Zimbabwe: A Review : The Land Commission Act

Last Updated: 3 October 2019
Article by Fungai Chimwamurombe

INTRODUCTION

The Land Commission Act was enacted for the establishment of the Land Commission and the functions of the Commission. This paper is going to focus on the purpose and functions of the Act, the powers that are given to the Minister by the Act, and the law relating to sharecropping, security of tenure and also the law relating to the disputes relating to the property of the deceased, the protection of certain rights as well as addressing the land baron issues.

The purpose of the Land Commission as laid out in the Act includes to provide for the acquisition and the disposal of State Land as well as to provide for the settlement of persons on land and the alienation of agricultural land. It was also enacted to provide for the control of the subdivision and lease of land for farming and other purposes. The Zimbabwe Land Commission is empowered by the Act to perform the following functions; to ensure accountability, fairness and transparency in the administration of agricultural land that is vested in the State, to conduct periodical audits of agricultural land, to make recommendations to the Government regarding the acquisition of private land for public purposes, and for equitable access to and holding and occupation of agricultural land.

The Act has vests some powers in the Minister responsible for land issues, who is the Minister of Lands, Agriculture and Rural Resettlement. The powers that have been vested in the Minister by the Land Commission Act ensures that the Minister does not exercise bias or injustice in carrying out his mandate when it comes to State Land. For the Minister to exercise his powers, the Act provides stipulates that He has to consultant the Commission. For example the responsible Minister is empowered to sell, lease or otherwise dispose of state land but he can only do so after consultation with the Commission. This is because the Zimbabwe Land Commission is not assumed to be a political body but rather an independent body therefore can only give rational and impartial decisions.

SECURITY OF TENURE

The most important thing in land issues is creating an enabling environment that stimulates confidence and security, therefore, the need to make land tenure policy our primary objective. While the context of land reform has been characterised by political conflict and social and economic contestation, the tenure reforms should aim for decisiveness in guaranteeing the rights of newly settled farmers and ensure that the rights are legally protected against social and political whims. The Act however does not completely guarantee the security of tenure. It partially provides for security of tenure under 99 year leases which can be said to be an equivalent to ownership because they last for a life time and also deeds of grants that give total ownership. Permits, offer letters and other leases do not give ownership, they only give rights for holding. However one would say that the Act does not guarantee for security of tenure because the President is empowered by the Act to retake the land at any time and under such manner and under such conditions he may deem fit. It is imperative to note that the President can only retake the land under the Act for State, Local Authority or for public purposes only not for any other purposes.

AUTHORITY OF THE MINISTER

Furthermore the Act vests in the Minister the right to acquire land by means other than the use of the Land Acquisition Act. The Minister is empowered by the Act to accept land as a gift from anyone and to accept a gift of personal land by way of a will. After accepting the land as a gift or bequests, the Minister is entitled to direct the Registrar of Deeds to cancel the title deeds of any land acquired by means of section 16.
The writer took the Minister to an Administrative Court in the case of Lowveld Sugar v Minister of Lands in which it was successfully argued that that the Minister has no authority to withdraw offer letters. It was much expected that the Land Commission Act was going to address that anomaly but section 17 and 23 only accords the Minister the right to issue offer letters, leases, deeds of grants in respect to Gazetted or other State Land with the consultation of the Commission and approval by the President. The Act is silent regarding powers of the Minister to withdraw offer letters that have been issued. It leaves the interpretation of these provisions at the discretion of the courts.

In relation to agricultural land of the deceased or people that cannot help themselves, the Act allows that they may be represented by a legal practitioner of their choice at their expense or to be represented by a member of the family or any other person the Commission considers suitable to represent her or him. This provision upholds the constitutional right to a fair hearing and to legal representation. It is of great importance to note that access to justice and right to fair hearing are the bedrock for the success of democracy in any nation. This is because access to justice and the right to a fair hearing are the most important aspects of the Rule of Law in any democracy in modern form of Government which stresses political equality and individual liberties.

CRIMINAL SANCTIONS

Right to silence has not always been a practical reality for the accused in Zimbabwe whether in a Criminal matter or a Civil matter. It is reasonable that persons faced with a serious accusation might wish to consider their situations carefully before making any disclosure. The supposition that only a person before the Land Commission Act is to be guilty on an offence for not speaking freely to the Commission is an unreasonable provision because people can choose to remain silent for various reasons. This provision is an infringement of the right to silent of the accused that is enshrined in the Constitution therefore the need to be aligned to the Constitution.

TRANSFER OF RIGHTS IN LAND

The Land Commission Act prohibits the cessation of rights by anyone without the consent in writing from the Minister. This has been prohibited by the Act because it has also resulted in the dilapidation of farms and have caused a great economic meltdown as farms are no longer used for their initial purposes but have been turned into residential areas as a result of the housing schemes by land barons and local authorities conniving to rip off desperate home-seekers through setting up dubious housing schemes. Most of the farms are now derelict as a result of land cessation. One can safely say that this is the reason why the Act has abolished cessation of rights without the approval by the Minister.

Further, sharecropping is a widely recognized practice that involves farming, depasturing of livestock on land belonging to others. The Act allows for land owners to permit occupation on a share cropping basis but only with the approval of the Minister. Permitting occupation on a share cropping basis without the approval of the minister is a criminal offence under the Land Commission Act. However sharecropping is beneficial to the economy of the country as the land owners who have no experience in agriculture can allow others with more skill and resources to utilize the land. Sharecropping is a good exercise as there is no up-front cash payment needed by farmers. It means that sharecroppers would only need to pay the rent during the harvesting season. Sharecropping increases the land acreage and thereby increasing the production of crops.

IMMUNITY OF THE COMMISSION

Lastly, the Act provides for the immunity of the Land Commission or any member of the Commission in respect of anything that is done in good faith and without gross negligence. While it is accepted that the intention of this provision is to protect the Commission from distracting litigation while performing their legitimate and constitutional mandate and duties, one then must consider how easily this provision could be abused by those protected under it. It is important to note that the Commission or member of the Commission can also be corrupt in exercising its duties. Though this immunity clause is not absolute the conditions that one can bring an action against them are vague and insufficient. The Act specifically says that the Commission is immune to any legal proceedings in respect of anything which is done in good faith and without gross negligence. One would say that this provision is vague in the sense that it is difficult to prove that the Commission acted in bad faith and that it has exercised gross negligence in carrying out its mandate. Because of the immunity from any legal proceedings, whether civil or criminal, it is likely that this clause will foster corruption and there is need to extent the conditions under which the Commission can be brought for legal proceedings to include corruption because there is an opinion that, while holding office, the members of the class protected by the immunity clause can "do and undo" as they see fit and not be held accountable.

CONCLUSION 

After having reviewed all these issues, it is found that the Land Commission Act has been enacted for various purposes that include; to establish the Land Commission, to set out the powers of the Minister and the limitation of those powers, and to provide for all State Land related issues. However, it is also important to note that there is need to align section 12(8) of the Act to the Constitution and to also limit the immunity of the Commission so as to curb corruption.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions