The High Court has found that rural district councils lack the authority to sell community land. Additionally, the sale of land between a family trust and Buhera Rural District Council has been void.
The decision was made at a time when the government has often issued warnings to village chiefs who are also selling and distributing state land in peri-urban areas.
In violation of the Communal Land Act, the Rural District Councils Act, and the Traditional Leaders Act, certain local administrations are leasing and selling traditional, communal, and grazing lands.
A 40-hectare plot of land in Madzivanyika Village in Buhera, which included homesteads for more than 35 villagers on one area, grazing lands, and community fields, was at the center of the High Court case.
The Munda Family Trust had purchased the land to build a boarding school, and preparations were well on to evict the thirty-five households.
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The residents appealed the local government’s ruling to the High Court.
Judge Webster Chinamora ruled that the land sale was unlawful and void the contract between the council and the Munda Family Trust.
“A declaratory order is requested, and it is given hereby. The Munda Family Trust and the Buhera Rural District Council entered into an agreement on March 23, 2020, to sell 40 hectares of communal land in Madzivanyika Village, Chief Chitsunge Buhera. This agreement has been ruled unconstitutional and is now canceled, according to Justice Chinamora.
The Munda Family Trust and Mr. Pomerai Munda, the first and second respondents, are now ordered to refrain from evicting any of the people living on the 40 hectares of communal land.
The villagers claimed in their application for a declaratory order that the local government may only distribute land in accordance with customary norms pertaining to the distribution, possession, and use of communal land. They further claimed that communal land is vested in the President of Zimbabwe.
They further contended that a rural district council lacked the authority and jurisdiction to sell any section of common land.
Only permits for the use of common land may be granted by the rural district council, and those permits could only be granted with the approval of the minister.
In cases when such consent was granted, it was published in the Government Gazette as a Statutory Instrument. However, in this instance, no such authorization was ever granted, making the land’s disposal illegal.
According to Justice Chinamora’s ruling, it was evident that selling common land was prohibited. The judge concluded that the alleged sale agreement between the parties that had violated the law was invalid, using Section 9 of the Communal Land Act as support for her decision.
Importantly, the clause states that the Regional, Town and Country Planning Act’s rules and the Minister of Local Government and Public Works’ approval were required before common land could be alienated.
Further, Section 10 of the same Act mandates that the Minister release a Statutory Instrument outlining the land in question and the purpose for which it has been set aside in cases when communal land is set aside for a particular development purpose. According to Justice Chinamora, this wasn’t done in the Buhera case.
The land in dispute, according to the Munda Trust and the local government, was an empty lot in Gandiwa Village rather than Madzivanyika Village. Furthermore, the two sides contended that the construction of the school would not have a detrimental impact on the community’s standard of living.
Reiterating the same point, the local government maintained that the disputed area was unoccupied.
But the court made a finding that the land in question was in Madzivanyika Village and further observed that the inspection in the loco report indicated that there was some activity on the disputed land.
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