Hostname: page-component-586b7cd67f-l7hp2 Total loading time: 0 Render date: 2024-12-01T09:05:10.568Z Has data issue: false hasContentIssue false

Land Reform in Zimbabwe: Some Legal Aspects

Published online by Cambridge University Press:  11 November 2008

Extract

The Government of Zimbabwe has only recently begun to implement the commitment of the liberation movements to give land to poor ‘communal’ farmers, especially those dispossessed by the whiteminority régime after Rhodesia's unilateral declaration of independence in 1965. It needs to be recalled that by virtue of the Land Tenure Act of 1969 almost half of the country's agricultural land was allocated to Europeans, who had ‘greater access to the regions considered suited to intensive crop and livestock production’, and that ‘On average, each of the nearly 7,000 European farms was roughly 100 times the size of any of the 700,000 or so holdings in the Tribal Trust Lands’. The fact that much of this land was under-utilised only served to increase African resentment.

Type
Articles
Copyright
Copyright © Cambridge University Press 1993

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Hazlewood, Arthur, ‘Kenyan Land-Transfer Programmes and their Relevance for Zimbabwe’, in The Journal of Modern African Studies (Cambridge), 23, 3, 09 1985, p. 457.CrossRefGoogle Scholar

2 Legum, Colin (ed.), African Contemporary Record: annual survey and documents, 1981–82 (London and New York, 1981), pp. B871, 878, and 885–6.Google Scholar

3 Keesing's Record of World Events (Harlow, Essex), 38, 1992, p. 38751.Google Scholar

4 See Report of the Constitutional Conference, Lancaster House, London, September–December 1979 (London, 1980).Google Scholar

5 See, for example, Smith versus Mutasa, Supreme Court of Zimbabwe, 1989, in Law Reports of the Commonwealth (Constitutional) (London), 1990, p. 87.Google Scholar

6 The Independent (London), 20 03 1992.Google Scholar

7 Keesing's, 38, 1992, p. 38804.Google Scholar

8 The Economist (London), 22 05 1993, p. 68.Google Scholar

9 The Guardian, 29 May 1993.

10 Ibid. and 7 June 1993.

11 See May and Others versus Reserve Bank of Zimbabwe, Supreme Court of Zimbabwe, 1986,Google Scholar in Law Reports of the Commonwealth (Commercial) (London), 1986, p. 758.Google Scholar

12 Other amendments included altering the name of the state from ‘Zimbabwe’ to ‘the Republic of Zimbabwe’, strengthening the independence of the judiciary, and enfranchising certain persons who are not citizens but permanent residents.

13 The Guardian, 12 December 1990.

14 The Times, 16 January 1991.

15 The Independent, 20 March 1992.

16 Section 42 (4) requires certain criteria to be satisfied before land is determined to be derelict: namely, whether the land is or has been occupied; whether the land is being worked or cultivated; whether the owner can be found; the control which the owner has exercised over the land; and the extent of compliance with laws regarding the payment of rates, levies, or taxes in respect of the land.

17 See International Legal Materials (Washington, DC), 21, 1982, p. 58,Google Scholar and Naldi, Gino (ed.), Documents of the Organisation of African Unity (London, 1992), p. 109. Zimbabwe ratified the International Covenant on Civil and Political Rights in 1991.Google Scholar

18 Smith versus Mutasa, 1989, in loc. cit.

19 Zimbabwe Township Developers (Pvt) Ltd versus Lou's Shoes (Pvt) Ltd, Supreme Court of Zimbabwe, 1983, in Zimbabwe Law Reports, 2, 1983, p. 376.Google Scholar

20 See State versus Masiriva, Zimbabwe High Court, 1990,Google Scholarin South African Criminal Law Reports (Cape Town), 1, 1991, pp. 81–5, and Djama versus Government of the Republic of Namibia and Others, Namibia High Court, 1992,Google Scholar in South African Law Reports, (Cape Town), 1, 1993, pp. 387–95.Google Scholar

21 The Times, 20 March 1992.

22 See Abraham, A. J., Freedom and the Court (New York, 1988 edn.), ch. II and pp. 122–4.Google Scholar

23 Smith versus Mutasa, 1989, in loc. cit. pp. 94–5.

24 Ibid.See also, Nasopie (Edms) Bpk versus Minister van Justisie (2), Provincial Court, 1979, in South African Law Reports, 4, 1979, p. 438.Google Scholar

25 The Times, 20 March 1992.

26 See Rushwaya versus Minister of Local Government and Town Planning & Another, Zimbabwe Supreme Court, 1987, in Zimbabwe Law Reports, 1, 1987, p. 15Google Scholar; Mutambara and Others versus Minister of Home Affairs, Zimbabwe High Court, 1989, inGoogle Scholaribid. 3, 1989, p. 96. Furthermore, a minister is required to look at the objective facts in order to reach a conclusion, as in Minister of Home Affairs & Director of Prisons versus Austin & Harper, Zimbabwe Supreme Court, 1986Google Scholar, in ibid. 1, 1986, p. 240. The courts will also review prerogative powers, as in Patriotic Front-ZAPU versus Minister of Justice, Legal and Parliamentary Affairs, Zimbabwe Supreme Court, 1985, in Law Reports of the Commonwealth (Constitutional), 1986, p. 672, and Logan versus Morris No and Others, Zimbabwe Supreme Court, 1990, in South African Law Reports, 2, 1991, p. 68.Google Scholar

Other principles of administrative law applied by the Zimbabwean courts include natural justice, as in Austin & Another versus Chairman, Detainees' Review Tribunal & Another, Zimbabwe Supreme Court, 1988, in Zimbabwe Law Reports, 2, 1988, p. 21, as well as legitimate expectations and the audi alteram partem rule, as in Metsola versus Chairman, Public Service Commission & Another, Zimbabwe Supreme Court, 1989, in ibid. 3, 1989, p. 147.

27 Keesing's, 38, 1992, p. 38995, and 39, 1993, p. 39453; and The Guardian, 4 May 1993.

28 Metsola versus Chairman, Public Service Commission & Another, 1989, in loc. cit. pp. 155–6. See also, Attorney-General of Hong Kong versus Ng Yuen Shiu, Privy Council, 1983Google Scholar, in Appeal Cases (London), 2, 1983, p. 629,Google Scholar and Boulle, L., Harris, B., and Hoexter, C., Constitutional and Administrative Law: basic principles (Cape Town and Johannesburg, 1989), pp. 144–6, 295–8 and 338–9.Google Scholar

29 May and Others versus Reserve Bank of Zimbabwe, 1986, in Law Reports of the Commonwealth (Commercial), 1986, pp. 758–90.Google Scholar

30 Ibid. p. 789. See also, pp. 773–4, citing with approval Nelungaloo (Pty) Ltd versus Commonwealth, High Court of Australia, 1948,Google Scholar in Commonwealth Law Reports (Sydney), 75, 1948, pp. 495571 per Dixon J.Google Scholar

31 Permanent Court of International Justice (The Hague), Series A, 7, 1926, p. 22.Google Scholar

32 Sporrong and Lonnroth versus Sweden, 1983,Google Scholar in European Human Rights Reports (London), 5, 1983, p. 35.Google Scholar

33 Brownlie, Ian, Principles of Public International Law (Oxford, 1990 edn.), pp. 532–5.Google Scholar

34 See Article 2 (c), Charter of Economic Rights and Duties of States, 1974, U.N. General Assembly Resolution 3281 (XXIX), in International Legal Materials, 14, 1975, p. 251. In Texaco versus Libya, inGoogle Scholaribid. 17, 1978, p. 1, the arbitrator noted that developed states regarded this formulation as contra legem.

35 Brownlie, Ian (ed.), Basic Documents on Human Rights (Oxford, 1992 edn.), p. 341.Google Scholar

36 European Human Rights Reports, 8, 1986, p. 123, paras. 61 and 64.

37 Ibid. 8. 1986, p. 329, para. 54.

38 See Commissioner of Taxes versus C W (Pvt) Ltd, Zimbabwe Supreme Court, 1989, in Zimbabwe Law Reports, 3, 1989, p. 361.Google Scholar

39 European Human Rights Reports, 9, 1987, p. 464.

40 A clause to similar affect in the Land Acquisition Bill was abandoned according to The Times, 20 March 1992.

41 Anisminic Ltd versus Foreign Compensation Commission, House of Lords, 1969, in Appeal Cases, 2, 1969, p. 147; Thomas versus Attorney-General of Trinidad and Tobago, 1982, in ibid. 1982, p. 113; and Baxter, L., Administrative Law (Cape Town and Johannesburg, 1984), p. 730.Google Scholar

42 Zimbabwe Law Reports, 1980, pp. 540–7. In Pyx Granite Co. Ltd versus Ministry of Housing, Local Government and Others, House of Lords, 1959, in Appeal Cases, 1960, pp. 260–86, Viscount Simonds stated ‘It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words.’Google Scholar See further, Anisminic Ltd versus Foreign Compensation Commission (1969), in loc. cit. pp. 169–70. In relation to South Africa, it is established that in the absence of express words the inference that the court's jurisdiction is ousted must be clear and unequivocal.Google Scholar See Welkom Village Management Board versus Lento, 1958, in South African Law Reports, 1, 1958, pp. 490–503, as well as Baxter, op. cit. pp. 725–33,Google Scholar and Boulle, Harris, and Hoexter, op. cit. pp. 144–6 and 295–8.

43 Anisminic, loc. cit.; South East Asia Firebricks versus Non-Metallic Mineral Products Manufacturing Employees' Union, Privy Council, 1980, in Appeal Cases, 1981, p. 363;Google Scholar and Baxter, op. cit. pp. 729–32.

44 Anisminic, loc. cit.; Photocircuit SA (Pty) Ltd versus De Klerk No and De Swardt No, 1989, in South African Law Reports, 4, 1989, pp. 209–16;Google Scholar and Boulle, Harris, and Hoexter, op. cit. p. 296.

45 Golder versus United Kingdom, European Court of Human Rights, 19791980, in European Human Rights Reports, 1, 1980, p. 524.Google Scholar

46 See, for example, Neumeister versus, European Court of Human Rights, 19791980, in Eropean Human Rights Reports, 1, 1980, p. 91.Google Scholar

47 The Times, 29 March 1993.