the
determination that there was nothing objectionable with vesting of
land in the President as a consequence of section 4 of the aforesaid
Act. Mr.
Biti
submitted that this was in contrast with the court a
quo's
earlier findings of racial connotations in the impugned provisions.
In addition, he contended that it was a condescending view that land
barons would overrun communal lands should “natives” be granted
title to their land.
[33] To
bolster his stance on the alleged racial connotations of the impugned
provisions, counsel embarked on a rendition of the historical
background giving rise to the present-day Communal Land Act. To this
end, Mr.
Biti
advanced that racist undertones were prevalent in the expropriation
of communal lands from the native people of Zimbabwe. He implored the
Court to consider judicial pronouncements in Latin America that dealt
with the land previously excised from the indigenous people in that
region during the colonial era. He argued that the appellants dignity
was tied to their ancestral land. He thus proposed
that the course adopted in the Inter-American cases on similar
circumstances be followed and given effect to.
[34] As
regards the remedy, Mr.
Biti
submitted that the order of unconstitutionality, in this case, ought
to be suspended to enable the legislature to make the relevant
consultations in formulating a comprehensive land tenure system.
[35] The
Court noted that the appellants had not sought to impugn section 10
of the Communal Land Act and whether there existed a cause of action
in the matter due to the failure to attack the particular statutory
instrument that set aside the appellants land. Mr Biti
submitted that despite the first respondent's use of section 10 of
the Communal Lands Act in setting aside land for an irrigation scheme
there was a cause of action before the Court. He argued that at the
relevant time of filing in the court a
quo,
there were three statutory instruments in terms of which the first
respondent had acted when he set aside the land in contention. Mr.
Biti
advanced that there thus was a sufficient basis for challenging the
constitutionality of sections 4 and 6 of the impugned Act.
RESPONDENTS
SUBMISSIONS ON APPEAL
[36] Per
contra,
Ms.
Zvedi
submitted that the court's decision a
quo
could not be faulted. She submitted that this was a polycentric
matter which was the sole preserve of the executive and legislature
and that the impugned sections did not infringe the appellants
property rights. In addition, Ms.
Zvedi
contended that the vesting of communal lands in the President was
aimed at managing development in the country.
[37] She
further submitted that the irrigation scheme development project
would not compel the relocation of the Hlengwe Community from their
ancestral lands as the land earmarked for the project is currently
unoccupied. As a result, they would not be forcibly relocated; hence
the issue of violation of rights could not be sustained.
[38] She
posited that in the event that the community was relocated, section
12 of the Communal Land Act provides for appropriate compensation to
be paid to persons affected by any such relocation. She further
submitted that in terms of the Constitution, a person might be
compulsorily deprived of their property in terms of a law of general
application and that the Communal Land Act is such a law.
[39] She
argued that the Constitution sanctioned the purpose of the
reservation of the land in question and that it was in the public
interest and further for the benefit of the local community as it
paved the way for an irrigation scheme to be set up. Ms.
Zvedi
averred that a notice for the reservation of the land was provided
and the Hlengwe people had also participated in the deliberations and
hence they had been able to approach the Court for recourse.
[40] She
argued further that communal land is vested in the President, who has
the authority to permit land usage within the confines of the
Communal Land Act. As a consequence, she submitted that all the
procedures were followed.
[41] She
contended that the appellants failure to impugn section 10 of the
Communal Lands Act left them bereft of a cause of action. Ms.
Zvedi
insisted that the intended development would not affect the
appellants. She further argued that the Communal Land Act provided
adequate remedies in the unlikely event that they were dislodged from
their homes.
[42] In
conclusion, she submitted that the matter was not yet ripe for
determination and that the court a
quo
had not erred at all by finding that the matter is one of policy and
a political issue. That the law currently vests all communal land in
the President, who may set aside part of such land under the
provisions of the Communal Land Act, was beyond dispute. She argued
that whether or not that land should no longer remain vested in the
President and title given to communal land occupants is a matter for
the executive and parliament.
[43] She
accordingly moved for the dismissal of the appeal.
ISSUES
FOR DETERMINATION
[44] The
appellants have raised five grounds of appeal. However, from those
grounds, only three arise issues for determination. The first is
whether or not the court a
quo
erred in failing to find that sections 4 and 6 of the Communal Land
Act were unconstitutional, as contended by the appellants. Aligned to
this is whether the appellants claim to a right to property under
section 71 is well founded. The second is whether or not the court a
quo
correctly found that the matter was one of policy and entirely in the
hands of the executive and the legislature. The third and last issue
is whether or not the court erred in concluding that the provisions
were reasonable and justifiable in a democratic society and, thus,
did not violate the appellants constitutional rights as alleged.
THE
LAW ON CONSTITUTIONAL CONSTRUCTION
[45] The
Constitution is a statute. As such, it is subject to the established
canons of interpretation. Accordingly, a court must construe the
provisions of the Constitution literally to give effect to its
ordinary meaning unless doing so would result in an absurdity. Where,
however, this is not possible, a court is enjoined to construe the
provisions in a manner that gives effect to the rights being
protected.
[46] As
submitted by Mr. Biti,
the Constitution is a product of negotiation between various
stakeholders and thus embodies the values and aspirations of the
people of Zimbabwe. It marks a departure from a colonial past. It has
a bill of rights that is justiciable that is binding on all arms of
the State and the citizenry at large.
[47] With
these principles in mind, the Court must then examine the
constitutional provision to determine its meaning and interpret the
challenged legislation to decide if the alleged violations have been
established. This accords with canons of interpretation and has been
emphasized time and time by the courts in this jurisdiction in a long
line of authorities. The approach by the court was settled by GUBBAY
CJ in In Re
Munhumeso & Ors
1994 (1) ZLR 49 (S), at 59B-E, where the learned former Chief Justice
said the following:
“Two
general interpretational principles are to be applied. The first was
lucidly expressed by Georges CJ in Zimbabwe
Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd
1983 (2) ZLR 376 (S) at 382B-D; 1984 (2) SA 778 (ZS) at 783A-D, to
this effect:
'Clearly
a litigant who asserts that an Act of Parliament or a Regulation is
unconstitutional must show that it is. In such a case the judicial
body charged with deciding that issue must interpret the Constitution
and determine its meaning and thereafter interpret the challenged
piece of legislation to arrive at a conclusion as to whether it falls
within that meaning or it does not. The challenged piece of
legislation may, however, be capable of more than one meaning. If
that is the position then if one possible interpretation falls within
the meaning of the Constitution and others do not, then the judicial
body will presume that the law makers intended to act
constitutionally and uphold the piece of legislation so interpreted.
This is one of the senses in which a presumption of constitutionality
can be said to arise. One does not interpret the Constitution in a
restricted manner in order to accommodate the challenged legislation.
The Constitution must be properly interpreted, adopting the approach
accepted above. Thereafter the challenged legislation is examined to
discover whether it can be interpreted to fit into the framework of
the Constitution.'
See
also Minister
of Home Affairs v Bickle & Ors
1983
(2) ZLR 431 (S) at 441E–H, 1984 (2) SA 39 (ZS) at 448F–G; S
v A Juvenile
1989 (2) ZLR 61 (S) at 89C, 1990 (4) SA 151 (ZS) at 167G–H.”
[48] The
above authority has been followed and given effect by our courts in
enforcing fundamental rights even before the incidence of the current
Constitution. On
several occasions, this court has pronounced upon the proper approach
to constitutional construction embodying fundamental rights and
protections. One of the leading authorities in this regard is
Rattigan
& ORS v Chief Immigration Officer & ORS
1994 (2) ZLR 54 (S) where this court said the following on pp57-58:
“THE
RULE OF CONSTITUTIONAL CONSTRUCTION
This
court has on several occasions in the past pronounced upon the proper
approach to constitutional construction embodying fundamental rights
and protections. What is to be avoided is the imparting of a narrow,
artificial, rigid and pedantic interpretation; to be preferred is one
which serves the interest of the Constitution and best carries out
its objects and promotes its purpose. All relevant provisions are to
be considered as a whole and where rights and freedoms are conferred
on persons, derogations therefrom, as far as the language permits,
should be narrowly or strictly construed. See Min
of Home Affairs & Ors v Dabengwa & Anor 1982
(1) ZLR 236 (S) at 243G-244A, 1982 (4) SA 301 (ZS) at 306E-H; Bull
v Min of Home Affairs
1986 (1) ZLR 202 (S) at 210E-211C; 1986 (3) SA 870 (ZS) at 880J-881D;
Nkomo
& Anor v A-G, Zimbabwe & Ors
1993 (2) ZLR 422 (S); 1994 (1) SACR 302 (ZS) at 309E-F. A recent
reminder that courts cannot allow a Constitution to be 'a lifeless
museum piece' but must continue to breathe life into it from time
to time when opportune to do so, was graphically expressed by Aguda
JA in Dow
v A-G
[1992] LRC (Const) 623 (Botswana Court of Appeal) at 668f-h:
'… the
over-riding principle must be an adherence to the general picture
presented by the Constitution into which each individual provision
must fit in order to maintain in essential details the picture which
the framers could have painted had they been faced with circumstances
of today. To hold otherwise would be to stultify the living
Constitution in its growth. It seems to me that a stultification of
the Constitution must be prevented if this is possible without doing
extreme violence to the language of the Constitution. I conceive it
that the primary duty of the Judges is to make the Constitution grow
and develop in order to meet the just demands and aspirations of an
ever-developing society which is part of the wider and larger human
society governed by some acceptable concepts of human dignity'.
See,
too, Hunter
et al v Southam Inc
(1984) 9 CRR 355 (SC Canada) at 364; Govt
of the Republic of Namibia & Anor v Cultura 2000 & Anor
1994 (1) SA 407 (NmS) at 418F-G.”
[49] The
appellants have alleged a violation of several provisions of the
Constitution. In considering the impugned legislative provisions, the
task of the Court is to interpret the Constitution to safeguard and
guarantee the protection and enforcement of enshrined fundamental
rights under Chapter 4. Accordingly, the Court must adopt an approach
that results in an expansive and broad interpretation of the
provisions that protect human rights. It is often said that the
Constitution is a living document, and that the courts must strive to
breathe life into its provisions. In this endeavour the court must
have reference to language in the provision, and, the historical
origins of the concept thus enshrined. The provision has be construed
in a manner that must give meaning and purpose to any other rights
associated with any particular provisions. Thus, it is construed to
reflect the citizens values and aspirations. See in this regard S
v Zuma
1995 (2) SA 642, (CC); R
v Big Mart Ltd
(1985) 18 DLR (4th)
321.
[50] It
follows, therefore, that the Court must eschew a narrow and
restrictive approach. Consequently, the Court must consider and
interpret all relevant provisions to give effect to the objects of
the Constitution and best serve its interest and purpose. Following
up on the test established in Munhumeso
(supra),
a guiding tool for the Court was found in the case of Kawenda
v Minister of Justice, Legal & Parliamentary Affairs & Ors
CCZ 2/22. In that case MAKARAU JCC stated the following:
“There
is an expansive body of jurisprudence from this jurisdiction and
beyond on the approach that a court must take when determining
whether a statute or other law is in conflict with the Constitution.
One begins with an interpretation of the relevant provisions of the
Constitution. The purpose of interpreting the Constitution first is
to set the framework, the backdrop, or the yardstick against which
the impugned law will then be examined or measured. One starts with a
discernment of the law. (See Zimbabwe
Township Developers (Pvt) Ltd v Lous Shoes (Pvt) Ltd
1983 (2) ZLR 376 (SC) at 383F; and Democratic
Assembly for Restoration and Empowerment & Ors v Suanyama
CCZ
9/18).
In
interpreting the constitutional provisions, the ordinary rules of
interpretation of statutes apply. The Constitution is but a statute.
It is however settled that in interpreting constitutional provisions,
the preferred construction 'is one which serves the interest of the
Constitution and best carries out its objects and promotes its
purpose'. (See Rattigan
and Others v The Chief Immigration Officer and Others
1994 (2) ZLR 54. See also Smythe
v Ushewokunze and Another
1997 (2) ZLR 544 (S)). In particular, when interpreting provisions
that guarantee fundamental rights, the widest possible interpretation
is adopted to give each right its fullest measure or scope.
After
interpreting the appropriate provisions of the Constitution, one then
presumes that the impugned law is constitutionally valid. The
presumption of constitutional validity serves firstly to place the
onus on whoever is alleging invalidity to prove such invalidity and,
secondly and, equally important, to guide the court in interpreting
the impugned law in favour of validity where the piece of legislation
is capable of two meanings. The presumption holds that where a piece
of legislation is capable of two meanings, one falling within and the
other falling outside the provisions of the Constitution, the court
must perforce uphold the one that falls within.
The
presumption in favour of constitutionality is entrenched in our law.
As
the next and final logical step, the Court must then examine the
effect of the impugned law on the fundamental right or freedom in
question. If the effect of the impugned law is to abridge a
fundamental right or freedom or is inconsistent with the provisions
of the Constitution providing for the right or freedom, the object or
subject matter of the impugned law will be less important or
irrelevant. (See
In re Mhunhumeso
1994
(1) ZLR 49 (S)).
If
the court finds the impugned law to infringe upon a fundamental right
or freedom or to be inconsistent with the provisions of the
Constitution on a fundamental right or freedom, the court must
proceed to determine whether the infringement or inconsistency is
permissible in terms of section 86(2) of the Constitution.”
[51] The
remarks of MAKARAU JCC are apposite. The steps to be followed have
been settled and it will not add value to the above remarks to make
any further comment. I will therefore proceed accordingly. I commence
with the claimed rights of ownership.
RIGHT
TO OWNERSHIP UNDER SECTIONS 71 AND 72
[52] It
seems to me that the fundamental rights upon which the appellants
base their claim for breach of the Constitution have their genesis in
an alleged right to ownership over the piece of communal land which
the appellants occupy that has been set aside under the Communal Land
Act. The right is claimed under section 71 of the Constitution. The
appellants link the rights to dignity and life premised on the right
under section 71.
[53] An
applicant who alleges a violation of a fundamental right must
establish the existence of the right, that the provision under which
the right is claimed applies to the applicant and that the respondent
has violated the right. The appellants have alleged that they own the
land they occupy in their affidavits. They allege that their right to
ownership of this land is guaranteed under section 71(2) of the
Constitution and they contend that this right has been violated by
the setting aside of 12,940 hectares of the land they occupy. They
aver that the vesting of the land in the President has violated this
right to ownership. Furthermore, they claim the right to ownership
due to continued occupation for several hundred years before the
incidence of colonialism.
[54] As
a consequence, it seems to me that section 71 is the premise upon
which all the other claimed rights must flow from. It is the
provision that must inform the Court of the existence of the other
alleged rights. It is only logical that the inquiry into the dispute
commence with an examination of section 71 and what rights it
provides for and protects. That section provides, in relevant part,
as follows:
“71
Property Rights
(1)
(not relevant)
(2)
Subject to section 72, every person has the right, in any part of
Zimbabwe 'to
acquire, hold, occupy, use, transfer, hypothecate, lease, or dispose
of all forms of property,
either
individually or in association with others.'”
(my emphasis)
[55] Since
the rights enshrined under section 71(2) are subject to section 72,
before the Court can determine whether or not the appellants can
claim a right under section 71(2), the Court inevitably must construe
the provisions of section 72. In
casu,
the Constitution has made section 72 the dominant provision, and the
two sections must be construed together. This is in tandem with the
canons of interpretation that a court must construe all the relevant
provisions of the Constitution to arrive at an interpretation that
best serves the objects and interests of the Constitution.
Accordingly, the right to ownership of the land claimed by the
appellants under section 71(2) must be construed in light of the
provisions of section 72.
[56] The
section provides as follows:
“72
Rights to agricultural land
(1)
In this section — 'agricultural land' means land used or
suitable for agriculture, that is to say, for horticulture,
viticulture, forestry, or aquaculture or for any purpose of
husbandry, including —
(a)
the keeping or breeding of livestock, game, poultry, animals, or
bees; or
(b)
the grazing of livestock or game; but
does not include Communal Land or land within the boundaries of an
urban local authority or within a township established under a law
relating to town and country planning or as defined in a law relating
to land survey;”
(my
emphasis)
[57] The
appellants seek to assert rights under the Bill of Rights in respect
of ancestral land located within the country's rural areas. The
appellants claim that they survive on the land for all aspects of
their livelihood. This is not in dispute; their land use is in
keeping and in accord with the law. As such, it is land that serves
many purposes for the community that occupies it. It is where their
residences are located. It is also land upon which the community
farms and is thus a source of livelihood. They aver that some of the
inhabitants do contract farming for Delta Beverages Corporation and
some are cotton producers. Finally, when regard is had to the meaning
ascribed to “agricultural land usage” their land constitutes
farmland in that it is land used for agriculture, including the
keeping of animals, whether domestic or wild, poultry, and all other
facets that go with agricultural land.
[58] Section
72 of the Constitution provides that land located in a communal land
or within the boundaries of an urban local authority or a township is
expressly excluded from the definition of what constitutes
agricultural land. It
seems to me that section 72 has not provided for the right to occupy
or use agricultural land. What it has done in subsection (1) is to
delineate what constitutes agricultural land. Most importantly for
this dispute, section
72 of the Constitution has stated explicitly that rights to
agricultural land in communal areas are to be governed by the
Communal Land Act.
[59] The
appellants have not, either before this Court or even the court a
quo,
made any attempt to establish the alleged violation of the right
sought to be relied on under section 71. They have also not linked
their alleged right of ownership to the provisions of section 72. All
that they contend is that the impugned provisions of the Communal
Land Act continue to serve a colonial construct denying local
indigenous people proprietary rights to land, which they allege are
enshrined under section 71.
[60] Given
that the land in issue is communal land, it is governed by the
Communal Land Act and the right they assert is specifically to be
found in that Act. I am persuaded that the Constitution itself has
excluded in specific terms a right to own land under section 71 for
communal land dwellers except for the specific rights of occupation
and ownership spelt out in the Communal Land Act itself. In turn,
despite section 71 being subject to section 72, section 72 has not
spelt out any provisions related to communal land rights. This
means that to assert a right under section 71 as read with section 72
of the Constitution, regard must be had to the Communal Land Act
itself.
[61] Therefore,
this Court must construe all provisions relating to the occupation,
use, and deprivation of land provided in the Act. In my view,
sections 4, 6, 8, 9, 10, and 12 of the Act are relevant and pertinent
in establishing the rights of dwellers in communal land. These
sections in my view, confirm or lay to rest the allegations by the
appellants of the violations of their fundamental rights on the
implementation or exercise of statutory power by the President and
the second respondent, respectively.
[62]
I therefore proceed to consider the law relating to their right to
occupy land in communal areas.
RIGHTS
OF OCCUPATION UNDER THE COMMUNAL LAND ACT
[63] I
start the inquiry by examining section 8 of the Communal Land Act.
That section reads as follows:
“8
Occupation and use of Communal Land for agricultural or residential
purposes
(1)
Subject to this Act and the Regional, Town, and Country Planning Act
[Chapter
29:12]
and any order issued in terms thereof, a
person may occupy and use Communal Land for agricultural or
residential purposes with the consent of the rural district council
established
for the area concerned.
(2)
Subject to subsection (3) and the Regional, Town, and Country
Planning Act [Chapter
29:12]
and any order issued in terms thereof, when granting consent in terms
of subsection (1), a rural district council shall —
(a)
where appropriate,
have regard to customary law relating to the allocation, occupation,
and use of land in the area concerned; and
(a1)
consult and co-operate with the chief appointed to preside over the
community concerned in terms of the Traditional Leaders Act [Chapter
29:17];
and
(b)
grant
consent only to persons who, according to the customary law of the
community that has traditionally and continuously occupied and used
land in the area concerned, are regarded as forming part of such
community or who, according to such customary law, may be permitted
to occupy and use such land:
Provided
that, if no community has traditionally and continuously occupied and
used land in the area concerned, the district council shall grant
consent only to such class of persons as the Minister, by notice in
writing to the district council, may specify.
(3)…………
n/a
(4)………….n/a
(5)………….n/a
(6)
Where a rural district council is established for any area of
Communal Land or any area of Communal Land is incorporated within the
area of a rural district council, any
person lawfully occupying or using land in such area for agricultural
or residential purposes on the date of such establishment or
incorporation, as the case may be, shall be deemed to have obtained
the consent of such rural district council for the purposes of
subsection (1).”
(my
emphasis)
[64] Thus,
section 8 of the Communal Land Act gives rights of occupation to
community members that have occupied the land traditionally and
continuously for extended periods. My reading of the section leads me
to conclude that a community member in occupation of such land only
has to prove that he or she is a member of a community that has
traditionally and continuously been in occupation of such land. That
established an entitlement to occupation. All that is required is
that the person is part of a community that has continuously and
traditionally occupied the land.
[65] However,
a community must have services through schools, churches, hospitals,
and other amenities. The law provides the grant of permits for
occupation by persons or parties who are not part of the traditional
dwellers. The provision that permits such rights is found in section
9 of the Act. It provides:
“9
Permits to occupy and use Communal Land
(1)
A rural district council may, with the approval of the Minister,
issue a permit authorizing any person or class of persons to occupy
and use, subject to the Regional, Town, and Country Planning Act
[Chapter
29:12]
and any order issued in terms thereof, any portion of Communal Land
within the area of such rural district council, where such occupation
or use is for any of the following purposes —
(a)
administrative purposes of the State or a local or like authority;
(b)
religious or educational purposes in the interests of inhabitants of
the area concerned;
(c)
hospitals, clinics, or other such establishments for the benefit of
inhabitants of the area concerned;
(d)
hotels, shops, or other business premises;
(e)
any other purpose whatsoever which, in the opinion of the rural
district council, is in the interests of inhabitants of the area
concerned;”
[66] Although
the word “permit” has not been defined in the Act, section 2
defines use
as:
“use,
in relation to Communal Land, includes the erection of any building
or enclosure, ploughing, hoeing, the cutting of vegetation, the
depasturing of animals or the taking of sand, stone or other
materials therefrom.”
[67] This
definition accords with the purposes or definition of agricultural
land in section 72 of the Constitution. The appellants occupy land
that they utilise both for agricultural and residential purposes.
Their right to occupy as a community can only be in accordance with
section 8 of the Act. A perusal of the section reveals that the law
recognizes the right of a community to occupy communal land that such
a community has occupied continuously. It does not define the amount
or length of time for such occupation. When regard is had to section
71(1) of the Constitution, it becomes clear that the provisions of
section 8(1) of the Act are not only consistent with but give effect
to the right to property being claimed by the appellants. That right
is not restricted to ownership. It is broader than ownership. It is
the right to acquire,
hold, occupy, use, transfer, hypothecate, lease, or dispose
of all forms of property. The suggestion by the appellants that the
right in section 71 is strictly that of individual private ownership
of land wherever situate is not borne out by the text of the
constitutional provision being relied on. The appellants do not
challenge the right accorded under the governing Act. They do not
suggest that this right is not in accordance with that enshrined
under section 71(2) or that they are not permitted to acquire,
hold, use, transfer, hypothecate, lease, or dispose
of land within the boundaries of communal land.
[68] It
is apparent from the above that the occupation of communal land is
entirely consistent with the occupation of agricultural land under
section 72 of the Constitution. An occupier requires permission or
consent from an authority duly empowered by an Act of Parliament.
Thus, there is no discernible difference between an occupier of
communal land and an occupier of agricultural land. This is because
both classifications of land are vested in the State.
[69] The
further contention by the appellants that the right in section 71
relates to individual ownership of property is incorrect. Individuals
or persons can exercise the right in association with others. In
terms of section 8(2)(b) of the Act, the right of a community that
has traditionally and continuously occupied land located in communal
lands is guaranteed by the denial of permits of occupation to persons
who have not continuously and traditionally been in occupation
thereof.
[70] In
addition, it is clear that section 8(2)(a) and (b) accord preference
to the customs of the community that has been in occupation. The
special provision ensures that a rural district council, in granting
consent to dwellers, must have regard to customary law. Therefore,
the customs of a community take precedence when the local authority
is making decisions affecting the community itself. In addition,
where a community has been in continuous occupation of communal land,
a district council shall deem that such community has the appropriate
consent to occupy the same.
[71] It,
therefore, stands to reason that the same meaning should be ascribed
to the word permit in section 8 of the Communal Land Act.
Consequently, contrary to the position adopted by the appellants, the
rights they claim are fully protected under sections 8 and 9 of the
Communal Land Act. The Act is not inconsistent with the Constitution,
as suggested by the appellants. A careful reading of section 8(2)(b)
of the Act, taken as a whole, establishes that the law has been
crafted to protect the community's rights to occupy communal land.
[72] It
is the case for the appellants that the beneficiaries of the Land
Reform Programme have better conditions and rights in relation to the
agricultural land allocated to them under the aegis of section 72 of
the Constitution. The
right to occupation of agricultural land is not found in section 72.
It is provided for in the Gazetted Land (Consequential Provisions)
Act [Chapter
20:28].
It provides as follows in relevant part:
“3
Occupation of Gazetted land without lawful authority
(1)
Subject to this section, no person may hold, use or occupy Gazetted
land without lawful authority.”
[73] This
provision must be read together with sub-sections (4) and (6) of
section 72 of the Constitution in so far as these subsections set out
the status of agricultural land within the country. Subsections (4)
and (6) provide as follows:
“(4)
All agricultural land which —
(a)
was itemised in Schedule 7 to the former Constitution; or
(b)
before the effective date, was identified in terms of section
16B(2)(a)(ii)
or (iii) of the former Constitution;
continues
to be vested in the State, and no compensation is payable in respect
of its acquisition except for improvements effected on it before its
acquisition.
(5)…………..
(not relevant)
(6)
An Act of Parliament may make it an offence for any person, without
lawful authority, to possess or occupy agricultural land referred to
in this section or other State land.”
[74] The
above provisions dispel the contention by the appellants that
beneficiaries under the Land Reform Programme have rights of private
and individual ownership over the land they have been allocated. All
acquired agricultural land is vested in the State. Beneficiaries can
only occupy land in terms of a document granting such beneficiaries
lawful authority for such occupation. What constitutes lawful
authority has been decided by this Court in several authorities. The
meaning to be ascribed to lawful authority was set out in the seminal
judgment by this Court in Taylor-Freeme
v The Senior Magistrate Chinhoyi & Anor
CCZ 10/2014, wherein CHIDYAUSIKU CJ remarked as follows:
“I
finally turn to deal with the issue of what constitutes 'lawful
authority' and whether the applicant had 'lawful authority' to
occupy the farm….,.
The
clear and unambiguous meaning of s2(1) of the Act is that 'lawful
authority' means an offer letter, a permit and a land settlement
lease. Nothing more, nothing less. A letter from the late Vice
President, the Presidium or any other member of the Executive does
not constitute 'lawful authority' in terms of the Act.
In
the case of Commercial
Farmers Union and Ors v The Minister of Lands and Rural Resettlement
and Ors (supra),
this Court had this to say at p19 of the cyclostyled judgment:
'The
Legislature in enacting the above provision clearly intended to
confer on the acquiring authority the power to issue to individuals
offer letters which would entitle the individuals to occupy and use
the land described in those offer letters. The draftsman could have
used better language to convey the legislative intent, but there can
be no doubt that s2 of the Act confers on the acquiring authority the
power to allocate land using the medium of an offer letter. This
provision is not in any way inconsistent with ss16A and 16B of the
Constitution. If anything, it fits in well with the overall scheme
envisaged in ss16A and 16B of the Constitution, which is that the
acquiring authority acquires land and reallocates the land so
acquired. The acquisition of land and its redistribution lies at the
heart of the land reform programme. I have no doubt that the Minister
as the acquiring authority can redistribute land he has acquired in
terms of s16B of the Constitution by means of the following documents
-
(a)
an offer letter; (b) a permit; and (c) a land settlement lease.
The
Minister is entitled to issue a land settlement lease in terms of s8
of the Land Settlement Act [Cap
20:01].
However, if the Minister allocates land by way of a land settlement
lease in terms of s8 of the Land Settlement Act he is enjoined to
comply with the other provisions of that Act, such as s9 which
requires him to consult the Land Settlement Board which obviously has
to be in existence. I do not accept the contention by the applicants
that the Minister can only allocate acquired land by way of a land
settlement lease which he presently cannot do because there is no
Land Settlement Board in existence.
The
Minister has an unfettered choice as to which method he uses in the
allocation of land to individuals. He can allocate the land by way of
an offer letter or by way of a permit or by way of a land settlement
lease. It is entirely up to the Minister to choose which method to
use. I am not persuaded by the argument that because the offer letter
is not specifically provided for in the Constitution it cannot be
used as a means of allocating land to individuals.
I
am satisfied that the Minister can issue an offer letter as a means
of allocating acquired land to an individual.
Having
concluded that the Minister has the legal power or authority to issue
an offer letter, a permit or a land settlement lease, it follows that
the holders of those documents have the legal authority to occupy and
use the land allocated to them by the Minister in terms of the offer
letter, permit or land settlement lease.'
'Lawful
authority' means an offer letter, a permit and a land settlement
lease. The documents attached to the defence outline are not offer
letters, permits or land settlement leases issued by the acquiring
authority. They do not constitute 'lawful authority' providing a
defence to the charge the applicant is facing.”
[75] It
is trite that in any jurisdiction with a justiciable bill of rights,
the Constitution is the supreme law in that jurisdiction. However,
over and above that, a constitution encompasses the citizens values,
aspirations, and expectations. It embodies the sense of entitlement
to the realization of citizens rights. As such, it constitutes a
compass for the judiciary in adjudicating disputes where rights are
enforced before the courts. Therefore, it stands to reason that in
construing the Constitution, the Court must uphold the community
values that the Constitution and the judiciary individually and
jointly serve. The Constitution must therefore be construed with due
regard to its content and the context under which it came into being.
[76] Both
section 72 of the Constitution and the Communal Land Act have
delineated land use, in the case of former agricultural land and
communal land respectively. Both classifications are specific to land
located within the rural areas and where the communities utilise the
land for agriculture: that is to say;
“for
horticulture, viticulture, forestry or aquaculture or for any purpose
of husbandry, including —
(a)
the keeping or breeding of livestock, game, poultry, animals, or
bees; or
(b)
the grazing of livestock or game;.”
[77] This
definition of what constitutes “agriculture” accords with that
found in the Constitution in relation to agricultural land. On the
other hand, the Act in section 8(1), provides that a rural district
council may grant consent to any
person to occupy and use Communal Land for agricultural or
residential purposes.
[78] It
seems to me that the appellants, in contending that their right to
occupy land in the communal areas is lesser than that of
beneficiaries under the Land Reform Programme, have completely
misconstrued the constitutional provisions that apply to the two
regimes. The primary purpose of land use in communal land is
agricultural as well as residential. Agricultural land has been
codified, and its occupation and use are determined by the definition
accorded to it under the governing legislation.
[79] On
a proper construction, the law on the occupation of State land, which
includes communal land and agricultural land under section 72 of the
Constitution, makes it clear that occupation of land utilised for
agricultural purposes must be in terms of lawful authority under
section 72 of the Constitution or the consent of a rural council
under sections 8 and 9 of the Communal Land Act. Thus, occupation is
at the pleasure of the State. It is apparent from the above that the
occupation of communal land is entirely consistent with the
occupation of agricultural land under section 72 of the Constitution.
An occupier in both instances requires permission or consent from an
authority duly empowered by an Act of Parliament.
[80] As
the law currently provides, occupiers of agricultural land under the
Land Reform Programme and those occupying pieces of land situate in a
communal area both occupy State land. They are given authority or
permission to occupy by statute. None of the occupants own the land
in their own right. Therefore, there is no apparent difference
between occupiers of land found in communal lands and those in
occupation of agricultural land as defined in section 72. Thus, there
is no discernible difference between an occupier of communal land and
an occupier of agricultural land. This is because, as earlier
explained, both classifications of land are ultimately vested in the
State.
[81] In
addition, authority to occupy communal land by persons who are not
part of the community is not easily granted or is only granted under
special circumstances. It becomes evident that the provisions of the
Act are not inconsistent with the Constitution. There has been no
breach of section 71 established on the papers.
APPLICATION
OF INTERNATIONAL LAW
[82] The
appellants have, in their quest, made reference to international law
and pronouncements from foreign jurisdictions regarding the right to
property, especially regarding land associated with indigenous
communities.
[83] A
constitution is comprised of laws that protect human rights. The law
on human rights is universal in substance as well as application. In
keeping with the generally accepted principle in constitutional law,
the Constitution provides that a court or tribunal seized with a
matter where the Bill of Rights is an issue for determination, that
court or tribunal must consider international law. Accordingly, it
may also have regard to foreign law. Section 46 is relevant in this
regard and provides as follows:
APPLICATION
AND INTERPRETATION OF CHAPTER 4
“46
Interpretation of Chapter 4
(1)
When interpreting this Chapter, a court, tribunal, forum, or body —
(a)
must give full effect to the rights and freedoms enshrined in this
Chapter;
(b)
must promote the values and principles that underlie a democratic
society based on openness, justice, human dignity, equality, and
freedom, and in particular, the values and principles set out in
section 3;
(c)
must take into account international law and all treaties and
conventions to which Zimbabwe is a party;
(d)
must pay due regard to all the provisions of this Constitution, in
particular, the principles and objectives set out in Chapter 2; and
(e)
may consider relevant foreign law;
in
addition to considering all other relevant factors that are to be
taken into account in the interpretation of a Constitution.
(2)
When interpreting an enactment, and when developing the common law
and customary law, every court, tribunal, forum or body must promote
and be guided by the spirit and objectives of this Chapter.”
[84] In
considering the appellants rights under the Communal Land Act, the
Court has paid due regard to the principles set out in the foreign
judgments that the appellants referred to and more specifically to
the following decisions which have spelt out such rights are
pertinent; viz-
the case of the Sawhoyamaxa
Indigenous Community v Paraguay, the case of the Xakmok Kasek v
Paraguay, the Indigenous Community of Yakye Axa v Paraguay, the
Endorois Community v Kenya, Comm'n No.276/2003, African Commission
on Human & Peoples Rights (2006) and Malawi African Association v
Mauritania Comm
Nos 54/91, 61/91, 164/97. It is these cases that Mr Biti,
for the appellants, suggested should be followed by this court.
[85] Having
considered the authorities in question, the Court finds that they do
not advance the case for the appellants as contended. The Court notes
that the petitioners or claimants in the cases referred to were
indigenous peoples in the different jurisdictions where the disputes
emanated from. The facts from the cases establish that the respective
governments had, variously, restricted the petitioners access to
land, basic essential services, means of livelihood, property rights
to ancestral land, and in one case, had caused the relocation of a
community subsequent to the conversion of their land to a game
reserve. The common relief sought was the resumption of rights to the
land or the affording of essential services by governments while
awaiting the determination of disputes. The common thread running
through the authorities is that the governments in question had
either removed the communities from their ancestral lands or deprived
them of their use and enjoyment. In casu,
there is a discernible difference.
[86] The
converse is the case in the present dispute. In terms of section 8 of
the Act, the community's right to occupy is guaranteed. The
provisions of the Act are on all fours with the law applied in the
authorities relied upon. The suggestion that the cases recommended
individual ownership of ancestral lands as sought by the appellants
in casu
is not borne out by the facts in the judgments or the conclusions by
the respective tribunals. The appellants, just like the petitioners
in the foreign decisions referred to above, occupy communal land.
These areas are reserved for communities that have been in occupation
since time immemorial. Occupation is not based on individual rights
but on collective rights. Their rights of occupation were established
when their ancestors moved onto the lands in question and set up the
communities. This is why section 8 recognizes the right of people who
have traditionally and continuously occupied land in communal areas.
Such rights are distinct and utterly disparate from the rights of
holders of property in urban areas. While rights of occupation and
use under the Communal Land Act are community-based, the rights to
own and occupy urban areas are primarily based on individual rights.
The latter comprises a whole spectrum of categories, which are
provided for in section 71(2) of the Constitution and those rights
are not the premise upon which the appellants approach the Court for
relief and it is not germane to discuss them for the purpose of this
dispute. Their cause of action is primarily based on the community's
right to occupy or own land.
[87] The
rider is that the mode of occupation under the Act permits the
appellants to live in harmony with nature and use the land according
to their culture and heritage. They can also embark on all kinds of
business and agricultural enterprises. Those living in places like
Borrowdale are restricted to residential use. The stands are
restricted, and land use is strictly regulated. There are massive
differences between the two. By living in communal areas, the
appellants have elected to be bound by the strictures of occupation
and use as set out in the Communal Land Act.
WHETHER
THE APPELLANTS RESPECTIVE RIGHTS HAVE BEEN VIOLATED
[88] Turning
to the grounds of appeal, the
case for the appellants is that section 4 of the Act is a colonial
construct that reinforces the notion that people of African descent
or indigenous people cannot own land in their own right. As such, the
provision has no room in post-independent Zimbabwe because white
people can own land, while Africans are denied this right through the
impugned provision. Thus, it offends the dignity of the people and
their humanity. Furthermore, the appellants allege that the provision
confirms the stereotype that Africans are a lower form of human being
than other races.
[89] In
addition, it is suggested that section 4 offends against section 71
of the Constitution. It is contended that the provision denies the
appellants their right to own property. By the same token, it offends
against their dignity as a people. Without their land, they lose
their essence as a people. It also militates against their right to
culture under section 63. The intended reservation of part of their
land may result in their displacement to various parts of the
country. They will, as a result, be unable to exercise their cultural
beliefs as the Hlengwe-Shangaan people.
[90] As
regards section 6, the contention is that its net effect is to
expropriate communal land from its owners without compensation. Both
statutory provisions are said to infringe the rights to life,
dignity, equal protection of and benefit of the law, the right to
property, the right to culture and language, and the right to be
heard. Cumulatively, the provisions are said to be in breach of
sections 48, 51, 56(1), 63, 71, and 68 of the Constitution of
Zimbabwe. However, the appellants only motivate the violation of
four fundamental rights: sections 71 on property rights, 51 on the
right to human dignity, 48 on the right to life, and 56 on equality
and non-discrimination. Despite the citation of those they have not
addressed in detail the other alleged infringements. As a
consequence, the Court will only consider the matter relative to the
arguments presented before it.
[91] The
occupation of the land issue by the community is not in dispute. What
is in dispute and is of paramount importance is whether or not that
occupation has been interfered with by the measures undertaken by the
government to set aside part of the land for developmental purposes.
Implicit in their contention is that the control of communal land
should not be the preserve of the government, specifically the
President, but that ownership thereof should vest in the community.
On that basis, they claim that the community has a right to property
under the Constitution, which is enforceable under section 71 as read
with section 72 of the Constitution. It is this right upon which the
appellants hinge all the other rights in respect of which they seek
enforcement by the Court. The approach to the Court has been
predicated on a right that the appellants contend allows them “in
any part of Zimbabwe, to acquire, hold, occupy, use, transfer,
hypothecate, lease or dispose of property”
and that this is provided for in section 71.
[92] The
appellants contend that the concept of dignity is enshrined in the
Constitution through section 51, which stipulates that every person
has inherent dignity in his or her private and public life and that
he or she has the right to have that dignity respected and protected.
They argue that the removal of their community from their ancestral
land without compensation impairs their constitutional right to
dignity and harms their self-worth, renders them homeless, landless,
and destitute, and jeopardizes their ability to meet the bare
necessities of life, including food, nutrition, clothing, shelter,
and water. The allegations surrounding the alleged violation of the
right to life under section 48 are tied to the issue of human dignity
by the appellants. They submitted that the right to dignity is
recognized as the founding source of all other fundamental rights.
This is substantiated by section 46 of the Constitution.
[93] In
the case of The
State v Willard Chokuramba
CCZ 10/19, this court considered the content of the right to human
dignity. MALABA DCJ (as he then was) posited the following:
“Section
46 of the Constitution is the interpretative provision. It makes it
mandatory for a court to place reliance on human dignity as a
foundational value when interpreting any of the provisions of the
Constitution which protect fundamental human rights and freedoms.
This is because human dignity is the source for human rights in
general. It is human dignity that makes a person worthy of rights.
Human dignity is therefore both the supreme value and a source for
the whole complex of human rights enshrined in Chapter 4 of the
Constitution. This interdependence between human dignity and human
rights is commented upon in the preambles to the International
Covenant on Economic, Social and Cultural Rights (1966) and the
International Covenant on Civil and Political Rights (1966). The
preambles state in express terms that human rights 'derive from the
inherent dignity of the human person'. They all refer to '… the
inherent dignity … of all members of the human family as the
foundation of freedom, justice and peace in the world'. The rights
and duties enshrined in Chapter 4 of the Constitution are meant to
articulate and specify the belief in human dignity and what it
requires of the law.”
[94] It
seems to me that the provisions of section 8 of the Communal Land Act
above ensure that the communities occupying communal lands are
afforded the right to practice their culture and to utilise the land
to best advantage. The law does not curtail in any manner such usage.
Therefore, the claim that somehow the actions of the government have
compromised their dignity and right to benefit from the land for
socio-economic reasons is not sustainable. The right accorded to them
under section 8 of the Communal Land Act includes
the erection of any building or enclosure, ploughing, hoeing, the
cutting of vegetation, the depasturing of animals or the taking of
sand, stone or other materials therefrom.
[95] Despite
extensive research, I have not been able to find any authority in
which dignity has been defined as a concept. The general view is that
it is impossible to ascribe any meaning to human dignitas
and that it can only be measured in terms of an alleged infringement
of a specific right or injury.
[96] The
communities in the communal areas are at large in how they live and
use the land. All the benefits that the appellants aver they obtain
from the land are covered when the use that they can put to the land
is adverted to. There is no limitation on the manner of living or
economic enterprise for which such land can be utilized. Their
dignity is fully recognized. Consequently, I do not see any
inconsistencies with section 51 of the Constitution. I am fortified
in this view by the comments by the learned authors I
Currie and J De Waal, The Bill of Rights Handbook,
6ed (2013), in which, citing an extract from Chaskalson, they posit
the following on the import of the right to dignity:
“As
an abstract value, common to the core values of our Constitution,
dignity informs the content of all the concrete rights and plays a
role in the balancing process necessary to bring different rights and
values into harmony. It, too, however, must find its place in the
constitutional order. Nowhere is this more apparent than in the
application of the social and economic rights entrenched in the
Constitution. These rights are rooted in respect for human dignity,
for how can there be dignity in a life lived without access to
housing, health care, food, water or in the case of persons unable to
support themselves, without appropriate assistance? But social and
economic policies are pre-eminently policy matters that are the
concern of government. In formulating such policies, the government
has to consider not only the rights of individuals to live with
dignity, but also the general interests of the community concerning
the application of resources. Individualised justice may have to give
way here to the general interests of the community.”
[97] In
casu,
the appellants allegation of the infringement of the right to life is
said to arise from the alleged limitation of the socio-economic
rights of the Hlengwe Shaangani community. The appellants cite
section 77 of the Constitution to support their claim to the right to
food and water. However, the justiciability of section 77 is
qualified by the provision that the State must take reasonable
legislative and other measures, within the limits of the resources
available to it, to achieve the progressive realization of this
right. As such, the Court is unable to fault the reasoning by the
court a
quo
that
the bundle of positive rights flowing from the right to dignity was a
matter of policy.
[98] It
appears, however, that the main bone of contention of the appellants
is not concerned with occupation. Instead, their grievance is that
the law, as it relates to rights under communal land, does not permit
the inhabitants to own the land in their personal right. The
appellants contend that there is no reason why community dwellers in
their particular situation should not be granted rights to own pieces
of land, as is the case in people who reside in urban areas. Thus, it
is contended that the law is discriminatory against them and violates
section 56(1) of the Constitution. Section 56 provides:
“56
Equality and non-discrimination
(1)
All persons are equal before the law and have the right to equal
protection and benefit of the law.
(2)
Women and men have the right to equal treatment, including the right
to equal opportunities in political, economic, cultural and social
spheres.
(3)
Every person has the right not to be treated in an unfairly
discriminatory manner on such grounds as their nationality, race,
colour, tribe, place of birth, ethnic or social origin, language,
class, religious belief, political affiliation, opinion, custom,
culture, sex, gender, marital status, age, pregnancy, disability or
economic or social status, or whether they were born in or out of
wedlock.”
[99] The
appellants have not specified the subsection they rely on, but from a
general consideration of their argument, it is clear that they are
invoking section 56(1) as the premise upon which their claim for
relief is based. The ambit of section 56(1) was in this jurisdiction,
in Nkomo
v Minister of Local Government, Rural & Urban Development &
Ors
CCZ 6/16. ZIYAMBI JCC stated:
“It
envisages a law which provides equal protection and benefit for the
persons affected by it. It includes the right not to be subjected to
treatment to which others in a similar position are not subjected. In
order to found his reliance on this provision the applicant must show
that by virtue of the application of a law he has been the recipient
of unequal treatment or protection that is to say that certain
persons have been afforded some protection or benefit by a law, which
protection or benefit he has not been afforded; or that persons in
the same (or similar) position as himself have been treated in a
manner different from the treatment meted out to him and that he is
entitled to the same or equal treatment as those persons.”
[100] The
meaning to be ascribed to section 56(1) was reaffirmed in the case of
Mupungu
v Minister of Justice, Legal, and Parliamentary Affairs & Ors
CCZ 07/21. Commenting on the nature of the right enshrined in section
56(1), PATEL JCC posited the following:
“As
regards section 56(1), the court a
quo
opined that this section is wider in its scope than the equivalent
section 18 in the former Constitution. This, so it reasoned, is
because it qualifies the protection and benefit of the law by the use
of the word 'equal'. Again, with the greatest of respect, this
reasoning is fatally flawed. The use of the word 'equal' does
indeed qualify the protection and benefit of the law, but it does so
by restricting rather than broadening the scope of section 56(1).
What this provision means is that all persons in a similar position
must be afforded equality before the law and the same protection and
benefit of the law… In essence, section 56(1) is a
non-discrimination clause that guarantees equality under the law. The
applicant a
quo
(the third respondent in
casu)
did not make any allegation of unequal treatment or differentiation.
He did not demonstrate that he was denied the protection of the law,
while others similarly positioned were afforded such protection. He
failed to show that the enactment or amendment of section 186 of the
Constitution operated to discriminate against him in favour of others
in the same or similar position. He thereby failed to establish that
he had been denied equal protection and benefit of the law. In the
event, he entirely failed to establish any infringement of the rights
guaranteed by section 56(1).”
[101] In
casu,
the appellants compare their position to that of the indigenous
population who are afforded ownership rights in areas such as
Borrowdale. They had perforce to demonstrate that the law treats
dwellers in communal areas differently from those in urban areas.
However, in my view, the critical distinction is that urban areas do
not constitute agricultural land. As such, the allegation of unequal
treatment of persons in a similar position cannot be sustained
inasmuch as a comparison of ownership in Borrowdale or urban areas is
concerned.
[102] That
the rights to occupy the land they claim are guaranteed under the
Communal Land Act is apparent from the language in section 8 of the
Act. What needs clarity is whether or not our law has no provision
for individual ownership of communal land. It is suggested that the
vestiture of the land in the President militates against several
rights. I now consider how the President is empowered to deal with
the land the law has vested in him.
[103] I
turn to consider section 6 of the Communal Land Act, one of the
sections the appellants identified as repugnant. It reads as follows:
“6
Additions to and subtractions from Communal Land
(1)
Subject to this Act, the Forest Act [Chapter
19:05]
and the Parks and Wild Life Act [Chapter
20:14],
the President may, by statutory instrument —
(a)
declare that any State Land shall form part of Communal Land;
(b)
after consultation with any rural district council established for
the area concerned, declare
that any land within Communal Land shall cease to form part of
Communal land.
(2)
Whenever the President has published a declaration in terms of
subsection (1), the Minister shall, by statutory instrument, amend
the instrument published in terms of subsection (1) or (3) of section
five,
as the case may be, to reflect such declaration.
(3)
Whenever any land ceases to form part of Communal Land in terms of a
declaration published in terms of subsection (1), such
land shall thereupon become State land until it is granted, sold or
otherwise disposed of in terms of this Act or any other law.”
(the
emphasis is mine)
[104] Tenure
and security, especially for communities residing on communal land
governed by customary law principles, has been a contentious issue
during and after the colonial era. Customary land tenure is regarded
as the most insecure land tenure system currently applicable, given
the advancement and recognition of private land tenure as the best
and superior mode of land tenure. A perusal of section 6(3) of the
Communal Land Act puts paid to the contention by the appellants that,
as a community occupying communal land, the law discriminates against
them by not giving them the right to ownership of land as
individuals. The provision empowers the President to excise land from
within the boundaries of a communal area. Once a declaration to that
effect has been made, the land becomes State land which may then be
granted, sold, or disposed of in any other manner under the Communal
Land Act or any other law within the country. This provision gives
the President the authority to pave the way for the ownership of such
land in any of the methods described above. The law enables any
person who so wishes to acquire as owner land that is no longer part
of communal land. It is not unconstitutional, as contended by the
appellants. It serves a purpose for the majority of rural dwellers
within the length and breadth of the country. In this endeavour, it
is difficult to discern how section 6, which permits individual
ownership of previously communal land, can be found unconstitutional
as alleged.
[105] In
contending that the law governing communal land was inimical to
rights of individual ownership, the appellants ought to have invited
the Court to construe this provision against the law that they
contend permits private ownership to pieces of land in urban areas.
They have not established that their rights as dwellers of communal
land are discriminatory against them as opposed to those of urban
dwellers. This would have necessitated a comparison of the relevant
laws and an analysis showing discrimination within the law against
communal land dwellers as opposed to urban dwellers. The appellants
do not even advert to the law governing ownership in areas other than
communal land. In this regard, the Court finds that the appellants
have not established the allegation that section 6 of the Communal
Land Act violates section 56(1) of the Constitution.
THE
LAND TENURE REGIME
[106] It
is appropriate at this juncture to examine the contention that
section 4 of the Communal Land Act bestows rights of ownership over
that land on the President. The Regional Town and Country Planning
Act [Chapter
29:12]
defines what ownership as it pertains to property means. An owner
means:
“(a)
in the case of land which is vested in the President —
(i)
if it is not Communal Land, the Minister responsible for the
administration of the land concerned; or
(ii)
if it is Communal Land, the Minister responsible for the
administration of the Communal Land Act [Chapter
20:04];
(b)
in the case of land which is not vested in the President —
(i)
the person who is registered in the Deeds Registry as the owner of
the property; or
(ii)
a local authority or a statutory body to which the ownership of the
property has been transferred or vested by any enactment; or
(iii)
the person lawfully holding the property in accordance with any
enactment or agreement with the State or a local authority or a
statutory body which entitles that person to obtain title thereof on
the fulfilment by him of the conditions fixed by or in terms of such
enactment or agreement; and includes —
A.
the legal representative of a person referred to in subparagraph (i)
or (iii) of paragraph (b)
who has died, has become insolvent, is a minor, is of unsound mind or
is otherwise under disability; or
B.
the liquidator of a company which is a person referred to in
subparagraph (i) or (iii) of paragraph (b).”
[107] Land
is a national resource and its use and occupation must be regulated.
It is, therefore, only logical that a central authority be vested
with the power and the obligation to ensure that use and domain are
held for the good and benefit of the country's inhabitants. Ownership
and control are, as a result, therefore vested in a responsible party
or authority in a nominal capacity. As is evident from the above, the
President merely holds the land in communal areas as a trustee. In
casu,
the law has vested ownership of communal land in the Minister
responsible for administering the Act, currently, the Minister of
Local Government and Public Works who is cited herein as the second
respondent in this suit. It seems to me that the contention that
section 4 is unconstitutional, given the governing law on vestiture,
is ill-conceived.
The
preamble to the Communal Land Act reads:
“AN
ACT to provide for the classification of land in Zimbabwe as Communal
Land and for the alteration of such classification; to alter and
regulate the occupation and use of Communal Land; and to provide for
matters incidental to or connected with the foregoing.”
[108] In
turn, section 4, which is the provision at the centre of this
litigation, reads:
“4.
Vesting of Communal Land
Communal
Land shall be vested in the President, who shall permit it to be
occupied and used in accordance with this Act.”
[109] In
defining agricultural land, section 72 of the Constitution makes a
positive pronouncement that excludes communal land and land within
the boundaries of an urban local authority or a township. Therefore,
I consider the relevant provisions of the Urban Councils Act [Chapter
29:15].
Perusal of section 4 of the Act reveals that land, unless excised to
a council, is vested in the President. Accordingly, the pertinent
provisions of section 4 sections are set out hereunder and read as
follows:
“4.
Provisions relating to establishment, alteration or abolition of
municipalities, towns, councils and council areas
(1)
Whenever the President considers it desirable he may, subject to this
Act, by proclamation in the Gazette,
after any local authority concerned has been consulted, establish a
municipality or town and —
(a)
shall establish a municipal council or a town council, as the case
may be, therefor; and
(b)
shall fix the area of the municipality or town; and
(c)
shall assign a name to the municipality or town; and
(d)
may, after consultation with the Commission, divide the council area
into any number of wards.
(2)
At any time after the establishment of a council the President may,
subject to this Act, by proclamation in the Gazette
and
after consultation with the council and (in relation to the division
or redivision of the council area into wards) the Commission —
(a)
alter the name of the municipality or town;
(b)
divide or redivide the council area into any number of wards, create
one or more additional wards, alter or abolish one or more wards or
abolish the division of the council area into wards;
(c)
alter the boundaries of the council area by adding thereto and
additionally, or alternatively, subtracting therefrom any area,
determine any question arising therefrom and redefine the council
area:
(d)
abolish the municipality, town or council.
(3)
Where a municipality or town is abolished or the whole or any part of
the area of a local authority is included in a council area or a
separate council is established for that area, the President shall —
(a)
make such transfer, disposal or apportionment of property, assets,
rights and liabilities; and
(b)…….n/a
(4)…….n/a
(5)…….
n/a
(6)
Where the President has —
(a)
in terms of subsection (3) transferred or apportioned any property or
assets to a municipality or town, the ownership of such property or
assets shall vest in that council with effect from such date as may
be specified by the President and, in the case of immovable property,
a Registrar of Deeds shall, at the request of that council, cause,
free of charge, the name of that municipality or town to be
substituted as the owner of the property concerned in the appropriate
register in the Deeds Registry and on the deeds relating to that
property;
(b)
given any direction in terms of subsection (3), the person to whom
that direction has been given shall forthwith comply with that
direction.”
[110] Under
the sections referred to above, the President is empowered to
transfer land and alter boundaries within municipal areas. Once he
has done so, the property transferred vests in the local authority
concerned. Where it involves immovable property, the municipality
then owns the land, with ownership thereof being registered in the
Deeds Registry. This is in accord with the description of owner that
is found in the Regional, Town, Country, and Planning Act.
[111] If
regard is had to the provisions of section 4 of the Communal Land Act
and the definition of “owner” that appears in the Regional, Town,
and Country Planning Act, it stands to reason that the claim by the
appellants that they are owners in their own right of the land they
occupy is not justified under the law. It goes without saying that
all land that is not privately owned is State land and is vested in
the President. It becomes evident that all State land is controlled
by and the manner of dealing with it is the preserve of the
Executive. The appellants have not shown that their land is not part
of State land. Their claim to its ownership is, therefore, devoid of
merit. It is not consistent with the general law, nor is it
consistent with the Constitution and, in particular, sections 71 and
72. The Constitution has made all land acquired under the Land Reform
Programme State land. This is evident from a perusal of section 72(4)
of the Constitution, which I have referred to above.
[112] The
appellants suggest that the provisions of the Communal Land Act are
disparate and distinct from those of urban land in that whereas
communities in communal areas are not permitted by law to private
individual ownership over land. In contrast, there is provision for
private ownership of land in urban areas such as Borrowdale. The same
right is not accorded to communal land occupiers. While a fair bit of
criticism has been levelled at the legislation, little or no effort
has been made to discuss the alleged infringement. An examination of
the law pertaining to urban land becomes inevitable. The powers
exercised by the President under the Communal Land Act are also found
in the Regional, Town, Country, and Planning Act. That Act provides:
“45
Powers of acquisition
(1)
Subject to this Act, land within the area of a local planning
authority may be acquired —
(a)
for the implementation of any proposal, including development,
redevelopment or improvement, contained in an operative master plan
or local plan or an approved scheme; or
(b)
in terms of section forty-seven
or forty-eight.
(2)
An acquisition of land in terms of this Act may be by way of —
(a)
purchase, exchange, donation or other agreement with the owner of the
land; or
(b)
expropriation in accordance with section forty-six;
or
(c)
the imposition in a permit of a condition referred to in section
forty-one.
(3)
n/a
(4)
n/a
(5)
Any land acquired in terms of this Part by a local planning authority
which —
(a)
is a local authority shall vest in such local authority;
(b)
is
not a local authority shall vest in the President.
(6)
n/a”
[113] Mr.
Biti
conceded during an exchange with the Court that the law permitted
rights of ownership of land located in communal lands even though he
said this was a rare occurrence. The provision in section 6(3) of the
Act permitting the grant of State land, therefore, allows the
transfer of such land to any person depending on the reason for
transfer. Consequently, it seems that when regard is had to the
provisions of section 6(3) of the Communal Land Act, the President
may declare any part of communal land as State land and that
thereafter such land remains State land until granted or disposed of
in terms of any law.
[114] The
designation of land as communal land is not adverse to ownership of
such land once the designation is altered. The law permits the
alteration and changes in boundaries of land classified as communal
land. The designation is not cast in stone. The
law governing security of tenure, whether it is urban or rural land,
is consistent. The contention that section 56 has been violated under
the law on tenure relating to rural communities has not been
justified in this dispute. Consequently,
the premise upon which the appellants approached the court a
quo
is without legal or factual basis.
[115] The
contention by the appellants that the vestiture of communal land in
the President as provided for in section 4 of the Communal Land Act
is unconstitutional is therefore not justified in law. Where land is
vested in the President, it is vested in him as a trustee.
Accordingly, it is transferred, excised, or disposed of, as the case
may be, in accordance with the legislative provisions pertaining to
the particular land designation that the law provides.
[116] In
sum, therefore, in terms of section 72(4) of the Constitution, all
agricultural land acquired under the Land Reform Programme remains
State land. In terms of section 43 of the Regional, Town and Country
Act, any land acquired under that section by a planning authority
that is not a local authority shall vest in the President. In turn,
section 4 of the Communal Land Act vests such land in the President.
Despite the provisions that vest land in the President or local
authority under the Regional Town and Country Planning Act, the owner
of the land in question for purposes of the law is the Minister
assigned with the administration of the land in terms of an Act of
Parliament. In all other cases, the owner is either the person
holding title deeds or the local authority. Many other specified
species of ownership are not pertinent for discussion.
[117] The
inescapable conclusion is that section 4 of the Communal Land Act is
not unconstitutional. It is consistent with other statutory
provisions relating to land tenure and dovetails with section 72(4)
of the Constitution. When read with section 71(2) of the
Constitution, I find the Communal Land Act is replete with guarantees
of occupation and use for the communities ad
infinitum.
The rights of the communities are unfettered. The appellants have
sought to impugn sections 4 and 6 of that Act on the premise that
they are a relic from the past. The law on land tenure does not
reflect the racial connotation they allege.
[118] As
the alleged infractions by the respondents were based upon a
non-existent right to land under section 71, it follows that all the
other alleged rights cannot be vindicated. In
the case of Mutasa
and Anor v The Speaker of the National Assembly and Ors
CCZ
9/15, it was held at page 14 that:
“It
would be absurd to come to a conclusion that an act done in terms of
the provisions of the Constitution can violate someone's rights
under the same Constitution. In other words, the applicants could not
have been successful in challenging an act that was sanctioned by the
supreme law of the land.
The
Constitution is one document that contains provisions that are
consistent with each other. One provision of the Constitution cannot
be used to defeat another provision in the Constitution. Different
provisions of the Constitution must be interpreted with a view to
ensuring that they operate harmoniously to achieve the objectives of
the Constitution.”
[119] A
constitution is an ultimate law in any jurisdiction. It can be
amended where its amendment is provided for. However, it binds all
that is subject to it. It cannot be challenged or impugned, and it
cannot be criticized. It represents the will of its subjects. In this
case, the Constitution has found it appropriate to set out the rights
to occupy and own land in communal land within the parameters and the
four corners of the statute governing occupation of that land. The
same conditions of occupation of that land are replicated in the
provisions of section 72 of the Constitution. The Court cannot, in
the circumstances, hold that the provisions of the Communal Land Act
are inconsistent with the Constitution. The Constitution itself has
given the Act validity.
DISPOSITION
[120] The
appellants have always occupied communal land. Unless the
classification of such land is altered, they cannot be heard to
allege that the law is unconstitutional. After all, they are not the
only community inhabiting communal land. Given the provisions of
sections 71 and 72 of the Constitution, wherein the property rights
relating to communal land are subject to the Communal Land Act, the
rights of the appellants to rural land are to be found in the Act. As
all the alleged violations stemmed from a perceived right under
section 71, it stands to reason that the whole case has no merit and
must be dismissed.
[121] Accordingly,
it is ordered as follows:
The
appeal is dismissed with no order as to costs.
MALABA
CJ: I
agree
GWAUNZA
DCJ: I
agree
GARWE
JCC: I
agree
MAKARAU
JCC: I
agree
HLATSHWAYO
JCC: I
agree
PATEL
JCC: I
agree
Tendai
Biti Law,
legal practitioners for the appellants
Civil
Division of the Attorney General's Office, legal practitioners for
the respondents
