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Reflections on the Constitutional Regulation of Property and Land Rights under the 2013 Zimbabwean Constitution

Published online by Cambridge University Press:  15 March 2016

James Tsabora
James Tsabora*
Affiliation:
Midlands State University, Gweru, Zimbabwe
*
[email protected]
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Abstract

Property rights discourse, particularly the scope, nature, distribution, redistribution, recognition and protection of property rights, has dominated debate in African post-colonial property rights systems. In Zimbabwe, property rights law has been a contested space since the colonial era. That the property rights system is a contested arena is particularly so in view of the fact that colonial subjugation in Zimbabwe was characterized, in a very important way, by politically motivated land dispossession and, consequently, inequitable property rights distribution patterns. As a result, Zimbabwe's property rights law has always responded to mainstream, albeit fluid, political and economic undercurrents. This has meant that mainstream historical and contemporary debates have provided the context for understanding the constitutional regulation of property and land rights in Zimbabwe. This article assesses the constitutional regulation of constitutional property and land rights in Zimbabwe, and the conflicts and tension that are accommodated in the constitutional property rights framework.

Keywords

Propertylanddeprivationacquisitionconstitution
Type
Research Article
Information
Journal of African Law , Volume 60 , Issue 2 , June 2016 , pp. 213 - 229
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Copyright
Copyright © SOAS, University of London 2016 

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References

1 See for instance, G Linington Constitutional Law of Zimbabwe (2001, Legal Resources Foundation) at 447–78.

2 See generally C Huggins and J Clover (eds) From the Ground Up: Land Rights, Conflict and Peace in Sub Saharan Africa (2005, Institute for Security Studies) at 2. For Zimbabwe, see van Horn, A “Redefining property: The constitutional battle over land redistribution in Zimbabwe” (1994) 38/2Journal of African Law 144CrossRefGoogle Scholar.

3 For instance, the Constitution of the Republic of South Africa, 1996, sec 25; the Constitution of the Kingdom of Swaziland Act, 2005, sec 19; the Constitution of the United Arab Republic of Tanzania, 1977 as amended, sec 24.

4 Passed as the Constitution of Zimbabwe Amendment (No 20) Act, 2013, came into force on the day it was gazetted, 22 May 2013.

5 The NCA Draft, sec 32.

6 The Kariba Draft, secs 56 and 57.

7 The 2013 Constitution, secs 71 and 72.

8 The drafting of the land rights provisions was a cause of disagreement during the 1979 Lancaster House constitutional negotiations that led to Zimbabwe's first constitution and eventual political independence from Britain. See generally A Hammar and B Raftopoulos “Zimbabwe's unfinished business: Rethinking land, state and nation” in A Hammar, B Raftopoulos and S Jensen (eds) Zimbabwe's Unfinished Business: Rethinking Land, State and Nation in the Context of Crisis (2003, Weaver Press) 1.

9 See generally van Horn “Redefining property”, above at note 2.

10 Id at 146.

11 South African property law has followed a similar position. There is however an acknowledgment that Roman-Dutch common law is far from neutral. For instance, passing judgment in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at 223, the South African Constitutional Court noted the ability of Roman-Dutch principles of private ownership to give “legitimation in an apparently neutral and impartial way to the consequences of manifestly racist and partial laws”.

12 See for instance L Ntsebeza and R Hall (eds) The Land Question in Southern Africa (2007), chaps 1 and 2.

13 See J Alexander The Unsettled Land: State Making and the Politics of Land in Zimbabwe (2006, James Currey) at 10.

14 Sec 71(2).

15 These entitlements include the entitlement to use the thing [ius utendi], to possess the thing [ius possidendi], to enjoy the fruits or income from the thing [ius fruendi], to dispose of the thing [ius disponendi], to resist unlawful invasion [ius negandi], to destroy the thing [ius abutendi] and to claim the thing from an unlawful possessor [ius vindicandi]. See P Badenhorst et al Silberberg and Schoeman's The Law of Property (4th ed, 2003, Lexis Nexis Butterworths) at 94.

16 See for instance sec 25 of the South African Constitution, 1996, which is negatively phrased and reads: “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”

17 The 2013 Constitution does not define “compulsory deprivation”. However case law offers some guidance. In Davies and Others v Minister of Lands, Agriculture and Water Development 1996 (9) BCLR 1209 (ZS), the Supreme Court attempted to distinguish between “compulsory acquisition” and “compulsory deprivation”. Gubbay CJ (at 1213–19) generally came to the conclusion that compulsory acquisition must refer to “the transfer of property or any interest or right therein to the State in the sense of a parting with ownership or possession”, while compulsory deprivation is related to negative statutory restrictions or injunctions that interfere with property rights, but do not lead to the transfer of ownership.

18 Sec 71 uses the terms “deprivation” and “acquisition” interchangeably. This, it is argued, could be a result of a mistaken belief that there is no difference in the meaning of the two terms. Sec 72, which deals exclusively with the compulsory acquisition of land rights, does not however use the term “deprivation” anywhere.

19 On the explanation of the rule of law in Zimbabwe, see Chinhengo J in Commissioner of Police v CFU 2000 (9) BCLR 956 (Z) at 976–78; and CFU v Minister of Lands, Agriculture and Rural Settlement and Others 2001 (3) BCLR 197 (ZS) at 205–12. See also generally AT Magaisa “Constitutionality versus constitutionalism: Lessons for Zimbabwe's constitutional reform process”, available at: <https://kar.kent.ac.uk/30495/1/Submission4.pdf> (last accessed 24 February 2016).

20 See for instance the Universal Declaration of Human Rights, art 17(1) and (2).

21 The South African constitutional property clause is also drafted in a way that promotes this tension between individual property rights and national interests in land reform, land tenure reform and land redistribution objectives. See Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) 226. See also PJ Badenhorst, JM Pienaar and H Mostert Silberberg and Schoeman's The Law of Property (5th ed, 2006, LexisNexis Butterworths) at 561–64.

22 2013 Constitution, sec 72.

23 1996 (9) BCLR 1209 (ZS).

24 AJ van der Walt Constitutional Property Law (2005, Juta) at 131.

25 van der Walt, AJ “The limits of constitutional property” 1997 South African Public Law 275Google Scholar at 279.

26 The 2013 Constitution, chap 4.

27 The values expressed in sec 3(1) are “(a) supremacy of the Constitution; (b) the rule of law; (c) fundamental human rights and freedoms; (d) the nation's diverse cultural, religious and traditional values; (e) recognition of the inherent dignity and worth of each human being; (f) recognition of the equality of all human beings; (g) gender equality; (h) good governance; and (i) recognition of and respect for the liberation struggle”. An important principle in sec 3(2) is “respect for vested rights”.

28 Chap 2 contains a list of national objectives. It is important to note that there are no provisions directly related to property rights in this section.

29 In re Munhumeso and Others 1994 (1) ZLR 49 (S); Rattigan and Others v Chief Immigration Officer and Others 1994 (2) ZLR 54 (S); S v A Juvenile 1989 (2) ZLR 61 (S).

30 1997 (2) ZLR 544 (S) at 553.

31 See S v Mhlungu and Others 1995 (3) SA 867 (CC). See also Du Plessis and Others v De Klerk and Others 1996 (5) BCLR 658 (CC).

32 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC), para 90.

33 Sec 86 reads: “(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons. (2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including - (a) the nature of the right or freedom concerned; (b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others; (e) the relationship between the limitation and its purpose, in particular whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and (f) whether there are any less restrictive means of achieving the purpose of the limitation.”

34 See United Nations Development Programme Zimbabwe Land Reform and Resettlement: Assessment and Suggested Framework for the Future (interim mission report, 2002) at 24.

35 Defined to include “anything permanently attached to or growing on land”.

36 This is to be understood as “a piece of agricultural land registered as a separate piece of land in a Deeds Registry”.

37 “Land used or suitable for agriculture, that is to say for horticulture, viticulture, forestry or aquaculture or for any purpose of husbandry, including (a) the keeping or breeding of livestock, game, poultry, animals or bees; or (b) the grazing of livestock or game; … but does not include Communal Land or land within the boundaries of an urban local authority or within a township established under a law relating to town and country planning or as defined in a law relating to land survey.”

38 This section is in fact taken from section 16 of the 1980 Constitution.

39 The detailed process is provided under specific provisions of the Land Acquisitions Act, chap 20:10.

40 The 2013 Constitution, sec 72(2).

41 Id, sec 72(3)(b). Despite these provisions, the state can raise a special plea as a response to applications made.

42 Id, sec 72(3)(c).

43 SADC (T) case no 2/2007.

44 Id at 41–55. The tribunal concluded (at 54) that in “implementing Amendment 17, the Respondent has discriminated against the Applicants on the basis of race and thereby violated its obligation under Article 6(2) of the (SADC) Treaty”.

45 The listed grounds for discrimination under sec 56(3) of the 2013 Constitution include “race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status”.

46 This argument was raised by Mike Campbell in the case against the government of Zimbabwe. The SADC Tribunal finding on discrimination was based on this argument. See part VI of the judgment, above at note 43.

47 The 2013 Constitution, sec 72(7).

48 See the sentiments of Chidyausiku J in Davies and Others v Minister of Lands, Agriculture and Water Development 1994 (2) ZLR 294 (H) at 308.

49 Sec 72(7) of the 2013 Constitution expresses this position.

50 Id, sec 72(4).

51 This section is repeated verbatim in sec 290.

52 The 2013 Constitution, preamble and sec 72(7).

53 Id, sec 72(7). This section was transplanted verbatim from sec 16A(1)(a)–(c) of the 1980 Constitution, introduced by Constitutional Amendment No 17 of 2005. Even more interestingly, this section was uprooted from the National Draft Constitution, 2000 which was rejected at a referendum. The Kariba Draft Constitution of 2008 also adopted this provision verbatim (secs 56(7)(a)–(c)).

54 The 2013 Constitution, sec 289.

55 Id, sec 289(a)–(f).

56 The 2013 Constitution does not define the term “occupier of agricultural land”. Section 3(1) of the Rural Occupiers (Protection from Eviction) Act 20:26 recognizes a “protected occupier”. This is a person who occupies rural agricultural land without permission and who would ordinarily be subjected to legal proceedings for his eviction, but occupied such land in anticipation of being resettled by an acquiring authority on that or any other land for agricultural purposes and qualifies for settlement on that or any other land in accordance with the relevant administrative criteria fixed by an acquiring authority for the resettlement. Such a person shall not be evicted from such land since he is protected by the act.

57 See generally AJ van der Walt (ed) Land Reform and the Future of Landownership in South Africa (Juta, 1991); Caldwell, LK “Right of ownership or rights of use? The need for a new conceptual basis for land use policy” 1975 Environmental Law Review 409Google Scholar; Walt, Van der “Property rights and hierarchies of power: A critical evaluation of land-reform policy in South Africa” (1999) 64 Koers 259Google Scholar.

58 The Constitution of the Republic of South Africa, 1996, sec 25.

59 Van der Walt “Property rights”, above at note 57 at 264–65.

60 Id at 267–69; Pienaar, G “Registration of informal land-use rights in South Africa: Given teeth to (toothless?) paper tigers” 2000 TSAR 445Google Scholar.

61 Van der Walt, id at 267.

62 G Pienaar “The registration of fragmented use rights as a development tool in rural areas” (paper delivered at a University of Potchefstroom conference on constitution and development, 2000) at 109.

63 The 2013 Constitution, sec 293(3) provides for legislation that must prescribe necessary “procedures for the alienation and allocation of agricultural land by the State”.

64 Under sec 294 of the 2013 Constitution, an occupier of agricultural land “has the right to transfer, hypothecate, lease or dispose of his or her right in agricultural land”. This means that the right holder can sell or dispose of his right, albeit “subject to limitations imposed by law”.

65 See generally Miller, DL Carey and Pope, A “South African land reform” (2000) 44 Journal of African Law 167CrossRefGoogle Scholar. The registration system must provide for a simplified certificate of title that rights holders may then use to access forms of assistance.

66 Act 3 of 1996.

67 Act 62 of 1997.

68 The 2013 Constitution, sec 295(1).

69 The recognized exception is for land belonging to other entities under the terms of bilateral investment promotion and protection agreements signed between the government and other countries.

70 The 2013 Constitution, sec 35(1).

71 Under sec 35(2), all Zimbabwean citizens (by birth, descent and registration) are equally entitled to the rights, privileges and benefits of citizenship and are equally subject to the duties and obligations of citizenship.

72 Indigenization and Economic Empowerment Act, chap 14:33, sec 2(1).

73 This definition is highly controversial and might be regarded as unconstitutional. According to Matyszak, the definition in the act only encompassed black Zimbabwean citizens and had the effect of excluding persons in the country, such as white Zimbabweans; see D Matyszak “Everything you wanted to know (and then some) about Zimbabwe's indigenisation and economic empowerment legislation but quite rightly were too afraid to ask” (2011, Research and Advocacy Unit).

74 Farm invasions have been reported on a number of occasions in the aftermath of the 2013 Constitution. They have assumed basically the same shape as those carried out under the 1980 Constitution. See for instance “New farm invasions should be halted” (22 February 2015) The Standard, available at: <http://www.thestandard.co.zw/2015/02/22/new-farm-invasions-halted/> (last accessed 25 March 2015); “Govt's farm invasions threats spark anxiety” (13 March 2015) Zimbabwe Independent, available at: <http://www.theindependent.co.zw/2015/03/13/govts-farm-invasions-threats-spark-anxiety/> (last accessed 25 March 2015); “We don't support invasion of dairy farms” (4 December 2013) The Herald, available at: <http://www.herald.co.zw/we-dont-support-invasion-of-dairy-farms/> (last accessed 25 March 2015); Commercial Farmers Union of Zimbabwe “Cyrene farm takeover ‘error’” (12 March 2015), available at: <http://www.cfuzim.org/index.php/newspaper-articles-2/land-issues/5178-cyrene-farm-takeover-error> (last accessed 25 March 2015).