UNIVERSITY OF ZIMBABWE
DEPARTMENT OF GEOINFORMATICS AND SURVEYING
SV420 LAND LAW
LECTURE NOTES
JULY 2010
LECTURER: DAVID NJIKE
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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 years and 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
1. Basic Concepts of Law
1.1. What is Law?
1.2. Roman-Dutch Law
1.3. Sources of Law
1.4. Structure of the courts
1.5. Legal Practitioners
2. Legal Rights
2.1. Real Rights
2.2. Personal Rights
3. The concept of ownership
3.1. Rights in corporeal things
3.2. Rights in incorporeal things
3.3. Possession
3.4. Alienation
4. Acquisition of Rights in land
4.1. Delivery
4.2. Succession
4.3. Marriage
4.4. Contract
4.5. Order of court
4.6. Expropriation
5. Partial Rights in Land
5.1. Usufruct
5.2. USUS
5.3. Fidel Commission
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5.4. Habitatio
5.5. Servitudes
5.6. Lease
5.7. Mortgage
5.8. Lien
6. Encroachment
7. Land Acquisition
7.1. Introduction to the Land Acqusition Act No. 3 of 1992
7.2. Designation
7.3. Acquisition
7.4. Compensation
8. Conveyancing
8.1. Organising of Deeds registration
8.2. Provisions relating to documents
8.3. Duties and powers of registrar
8.4. Conveyances
8.5. Land registration
8.6. Power of Attorney
8.7. Analysis of Deed of Transfer
8.8. Document to be lodged
9. The Land Survey Act
10. The Surveyors Act
11. International Law and International Boundaries
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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or repealed at any time and it is the duty of every citizen to keep abreast with these variations as published in the Government Gazette.
1.
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)
-
6.
Section 12
PRESCRIPTION ACT (CHAPTER 8:11)
Parts I, II, III
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MINES 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
8.
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
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9.
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)
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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".
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1. BASIC CONCEPTS OF LAW
1.1.
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.
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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)
b)
c)
d)
e)
Just Application
Equality
Uniformity
Authority
Certainity
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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 other in 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:
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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).
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2. 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 (jura in re). 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 impairing your 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
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servitude is irrelevant being servitude that creates a real right. It runs with the land. The
land is the object of the right.
2.2. Personal Rights
Personal right (related to the person who is related to the thing). In terms of a personal right on
the other hand, a person becomes bound to the holder of the right to render a particular
performance i.e. to do or not to do something, the performance itself being the object of the
right. It never establishes a direct legal connection between its holder and the thing if any in
respect of which a performance has to be rendered. A personal right may generally only be
enforced against particular persons where some kind of special legal relationship has been
established in terms of e.g. contract. This means that personal rights are essentially relative
rights. Silberg and Schuman illustrate this point;
“Suppose O Sales his car to P1 who consequently acquires a personal right by virtue of a
contract of sale, which entitles him to claim delivery from O. Before delivery takes place,
O enters into a second contract of sale in respect of the same vehicle i.e. with P2 who is
unaware of the prior sale. P2 forthwith takes the car and thus becomes the owner
thereof. The personal right acquired by P1 will not enable him to successfully claim the
car from P2 because it is enforceable only against a particular person(s), in this case O.
If, however the vehicle was delivered to P1 prior to the 2nd sale and as a result of which
P1 acquired a real right of ownership, he will be able to claim the return of his car from
whosoever is in control of it because the right is enforceable against the word at large
being an absolute right”.
Finally it is important to understand to understand what constitutes a person in terms of the
law. Any subject of law is a person, anything that can have rights. Naturally individual human
beings are persons, however in addition, entities like companies and statutory bodies are also
regarded as legal persons even though they are artificial entities.
3. THE CONCEPT OF OWNERSHIP
Ownership may be defined as a sum total of all rights in a thing. Ownership gives the person in
whom the right refers the right to use, change and even destroy the thing in question. The
owner is entitled to use its fruits and prevent others from using it and transfer rights in respect
of the thing. Of course ownership rights may be subject to limitations imposed by law.
If on the other hand one enjoys only some of the possible rights in a thing, the relationship
cannot constitute ownership. At this point it is necessary to understand the meaning of the
word ‘Re or Res’ in Latin. Certain things may obviously be owned e.g. a bicycle or a right of way
while other things may not be owned e.g. the air or the high seas. Those things capable of
ownership are of two types namely corporeal and incorporeal. These terms date from the time
of the Roman law where corporeal things were those things which were tangible while
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incorporeal things were things that were intangible such as rights. In essence this definition is
still valid today, basically the test to be applied is, can the thing in question be perceived by the
senses. If it can, then it is obviously corporeal. Both corporeal and incorporeal things may be
further subdivided into movable and immovable things. Silberg and Schuman note, “It is not
only of theoretical but also of the greatest practical importance insofar as the law applicable to
these two classes of things often differs substantially e.g. for a valid transfer of ownership
registration in a deeds registry is required in respect of immovable things while delivery suffices
in the case on movables”.
3.1. Rights in corporeal things
Basically movable corporeal things are items that can be readily be moved from one place to
another. Of course it must be noted that some immovable things may become movable after
being quarried e.g. hitherto immovable stone becomes movable. On the other hand a movable
thing may be attached to something immovable by either natural or artificial means so that it
becomes part of the immovable thing in question. Three factors are taken into account in
deciding whether the movable thing has lost identity.
Objectively the nature of the thing and the manner of its annexation must be considered.
Subjectively the intention of the owner of the movable at the time of its annexation is also
important.
Immovable corporeal things include land and everything attached to the land by natural or
artificial means e.g. a growing crop of wheat.
3.2. Rights in incorporeal things
An incorporeal thing may also be regarded as either movable or immovable, however it is
important first to distinguish clearly between real and personal rights i.e. between rights having
and rights having performance as objectives respectively. All personal rights are movable, this is
in spite of the fact that the performance concerned relates to the transfer of immovable
property. With respect to real rights, distinction has to be made between real rights that have
immovable things as their object and real rights that have movable things as their object,
former unnecessary immovable while the latter are movable e.g. mineral rights and praedal
servitudes are classified as immovable. Consequently usufruct of a herd of cattle is movable
while usufruct of land is immovable. (Usufruct means right to use of fruits).
The ownership of a thing involves a legal relationship between a person and a thing which a
person and a thing which if established to the satisfaction of the law means that title to the
property vests in the owner.
What exactly is title?
Essentially title is proof of ownership. It is often difficult to prove title in respect of movable
things. Since often no legal document exists that reflects the fact of ownership. Actual
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possession of a movable thing does generally raise the presumption of ownership. However this
presumption may be rebutted.
As far as immovable are concerned especially land and land rights, proof of ownership is
straight forward and usually difficult to dispute mere possession i.e. the physical control of a
thing with the intention of retaining that control for one’s own benefit is never by itself a lone
proof of ownership, it is quite possible to retain the ownership of land even after what has
been divested of the right of possession. Note that some of the right of ownership may be
delegated from by statute e.g. in our modern world a land owner will not usually enjoy all the
rights of ownership in respect of his land e.g. one cannot build a house on a piece of land
without municipal or government approval, consent is also needed with regard to subdividing
the land. The use to which land is put ia also subject to control e.g. one is not entitled to use a
residential plot in e.g. Mt. Pleasant as a cattle market.
3.3. Possession
3.4. Alienation
4. ACQUISITION OF RIGHTS IN LAND
There are several different ways in which rights in land can be acquired.
4.1. Delivery
This is referred to in Latin as ‘traditio’, as a prerequisite to delivery, certain conditions have to
exist, these are as follows:
a) The thing must be capable of ownership
b) It must be possible for the owner to transfer ownership and the owner must indeed
intend to transfer ownership
c) Transferee has to be able to receive ownership and must in addition intend to receive
ownership.
d) The type of delivery used must be appropriate to the particular circumstances, with
regard to the delivery of immovable. This will take place through registration or
conveyance. If the right in question that is being transferred is personal, a contract will
suffice to effect delivery.
e) Where there has been a cash sale, payment must be made.
There are various forms of delivery, in the first place there’s physical or actual delivery. This is
known as ‘traditio vera’, where this occurs, the thing in question is physically handed over by
the transferor to the transferee while their intentions determine the nature of real right which
the latter obtains in it i.e. the right of ownership. In most instances neither the objective nor
the subjective aspect of the transfer will lead to any difficulties, the intention of the transferee
is usually indicated by the way he acts. Sometimes however, it will not be so easy to ascertain
what was intended by the transferor e.g. did he intend to transfer ownership to the transferee
or did he merely intend to make the latter his agent? The question of what the intention of the
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parties is will be determined by the courts objectively. This will involve examining nature of
delivery in the context of the circumstances surrounding it, in other words the courts will look
at what the parties actually said and did.
Sometimes delivery may be constructive rather than actual, this means that ownership or some
other real right is transferred without the handling of the thing. However the physical thing still
has some importance, according to Silverburg and Schuman, “The transferee is either:
a) Placed in a position to exercise physical control, known in Latin as ‘traditio longa manu’
and ‘traditio symbolica’
b) Already in physical control by virtue of some other legal relationship known as ‘traditio
brevi manu’ or see someone else exercise physical control on his behalf”
There are different forms of constructive delivery, firstly there is delivery brevi manu, here the
intended transferee is already in possession of the thing in respect of which he shall acquire
ownership e.g. as a lease borrower or perhaps depositoree.
Secondly delivery ‘longa manu’ according to Silverburg and Schuman, “It is necessary and
sufficient that the transferor places the thing to be transferred at the disposal of the transferee
so the latter can immediately exercise effective control over it. It is however generally assumed
that it applies only to those cases in which the thing is placed at the disposal of the transferee
in the presence of the latter. This is obviously the ideal form of delivery where the things are
difficult to move because of their large size. Note that in the case of immovable incorporeal and
corporeal. Delivery is effected by registration of title in a deeds registration of titles in a deeds
Registration office. The title to every piece of land other than an alienated State land is
constituted either by a deed of grant or a deed of transfer together with a diagram of the land.
Title to a right in a registered piece of land is constituted either by endorsement on the title
deed or by the registration of a notarial deed.
4.2. Succession
Person may create a will that states that when he dies, his property including land will pass to
persons named in the will as beneficiaries. However, the mere death of the testestore (person
who wrote will) does not mean that the beneficiary will immediately acquire ownership of the
property in the question. When the testetore dies, the property in the deceased state vests in
the master of the high court and thereafter with the executors of the estate.
It is the duty of the executors to disperse the contents of the estate according to the of the will.
Until such time as the transfer of the land is registered, a beneficiary has mere claim against the
estate.
4.3. Marriage
In Zimbabwe most marriages are out of community of property. However, it is possible to be
married in community of property if that is something the parties particularly desire. If
marriage is in community of property the law states that half the husband’s property vests in
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the wife and the half the wife’s property vests in the husband. In addition the husband has
what is known as marital power. This means that he alone has the right to alienate the common
property.
4.4. Contract
A contract can never constitute nor create a real right e.g. a deed of sale is a contract between
two parties namely a seller and a purchaser of a piece of land. The deed of sale itself doesn’t
create or transfer rights in the land. It merely obliges the parties to comply with the agreement.
Thus
contracts
are
simply
species
of
personal
rights.
Note that not every agreement is a contract in the eyes of the law. Certain essential elements
must be present in the agreement for its constitute contract.
1. In the first place the parties must have the legal capacity to enter into contracts eg minors
that is persons under the age of 18 do not have legal capacity except where this is authorized
by
the
legal
guardians.
2. In addition, an agreement has to be something that is physically possible and legally
permissible. An agreement that is deemed to be contra-bona-mores will not be enforced.
(Contra-bona-mores: contrary to good morals).
3. The parties to the contract must seriously intend to carry out their obligations. Absence of
serious intent may invalidate the contract. Finally if an agreement specifies that certain
formalities must be complied with, if this is not done, the agreement will not be a contract.
4.5. Order of court
4.6. Expropriation
5. PARTIAL RIGHTS IN LAND
It is important to understand that right in land may be distributed between two or more
persons. These persons may possess the rights jointly or the rights may be separated into
different groups and so allocated to different persons e.g. the owner of the farm may lease its
use to a second person and during the duration of the lease it may be that the land owner
himself will not be entitled to use the land. Basically ownership id the sum total of all possible
rights. One or more of these rights may vest in another person, where this is the case, it will
amount t a delegation from the full rights of ownership.
5.1. Usufruct
The word usufruct essentially refers to the right to use the fruits of specified property. If a
person is a usufructuary, he will have the right to use the property and exploit the fruits of the
16
property. This will usually incorporate the right to possess the property but not to destroy or
adversely damage the property in question. The usufructuary is often able to lease the right to
use the fruit to some other person.
5.2. USUS
The concept of usus is very similar to that of usufruct except that here the usufructuary cannot
give the right to use fruits to anyone other than the owner.
5.3. Fidel Commission
5.4. Habitatio
This is basically the right to reside in a dwelling that is a property of somebody else. The right
relates only to the dwelling itself and not to the land on which it stands.
5.5. Servitudes
A servitude is defined by Silverburg and Schuman as a limited real right which entitles its holder
either to the use and enjoyment of another’s property or to insist that such other persons
refrain from exercising certain powers claiming from his right of ownership which he would
have if the servitude did not exist”
There are 2 basic types of servitudes namely praedial and personal. Praedial servitudes are
concerned with 2 or more pieces of land, such servitudes are created in order to benefit one
piece of land known as the dominant tenement at the expense of another piece of land known
as servient tenement. According to Suverburg and S, praedial servitude confires a benefit on
the dominant tenement and imposes a corresponding burden on the servient tenement so that
one piece of land serves another.”
Accordingly the owner of the dominant tenement is
entitled to enforce the praedial servitude against the owner of the servient tenement.
However, it does not matter who these individuals are. This is because a praedial servitude runs
with the land. Thus changes of ownership will not destroy the legal relationship between the
two pieces of land.
Personal servitude on the other hand exists for the benefit of a particular person who has the
right to enjoy somebody else’s property. A personal servitude is, by definition a right that
cannot be transferred by the holder to someone else. However, the changes with regard to the
ownership of the land that must bear the burden of the personal servitude will not destroy the
servitude.
It is on this basis therefore possible level to regard personal
servitudes as creating limited real rights. Note that personal servitudes can exist in respect of
both movable and immovable property. This is not the position with praedial servitudes which
can only exists in respect of immovable property
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EXAMPLES OF PRAEDIAL SERVITUDES
These can be divided into 2 categories, namely urban and rural servitudes. The essential
distinction between the two is determined not by the property’s locality but by the purpose to
which it is put. Silverburg and Schuman note, “ Rural servitudes relate to tenement which is
used for agricultural purpose whereas an urban servitude relates to a tenement which is used
normally for a commercial land purposes.”
Examples of Rural Praedial servitudes
1. Rights of way, these may exist in order to facilitate travel across another person’s land either
by foot or by vehicle. On the other hand a right of way may also be granted in order to allow
cattle to be driven over land. Sometimes the cattle will also be allowed to graze as they cross
where this is so, the servitude is called a track path.
2. Ways of necessity, this servitude is not dependent for its existence on the agreement of the
owner of the servient tenement. It is usually claimed as a right by an owner of land whose
property is isolated by other land so that no direct or reasonable access to a public road exists
where this is the case, the owner of the hemmed in land will be obliged to travel over adjacent
land belonging to someone else in order to reach the road. Silverburg and S note, “The owner is
entitled to reasonable and sufficient access to a public road and if such right is granted, it is
extended to all other persons who wish to visit the owner of the land. However, it is important
to note that a way of necessity will not be granted simply in order to reduce the distance to a
public road that could be arrived at without having to travel over neighboring land.
Generally therefore a way of necessity may be claimed in circumstances where the property of
the neighboring land will not be unduly adversely affected. Usually, the right to pertain will
respect to access to the nearest public road. However, the interior land owner that is the one
land is not always entitled to make use of the shortest route to the road. Inevitably, the interest
of both parties must be taken into account. It is important to note that a person cannot claim a
way of necessity if his hemmed in position is entirely his own fault e.g. if an owner applies for
the closure of a public road to which he has access, he cannot then prejudice a neighbor by
seeking access over his land to some other road.
WATER SERVITUDES
Water servitudes are taken in that they give dominant tenement the right to use H2o for the
servient land in question. This may involve the installation of piping or furrows. H20 servitude
may also grant cattle from the dominant the right to drink water from the servient tenement.
GRAZING SERVITUDES
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As its name implies, the servitude is concerned with allowing cattle to graze on the servient
tenement. Silverburg and Schuman note, “If the number of cattle is fixed by the servitude, the
servient owner may subsequently grant others similar servitudes that in so doing so he does
not prejudice the first grantee in the exercise of his rights.”
Usually the person in whom the right vests will not be able to monopolize a specific grazing
area thus the servient owner will also entitled to use that grazing facility.
URBAN SERVITUDES
Examples of urban servitudes include a situation where servitude has been brought into
existence for express purpose of preventing the construction of certain types or sizes of
buildings on the servient tenement. The underlined purpose here is usually to prevent either
light or particular view from being obscured in respect of the dominant tenement.
5.6. Lease
The owner of certain land may decide not to live in it or to use it himself; on the contrary, he
may decide to lease either the land or a building on it to somebody else. The effect of the lease
is to give the lease the right to occupy and to use the land or building on it to somebody else.
The effect of the lease is to give the lease the right to occupy and to use the land or building in
question. A lease is a species of contract so that the use to which the land or building may be
put to will be determined by the terms of the contract. One of the most fundamental
characteristics of a lease is the payment of rent at specified intervals. There essentially two
types of leases namely the short leases and the long leases. Short leases are not leases are not
registered while long leases may be registered. In order to qualify as a long lease, the lease in
question must be designed to endure for a period of at least 10 years. Indeed a long lease may
in fact be intended to last for the life time of the lease. If a long lease is registered, a real right
will come into existence. Where this is the case, the lease will endure and continue even where
the owner i.e. the lessor sells or otherwise transfers the property in question. A lease of a part
of a registered piece of land may itself be registered only if a land surveyor’s diagram is
produced to define the exact part of the land that is intended to lease. If contract expires,
lessor has no right to chase off the leasee.
5.7. Mortgage
5.8. Lien
Essentially a lien is a right of retention which owes its existence to someone having pit money
or money’s worth into somebody else’s property. There are two main types of liens. In the first
place there are enrichment liens, which may be subdivided into improvement and salvage liens.
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The
second
types
of
liens
Enrichment liens are a species of real rights.
are
debtor
and
creditor
liens.
Improvement liens are concerned with useful expenses while salvage liens are characterized by
necessary or essential expenses.
Silverburg and Schuman note, “there are confined on a person irrespective of any prior
relationship between himself and the owner of the property”
Silverburg and Schuman note , “ the question on whether the person with the salvage lien will
arise if that person has protected another person’s property from loss or damage either as a
negotiorum gestor or in pursuance of a contract with the possessor or occupier of property
whom he had bona fide and reasonably believed to be the owner of the property or authorized
agent”
It is important to bear in mind that enrichment takes place both where the value of the
property is being enhanced and also where decline in its value has being prevented. Not all
improvements to a piece of property will support a claim to a lien. This is because the property
owner can not be forced to accept simply any enhancement of his property. Silverburg and
Schuman note” in deciding whether or not a claim to an improvement lien should be allowed,
his financial status, whether h intended to sell the property or keep it for personal use, the ease
or difficulty with which the improvement may be separated from the principal thing.
DEBTORS AND CREDITORS LIENS
These derive their existence from circumstances in which one person has put work into
someone else’s property or has provided some kind of service as a result of contract. However,
Silverburg and Schuman note, “debtor and creditor liens are not confined by virtue of contract
but by operation of law when money or money’s worth is put into the property of another in
consequence of a prior contract. They remain personal rights in so far as they are not available
against the owner expect where he was a party to the contract or against third parties acquiring
rights to the property in good faith.
The following are examples of debtors and creditors liens.
land surveyors, lawyers, Engineers etc may be able to claim a lien in respect of documents,
plans etc prepared belonging to guests as against the payment of money due to lodging etc.
Silverburg and Schuman note, “An artificier’s lien may be claimed by a person who has made,
manufactured or repaired goods for another person.” Builders will be able to claim liens over
structures elected by them in terms of contractual agreement.
General Principles regarding liens
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It is an essential prerequisite to the creation of a lien that the person is claiming the lien be in
possession of the property that is purpoted object of the lien
Alien will be dissolved where the lien holder loses possession of the property. In
general terms lien will not be revived automatically if the lien holder regains
possession of the property after having earlier having lost possession. However if the
dispossession has resulted from theft or the application of the illegal force, the lien
will be revived once possession has been restored. ion. It is important to bear in mind
that a lien is essentially a defensive mechanism in litigation. In other words, if the
owner of the property instates legal proceedings in order to facilitate the return of
the property it will be valid defence to such an action to establish the property is
being retained by virtue of a lien. Where security is paid by the debtor to court of law,
the lien will be extinguished. This stands to reason given that the object of a lien is to
provide a creditor with a form of security.
One of the
problems that arises in respective liens is the question of whether or not lien can be
claimed against the owner of the property where the purported lien holder is in
possession of the property as a results of the contractual arrangements with someone
other than the owner. This problem arose in the case of Brooklin House Furnishers Vs
Cnoetze and sons.1970 Vol no” 3 SA pg 264 Law Report.
A certain woman had purchased from Brooklin house furnishers in terms of a higher
purchase contract. The contract stipulated that if the woman for what ever reason
decided to store her property, it must be stored with Brooklin alone. Contrary to the
agreement, the woman decided to store the property with Cnoetze, the woman was
infact going into hospital. Cnoetze guienely believed that she was the owner of the
property. He was unaware of the high purchase agreement. When Brooklin eventually
decided to repossesses the property, Cnoetze purported to claim a lien over it,
Cnoetze argued that by looking after the furnisher he had incurred expense in
maintaining it and preventing a decline in its value. The court accepted the validity of
the lien, in this case a salvage lien. The court took the view that storage was necessary
to protect the property. Silver and Sh argue, “ Even the knowledge of the possessor
that he is contracting with the person other than the owner would not destroy a
salvage lien as long as the possessor is unable to obtain the owner’s instruction and
consent”
6. ENCROACHMENT
It is an obvious general principle that a person may only built on his own land.
Sometimes however, a person will elect a structure that protrudes onto a neighbour’s
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land. Where this happens without the consent of the affected neighbour, the latter
will have 3 remedies open to him. In the first place he may demand that structure be
demolished. This does not mean however, that the neighbour is himself entitled to
remove the structure. One cannot purport to take the law into one’s hands. In the
case of Smith Vs Bason 1979 (1) SA 559 the court noted , “ unlike plants that part of
the structure that is on the neighbour’s land is still an integral portion of the whole
which is not his property. It cannot simply be demolished. It is treated rather as a
trespass by the owner of the building giving rise logically to an action in law for the
removal of the encroachment”. According to Silver and Sh, “ the right to insist on the
removal for year or one day”. In this kind of situation the owner of the land
encroached upon will however remain entitled to sue for damages. If the owner of
the encroaching structure agrees to the encroachment but reserves his right to call for
the destruction of building at any time. This right will remain intact. It is important to
note that where a person has reserved his right to demand the removal of the
protruding structure, the courts have a discretionary power nevertheless to order that
damages to paid instead. However, they will only to do where this would be in the
interest of justice. Silver and Sh note, where the cost of removing an encroachment
will be excessive in comparison with any damage or inconvenience which the owner
of the encroached land might suffer the payment of damages will be permissible”.
Where this happens the court may also order that affected portion of the land be
transferred to owner of the encroaching land. However, where this happens the
person receiving the land must pay the cost of the transfere in addition of the value of
the property. Secondly a person whose land has been encroached may remove the
encroachoor i.e. the person who has erected the structure but if he does so must pay
an amount to the encroachor in recognition of the fact that the value of the land has
now be increased. Thirdly it is possible that the person whose land has been
encroached may actually demand that the encroachoor take possession of the
transfere of the property.
Trees and over hanging branches
If the trees planted at a boundary protrude onto a neighbour’s property or airspace
this will constitute encroachment. The encroachee is entitled himself to cut off the
protruding branches. However he is not entitled to keep the branches unless the
owner of the trees either agrees or fails to collect them. The position is similar with
regard to tree roots. Again these may be removed by the owner of the encroached
land without the need for any court order.
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7. LAND ACQUISITION
7.1. Introduction to the Land Acquisition Act No. 3 of 1992
Essentially the purpose of the land acquisition act is to give the President the power to acquire
land and other immovable property compulsorily. Circumstances, under which the president is
entitled to acquire land, are set out in the section 3 of the act.
NB: that other immovable property refers to buildings and other things attached to the land.
According to section 3 1(a) Any land may be acquired where the acquisition is reasonably
necessary in the interest of defense, public safety, public order, public morality, public health,
town and country planning. All the utilization of that or any other property for a purpose
beneficial to the public generally or to any section of the public. Note therefore that the
acquisition will be valid even if it doesn’t benefit the public as a whole. It suffices that any
section of the public will benefit.
Section 3:1(b) deals with the compulsory acquisition of any rural land. This may be acquired
where reasonably necessary for settlement for agricultural, forestry, environmental,
conservation or for the relocation of persons dispossessed as a result of their land being
acquired to follow one of these objectives. The president is also entitled to acquire any land
that has been declared derelict in terms of section 42 of the act.
NB: Both land and rural land are terms that have been defined in section 2 of the act. The word
land includes and incorporates rural land. The word land is defined as including anything
permanently attached to or growing on land and any interests or right in land. Rural land is
defined in a way that makes it clear that is refers to basically to commercial farming land. In fact
communal and municipal land are expressly excluded from the definition.
Note as well that the words acquiring authority usually refer to the president. When an
acquiring authority decides to acquire land on a compulsory basis, certain procedural
requirements have to be complied with first. In the first place a preliminary notice describing
the property and its extent must be published in the Government Gazette and in a newspaper
circulating in the area where the land situated. This preliminary notice must specify the
purposes for which the land is to be acquired. According to section 5:1(a) the notice must call
upon the owner or occupier or any other person having an interests or right in the land whose
wishes to contest the acquisition of the land, to launch a written objection with the acquiring
authority within 30 days from the date of the publication of the notice in the Government
gazette.
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Besides being published, this notice must also as far as it is reasonably possible be served on
the owner and other interested parties. Once the notice has been published a land owner is
prohibited from disposing of the land, constructing improvements on it or subdividing it
without the permission of the acquiring authority. The acquiring authority may also prohibit
other forms of activity on the land. A preliminary notice remains in force for a period of one
year or until it is either withdrawn or the land is acquired. Note that the registrar of deeds is
expressly forbidden to register any transfer of land in respect of which a preliminary notice is in
force. Note that according to section 5:8 it is a criminal offence to demolish or damage
structures on land that is subject to a preliminary notice. What happens where the acquiring
authority indicates that it is only interested in acquiring part of the land owner’s property. The
answer is that this is perfectly permissible though this must be stated on the notice. If the land
owner believes that the remaining land is insufficient for the purpose for which it was being
used prior to the preliminary notice being served, he can insist that the acquiring authority
acquire all the land. In other words the acquiring authority will be obliged to acquire the
remaining land as well.
According to section 7 of the act where an objection to a proposed acquisition has been lodged
the acquiring authority is to apply to the magistrate of court for an order authorizing or
confirming the acquisition as the case may be. The administrator of court will only grant such
an order if it is satisfied that the acquisition of such land is reasonably necessary on the grounds
set out in section 3:1(a) of the act.
Similarly it will only issue an order in respect of rural land where the acquisition meets the
criteria set out in section 3:1(b).
If the administrate of court decides not to grant the order applied for by the acquiring
authority, the latter must withdrawn the preliminary notice. If the land has already been
acquired then the acquiring authority must return it to the person from whom it was acquired.
Note that section 8 gives the acquiring authority the right to acquire the land 30 days after the
publication of the preliminary notice. Where this takes place, section 9 authorizes the acquiring
authority to evict the previous owner from the property. Where an acquiring authority has the
right to acquire land it may prior to doing so enter upon the land at all reasonable times in
order to investigate the suitability of the land for acquisition purposes.
7.2. Designation
What has been said so far concerns general principles that apply to all forms of acquisition of
land. However Part IV of the Act lays down special rules that apply when the acquiring authority
decides to acquire rural land through the process of designation. It must be made clear at the
24
outset that designation and acquisition are two different things. Designation occurs where the
Minister of Lands points out that land will be acquired. NB: Only rural land can be designated.
In other words it is a declaration of an intention to acquire but not acquisition itself. According
to section 12:2, the Minister when designating rural land must state the purpose for which it is
intended to acquire the rural land concerned. The name of the intended acquiring authority
and the period not exceeding 10 years within which it is intended to acquire the rural land.
Once the Minister has designated the rural land in question, he must publish a notice in the
government gazette describing the land and must take reasonable steps to inform the owner of
the land that his land has been designated. NB: the Minister may at any time invoke or amend
any designation of land. However such invocation or amendment may only be done with the
consent of the land owner. This is because the land owner acting on the assumption that his
land is to be acquired may well have made alternative plans and may be prejudiced if the land is
suddenly either designated or the period within which the Government can acquire it is
unilaterally extended.
According to section 13 of the Act, any land owner who objects to his land being designated
may make representations to the Minister setting out the reasons for his objection. The
Minister may investigate and may allow further representations to be made. The word may is
significant since it indicates that the Minister is not obliged to either investigate or entertain
further representations. He has discretion in the matter. Similarly with regard to deciding what
to do, when representations have been considered, to either uphold or revoke the designation.
Section 13:3 provides that the Minister’s decision in this regard shall be final. A land owner
whose land has been designated is not allowed to sell, lease or otherwise dispose of it without
the written permission of the Minister. Where a land owner applies for such permission, the
Minister may either grant or refuse it within 90 days after receipt of the application. However, if
the applicant can prove to the Minister that a valid agreement of sell was concluded before
designation, the Minister must allow sell to proceed. Where the Minister refuses to grant
permission to sell, lease or dispose of the land, Section14:4 provides that the land owner is
entitled to insist that the acquiring authority acquire the land. Where this is the case, the
acquiring authority shall forthwith take steps to acquire the land concerned. NB: designation by
itself does not affect the right of the land owner or anyone else with the right to use the land,
to use and occupy the land until actual acquisition takes place.
7.3. Acquisition
7.4. Compensation
According to section 16 of the Act, the acquiring authority shall pay fair compensation to the
owner of any rural land and any other person whose right or interest in the designated rural
land has been acquired.
Similarly fair compensation must be paid to persons whose land has been acquired otherwise
than by designation. In order to facilitate the subjectives, compensation committee has been
established in terms of section 13 of the Act. It consists of the secretary of the Ministry of Lands
25
who acts as Chairman, the director of Agriculture, Technical and Extension services, Chief
Government valuation officer and not more than three other persons appointed by the
Minister. According to section 17:3, the function of the committee is to determine the
compensation payable in respect of designated rural land. Thus the committee is not concerned
in determining the amount of compensation payable in respect of non-designated land.
With regard to the procedure used in assessing compensation in respect to designated rural
land. The 1st step is for evaluation officer, to prepare a preliminary estimate of the
compensation payable, this will involve investigating the land in question. The report must be
submitted to the compensation committee which must carry out its own investigations and
produce its own report. It will consider representations from interested parties, thereafter the
committee will fix amount of compensation to be paid. Note that the 1st schedule to the Act
sets out in some detail the principles to be followed in calculating compensation e.g. the size of
land, type of soil, the nature and condition of buildings on it etc.
The compensation paid to a land owner will not include the cost of evicting him from the land
where this is necessary. Note that according to section 19:3, “the Minister with the approval of
the Minister of Finance may from time to time give a compensation committee written
guidelines as to the fixing of compensation in respect of all or any types or classes of designated
rural land and the compensation committee shall fix the compensation in accordance with any
such guidelines. According to subsection 4, guidelines given by the minister according to
subsection 3, “may relate to the amount in compensation payable to any designated rural land
or to the principles to be applied in assessing such compensation provided that no such
guidelines shall be inconsistent with the principles prescribed in the Act”.
With regard to the form and manner in which compensation is to be paid in respect of
designated rural land, section 19 stipulates that at least half of the compensation shall be paid
at the time the designated rural land concerned is acquired or within reasonable time
thereafter. Half of the balance owing must be paid within 2 years of the acquisition while the
rest must be paid within 5 years of acquisition. Note that payment does not have to be in cash,
it can take the form of government bonds or share.
Compensation in respect of non-designated land is dealt with in section 20. The conditions of
compensation here are more generous with regard to land owners than is the case in
designated land situation. Subsection 1 makes it clear that where land other than designated
rural land is acquired, compensation is to be calculated on the basis of the loss of land and the
actual expense which has been incurred. Note that the amount of compensation awarded in
respect of designated rural land may not be challenged in the court. Section 23 makes it clear
that only the procedure used to arrive at the figure in question may be challenged in the
administrative court. The correct procedure provided for in the Act must be followed and the
court is entitled to order that the correct procedure be followed. This may or may lead to a
change in the amount arrived at. Where land other than designated rural land is acquired, the
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jurisdiction of the courts to determine the fairness or otherwise of the compensation in not
ousted (excluded).
In the case of Davies versus Minister of Lands 1994 (2) ZLR (Zimbabwe Law Reports) page 294,
the court had to determine whether sections 12-15 of the Act i.e. sections dealing with
designation were unconstitutional. The applicant’s farm had been designated in terms of
section 12:1 of the Act. He argued that section 11 and 16 of the constitution require the
payment of compensation whenever property or an interest or right in property is compulsorily
acquired. He argued that designation is an act that essentially involves the acquiring authority
in acquiring an interest or a right in the designated land in question. Therefore he argued
because the Land Acquisition Act only provides for compensation to be paid at the time of
formal acquisition and not when designation takes place. The relevant sections of the Act must
be ultravenus the constitution and therefore invalid. However the court rejected this argument.
Chidyausiku J. accepted that the state must pay compensation when property or interest or
right in it is acquired, but he noted that the state has the right to control or regulate the use of
private property under its jurisdiction in the public interest. He said “where the state exercises
its power reasonably and properly, no compensation is payable to the persons affected only if
the regulation of control goes so far that it amounts to acquisition will the state be obliged to
pay compensation”. He held that designation does not constitute the acquisition of an interest
in land. It is simply a control measure. Whether or not the land is designated, it is still liable to
be compulsorily acquired by the state in the public interest. The judge noted that, “the state
does not acquire a further right to acquire the land upon designation that it did not already
possess. The land owner loses nothing and the state gains nothing by the designation of land,
thus the owner of the land has no right to receive compensation from the state when his land is
designated”. However, the court agreed that if the Minister refuses to allow the owner of
designated rural land to sell, dispose or lease the land, control becomes acquisition. However
the Land Acquisition Act is still within the parameters of the Constitution because the Act
provides that in these circumstances that the land owner in question can insist that the
acquiring authority acquire the land there and then.
8. CONVEYANCING
Basically conveyancing is concerned with the transfere of the ownership of land. In order for
transfere to take place, it must be registered. Conveyancing as a career is concerned with the
preparation of deeds and documents for registration with filing in a deeds Registry’s Office. The
objective of registration is to protect the right that is registered. In effect it is noticed to the
world at large of such protection. In the events of disputes taking place the records are easily
ascertainable, there are two deeds Registrar’s offices in Zimbabwe, one in Harare and the other
in Bulawayo each of these serves its own area as defined in the schedule of the act i.e. the
deeds Registry’s Act. The chief Registry of Deeds is based in Harare. The Registry’s office holds
27
copies of all documents lodged. Duplicate copies remain with the conveyance himself. The
original is always filed with the deeds Registry’s office while the person acquiring ownership is
given a client’s copy. Documents have to be lodged with the deeds registry’s office within a
specified [period and stamp duty will be assessed. Teams of examiners at the deeds Office
examine exhaustively documents submitted to them for endorsement and errors. Sometimes
title deeds will be endorsed with a caveat, for instance a judgement in respect of the property
so that the property is subject to attachment by the deputy sheriff of the high court.
Only the person who attaches the property can remove the caviet on title deeds i.e. the deputy
sheriff.
8.1. Organising of Deeds registration
8.2. Provisions relating to documents
First of all the documents must be on strong while paper A4 size. There should be a 35mm
margin. On the first page of the document, the upper half must be left blank for endorsements
e.g. caviets, servitudes etc. No carbon copies must be submitted for filing unless the Registrar
of Deeds approves. Spaces between sentences are not allowed to be left blank, they must be
ruled through. There must be a catch word at the bottom of each page i.e. a word that links on
to next page. Documents must not be folded when submitted. Place and date of execution of
the document must be stated. Documents must be in English. If the transaction relates to a
company either as a transferor or transferee, the constitution of the company must be filed.
However there’s no need to file the memorandum and articles of association of the company
because these are already filed in the company’s office.
8.3. Duties and powers of registrar
Section 5 of the Act makes it clear that the registrar can only do what he is empowered to do by
the act.he has a duty to execute all documents referred to him provided only that the
documents referred to him provided only that the documents are not repugnant (invalid).
The Registrar has the power to hold court where a particular interpretation is disputed by the
conveyancer . it’s not the function of the Registrar to insists that new clauses must be inserted
in existing Deeds that have been accepted. The Registrar is in charge of examining all deeds
and documents submitted for execution and Registration purposes. When documents are
lodged, the Registrar is not interested in the financial arrangements. That is the responsibility of
the conveyancer, note that registration and utterstation takes place when the registrar signs
the deed.
8.4. Conveyances
8.5. Land registration
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State Land belongs to no one other than the state .the original title deed to a part of what was
state land given to an individual is known as a Deed of grant. It was previously unalienated land.
This must be surveyed and given a diagram which must be approved by the surveyor General. If
further subdivision takes place ,another survey must takes place, another survey must take
place, another survey must take and a new diagram must be produced. Where the subdivision
takes place, what is left is the remaining extent in terms of the original deed of grant. Where
the portion transferred is not on the deed of grant , it will be on what is known as the deed of
transfere because a new piece of land is transferred again, the new diagram is not necessary.
This will be known as the holding deed , Note that a holding deed and a diagram deed will be
same thing when the property becomes a separate entity for the first time. The holding deed is
the current deed i.e the deed under which property is currently held. Every subsequent deed
must refereto the earlier diagram deed. However it is not necessary to have diagrams of
subsequent transferes.
8.6. Power of Attorney
Persons are identified by means of their names and dates of birth. No assumed name or alias
(false name) may be added to any name registered at the deeds of the registry. A power of
arttoney must contain the full name and date of birth of persons mentioned in it except where
persons in the power of attorney appear in a representative capacity. Essentially a power of
arttoney authorises one person to act for and on behalf of somebody else namely the creator of
the power of arttoney. The conveyance will only be able to pass transfere on behalf of client
where the client authorities him to do so through a valid power of arttoney, indeed the
registrar of Deeds will not accept any submissions by a conveyance in the absence of such a
power of arttoney. A power of arttoney granting the power of arttoney, in other words persons
authorised by the power of arttoney to carry out the specific function specified in the power of
arttoney. The power of arttoney must be lodged with the deed’s office and it must be the
original copy. A certified copy will be filed by the conveyancer . the power of arttoney must
clearly and sufficiently state and describe the property it is concerned with. Each sheet of the
power of arttoney must initialled by the parties and testing witness. Any alterations must also
be initialled by all parties concerned. The description in the power of arttoney of the grantor
must follow that of the title deed. If there’s a change in marital status, it’s not necessary to
change the title deed provided an amendment is provided giving details of the previous name
etc.
8.7. Analysis of Deed of Transfer
(a) Preparation certificate
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All deeds of transfere must be prepared by a conveyance or other legal practitioner. Such a
certificate appears on the top right hand corner of the first page.
(b) The heading
This describes the nature of the deed in question. For our purpose this would be a deed of
transfere but other deeds will be deed of donation etc, it is important that the correct heading
be used.
(c) The preamble
This invariably begins with the words know all men whom it may concern’ or “ Be it hereby
made known” preamble would usually end with the words, “and the said appear or declared
that”. In the preamble a reference is made to the power of the attorney pointing the appearer.
The full names of the appearer must be given as well as the full name of the transferor. The
grantoor of the power of attorney is one and the same person as the transferor in the transfere
deed.
(d) The recital
This specifies the cause or reason for the transfere. It comes immediately after the preamble.
The recital must be worded concisely with an emphasis on clarity of meaning. If the validity of
the transfere is challenged in court, it will usually be because the wording used in the recital
was unclear clause is as follows, “------- declared that his constituent had truly and legally sold
on the seventh of October 1996, and he in his capacity -----“. Constituent is the person who
constituted to the creation of the power of attorney, transferor.
(e) Vesting Clause
This clause contains the full name and date of birth of the transferee. Companies have to be
described by name as in the company’s certificate of incorporation Abbreviations are not
permissible. An example of a vesting clause is as follows “----- deed by the presents, seed and
transfere in full and free property to and on behalf of James Moyo born 2nd January 1960. His
heirs, executors, administrators or assigns”
(f) The property Clause
This is a description of the property as it appears in the existing title deed. It describes the
land, the name of township or administrative district, the registered number of the land etc
(g) The Extending Clause
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This shows where the diagram deed is to be found. References made to the diagram deed and
to the transferoor’s title e.g. as will appear more fully on certain piece of land being certain
farm.
(h) The Diversting Clause
This is concerned with declaring the previous registered owner to be diversted of ownership
e.g. “ wherefore the appearor renouncing all the rights and title, the said transferor is entirely
dispossessed of and disentitled to property named and that by virtue of these presents the said
transferee, his heirs , executors, administrators or assigns now are and henceforth shall be
entitled thereto, state however reserving its rights”.
(i) The consideration Clause
this specifies the purchase price and or evaluation of the property accepted for transfere duty
purposes. E.g. “ and finally acknowledging the purchase price to be a sum of ($ 1 million)$1m.
(j) The execution clause
In this clause, the act the act of execution by the appear before the registrar is recorded. Both
the registrar and the appearor will sign at this point.
8.8. Documents to be lodged
(a) Title deed
If the client’s copy has been lost, the certified copy may be lodged instead at the deed’s
Registry Office. The conversion certificate may be needed where the title deed refers to feet
rather than metres.
(b) Existing bonds together with the concerns for their disposal, these have to be lodged in
order to establish that the bond holders have agreed to the transfere proceeding (c). The power
of the arttoney to make transfere. This is lodged for obvious reasons i.e. to justify the role of
the appearor. If the transaction is one of donation and not sale, two powers of arttoney must
be lodged, namely one to donate and another to accept. Rates clearance certificate:
(d)Rates clearance certificate
Rates and duties must be cleared, in order to show tat this has been done, it is necessary to
apply to the municipality for a rates clearance certificate. These certificates are valid for 3
months from the date of the issue of the certificate . rates are payable in respect of the
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property . because of this, it will not be necessary to get more than one certificate in respect of
multiple transferes.
(e) Declarations by seller and purchaser
These indicate the dates the property was sold and brought. They contain a description of the
seller and buyer and indicate how the purchase price was paid eg cash etc. These declarations
may also make a reference to any improvements done on a property. The registrar on receipt
of those declarations will then assess duty payable
(f) Necessary consents necessary in terms of the title of the property eg there may be
requirement that no transfere is to take place unless certain improvements are made on the
property. Where this is the case, transfer will not be able to proceed unless the consent of the
city council is obtained.
9. The Land Survey Act
Section 7 of the Act outlines the duty of the Surveyor General and this includes a number of
duties:
a) Supervising and controlling cadastral surveys
b) Obliged to keep and protect all survey records from May 1933 and all subsequent
records
c) Examine all general plans and diagrams and approve them if constructed accurately
d) The SG does have certain discretion in that he can sometimes pursue a policy of spot
checks rather than rigorously checking everything.
e) He is also charged with the task of deducting subdivisions of previously registered
housing land.
f) He also has to define the figure of any portion of land subject to a real right or lease.
g) The SG prepares and certifies copies of diagrams and other documents on request.
Where this occurs, a specified fee must be paid.
h) Where the Minister directs that certain survey must take place, the SG may carry this
out or alternatively delegate it to either another land surveyor in the SG’s office or to a
private firm of Surveyors.
i) The SG is in charge of preparing maps when instructed to do so by the Minister.
Section 12 of the Act deals with qualifications of Surveyors.
 The Surveyor must be at least 21 years old
 Surveyors must hold a degree in land survey from any recognized University in
Zimbabwe or specified foreign institutions.
 The SG is entitled to specify which institutions qualify.
 Prospective surveyors must have carried out prescribed practical work, i.e. a number of
various types of survey carried out under the supervision of a registered land surveyor.
 The surveyor must have passed trial survey set by the SG.
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
Candidates must also must have passed to the satisfaction of the SG, an examination of
the laws in force in Zimbabwe relating to survey registration and transfer in land.
Other SG duties
 Supervise and control all matters pertaining to aerial and space surveys conducted in
Zimbabwe
 Prepare list of official control points
There are regulations brought about by the Board, how instruments are tested, type and form
of beacons, system of measure, period of training land surveyor not more than 2 years.
Board consists of:
 2 surveyors appointed by the minister
 The SG
 2 other surveyors
No land surveyor shall supervise more than 2 land-surveyors-in-training
Section 20 – rectification of title deeds after determination of boundary disputes
Section 25 – subdivisions
DUTIES OF LAND SURVEYORS
-Basically land surveyors must perform surveys in a way that is conducive to accurate results.
Moreover surveys must be conducted in accordance with the provisions of the Act.
-Land surveyors are responsible and accountable to the Surveyor General for the correctness,
documents bearing the land surveyor’s signature.
-Land surveyors must deposit all records with the S.G. If the S.G instructs a land surveyor to
correct any error in excess of the prescribed limits, thus must be done.

Note that it is an offence to destroy or damage any beacon, trig beacon, bench mark
etc. However, if it is absolutely necessary application may be made for permission to the
S.G and where this is granted, the specified change is permissible. All diagrams and
general plans have to be prepared in line with the land survey regulations.

Note that for registration of land purposes, the only acceptable diagrams or general
plans are those approved by the S.G. The S.G may approve diagrams and general plans
where these have been signed by registered land surveyor. While it is certainly
permissible for a draughtsman to draw up such documents, the land surveyor must still
supervise the draughtsman and must sign the resulting documents. If a diagram of a
piece of land fails to accurately depict the land in question, a caviet or endorsement
may be imposed effectively stopping further registration of that land or even any
portion of it unless and until a new diagram has been prepared . Land surveyors are
given the power in terms of section 46 of the Act to enter any land in order to carry out
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cadastral work. As a matter of curtesy, land surveyors are usually advised to give notice
of intention to enter a person’s land for survey purposes but this is not a legal necessity.
10. The Surveyors Act
11. International Law and International Boundaries
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