Zimbabwe Journal Analyzes Indigenisation Reforms

Kempton Makamure Labour Law Journal
Volume 3: 2011
______________________________________________________
LEGAL AND CONSTITUTIONAL REFORMS ON
INDIGENISATION, ECONOMIC EMPOWERMENT AND
WORKERS’ RIGHTS.
ISSN: 2223-5337
______________________________
Product of the
Kempton Makamure
Labour Law Lecture
Series, Faculty of Law,
University of Zimbabwe

Kempton Makamure Labour Law Journal Vol. 3, 2011: Legal and Constitutional Reforms on Indigenisation, Economic Empowerment and Workers’ Rights
1
Kempton Makamure Labour Law Journal
Volume 3: 2011
Legal and Constitutional Reforms on Indigenisation, Economic
Empowerment and Workers’ Rights.
Product of the
Kempton Makamure Labour Law Lecture Series
Faculty of Law, University of Zimbabwe
ISSN: 2223-5337
KMLLLS Board Zimbabwe Labour Centre Rosa Luxemburg Stiftung Open Society Initiative
Faculty of Law for Southern Africa

2
THE KEMPTON MAKAMURE LABOUR LAW LECTURE SERIES BOARD,
FACULTY OF LAW, UNIVERSITY OF ZIMBABWE (2010-2012)
The Kempton Makamure Labour Law Lecture Series and Journal Board has the vision of developing
a leading Southern Africa labour law development platform in the service of the working class and
toiling masses, consistent with the dialectical and historical materialist world outlook that Kempton
Makamure held and fought for most of his life.
Coordinator: Munyaradzi Gwisai
Editor-in-Chief: Lenin Tinashe Chisaira
Editorial Board: Talence Temba
Tawanda Katsuro
Shamiso Nyagura
Tafadzwa Miti
Nelson Mashizha
Tinashe Didymus Makuyana
Julian Herman
This issue graciously supported by: Commercial Law Institute, Univ. of Zimbabwe
Zimbabwe Labour Centre
Rosa Luxemburg Foundation
Open Society Initiative for Southern Africa (OSISA)
ISSN Number: 2223-5337
To assist, fund, support and become a Friend of the Kempton Makamure Labour Law Lecture Series
please get in touch at:
Kempton Makamure Labour Law Lecture Series (KMLLLS) Board
Faculty of Law
P.O. Box MP 167
Mount Pleasant, Harare
Tel / Fax: +263 4 333556 E-mail: faculty@law.uz.ac.zw
Published by: Kempton Makamure Labour Law Lecture Series Board,
Zimbabwe Labour Centre
Copyright: © 2011 Kempton Makamure Labour Law Lecture Series Board,
Zimbabwe Labour Centre & The Authors
Disclaimer: All works may be cited or reproduced, provided the source is acknowledged.
The views and opinions expressed in the articles in KMLLJ are those of the
author(s) and do not necessarily reflect the views or opinions of the editors, the
reviewers, the publishers or the supporting law faculty.

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TABLE OF CONTENTS
The Kempton Makamure Labour Law Lecture Series Board, Faculty of Law, University of
Zimbabwe (2010-2012).................................................................................................................................................... 2
The Editor’s Note
Lenin Tinashe Chisaira........................................................................................................................................................... 4
The Historical and Contextual Background to Indigenisation and Empowerment Reforms:
Government’s Perspectives
Hon. Saviour Kasukuwere ..................................................................................................................................................... 6
Business Perspectives on Indigenisation and Employee Share Ownership Schemes
Tawanda Nyambirai .............................................................................................................................................................14
“A Revolution benefits those who start it...” The Working Class and the Indigenisation and
Empowerment Agenda in Zimbabwe
Munyaradzi Gwisai ................................................................................................................................................................19
Civic Society Perspectives on Indigenisation, Economic Empowerment and Workers Rights.
Dr. Lovemore Madhuku........................................................................................................................................................50
Indigenisation, Empowerment and the Working Class (Keynote Address)
Hon. Prof. Aurthur G.O. Mutambara................................................................................................................................55
Conference Programme ..................................................................................................................................................61
Journal Orders......................................................................................................................................................................62

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THE EDITOR’S NOTE
LENIN TINASHE CHISAIRA1
The Indigenisation and economic empowerment debate in Zimbabwe has taken centre
stage in the country as and beyond at the time we conducted the Kempton Makamure
Labour Law Lecture Series 2010. However, the discourse has mainly taken place between
the ruling elite, politicians, multinationals (MNCs) and the black indigenous elites.
We were honoured during the lecture with the presence and powerful speeches from the
Minister of Youth, Indigenisation and Economic Empowerment, Hon. Saviour Kasukuwere.
Delivering the key note address was the Deputy Prime Minister, Hon. Prof. A.G.O.
Mutambara. Then academics Dr. Lovemore Madhuku and Cde Munyaradzi Gwisai also
delivered highly-interesting papers and speeches. The bulk of the presentations and papers
at the Lecture form part of this Kempton Makamure Labour Law Journal.
The theme of the Lecture and of this journal was mainly informed by the need for the
inclusion of working class interests and voice in the Indigenisation and economic
empowerment discourse in Zimbabwe. Of special interest was to encourage debate on the
benefits and implementations of empowerment models such as the Employee Share
Ownership Schemes. It is however up to the reader or student of economic empowerment
to make a judgment after perusing the diverse papers/presentations in this volume. As a
board, the KMLLLS group have tried their best to make sure that diverse voices from the
highest levels in academia, government, civil society and business are included.
The anti-Indigenisation camp is usually fronted by local representatives and sympathisers
of multinational capital, especially in the banking sectors and these do not normally shy
from expressing their opposition to the indigenisation agenda. The Zimbabwean context
has however seen some of the energetic opposing views against Indigenisation emanating
from local elites. In this volume, local banker and lawyer, Mr. Tawanda Nyambirai presents
a well-researched presentation that looks at the alternatives which he argues, the
Zimbabwean government should have looked at instead of selectively targeting non-
indigenous owned business. His presentation at the Kempton Makamure Labour Lecture
which was delivered at the New Lecture Theatre 400, University of Zimbabwe was
punctuated by applause and cheers from students.
Munyaradzi Gwisai, a well-known socialist and academic argues that the purpose of
indigenisation is to punish foreign capital for its perceived support of the opposition. In
addition, the empowerment model was formulated to reward black elites in the ruling
Zanu-Pf. He highlights that the same model was adopted in Russia at the fall of the Soviet
1 LL. B (Hons) student & Editor-in-Chief, Kempton Makamure Labour Law Lecture Series and Journal Board (2010-2012), Faculty
of Law, University of Zimbabwe

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Union and only serves to ensure a long season of Zanu-Pf domination, given the party’s
control of the commanding heights of the Zimbabwean economy. His conclusion is very
insightful though:
The Zimbabwe indigenisation programme contains some positive and radical elements but an
analysis of its framework shows that it is fundamentally aimed for the benefit of the black
bourgeoisie, especially those aligned to the ruling party and state.
For his party, Hon. Kasukuwere, whose presentation on government perspectives is the
first in the journal, seems to point out that Indigenisation and economic empowerment will
reward the elites, the workers and the community members alike. As said before, it is up to
the reader, student, economist, politician, businessperson or researcher who will utilise
this journal to come to his/her own conclusion about the Indigenisation program in
Zimbabwe.
The arrangement of the articles starts with the one on government’s perspective to enable
Minister Kasukuwere to set the stage. Then Mr Nyambirai gives the business side and Cde
Munyaradzi Gwisai provides a working class perspective. The remaining two articles
include the keynote address at the lecture delivered by Prof Mutambara , then a civil
society perspective on indigenisation given by Dr. Lovemore Madhuku. It is pertinent to
point out that Dr. Madhuku was talking both as a civil society practitioner, in his capacity as
Chairperson of the National Constitutional Assembly (NCA) and as an academic.
This Volume 3 of the Kempton Makamure Labour Law Journal follows two earlier volumes
published by the KMLLLS Board. The titles of the volumes published so far as follows:
i. Kempton Makamure Labour Law Journal Vol. 1, 2004: Jurisprudence and Jurisdiction
of the Labour Court under the new Labour Act.
ii. Kempton Makamure Labour Law Journal Vol. 2, 2009: Constitutional Reform in
Zimbabwe: Labour, Gender and Socio-economic Rights.
iii. Kempton Makamure Labour Law Journal Vol. 3, 2011: Legal and constitutional
Reforms on Indigenisation, Economic Empowerment and Workers’ Rights.
This volume would not have been successful without the active participation of many
people and institutions. There was great discourse as a result of the active participation
and efforts of University of Zimbabwe students, the speakers and the membership of the
2010-2011 Kempton Makamure Labour Law Lecture Series and Journal Board. Financial
assistance came from the generous support of the Rosa Luxemburg Foundation/Stiftung,
the Zimbabwe Labour Centre and TN Holdings. Solidarity Forever.

6
THE HISTORICAL AND CONTEXTUAL BACKGROUND TO INDIGENISATION
AND EMPOWERMENT REFORMS: GOVERNMENT’S PERSPECTIVES
HON. SAVIOUR KASUKUWERE
2
Introduction
It is indeed an honor to address you all here at the Kempton Makamure Labour Lecture Series
on the topic ‘Historical and Contextual Background to Indigenisation and Empowerment
Legal and Constitutional Reforms: Government Perspective’. I will take this opportunity to
walk you through various issues relating to the historical and contextual background of the
Indigenisation and empowerment agenda in Zimbabwe. These issues include the historical
background to Indigenisation and economic empowerment; state of Indigenisation in selected
sectors of the economy, policy and economic imperatives, policy strategies, the legal
framework, governments’ perspective on workers and community rights vis-à-vis ownership
of the means of production.
Historical Background of the Indigenisation and Economic Empowerment Agenda in
Zimbabwe
Allow me to begin my presentation by giving you a brief background of Indigenisation and
economic empowerment. The country requires an economy that can meet the needs of its
entire people irrespective of race in a sustainable manner. This is only possible if the
economy is all inclusive and thus founded on full potential of all persons and communities
throughout the country. This would constitute the foundation of an economy characterised
by growth, employment and equity. The colonial era purposefully and systematically
restricted the majority of Zimbabweans from meaningful participation in the economy, the
assets of the people were destroyed and access to skills and employment opportunities for
black Zimbabweans was restricted. Wealth accumulation was left for the white minority,
while the black majority was condemned to under development.
The majority of the people live in conditions of extreme poverty due to limited
opportunities to participate in the mainstream economy as a result of racial imbalances
inherent in the colonial system of governance and development, in which the black
majority was discriminated against socially, economically and politically. This colonial
system was geared to serve the interests of the white minority.
Black Zimbabweans resisted this apparent colonial conquest and alienation of their
resources. Thus the armed struggle was waged for political independence, social and
2 Minister of Youth, Indigenisation and Economic Empowerment, Republic of Zimbabwe

7
economic justice. The vision of an economy that meets the aspirations of the majority was a
central element of this struggle.
The ultimate objective of our struggle was to have a free and democratic Zimbabwe, whose
socio-economic and political system would serve to improve the standard of living for the
majority of the Zimbabwean people.
With the onset of independence, the major challenges to the Zimbabwean Government has
been to remove the barriers and limitations inhibiting the participation of indigenous
Zimbabweans in the mainstream economy. Despite successes achieved notably in the
social sectors and some professionals like accounting and legal professions, entrenched
inequalities continue to characterise the economy and act as a deterrent to growth,
economic development, employment creation and poverty eradication. Thirty years since
independence, vast racial inequalities in the distribution of and access to resources, wealth,
income, skills and employment opportunities persist
Societies characterised by entrenched racial or ethically defined wealth patterns of
disparities are not likely to be socially and politically stable; therefore, the medium to long
term sustainability of economics, characterised by inequality, is vulnerable. It is imperative
that racial inequalities are eliminated as this is a prerequisite for peace, stability and
ultimately sustainable economic growth.
The Indigenisation and Economic Empowerment strategy is necessary. Government
intervention is necessary in order to address systematic exclusion of the majority of
Zimbabweans from full participation in the country. The legal and structured exclusion of
indigenous majority from economic power began in the 1890s with dispossessions of land
and was consolidated throughout the 20th century. The defining feature of the colonial era
was the use of judicial and extra judicial measures to restrict and severely control access to
resources by black Zimbabweans. Indigenous Zimbabweans were given very little room to
access technical and scientific knowledge thereby underlining their positions as underdogs
in the society.
The impact of this systematic disempowerment not only resulted in a landless indigenous
majority with restricted access to skills development, but also deliberately prohibited
indigenous people from generating self-employment and entrepreneurship indigenous,
Zimbabweans were systematically deprived of viable business opportunities in the
following ways:
 The colonial era confined the majority of the blacks to homeland areas which were not
only the poorest in terms of resource endowments, infrastructural developments and

8
business opportunities, but also lacked dynamic business infrastructure and
environment.
 Enforced racially segregated areas not only uprooted millions from their places of
residence but also led to large capital losses and virtually destroyed the fabric of
indigenous small enterprises.
 The drastic curtailment of property ownership rights of the black majority made it
impossible for them to acquire assets that could serve as collateral for loan financing. It
also excluded black Zimbabweans from the long run in the process of capital accrual or
growth.
In 1980 with the advent of independence the democratic new government embarked upon
a comprehensive programme to provide a legislative framework for the transformation.
New laws restored rights to land and tenure, introduced specific active measures to
overcome the distortions in the labour markets as well as providing new economic
opportunities to the historically disadvantaged black majority. These measures included
increased access to health and human resources development of small and medium scale
enterprises cooperatives, introduction of the growth points concept, preferential treatment
of local suppliers in procurement, establishment of indigenously owned financial
institutions and the land reform programme. In spite of all these efforts there was no
comprehensive legal framework for advancing the participation of black Zimbabweans in
the economy.
The post-independence era also witnessed the amendments to the Constitution of
Zimbabwe and formation of indigenous lobby groups demanding increased opportunities
to participate in the economy. These groups included the Indigenous Business
Development Centre (IBDC), Affirmative Action Group (AAG) and the Indigenous Business
Women’s Organisation (IBWO).
Policy Framework
The government’s first policy framework on the Indigenisation of the economy was first
published in February 1998.This policy led to the creation of the National Investment Trust
of Zimbabwe in order to spearhead the participation of indigenous Zimbabweans in the
economy.
The policy was revised in October 2004 with the adoption by Cabinet of the ‘Revised Policy
Framework for the Indigenisation of the Economy’. This policy framework provided the
principles for the Indigenisation and Economic Empowerment legislation, culminating in
the promulgation of the Act [Chapter 14:33]3, which was assented to by the President in
January 2008 to become part of our national law.
3 Indigenisation and Economic Empowerment Act.

9
The revised Policy Framework for the Indigenisation of the Economy is premised on the
following fundamental principles:
 The conviction that Indigenous Zimbabweans must own and primarily benefit from the
exploitation and utilisation of their God given resources
 The commitment to underpin our political sovereignty through economic independence.
 The principle of equal opportunities for all and the need to eliminate ownership of
wealth along racial lines.
 That we indigenous Zimbabweans are responsible for and committed to determine our
own destiny.
The policy objectives of the revised policy framework for the Indigenisation of the economy
are:
 To economically empower the previously disadvantaged Zimbabweans by increasing,
mainly through economic expansion their participation in the economy so as to create
wealth and eradicate poverty.
 To create conditions that will enhance the economic status of the hitherto disadvantaged
Zimbabweans by facilitating their contribution to and benefit from the economic
development of the country.
 To democratise (increase access to) ownership of the productive assets of the country.
 To promote the development of a competitive domestic private sector that will spearhead
economic growth and development.
 To develop a self-sustaining economy in which there are opportunities for all
Zimbabweans to attain better and satisfactory living standards.
Policy Strategies
In order to accelerate the Indigenisation process the government adopted six main policy
strategies which are:
1. Increasing private investment and participation in the economy by promoting the
establishment of new indigenous enterprises, joint ventures, buying of shares in existing
companies; privatisation of state enterprises; takeovers; employee share ownership
schemes or trusts and subcontracting by large businesses to indigenous companies.
2. Promoting industrialisation of the economy
3. Land redistribution to provide indigenous people with productive and adequate land in
order to broaden the stakeholder base.
4. Promote skills development programmes which would empower the indigenous
majority for active participation in the economy.
5. Mobilisation of financial resources for medium term to long term finance.
6. Review those laws that constrain Indigenisation and economic empowerment.

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Creation of the National Investment Trust in Zimbabwe
The National Investment Trust Fund was created by the Government of Zimbabwe in
September 2000 to promote the cause of Indigenisation among Zimbabweans. Its mandate
was to promote the acquisition of shares in previously government owned enterprises, to
assist indigenous people to acquire Greenfield projects through provision of funding
projects, funding management buy mismanagement buy outs and bridging finance.
The Indigenisation and Economic Empowerment Act provides the legal framework for the
implementation of the Indigenisation and economic empowerment agenda in a market
driven economy. The Act is a strategic and transformative legal framework aimed at
mainstreaming indigenous Zimbabweans into the economy in a cross cutting manner
The Indigenisation and Economic Empowerment Act [Chapter 14:33].
Noteworthy provisions under the Indigenisation and Economic Empowerment Act to are:
 The key objective of the Act is to achieve at least 51% indigenous shareholding in the
majority of businesses in all sectors of the economy.
 The provision that indigenous Zimbabweans must be equitably represented in the
governing bodies in all these businesses.
 The provision for the establishment of the National Indigenisation and Economic
Empowerment Charter. The Charter will provide for ethical business conduct for all
businesses and outlines the fundamental principles, which have to be observed and
followed by businesses as they undertake their day to day activities.
 The provision for the establishment of the National Indigenisation and Economic
Empowerment Fund. The Fund will provide financial assistance for share acquisition,
warehousing of shares under employee share ownership schemes or trusts, management
buy ins and by outs, business startups, consolidation and expansion.
Ladies and Gentlemen, I would like at this juncture to take note of the Indigenisation and
economic empowerment fund policy and strategic thrust in resource mobilisation of the
working class, the inherent owners of ESOPS and the middle class who actively participate
in management buy outs and buy ins as the government rebuilds the middle class through
the above mentioned funding windows.
General Regulations and Workers

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Part IV of the Indigenisation and Economic Empowerment Act provides that the Minister,
after consultation with the National Indigenisation and Economic Empowerment Board,
can make regulations providing for any matters required or permitted to be prescribed or
which in his or her opinion are necessary or convenient to be provided for in order to
achieve the objectives of the Act4.
It is under this purview that the government saw it fit to legislate for meaningful
streamlining of local communities and workers into the mainstream economy through
encouragement of employee share ownership schemes.
Employee Share Ownership Schemes or Trust
The Regulations encourage that Employee Share Ownership Schemes or Trusts be
established and taken into account in assessing the extent to which a business complies
with the requirements of the Act. Such schemes or trusts shall be constituted through a
Deed of Trust registered with the Deeds Office.
Government’s Rationale and Perspective
The Government has noted that workers have been sweating out capital investment and
productivity and profits are at an all-time high. Whilst Government recognises the
importance of good corporate governance and good management principles in general
there is no substitute for ownership in terms of motivating employees and management to
be productive. This arrangement has the following advantages:
 Increased productivity
 Improved industrial relations
 Attracts, retains and motivates key and competitive employees
 Improved retirement security
 Reduced demand on social responsibility
 Seeks to achieve broad based Indigenisation and encourage ownership by various
indigenous groups as well as redressing gender imbalances.
Besides ownership, management control should also be in the hands of indigenous
Zimbabweans as this reflects indigenous empowerment in terms of policy formulation and
decision making within a business.
It is Government’s perspective that it is human nature that almost all individuals want to
establish economic security for themselves and their families as soon as possible during
their working years. In today’s fast moving world everyone knows that merely having a job
4 See also s. 3(4) of the Act.

12
does not ensure economic security the only real assurance of economic security is through
the ownership of capital.
Industrial enterprises increase at a much faster rate and at a much greater rate than other
types of capital; hence government has noted that the value of industrial enterprises
represents a much greater portion of the wealth of a nation than all other forms of capital.
Accordingly, in view of the fact that almost all individuals desire economic security and in
view of the fact that the vast majority of a nation’s wealth is represented by industrial
enterprises, it is clear that economic security can be achieved only if the economic system
of the country is structured to provide the maximum opportunity for the indigenous people
of that country to acquire stock ownership in that country’s industrial enterprises. In any
system there are always losers and the Government of Zimbabwe is determined to ensure
that it places the working class at a centre of any resource ownership reform as they drive
the transformation vehicle reforming the racially skewed economic ownership structure.
History has taught us that the collapse of communism was a result of a flaw in the system
which promised equality but stifled any form of individual initiatives such as placing a
modicum of purchasing power into the hands of workers in the form of employee share
ownership schemes.
Conclusion
Let me conclude by observing that indigenous Zimbabweans irrespective of skill or class
position agree across the board that the economic activities in the country are dominated
by non-indigenous Zimbabweans. Government concedes that the empowerment of
workers is central to success in the new knowledge driven enterprises. Whilst the
government of Zimbabwe recognises the historic role of the working class in economic
progress towards an equitable society, the progressive role of the middle class cannot be
over emphasised, hence the Government’s Indigenisation and Economic Empowerment
Agenda has to rebuild the Zimbabwean middle class which had almost disappeared.
The Indigenisation and Economic Empowerment agenda has opened a new chapter of
African discourse anchored on ideas of economic democracy, and need for the development
of a national bourgeoisie class built around popular livelihood, popular participation and
popular capitalism in an open society.
We stand firm on our principles, any company that is doing business in Zimbabwe must
have a clear plan, agreed to by my ministry to comply with 51% Indigenous shareholding
requirement as prescribed by the law. We remain resolute in enforcing the Indigenisation
legislation and punitive measures for non-compliance such as cancellation of business
licenses shall be enforced.

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I urge all of you to be wary of traitors among us black people who are being used as the
biggest defenders of white capital. I thank you.

14
BUSINESS PERSPECTIVES ON INDIGENISATION AND EMPLOYEE SHARE
OWNERSHIP SCHEMES
TAWANDA NYAMBIRAI5
Introduction
The need to empower historically disadvantaged people is well recognised internationally. In
its resolution that prohibits discriminatory treatment, the United Nations Economic and
Social Council exempted from the prohibition, special measures designed to overcome past
discrimination against certain groups6.
What is controversial about the Zimbabwe Indigenisation program is that:
 The timing of the implementation program will make the program compete financial
resources with businesses that require capitalisation.
 The program over emphasises the acquisition of a controlling shareholding interest in
companies that are majority owned by non-indigenous people at the expense of other
alternatives that could bring prosperity to indigenous people.
 The program fails to correctly identify the parties whose obligations it should be to fund the
correction of marginalisation of the indigenous people, or to come up with corrective
measures that have the least impact on the economy generally.
The Timing of the Implementation of the Indigenisation was wrong.
As at 4 October 2010 the Zimbabwe Stock Exchange was capitalised at US$3.796 billion.
The Zimbabwe Stock Exchange is generally undervalued. From the point of view of a well-
resourced buyer who is optimistic about the future of this country, this is the time to buy,
and therefore to implement the empowerment program. However, a closer analysis of the
companies and the environment in which they operate shows that this is not the right time
for the implementation of the empowerment program.
At independence, the country had a GDP of $6.7 billion7. Although some short spells of
economic decline were experienced over the years, the economy generally grew to a GDP of
$8.4 billion in 1997, except for 2001 and 2002 when the country’s GDP grew to $10.3
5 Chief Executive Officer, TN HOLDINGS LIMITED
6 United Nations Economic and Social Council: Commission on Human Rights: Sub-Commission on the Promotion and Protection
of Human Rights: Fifth Session: Agenda Item 4, Adopted at its 22nd Meeting, on 13 august 2003,
7 http://www.tradingeconomics.com/zimbabwe/gdp-us-dollar-wb-data.html

15
billion and $21.9 billion respectively, the economy has been in general decline, with the
2009 GDP being $4.4 billion8.
From a high of $444.3 million or 7.32% of GDP in 1998, Net Foreign Direct Investment
inflows were at US$52 million in 2008 and $60 million, or 1.3% of GDP in 20099. As at 18
June 2010, the total banking sector deposits amounted to $1.8 billion of which 90% are
short term, against loans and advances of $1.1 billion10.
All these statistics show that there is not enough capacity in the economy, not only to fund
the recapitalisation of business, but also fund the acquisition of interest in business, let
alone the acquisition of majority interest. Therefore, the implementation of the
Indigenisation program is at a time when focus must be on recapitalising business to bring
them back into productivity introduces a competing demand on the limited financial
resources available in the economy. Those indigenous people who will be fortunate enough
to succeed in getting a piece of the foreign owned business will be saddled with a heavy
burden to recapitalise the business. As it is, both locally owned and foreign owned business
in Zimbabwe are grossly undercapitalised, with a significant number of them under care of
maintenance. Beyond illegal expropriation of foreign owned business without
compensation, there is no viable funding model for Indigenisation right now.
Local banking institutions do not have the capacity to fund Indigenisation. They simply do
not have a deposit base with sufficient tenor to fund the program. Foreign lending
institutions are not lending to Zimbabwe, with the little facilities extended to Zimbabwe,
largely by Afreximbank, being targeted at working capital and capital expenditure for
business. Government itself has no money, with total foreign debt of $6.1 billion.
Introducing an Indigenisation levy on business at this stage will cripple them as all
business is battling to survive at the moment.
It is for these reasons and not political reasons often quoted why business and investors
have reacted negatively to the announcement of the plans to implement the Indigenisation
program now.
The Objective of the Indigenisation program is wrong
8 IMF: Zimbabwe: Challenges and Policy options after Hyperinflation, p 14
9 Gwenhamo F (2008). The Role of Institutional Factors; Foreign Direct Investment; net Inflows (BOP; US Dollar) in Zimbabwe.
(2010) http://www.tradingeconomics.com/zimbabwe/foreign-direct-investment-net-inflows-bop-us-dollar-wb-data.html
10 Mid-Year Monetary Policy Statement, July 2010, page 8

16
The main objective of Indigenisation legislation is to put the ownership of the majority
shareholding in Zimbabwe business in the hands of indigenous Zimbabweans. Ownership
does not necessarily translate to prosperity, or an increase in wealth. Recent corporate
actions such as the reported listing of Masawara on the alternative exchange in London,
AIM shows that experienced Zimbabwean business people have learnt the lesson that a
small piece of a bigger cake is much bigger and better than a big piece of a small cake.
Zimbabweans are among the very few of the populations in the emerging markets who had
a good culture of saving through investments in the stock market and in the money market
through unit trusts. Prior to the collapse of the Zimbabwe economy, our Stock Exchange
was among the best performing stock exchanges on the continent. There are thousands of
Zimbabweans who have direct investments on the Stock market, with several thousands
more having indirect interests through pension funds.
The emphasis on majority ownership of Zimbabwean businesses by indigenous people as
the ideal negates the significant benefits that could be achieved through the inculcation of a
culture of investment and saving.
I had the privilege in 2006 of talking to one of the wealthiest white Zimbabweans, Mr. Roy
Turner at his very modest house. I was leading the recapitalisation of Kingdom Financial
Holdings Limited prior to its merger with Meikles. Roy was one of the top ten shareholders
of Kingdom Financial Holdings at that time, so I had to meet with him to ask for support.
His story needs to be told properly in the Indigenisation context, yet I do not know it all.
The little I understood from our conversation is that Roy most probably was a civil servant
for most, if not all his working life. He saved a percentage of his monthly income, every
month and invested it in the stock market. He participated in every new listing that took
place, being a minority shareholder invariably in every listed company which he invested.
His example shows that prosperity, or wealth is not necessarily brought by the ownership
of a majority interest in a company.
Our experience with land reform has taught us that they are some finer issues that are
more important than mere control or ownership of a business undertaking. Giving
ownership, or control of a business to someone who knows very little about business, or
who has no passion for a particular business will yield no better result than the production
of the so called cellphone farmers.
If the objective of the empowerment program was to the indigenous people more
prosperous, or wealthier, the following pursuit would have been worthwhile.

17
The Introduction of an Environment that is Conducive to the Re-introduction of
Share Option, and Share Ownership Schemes of Employees
Share option schemes for employees were very fashionable and played a significant role in
the empowerment of employees. The schemes tended to align the interests of the
employees with those of other equity holders and thus play a significant role in increasing
profitability of business and reducing incompatibilities in the work place that normally
result in work stoppage through collective job action, or lock outs. In these schemes, the
burden of funding an acquisition of interest in the business was considerably reduced as
the time gap between the granting of share options and the date of exercise of options,
usually 3 to 10 years, allowed for significant capital growth with the result that a part
disposal was enough to fund the purchase of the whole grant. However, these schemes
were discontinued when ZIMRA decided to levy capital gains tax on the value of the full
grant on the date of exercise of the option even if the employee did not dispose of his
shares. This eroded the benefits of empowerment. The Indigenisation legislation should
have encouraged such schemes by reversing the adverse tax determinations by ZIMRA that
tended to disempower the indigenous people.
The Indigenisation legislation should have introduced rewards for companies that
implement the profit sharing schemes for employees. Profit sharing schemes do not come
with a burden to inject financial capital into a business. Instead they recognise the value of
human capital in driving the profitability of a business. The Indigenisation legislation could
assist in making it clear that tax deductible, and by granting Indigenisation credits to
companies that allow profit sharing with employees.
At a time when locally owned companies require recapitalisation, the Minister of
Indigenisation and Empowerment should recognise long term loans, business transactions
perhaps on a profit sharing basis and other investments by foreign owned businesses with
locally owned businesses as warranting Indigenisation credits.
The Indiscriminate Targeting of Non–Indigenous Companies is wrong
The Indigenisation regulations target business generally to contribute to the payment of an
Indigenisation levy. Consequently, business that did not benefit from the marginalisation of
indigenous people prior to independence would be required to carry the burden of paying
for sins they did not commit. Even businesses owned by indigenous people might find
themselves carrying the same burden. Further, the targeting of non-indigenous
Zimbabweans whether or not they benefited from wrongs committed on indigenous people
is wrong or immoral.

18
From the GDP statistics that have already been referred to, most of the growth in
Zimbabwe economy took place after independence. There was more foreign direct
investment into the country than they was before independence because of economic
sanctions imposed after the Unilateral Declaration of Independence (U.D.I.)11. Most of the
sectors of the economy, including agriculture, mining, horticulture, tobacco, manufacturing
and tourism saw significant investment after independence than before. To now turn on to
those investors who supported the independence government by investing into various
sectors of the Zimbabwean economy on the basis that they are non-indigenous is not only
unfair, but is unwise as foreign investors tend to avoid countries that are not consistent
with application of their policies.
Thus, a policy focused on social responsibility, empowerment of communities in areas
endowed with natural resources, equitable remuneration and labour policies, the
protection of the environment, prevention of transfer pricing, prevention of export of raw
natural resources without value edition, and the full repatriation of export proceeds would
have been more effective as priorities for the Zimbabwe Indigenisation program. Thank
you.
11 1965

19
“A REVOLUTION BENEFITS THOSE WHO START IT...” THE WORKING
CLASS AND THE INDIGENISATION AND EMPOWERMENT AGENDA IN
ZIMBABWE
MUNYARADZI GWISAI12
Introduction
From the end of 2007 the Zimbabwe state promulgated radical nationalist economic laws
aimed at fundamentally restructuring the colonial-inherited property relations of production
in the country in a manner similar to the Fast Track Land Reform Programme. The latter had
led to the expropriation of white farmers and their substitution by the black bourgeoisie. The
general aim is to use Indigenisation as a launch-pad for accelerated economic transformation
into a developed capitalist economy anchored by black bourgeois elite in partnership with
global capital, the central aim of the black middle classes in the anti-colonial struggle. The
second objective is a political one, namely, the survival and long-term political reproduction
of the political elites in the ruling party, Zanu PF, who face unprecedented social and political
revolts. Indigenisation is to be used as the central strategy to rally popular support, just like
land was used in the preceding decade.
Indigenisation in Zimbabwe
The cornerstone law is the Indigenisation and Economic Empowerment Act (“the Act”) and
supporting subordinate legislation.13 The declared objective of the Act is to ensure at least
fifty-one per centum ownership and control of every public company and other significant
businesses by indigenous Zimbabweans, who are defined to primarily mean blacks.
Auspiciously, the Act’s date of commencement was set for 17 April 2008, a day before the
National Day of Independence and a month after the March 2008 General Elections.
The purpose of this article is to give a general critique of the Indigenisation and
empowerment laws in relation to their underlying theoretical underpinnings and their
potential viability in changing the country’s economy and legal and political superstructure.
Bolshevik leader, Leon Trotsky had argued that this was highly unlikely given the national
bourgeoisie’s myriad but subordinate ties to the elites of the Global North, the uneven and
inequitable structure of the global economy in favour of the later and the national
12 Munyaradzi Gwisai teaches Labour Law and History of Roman and Roman Dutch Law at the Faculty of Law, University of
Zimbabwe. He is the chairperson of the Zimbabwe Labour Centre and a long-standing member of the International Socialist
Organisation (Zimbabwe).
13 [Chapter 14:33]; the Indigenisation and Economic Empowerment (General) Regulations, S.I. 21 of 2010 as amended by the
Indigenisation and Economic Empowerment (Amendment) Regulations, 2010 (No.2), S.I. 116 of 2010 and the Indigenisation and
Economic Empowerment (General) (Amendment) Regulations, 2001 (No. 3) S.I. 34 of 2011 as read with Government Gazette
(Extraordinary) General Notice 114 of 2011

20
bourgeoisie’s greater fear of triggering social revolution from the lower classes which will
sweep away all capitalists including the national ones.14 However, contrary to Trotsky’s
prognosis, starting in the second half of the 20th century, the national bourgeoisie of several
countries in the Global South were able to make such unlikely breakthrough including
South Korea, Malaysia, Singapore, and most importantly India and China.
A key aspect of these countries’ development path was that ownership and control of key
portions of the national economy was by the state and, or indigenous elites supported by a
strong authoritarian state. We explore to what extent the legal framework that underlies
the Zimbabwean Indigenisation programme can be able to facilitate such similar
breakthrough and whether in fact the laws are beneficial to all indigenous Zimbabweans, in
particular working people, as they claim.
Global Historical Context: Unprecedented Crisis of Capitalism
The Indigenisation phenomena is not peculiar to Zimbabwe but has occurred across the
Global South taking various forms. These have included the opportunistic and corrupt
types as those associated with the privatisation programmes of the 1980s and 1990s in
places like Egypt, Nigeria, Zambia and today the BEE programme in South Africa. Other
examples have included genuine but ultimately doomed nationalist initiatives to counter
the debilitating impact of the crisis of neoliberal capitalism as we have seen with the
nationalisation programmes in Venezuela and Bolivia.
The Indigenisation and economic nationalism phenomena arises from the current
structural general crisis of capitalism, especially the failure of the IMF-inspired neoliberal
policies, which has seen growing class struggles between the capitalist classes and working
people as well as intra-ruling class struggles between the multinational elites of the Global
North and the national elites of the Global South. The struggles of working people for an
equitable share of the product of their labour or natural resources of their communities,
has forced elites to make concessions such as employee and community share ownership
schemes or global elites to make concessions in the form of indigenisation arrangements.
The overall aim is to co-opt and stifle militant class struggle and pre-empt social revolution
which will overthrow the entire capitalist order.
The basic cause of the above general crisis of capitalism is the disjuncture between today’s
capitalist private and nation-based relations of production in contradiction to productive
forces which have outgrown the nation state and become globalised requiring an
accompanying global legal and political superstructure based on globalised socialised
14 Trotsky L, Permanent Revolution and Results and Prospects (Pathfinder, 1970)

21
property and production for human need rather than private profit, in other words
socialism.
Not surprisingly bourgeois elites resist this logical dynamic and instead try various
reformist (non-revolutionary) alternatives, of which indigenisation programmes are
increasingly important.
The Zimbabwe Context: Rising Struggles in Periphery Neo-Colonial States
The disastrous failure of the neoliberal Economic Structural Adjustment Program (ESAP)
policies of the 1990s and the accompanying mass impoverisation of working people and
sections of the middle classes led to massive social and political revolts which eventually
led to the formation of a formidable trade union-led but business and Western supported
cross-class party, the Movement for Democratic Change, (MDC) led by Morgan Tsvangirai.15
In order to survive, President Mugabe and Zanu PF, from 1999 onwards, made a partial
reversal on the neo-liberal policies and rallied rural support by embarking on a violent Fast
Track Land Reform Programme based on a nationalist and anti-Western axis whilst also
massively escalating state repression against the opposition, trade unions, civic society and
the private media.16 In response global, local business elites and Western governments put
the economy under siege through formal and informal sanctions which together with the
fall in agriculture production had by early 2008 led to a near collapse of the economy with
inflation over 250 million.
Not surprisingly, the political fortunes of Zanu PF have taken a dramatic and
unprecedented decline. It lost the February 2000 Constitutional Referendum and lost to
MDC parliamentary seats in virtually all urban constituencies in the April 2000 general
elections. In the March 2008 Elections, Zanu PF for the first time lost its parliamentary
majority to the combined opposition with Tsvangirai defeating Mugabe in the first round of
the presidential elections. Zanu PF and Mugabe have only remained in power because of
repression and the Government of National Unity established under the SADC – brokered
September 2008 Global Political Agreement between Zanu PF and the two MDC formations.
However, the coalition government has been very fragile and conflict is again on the rise
with elections likely to be held within the next year. Such elections are likely to be a
milestone that could possibly signal the end of the Mugabe regime.
15 See generally: Bond P and Masimba M, Zimbabwe’s Plunge: Exhausted Nationalism, Neo-Liberalism and the Search for Social
Justice (University of Natal Press, 2002); Gwisai M, “Revolutionaries, Resistance and Crisis in Zimbabwe” in Zeilig L (ed.), Class
Struggle and Resistance in Zimbabwe (New Clarion Press, 2002)
16 ibid

22
Thus the ruling nationalist elites have come under unprecedented siege from an
ideologically hostile and powerful internationally and business -supported opposition. In
such battle for their very survival, the bedrock strategy of the ruling party elites has been
to try and rally popular support around a strategy based on authoritarian political and
economic nationalism: to threaten business with expropriation if it continues supporting
the opposition and portraying such opposition as puppets of Western imperialism and
Rhodesian settler capital. The Fast Track Land Reform Programme allowed them to
remobilise their rural poor support base and survive the elections of the last decade. The
attempt now is to extend the same to the rest of the economy through the indigenisation
agenda as the country’s political crisis reaches a defining climax.
The Zanu PF elites also have a long term vision beyond immediate political survival, namely
fundamental restructuring of the property relations in the country to give local black elites
a more significant role in the commanding heights of the economy in partnership with
global capital but doing so in a partisan manner that favours elites aligned to the ruling
party. Should they succeed in this that will lay the basis for them and their successors’ long-
term political dominance in the country as the new major economic class in the country, as
we saw in post-Soviet Union Russia or Nigeria, post the military juntas?
This is why an increasing number of hitherto non-Zanu PF black elites are being lured
towards the indigenisation and empowerment agenda although calling for it to be more
inclusive of the various sections of the black elites. Prominent amongst these are Deputy
Prime Minister Arthur Mutambara and banker Nigel Chanakira. On the other hand, black
business elites with close ties to local white and international capital, such as banker
Tawanda Nyambirai, who feel they may not stand to gain are vigorously opposed. Also in
opposition, albeit more cautiously, are many workers and most trade union leaders
together with their intellectual mentors like academics Lovemore Madhuku and Brian
Raftopoulos. These, who, just barely surviving from the recent economic horrors and
mindful of the fate of farm workers in the land reform programme, are fearful that the
indigenisation programme could herald a second if not worse economic collapse and loss of
their livelihood. In a society with over 90% unemployment they hold dear to their jobs
even if these only largely give them starvation slave wages. Hence the 2011 ZCTU May Day
Commemorations were held under the theme: “Respect our Rights: Save the economy: Save
our Jobs,” a thinly veiled attack on the indigenisation agenda.
The Zanu PF elites are unlikely to be deterred. Too much is at stake. And drawing lessons
from and taking advantage of the land reform programme, the ruling nationalist elites feel
big business, especially in mining, will play ball cognisant of what happened to the white
farmers. Just to make sure, they seek to draw foot soldiers for the programme through
initiatives that will grant some share of the indigenised wealth to sections of the working

23
class and peasantry, but as in the land reform programme, a subservient and ultimately
insignificant share.
General Summary and Critique of the Indigenisation Laws
Whilst the Indigenisation and Economic Empowerment Act is the centre-piece of the indigenisation
programme, it is pertinent to remember that the legal frame-work governing indigenisation is in
fact broader, affecting diverse areas of the law including constitutional, property, company, tax and
labour law. Besides statute and common law, international law is also of significance. Below we
make a summary of some of the most important salient aspects of the indigenisation laws including
scope and application, implementation measures, funding and enforcement.
Objective, Scope and Application
The main objective of the Act is the indigenisation of the economy and the economic
empowerment of “indigenous Zimbabweans.” Section 2(1) of the Act defines “indigenous
Zimbabwean” as:
“any person who, before the 18th April, 1980, was disadvantaged by unfair discrimination on
the grounds of his or her race, and any descendant of such person, and includes any company,
association, syndicate or partnership of which indigenous Zimbabweans form the majority of
members or hold the controlling interest.”
This definition would first and foremost mean “indigenous Zimbabweans” are local black
people, because these were the ones who were primarily excluded, explicitly by law and
indirectly through various measures and policies, from equal participation in the economic
and political domains during colonialism, in favour of whites. Conversely it would therefore
exclude all whites. It also on the face of it potentially it may or may not apply to mixed race
persons and those of Indian or Asian descent to the extent to which it is shown they got
preferential racial treatment under colonialism. However, this is a vague and unsatisfactory
area of the law and is a gap that needs redress. The equivalent South African law for
instance explicitly includes “coloureds and Indians” in the definition of “black people.” 17
Also problematic with the definition is that on the face of it excludes the state and statutory
corporations, expressing both the elites’ objective of directly enriching themselves as well
as their ideological neoliberal hostility to anything remotely connected with nationalisation
which is associated “with failed and discredited socialism.”18
17 s 1 of the Broad-Based Black Economic Empowerment Act 53 of 2003 defines “black people” as “a generic term which means
Africans, Coloureds and Indians.”
18 For detailed discussion on this point refer to page 20 infra

24
Detractors of the indigenisation programme and legal philosophers of a positivist bend
argue that such laws violate the fundamental human rights of freedom from discrimination
on grounds of race or national origin and the right to equal protection of the law which are
enshrined in the Declaration of Rights of the Constitution of Zimbabwe and international
human rights law.19 That they in fact amount to reverse racism, especially against non-
indigenous persons who may well have built their business after independence or that the
definition of “indigenous Zimbabwean” is too loose potentially extending to even the
Maoris in New Zealand.20 A related argument is that the laws amount to an
unconstitutional and illegitimate violation of the right to property.21
These arguments are not sustainable. Institutionalised, state and law enforced racial
discrimination against all strata of black people was the centre-piece of the colonial legal
and political system. This was achieved through a plethora of legal instruments including
constitutional laws, general statutes expropriating land and other means of production like
cattle from the local blacks and vesting it in the colonial state and white settlers; 22
institutionalised discrimination against black farmers;23 prohibition of blacks from
engaging in commerce and retail in the major urban centres or mining;24 or discrimination
against black workers; discrimination in education opportunities or the right to vote and
hold public office including in the judicial.25 Modern jurisprudence and international
human rights law recognise that the right to equality and freedom from discrimination
19 Cited provisions include sections 23 and 18 of the Constitution of Zimbabwe. The freedom from unfair discrimination is
provided in most international and regional human rights instruments such as: Arts. 2 and 7 of the United Nations Universal
Declaration of Human Rights (1948); Arts 14 and 26 UN International Covenant on Civil and Political Rights (1966); and Art 2 of
the African [Banjul] Charter on Human and Peoples Rights, 1981. See generally – Zimbabwe Lawyers for Human Rights,
“Submissions on the Indigenisation and Economic Empowerment (General) Regulations, 2010” Legal Monitor 2010
20 Matyszak D, “Everything you ever wanted to know about Zimbabwean Indigenisation and Economic empowerment
legislation: But then some (quite rightly) were too afraid to ask,” (Unpublished, Research and Advocacy Unit, Harare, 2010);
Gonzales S, “Affirmative Action and the jurisprudence of equitable inclusion: Towards a New Consensus on gender and race
relations” 7 Journal of Baha’i Studies 2 (1988); Chivale T, “Public policy for private gain? Unpacking and reviewing the agenda
and objectives of the empowerment policy in Zimbabwe with particular reference to the Indigenisation and Economic
Empowerment Act (Chapter 14:33)” (LLBs Dissertation, 2011, University of Zimbabwe) 7 - 9
21 ZLHR, “Commentary on the new Indigenisation Requirements for the Mining Sector,” Legal Monitor, 18 April 2011
22See generally: The Matabeleland Order in Council, 1894; Southern Rhodesia Order in Council, 1898; the Matabeleland Cattle
Proprietary Regulations No 49 of 1895; the 1923 Southern Rhodesia Constitution; the 1969 Rhodesia Constitution, s 80 and the
Land Tenure Act, No. 55 of 1969. For judicial confirmation of the initial expropriation of the blacks see – In re Southern Rhodesia
1919 AC 221. Generally, see Palley C, Constitutional Law of Southern Rhodesia (&&&) 110; Phimister I, An Economic and Social
History of Zimbabwe 1890 – 1948: Class Struggle and Capital Accumulation (Longman, London, 1988)
23 Over and above the unjust and discriminatory land tenure system cited above see also statutes like the Maize Control Act,
1930; and the Land Husbandry Act, 1951 (&&&)
24 See ILO, Labour Conditions and Discrimination in Southern Rhodesia (ILO, Geneva, 1978)
25 Legislation like: Registration of Natives Regulations, 1895; Master and Servants Ordinance No 5 of 1901; Education Ordinance
No 1 of 1903; Immorality Suppression Ordinance No 9 of 1903 and the Industrial Conciliation Act No 10 of 1934. See generally
Gwisai M, Labour and Employment Law in Zimbabwe: Relations of work under neo-colonial capitalism (ZLC and CLI, Harare,
2006) 17 - 20

25
includes within it the right to effect remedial and restitution laws, policies and measures in
favour of historically and socially disadvantaged groups, such as women and racially or
ethnically marginalised groups like blacks. This is in order to ensure that the law achieves
substantive equality as opposed to mere formal equality.26 Thus the Human Rights
Committee on the International Covenant on Economic and Social Rights has noted:
“Not every differentiation of treatment will constitute discrimination if the criteria for such
differentiation are reasonable and objective and if the aim is to achieve a purpose which is
legitimate under the covenant.”27
The principle is now directly incorporated under section 23 (3)(g) of the Constitution of
Zimbabwe which states that nothing contained in any law shall be held to unlawful
discrimination to the extent that the law in question relates to:
“... the implementation of affirmative action programmes for the protection or advancement of
persons or classes of persons who have been previously disadvantaged by unfair
discrimination...”28
It is also recognised in most recent regional constitutions, statutes and international
human rights laws.29 In fact the equivalent South African statute explicitly states its
objective as to empower “black people” and is so worded.30 The racially-based and gender
inequitable consequences of colonialism cannot be addressed without such remedial and
restitution measures such as affirmative action and mandatory quotas for the adversely
affected groups. The argument that the definition is so broad as to accompany all blacks
including foreign ones is not persuasive. The term being defined is “indigenous
Zimbabwean.” (emphasis added). It follows therefore that the historically disadvantaged
person on race grounds has to prove first that she or he is a “Zimbabwean” before they can
qualify. Unless one can therefore prove Zimbabwean nationality one cannot qualify.
Right to Property and Indigenisation
26 Currie I and Johan de Waal, The Bill of Rights Handbook 5th ed. (Juta, Wetton, 2005) 201; National Coalition for Gay and
Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) paras 60-61; United Nations, The Legal Empowerment of the Poor,
United Nations General Assembly Sixty Fourth Session, Item 58 Parag 3.
27 General Comment No. 18. See generally, Sithole G, “‘A Revolution benefits those who start it.’: A Critique of the
Indigenisation and Economic Empowerment Act [Chapter 14:33] 2008 and the Indigenisation and Economic Empowerment
(General) Regulations, 2010” (LLBs Dissertation, 2011, Faculty of Law, University of Zimbabwe) 24 - 25
28 Inserted by s 4 of Act 5 of 2005 – Constitution of Zimbabwe Amendment No. 17
29 For instance, s 9 (2) of the Constitution of South Africa; Art 23 Constitution of Namibia; Art 2, Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW) 1979; Art 2, the Protocol to the African Charter on Human and Peoples
Rights on the Rights of Women in Africa, 2003; and the SADC Declaration on Gender and Development, 1999, Para H (ii)
30 See s 2 as read with s 1 of the Broad-Based Black Economic Empowerment Act 53 of 2003

26
The indigenisation laws also raise issues pertaining to property, whether they are a
legitimate infringement on the right to property enshrined under constitutional and
international laws.
A broad right to property is recognised under some but not all international human rights
instruments. For instance, Article 17 of the Universal Declaration of Human Rights
provides:31
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.”
Section 16 (1) of the Constitution of Zimbabwe provides for protection from compulsory
deprivation of property other than in the specified circumstances. It provides that, subject
to the special provisions on compensation for the compulsory acquisition of land for
resettlement in terms of section 16A, “no property of any description or interest or right
there in shall be compulsorily acquired excerpt under the authority of a law” that requires:
(a) in the case of land ... that the acquisition is reasonably necessary for the utilisation of the
land for: (A) resettlement for agricultural or other purposes; or (B) for purpose of land
reorganisation, forestry, environmental conservation or the utilisation of wild life or other
natural resources; or (C) for the relocation of persons disposed in consequence of the
above; or
(b) 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 utilisation of that or any
other property for a purpose beneficial to the public generally or to any section of the
public;” and
(c) that the specified acquisition formalities in relation to due notice, compensation and right
to appeal to the courts are fulfilled.
The term “property” has been held to be of very wide meaning... “(it) seems to embrace the
widest possible range of property,”32 because it refers to “property of any description or
interest therein.” This is also consistent with the common law position which provides for
31 See also – Art 14 of the African [Banjul] Charter on Human and Peoples’ Rights (1981). Note though that no such right is
provided under both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights. There is a debate as to whether in fact the right to property is a fundamental human right – see Ex parte
Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744
(CC) paras 71-4; Currie and Johan de Waal op cite 533
32 Hewlett v Minister of Finance 1981 ZLR 571 (S) at 590

27
an all-embracing definition of right to property, covering protection of:33 ownership of
property; rights in property, including rights to use, dispose, alienate the property or
exclude other people from it; and to interests in property, such as protection from acts or
measures that lead to an unlawful diminution of the value of the property.34 Therefore
under the Zimbabwean constitution the right to property is not absolute. The state is
entitled to enact laws providing for compulsory acquisition of all property as long as such
laws are reasonably necessary for a specified public purpose, 35 and comply with the
following acquisition formalities:36
(a) reasonable notice of the intention to acquire the property is given;
(b) payment of “fair compensation for the acquisition before or within a reasonable time” of
the acquisition, with the exception that there is no obligation on the state to pay
compensation for agricultural land compulsorily acquired for resettlement;37
(c) provides an obligation on the acquiring authority, if the acquisition is contested, “to apply
to the High Court or some other court before, or not later than thirty days after, after the
acquisition for an order confirming the acquisition;” and
(d) enables a party whose property has been acquired “to apply to the High Court or some
other court for the prompt return of the property if the court does not confirm the
acquisition,” and to appeal to the Supreme Court; and
(e) “enables any claimant for compensation to apply to the High Court or some other court for
the determination of any question relating to compensation and to appeal to the Supreme
Court” excerpt that that such law need not make this provision where the property is land
which is substantially unused or used for agricultural purposes, environmental
conservation, utilisation of wild life or other natural resources and for resettlement.
The above is consistent with those international instruments that provide for the right to
property. For instance, Art 14 of the African [Banjul] Charter provides:
“The right to property shall be guaranteed. It may only be encroached upon in the interest of
public need or in the general interest of the community and in accordance with appropriate
laws.”
33 See Linington G, Constitutional Law of Zimbabwe (Legal Resources Foundation, Harare, 2001) 447; Currie I and Johan de
Waal, op cite 536 - 537
34 In Diepsloot Residents Association v Administrator, Transvaal 1993 (3) SA 49 (T) the establishment of a squatter settlement
near an established suburb was held to violate property rights through alleged increased crime and pollution from such
settlement.
35 Section 16(1) (a) (i) (ii). See also Art 14 of the African [Banjul] Charter on Human and Peoples’ Rights (1981)
36 Section 16(1) (b) (c)(d)(e) and (f)
37 Section 16(1) (a) (i) (ii). See also Art 14, African [Banjul] Charter on Human and Peoples’ Rights (1981).

28
Further it is now a well-established principle of international law and constitutional
practice to a people’s right to national economic sovereignty, to ownership and control of
natural resources and strategic businesses essential to national development38 including
the righty of the state to expropriate private property for the public and social good.39
The above framework on property laws implicates the Zimbabwean indigenisation laws in
several ways. Firstly, whether in fact the indigenisation laws do not amount to compulsory
acquisition of property and whether such compulsory and discriminatory acquisition is
constitutional. Given the wide ambit of the meaning of “property” discussed above, strong
arguments may be made that the laws do in fact amount to compulsory acquisition in so far
as they: adversely restrict or prohibit the right to ownership in the prescribed areas by
non-indigenous Zimbabweans and compelling the sale of majority shareholding or
controlling interests in businesses to indigenous Zimbabweans; discriminate against such
businesses in procurement by government and statutory bodies and are likely to lead to
the diminution of the value of such businesses due to a market restricted to indigenous
persons yet these are persons without much means. It can also be conceivably argued that
at the expiry of the five years should a non-indigenous owner of a business be unable to
find a buyer at the market value of the property, the effect of the Regulations would be to
force them to sell at a rate potentially much lower than the market value to buyers in the
indigenous market.
These measures may therefore potentially be held to be deprivations that amount to
expropriation or compulsory acquisition and for which therefore “fair compensation” must
be paid.40
The question may then arise whether the Act and Regulations are not ultra vires section
16(1) of the constitution. One notes that section 16(1) (a) (i) and (ii) does not explicitly
provide for the ground of redressing of historical or social discrimination as a specified
permissible public purpose ground.
However, there are two pegs on which the constitutionality of the indigenisation laws may
be hung, although whether these are zhing zhongs or not is left for determination by the
38 Art 2 (1) of the International Covenant on Economic, Social and Cultural Rights, 1966; Arts 13 and 14 of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW), 1979 and Art 22 African [Banjul] Charter on Human and
Peoples Rights, 1981. See generally, Simbi O, “The Defence, Enforcement and Funding of Socio-Economic, Labour and Gender
Rights” 2 Kempton Makamure Labour Journal 99 (2009) p 101 -103
39 See s 25 Constitution of South Africa; Art 86 Constitution of Mozambique and Art 40 (8) Constitution of Ethiopia; Arts 302-
303 Constitution of Venezuela and Art 313 Constitution of Bolivia.
40 Hewlett v Minister of Finance 1982 (1) SA 502 (ZSC); Harksen v Lane 1998 (1) SA 300 (CC); and generally I Currie and Johan de
Waal, supra 552

29
courts. The first one is to rely on the generic category of - “a purpose beneficial to the
public generally or to any section of the public.” It may be argued that compulsory
acquisition to promote indigenisation is reasonably necessary to the public in general and
to blacks as “a section of the public,” because:
“a country that is characterised by racially defined wealth disparities may not be socially or
economically stable... (further) ‘the medium to long-term sustainability of such unequal
economies is vulnerable...the socio-political and moral imperative to redress racial
discrimination, is also an imperative dictated by the need for sustainable growth.’ ”41
A better constitutional frame-work though, is like the one provided in section 25 of the
Constitution of South Africa, which provides:
“(2) Property may be expropriated only in terms of law of general application-
(a) For public purposes or in the public interest; and
(b) ....
(4) For the purposes of this section –
(a) The public interest includes the nation’s commitment to land reform, and to reforms to
bring about equitable access to all South Africa’s natural resources; and
(b) Property is not limited to land.”
The above is an explicit provision that directly brings in the principle of equitable
redistribution of all property. The Zimbabwean provision is open to subversion by an
ideologically hostile bench and this is why restructuring of the entire property clause in
any proposed new constitution to include the economic interests of the state and its
obligations to fulfill its socio-economic obligations of citizens, is necessary, if socialisation
of private property, including indigenisation, is to be placed on firmer constitutional pillars.
The second reason is linked to the first, namely that such nationally and racially
discriminatory measures are permissible under section 23(3) (g) of the constitution as
earlier discussed. Further international law recognises the right of peoples and nations to
development and to sovereignty over national resources and wealth. For instance the
African Charter provides for various peoples economic rights, including: to economic
development (Art. 22); to freely dispose of their wealth and natural resources as individual
states or regionally which right is to be exercised in the exclusive interests of the people,
and in no case shall the people be deprived of it (Art 21); and the right to existence (Art.
41 P Benjamin, T Raditapole and M Taylor, Black Economic Empowerment: Commentary, Legislation & Charters (Cheadle
Thompson & Haysom Inc Attorneys and Juta, Cape Town, 2009) 1-4

30
20).42 Indigenisation and empowerment programmes, especially where these are broad-
based, can be a powerful tool of realising the socio-economic rights of the majority. The
experience of the Asian countries has shown that a necessary pre-requisite for sustainable
economic development that breaks through the bonds of neo-colonialism is that the
majority or significant section of national resources and wealth must be controlled by the
state and/or the national bourgeoisie. Such national economic sovereignty is recognised in
many recent constitutions and set-ups. For instance, the Botswana state has a majority
stake in the diamond industry, the country’s most valuable economic asset, whilst the
Constitution of Venezuela provides for exclusive state ownership of the “petroleum
industry and other industries, operations and goods and services which are in the public
interest and of a strategic nature.”43
Funding and Compensation issues
Besides the issue of whether indigenisation is compulsory acquisition and lawful, other
related and potentially contentious areas are those relating to the funding of the
programme, the applicable compensation and the role of the judiciary.
If we are correct that the indigenisation laws may potentially amount to compulsory
acquisition of property, then “fair compensation” must be paid before or within a
reasonable time from the acquisition. This will likely present huge problems for the
indigenisation programme, especially around questions of the amount, timing and manner
of compensation and valuation of disposed property as beset the land question for two
decades until Constitution of Zimbabwe Amendment Act No. 16 of 2000 put finality to the
matter through the new section 16A.
The financing and funding arrangements under the Act and Regulations are problematic
and will likely undermine the realisation of the programme. The Act simply calls for
majority share-holding to become vested in indigenous Zimbabweans. It then provides for
the establishment of a National Indigenisation and Economic Empowerment Fund, funded
by amongst others a special indigenisation levy on any private or public company and any
42 Art. 1 of the International Covenant on Economic, Social and Cultural Rights (1966) provides for the right of all peoples to
freely dispose of their natural wealth and resources without prejudice to international law and that in no case “may a people be
deprived of its own means of subsistence.” Art. 2(1) places a duty on the state to progressively achieve the full realisation of the
people’s economic rights “to the maximum of its available rights.”
43 Articles 302 and 303. See also Art. 313 of the Constitution of Bolivia (2008); and Articles 3 and 45 of the Constitution of
Mozambique.

31
other business in Zimbabwe,44 and whose objects include the financing of share
acquisitions and warehousing of shares for employee share ownership schemes and
management buy-ins.45 The Regulations as amended place an obligation on the non-
indigenous businesses to “dispose a controlling interest” to indigenous Zimbabweans
within five years. The term “dispose” means “sell, donate or otherwise dispose.”46
The clear and unmistakable impression therefore is acquisition of shares through
commercial market mechanisms or gratuitous donations or loans by the non-indigenous
sellers. The Zanu PF elites seem here to be afraid to go the land reform route which in fact
allowed expropriation without compensation, where the former colonial power did not pay
the disposed white farmer.47 Indeed so strong was the feeling against creating any
impression of expropriation that the term originally used in the Regulations of “cede” was
repealed and substituted with “disposal.”48
The idea of the indigenisation levy and Fund is sound but faces insurmountable practical
problems. It would have been preferable to indicate a minimum threshold for the levy in
the Act to ensure that a minister may not buckle under pressure and impose too low a levy,
given the likely resistance from big business against any significant levy. Then there is the
little matter that such levy needs the approval of the Finance Minister and parliament.49
Given the neoliberal and Western orientation of current Finance Minister Tendai Biti and
his MDC party and that the MDC formations have a majority in Parliament, the idea of the
levy is as good as dead under the current dispensation... and with it therefore the
indigenisation programme. This provision is a clear own goal by the Zanu PF elites who
then had unfettered parliamentary power to craft the Act as they saw fit.
Assuming even that the Fund was to be operational there is a further problem relating to
the mechanism for valuation of the shares to be disposed of. If this is left to the market
value then the Fund or indigenous Zimbabweans in general do not have the capacity to pay
for the billions of dollars required, just like they were unable to do so under the Willing
Seller Willing Buyer arrangement of the Lancaster House Constitution.
44 S 17 (1) of the Act
45 S 12 (2) of the Act
46 S 2 (b) of S.I. 116 of 2010
47 S16A (1) (ii) Constitution of Zimbabwe
48 See for example s 3 (a) of S.I. 21 of 2010 (original).
49 S 17 (1) (3) of the Act

32
A fundamental crying out omission in the Act, Regulations and the National Indigenisation
and Economic Empowerment Charter is the silence on the method to be used for valuing
the shareholdings to be “disposed” of. Such silence will be taken to imply a current market
value basis, more so given the establishment of the National Indigenisation and Economic
Empowerment Fund.
Perhaps cognisant of the above weakness, there has been a belated attempt to redress this
in General Notice 114 of 2011 relating to the mining sector. The Notice obliges the disposal
of the shareholding to “designated entities” within six months of the date of its
publication50. Such entities include the Indigenisation Fund; the Zimbabwe Mining
Development Corporation; a statutory sovereign wealth fund; or an employee share
ownership scheme or management share ownership scheme or a community share
ownership scheme. Critically it introduces a new, non-market based valuation model for
the shares to be disposed of, namely that the:
“value of the shares or other interests required to be disposed of to a designated entity ...shall
be calculated on a basis of valuation agreed between the Minister and the non-indigenous
mining business concerned, which shall take into account the State’s sovereign ownership of
the mineral or minerals exploited or proposed to be exploited by the non-indigenous mining
business concerned.”51
This is a much better and more radical arrangement than previous ones because it
incorporates a non-market based valuation model which takes into account the sovereignty
of the state over the minerals concerned, in other words the right to national economic
sovereignty and development. This is what should have been done in the Act and
Regulations originally.
Problems remain though. An agreement on the valuation between the seller and the
Minister is required; meaning that without the consent of the seller there will be no
transaction. However, the tight time framework of six months within which to indigenise
may induce the sellers to reach an agreement. Moreover, because of the precedence of the
land reform programme many of the big miners may not want a repeat and be disposed
towards an agreement. Already newspaper reports indicate that the biggest miners in
50 S 3 (1) of General Notice 114 of 2011. The date of publication being 25 March 2011, meaning the deadline is 26 September
2011
51 S 3 (2) of General Notice 114 of 2011

33
platinum, gold and diamonds have complied with the provisions of General Notice 114 of
2011 and submitted their provisional implementation plans.52
Should disagreement remain however, there is the likelihood of big business challenging
both the legality and constitutionality of the Notice and Regulations. The Minister has
already signaled his impression that the state may not have to pay anything under the
Notice, something akin to the situation with the land reform programme. The first line of
attack is likely to be that the Notice is ultra vires the principal Regulations and Act in so far
as it compels a six months’ compliance period when the Regulations provide for a five
years’ period. Secondly that disposal to the state or statutory corporations amounts to
nationalisation and that this is not provided for in the Regulations or Act as such entities
are not included within the definition of “indigenous Zimbabwean.”
The key argument though is likely to be that such fast tracked indigenisation within a non-
market based valuation system amounts to compulsory acquisition and that “fair
compensation” has not been paid.53
The courts have developed a class-biased approach as to what amounts to “fair
compensation.” In May v Reserve Bank of Zimbabwe,54 Dumbutshena CJ gave the general
standard to be used when he interpreted the then applicable term “adequate”
compensation to mean that the compensation:
“must be ‘sufficient’ to compensate the owner for the loss of his property, without imposing an
unwarranted penalty on the public because the acquisition is effected in the interest of the
public or community. The interest of the owner of the property must of necessity be balanced
with the interest of the public from whom the money paid in compensation comes.”55
Although this standard seems to call for the need to strike a balance between the public
interest and the interests of those affected by the acquisition, meaning the compensation
payable is not necessarily the equivalent of the market value of the property but may be
52 “Government starts evaluating empowerment proposals,” The Herald 11 May 2011 p B1. Amongst those reported by
Minister Kasukuwere to have submitted include Implats (Impala Platinum) and Angloplats (Anglo Platinum).
53 In terms of s 16 (1) (c) Constitution of Zimbabwe
54 1986 (3) SA 107 (ZSC) 119
55See also: Former Highlands Residents, in re Ash v Department of Land Affairs [2002] 2 All SA 26 (LCC); and A Einsenberg
“Different Formulations of Compensation Clauses” (1993) 9 SAJHR 412

34
less,56 reality in bourgeois courts shows the contrary. Experience from South Africa, for
instance, shows that the bourgeois courts will make the market value “pivotal to the
determination of compensation” because they claim that this is the only truly objectively
quantifiable indicator:57 In one major case it was held:
“... the equitable balance required by the Constitution for the determination of just and
equitable compensation will in most cases best be achieved by first determining the market
value of the property and thereafter by subtracting from or adding to the amount of the
market value, as other relevant circumstances may require.”58
The above legal framework is an open invitation to the powerful propertied non-
indigenous local and international capitalists to try and neutralise the whole indigenisation
programme through drawn out and unending litigation, especially centred around a
demand for compensation at or around the prevailing market value, as they successfully
did with the land question for two decades. This alone, will sink the programme as a viable
national indigenisation strategy, thus vindicating Trotsky’s argument of the national
bourgeoisie as cowardly and incapable of fully taking on imperialism. Like the willing seller
willing buyer model, the above compensation and valuation model will make shares
prohibitively expensive and therefore unrealisable even for broad layers of the national
bourgeoisie save for a tiny cliché of politically well-connected elites, as we are seeing today
with the “Black Economic Empowerment” programme in South Africa.
Surely the lessons that the nationalist elites in Zanu-Pf must have learnt from their two
decades’ cat and mouse fight with the white farmers and courts is that it is not enough to
provide for a public financing mechanism like the Indigenisation and Empowerment Fund,
and leave the valuation and compensation model based on free-market principles or
ultimate dispute resolution in the hands of the civil courts. Whatever funds are
accumulated through the former are sure to be wiped out in no time yet without achieving
the objective of not only a broad-based indigenisation programme but also fundamental
restructuring of property relations amongst the bourgeois class itself.
If the Zimbabwean nationalist elites are really serious about an indigenisation programme
that empowers the black national bourgeoisie as against international and local white
capitalists and gives them a chance to achieve the historic breakthrough achieved by their
counter-parts in Asia, then the way to go is that of section 16A of the constitution. In other
56 Former Highlands Residents, in re Ash v Department of Land Affairs [2002] 2 All SA 26 (LCC); A Einsenberg “Different
Formulations of Compensation Clauses” (1993) 9 SAJHR 412
57 Currie and Johan de Waal, op cite, 556
58 Former Highlands Residents, in re Ash v Department of Land Affairs [200] 2 All SA 26 (LCC)

35
words, during the current constitutional reform exercise, extend the property
compensation and valuation model used for the historic land reform programme to all
forms of property. Such model calls for a historically and socially determined system of
compensation and valuation at three levels:
Firstly, to specify in the manner of section 16A (1) that the Zimbabwean state or
indigenous Zimbabweans shall not be liable for a specified bulk portion of the amount to be
paid for the disposed share-holding, say two thirds. Compensation for this shall be the
responsibility of the former colonial power(s) through an appropriate restitution fund
established by such power(s), and that if the former colonial power(s) fail to pay such
compensation, the Zimbabwe state and indigenous Zimbabweans shall have no obligation
to pay for such share-holding.
Secondly that in relation to the minority portion to be paid by indigenous Zimbabweans,
say one third, the state, through an appropriate broad-based mechanism, shall prescribe
maximum rates to be paid, with the valuation of the amount to be paid taking into account
specified “ultimate and overriding considerations,” modeled on those already incorporated
under section 16A (1) and (2) of the constitution and international laws, including:
(a) that ‘under colonial domination the people of Zimbabwe were unjustifiably disposed of
their land and other resources without compensation;’59
(b) the people consequently took up arms in order to regain their land, resources and political
and economic sovereignty and this ultimately resulted in the Independence of Zimbabwe in
1980;
(c) the people of Zimbabwe must be enabled to reassert their rights and regain ownership of
their land, resources and all property;
(d) the obligation of the state under international law to facilitate the people’s rights to
economic development; to freely dispose of their wealth and natural resources, to
adequate means of existence and the duty on the state to progressively achieve the
peoples’ socio-economic rights to the maximum of the nation’s available resources;
(e) the history of the ownership, use and occupation of the property;
(f) the price paid for the property when it was last acquired;
(g) the cost or value of improvements on the property;
(h) the current use to which the property and any improvements on it are being used;
(i) any investment which the State or public may have made which improved or enhanced the
value of the property and any improvements on it;
(j) the resources available to the state and indigenous Zimbabweans in implementing the
programme of indigenisation and economic empowerment;
59 See generally M Gwisai, “Constitutional Reform in Zimbabwe: History and Way Forward” 2 KMLLJ 26 (2009)

36
(k) any financial constraints that necessitate the payment of share-holding in installments,
dividends or loans from the indigenised business, over a period of time;
(l) ‘and any other relevant factor that may be specified in an Act of Parliament.’
Thirdly and finally that a right to appeal to the courts on issues concerning compensation is
excluded and the courts’ jurisdiction generally ousted in exactly the same manner as under
the current provisions applicable to land for resettlement.60
The above propositions are not out of this world and would ideally be placed in any new
people-driven constitution but can still be inserted either principal Act or Regulations on
indigenisation. As already discussed the current compensation and valuation model used
by the courts seeks to strike a balance between the persons affected and the public interest.
For any bench other than one deeply intoxicated with racist positivist ethos, the factors to
consider in assessing fairness of compensation must surely include the social and historical
context of the property and law in general, if justice and fairness is to be achieved. I
couldn’t put it better than Gubbay ACJ (as he then was) did in Zimnat Insurance Co. Ltd v
Chawanda: 61
“Today the expectations amongst people all over the world, and particularly in developing
countries, are rising ...The Judiciary can and must operate the law so as to fulfill the necessary
role of effecting such development...The opportunity to play a meaningful and constructive role
in developing and moulding the law to make it accord with the interests of the country may
present itself where a judge is concerned with the application of the common law, even though
there is a spate of judicial precedents which obstructs the taking of such a course...If judges
hold to their precedents too closely, they may well sacrifice the fundamental principles of
justice and fairness for which they stand...’When these ghosts of the past stand in the path of
justice clanking their medieval chains the proper course is for the judge to pass them
undeterred.”
In any case as again discussed earlier, there is no unanimous consensus amongst jurists
that the right to property is a fundamental human right that should hold the sacrosanct
position that positivism seeks to give it, with some constitutions and core international
human rights instruments not even providing for it or providing for the nationalisation of
key sectors of the national economy.62 Thus the historical realities of racial discrimination
60 Provisos to section 16(1) (f) of the Constitution of Zimbabwe
61 1990 (2) ZLR 143 (S)
62 Supra Note 13 giving examples of the International Covenant on Civil and Political Rights; and the International Covenant on
Economic, Social and Cultural Rights. Currie and Johan de Waal (2005) at 533 point out that the Canadian Charter of Rights and
Freedoms of 1982 and the New Zealand Bill of Rights Act of 1990 do not provide for a property clause. On the other hand,

37
and dispossession of colonialism, the need to advance the interests of those groups that
were historically disadvantaged and the right national economic sovereignty and
development are concrete factors that a court or policy maker must take into account in
deciding what is “reasonably necessary in the interest ... of the utilisation of that or any
other property for a purpose beneficial to the public generally or to any section of the
public,” 63or what constitutes “fair compensation.”64 More so when the constitution now
explicitly recognises affirmative action for the advancement “of persons or classes of
persons who have been previously disadvantaged by unfair discrimination,” as a
permissible and legitimate public policy tool and measure.65 Indeed major capitalist
corporates are doing exactly that when they give share-holding to their employees in
broad-based employee share-ownership schemes, either fully gratuitously or partially free
or for it to be paid by loans guaranteed by the company or from future dividends.66
Such subordination of all forms of property to historical and equitable considerations is
directly done in the Constitution of South Africa, considered to be one of the most
bourgeois democratic constitutions in the world. Section 25 reads:
(3) The amount, timing, and manner of payment of compensation must be just and equitable,
reflecting an equitable balance between the public interest and the interests of those
affected, having regard to all relevant factors, including –
(a) The current use of the property;
(b) The history of the acquisition and use of the property;
(c) The market value of the property;
(d) The extent of direct state investment and subsidy in the acquisition and beneficial capital
improvement of the property; and
(e) The purpose of the expropriation.
(4) For the purposes of this section –
(a) The public interest includes the nation’s commitment to land reform, and to reforms to
bring about equitable access to all South Africa’s natural resources; and
(b) Property is not limited to land.”
The failure by the Zimbabwean nationalist elites to so suitably amend the national
constitution or so structure the valuation and compensation model in the Act and
exclusive state ownership is provided for in prohibited in fundamental areas of the national economy like the petroleum
industry and natural gas industry under the constitutions of Venezuela (Arts 302 – 303) and Bolivia (Art 313).
63 Section 16(1)(a)(ii) Constitution of Zimbabwe
64 Section 16(1) (c) ibid
65 Section 23(3)(g)
66 See the Kutula Scheme run by Anglo-American and claimed to be the biggest broad-based empowerment scheme in South
Africa in which the workers got 50 per centum of their share-holding gratuitously.

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