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Court reserves judgment in farmers' case
The Herald (Zimbabwe)
March 24, 2007

http://www.herald.co.zw/inside.aspx?sectid=16771&cat=1

THE Supreme Court has reserved judgment in the case in which two Chegutu commercial farmers are challenging the validity of a certain section of the Constitution which bars those whose land was acquired under the land reform programme to sue Government.

Under the Constitution of Zimbabwe Amendment Number 17, the courts are also barred from hearing land cases, making it impossible for the farmers to challenge the acquisition of their farms in court.

Government came up with the amendment to bring finality to the land reform programme, whose implementation and conclusion was being delayed by numerous legal challenges by white former farmers whose land was acquired for resettlement.

In the constitutional case brought by Mike Campbell Private Limited and Mr William Michael Campbell before a full bench of the Supreme Court, the two are seeking to nullify Section 16B of the Constitution, "introduced by the Constitution of Zimbabwe Amendment Number 17".

The Minister of National Security, Lands, Land Reform and Resettlement, Cde Didymus Mutasa, and Andries C. Kok are listed as the first and second respondents.

The constitutional bench, led by Chief Justice Godfrey Chidyausiku and comprising Justices Vernanda Ziyambi, Luke Malaba, Elizabeth Gwaunza and Paddington Garwe, reserved judgment after lawyers for both parties presented their arguments.

The court is to determine whether denying citizens the right to approach the court on grievances against the State action and prohibiting the courts from adjudication on the land cases abrogates their rights.

South Africa-based Advocates Jeremy Gauntlet and Adrian de Bourbon argued for the farmers while Mrs Elizabeth Mwatse and Mr Nelson Mutsonziwa of the Civil Division in the Attorney General's Office appeared for Cde Mutasa. Adv Gauntlet, in his submission, asked the court to nullify Section 16B in its entirety, saying its effect and implementation infringe on the essential features and core values of the Constitution.

He further argued that Section 16B(3) of the Constitution sought to block the determination of any dispute regarding land acquisition by any court.

"Any challenge to the acquisition of farms listed in the Gazettes set out in Schedule 7 is sought to be excluded by the amendment to the Constitution and the introduction of section 16B(3).

"It is the contention of the applicants that such a provision so undermines the basic structures of the Constitution that the amendment is invalid," said Adv Gauntlet.

The ouster, he argued, was ineffective and the court could not be prevented from embarking on the threshold inquiry whether the actions taken against the applicants were in fact in terms of the valid empowering provision.

Adv Gauntlet said the concept of the judiciary, as an independent body overseeing the acts of the executive, was a fundamental structure of the country's supreme law.

"If the separation of powers is rendered unworkable, so is the Constitution itself."

Adv Gauntlet further said it was not every change to the Constitution that undermines the basic structure of the Constitution.

"It is only when the core values of the Constitution, which fall within the basic structure of the Constitution, are sought to be removed or undermined that the courts would hold the attack on the basic structure to be invalid."

He said the attempt by Parliament to exclude the rights of courts to settle disputes between the State and its citizens or residents by enacting a disputed section had so grossly undermined the basic structure of the Constitution of Zimbabwe as to render that amendment invalid.

He said the court was obliged to use section 3 of the Constitution to preserve the very structure of democracy inherent in the supreme law and grant the relief sought.

Adv de Bourbon argued that in so far as the compensation was concerned, for an acquisition to be valid it should be done in terms of a law which provides for the payment of fair compensation before or within a reasonable time of the acquisition. He said 18 months after the farm was acquired, no compensation had been paid so far.

Adv de Bourbon argued that while the Constitution of Zimbabwe prohibits any provision that is discriminatory, it appeared the Government was targeting white commercial farms alone.

He said the intended effect of the Constitution of Zimbabwe Amendment Number 17 was to rationalise and give legal effect to discriminatory treatment against those farm owners who had been singled out because of their race or colour. Mrs Mwatse, in her response, said Section 16B of the Constitution addressed a fundamental right to land for the people of Zimbabwe who fought to reassert their rights and regain ownership of their land.

She said courts could not be ousted by an ordinary Act of Parliament. However, the Constitution, she said, could create an exception. She said courts could hear other issues relating to land such as compensation.

"The exception created by Section 16B(3) was to facilitate the acquisition which was frustrated by endless litigation which only came to an end with the promulgation of the Amendment.

"Government had to expropriate land in the interest of the public," she said.

Mrs Mwatse said the exception created by a law to compulsorily acquire land did not attack the separation of powers doctrine.

The exception, she said, was done for public good and was not vindictive and tainted with malice.

"The issue of land was not addressed by the Lancaster Constitution which was reached through compromise.

"It was an issue that needed to be addressed by the Constitutional Amendment," she argued.

Mrs Mwatse said the concept of basic structures of the Constitution was one that was not determined yet from Zimbabwe's viewpoint.

"The right to land ownership by the majority of Zimbabweans would undoubtedly have been an essential feature of the Constitution had it been homegrown."

Mr Mutsonziwa argued that the delay in paying compensation did not invalidate the acquisition of the Campbell family's farm. He said the aggrieved party had the right to sue for compliance by the acquiring authority and that is the remedy open to the Campbells.

"Acquisition is not conditional or dependent on compensation. Acquisition is in terms of the Constitution. Applicants must enforce compensation citing the section which was violated," Mr Mutsonziwa said.

He dismissed claims by the applicants' lawyers that they were being discriminated against in the acquisition of land.

Mr Mutsonziwa said it was accepted that those who owned the most land were white and those who were benefiting from the land reform were mostly black.

Laws on acquisition, he said, were not discriminatory.

He said the laws provide for the taking of the land from a small section of the population that had vast tracts of land, and redistributing to the landless majority.

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