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REPORTABLE (95)

Judgment No. SC 116/02

Const. Application No. 264/02

FRONTLINE MARKETING SERVICES (PRIVATE) LIMITED v

(1) THE GRAIN MARKETING BOARD

(2) THE MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT N.O.

(3) THE ATTORNEY-GENERAL OF ZIMBABWE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA  JA, CHEDA JA, MALABA JA & GWAUNZA JA

HARARE, NOVEMBER 26, 2001 & JANUARY 20, 2003

L L Chipato, for the applicant

D Machingura, for the first respondent

B Patel, with him Y Dondo, for the second and third respondents

SANDURA  JA: This application has been brought to this Court in terms of s 24(1) of the Constitution of Zimbabwe (“the Constitution”) for redress in respect of alleged contraventions of the Declaration of Rights. The applicant seeks the following relief:

“IT IS HEREBY DECLARED THAT:

1. Section 3 of Statutory Instrument 235A of 2001, the Grain Marketing (Controlled Products Declaration) (Maize and Wheat) Notice, 2001, and section 29 of the Grain Marketing Act [Chapter 18:14] (are) inconsistent with section 16(1) of the Constitution of Zimbabwe and (are) therefore invalid insofar as (they):

(a) vest in the Minister of Lands, Agriculture and Rural Resettlement the exclusive privilege of declaring any product to be a controlled product; and

(b) vest in the Grain Marketing Board the exclusive privilege of determining whether or not to grant any person permission to remove (from) or bring into a prescribed area any controlled agricultural produce or any product derived therefrom.

2. Section 26, section 33 and section 34 of the Grain Marketing Act [Chapter 18:14] and Statutory Instrument 235A of 2001 are inconsistent with section 21(1) of the Constitution of Zimbabwe and (are) therefore invalid insofar as they:

(a) (have) declared the whole of Zimbabwe to be a prescribed area; and

(b) vest with the Grain Marketing Board the exclusive privilege of carrying on the trade of marketing, importing, buying, selling, acquiring and disposing of all controlled products in Zimbabwe.

IT IS ORDERED THAT:

3. The applicant be and is hereby entitled to import the maize product into Zimbabwe free from interference from the Grain Marketing Board.

4. The applicant be and is hereby entitled to market, distribute, acquire and dispose of all grain, including the maize commodity or any product derived therefrom, free from interference from the Grain Marketing Board.

5. The second respondent is hereby directed to issue the applicant with Import Permits in terms of the Control of Goods (Import and Export) (Agriculture) Order, 1993.

6. The applicant is hereby entitled to commence the importation of maize into Zimbabwe in line with the permits already granted to it by the second respondent.”

The first respondent, through its counsel, indicated that it would abide by the decision of this Court, but the second and third respondents opposed the application.

The background facts are these. The applicant is a company duly incorporated in accordance with the laws of Zimbabwe. It carries on the business of agents, importers, exporters, distributors, buyers and sellers of all classes of goods and commodities. It would like to import maize into Zimbabwe and sell it in Zimbabwe without involving the first respondent (“the GMB”). Although it has been issued with permits to import maize into Zimbabwe by the second respondent (“the Minister”), once the maize has been imported it cannot be sold or otherwise disposed of to anyone other than the GMB. That is so because in terms of the provisions of the Grain Marketing Act [Chapter 18:14] (“the Act”) the GMB has the monopoly of buying and selling maize.

In the circumstances, the applicant challenges that monopoly on the ground that it infringes the applicant’s constitutional rights guaranteed in terms of s 16(1) and s 21(1) of the Constitution.

I now wish to set out the constitutional and statutory provisions in issue.

Section 16(1) of the Constitution, in relevant part, reads as follows:

“… no property of any description or interest or right therein shall be compulsorily acquired except under the authority of a law that –

(a) requires –

(i) in the case of land or any interest or right therein …; or

(ii) in the case of any property, including land, or any interest or right therein, that the acquisition is reasonably necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning or the utilization of that or any other property for a purpose beneficial to the public generally or to any section of the public; and

(b) to (f) …”.

Section 21(1) of the Constitution, which deals with the protection of the freedom of assembly and association, reads as follows:

“Except with his own consent or by way of parental discipline, no person shall be hindered in his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties or trade unions or other associations for the protection of his interests.”

Section 26 of the Act, which deals with the functions and duties of the GMB, reads as follows:

“The functions and duties of the Grain Marketing Board shall be –

(a) to do all things necessary and consistent with the provisions of this Act to ensure the orderly marketing of controlled products within any prescribed area;

(b) to buy and sell any controlled product which is delivered to or acquired by it under the provisions of this Act;

(c) to provide storage, handling and processing facilities for controlled products;

(d) to maintain stocks of controlled products as it may consider necessary;

(e) to import or export controlled products as it may consider necessary;

(f) to do such other things, whether in relation to a controlled product or not, not inconsistent with this Act, as may be required by the Minister.”

Section 29(1) of the Act, which deals with the declaration of controlled products, reads:

“The Minister may, by statutory instrument, declare any agricultural product or any product derived therefrom to be a controlled product and shall specify in the statutory instrument the area within which the product shall be a controlled product.”

Section 33(1) of the Act, which deals with the sale or disposal of controlled products, reads:

“Subject to subsection (8), section thirty-five and any order made in terms of paragraph 1 of the Schedule, no person shall sell or otherwise dispose of any controlled product within the prescribed area except to the Grain Marketing Board.”

Finally, section 34(1) of the Act, which deals with the acquisition of controlled products, provides as follows:

“Subject to subsection (8) of section thirty-three, section thirty-five and any order made in terms of paragraph 1 of the Schedule, no person shall buy or otherwise acquire within the prescribed area any controlled product otherwise than from the Grain Marketing Board.”

It is important to note that in terms of s 35(1) of the Act any person who has acquired a controlled product from the GMB in terms of the Act is permitted to sell or otherwise dispose of the controlled product within the prescribed area in the normal course of business, provided he complies with any terms and conditions set by the GMB. Similarly, any person may acquire such controlled product from the person selling or otherwise disposing of it in the normal course of business.

I now come to the declaration of maize as a controlled product. On 16 July 2001 the Minister, acting in terms of s 29(1) of the Act, issued the Grain Marketing (Controlled Products Declaration) (Maize and Wheat) Notice, 2001, published in Statutory Instrument 235A of 2001 (“the Notice”), which declared that maize, maize-meal, wheat and wheat-flour were, with effect from that day, controlled products within the whole of Zimbabwe.

The effect of the declaration, as far as the applicant was concerned, was that if it imported maize into Zimbabwe it could not sell or otherwise dispose of it except to the GMB, as required by s 33(1) of the Act.

The most important issue which arises in this application is whether the freedom of trade or economic activity is protected by s 16(1) of the Constitution. In my view, it is not. Unlike the South African Constitution, the Constitution of Zimbabwe does not have any provision dealing with the freedom of trade, occupation or profession, or the right freely to engage in economic activity.

Section 26 of the Interim Constitution of the Republic of South Africa (Act 200 of 1993) reads as follows:

“26. Economic activity

(1) Every person shall have the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory.

(2) Subsection (1) shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labour practices or equal opportunity for all, provided such measures are justifiable in an open and democratic society based on freedom and equality.”

However, the above section was not reproduced in the final Constitution of the Republic of South Africa (Act 108 of 1996). In this regard, section 22 of the final Constitution, which replaced section 26 of the Interim Constitution, reads as follows:

“22. Freedom of trade, occupation and profession

Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.”

In passing, I wish to say that there are important differences between section 26 of the Interim Constitution and section 22 of the final Constitution of the Republic of South Africa. As JONES J said in JR1013 Investments CC & Ors v Minister of Safety and Security & Ors 1997 (7) BCLR 925 (E) at 928 F-g:

“The differences between the rights enshrined in the new Constitution and the interim Constitution are significant. The old section, section 26, entrenched a right to engage in economic activity and to pursue a livelihood. It gave this right to any person. The new Constitution confines its application to citizens. It does not give them the right to engage in or pursue anything. Instead it gives them a right to choose a trade, occupation or profession. The new Constitution has deliberately brought about a change. The right to choose a trade, occupation or profession is entirely different in nature from a right either to engage in economic activity or to pursue a livelihood. It is wider in content. It is sacrosanct.”

Thus, although the final Constitution of the Republic of South Africa grants to every citizen the right to choose his/her trade, occupation or profession, the practice of such a trade, occupation or profession may be regulated by law.

It is pertinent to note that in terms of s 11 of the Constitution of Zimbabwe, which is the preamble to the Declaration of Rights, the fundamental rights and freedoms of the individual afforded protection are those specified in the Declaration of Rights. The section, in relevant part, reads:

“Whereas persons in Zimbabwe are entitled … to the fundamental rights and freedoms of the individual specified in this Chapter, … the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms …”.

In my view, the fact that the right freely to engage in economic activity of one’s choice is not one of the fundamental rights and freedoms of the individual specified in the Declaration of Rights is significant. It must mean that the right is not one of those afforded protection by the Constitution.

In addition, I do not believe that the submission made on behalf of the applicant, that “the applicant’s right to trade in the maize commodity is property within the meaning of, and is guaranteed by, s 16(1) of the Constitution”, has any validity. Such a right is not an absolute right.

Commenting on the right to trade, DE VILLIERS JA had this to say in Mathews & Ors v Young 1922 AD 492 at 507:

“In the absence of special legal restrictions a person is without doubt entitled to the free exercise of his trade, occupation or calling, unless he has bound himself to the contrary. But he cannot claim an absolute right to do so without interference from another. Competition often brings about interference in one way or another about which rivals cannot legitimately complain. But the competition and indeed all activity must itself remain within lawful bounds. All a person can, therefore, claim is the right to exercise his calling without unlawful interference from others.”

The same point is made, perhaps more forcefully, by McKerron in The Law of Delict 7 ed at p 270, where the learned author says the following:

“But this right is subject to and conditioned by the existence of like rights in others. It is therefore not a right in the strict sense, in the sense of a legally protected interest, but merely a liberty or power – that is, a capacity of doing something which the law does not forbid, a mere negation of duty.”

In the circumstances, it would be wholly inappropriate and incorrect to describe the alleged right to buy and sell maize as property or as a legally protected interest. Accordingly, it is not protected by s 16(1) of the Constitution.

Having come to that conclusion, the other issue, i.e. whether the applicant’s right to trade with any person of its choice in the course of buying and selling maize is protected by s 21(1) of the Constitution, falls away. That is so because the alleged right to buy and sell maize is not protected by the Constitution and can, therefore, be regulated by law, which has been done by the enactment of the Grain Marketing Act [Chapter 18:14].

It therefore follows that the application is without merit and ought to be dismissed.

Finally, as far as costs are concerned, Mr Patel, who appeared for the second and third respondents, informed the Court that in view of the fact that important questions have been raised in this application, if the application is dismissed there should be no order as to costs. I am in complete agreement with that approach.

In the circumstances, the application is dismissed with no order as to costs.

CHIDYAUSIKU CJ: I agree.

CHEDA JA: I agree.

MALABA JA: I agree.

GWAUNZA JA: I agree.

Jabula, applicant's legal practitioners

Dube, Manikai & Hwacha, first respondent's legal practitioners

Civil Division of the Attorney-General’s Office, second and third respondents' legal practitioners

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