This is an appeal against the entire judgment of the High Court, sitting at Harare, in which it dismissed a constitutional application placed before it.
The appellants approached the court a quo seeking an order that section 4 and section 6(1)(b) of the Communal Land Act [Chapter 20:04] (hereinafter the “Communal Land Act”) be declared ultra vires the Constitution of Zimbabwe 2013 (“the Constitution”).
The application was prompted by a series of legal instruments passed by the Government which gave notice of the setting aside of 12,940 hectares in the administrative district of Chiredzi, initially for 'lucerne production.' A subsequent statutory instrument altered the purpose of the reservation of the area to an “irrigation scheme.”
The court a quo did not find merit in the application. It held that there was nothing unconstitutional with the provisions of sections 4 and 6 of the Communal Land Act. It accordingly dismissed the application.
Irked by that decision, the appellants appealed to this Court in terms of section 175(4) of the Constitution.
FACTUAL BACKGROUND
The appellants in this matter are members of the Hlengwe Shangani ethnic group. They are peasant farmers who occupy tracts of land in the Chilonga area in Chiredzi. They practise mixed farming. The community occupies the south-eastern Lowveld of Zimbabwe, particularly areas bordering or falling within Chikombedzi, Chiredzi, Gonarezhou, Hippo Valley, Malilangwe, Mwenezi, and Triangle. The land in question falls along the Save, Runde, and Limpopo Rivers. The same ethnic group also occupies parts of Mozambique and South Africa. It claims occupation of the land in question well before the advent of colonialism in the 1890s.
The first and second respondents are Cabinet Ministers responsible for the administration of the Ministry of Lands, Agriculture, Water, Climate, and Rural Settlement and the Ministry of Local Government and Public Works, respectively.
The third respondent is the President of the Republic of Zimbabwe (hereinafter referred to as the “President”) with the fourth respondent being the State's principal legal advisor (Attorney General of Zimbabwe).
On 26 February 2021, a statutory instrument, S.I.50/21, was published by the Minister of Local Government, Urban, and Rural Development, giving notice, that, acting in terms of section 10 of the Communal Land Act, he had set aside 12,940 hectares in the district of Chiredzi for lucerne production. On the same date, the President, acting under section 6 of the Communal Land Act, published S.I.51/21, giving notice that a piece of land in extent of 12,940 hectares had been set aside from the district of Chiredzi.
It is common cause that the two legal instruments contained errors.
The first, S.I.50/21, cited the wrong Minister as the administrative authority. This was corrected by the publication of S.I.63A/21 on 9 March 2021 which cited the Minister of Local Government and Public Works. In addition, the purpose for the setting aside of the 12,940 hectares was altered from that of lucerne production to an irrigation scheme. On the same day, the President published S.I.72A/21. The Statutory Instrument repealed S.I.51/21and gave notice, that, the President, acting in terms of section 10 of the Communal Land Act, had set aside a piece of land in extent of 12,940 hectares in the district of Chiredzi for the setting up of an irrigation scheme.
Feeling threatened by the imminent reservation of land within their area of habitat, the appellants applied to the High Court (“the court a quo”) impugning the constitutional validity of section 4 and section 6(1)(b) of the Communal Land Act.
The first appellant averred, that, the land that had been set aside, in extent 12,940 hectares, formed a significant part of their ancestral lands. He averred, that, the land was part of their ancestral heritage and that the Hlengwe-Shaangani communities had inhabited the area for over half a millennium. He averred, that, given the length of time the community had been in occupation of the same, they could not be dispossessed of the land at the mere whim of the respondents, and that, as a result, the reservation of the identified piece of land impacted on their fundamental human rights.
The first appellant listed the fundamental rights contained in sections 51, 48, 71, 63 and section 56(1) of the Constitution of Zimbabwe as being violated by the respondents actions. He asserted that sections 4 and 6(1)(b) of the Communal Land Act were the offending sections that enabled the violation of their fundamental rights.
Section 4 of the Communal Land Act was criticized as unconstitutional and labelled a relic from the colonial era that reinforced the notion that Africans could not own or vindicate property rights. The first appellant challenged the status quo, which he alleged prevented “indigenous peoples” from owning property rights to their ancestral homes in communal areas. Section 4 of the Communal Land Act was further impugned as being discriminatory due to the absence of private individual ownership rights for inhabitants of communal lands.
He averred that section 6(1)(b) of the Communal Land Act enabled the excision of portions of communal land by the third respondent (the President of the Republic of Zimbabwe) and that this provision breached the property rights enshrined in section 71 of the Constitution. He tied this breach to the right to life as protected by section 48 of the Constitution. Furthermore, he asserted that the prospective loss of their ancestral land would negatively impact on their right to dignity, which he tied to their ancestral land.
The first appellant averred that their right to practise their culture, under section 63 of the Constitution, would be affected by their forced relocation from their ancestral lands. He posited that this also violated their dignity. He stated that the impugned provisions violated their community's fundamental human rights as enshrined in the Constitution.
The appellants categorized the application before the court a quo as an attempt to reverse two hundred years of colonialism. The first appellant alleged, that, there existed inconsistencies in the system of land tenure in that the law had permitted the expropriation of commercial farmland from white farmers through the Land Reform Programme, and yet, in contrast, the communal land ownership system remained intact. He asserted that section 6(1)(b) of the impugned Act enabled the expropriation of communal land without any due process and compensation.
He submitted, that, the evolution of the Communal Land Act from the purported racist Land Apportionment Act and the Tribal Trust Land Act are regarded as incontrovertible evidence of its unconstitutionality. He reiterated that the impugned sections were discriminatory as they breached the appellants right to equal protection of the law enshrined in section 56(1) of the Constitution.
He stated that the land was a source not only of their food but their medicine as well. He averred that the proposed irrigation scheme was dubious, and he felt it was just an excuse to scout for mineral deposits in the area. The first appellant also insisted that the true purpose of their displacement was to pave the way for lucerne production in favour of a company named DenDairy (Pvt) Ltd.
In addition, the first appellant averred that there was no prior consultation with the local people by the third respondent before the exercise of the prerogative under section 6(1)(b) of the Communal Land Act. This was said to be a breach of the Administrative Justice Act [Chapter 10:28] and, consequently, section 68 of the Constitution.
He, therefore, sought a retrospective order nullifying the notices published by the respondents earlier in the year.
The first appellant embarked on a rendition of the background of his community's occupation of the land. He submitted that the community's existence in the territory had long been established before the Mfecane upheaval in the 19th century. To that end, he attached a case study by J.H. Bannerman that provided an exposition of the history of the Hlengwe community. He recounted clashes with the imperial white community that attempted to establish irrigation systems in areas that contained the graves of their ancestors. The first appellant stated that these graveyards were now part of the land sought to be annexed by the third respondent. He asserted that the prospective dispossession would strip them of their cultural heritage.
The first appellant made extensive reference to international law in support of the application.
He indicated, that, the universal principle of free prior informed consent (hereinafter “fpic”) was not observed due to the outdated provisions of the Communal Land Act, which did not mandate their inclusion in the decision-making process.
In addition, the first appellant cited Article 17 of the Universal Declaration of Human Rights to support his assertion that the impugned Act was arbitrary in depriving them of their ancestral property. Further allusion was made to the International Covenant for Civil and Political Rights and the African Charter on Human and People's Rights in support of the application.
Concerning the issue of locus standi, the first appellant averred that the application was anchored on section 85(1)(d) of the Constitution. He asserted that it was a matter of public interest as his community had a direct interest in the matter. He conflated public interest with his community's interests. Part of his reasoning was that the land question was the essence of the struggle for liberation in Zimbabwe.
The second and third appellants also deposed to affidavits supporting the constitutional application in the court a quo. They reiterated the same concerns regarding the negative implications of the reservation of the land on their human dignity and other related cultural rights.
Accordingly, the appellants sought an order declaring sections 4 and 6(1)(b) of the Communal Land Act ultra vires the Constitution.
The respondents opposed the application before the High Court.
The fourth respondent (the Attorney General of Zimbabwe) deposed to an opposing affidavit on behalf of all the respondents. He raised a preliminary objection alleging the misjoinder of the second and third respondents. He asserted that he was also a victim of mis-joinder in the proceedings as he had no legal interest in the matter.
As to the merits, he refuted the appellants claim to ownership of the reserved piece of land, stating that their community was a mere beneficiary of the communal land whose title was vested in the President. He also refuted the appellants claim that the project's true intent was not an irrigation project. Lastly, he highlighted, that, contrary to the appellants averments, section 12 of the Communal Land Act provided for compensation in instances of displacement from communal areas.
He further asserted, that, the State had engaged the Chilonga community regarding the establishment of an irrigation project and that the proposed project was not aimed at displacing the appellants community. In addition, he highlighted that a relatively large portion of the target area was un-inhabited. He added that various similar developmental schemes had been established in other communal areas. The proposed project was, therefore, not out of the ordinary.
The respondents contended, that, the application was both frivolous and vexatious and lacked a solid basis as the impugned provisions did not militate against the fundamental rights of the appellants as enshrined in the Constitution.
He disputed the contention that the Communal Land Act was a colonial construct, and, in support of the legislation in question, stated that it served a practical purpose: to regulate the universal national development of communal land. He stressed the existence of a compensation clause under section 12 of the impugned Act, which was available and accessible to any potentially affected parties.
The appellants replicated and filed answering affidavits.
The first appellant objected to the failure on the part of the respondents to attach a notice of opposition to their opposing affidavit. He also took issue with the fourth respondent deposing to an affidavit on behalf of the first to third respondents.
Regarding the substance of the respondents opposition, the appellants averred that the fourth respondent lacked the capacity to make assertions on matters of government policy.
The first appellant reiterated his apprehension that valuable minerals had been discovered in the area and that this discovery constituted the primary reason for the drive to set aside the targeted portion of their ancestral communal land.
The appellants refuted the contention by the respondents that there was prior consultation with the community before the impugned actions were taken. They alleged that the community was not allowed to make any meaningful submissions when the Government delegation advised them of the plan to annex the disputed territory. Further, meetings with Government officials were characterized as hostile and futile.
Following the hearing of the matter, the court a quo dismissed the application.
The appellants argument regarding the unconstitutionality of the impugned provisions was rejected. The court was of the view, that, it was not sufficiently qualified to provide a holistic solution to their predicament. The court a quo opined that the executive and legislature were better placed to provide an effective remedy.
Dissatisfied with the disposition a quo, the appellants filed the instant appeal before the Court on the following grounds:
GROUNDS OF APPEAL
“The court a quo grossly erred and misdirected itself in failing to hold that section 4 and section 6(1)(b) of the Communal Land Act [Chapter 20:04] are ultra vires the provisions of section 48, section 51, section 72, section 63, section 56(1) and section 68 of the Constitution of Zimbabwe.
More fully, the court a quo grossly erred in failing to hold that the legal position codified in the Communal Land Act [Chapter 20:04] denying indigenous aboriginal black Zimbabweans the right to own their land was unconstitutional.
On a very technical level, the court a quo erred in implicitly holding that the provisions sought to be impugned were reasonable and justified in a democratic society, and, in making such a finding without expressly holding that section 4 and 6 of the Communal Land Act [Chapter 20:04] violated the applicants rights.
The court a quo further erred in failing to appreciate that it could have granted an order, declaring section 4 and section 6 of the Communal Land Act [Chapter 20:04] unconstitutional and then suspending such declaration in terms of section 175(6) of the Constitution, allowing the executive, and, indeed, Parliament time to consult or set up a Land Commission on a new system of land tenure consistent with the Constitution.
More fully, the court a quo thus erred in failing to appreciate that what was before it was a legal issue for the declaration of the appellants rights as opposed to the policy issue of a new tenure system for communal land.”
APPELLANTS SUBMISSIONS ON APPEAL
Counsel for the appellants made the following submissions:
He argued that the court a quo's determination was wrong in failing to find that sections 4 and 6(1)(b) of the Communal Land Act were unconstitutional. He submitted that the court a quo's judgment contained three contradictory views:
(i) The first was that the court a quo made positive findings as to the racist import of the impugned provisions.
(ii) Secondly, the court a quo held the matter to be one of policy, notwithstanding the mandate of courts to interpret laws. He vehemently objected to such an approach, regard being had to section 175(6) of the Constitution, which imbues the courts with authority to grant a 'just and equitable remedy.'
(iii) The third facet allegedly contained in the judgment related to the determination that there was nothing objectionable with vesting of land in the President as a consequence of section 4 of the aforesaid Act. Counsel for the appellants submitted that this was in contrast with the court a quo's earlier findings of racial connotations in the impugned provisions.
In addition, he contended that it was a condescending view that land barons would overrun communal lands should “natives” be granted title to their land.
To bolster his stance on the alleged racial connotations of the impugned provisions, counsel embarked on a rendition of the historical background giving rise to the present-day Communal Land Act. To this end, counsel for the appellants advanced that racist undertones were prevalent in the expropriation of communal lands from the native people of Zimbabwe. He implored the Court to consider judicial pronouncements in Latin America that dealt with the land previously excised from the indigenous people in that region during the colonial era. He argued that the appellants dignity was tied to their ancestral land.
He thus proposed that the course adopted in the Inter-American cases on similar circumstances be followed and given effect to.
As regards the remedy, counsel for the appellants submitted that the order of unconstitutionality, in this case, ought to be suspended to enable the legislature to make the relevant consultations in formulating a comprehensive land tenure system.
The Court noted, that, the appellants had not sought to impugn section 10 of the Communal Land Act and whether there existed a cause of action in the matter due to the failure to attack the particular statutory instrument that set aside the appellants land.
Counsel for the appellants submitted, that, despite the first respondent's use of section 10 of the Communal Lands Act in setting aside land for an irrigation scheme there was a cause of action before the Court. He argued, that, at the relevant time of filing in the court a quo, there were three statutory instruments in terms of which the first respondent had acted when he set aside the land in contention.
Counsel for the appellants advanced, that, there thus was a sufficient basis for challenging the constitutionality of sections 4 and 6 of the impugned Act.
RESPONDENTS SUBMISSIONS ON APPEAL
Per contra, counsel for the respondents submitted that the court's decision a quo could not be faulted. She submitted that this was a polycentric matter which was the sole preserve of the executive and legislature and that the impugned sections did not infringe the appellants property rights.
In addition, counsel for the respondents contended, that, the vesting of communal lands in the President was aimed at managing development in the country.
She further submitted, that, the irrigation scheme development project would not compel the relocation of the Hlengwe community from their ancestral lands as the land earmarked for the project is currently unoccupied. As a result, they would not be forcibly relocated; hence, the issue of violation of rights could not be sustained.
She posited, that, in the event that the community was relocated, section 12 of the Communal Land Act provides for appropriate compensation to be paid to persons affected by any such relocation. She further submitted, that, in terms of the Constitution, a person might be compulsorily deprived of their property in terms of a law of general application and that the Communal Land Act is such a law.
She argued, that, the Constitution sanctioned the purpose of the reservation of the land in question and that it was in the public interest, and, further, for the benefit of the local community as it paved the way for an irrigation scheme to be set up.
Counsel for the respondents averred, that, a notice for the reservation of the land was provided and the Hlengwe people had also participated in the deliberations and hence they had been able to approach the Court for recourse.
She argued further, that, communal land is vested in the President, who has the authority to permit land usage within the confines of the Communal Land Act. As a consequence, she submitted that all the procedures were followed.
She contended, that, the appellants failure to impugn section 10 of the Communal Lands Act left them bereft of a cause of action.
Counsel for the respondents insisted, that, the intended development would not affect the appellants. She further argued that the Communal Land Act provided adequate remedies in the unlikely event that they were dislodged from their homes.
In conclusion, she submitted that the matter was not yet ripe for determination and that the court a quo had not erred at all by finding that the matter is one of policy and a political issue. That the law currently vests all communal land in the President, who may set aside part of such land under the provisions of the Communal Land Act, was beyond dispute. She argued that whether or not that land should no longer remain vested in the President, and title given to communal land occupants, is a matter for the executive and Parliament.
She accordingly moved for the dismissal of the appeal.
ISSUES FOR DETERMINATION
The appellants have raised five grounds of appeal. However, from those grounds, only three arise issues for determination:
(i) The first is whether or not the court a quo erred in failing to find that sections 4 and 6 of the Communal Land Act were unconstitutional, as contended by the appellants. Aligned to this is whether the appellants claim to a right to property under section 71 of the Constitution is well founded.
(ii) The second is whether or not the court a quo correctly found that the matter was one of policy and entirely in the hands of the executive and the legislature.
(iii) The third and last issue is whether or not the court erred in concluding that the provisions were reasonable and justifiable in a democratic society, and, thus, did not violate the appellants constitutional rights as alleged....,.
The appellants have alleged a violation of several provisions of the Constitution.
In considering the impugned legislative provisions, the task of the Court is to interpret the Constitution to safeguard and guarantee the protection and enforcement of enshrined fundamental rights under Chapter 4. Accordingly, the Court must adopt an approach that results in an expansive and broad interpretation of the provisions that protect human rights....,.
Consequently, the Court must consider and interpret all relevant provisions to give effect to the objects of the Constitution and best serve its interest and purpose....,.
Following up on the test established in In Re Munhumeso & Ors 1994 (1) ZLR 49 (S), a guiding tool for the Court was found in the case of Kawenda v Minister of Justice, Legal & Parliamentary Affairs & Ors CC03-22. In that case, MAKARAU JCC stated the following:
“There is an expansive body of jurisprudence from this jurisdiction and beyond on the approach that a court must take when determining whether a statute or other law is in conflict with the Constitution.
One begins with an interpretation of the relevant provisions of the Constitution. The purpose of interpreting the Constitution first is to set the framework, the backdrop, or the yardstick against which the impugned law will then be examined or measured. One starts with a discernment of the law: see Zimbabwe Township Developers (Pvt) Ltd v Lous Shoes (Pvt) Ltd 1983 (2) ZLR 376 (SC) at 383F; and Democratic Assembly for Restoration and Empowerment & Ors v Suanyama CC09-18.
In interpreting the constitutional provisions, the ordinary rules of interpretation of statutes apply. The Constitution is but a statute.
It is however settled, that, in interpreting constitutional provisions, the preferred construction 'is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose.' See Rattigan and Others v The Chief Immigration Officer and Others 1994 (2) ZLR 54. See also Smythe v Ushewokunze and Another 1997 (2) ZLR 544 (S).
In particular, when interpreting provisions that guarantee fundamental rights, the widest possible interpretation is adopted to give each right its fullest measure or scope.
After interpreting the appropriate provisions of the Constitution, one then presumes that the impugned law is constitutionally valid.
The presumption of constitutional validity serves, firstly, to place the onus on whoever is alleging invalidity to prove such invalidity, and, secondly, and, equally important, to guide the court in interpreting the impugned law in favour of validity where the piece of legislation is capable of two meanings. The presumption holds that where a piece of legislation is capable of two meanings, one falling within and the other falling outside the provisions of the Constitution, the court must perforce uphold the one that falls within.
The presumption in favour of constitutionality is entrenched in our law.
As the next and final logical step, the Court must then examine the effect of the impugned law on the fundamental right or freedom in question. If the effect of the impugned law is to abridge a fundamental right or freedom or is inconsistent with the provisions of the Constitution providing for the right or freedom, the object or subject matter of the impugned law will be less important or irrelevant: see In re Mhunhumeso 1994 (1) ZLR 49 (S).
If the court finds the impugned law to infringe upon a fundamental right or freedom or to be inconsistent with the provisions of the Constitution on a fundamental right or freedom, the court must proceed to determine whether the infringement or inconsistency is permissible in terms of section 86(2) of the Constitution.”
The remarks of MAKARAU JCC are apposite.
The steps to be followed have been settled and it will not add value to the above remarks to make any further comment. I will therefore proceed accordingly.
I commence with the claimed rights of ownership.
RIGHT TO OWNERSHIP UNDER SECTIONS 71 AND 72 OF THE CONSTITUTION
It seems to me that the fundamental rights upon which the appellants base their claim for breach of the Constitution have their genesis in an alleged right to ownership over the piece of communal land which the appellants occupy that has been set aside under the Communal Land Act. The right is claimed under section 71 of the Constitution. The appellants link the rights to dignity and life premised on the right under section 71.
An applicant who alleges a violation of a fundamental right must establish the existence of the right, that the provision under which the right is claimed applies to the applicant, and that the respondent has violated the right.
The appellants have alleged that they own the land they occupy in their affidavits. They allege that their right to ownership of this land is guaranteed under section 71(2) of the Constitution and they contend that this right has been violated by the setting aside of 12,940 hectares of the land they occupy. They aver that the vesting of the land in the President has violated this right to ownership. Furthermore, they claim the right to ownership due to continued occupation for several hundred years before the incidence of colonialism.
As a consequence, it seems to me that section 71 of the Constitution is the premise upon which all the other claimed rights must flow from. It is the provision that must inform the Court of the existence of the other alleged rights.
It is only logical that the inquiry into the dispute commence with an examination of section 71 of the Constitution and what rights it provides for and protects. That section provides, in relevant part, as follows:
“71 Property Rights
(1) (not relevant)
(2) Subject to section 72, every person has the right, in any part of Zimbabwe 'to acquire, hold, occupy, use, transfer, hypothecate, lease, or dispose of all forms of property, either individually or in association with others.'”…,.
Since the rights enshrined under section 71(2) of the Constitution are subject to section 72, before the Court can determine whether or not the appellants can claim a right under section 71(2), the Court inevitably must construe the provisions of section 72 of the Constitution.
In casu, the Constitution has made section 72 of the Constitution the dominant provision, and, the two sections must be construed together.
This is in tandem with the canons of interpretation that a court must construe all the relevant provisions of the Constitution to arrive at an interpretation that best serves the objects and interests of the Constitution.
Accordingly, the right to ownership of the land claimed by the appellants under section 71(2) of the Constitution must be construed in light of the provisions of section 72.
The section provides as follows:
“72 Rights to Agricultural Land
(1) In this section —
'agricultural land' means 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;”…,.
The appellants seek to assert rights under the Bill of Rights in respect of ancestral land located within the country's rural areas.
The appellants claim that they survive on the land for all aspects of their livelihood.
This is not in dispute; their land use is in keeping and in accord with the law. As such, it is land that serves many purposes for the community that occupies it. It is where their residences are located. It is also land upon which the community farms and is thus a source of livelihood.
They aver that some of the inhabitants do contract farming for Delta Beverages Corporation and some are cotton producers.
Finally, when regard is had to the meaning ascribed to “agricultural land usage” their land constitutes farmland in that it is land used for agriculture, including the keeping of animals, whether domestic or wild, poultry, and all other facets that go with agricultural land.
Section 72 of the Constitution provides that land located in a communal land or within the boundaries of an urban local authority or a township is expressly excluded from the definition of what constitutes agricultural land.
It seems to me, that, section 72 of the Constitution has not provided for the right to occupy or use agricultural land.
What it has done in subsection (1) is to delineate what constitutes agricultural land. Most importantly for this dispute, section 72 of the Constitution has stated explicitly that rights to agricultural land in communal areas are to be governed by the Communal Land Act.
The appellants have not, either before this Court or even the court a quo, made any attempt to establish the alleged violation of the right sought to be relied on under section 71 of the Constitution.
They have also not linked their alleged right of ownership to the provisions of section 72 of the Constitution.
All that they contend is that the impugned provisions of the Communal Land Act continue to serve a colonial construct denying local indigenous people proprietary rights to land, which they allege are enshrined under section 71 of the Constitution.
Given that the land in issue is communal land, it is governed by the Communal Land Act and the right they assert is specifically to be found in that Act.
I am persuaded that the Constitution itself has excluded, in specific terms, a right to own land under section 71 of the Constitution for communal land dwellers except for the specific rights of occupation and ownership spelt out in the Communal Land Act itself.
In turn, despite section 71 of the Constitution being subject to section 72, section 72 of the Constitution has not spelt out any provisions related to communal land rights. This means, that, to assert a right under section 71 as read with section 72 of the Constitution, regard must be had to the Communal Land Act itself.
Therefore, this Court must construe all provisions relating to the occupation, use, and deprivation of land provided in the Communal Land Act. In my view, sections 4, 6, 8, 9, 10, and 12 of the Communal Land Act are relevant and pertinent in establishing the rights of dwellers in communal land.
These sections, in my view, confirm or lay to rest the allegations by the appellants of the violations of their fundamental rights on the implementation or exercise of statutory power by the President and the second respondent (Minister of Local Government and Public Works) respectively.
I therefore proceed to consider the law relating to their right to occupy land in communal areas.
RIGHTS OF OCCUPATION UNDER THE COMMUNAL LAND ACT
I start the inquiry by examining section 8 of the Communal Land Act. That section reads as follows:
“8. Occupation and use of Communal Land for agricultural or residential purposes
(1) Subject to this Act and the Regional, Town, and Country Planning Act [Chapter 29:12] and any order issued in terms thereof, a person may occupy and use Communal Land for agricultural or residential purposes with the consent of the rural district council established for the area concerned.
(2) Subject to subsection (3) and the Regional, Town, and Country Planning Act [Chapter 29:12] and any order issued in terms thereof, when granting consent in terms of subsection (1), a rural district council shall —
(a) Where appropriate, have regard to customary law relating to the allocation, occupation, and use of land in the area concerned; and
(a1) Consult and co-operate with the chief appointed to preside over the community concerned in terms of the Traditional Leaders Act [Chapter 29:17]; and
(b) Grant consent only to persons who, according to the customary law of the community that has traditionally and continuously occupied and used land in the area concerned, are regarded as forming part of such community or who, according to such customary law, may be permitted to occupy and use such land:
Provided that, if no community has traditionally and continuously occupied and used land in the area concerned, the district council shall grant consent only to such class of persons as the Minister, by notice in writing to the district council, may specify.
(3)…,. n/a
(4)…,.n/a
(5)…,.n/a
(6) Where a rural district council is established for any area of Communal Land or any area of Communal Land is incorporated within the area of a rural district council, any person lawfully occupying or using land in such area for agricultural or residential purposes on the date of such establishment or incorporation, as the case may be, shall be deemed to have obtained the consent of such rural district council for the purposes of subsection (1).”…,.
Thus, section 8 of the Communal Land Act gives rights of occupation to community members that have occupied the land, traditionally and continuously, for extended periods.
My reading of the section leads me to conclude, that, a community member in occupation of such land only has to prove that he or she is a member of a community that has traditionally and continuously been in occupation of such land.
That established an entitlement to occupation.
All that is required is that the person is part of a community that has continuously and traditionally occupied the land.
However, a community must have services through schools, churches, hospitals, and other amenities.
The law provides the grant of permits for occupation by persons or parties who are not part of the traditional dwellers. The provision that permits such rights is found in section 9 of the Communal Land Act. It provides:
“9. Permits to occupy and use Communal Land
(1) A rural district council may, with the approval of the Minister, issue a permit authorizing any person or class of persons to occupy and use, subject to the Regional, Town, and Country Planning Act [Chapter 29:12] and any order issued in terms thereof, any portion of Communal Land within the area of such rural district council, where such occupation or use is for any of the following purposes —
(a) Administrative purposes of the State or a local or like authority;
(b) Religious or educational purposes in the interests of inhabitants of the area concerned;
(c) Hospitals, clinics, or other such establishments for the benefit of inhabitants of the area concerned;
(d) Hotels, shops, or other business premises;
(e) Any other purpose whatsoever which, in the opinion of the rural district council, is in the interests of inhabitants of the area concerned;”
Although the word “permit” has not been defined in the Communal Land Act, section 2 defines use as:
“use, in relation to Communal Land, includes the erection of any building or enclosure, ploughing, hoeing, the cutting of vegetation, the depasturing of animals or the taking of sand, stone or other materials therefrom.”
This definition accords with the purposes or definition of agricultural land in section 72 of the Constitution.
The appellants occupy land that they utilise both for agricultural and residential purposes. Their right to occupy, as a community, can only be in accordance with section 8 of the Communal Land Act.
A perusal of the section reveals that the law recognizes the right of a community to occupy communal land that such a community has occupied continuously. It does not define the amount or length of time for such occupation.
When regard is had to section 71(1) of the Constitution, it becomes clear that the provisions of section 8(1) of the Communal Land Act are not only consistent with, but give effect to the right to property being claimed by the appellants.
That right is not restricted to ownership. It is broader than ownership. It is the right to acquire, hold, occupy, use, transfer, hypothecate, lease, or dispose of all forms of property.
The suggestion by the appellants that the right in section 71 of the Constitution is strictly that of individual private ownership of land, wherever situate, is not borne out by the text of the constitutional provision being relied on.
The appellants do not challenge the right accorded under the governing Act.
They do not suggest that this right is not in accordance with that enshrined under section 71(2) of the Constitution or that they are not permitted to acquire, hold, use, transfer, hypothecate, lease, or dispose of land within the boundaries of communal land.
It is apparent from the above, that, the occupation of communal land is entirely consistent with the occupation of agricultural land under section 72 of the Constitution.
An occupier requires permission or consent from an authority duly empowered by an Act of Parliament.
Thus, there is no discernible difference between an occupier of communal land and an occupier of agricultural land. This is because both classifications of land are vested in the State.
The further contention by the appellants, that the right in section 71 of the Constitution relates to individual ownership of property, is incorrect.
Individuals or persons can exercise the right in association with others.
In terms of section 8(2)(b) of the Communal Land Act, the right of a community that has traditionally and continuously occupied land located in communal lands is guaranteed by the denial of permits of occupation to persons who have not continuously and traditionally been in occupation thereof.
In addition, it is clear that section 8(2)(a) and (b) of the Communal Land Act accord preference to the customs of the community that has been in occupation.
The special provision ensures that a rural district council, in granting consent to dwellers, must have regard to customary law.
Therefore, the customs of a community take precedence when the local authority is making decisions affecting the community itself. In addition, where a community has been in continuous occupation of communal land, a district council shall deem that such community has the appropriate consent to occupy the same.
It, therefore, stands to reason that the same meaning should be ascribed to the word permit in section 8 of the Communal Land Act.
Consequently, contrary to the position adopted by the appellants, the rights they claim are fully protected under sections 8 and 9 of the Communal Land Act. The Act is not inconsistent with the Constitution, as suggested by the appellants. A careful reading of section 8(2)(b) of the Communal Land Act, taken as a whole, establishes that the law has been crafted to protect the community's rights to occupy communal land.
It is the case for the appellants that the beneficiaries of the Land Reform Programme have better conditions and rights in relation to the agricultural land allocated to them under the aegis of section 72 of the Constitution.
The right to occupation of agricultural land is not found in section 72 of the Constitution. It is provided for in the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].
It provides as follows in relevant part:
“3. Occupation of Gazetted land without lawful authority
(1) Subject to this section, no person may hold, use or occupy Gazetted land without lawful authority.”
This provision must be read together with sub-sections (4) and (6) of section 72 of the Constitution in so far as these subsections set out the status of agricultural land within the country. Subsections (4) and (6) provide as follows:
“(4) All agricultural land which —
(a) Was itemised in Schedule 7 to the former Constitution; or
(b) Before the effective date, was identified in terms of section 16B(2)(a)(ii) or (iii) of the former Constitution;
continues to be vested in the State, and no compensation is payable in respect of its acquisition except for improvements effected on it before its acquisition.
(5)…,. (not relevant)
(6) An Act of Parliament may make it an offence for any person, without lawful authority, to possess or occupy agricultural land referred to in this section or other State land.”
The above provisions dispel the contention by the appellants, that, beneficiaries under the Land Reform Programme have rights of private and individual ownership over the land they have been allocated.
All acquired agricultural land is vested in the State.
Beneficiaries can only occupy land in terms of a document granting such beneficiaries lawful authority for such occupation.
What constitutes lawful authority has been decided by this Court in several authorities. The meaning to be ascribed to lawful authority was set out in the seminal judgment by this Court in Taylor-Freeme v The Senior Magistrate Chinhoyi & Anor CC10-14, wherein CHIDYAUSIKU CJ remarked as follows:
“I finally turn to deal with the issue of what constitutes 'lawful authority' and whether the applicant had 'lawful authority' to occupy the farm.
The clear and unambiguous meaning of section 2(1) of the Act is that 'lawful authority' means an offer letter, a permit and a land settlement lease. Nothing more, nothing less. A letter from the late Vice President, the Presidium, or any other member of the Executive does not constitute 'lawful authority' in terms of the Act.
In the case of Commercial Farmers Union and Ors v The Minister of Lands and Rural Resettlement and Ors (supra), this Court had this to say at p19 of the cyclostyled judgment:
'The Legislature, in enacting the above provision clearly intended to confer on the acquiring authority the power to issue to individuals offer letters which would entitle the individuals to occupy and use the land described in those offer letters.
The draftsman could have used better language to convey the legislative intent, but, there can be no doubt that section 2 of the Act confers on the acquiring authority the power to allocate land using the medium of an offer letter.
This provision is not in any way inconsistent with sections 16A and 16B of the Constitution.
If anything, it fits in well with the overall scheme envisaged in sections 16A and 16B of the Constitution, which is that the acquiring authority acquires land and re-allocates the land so acquired. The acquisition of land and its redistribution lies at the heart of the land reform programme. I have no doubt that the Minister, as the acquiring authority, can redistribute land he has acquired in terms of section 16B of the Constitution by means of the following documents -
(a) An offer letter;
(b) A permit; and
(c) A land settlement lease.
The Minister is entitled to issue a land settlement lease in terms of section 8 of the Land Settlement Act [Cap 20:01]. However, if the Minister allocates land by way of a land settlement lease, in terms of section 8 of the Land Settlement Act, he is enjoined to comply with the other provisions of that Act, such as section 9, which requires him to consult the Land Settlement Board, which obviously has to be in existence.
I do not accept the contention by the applicants that the Minister can only allocate acquired land by way of a land settlement lease which he presently cannot do because there is no Land Settlement Board in existence.
The Minister has an unfettered choice as to which method he uses in the allocation of land to individuals. He can allocate the land by way of an offer letter or by way of a permit or by way of a land settlement lease.
It is entirely up to the Minister to choose which method to use.
I am not persuaded by the argument, that, because the offer letter is not specifically provided for in the Constitution it cannot be used as a means of allocating land to individuals.
I am satisfied that the Minister can issue an offer letter as a means of allocating acquired land to an individual.
Having concluded that the Minister has the legal power or authority to issue an offer letter, a permit, or a land settlement lease, it follows that the holders of those documents have the legal authority to occupy and use the land allocated to them by the Minister in terms of the offer letter, permit, or land settlement lease.'
'Lawful authority' means an offer letter, a permit, and a land settlement lease.
The documents attached to the Defence Outline are not offer letters, permits, or land settlement leases issued by the acquiring authority. They do not constitute 'lawful authority' providing a defence to the charge the applicant is facing.”
It is trite that in any jurisdiction with a justiciable Bill of Rights, the Constitution is the supreme law in that jurisdiction.
However, over and above that, a Constitution encompasses the citizens values, aspirations, and expectations. It embodies the sense of entitlement to the realization of citizens rights. As such, it constitutes a compass for the judiciary in adjudicating disputes where rights are enforced before the courts.
Therefore, it stands to reason that in construing the Constitution, the Court must uphold the community values that the Constitution and the judiciary individually and jointly serve. The Constitution must therefore be construed with due regard to its content and the context under which it came into being.
Both section 72 of the Constitution and the Communal Land Act have delineated land use, in the case of former agricultural land and communal land respectively. Both classifications are specific to land located within the rural areas and where the communities utilise the land 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;.”
This definition of what constitutes “agriculture” accords with that found in the Constitution in relation to agricultural land. On the other hand, the Communal Land Act, in section 8(1), provides that a rural district council may grant consent to any person to occupy and use Communal Land for agricultural or residential purposes.
It seems to me that the appellants, in contending that their right to occupy land in the communal areas is lesser than that of beneficiaries under the Land Reform Programme, have completely misconstrued the constitutional provisions that apply to the two regimes.
The primary purpose of land use in communal land is agricultural as well as residential. Agricultural land has been codified, and its occupation and use are determined by the definition accorded to it under the governing legislation.
On a proper construction, the law on the occupation of State land, which includes communal land and agricultural land under section 72 of the Constitution, makes it clear that occupation of land utilised for agricultural purposes must be in terms of lawful authority under section 72 of the Constitution or the consent of a rural council under sections 8 and 9 of the Communal Land Act.
Thus, occupation is at the pleasure of the State.
It is apparent from the above that the occupation of communal land is entirely consistent with the occupation of agricultural land under section 72 of the Constitution. An occupier in both instances requires permission or consent from an authority duly empowered by an Act of Parliament.
As the law currently provides, occupiers of agricultural land under the Land Reform Programme and those occupying pieces of land situate in a communal area both occupy State land. They are given authority or permission to occupy by statute.
None of the occupants own the land in their own right.
Therefore, there is no apparent difference between occupiers of land found in communal lands and those in occupation of agricultural land as defined in section 72 of the Constitution. Thus, there is no discernible difference between an occupier of communal land and an occupier of agricultural land. This is because, as earlier explained, both classifications of land are ultimately vested in the State.
In addition, authority to occupy communal land by persons who are not part of the community is not easily granted, or, is only granted under special circumstances. It becomes evident that the provisions of the Communal Land Act are not inconsistent with the Constitution.
There has been no breach of section 71 of the Constitution established on the papers....,.
