PARLIAMENT’S Legal Committee has criticised the Presidential Powers (Temporary Measures)(Acquisition of Farm Equipment or Materials 2003) statutory instrument saying its regulations contravene t
he enabling Act and the Declaration of Rights.
“After careful and extensive examination of the regulations, my committee came to the unanimous view that the regulations violate the enabling Act and contravene the Declaration of Rights,” said Welshman Ncube, the acting chairman of the committee in a report.
Ncube said the fundamental defect of the regulations themselves was that they did not have an enactment clause, indicating as required the authority that made the regulations or the authority in which they were vested.
He said the regulations violated provisions of Section 16 of the constitution.
Under Section 16 no property of any description or interest or right therein shall be compulsorily acquired except under the authority of the law 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 utilisation of the property for a purpose beneficial to the public generally or to any section of the public.
The section also requires the acquiring authority to give reasonable notice of the intention to acquire the property, pay fair compensation for the acquisition within a reasonable time and the person whose property has been acquired has the right to ask the High Court or any other court for the prompt return of the property if the court does not confirm the acquisition.
“It is clear from the text and spirit of Section 16 that the right to property is firmly entrenched in our constitution and that the only derogations from this right the law allows are those that are reasonably necessary,” Ncube said.
“My committee reached the conclusion that the provisions of the statutory instrument 273A cannot be justified in terms of these expectations (defence, public safety, public order, public morality, public health and town and country planning),” Ncube added.
Ncube said that the statutory instrument failed to make a distinction between an illegitimate and legitimate acquisition.
“The constitution requires the acquiring authority to pay fair compensation for the acquisition before or within a reasonable time after acquiring the property,” he said, “While on the other hand Section 8 of the regulations empowers the administrative court to fix any compensation that it deems reasonable in the circumstances.”
“The exclusion of fairness as a criterion for determining of compensation in terms of the regulations is in violation of the constitution,” he said.
The committee said the regulations under consideration, among other things, ban the destruction or disablement of farm implements and authorise the state to compulsorily acquire farm equipment or materials.
The Presidential Powers (Temporary Measures) Act is a special piece of legislation that represents a departure from the doctrine of the separation of powers.
The general motive behind the Act is to empower the president to make laws to deal with matters that require immediate attention.
The power to legislate rests with parliament and the process of passing legislation is governed by rules contained in the constitution and by parliamentary conventions as provided in the standing rules and orders. These rules ensure transparency and accountability in the legislative process.
Meanwhile a Bill to regularise the statutory instrument was introduced in parliament on Wednesday. It is currently being considered by the legal committee.