UNIVERSITY OF ZIMBABWE
DEPARTMENT OF GEOINFORMATICS AND SURVEYING
SV420 LAND LAW
LECTURE NOTES
JULY 2010
LECTURER: DAVID NJIKE
COURSE OUTLINE
Course Description
The basic objective of this course is to give students an understanding of Land Law in Zimbabwe. This involves a consideration of the relevant statutes and principles of common law. Indeed, many aspects of land and property law are governed by principles that have developed over hundreds of yearsand as a result of judicial precedents.
What rights in land vest in the state? What is the concept of ownership? Are there other rights in land besides ownership? How are problems of encroachment dealt with? These are just some of the issues that will be looked at in this course.
Course Requirements
Students will be expected to submit a written assignment which will count as their course mark for the semester.
SYLLABUS
- Basic Concepts of Law
- What is Law?
- Roman-Dutch Law
- Sources of Law
- Structure of the courts
- Legal Practitioners
- Legal Rights
- Real Rights
- Personal Rights
- The concept of ownership
- Rights in corporeal things
- Rights in incorporeal things
- Possession
- Alienation
- Acquisition of Rights in land
- Delivery
- Succession
- Marriage
- Contract
- Order of court
- Expropriation
- Partial Rights in Land
- Usufruct
- USUS
- Fidel Commission
- Habitatio
- Servitudes
- Lease
- Mortgage
- Lien
- Encroachment
- Land Acquisition
- Introduction to the Land Acqusition Act No. 3 of 1992
- Designation
- Acquisition
- Compensation
- Conveyancing
- Organising of Deeds registration
- Provisions relating to documents
- Duties and powers of registrar
- Conveyances
- Land registration
- Power of Attorney
- Analysis of Deed of Transfer
- Document to be lodged
- The Land Survey Act
- The Surveyors Act
- International Law and International Boundaries
LIST OF LEGISLASTION FOR TRIAL SURVEY AND LAW EXAMINATION
Enactment of legislation is a responsibility of parliament and the duly delegated organs of the State. The statutes can be enacted, amended or repealed at any time and it is the duty of every citizen to keep abreast with these variations as published in the Government Gazette.
- LAND SURVEY ACT (CHAPTER 20:12
-the whole
Land Survey (General) Regulations. 1979. As amended – whole.
2.LAND SURVEYORS ACT (Chapter 27:06)
- the whole
Land Surveyors (General Rules), 1990 S.1 96/1990. - the whole
Legal Practitioners Act (Chapter 27:07) - relevant sections
3.REGIONAL, TOWN AND COUNTRY PLANNING ACT (CHAPTER 29:12)
Part III, Section 10
Part IV. the whole
Part VI. the whole
Part VII Section 45 – 47 general appreciation
Part VIII the general appreciation
Part IX The whole,
Part X, general appreciation
Part XI, section 68 (2) (b)
Regional. Town and Country Planning (Subdivisions and Consolidation) Regulations SI 924/1976 - the whole
4.INNER BANK TITLE ACT (CHAPTER 20:09)
-the whole
General Law Amendment Act (Chapter 8:07) - the relevant sections
5.LAND OCCUPATION CONDITIONS ACT (CHAPTER 20:11)
-Section 12
- PRESCRIPTION ACT (CHAPTER 8:11)
Parts I, II, III
7MINES AND MINERALS ACT (CHAPTER 21:05)
Part IV, sections 46,47,51, 52, 57
Part VIII, the whole with special attention to sections 135, 137, 143, 144, 151, 154 and 155
Part XXVII, 397 and 398
General Law Amendment Act (Chapter 8 : 07) - relevant sections
- ROADS ACT (CHAPTER 13:12)
Section 3, definitions of "branch road", "declared road", "district road", and “main road"
and "road".
-Sections 5, 6, 7, 11, 12, 18 and 28
General Law Amendment Act (Chapter 8:07) - the relevant sections
- DEEDS REGISTRIES ACT (CHAPTER 20:05)
- Parts II, the whole
- Part III, the whole with special reference and attention to 10, 13 and 14
- Part IV the whole with special reference and attention to sections 16-18, 20-22, 24,
27. 29, 40 - 42
- Part V, section 50
- Part VI, 56 - 60, 63, 65, 66
(64 general appreciation)
- Part VII, 71, 76, 82, 87 general appreciation
10.LAND ACQUISITION ACT (CHAPTER 20:10)
Part III only – general appreciation
Administrative Court Act (Chapter 7:01)
High Court Act (Chapter 7:06)
11.PIPELINE ACT (CHAPTER 13:08)
Section 2, 4, 8 and 9
12.COMMUNAL LAND ACT (CHAPTER 20:04)
-general appreciation with special attention to sections 4, 10 and 11
13.TITLE REGISTRATION AND DERELICT LANDS ACT (CHAPTER 20:20)
- general appreciation
14.RURAL LAND ACT (CHAPTER 20:18)
-general appreciation
- Rural Land (Farm Sizes) Regulations, SI 419/1999 - the whole
15.TRADITIONAL LEADERS ACT (CHAPTER 29:17)
Part VI – appreciation and vision
16.FENCING ACT (CHAPTER 20:06)
General appreciation with special reference to Section 31 and 32
Legal Practitioners Act (Chapter 27:07) - relevant sections
High Court Act (Chapter 7:06) - relevant sections
17.URBAN COUNCILS ACT (CHAPTER 29:15)
Part X - the whole
Legal Practitioners Act (Chapter 27:07) - relevant sections
18.ADMINISTRATIVE COURT ACT (CHAPTER 7:01)
- general appreciation
19.WATER ACT (CHAPTER 20:24)
Section 2 - definitions of "area under the jurisdiction of a local authority", "catchment area", "permit", "existing permit", "provisional permit", "temporary permit", "final permit", "owner", "non riparian owner", "primary purpose", "public stream", "riparian land", "riparian owner", "water storage works" and water works.
-Part III - general appreciation,
- Part IV - the whole
-Part VII - the whole
-Part VIII - the whole'
-Part IX - definition of "full supply level" and "high flood level",
-Part XII - section 124
General Law Amendments Act (Chapter 8:07) - relevant sections
(It is important to realise that Chapter (20:22) was repealed and replaced with Chapter 20:24. It is important to appreciate the differences in the two pieces of legislation and the definitions of the following terms that no longer exist in the current Act; section 2 - "flood water", " existing right", "final right", "lapsed right" and "normal flow".
- BASIC CONCEPTS OF LAW
- What is Law?
A simple definition of law is
“the body of rules which a state or community recognizes as binding on its subjects or members, and which determines those persons’rights or duties.”
The famous 19th Century English Legal Scholar John Austin defined Law as
“The General Commands of a Sovereign supported by the threat of sanctions”.
More modern scholars have tended to emphasize the importance of the judiciary in determining what law is. Accordingly it is possible to extend Austin’s definition so that it now reads
“Laws are the General Commands of the Sovereign supported by the threat of sanctions, as interpreted and determined by the court”.
Definitions of this sort fall within the school of JURISPRUDENCE known as positivism, which holds that law is simply what legitimate authorities declare it to be. This position contrasts with that of the natural law school which argues that law, in order to qualify as law in the full sense of the word, must contain within itself a minimum moral context.
Consider the following example: - A positivist believes that any bill duly passed by parliament is law. There is no need for any further enquiry. The naturalist however, will want to know first what the content of the legislation is. If he finds that it violates what he might refer to as the moral law of the universe, he will not regard such an enactment as Law. Eg legislation that perhaps discriminates against certain specified groups in a way deemed to be unacceptable will clearly fall within the ambit/parameters of enactment lacking the necessary minimum moral content to qualify as LAW.
The essential purpose of law is to regulate human behavior. This obviously involves establishing beforehand what the rules of conduct are. In this connection it is important to grasp that in most cases the law is only concerned with the external behavior of members of society. Thoughts are not subject to punishment. However it must be stressed that in many instances, but not all, a person’s legal liability would depend on whether his act was accompanied by the requisite intention.
The word Sanctions simply refers to punishments or penalties. A person convicted of a criminal offence will be punished by being sentenced to a term of imprisonment, fined or even executed, depending on the nature of the offence. Sanctions can also be applied in civil matters. Briefly, civil litigation embraces all those court cases that are not criminal e.g. a breach of contract action would be an instance of civil litigation. A party who fails to perform his obligations in terms of a validly constituted contract would find himself subject to a court order for either specific performances or damages.
A deed of sale of a piece of land must be in writing and signed by the parties to the sale or by their authorized agents. If the deed of sale document is not formally correct, it is null and void. Thus there is no sale and o contract. This is a sanction of nullity.
Another term that frequently crops up is “equity”. This is a collection of principles based on conceptions of ideal justice but not supposed to be instinctively known. In this respect it is similar to the idea of natural justice referred to earlier.
The Purpose of Law.
In its general sense, a norm is a rule or law which governs our ordinary, everyday activities in a recognized and standard way. We have moral codes, laws of etiquette and fashion, and rules applicable to certain games. The laws pertaining to all such aspects are norms. The norm we are talking about here is the legal norm, or one that has been called “the law of the Law Courts”. Expressed in other words, we wish to learn about the laws regulating human conduct which are dealt with by the courts of law, all for the following reasons.
a)Preservation of order.
The law would not be required if all people were perfect. If they were, there would not be the continual conflict of interests which does, in fact, take place. In providing rules of conduct, the law stipulates what must be done, what may be done and what must not be done. This is in order that the individual and collective rights of each member of the community may be protected. The law tries to prevent one person’s rights clashing with another’s, and the rights of an individual from clashing with the rights of the community. It tries to preserve peace and order.
b)Justice
Justice is what appears to be right and fair to the fair-minded man. It is a remarkable fact that the fundamental principles of justice are principles common to virtually all developed legal systems. The machinery by which these principles are put into effects varies between nations but the basic principles remain the same. Human nature, generally speaking, remains the same wherever it may be. Among the element that form an integral part of the man’s being is the sense of what is right and just. If every selfish interest were eliminated, men the world over would arrive at practically the same conclusion in interpreting a problem of right and wrong. The more “just” the law, the more likely it is that people will obey it. Law must conform to the prevailing sense of justice in a community or it will fail to preserve peace.
Principles of Law
We may classify the principles of law as follows:
a)Just Application
b)Equality
c)Uniformity
d)Authority
e)Certainity
1.2.Roman-Dutch Law
In Zimbabwe and South Africa, the common law is referred to as the Roman-Dutch law. Common law is law that doesn’t emanate from Parliament. This system of law originate in Holland and was transplanted into South Africa as a result of the colonial process. In more recent years, our system of law has also been strongly influenced by English law so that while our system still referred to as the Roman-Dutch law, it is in fact a kind of hybrid of English and Roman-Dutch law.
1.3.Sources of Law
The laws that apply in Zimbabwe originate from several different sources as follows:
a)Custom
This is an important source of law at the level of international law where the way in which states behave with respect to each otherin order to create binding rules of customary international law. In Zimbabwe the constitution express the rules of African customary that will be made use of with regard to certain types of situations. Four requirements must be satisfied if a custom has to be recognized as such:
- The custom must be reasonable
- The custom must have existed for a long time
- The custom must generally be recognized and observed the community
- The content of the customary rule must be clear and certain.
b)Legal writings
A Fundamental source, where Parliament has not legislated concerning a particular matter and where no appropriate case law precedent exists, a court of law will look to the writings of the old jurists for guidance. In the Roman-Dutch tradition, the most important writers:Note in particular the treaties of Grotius, Van Leeuven and of Voet, all 17th century Dutch jurists. Also the Corpus Juris of Roman Law.
c)Legislation
This is law created by legislative bodies, the most notable being Acts of Parliament. Other subsidiaries also exist such as Town Councils, Urban & Rural Councils etc. Also known as statute law. The validity of an act of Parliament cannot be questioned, but its interpretation is a matter for the courts. All other statutes are subordinate to an Act of Parliament.
In some cases ministers are also empowered by acts of Parliament to create subsidiary legislation. All subsidiary law making bodies are only entitled to create regulations in respect of matters delegated to them by Parliament. In Zimbabwe, all legislation must be framed in terms which do not conflict with the wording of the constitution. Acts passed by Parliament which are contrary to a provision of the constitution may be struck down as invalid by the Supreme Court.
d)Case law or adjudication:
Judicial decisions make law and decide on the meaning of statutes. By judicial decisions are meant court judgments. A court will always stand by its own decision or by the decision of a similar ranking or higher court, unless that decision has been proved wrong.
Does this mean that the Courts actually create new law? YES and NO.
YES - in the sense that where there are gaps in Common Law, the courts will use a process of inferential reasoning to develop and expand the law.
NO - in the sense that strictly speaking all the courts do is apply the law as enunciated by parliament, the jurists or case precedence.
The principle by which courts are bound by precedent is known as the principle of stare decisis. All important judgments are published in law reports for reference purposes in future cases.
Law reports on all cases of interest are published in the Zimbabwean law reports, a practice which extends back to about 1891. These reports summarize the litigation and give the judges’ full written judgment.
1.4.Structure of the courts
The highest legal authority in Zimbabwe is the Supreme Court of Justice. Inferior courts include High courts and Magistrate Courts in descending order. There is a high court in Bulawayo and Harare and there is a Magistrates Court in most of the main urban centres of Zimbabwe. The power of these courts is limited.
Judgments given in the Magistrates Courts do not establish binding legal precedents and are not reported in the law reports, only the judgments in Supreme and High Courts do. Both High courts and Magistrate Courts are trial courts in others words they are courts of first instance. A trial court is a court that seeks to discover facts by reviewing evidence and hearing witnesses. Once the facts have been obtained it is then possible to decide what principles of law ought to apply. The supreme court is usually confined to hearing appeals and is generally not a court of first instance. However section 24 of the constitution makes it clear that the persons who feel a constitutional right has been infringed, can take their cases directly to the Supreme court.
1.5.Legal Practitioners
Ever since 1981 when the bar was fused, all legal practitioners have been entitled to appear in all courts. Previously only advocates were allowed to appear in higher courts. Advocates tend to specialize in litigation i.e. court proceedings, while attorneys specialize in drawing up wills, contracts as well as practicing conveyancing (land transfers).
- LEGAL RIGHTS
A legal right is an interest conferred by and protected by the law entitling one person to claim that another person(s) either give him something or do a particular act for him or refrain from doing an act. Right can thus be framed in either positive or negative sense. The existence of a right also implies the existence or corresponding obligation. From this definition follows the concept of right in things (jurainre). These are negative rights.
If you have the right to use and enjoy an object this is the same as having a legal right to insist that all persons i.e. everyone in the world other than yourself refrain from using and enjoying that object and refrain also from preventing or impairingyour use and enjoyment of if. In other words you can but all others cannot. In the latter respect we have an example of a negative right.
It is important to distinguish real rights from personal rights.
2.1.Real Rights
Real right (direct relation with a thing). A real right establishes a direct legal connection between a person and a thing, the holder of the right being entitled to control that thing within the limits of his right without necessary relation to another man. Silberg and Schuman in their book “The law of property” note that,
“The power of direct control which is conferred from the holder of a real right is as a general rule protected against interference by any other legal subject, emphasizing that a real right is a right to a thing conferring a power of direct control over such thing. We should accordingly bear in mind that it also constitutes legal relationships between legal subjects having a right to a thing which, as a general rule is enforceable against all other persons i.e. against any person who seeks to deal with the thing to which is inconsistent with the exercise of the holder’s power to control it”.
It must follow therefore that real rights are basically a species of absolute right; some examples will help to illustrate this point.
- Since a person’s right of ownership is absolute, he may generally enforce it against persons who have quiet control of the property as a result of its having been stolen. This right does not only apply as against the actual thief but also against subsequent purchaser in good faith or indeed any other person. The owner is entitled to return of the property in question, mere payment of compensation will not suffice since the property or thing is the real object of his right of ownership.
- In the same way, the holder of a servitude in respect of a piece of land has the right to enforce the servitude being a real right, against both the original grantor and the latter’s successes in title. Whether or not they have any knowledge of the existence of the servitude is irrelevant beingservitude that creates a real right. It runs with the land. The land is the object of the right.
2.2.Personal Rights