Property rights are provided for in section 71 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (hereinafter referred to as the “Constitution”). The relevant part provides as follows;
71 Property rights
(1) In this section—
“property” means property of any description and any right or interest in property.
(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.
(3) Subject to this section and to section 72, no person may be compulsorily deprived of their property except where the following conditions are satisfied—
(a) the deprivation is in terms of a law of general application;
(b) the deprivation is necessary for any of the following reasons—
(i) in the interests of defence, public safety, public order, public morality, public health or town and country planning; or
(ii) in order to develop or use that or any other property for a purpose beneficial to the community;
Section 71(2) of the Constitution provides for property rights to every person in any part of Zimbabwe. An owner of a property can do as they wish with their property subject to other provisions of the Constitution. Section 71 (3) of the Constitution prohibits ‘compulsory deprivation’ of property unless the listed conditions are satisfied. Put differently the State can acquire a person’s property if the stated conditions are met. What is critical to note is that this section applies to any property. This means the State may for example compulsorily acquire a person’s private vehicle or privately owned land in the city if it proceeds in terms of a law of general application and such deprivation is in the interest of the public (in the interests of the defence, public safety, public order, public morality, public health or town and country planning, or in order to develop or use that any other property for a purpose beneficial to the community). Reasonable notice of the intention to acquire must be given and the State has to pay “fair and adequate compensation”. The acquisition may be challenged before a competent court which has the power to confirm or set aside the acquisition.
A few examples can be cited where the State can compulsorily deprive an owner of their right to property in the interests of the public:
- In terms of Part IX of the Road Act (Chapter 13:18), the road authority may deprive an owner of their rights to land for purposes of road construction. The reservation is then endorsed on the title deed by the registrar of deeds.
- In terms of Part X of the Urban Councils Act (Chapter 29: 15) a council ‘may acquire (expropriate) land inside or outside the council area or any interest in such land for the purpose of carrying out any function of the council or exercising any power or performing any duty which is conferred or imposed on the council by law’.
- In terms of the Emergency Powers Act (Chapter 11:04) the President may make regulations the taking of possession or control on behalf of the State of any property.
The acquisition/deprivation of property in terms of Section 71 of the Constitution is not uncommon in most jurisdictions. According to the American author J.L Sax in ‘Takings and the Police Power’ (1964) Yale law Journal;
“If the government wants to convert a private house into a post office, or run a new highway through a farm, or build a dam which will flood nearby land, it is going to have to compensate the losses sustained as a result of these activities. In such cases courts uniformly hold that the property has been taken by government, thus bringing into operation the Constitutional mandate that private property may not be taken for public use without just compensation.”
Section 71 of the Constitution deals with rights to property in general. The rights to agricultural land in particular are dealt with in terms of Section 72 as read with Chapter 16 of the Constitution. The starting point in this case is Section 294 of the Constitution which provided as follows;
“Subject to any limitation imposed by law, an owner or occupier of agricultural land has the right to transfer, hypothecate, lease, or dispose of his or her right in agricultural land”
The Constitution therefore recognizes private ownership to agricultural land as opposed to agricultural land which is vested in the State (Section 293). Agricultural land may still be acquired by the state if it’s required for a public purpose. Acquisition of land in this section may not be challenged on the ground that it was discriminatory in contravention of Section 56. Generally no compensation is payable save for the improvements effected on it before its acquisition.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
Copyright © Marume & Furidzo Legal Practitioners 2018