nothing in the principles evolved below that prevents them from also applying to commerci property of the same nature. What is involved in these cases is a state debt and a law that cancels that state debt, ostensibly for a regulatory purpose. The question usually is whether the effects of the cancellation are really regulatory in nature or whether the state action amounts to an expropriation The most controversial decision in this area was handed down by the zimbabwe Supreme Court in Hew lett v Minister of finance and Another, 3 which was decided in terms of the original 1980 version of section 16 of the Zimbabwean Constitution, prior to the amendment of 1990.39 The applicant was a farmer to whom a sum of money was awarded in respect of losses suffered as a result of >acts of terrorism= as defined in the Victims of Terrorism(Compensation ) Act. 0 Subsequent to the award being made, the Emergency Powers (Stay of Compensation Claims) Regulations 1980 froze all proceedings for compensation and the payment of claims, and shortly thereafter the War Victims Compensation Act 22 of 1980 repealed the initial Compensation Act and provided that no further compensation was to be paid in terms of the repealed Act or in terms of any award, jud gment or court order made under that law. The applicant claimed that the regulations and section 38 of the new Compensation Act are unconstitutional on the ground that they violate section 16 of the Constitution. The first part of the decision is uncontroversial. The court favoured a wide interpretation of the undefined term >property= in section 11, the ord inary meaning of which was said to include a money debt The major part of the judgment 1982(1)SA490(ZSC The property clause, which is a unique variation of a >double= property guarantee(see note 42), appears in the introductory s 1 l and the special s 16 of the Constitution of Zimbabwe 1980. Generally, the property clause provides for compulsory acquisition aga inst compensation and subject to certain requirements and procedures. It is accepted that the relevant provisions also allow for regulatory deprivations of property without compensation. The amendment, which is mostly concerned with land reform and the question of compensation for expropriation of land, does not affect the decision or the discussion here. For an overview see C Ng=ong=ola >The post-colonial era in relation to land expropriation laws in Botswana, Malawi, Zambia and Zimbabwe=(1992)4 1 Int &e Comp lo 117-136 In terms of the Act, a board was set up to determ ine whether or not compensation should be gran ted to victims of terrorism and to set the amount of such compensation Ins 38 4z The Zimbabwean Constitution 1980 is one of the(mostly postcolonial >Lancaster House=)constitutions hat contain a >double= or com bined property clause, one part of which appears in the general, introductory s 1l and a second part in the specials 16 dealing with property only. For an analysis and a discussion of the problems deriving from this >double= format, and of the different variations ofthe format, see A van der Walt >@Double@ property guarantees: A structural and comparative analysis= forthcoming(1998)14 SA Journal on Human Rights. The Zimbabwean variation is unique in that both sections refer to compulsory cquisition of property, which makes it more difficult to justify the traditional distinction between leprivations and expropriations, but avoids the problem of deciding whether or not compensation is required for both At 497H 11
11 nothing in the principles evolved below that prevents them from also applying to commercial property of the same nature. What is involved in these cases is a state debt and a law that cancels that state debt, ostensibly for a regulatory purpose. The question usually is whether the effects of the cancellation are really regulatory in nature or whether the state action amounts to an expropriation. The most controversial decision in this area was handed down by the Zimbabwe Supreme Court in Hewlett v Minister of Finance and Another, 38 which was decided in terms of the original 1980 version of section 16 of the Zimbabwean Constitution, prior to the amendment of 1990.39 The applicant was a farmer to whom a sum of money was awarded in respect of losses suffered as a result of >acts of terrorism= as defined in the Victims of Terrorism (Compensation) Act.40 Subsequent to the award being made, the Emergency Powers (Stay of Compensation Claims) Regulations 1980 froze all proceedings for compensation and the payment of claims, and shortly thereafter the War Victims Compensation Act 22 of 1980 repealed the initial Compensation Act and provided41 that no further compensation was to be paid in terms of the repealed Act or in terms of any award, judgment or court order made under that law. The applicant claimed that the regulations and section 38 of the new Compensation Act are unconstitutional on the ground that they violate section 16 of the Constitution. The first part of the decision is uncontroversial. The court favoured a wide interpretation of the undefined term >property= in section 11,42 the ordinary meaning of which was said to include a money debt.43 The major part of the judgment 38 1982 (1) SA 490 (ZSC). 39 The property clause, which is a unique variation of a >double= property guarantee (see note 42), appears in the introductory s 11 and the special s 16 of the Constitution of Zimbabwe 1980. Generally, the property clause provides for compulsory acquisition against compensation and subject to certain requirements and procedures. It is accepted that the relevant provisions also allow for regulatory deprivations of property without compensation. The amendment, which is mostly concerned with land reform and the question of compensation for expropriation of land, does not affect the decision or the discussion here. For an overview see C Ng=ong=ola >The post-colonial era in relation to land expropriation laws in Botswana, Malawi, Zambia and Zimbabwe= (1992) 41 Int & Comp LQ 117-136. 40 In terms of the Act, a board was set up to determine whether or not compensation should be gran ted to victims of terrorism and to set the amount of such compensation. 41 In s 38. 42 The Zimbabwean Constitution 1980 is one of the (mostly postcolonial >Lancaster House=) constitutions that contain a >double= or combined property clause, one part of which appears in the general, introductory s 11 and a second part in the special s 16 dealing with property only. For an analysis and a discussion of the problems deriving from this >double= format, and of the different variations of the format, see AJ van der Walt >@Double@ property guarantees: A structural and comparative analysis= forthcoming (1998) 14 SA Journal on Human Rights. The Zimbabwean variation is unique in that both sections refer to compulsory acquisition of property, which makes it more difficult to justify the traditional distinction between deprivations and expropriations, but avoids the problem of deciding whether or not compensation is required for both. 43 At 497H
focused on the phrase >property of any description or any interest or right therein= in section 16 The court made it clear that this phrase, as used in section 16, must >embrace the widest possible range of property=, and particularly a money debt. The term was explicitly stated to include both movable and immovable property, and both tangible and intangible property. 4This approach to the scope of the property concept in a constitutional property clause is in line with decisions, such as Attorney-General v Lawrence 6 and Shah v Attorney-General (No. 2), 47from other Commonwealth jurisdictions. The most important part of the jud gment, for present purposes, is the finding that, whatever the position of unresolved claims for compensation may e, an award of compensation once made constitutes a debt which is property for purposes of section 16. In response to the state=s averment that the compensation payment was the product of a >bounty law=, and that it could be cancelled by the state without compensation, the court came to the conclusion that, even if >bounty= payments can be recalled by the state without compensation, >they do not . establish the principle that the State can withdraw its undertaking to pay a debt which has crystallised= 0 Given the fact that the compensation payment in question has >crystallised= once the award was made, it has become property which cannot be cancelled without compensation. In other words, the court confirmed the widely established principle that a right will be considered and protected as property once it has vested in the beneficiary. I The first part of the Hew lett decision is uncontroversial, but the second part, which deals with the nature and valid ity of the regulation in question, is not. Initially the court=s approach to the regulation issue looks acceptable. The term >deprivation= does not appear in the Zimbabwean property clause, but the court nevertheless decided that the distinctionbetween At 497G, per Fieldsend CJ At 497H [1985]LRC (Const)921(CA)(St Christopher Nevis [1970 EA 523(UHC)(Uganda). See the discussion of the case below 5011 Charles Reich=s >new property; see C Reich >The new property=(1964)73 Yale ]/733 Further references to this principle appear in the other cases discussed below ased on the classic example of a property clause in the American Constitution, which refers to deprivations and takings of property. A very clear example of the distinction appears ins 13 of the Malaysian Constitution. Most constitutions(including both the 1993 and the 1996 South African constitutions)now either provide for this distinction explicitly, or the distinction is accepted even without a textual base in the property clause. A major source for the interpretation of this distinction is JL Sax >Takings and the police power=(1964)74 Yale L36-76, but the Selangorcase might just be an example of the instances where Sax=s distinction(on the basis of the question whether the state acted in its regulatory or its competitive capacity )does not work all that well
12 focused on the phrase >property of any description or any interest or right therein= in section 16. The court made it clear that this phrase, as used in section 16, must >embrace the widest possible range of property=, and particularly a money debt.44 The term was explicitly stated to include both movable and immovable property, and both tangible and intangible property.45 This approach to the scope of the property concept in a constitutional property clause is in line with decisions, such as Attorney-General v Lawrence46 and Shah v Attorney-General (No. 2),47 from other Commonwealth jurisdictions. The most important part of the judgment, for present purposes, is the finding48 that, whatever the position of unresolved claims for compensation may be, an award of compensation once made constitutes a debt which is property for purposes of section 16. In response to the state=s averment that the compensation payment was the product of a >bounty law=, 49 and that it could be cancelled by the state without compensation, the court came to the conclusion that, even if >bounty= payments can be recalled by the state without compensation, >they do not ... establish the principle that the State can withdraw its undertaking to pay a debt which has crystallised=. 50 Given the fact that the compensation payment in question has >crystallised= once the award was made, it has become property which cannot be cancelled without compensation. In other words, the court confirmed the widely established principle that a right will be considered and protected as property once it has vested in the beneficiary.51 The first part of the Hewlett decision is uncontroversial, but the second part, which deals with the nature and validity of the regulation in question, is not. Initially the court=s approach to the regulation issue looks acceptable. The term >deprivation= does not appear in the Zimbabwean property clause, but the court nevertheless decided that the distinction52 between 44 At 497G, per Fieldsend CJ. 45 At 497H. 46 [1985] LRC (Const) 921 (CA) (St Christopher & Nevis). 47 [1970] EA 523 (UHC) (Uganda). See the discussion of the case below. 48 At 5011G. 49 Charles Reich=s >new property; see C Reich >The new property= (1964) 73 Yale LJ 733. 50 At 501A. 51 Further references to this principle appear in the other cases discussed below. 52 Based on the classic example of a property clause in the American Constitution, which refers to deprivations and takings of property. A very clear example of the distinction appears in s 13 of the Malaysian Constitution. Most constitutions (including both the 1993 and the 1996 South African constitutions) now either provide for this distinction explicitly, or the distinction is accepted even without a textual base in the property clause. A major source for the interpretation of this distinction is JL Sax >Takings and the police power= (1964) 74 Yale LJ 36-76, but the Selangor case might just be an example of the instances where Sax=s distinction (on the basis of the question whether the state acted in its regulatory or its competitive capacity) does not work all that well
deprivations3and expropriations 4 forms part of Zimbabwean law, and that the nature and valid ity of the Compensation Act had to be judged against the background of this distinction This approach translates the question before the court to the well-known inquiry whether the law in question constitutes a deprivation of property or a compulsory acquisition. The find ing is that the state, in promulgating the law and cancelling the debt created by an existing compensation award, did not >acquire anything= even though it destroyed the beneficiary=s claim Therefore so the court=s argument goes, the cancellation of the debt amounts to a deprivation of property rather than a compulsory acquisition. In arriving at this conclusion the court accepted an extremely limited and narrow interpretation of >compulsory acquisition=, which means that the cancellation of a state debt, which admittedly constitutes property, is not regarded as a compulsory acquisition. 5 Generally speaking, the court=s analysis of the distinction between non-compensable, non-acquisitive regulation(deprivations) of property in terms of section 1 1 and compensable compulsory acquisitions of property in terms of section 16 is clear and convincing, but the application of the distinction to the facts of the case is questionable. In accepting the narrow interpretation that restricts >compulsory acquisitions= to situations where the state actually acquires something, the court allowed itself to be misled by conceptual thinking and(poorly argued)private-law dogma, unable to distance itself from the classic perception of expropriation as a process whereby the state physically takes something(particularly land) from someone and uses it for a public purpose. Given the extremely wide interpretation which is(correctly) given to the term >property= in the constitutional context, a similarly wide interpretation should also have been given to the term >acquisition=. To argue that an >acquisition= only takes place, as is the case with tangible property, when that which is lost by the one party actually >goes over to= or is this narrow interpretation is flawed by reasoning which does not account for the fact that, in cancelling the debt, the state actually did >acquire something= in the form of a saving or release from the duty to pay In view of the nature of intangible property which is included in constitutional property guarantees, and given the public-law nature of the constitutional relation between state and citizen, the court=s approach is even less acceptable. In a situation where the state is in a position For which compensation is not normally required. Deprivation of property is associated with the exercise of the state=s >police power=, which involves regulatory controls over the use and exploitation of property These controls are imposed in the public interest, and normally affect all property owners (of the relevant condemnation of property)is usually associated with the state=s power of >em inent domain=, and involves state acquisition of the property for a public use or purpose. These actions usually benefit the public whole or serve a public purpose, but they affect one or a small group of property owners in a particularly detrimental manner Per Fieldsend CJ at 503A-E, 5-6D-507G, and per Baron JA 508B-509D At 501H-502H
13 deprivations53 and expropriations54 forms part of Zimbabwean law, and that the nature and validity of the Compensation Act had to be judged against the background of this distinction. This approach translates the question before the court to the well-known inquiry whether the law in question constitutes a deprivation of property or a compulsory acquisition. The finding is that the state, in promulgating the law and cancelling the debt created by an existing compensation award, did not >acquire anything= even though it destroyed the beneficiary=s claim. Therefore, so the court=s argument goes, the cancellation of the debt amounts to a deprivation of property rather than a compulsory acquisition. In arriving at this conclusion the court accepted an extremely limited and narrow interpretation of >compulsory acquisition=, which means that the cancellation of a state debt, which admittedly constitutes property, is not regarded as a compulsory acquisition.55 Generally speaking, the court=s analysis56 of the distinction between non-compensable, non-acquisitive regulation (deprivations) of property in terms of section 11 and compensable compulsory acquisitions of property in terms of section 16 is clear and convincing, but the application of the distinction to the facts of the case is questionable. In accepting the narrow interpretation that restricts >compulsory acquisitions= to situations where the state actually acquires something, the court allowed itself to be misled by conceptual thinking and (poorly argued) private-law dogma, unable to distance itself from the classic perception of expropriation as a process whereby the state physically takes something (particularly land) from someone and uses it for a public purpose. Given the extremely wide interpretation which is (correctly) given to the term >property= in the constitutional context, a similarly wide interpretation should also have been given to the term >acquisition=. To argue that an >acquisition= only takes place, as is the case with tangible property, when that which is lost by the one party actually >goes over to= or is transferred to the recipient is simply wrong, even in traditional private-law dogma. Moreover, this narrow interpretation is flawed by reasoning which does not account for the fact that, in cancelling the debt, the state actually did >acquire something= in the form of a saving or release from the duty to pay. In view of the nature of intangible property which is included in constitutional property guarantees, and given the public-law nature of the constitutional relation between state and citizen, the court=s approach is even less acceptable. In a situation where the state is in a position 53 For which compensation is not normally required. Deprivation of property is associated with the exercise of the state=s >police power=, which involves regulatory controls over the use and exploitation of property . These controls are imposed in the public interest, and normally affect all property owners (of the relevant category) equally. 54 For which compensation is normally required. Expropriation (also compulsory acquisition, taking or condemnation of property) is usually associated with the state=s power of >eminent domain=, and involves state acquisition of the property for a public use or purpose. These actions usually benefit the public as a whole or serve a public purpose, but they affect one or a small group of property owners in a particularly detrimental manner. 55 Per Fieldsend CJ at 503A-E, 5-6D-507G, and per Baron JA 508B-509D. 56 At 501H-502H
to use its state power to make a law that benefits itself by nullifying an existing and >crystallised= debt, and thereby deprive a citizen of property, the inequality of the relationship between the state as lawmaker and the citizen as creditor should suffice to indicate that a more sympathetic interpretation of the acquisition requirement is required. To acknowledge the deprivation of the plaintiff and the simultaneous benefit of the state and still refuse to regard the action as an acquisition amounts to sophistry a completely different approach was followed by the Uganda High Court in Shah v attorney General(No. 2 ). 57 The plaintiff concluded a contract with the former government of Buganda in terms of which, once he fulfilled his obligations under the contract, he was entitled to a money payment from the government. Shortly afterwards the kingdom of Bugand a ceased to exist and the government of Uganda took over the assets, rights and liabilities of the former administration in terms of the Local Administrations Act 1967. The government refused to pay the amount still outstand ing to the plaintiff and the plaintiff obtained judgment against the government. The on the officials responsible for payment. The Attorney-General applied for a dismissal of the us government did not appeal but failed to pay the judgment. The plaintiff applied for a mandamus plaintiff=s application on grounds of section 2(1)of the Local Administrations(Amendment) (No 2)Act 1969, which had been passed subsequent to the judgment and which made all contracts with the former Buganda government unenforceable except insofar as they had been plaintiff challenged the relevant provisions of the Act on the grounds that they werc s. The q ratified by the Minister. The Act also made provision for the d ismissal of any proceedings based on an unratified contract regardless of any judgment already given in such proceedings. The unconstitutional as they amounted to a deprivation of property without compensation. There are differences between this case and the Zimbabwean Hew lett case, mostly due to differences in the structure of the >double= guarantee in each of the relevant constitutions. The most important difference is that the Ugandan property clause, because of the way in which it is structured guarantees compensation for both compulsory acquisitions and deprivations of property. However, these differences are not fundamental, and the cases remain comparable, mainl because the Ugandan Constitution allows the question of compensation to be raised with regard to deprivations of property as well as compulsory acquisitions. Like the Zimbabwe Supreme Court, the Uganda High Court also decided that >property= referred to in the Ugandan Constitution must be interpreted widely to include any form of property whatsoever, and that a judgment debt establishes a form of personal property which is protected by the general introductory guarantee against deprivations in section 8(2)(c). Moreover, the court decided that [1970]EA 523(UHC). The property clause appeared in ss 8 and 13 of the original Constitution of the Republic of Uganda 1967 (a >double= property guarantee; see note 42), and now in s 26 of the Constitution of the Republic of Uganda 1995.The 1967 clause contained the usual deprivation and compulsory acquisition against compensation provisions. The 1995 clause contains a positive guarantee of the right to cquire and hold property, and more or less standard deprivation and expropriation against compensation clauses. The Shah case was decided in terms of the 1967 Constitution See notes 42 and 57 At 531C, per Jones J and 533C-G, per MeadJ
14 to use its state power to make a law that benefits itself by nullifying an existing and >crystallised= debt, and thereby deprive a citizen of property, the inequality of the relationship between the state as lawmaker and the citizen as creditor should suffice to indicate that a more sympathetic interpretation of the acquisition requirement is required. To acknowledge the deprivation of the plaintiff and the simultaneous benefit of the state and still refuse to regard the action as an acquisition amounts to sophistry. A completely different approach was followed by the Uganda High Court in Shah v AttorneyGeneral (No. 2). 57 The plaintiff concluded a contract with the former government of Buganda in terms of which, once he fulfilled his obligations under the contract, he was entitled to a money payment from the government. Shortly afterwards the kingdom of Buganda ceased to exist and the government of Uganda took over the assets, rights and liabilities of the former administration in terms of the Local Administrations Act 1967. The government refused to pay the amount still outstanding to the plaintiff and the plaintiff obtained judgment against the government. The government did not appeal but failed to pay the judgment. The plaintiff applied for a mandamus on the officials responsible for payment. The Attorney-General applied for a dismissal of the plaintiff=s application on grounds of section 2(1) of the Local Administrations (Amendment) (No. 2) Act 1969, which had been passed subsequent to the judgment and which made all contracts with the former Buganda government unenforceable except insofar as they had been ratified by the Minister. The Act also made provision for the dismissal of any proceedings based on an unratified contract regardless of any judgment already given in such proceedings. The plaintiff challenged the relevant provisions of the Act on the grounds that they were unconstitutional as they amounted to a deprivation of property without compensation. There are differences between this case and the Zimbabwean Hewlett case, mostly due to differences in the structure of the >double= guarantee in each of the relevant constitutions.58 The most important difference is that the Ugandan property clause, because of the way in which it is structured, guarantees compensation for both compulsory acquisitions and deprivations of property. However, these differences are not fundamental, and the cases remain comparable, mainly because the Ugandan Constitution allows the question of compensation to be raised with regard to deprivations of property as well as compulsory acquisitions. Like the Zimbabwe Supreme Court, the Uganda High Court also decided that >property= referred to in the Ugandan Constitution must be interpreted widely to include any form of property whatsoever, and that a judgment debt establishes a form of personal property which is protected by the general, introductory guarantee against deprivations in section 8(2)(c).59 Moreover, the court decided that 57 [1970] EA 523 (UHC). The property clause appeared in ss 8 and 13 of the original Constitution of the Republic of Uganda 1967 (a >double= property guarantee; see note 42); and now in s 26 of the Constitution of the Republic of Uganda 1995. The 1967 clause contained the usual deprivation and compulsory acquisition against compensation provisions. The 1995 clause contains a positive guarantee of the right to acquire and hold property, and more or less standard deprivation and expropriation against compensation clauses. The Shah case was decided in terms of the 1967 Constitution. 58 See notes 42 and 57. 59 At 531C, per Jones J and 533C-G, per Mead J
a deprivation in the form of a cancellation of a judgment debt against the state entails enrichment for the state in the form of absolvement from the duty to pay, and therefore rejected the argument that the state acquired nothing in the process. 60 A similar approach was followed by the australian Federal Court in Peverill v health Insurance Commission. Peverill was a specialist pathologist who rendered certain pathology services to the state. he sued the health insurance commission for medicare benefits due to him for these services in terms of the Health Insurance Act 1973. The Health Insurance( Pathology Services)Amendment Act 1991 effected certain retrospective changes to the Health Insurance Act, with the result that Peverill=s right to payment by the Commonwealth was extinguished Peveril claimed that the amendment act was ulra vires and beyond the power of the paner Riot of the Commonwealth on the grounds that it amounted to an acquisition of property oth n on just terms, contrary to section 51(xxxi) of the Commonwealth Constitution 1900. The Feder Court pointed out explicitly that the right which the plaintiff had to payment of the statutory debt in question was property within the meaning of section 51(xxxi) of the Commonwealth Constitution.6 Since the Amendment Act did not only extinguish the debt, but resulted in a clear and direct benefit accruing to the state, it is clear that this property was acquired by the state as meant in section 51(xxxi). The right acquired by the state consists in the benefit of not having to pay the debt. Although it may be possible to acquire property without compensation legitimately in some cases, this was not such a case, and therefore the property was acquired without just terms, in conflict with the property guarantee The principles deriving from the Ugandan Shah decision and the australian Peverill decision clearly contradict the Zimbabwean Hewlett decision, and in my view they present the better arguments and authority for cases of this nature. They have been confirmed in a number of other cases dealing with the salaries of state employees and with a statutory freeze of public 60 At 534B. WambuziJ dissented on this point; see 540E (1991)104 ALR 449(FC). It must be pointed out that s 51(xxxi of the Australian Commonwealth Constitution 1900 is not a regular property clause in a regular Bill of Rights. The section basically just establishes the federal govemment=s power of expropriation, but has been interpreted as a standard constitutional property clause; see the decision per Burchett J at 454 ff. At45649 At45822ff, In Nobrega v Attorney-General of Guyana(1967)10 WIR 187(CAG), the appellant was employed by the govemment of British Guiana(now the Cooperative Republic of Guyana )as a teacherat a salary of $251 a month. After initially failing to comply with appointment formalities, she was informed that her appointment had been rescinded and that she would be paid as an unqualified assistant m istress pending the submission of the requested documents, and that herstatus as a teacher would be determined on receipt of the required documents and a new letter of appointment would be issued to her. She sent the documents the same day but received no further communication. When she received her salary, it had been reduced to $92 per month. She brought an action for a declaration that she was entitled to receive a salary of $251 and that the purported reduction in her salary was ultra vires and of no effect. Given the nature of this case, the majorpart of the judgment is concemed with unlawful dismissals. Ultimate ly this decision turns on the
15 a deprivation in the form of a cancellation of a judgment debt against the state entails enrichment for the state in the form of absolvement from the duty to pay, and therefore rejected the argument that the state acquired nothing in the process.60 A similar approach was followed by the Australian Federal Court in Peverill v Health Insurance Commission. 61 Peverill was a specialist pathologist who rendered certain pathology services to the state. He sued the Health Insurance Commission for Medicare benefits due to him for these services in terms of the Health Insurance Act 1973. The Health Insurance (Pathology Services) Amendment Act 1991 effected certain retrospective changes to the Health Insurance Act, with the result that Peverill=s right to payment by the Commonwealth was extinguished. Peverill claimed that the amendment act was ultra vires and beyond the power of the parliament of the Commonwealth on the grounds that it amounted to an acquisition of property other than on just terms, contrary to section 51(xxxi) of the Commonwealth Constitution 1900. The Federal Court pointed out explicitly that the right which the plaintiff had to payment of the statutory debt in question was property within the meaning of section 51(xxxi) of the Commonwealth Constitution.62 Since the Amendment Act did not only extinguish the debt, but resulted in a clear and direct benefit accruing to the state, it is clear that this property was acquired by the state as meant in section 51(xxxi).63 The right acquired by the state consists in the benefit of not having to pay the debt. Although it may be possible to acquire property without compensation legitimately in some cases, this was not such a case, and therefore the property was acquired without just terms, in conflict with the property guarantee. The principles deriving from the Ugandan Shah decision and the Australian Peverill decision clearly contradict the Zimbabwean Hewlett decision, and in my view they present the better arguments and authority for cases of this nature. They have been confirmed in a number of other cases dealing with the salaries of state employees64 and with a statutory freeze of public 60 At 534B. Wambuzi J dissented on this point; see 540E. 61 (1991) 104 ALR 449 (FC). It must be pointed out that s 51(xxxi) of the Australian Commonwealth Constitution 1900 is not a regular property clause in a regular Bill of Rights. The section basically just establishes the federal government=s power of expropriation, but has been interpreted as a standard constitutional property clause; see the decision per Burchett J at 454 ff. 62 At 456.49. 63 At 458.22 ff, particularly 459.43. 64 In Nobrega v Attorney-General of Guyana (1967) 10 WIR 187 (CAG), the appellant was employed by the government of British Guiana (now the Cooperative Republic of Guyana) as a teacher at a salary of $251 a month. After initially failing to comply with appointment formalities, she was informed that her appointment had been rescinded and that she would be paid as an unqualified assistant mistress pending the submission of the requested documents, and that her status as a teacher would be determined on receipt of the required documents and a new letter of appointment would be issued to her. She sent the documents the same day but received no further communication. When she received her salary, it had been reduced to $92 per month. She brought an action for a declaration that she was entitled to receive a salary of $251 and that the purported reduction in her salary was ultra vires and of no effect. Given the nature of this case, the major part of the judgment is concerned with unlawful dismissals. Ultimately this decision turns on the