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.
APPLICATION OF INTERNATIONAL LAW
The appellants have, in their quest, made reference to international law and pronouncements from foreign jurisdictions regarding the right to property, especially regarding land associated with indigenous communities.
A Constitution is comprised of laws that protect human rights. The law on human rights is universal in substance as well as application.
In keeping with the generally accepted principle in Constitutional Law, the Constitution provides that a court or tribunal seized with a matter where the Bill of Rights is an issue for determination, that court or tribunal must consider international law. Accordingly, it may also have regard to foreign law.
Section 46 of the Constitution is relevant in this regard and provides as follows:
APPLICATION AND INTERPRETATION OF CHAPTER 4
“46 Interpretation of Chapter 4
(1) When interpreting this Chapter, a court, tribunal, forum, or body —
(a) Must give full effect to the rights and freedoms enshrined in this Chapter;
(b) Must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality, and freedom, and in particular, the values and principles set out in section 3;
(c) Must take into account international law and all treaties and conventions to which Zimbabwe is a party;
(d) Must pay due regard to all the provisions of this Constitution, in particular, the principles and objectives set out in Chapter 2; and
(e) May consider relevant foreign law;
in addition to considering all other relevant factors that are to be taken into account in the interpretation of a Constitution.
(2) When interpreting an enactment, and when developing the common law and customary law, every court, tribunal, forum or body must promote and be guided by the spirit and objectives of this Chapter.”
In considering the appellants rights under the Communal Land Act, the Court has paid due regard to the principles set out in the foreign judgments that the appellants referred to, and, more specifically, to the following decisions which have spelt out such rights are pertinent; viz-the case of the Sawhoyamaxa Indigenous Community v Paraguay; the case of the Xakmok Kasek v Paraguay; the Indigenous Community of Yakye Axa v Paraguay; the Endorois Community v Kenya, Comm'n No.276/2003, African Commission on Human & Peoples Rights (2006); and Malawi African Association v Mauritania Comm Nos. 54/91, 61/91, 164/97.
It is these cases that counsel for the appellants suggested should be followed by this court.
Having considered the authorities in question, the Court finds that they do not advance the case for the appellants as contended.
The Court notes that the petitioners or claimants in the cases referred to were indigenous peoples in the different jurisdictions where the disputes emanated from. The facts from the cases establish, that, the respective governments had, variously, restricted the petitioners access to land, basic essential services, means of livelihood, property rights to ancestral land, and, in one case, had caused the relocation of a community subsequent to the conversion of their land to a game reserve.
The common relief sought was the resumption of rights to the land or the affording of essential services by governments while awaiting the determination of disputes.
The common thread running through the authorities is that the governments in question had either removed the communities from their ancestral lands or deprived them of their use and enjoyment.
In casu, there is a discernible difference.
The converse is the case in the present dispute.
In terms of section 8 of the Communal Land Act, the community's right to occupy is guaranteed. The provisions of the Communal Land Act are on all fours with the law applied in the authorities relied upon. The suggestion that the cases recommended individual ownership of ancestral lands, as sought by the appellants in casu, is not borne out by the facts in the judgments or the conclusions by the respective tribunals.
The appellants, just like the petitioners in the foreign decisions referred to above, occupy communal land.
These areas are reserved for communities that have been in occupation since time immemorial. Occupation is not based on individual rights but on collective rights. Their rights of occupation were established when their ancestors moved onto the lands in question and set up the communities.
This is why section 8 of the Communal Land Act recognizes the right of people who have traditionally and continuously occupied land in communal areas. Such rights are distinct and utterly disparate from the rights of holders of property in urban areas.
While rights of occupation and use under the Communal Land Act are community-based, the rights to own and occupy urban areas are primarily based on individual rights.
The latter comprises a whole spectrum of categories, which are provided for in section 71(2) of the Constitution and those rights are not the premise upon which the appellants approach the Court for relief and it is not germane to discuss them for the purpose of this dispute.
Their cause of action is primarily based on the community's right to occupy or own land.
The rider is that the mode of occupation under the Communal Land Act permits the appellants to live in harmony with nature and use the land according to their culture and heritage. They can also embark on all kinds of business and agricultural enterprises. Those living in places like Borrowdale are restricted to residential use. The stands are restricted and land use is strictly regulated.
There are massive differences between the two.
By living in communal areas, the appellants have elected to be bound by the strictures of occupation and use as set out in the Communal Land Act.
WHETHER THE APPELLANTS RESPECTIVE RIGHTS HAVE BEEN VIOLATED
Turning to the grounds of appeal, the case for the appellants is that section 4 of the Communal Land Act is a colonial construct that reinforces the notion that people of African descent, or indigenous people, cannot own land in their own right. As such, the provision has no room in post-independent Zimbabwe because white people can own land, while Africans are denied this right through the impugned provision. Thus, it offends the dignity of the people and their humanity.
Furthermore, the appellants allege that the provision confirms the stereotype that Africans are a lower form of human being than other races.
In addition, it is suggested that section 4 of the Communal Land Act offends against section 71 of the Constitution.
It is contended that the provision denies the appellants their right to own property. By the same token, it offends against their dignity as a people. Without their land, they lose their essence as a people. It also militates against their right to culture under section 63 of the Constitution. The intended reservation of part of their land may result in their displacement to various parts of the country. They will, as a result, be unable to exercise their cultural beliefs as the Hlengwe-Shangaan people.
As regards section 6 of the Communal Land Act, the contention is that its net effect is to expropriate communal land from its owners without compensation.
Both statutory provisions are said to infringe the rights to life, dignity, equal protection of and benefit of the law, the right to property, the right to culture and language, and the right to be heard. Cumulatively, the provisions are said to be in breach of sections 48, 51, 56(1), 63, 71, and 68 of the Constitution of Zimbabwe.
However, the appellants only motivate the violation of four fundamental rights: sections 71 on property rights, section 51 on the right to human dignity, section 48 on the right to life, and 56 on equality and non-discrimination, despite the citation of those they have not addressed in detail, the other alleged infringements.
As a consequence, the Court will only consider the matter relative to the arguments presented before it.
The occupation of the land issue by the community is not in dispute. What is in dispute, and is of paramount importance, is whether or not that occupation has been interfered with by the measures undertaken by the Government to set aside part of the land for developmental purposes.
Implicit in their contention is that the control of communal land should not be the preserve of the Government, specifically the President, but that ownership thereof should vest in the community.
On that basis, they claim that the community has a right to property under the Constitution, which is enforceable under section 71 as read with section 72 of the Constitution. It is this right upon which the appellants hinge all the other rights in respect of which they seek enforcement by the Court.
The approach to the Court has been predicated on a right that the appellants contend allows them “in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of property” and that this is provided for in section 71 of the Constitution.
The appellants contend, that, the concept of dignity is enshrined in the Constitution through section 51, which stipulates that every person has inherent dignity in his or her private and public life and that he or she has the right to have that dignity respected and protected.
They argue, that, the removal of their community from their ancestral land, without compensation, impairs their constitutional right to dignity and harms their self-worth, renders them homeless, landless, and destitute, and jeopardizes their ability to meet the bare necessities of life, including food, nutrition, clothing, shelter, and water.
The allegations surrounding the alleged violation of the right to life, under section 48 of the Constitution, are tied to the issue of human dignity by the appellants.
They submitted, that, the right to dignity is recognized as the founding source of all other fundamental rights. This is substantiated by section 46 of the Constitution.
In the case of The State v Willard Chokuramba CC10-19, this court considered the content of the right to human dignity. MALABA DCJ..., posited the following:
“Section 46 of the Constitution is the interpretative provision. It makes it mandatory for a court to place reliance on human dignity as a foundational value when interpreting any of the provisions of the Constitution which protect fundamental human rights and freedoms.
This is because human dignity is the source for human rights in general. It is human dignity that makes a person worthy of rights.
Human dignity is therefore both the supreme value and a source for the whole complex of human rights enshrined in Chapter 4 of the Constitution.
This interdependence between human dignity and human rights is commented upon in the preambles to the International Covenant on Economic, Social and Cultural Rights (1966) and the International Covenant on Civil and Political Rights (1966). The preambles state, in express terms, that, human rights 'derive from the inherent dignity of the human person'. They all refer to '…, the inherent dignity…, of all members of the human family as the foundation of freedom, justice, and peace in the world'.
The rights and duties enshrined in Chapter 4 of the Constitution are meant to articulate and specify the belief in human dignity and what it requires of the law.”
It seems to me that the provisions of section 8 of the Communal Land Act above ensure that the communities occupying communal lands are afforded the right to practice their culture and to utilise the land to best advantage.
The law does not curtail, in any manner, such usage.
Therefore, the claim that somehow the actions of the Government have compromised their dignity and right to benefit from the land for socio-economic reasons is not sustainable. The right accorded to them, under section 8 of the Communal Land Act, 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.
Despite extensive research, I have not been able to find any authority in which dignity has been defined as a concept. The general view is that it is impossible to ascribe any meaning to human dignitas and that it can only be measured in terms of an alleged infringement of a specific right or injury.
The communities in the communal areas are at large in how they live and use the land. All the benefits that the appellants aver they obtain from the land are covered when the use that they can put to the land is adverted to. There is no limitation on the manner of living or economic enterprise for which such land can be utilized.
Their dignity is fully recognized.
Consequently, I do not see any inconsistencies with section 51 of the Constitution.
I am fortified in this view by the comments by the learned authors I CURRIE and J De WAAL, The Bill of Rights Handbook, 6ed (2013), in which, citing an extract from CHASKALSON, they posit the following on the import of the right to dignity:
“As an abstract value, common to the core values of our Constitution, dignity informs the content of all the concrete rights and plays a role in the balancing process necessary to bring different rights and values into harmony. It, too, however, must find its place in the constitutional order.
Nowhere is this more apparent than in the application of the social and economic rights entrenched in the Constitution.
These rights are rooted in respect for human dignity, for how can there be dignity in a life lived without access to housing, health care, food, water or in the case of persons unable to support themselves, without appropriate assistance?
But, social and economic policies are pre-eminently policy matters that are the concern of Government. In formulating such policies, the Government has to consider not only the rights of individuals to live with dignity, but also the general interests of the community concerning the application of resources. Individualised justice may have to give way here to the general interests of the community.”
In casu, the appellants allegation of the infringement of the right to life is said to arise from the alleged limitation of the socio-economic rights of the Hlengwe Shaangani community.
The appellants cite section 77 of the Constitution to support their claim to the right to food and water.
However, the justiciability of section 77 of the Constitution is qualified by the provision that the State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realization of this right.
As such, the Court is unable to fault the reasoning by the court a quo, that, the bundle of positive rights flowing from the right to dignity was a matter of policy.
It appears, however, that, the main bone of contention of the appellants is not concerned with occupation. Instead, their grievance is that the law, as it relates to rights under communal land, does not permit the inhabitants to own the land in their personal right.
The appellants contend, that, there is no reason why community dwellers in their particular situation should not be granted rights to own pieces of land, as is the case in people who reside in urban areas.
Thus, it is contended that the law is discriminatory against them and violates section 56(1) of the Constitution.
Section 56 of the Constitution provides:
“56 Equality and Non-Discrimination
(1) All persons are equal before the law and have the right to equal protection and benefit of the law.
(2) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural, and social spheres.
(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, 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, or whether they were born in or out of wedlock.”
The appellants have not specified the subsection they rely on, but, from a general consideration of their argument, it is clear that they are invoking section 56(1) of the Constitution as the premise upon which their claim for relief is based.
The ambit of section 56(1) was in this jurisdiction, in Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16. ZIYAMBI JCC stated:
“It envisages a law which provides equal protection and benefit for the persons affected by it. It includes the right not to be subjected to treatment to which others in a similar position are not subjected.
In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law he has been the recipient of unequal treatment or protection, that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.”
The meaning to be ascribed to section 56(1) of the Constitution was re-affirmed in the case of Mupungu v Minister of Justice, Legal, and Parliamentary Affairs & Ors CC07-21. Commenting on the nature of the right enshrined in section 56(1), PATEL JCC posited the following:
“As regards section 56(1), the court a quo opined that this section is wider in its scope than the equivalent section 18 in the former Constitution. This, so it reasoned, is because it qualifies the protection and benefit of the law by the use of the word 'equal'.
Again, with the greatest of respect, this reasoning is fatally flawed.
The use of the word 'equal' does indeed qualify the protection and benefit of the law, but it does so by restricting rather than broadening the scope of section 56(1).
What this provision means is that all persons in a similar position must be afforded equality before the law and the same protection and benefit of the law...,. In essence, section 56(1) is a non-discrimination clause that guarantees equality under the law.
The applicant a quo (the third respondent in casu) did not make any allegation of unequal treatment or differentiation. He did not demonstrate that he was denied the protection of the law, while others similarly positioned were afforded such protection. He failed to show that the enactment or amendment of section 186 of the Constitution operated to discriminate against him in favour of others in the same or similar position. He thereby failed to establish that he had been denied equal protection and benefit of the law. In the event, he entirely failed to establish any infringement of the rights guaranteed by section 56(1).”
In casu, the appellants compare their position to that of the indigenous population who are afforded ownership rights in areas such as Borrowdale.
They had perforce to demonstrate that the law treats dwellers in communal areas differently from those in urban areas.
However, in my view, the critical distinction is that urban areas do not constitute agricultural land.
As such, the allegation of unequal treatment of persons in a similar position cannot be sustained inasmuch as a comparison of ownership in Borrowdale or urban areas is concerned.
That the rights to occupy the land they claim are guaranteed under the Communal Land Act is apparent from the language in section 8 of the Communal Land Act.
What needs clarity is whether or not our law has no provision for individual ownership of communal land.
It is suggested, that, the vestiture of the land in the President militates against several rights.
I now consider how the President is empowered to deal with the land the law has vested in him.
I turn to consider section 6 of the Communal Land Act, one of the sections the appellants identified as repugnant. It reads as follows:
“6. Additions to and subtractions from Communal Land
(1) Subject to this Act, the Forest Act [Chapter 19:05] and the Parks and Wild Life Act [Chapter 20:14], the President may, by statutory instrument —
(a) Declare that any State Land shall form part of Communal Land;
(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.
(2) Whenever the President has published a declaration in terms of subsection (1), the Minister shall, by statutory instrument, amend the instrument published in terms of subsection (1) or (3) of section five, as the case may be, to reflect such declaration.
(3) Whenever any land ceases to form part of Communal Land in terms of a declaration published in terms of subsection (1), such land shall thereupon become State land until it is granted, sold or otherwise disposed of in terms of this Act or any other law.”…,.
Tenure and security, especially for communities residing on communal land governed by customary law principles, has been a contentious issue during and after the colonial era.
Customary land tenure is regarded as the most insecure land tenure system currently applicable, given the advancement and recognition of private land tenure as the best and superior mode of land tenure.
A perusal of section 6(3) of the Communal Land Act puts paid to the contention by the appellants, that, as a community occupying communal land, the law discriminates against them by not giving them the right to ownership of land as individuals.
The provision empowers the President to excise land from within the boundaries of a communal area. Once a declaration to that effect has been made, the land becomes State land which may then be granted, sold, or disposed of in any other manner under the Communal Land Act or any other law within the country.
This provision gives the President the authority to pave the way for the ownership of such land in any of the methods described above.
The law enables any person who so wishes to acquire, as owner, land that is no longer part of communal land.
It is not unconstitutional, as contended by the appellants. It serves a purpose for the majority of rural dwellers within the length and breadth of the country.
In this endeavour, it is difficult to discern how section 6 of the Communal Land Act, which permits individual ownership of previously communal land, can be found unconstitutional as alleged.
In contending that the law governing communal land was inimical to rights of individual ownership, the appellants ought to have invited the Court to construe this provision against the law that they contend permits private ownership to pieces of land in urban areas.
They have not established that their rights, as dwellers of communal land, are discriminatory against them as opposed to those of urban dwellers.
This would have necessitated a comparison of the relevant laws and an analysis showing discrimination within the law against communal land dwellers as opposed to urban dwellers.
The appellants do not even advert to the law governing ownership in areas other than communal land.
In this regard, the Court finds that the appellants have not established the allegation that section 6 of the Communal Land Act violates section 56(1) of the Constitution.
THE LAND TENURE REGIME
It is appropriate at this juncture to examine the contention, that, section 4 of the Communal Land Act bestows rights of ownership over that land on the President.
The Regional Town and Country Planning Act [Chapter 29:12] defines what ownership, as it pertains to property, means. An owner means:
“(a) In the case of land which is vested in the President —
(i) If it is not Communal Land, the Minister responsible for the administration of the land concerned; or
(ii) If it is Communal Land, the Minister responsible for the administration of the Communal Land Act [Chapter 20:04];
(b) In the case of land which is not vested in the President —
(i) The person who is registered in the Deeds Registry as the owner of the property; or
(ii) A local authority or a statutory body to which the ownership of the property has been transferred or vested by any enactment; or
(iii) The person lawfully holding the property in accordance with any enactment or agreement with the State or a local authority or a statutory body which entitles that person to obtain title thereof on the fulfilment by him of the conditions fixed by or in terms of such enactment or agreement; and includes —
A. The legal representative of a person referred to in subparagraph (i) or (iii) of paragraph (b) who has died, has become insolvent, is a minor, is of unsound mind or is otherwise under disability; or
B. The liquidator of a company which is a person referred to in subparagraph (i) or (iii) of paragraph (b).”
Land is a national resource and its use and occupation must be regulated. It is, therefore, only logical that a central authority be vested with the power and the obligation to ensure that use and domain are held for the good and benefit of the country's inhabitants.
Ownership and control are, as a result, therefore, vested in a responsible party or authority in a nominal capacity. As is evident from the above, the President merely holds the land in communal areas as a trustee.
In casu, the law has vested ownership of communal land in the Minister responsible for administering the Communal Land Act, currently, the Minister of Local Government and Public Works who is cited herein as the second respondent in this suit.
It seems to me that the contention that section 4 of the Communal Land Act is unconstitutional, given the governing law on vestiture, is ill-conceived.
The preamble to the Communal Land Act reads:
“AN ACT to provide for the classification of land in Zimbabwe as Communal Land and for the alteration of such classification; to alter and regulate the occupation and use of Communal Land; and to provide for matters incidental to or connected with the foregoing.”
In turn, section 4 of the Communal Land Act, which is the provision at the centre of this litigation, 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.”
In defining agricultural land, section 72 of the Constitution makes a positive pronouncement that excludes communal land and land within the boundaries of an urban local authority or a township.
Therefore, I consider the relevant provisions of the Urban Councils Act [Chapter 29:15].
Perusal of section 4 of the Urban Councils Act reveals that land, unless excised to a council, is vested in the President.
Accordingly, the pertinent provisions of section 4 are set out hereunder and read as follows:
“4. Provisions relating to establishment, alteration or abolition of municipalities, towns, councils and council areas
(1) Whenever the President considers it desirable, he may, subject to this Act, by proclamation in the Gazette, after any local authority concerned has been consulted, establish a municipality or town and —
(a) Shall establish a municipal council or a town council, as the case may be, therefor; and
(b) Shall fix the area of the municipality or town; and
(c) Shall assign a name to the municipality or town; and
(d) May, after consultation with the Commission, divide the council area into any number of wards.
(2) At any time after the establishment of a council, the President may, subject to this Act, by proclamation in the Gazette, and after consultation with the council and (in relation to the division or redivision of the council area into wards) the Commission —
(a) Alter the name of the municipality or town;
(b) Divide or redivide the council area into any number of wards, create one or more additional wards, alter or abolish one or more wards or abolish the division of the council area into wards;
(c) Alter the boundaries of the council area by adding thereto and additionally, or alternatively, subtracting therefrom any area, determine any question arising therefrom and redefine the council area:
(d) Abolish the municipality, town or council.
(3) Where a municipality or town is abolished or the whole or any part of the area of a local authority is included in a council area or a separate council is established for that area, the President shall —
(a) Make such transfer, disposal or apportionment of property, assets, rights and liabilities; and
(b) n/a
(4) n/a
(5) n/a
(6) Where the President has —
(a) In terms of subsection (3) transferred or apportioned any property or assets to a municipality or town, the ownership of such property or assets shall vest in that council with effect from such date as may be specified by the President, and, in the case of immovable property, a Registrar of Deeds shall, at the request of that council, cause, free of charge, the name of that municipality or town to be substituted as the owner of the property concerned in the appropriate register in the Deeds Registry and on the deeds relating to that property;
(b) Given any direction in terms of subsection (3), the person to whom that direction has been given shall forthwith comply with that direction.”
Under the sections referred to above, the President is empowered to transfer land and alter boundaries within municipal areas. Once he has done so, the property transferred vests in the local authority concerned. Where it involves immovable property, the municipality then owns the land, with ownership thereof being registered in the Deeds Registry.
This is in accord with the description of owner that is found in the Regional, Town, Country, and Planning Act.
If regard is had to the provisions of section 4 of the Communal Land Act and the definition of “owner” that appears in the Regional, Town, and Country Planning Act, it stands to reason that the claim by the appellants, that they are owners in their own right of the land they occupy, is not justified under the law.
It goes without saying, that, all land that is not privately owned is State land and is vested in the President. It becomes evident that all State land is controlled by and the manner of dealing with it is the preserve of the Executive.
The appellants have not shown that their land is not part of State land.
Their claim to its ownership is, therefore, devoid of merit. It is not consistent with the general law, nor is it consistent with the Constitution, and, in particular, sections 71 and 72. The Constitution has made all land acquired under the Land Reform Programme State land. This is evident from a perusal of section 72(4) of the Constitution, which I have referred to above.
The appellants suggest that the provisions of the Communal Land Act are disparate and distinct from those of urban land in that whereas communities in communal areas are not permitted by law to private individual ownership over land. In contrast, there is provision for private ownership of land in urban areas such as Borrowdale.
The same right is not accorded to communal land occupiers.
While a fair bit of criticism has been levelled at the legislation, little or no effort has been made to discuss the alleged infringement.
An examination of the law pertaining to urban land becomes inevitable. The powers exercised by the President under the Communal Land Act are also found in the Regional, Town, Country, and Planning Act. That Act provides:
“45 Powers of acquisition
(1) Subject to this Act, land within the area of a local planning authority may be acquired —
(a) For the implementation of any proposal, including development, redevelopment or improvement, contained in an operative master plan or local plan or an approved scheme; or
(b) In terms of section forty-seven or forty-eight.
(2) An acquisition of land in terms of this Act may be by way of —
(a) Purchase, exchange, donation or other agreement with the owner of the land; or
(b) Expropriation in accordance with section forty-six; or
(c) The imposition in a permit of a condition referred to in section forty-one.
(3) n/a
(4) n/a
(5) Any land acquired in terms of this Part by a local planning authority which —
(a) Is a local authority, shall vest in such local authority;
(b) Is not a local authority, shall vest in the President.
(6) n/a”
Counsel for the appellants conceded during an exchange with the Court, that, the law permitted rights of ownership of land located in communal lands, even though, he said, this was a rare occurrence.
The provision in section 6(3) of the Communal Land Act permitting the grant of State land, therefore, allows the transfer of such land to any person depending on the reason for transfer. Consequently, it seems that when regard is had to the provisions of section 6(3) of the Communal Land Act, the President may declare any part of communal land as State land and that thereafter such land remains State land until granted or disposed of in terms of any law.
The designation of land as communal land is not adverse to ownership of such land once the designation is altered. The law permits the alteration and changes in boundaries of land classified as communal land.
The designation is not cast in stone.
The law governing security of tenure, whether it is urban or rural land, is consistent. The contention that section 56 of the Constitution has been violated under the law on tenure relating to rural communities has not been justified in this dispute.
Consequently, the premise upon which the appellants approached the court a quo is without legal or factual basis.
The contention by the appellants, that, the vestiture of communal land in the President, as provided for in section 4 of the Communal Land Act, is unconstitutional is therefore not justified in law.
Where land is vested in the President, it is vested in him as a trustee. Accordingly, it is transferred, excised, or disposed of, as the case may be, in accordance with the legislative provisions pertaining to the particular land designation that the law provides.
In sum, therefore, in terms of section 72(4) of the Constitution, all agricultural land acquired under the Land Reform Programme remains State land.
In terms of section 43 of the Regional, Town and Country Planning Act, any land acquired under that section by a planning authority, that is not a local authority, shall vest in the President. In turn, section 4 of the Communal Land Act vests such land in the President.
Despite the provisions that vest land in the President or local authority under the Regional Town and Country Planning Act, the owner of the land in question, for purposes of the law, is the Minister assigned with the administration of the land in terms of an Act of Parliament. In all other cases, the owner is either the person holding title deeds or the local authority. Many other specified species of ownership are not pertinent for discussion.
The inescapable conclusion is that section 4 of the Communal Land Act is not unconstitutional.
It is consistent with other statutory provisions relating to land tenure and dovetails with section 72(4) of the Constitution. When read with section 71(2) of the Constitution, I find the Communal Land Act is replete with guarantees of occupation and use for the communities ad infinitum.
The rights of the communities are unfettered.
The appellants have sought to impugn sections 4 and 6 of that Communal Land Act on the premise that they are a relic from the past.
The law on land tenure does not reflect the racial connotation they allege.
As the alleged infractions by the respondents were based upon a non-existent right to land under section 71 of the Constitution, it follows that all the other alleged rights cannot be vindicated.
In the case of Mutasa and Anor v The Speaker of the National Assembly and Ors CC18-19, it was held…, that:
“It would be absurd to come to a conclusion that an act done in terms of the provisions of the Constitution can violate someone's rights under the same Constitution. In other words, the applicants could not have been successful in challenging an act that was sanctioned by the supreme law of the land.
The Constitution is one document that contains provisions that are consistent with each other. One provision of the Constitution cannot be used to defeat another provision in the Constitution. Different provisions of the Constitution must be interpreted with a view to ensuring that they operate harmoniously to achieve the objectives of the Constitution.”
A Constitution is an ultimate law in any jurisdiction. It can be amended where its amendment is provided for. However, it binds all that is subject to it. It cannot be challenged or impugned, and it cannot be criticized. It represents the will of its subjects.
In this case, the Constitution has found it appropriate to set out the rights to occupy and own land in communal land within the parameters and the four corners of the statute governing occupation of that land. The same conditions of occupation of that land are replicated in the provisions of section 72 of the Constitution. The Court cannot, in the circumstances, hold that the provisions of the Communal Land Act are inconsistent with the Constitution. The Constitution itself has given the Communal Land Act validity.
DISPOSITION
The appellants have always occupied communal land. Unless the classification of such land is altered, they cannot be heard to allege that the law is unconstitutional. After all, they are not the only community inhabiting communal land. Given the provisions of sections 71 and 72 of the Constitution, wherein the property rights relating to communal land are subject to the Communal Land Act, the rights of the appellants to rural land are to be found in the Communal Land Act.
As all the alleged violations stemmed from a perceived right under section 71 of the Constitution, it stands to reason that the whole case has no merit and must be dismissed.
Accordingly, it is ordered as follows:
The appeal is dismissed with no order as to costs.
