Opposed
Application
MAFUSIRE
J:
[1] This
is a constitutional application. The applicants want section 4 and
section 6(1)(b) of the Communal Land Act [Chapter
20:04]
declared ultra
vires
the Constitution of Zimbabwe. The
draft order does not identify which particular sections of the
Constitution the impugned provisions allegedly conflict with. But
according to the founding affidavit, the impugned provisions are an
infringement of the applicants right to life; their right to human
dignity; their right to property; their right to equal protection and
benefit of the law; and their right to culture and language,
allegedly as protected by section 48; section 51; section 72; section
63; section 56(1) and section 68 of the Constitution.
[2] Section
4 of the Communal Land Act vests all communal land in the President,
the third respondent herein. The provision reads:
“4
Vesting of Communal Land
Communal
Land shall be vested in the President, who shall permit it to be
occupied and used in accordance with this Act.”
[3] Section
6 of the Communal Land Act empowers the President to make additions
to or make subtractions from communal land. The impugned provision
reads:
“6 Additions
to and subtractions from Communal Land
(1)
Subject to this Act… … , the President may, by statutory
instrument —
(a)...
… … …;
(b)
after consultation with any rural district council established for
the area concerned, declare that any land within Communal Land shall
cease to form part of Communal land.”
[4] The
Communal Land Act defines 'Communal Land' as consisting of land
which, immediately before the 1st
February, 1983, was Tribal Trust Land in terms of the Tribal Trust
Land Act, 1979 (No.6 of 1979), subject to any additions thereto or
subtractions therefrom made in terms of section 6. In terms of the
Tribal Trust Land Act, tribal trust land consisted of land which,
immediately before the appointed day,
was Tribal Trust Land in terms of the Land Tenure Act [Chapter
148],
subject to any additions thereto and subtractions therefrom made in
terms of that Act. Tribal trust land, according to the Tribal Trust
Land Act, vested in the President.
[5] According
to the uncontroverted facts presented by the applicants, they are all
members of an ethnic community in Zimbabwe called the Hlengwe
Shangaani. This community occupies the south eastern Lowveld of
Zimbabwe: mainly areas bordering, or falling within Chikombedzi,
Chiredzi, Gonarezhou, Hippo Valley, Malilangwe, Mwenezi and Triangle,
along rivers such as Save, Runde and Limpopo. This ethnic group is
also found in parts of Mozambique and South Africa. It traces its
history to more than 500 years ago in the parts that they are settled
in. It claims occupation of the lands in question well before the
advent of colonialism in the 1890s. It even claims occupation before
the seismic Mfecane
migration that happened in Southern Africa in the 19th
century when large swathes of ethnic groupings escaped with their
leaders from Tshaka, the ruthless military ruler from Zululand. The
migrants moved to occupy lands north of rivers Limpopo and Zambezi in
parts of present day Zimbabwe, Mozambique, Malawi and Zambia.
[6] What
has triggered this constitutional onslaught by the applicants are a
series of legal instruments passed by central Government, through the
respondents, in February and March 2021. First, was Statutory
Instrument 50 of 2021 on 26 February 2021 (Communal Land [Setting
Aside of Land] [Chiredzi] Notice, 2021). In terms of it, an
improperly described Minister of Local Government, Urban
and Rural Development
purportedly gave notice of the setting aside of 12,940 hectares in
the administration district of Chiredzi for the purpose of 'lucerne
production'. The notice went on to order that any person occupying
or using the affected land otherwise than by virtue of a right held
in terms of the Mines and Minerals Act [Chapter
21:05]
should depart permanently with all his or her property from the land
by the date of the publication of the notice, unless he or she
acquired rights of use or occupation in terms of section 9(1) of the
Communal Land Act.
[7] Then
there was Statutory Instrument 51 of 2021 on the same date (Communal
Land [Excision of Land] Notice, 2021). In terms of it, the President,
acting in terms of section 6(1)(b) of the Communal Land Act, excised
the same land and declared that it had ceased to be part of Chiredzi
Communal Land. The obnoxious order directing occupiers and users of
the affected land to depart immediately with their property was left
out.
[8] Then
on 9 March 2021 was Statutory Instrument 63A of 2021 (Communal Land
[Setting Aside of Land] [Chiredzi] Notice, 2021: Correction of
Errors). It corrected the mistake in SI 50 of 2021. Where the latter
had referred to the Minister of Local Government, Urban
and Rural Development,
and to its purpose as being lucerne
production,
the correcting instrument now referred to the Minister of Local
Government and
Public Works,
the second respondent herein. The 'purpose' was changed from
'lucerne production' to 'establishment of an irrigation
scheme'. Again the order to users and occupiers to depart
immediately was left out.
[9] Finally,
on 16 March 2021 was Statutory Instrument 72A of 2021 (Communal Land
[Setting Aside of Land] [Chiredzi] Notice, 2021). In terms of it, the
second respondent gave notice in terms of section 10 of the Communal
Land Act for the setting aside of the same piece of land for the
purpose of establishing an irrigation scheme. It went on to repeal SI
50 of 2021. Again no mention was made of the order for users and
occupiers to depart immediately.
[10] The
applicants grounds for the constitutional challenge are multiple.
Both
parties have abandoned all the preliminary objections that they had
initially raised in the papers.
For locus
standi,
the
applicants
rely on section 85 of the Constitution. This is the provision that
entitles any of the persons listed therein to approach a court for
appropriate relief where they allege a breach of a fundamental right
or freedom enshrined in the Bill of Rights. They include any person
acting in their own interest; any person acting on behalf of another
person who cannot act for themselves; any person acting as a member,
or in the interests of a group or class of person; or any person
acting in the public interest. The respondents have not contested the
applicants locus
standi.
[11] Distilled,
the applicants case, as I have understood it, and in my own words, is
this:
(i)
Given the history and manner of occupation of the lands in question
by their ancestors, it is wrong to classify their territories as
communal land within the meaning of the Communal Land Act. Their
ancestors were not placed in those areas by colonialism. Their lands
are not tribal trust land as is the case with the majority of the
other ethnic groups in Zimbabwe. Their land was not artificially
created and carved out by the Land Apportionment Act. They have owned
it in their own right as indigenous people.
(ii)
For the respondents to strip them of their land, or to displace them
in the manner, and for the purposes intended, is to virtually pass
the death sentence upon the entire community. The community occupies
the land of their ancestors. It ekes out a living from pieces of
lands ranging in sizes from about 12 hectares to about 16 hectares.
The community comprises peasant farmers. They practise mixed farming.
This consists of, among other things, crop and livestock production.
Some members of the community are contract farmers for Delta
Beverages for the production of sorghum. They rely on their land for
virtually everything in life: food; medicines; culture; education;
dignity; marriage, you name it.
(iii)
The intended move by the respondents is an unlawful deprivation of
their right to property as enshrined in section 71 and section 72 of
the Constitution. In terms of the Constitution, no person may be
compulsorily deprived of their property except in terms of a law of
general application and for the public good, and on reasonable
notice. Whilst the Land Acquisition Act [Chapter
20:10]
may be such a law of general application, the Communal Land Act is
not. However, the Communal Land Act is exempt from the Land
Acquisition Act.
(iv)
The Communal Land Act has a violent, obnoxious and racist origin. It
is a racist colonial relic. It is most shocking and inexplicable that
a black government, born out of a bloody and protracted war of
liberation against the white settler regime over the land question,
has decided to retain this racist construct in its statute books. The
vesting of communal land in persons other than the original owners
stemmed from the racist philosophy that the aboriginal owners of that
land, the indigenous black Africans, were barbarians with no grain of
civilisation. Their backward state of development prevented them from
treating land as a commercially tradable commodity that was capable
of individual ownership.
(v)
The racist colonial notion that natives had no concept of private
ownership of land found expression in various racist pieces of
agrarian legislation, writings and judicial pronouncement. It all
started with the Berlin Conference in 1884–1885. European powers
carved out for themselves swathes of the African continent on the
notion that blacks were barbaric, backward and not capable of owning
land. The British colonised what is present day Zimbabwe. They
allowed the imperialist and adventurist Cecil John Rhodes and his
British South Africa Company to cheat, rob, steal and plunder the
African of his land. Blacks were driven and penned into unproductive
'native reserves'.
(vi)
Regarding legislation and/or legal instruments, it all started with
the Morris Carter Commission of 1925. It was a Commission set up to
debate the issue whether blacks and whites could live side by side.
From the premise that the black man, even under the veneers of
civilisation, always reverted to his congenital barbarism, the
African was pushed into unfertile tribal lands that were held in
trust for him to minimise contact with the civilised white settlors.
The fertile lands were reserved for the white settlors. Then followed
a series of racist legislation which condemned the indigenous black
population to those wretched lands. Among others, there was the Land
Apportionment Act of 1930. Then the Land Husbandry Act of 1951; the
Land Tenure Act, and then the Tribal Trust Land Act. All these were
designed to segregate land into, among others, white and native
areas. The whites took the lion's share of all the fertile lands.
The blacks were condemned to eke out a living in overcrowded, dry and
extremely unfertile territories.
(vii)
The decision of the Privy Council in England in the case of In
re Southern Rhodesia
(1919)
AC 211 gave judicial pronouncement to the racist construct that
separate ownership of land was an alien concept to the native who was
at the lower end of the scale of social organisation and
civilisation.
(viii)
With the attainment of independence in Zimbabwe in 1980, the new
black Government merely renamed the Tribal Trust Land Act the
Communal Land Act. But it retained completely intact the racist
provision depriving indigenous people occupying communal lands the
right to have titled deeds. It is irrational and in defiance of logic
that white settlors who forcibly took away black owned farms or built
towns and townships in black areas could own that land privately, yet
indigenous owners settled in so-called reserves just across those
farms or townships could not, and still cannot, obtain the right to
private title. There is no logic in a situation where an African can
acquire title to a small piece of land that he or she buys, or is
allocated to him or her, in a township like Tshovani in Chiredzi, or
Borrowdale in Harare, or Makokoba in Bulawayo, but with the same
African, a stone throw away in Chilonga Communal Land, being unable
to acquire similar title to the land of his or her birth.
(ix)
Internationally, the various conventions and charters on human and
people's rights have guaranteed the rights of access to, and the
use of land and other natural resources held under communal
ownership. Several other countries have grappled with agrarian
reforms but in a rational and thoughtful manner. The applicants are
entitled to the right to self-worth and human dignity in terms of the
Constitution. The intended move by the respondents deprives the
applicants and their community of the right to live on their lands.
They will be moved without compensation. They have not been properly
consulted. Government functionaries have merely appeared on the scene
to inform them of the intended development. Lucerne production, or
the purported irrigation scheme, are intended to benefit rich
foreigners, not the local community.
(x)
The agrarian reform undertaken by the Government from 2000 is an
unfinished business. Government must issue title deeds or tradable
certificated of occupation which can be hypothecated. There can be
established a controlled land market for communal lands. Such a
controlled market will ensure that foreign land barons do not buy out
communal land. In countries such as Ghana and Kenya, the land tenure
systems are such that indigenous communities own their land which
they can parcel out and sell subject to control by the community
leaders.
[12] The
respondents contest none of the above narrative. Through the
Attorney-General, the fourth respondent herein, who has deposed to an
affidavit on behalf of all of them, the substantive case for the
respondents, again as I have understood it, and in my own words, is
this:
(i)
Section 4 and section 6(1)(b) of the Communal Land Act are not ultra
vires
the Constitution. There is nothing wrong in vesting communal land in
the State President. Residents of communal lands have the right to
use and occupy that land subject to the administrative oversight
imposed by the Act. This is designed to ensure orderly development of
communal lands. Residents of properly established townships in urban
areas are governed by a different legal regime altogether. They
cannot be compared to residents of communal lands. Communal lands are
inhabited by ethnic communities with common customs and traditions.
To allow private ownership of those territories poses grave danger to
the customary practices, traditions and livelihoods of those people.
Vesting of such lands in the President is done to ensure orderly
development. The President does not own the lands in his personal
capacity, but by virtue of the powers vested in him as the State
President.
(ii)
No development of any significant proportion occurs in communal lands
without prior and proper planning and consultations with the
community leaders and the local authorities. This is what has
happened in the case of Chilonga. The initial reference to 'lucerne
production' was a mistake. What is intended to be done is to
develop a vast irrigation scheme for the benefit of the local
community. No one will be displaced as the land that has been
identified is largely uninhabited. Those that may be affected will be
relocated and compensated adequately in accordance with the
provisions of the Act. Such kind of development is not uncommon.
Sometimes it is necessary to bring vast tracts of land that may be
lying idle into production for the benefit of the affected
communities and the country as a whole. It has happened with the
Kanyemba area, the Bulawayo Kraal and the Batoka in Hwange. The
intended irrigation project in Chilonga will be an extension of the
Tugwi-Mukosi project. To the extent that it overlooks the obvious
benefits of the intended project, namely the generation of foreign
currency, overall rural development, the provision of basic amenities
like clinics, schools and better housing, and the establishment of an
economic hub in Chilonga, the application is myopic. It is frivolous
and vexatious.
(iii)
The Communal Land Act ensures that there is proper management of
resources in the communal areas. Communal land encompasses a whole
lot of other key natural resources such as wild life and natural
forests which require protection. Traditional leaders in the communal
areas interface with rural district councils to ensure that there is
proper use of the land. The Act is a self-contained model for rural
development and transformation.
[13] The
application is a compelling dissertation on the history of the
occupation of the territory that is now present day Zimbabwe; the
savagery and ruthlessness that was associated with the forced
dispossession of the local population of their resources, including
land and cattle, and their virtual enslavement in the land of their
births, all this by the incoming foreign white settlors. There can be
no question that the Communal Land Act, particularly the vesting of
title of such lands in any person other than the occupiers and users
of that land, has its origins in the pathological hatred of the
aboriginal races by the invading forces and the retrograde,
self-serving conceptions and philosophies concerning the indigenous
African. He was viewed as a congenital barbarian, a sub-human being
and an uncivilised savage who, among other despicable traits, did not
recognise land as being capable of private ownership, and therefore a
commercially tradable commodity. The history presented by the
applicants in this application rings true for virtually every piece
of the African continent that was under colonialism. It is virtually
impossible to narrate it with dispassionate detachment without
getting emotionally entangled.
[14] However,
when it comes to the nuts and bolts of the case, and the remedy the
applicants seek, it becomes a different ball game altogether. There
are simply some things or problems that the law and the courts alone
may not accomplish or resolve. There are simply some issues that a
court alone may be ill-equipped to provide a solution to. There could
be some questions that the law and the courts are perfectly poised
and empowered to resolve. Then there are others that require a
political solution. Sometimes politics has to speak first, and only
then may the law take over. Where politics has not yet spoken, or
where it has spoken something else, there may well be a lacuna in the
law. The courts may be ill-equipped to fill up the gap. Where a
matter is not capable of judicial resolution, the court may decline
jurisdiction. I must explain what I mean.
[15] The
Constitution, in Chapter 8, vests judicial function in the courts.
Courts exist to exercise judicial power of the State. But in a
constitutional democracy, the doctrine of the separation of powers
confines the courts to their lane of operation. This was underscored
in Doctors
for Life International v Speaker of the National Assembly & Ors
2006 (6) SA 416 (CC) at para 37 as follows:
“Courts
must be conscious of the vital limits on judicial authority and the
Constitution's design to leave certain matters to other branches of
government. They too must observe the constitutional limits of their
authority. This means that the judiciary should not interfere in the
processes of other branches of government unless to do so is mandated
by the Constitution.”
[16] This
principle was also clearly articulated in International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
2012 (4) SA 618 (CC) at para 95:
“Where
the Constitution or valid legislation has entrusted specific powers
and functions to a particular branch of government, courts may not
usurp that power or function by making a decision of their
preference. That would frustrate the balance of power implied in the
principle of separation of powers. The primary responsibility of a
court is not to make decisions reserved for or within the domain of
other branches of government, but rather to ensure that the concerned
branches of government exercise their authority within the bounds of
the Constitution. This would especially be so where the decision in
issue is policy-laden as well as polycentric.”
[17] Courts
do recognise the political question doctrine. There are certain
decisions that are better left to Parliament or the Executive to
resolve. In Nyambirai
v National Social Security Authority & Anor
1995 (2) ZLR 1 (S) the Supreme Court, at p9H– 10B, put it as
follows:
“I
do not doubt that because of their superior knowledge and experience
of society and its needs, and a familiarity with local conditions,
national authorities are, in principle, better placed than the
Judiciary to appreciate what is to the public benefit. In
implementing social and economic policies, a government's
assessment as to whether a particular service or programme it intends
to establish will promote the interest of the public, is to be
respected by the courts. They will not intrude but will allow a wide
margin of appreciation unless, convinced that the assessment is
manifestly without reasonable foundation.”
[18] In
the case of Commercial
Farmers Union v Minister of Lands & Ors
2000 (2) ZLR 469 (S) it was recognised that the land issue lies in
the political domain to resolve. It was categorically accepted as
fundamentally true that the land issue was a political question. It
was said that the political method of resolving that question was by
enacting laws. To this extent, it was recognised that the Government
had just done that. It had enacted and amended the Land Acquisition
Act. The only problem was that the Government was not obeying its own
laws. When a Government does not obey its own laws there can be no
question of the courts keeping mute in their lane. They will speak
out. They will call the Government to account. It is their
constitutional mandate.
[19] In
the present case, I am not convinced that the impugned sections in
the Communal Land Act are ultra
vires
the Constitution. The Act may have an obnoxious and racist parentage.
But at independence in 1890 and beyond, up to the present day, the
Government, in its infinite wisdom, decided to retain the Tribal
Trust Land Act intact, albeit under a new title. It decided to leave
the concept of vesting of communal lands in the State President
intact. That was a political decision. The respondents have argued
why that was so. The applicants dismiss that argument. But I would
think that without some sort of commission of enquiry on the whole
agrarian reform, especially as it applies to communal lands, this
court may not be sufficiently qualified to provide a wholesome
solution to the question of private ownership of communal lands.
[20] It
is not an unreasonable fear that the granting of title carte
blanche
to users and occupiers of communal lands may result in undesirable
consequences. For example, foreign land barons may end up owning vast
tracts of communal land. This may disrupt the orderly customary way
of life in those territories. If there are safe-guards that may be
put in place, like what the applicants say happened in Kenya and
Uganda, I just do not have sufficient information and knowledge of
what they are. A holistic approach to the question is required
instead of providing some random remedy under some constitutional
fiat.
[21] The
history of the occupation of the territories the applicants and their
community hail from may be unique. The respondents have not
contradicted it. But in my view, this does not distinguish such
territories from being communal lands within the meaning of the
Communal Land Act. They remain communal land. They are classified as
communal land. It is the same with territories in other areas. The
State President does not own them in his own personal capacity. There
are parameters within that Act governing such vesting of ownership.
There are measures within the Act governing the excision of any
communal land, the addition to or subtraction from it. Where there
are developments intended to be carried out in communal lands, such
as have been touted in this application, there are administrative
procedures that have to be followed. These may, or may not be
adequate. The applicants insist that none of such procedures has been
followed. But this is a question of fact. It does not determine the
constitutionality or otherwise of the impugned provisions. I see no
discrimination as against the applicants and their community as
communal land dwellers.
[22] The
Executive and the Legislature are better placed than the courts to
consider, on the basis of the material, information, the expertise,
the resources, and so on, available to them whether, in spite of the
regrettable origins of the Communal Land Act, it is time that private
ownership of communal territories is recognised so that individual
title deeds can now be granted to the occupiers of such territories.
It is not for the courts to decide or provide a solution under the
guise of constitutionalism. It is a political question.
[23] The
application cannot succeed. However, I disagree with the respondent's
contention that it was frivolous and vexatious. It was not. It was
public interest litigation. Such kinds of challenges may actually dog
the courts in the future. Therefore, in dismissing the application,
it is only fair that each party bears their own costs. The following
order is hereby made:
The
application is hereby dismissed but with no order as to costs.
Tendai
Biti Law,
legal practitioners for the applicants
Civil
Division of the Attorney General's Office,
legal
practitioners for the respondents
1.
The
day the Act would come into operation
