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LAND COMMISSION BILL 2016

H.B. 2, 2016.]

LAND COMMISSION BILL, 2016

ExpLanatory mEmorandum

This Bill seeks to provide for the Zimbabwe Land Commission referred to in section 296 of the Constitution and for matters pertinent thereto, including the allocation of rights in State Land for agricultural purposes, the registration of such rights, the creation and extinction of servitudes over State Land, the settlement of persons on  such land, the control of the subdivision and lease of land for farming or other purposes, and the limitation of the number and sizes of pieces of land that may be owned by any individual.  In that connection this Bill seeks the repeal of the Agricultural Land Settlement Act [Chapter 20:01] and the Rural Land Act [Chapter 20:18], and to amend the Land Acquisition Act [Chapter 20:18].

The individual clauses of the Bill are explained below:

Clause 1

This clause sets out the Bill’s short title.

Clause 2

This  clause    defines  terms    used      throughout         the        Bill.

Clause 3

This clause provides for the corporate status of the Commission.  It also crossreferences         the        First      and Second  Schedules,         the        first      of         which    provides            for        the        tenure   of         office    and conditions          of         service  of         the        members           of         the        Commission,      and       the procedure          to be followed by the Commission at its meetings; whilst the second one sets out the ancillary powers of the Commission to do the sorts of things that corporate bodies may at law do.

Clauses 4

This clause reiterates the Commission’s functions as  set out in section 297 of the Constitution.

Clause 5

Under this clause the appointment of an Executive Secretary of the Commission and employment of other staff members is set out as well as the engaging of consultants where necessary.

Clause 6

This clause provides for the independence and impartiality of the Commission and    its         members.                      It also       addresses           conflicts            of         interest  on         the        part       of         members           of         the Commission and its staff in the course of discharging their duties.

Clause 7

This clause provides for the provision of reports by the Commission to the Minister and the tabling of such reports by the Minister before Parliament.

Clause 8

This clause provides jurisdiction of the Commission to conduct comprehensive inspections and audits of agricultural land.

Clause 9

This clause sets out the jurisdiction of the Commission to conduct investigations whenever a person has a complaint regarding the supervision, administration and allocation of agricultural land or is affected by a dispute regarding agricultural land.

Clause 10

This clause sets out the procedure for lodging complaints with the Commission

Clause 11

This clause provides for the refusal by the Commission to investigate any complaint that        it          may      find      it is          constitutionally  not        authorised          to         investigate.

Clause 12

This clause sets out the manner in which the Commission may conduct investigations and audits.  Primarily such investigations will take the form of public or closed hearings.

Clause 13

This      clause    provides            for        the        avoidance          of         conflict of         interest  affecting members           of the Commission that may arise during audits or investigations by the Commission.

Clause 14

This clause sets out what happens once an audit or investigation by the Commission is concluded.

Clause 15

This clause interprets certain terms used only in Part IV of the Bill relating to the general administration of State Land).

Clause 16

This clause empowers the Minister to acquire land for the State by means of exchange, bequest or gift (this power existed under the Rural Land Act).

Clause 17

This clause provides for the lease or other alienation of State Land by the Minister after consultation with the Commission and with the approval of the President.

Clauses 18 to 20

These clauses provide for the prohibition of share cropping agreements except with the prior approval of the Minister (these provisions presently appear in the Rural Land Act and are sought to be carried over into this Bill).

Clause 21

This clause provides for the regulation making power of the Minister in relation to Part IV only.

Clause 22

This clause provides for the establishment of land settlement schemes by the Minister after consultation with the Commission.

Clause 23

This clause provides for the issuance of offer letters, leases, deeds of grant and permits by the Minister.

Clause 24

This clause sets out the procedure in regards to applications for leases of Gazetted or State land, which must be referred to the Commission for advice.

Clause 25

This clause sets out matters to be considered by the Commission when considering to recommend or not recommend to the Minister the issuance of leases over Gazetted or State land.

Clause 26

This clause empowers the Minister (following upon any recommendation by the Commission under clause 25) to issue leases over Gazetted or State land.

Clause 27

This clause provides for the authority vested in the President to retake any land alienated under this Bill.

Clause 28

This clause prohibits the cession, assignment, hypothecation or other alienation by any holder of an offer letter, lease or permit over State land, without the consent in writing of the Minister.

Clause 29

This clause carries over (in the Fourth Schedule) certain special provisions relating to leases with a purchase option that were issued to indigenous farmers under the Agricultural Land Settlement Act to be repealed by this Bill.

Clauses 30 to Clause 35

These clauses provide for the following matters: the control and occupation of agricultural land; the Minister’s authority to cause investigations to be conducted and to give orders to both lawful holders or occupiers and other occupiers of farms; the issuance of a notice of a proposal to make an order; and the variation or revocation or time extension of any such order.  These provisions are carried over from the Agricultural Land Settlement Act to be repealed by this Bill.

Clauses 36 and 37

These clauses deal with the appellate and dispute settlement functions of the

Commission, as well as the power to make regulations in relation thereto.  The procedure to be followed by the Commission for the settling of appeals or disputes is more fully set out in the Fifth Schedule to this Bill.

Clauses 38 to 42

Under these clauses the Register of Partially Alienated State Land Rights is established, which shall be administered by the Secretary of the Ministry responsible for this Bill in his or her capacity as the Registrar.   Every entry in the Register of a partially alienated           State     land      right     shall      be         deemed to         be         the        definitive           record of         such      right,    and       in the event of any inconsistency between such entry and any other record of such right kept in terms of this Act or otherwise, the entry in the Register shall prevail as proof of the partially alienated State land right or any particular thereof.

Clauses 43 to 52

Under these clauses the Ministry responsible for this Bill is enabled, through its designated    officers, to         create,   vary or         cancel   statutory            servitudes          over      or         in         favour   of         holdings of partially alienated State Land.  Clause 51 provides for the reference of disputes in connection with proposed statutory servitudes and the rights, privileges and obligations of interested parties at the hearing of such disputes before the Commission. Provision is made for the registration of statutory servitudes in the Registry of Partially Alienated State Land Rights and, where appropriate, in the Deeds Registry.

Clauses 53 to 55

These clauses provide for the funds, accounts, appointment of an internal auditor and audit of the accounts of the Commission by the Auditor-General.

Clauses 56 to Clause 63

These clauses are part of the general provisions of the Bill and deal with the following matters: rentals for State Land; the Minister’s authority to give the Commission policy directions; limited immunity against legal proceeding for the Commission or any member of the Commission, Executive Secretary or person acting under the direction of the Commission in pursuance of this Bill; the provincial, district and       other     offices   of         the        Commission;      entry     upon     land      (other than      dwelling            houses)  by  members of the  Commission or employees of the Commission authorised by the Commission, and the right of an appeal by any person aggrieved by any decision made by the Commission; the creation of an offence for false statements made in applications for partially alienated State land rights; and the regulatory powers of the Commission.

Clause 64

This clause repeals the Agricultural Land Settlement Act [Chapter 20:01] and the Rural Land Act [Chapter 20:18], and provides for transitional provisions relating to such repeals.

Clause 65

This clause provides for the transfer of certain employees from the Ministry responsible for the repealed Acts to the staff of the Commission.

Clause 66

This clause amends the Land Acquisition Act [Chapter 20:01] to allow the Secretary or authorised delegate to sit in at any meeting of the Derelict Land Board, provided written notice has been sent to the Chairperson of the said Board.

 

LAND COMMISSION BILL, 2016

___________

ARRANGEMENT OF SECTIONS

Part i

PRELIMINARY

 Section

  1. Short title.

                                                           Part II

ZIMBABWE LAND COMMISSION AND STAFF

  1. Corporate status of Commission, etc.
  2. Additional functions of Commission.
  3. Executive Secretary and other staff of Commission and consultants.
  4. Independence and impartiality of Commission, members of Commission, etc.
  5. Reports of Commission.

Part III

AUDITS AND INVESTIGATIONS BY COMMISSION

  1. Jurisdiction of Commission to conduct comprehensive inspections and audits of agricultural land.
  2. Jurisdiction of Commission to conduct investigations.
  3. Manner of making complaints.
  4. Refusal to investigate.
  5. Manner of conducting investigations and audits.
  6. Conflicts of
  7. Proceedings after audit or investigation.

Part IV

POWERS OF MINISTER IN RELATION TO STATE LAND GENERALLY

  1. Interpretation in Part IV.
  2. Acquisition of land otherwise than by means of Cap. 20:10.
  3. Lease or other alienation of State Land.
  4. No share-cropping without agreement approved by Minister.
  5. Penalty for contravention of section 18.
  6. Exercise of duties pursuant to sections 17 and 18.
  7. Regulations under Part IV.

Part V

LAND SETTLEMENT

  1. Minister may make provisions for land settlement, etc..
  2. Minister may issue offer letters, leases, deeds of grant and permits.

 Section

 

  1. Applications for leases to be referred to Commission.
  2. Matters to be considered by Commission.
  3. Issue of lease.
  4. President may retake for public purposes.
  5. Prohibition of cession, etc.
  6. Special provisions relating to leases with a purchase option.

Part VI

CONTROL AND OCCUPATION OF AGRICULTURAL LAND

  1. Interpretation in Part VI.
  2. Minister may require Commission to carry out investigations.
  3. Minister may give orders to lawful holders or occupiers of farms.
  4. Minister may give orders to other occupiers of farms.
  5. Minister to give notice of proposal to make order.
  6. Minister may revoke or vary order or extend time for compliance there with.

Part VII

APPELLATE AND DISPUTE SETTLEMENT FUNCTIONS OF COMMISSION

  1. Appellate and dispute settlement functions of Commission.
  2. Regulations relating to appellate and dispute settlement functions of Commission and amendment of Fifth Schedule.

Part VIII

REGISTER OF PARTIALLY ALIENATED LAND RIGHTS

  1. Interpretation in Part VIII.
  2. Registrar of Partially Alienated State Land Rights.
  3. Register of Partially Alienated State Land Rights.
  4. Registration of partially alienated State land rights.
  5. Entries in Register to be conclusive proof of partially alienated State land right.

Part IX

STATUTORY SERVITUDES IN RELATION TO PARTIALLY ALIENATED

STATE LAND

  1. Interpretation in Part IX.
  2. Application of Part IX.
  3. Powers of         designated         officers in         regard   to         creation,            variation            and      cancelation        of           statutory servitudes.
  4. Method of creating, varying or cancelling statutory servitudes.
  5. Reference of disputes in connection with proposed statutory servitudes and rights, privileges and obligations of interested parties at hearings.
  6. Powers of Commission in regard to disputes in connection with proposed statutory
  7. Rights of lawful holders or occupiers subject statutory or other servitudes of passage, rights or way, storage, etc..
  8. Registration of statutory servitudes in Deeds Registry.
  9. Disputes in connection with statutory servitudes.

 Section  

  1. Registration of certain pre-existing servitudes or agreements for servitudes concluded before commencement of this Act.

Part X FINANCIAL PROVISIONS

  1. Funds of Commission.
  2. Accounts of Commission and appointment of internal auditor.
  3. Audit of Accounts.

Part XI

GENERAL

  1. Rentals payable by holders of partially alienated State land.
  2. Minister may give policy directions to Commission, etc.
  3. Provincial, district  and       other     offices   of
  4. Entry upon land.
  5. False statements in land applications.
  6. Repeal of Cap. 20:01 and Cap. 20:18; savings and transitional provisions.
  7. Transfer of certain employees from Ministry to Commission.
  8. Amendment of Cap. 20:10.

FIRST SCHEDULE: Provisions Relating to Commission.

SECOND SCHEDULE: Ancillary Powers of Commission.

THIRD SCHEDULE: Matters in Regard to which Minister Shall Give

Consideration.

FOURTH SCHEDULE: Provisions Applicable to Leases with Option to Purchase.

FIFTH SCHEDULE: Rules Relating to Appeals and Determination of Disputes by Commission.

 

 

Land Commission

 

 

 

 

5                                                                         BILL

AN ACT to provide for the Zimbabwe Land Commission established by section 296 of the Constitution; to provide for the acquisition of State land and the disposal of State land; to provide for the settlement of persons on, and the alienation of,

10 agricultural land; to provide for the control of the subdivision and lease of land for farming or other purposes; to provide for limiting of the number of pieces of land that may be owned by any person and the sizes of such land; to repeal the Agricultural Land Settlement Act [Chapter 20:01] and the Rural Land Act

[Chapter 20:18]; to amend the Land Acquisition Act [Chapter 20:10]; and to 15 provide for matters connected with or incidental to the foregoing.

WHEREAS sections 296 and 297 of the Constitution provide as follows:—

296 Establishment and composition of Zimbabwe Land Commission

 (1) There is a commission to be known as Zimbabwe Land Commission consisting of—

20                    (a) a chairperson and deputy chairperson;  and

 (b) a minimum of two and a maximum of seven other members appointed by the President.

 

   (2) Members of the Zimbabwe Land Commission must—     (a) be chosen for their integrity and competence in, and knowledge

25 and understanding of, the best practices in land management and  administration;  and

                   (b)   reflect   the        diversity            of         Zimbabwe’s       population,        in         particular       its         regional interests and gender balance.

H.B. 2, 2016.]

(3)        Section  237       applies  in         relation to         the        removal from      office    of         members of         the Zimbabwe Land Commission as if it were an independent Commission established by Chapter 12.

297 Functions of Zimbabwe Land Commission

            (1) The Zimbabwe Land Commission has the following functions—   5  (a) to ensure accountability, fairness and transparency in the administration  of agricultural land that is vested in the State;     (b) to conduct periodical audits of agricultural land;           (c)        to make recommendations to the Government regarding—  (i) the acquisition of private land for public purposes; 10  (ii) equitable access to and holding and occupation of agricultural land, in particular

                                      A. the elimination of all forms of unfair discrimination, particularly

gender discrimination; 15

  1. the enforcement of any law restricting the amount of agricultural land that may be held by any person or household;

            (iii) land usage and the size of agricultural land holdings;   (iv)       the        simplification     of         the acquisition         and       transfer of         rights    in         land;     (v) systems of land tenure;  and  (vi) fair compensation payable under any law for agricultural land and 20 improvements that have been compulsorily acquired;          (vii) allocations and alienations of agricultural land;

 (d) to investigate and determine complaints and disputes regarding the supervision, administration and allocation of agricultural land.

  • The Zimbabwe Land Commission, with the approval of the Minister responsible 25

for land, may make regulations for any of the purposes set out in subsection (1).

  • The Zimbabwe Land Commission must exercise its functions in accordance with any general written policy directives which the Minister responsible for land may give it.
  • In discharging its functions, the Zimbabwe Land Commission must be guided 30 by the principles set out in section 289.

 (5) The State and all institutions and agencies of government at every level, through legislative and other measures, must assist the Zimbabwe Land Commission in carrying out its functions and must protect its independence, impartiality, integrity and effectiveness.           35  (6) The Government must make adequate and suitable provision, through legislation and other appropriate means, to ensure that—  (a)          the        Zimbabwe          Land     Commission is          able      to         exercise its         functions           efficiently          and independently;  and  (b) persons employed by the Zimbabwe Land Commission carry out their          40

duties conscientiously, fairly and impartially.

AND WHEREAS it is desirable to make further provision for the Zimbabwe Land

Commission and for persons employed in connection with that Commission;

AND WHEREAS, in terms of section 292 of the Constitution, it is provided that The

 State must take appropriate measures, including legislative measures, to give security of tenure to every person lawfully owning or occupying agricultural land:

NOW, THEREFORE, be it enacted by the Parliament and the President of Zimbabwe

5                    as follows:—

                                                      PART I

prELiminary

 1 Short title

This Act may be cited as the Land Commission Act [Chapter 20:29].

10          2 Interpretation

In this Act—

“A1 farm” means a farm held under a permit allocated under the Model A1 scheme (villagised, and three-tier land-use plans with minimum plots of three hectares) described in the Land Reform and Resettlement

15                                Programme and Implementation Plan (Phase 2), published in April, 2001

(as re-issued and amended from time to time);

“A2 farm” means a farm held under a ninety-nine year lease allocated under the Model A2 scheme (the Commercial Farm Settlement Scheme, not exceeding the maximum farm sizes prescribed under Statutory Instrument

20 419 of 1999 or any other law substituted for the same) described in the Land Reform and Resettlement Programme and Implementation Plan (Phase 2), published in April, 2001 (as re-issued and amended from time to time);

“acquiring authority” means the President or person or authority compulsorily

25 taking possession of or acquiring the property or any interest or right therein in terms of the Constitution or Land Acquisition Act [Chapter 20:10];

“agricultural land” has the same meaning as provided in section 72 of the Constitution and, unless the context otherwise requires, refers to agricultural land that is State land;

30                  “alienate”, in relation to agricultural land that is State land, includes to issue a

ninety-nine year lease, lease with a purchase option, permit, offer letter or deed of grant to a person;

“Commission” means the Zimbabwe Land Commission established by section 296 of the Constitution;

35 “deed of grant” means the deed by which the transfer of ownership of unalienated State land is evidenced in terms of section 16(1)(b) of the Deeds Registries Act [Chapter 20:05];

“farm” means any area of agricultural land which is not within—

(a) parks and wild life land or forest land;  or

40                                                        (b) a municipal   area,     town     area      or         local     government       area      as            defined  in         the Urban Councils Act [Chapter 29:15];  or

(c) a town ward of a rural district council or an area that has been declared     a           specified            area      in           terms    of         the        Rural    District  Councils            Act       [Chapter 29:13];  or

45    (d)                                                                  the    area      of         any       township           as         defined  in       the                                                                Land   Survey  Act       [Chapter

20:12];  or

(e) State land the layout of which has been approved in terms of—

(i)     section 127 of the Town and Country Planning Act [Chapter

213 of 1974];  or

(ii) section 43 of the Regional, Town and Country Planning Act

[Chapter 20:12];                                                                      5

“piece of land” means a piece of land registered as a separate entity in the

Deeds Registry;

“farmer” means the owner or lessee of, or permit-holder or holder of an offer

letter in relation to, a farm;

“Gazetted land” means agricultural land acquired pursuant to the land reform       10

programme under section 72(2) of the Constitution or referred to in section

72(4) of the Constitution;

“holder” in relation to an offer letter, means the holder of an offer letter who

has indicated that he or she has accepted the offer of a farm described in

the letter but who is not yet a party to a ninety-nine year lease;                    15

“household” consists of spouses living together as husband and wife and their

dependant children or other dependants whom they are lawfully required

to maintain;

“indigenous person” has the same meaning as in the Indigenisation and

Economic Empowerment Act [Chapter14:33] (No. 14 of 2007);                  20

“land” includes anything permanently attached to or growing on land;

“lease” means a ninety-nine year lease or lease with a purchase option or other

lease of agricultural land, and “lease” shall be construed accordingly;

“lease with a purchase option” means a lease of a holding issued by the State in

terms of the repealed Agricultural Land Settlement Act to an indigenous       25

person, that contains an option to purchase the holding to which it relates,

and includes the tenure of a holding after the right to purchase the holding

has been exercised and until title has been issued in respect thereof;

“member”, in relation to the Commission, means a member of the Commission;

“Minister” means the Minister of Lands and Rural Resettlement or any other        30

Minister to whom the President may, from time to time, assign the

administration of this Act, and “Ministry” shall be construed accordingly;

“ninety-nine year lease” means a lease of any portion of Gazetted land, and

relating in particular to that category of resettlement land allocated under

the A2 Model Scheme described in the Land Reform and Resettlement        35

Programme and Implementation Plan (Phase 2), published in April, 2001

(as re-issued and amended from time to time);

“Natural Region”          means   a           Natural  Region  specified            in    section                                                            3         of         the        Rural

Land (Farm Sizes) Regulations, 1999, published in Statutory Instrument

419 of 1999, or any other law that may be substituted for those regulations;     40

“offer letter” means a letter issued by the Minister that offers to allocate an A2

farm to the person to whom the letter is addressed;

“partially alienated State land right” means—

  • a ninety-nine year lease or other lease of agricultural land; or
  • a lease with a purchase option; or     45
  • a permit; or
  • an offer letter;

and includes any right incidental to or connected with any of the foregoing rights (such as  a statutory servitude created in terms of Part IX), and the expression “holder of partially alienated State land” shall be construed accordingly;

5 “permit” means a permit to hold any portion of Gazetted land and relating in particular to that category of resettlement land allocated under the A1 Model Scheme described in the Land Reform and Resettlement

Programme and Implementation Plan (Phase 2), published in April, 2001 (as re-issued and amended from time to time);

10 “province” means an area of Zimbabwe declared as such in terms of the Provincial Councils and Administration Act [Chapter 29:11];

“principal         officer”, in         relation to—

 

(a) a public authority which is a Government Ministry or department or a statutory body, means the head of the Ministry or department in
15

20

question, or the chairperson of the governing body or chief executive officer     of         the        statutory            body     in     question,           by         whatever           title       he         or     she        may be called;

(b) a company, other corporate body or unregistered association, means the chairperson or any member of the board or other governing body of the company, corporate body or unregistered association;

“public       authority”,         in         relation to         an         authority           or         official     against  whom   or         which    any complaint has been made in terms of section 10, means any person, body, organ, agency or institution belonging to or controlled or employed by the State, a local authority or statutory body;

25                 “quarter” means a period of three months ending on the 31st March, 30th June,

30th September and 31st December in each year;

“Register” and “Registrar” bear the meanings given in section 38(1);

“repealed Agricultural Land Settlement Act” means the Agricultural Land Settlement Act [Chapter 20:01] repealed by section 64;

30                  “rental” means a rental payable in terms of section 56;

“statutory servitude” means a servitude created in terms of Part IX;

“this Act” includes, where applicable, the provisions of any lease or permit issued or deemed to have been issued under this Act.

PART II

35                                                           ZimbabwE Land Commission and staff

 3 Corporate status of Commission, etc.

(1) The Zimbabwe Land Commission shall be a body corporate capable of suing and being sued in its corporate name and, subject to this Act, of performing all acts that bodies corporate may by law perform.

40        (2)         The       First      Schedule           applies  to         the        tenure   of         office    and       conditions  of         service  of the Commissioners as well as to the procedure to be followed by the Commission at its meetings.

(3) The Second Schedule sets out the ancillary powers of the Commission.

 4 Exercise of functions of Commission

45                       (1) For the avoidance of doubt it is declared that, conformably to section 297(3) of the Constitution, the Commission exercises its functions (apart from its dispute settlement function) subject to any policy directives which the Minister may give it.

(2) The Commission shall do such other things, not inconsistent with the Constitution or this Act, as may be required by the Minister.

              5 Executive Secretary and other staff of Commission and consultants           5

 

           (1)  The Commission shall—

  • appoint an Executive Secretary; and
  • employ such other staff as may be necessary for the proper exercise of its functions, and engage consultants where necessary:

 

Provided that the Commission shall consult the Minister and the       10

Minister responsible for Finance on the extent to which additional public moneys may be required for this purpose.

 

  • In order for a person to be appointed as Executive Secretary of the Commission, he or she must have knowledge and understanding of, or be professionally qualified            in,        the        principles          pertaining          to         the       best       practices            in         land      management      and       15
  • The offices of         the        Executive          Secretary           and       other     members           of         staff      shall       be         public   offices   but        not        form     part       of         the        Civil
  • The Executive Secretary shall, subject to the general control of the

Commission—                                                                                                          20

  • be responsible for carrying out the decisions of the Commission and

the day-to-day administration and management of the affairs, staff and

                   property of the Commission;  and

  • be the custodian of the Commission’s records; and
  • attend all meetings of the Commission, but shall have no vote on any 25 matter before the Commission;  and
  • perform such other functions as may be assigned by the Commission.

 6 Independence and impartiality of Commission, members of  Commission, etc.

  • A member of the Commission or a member of staff of the Commission shall 30 serve impartially and independently and in particular exercise or perform his or her functions in terms of Part III in good faith and without fear, favour, bias or prejudice and subject only to the Constitution, this Act and the law.
  • No person, body, organ, agency or institution shall interfere with, hinder or obstruct the Commission, its members or any member of staff of the Commission, 35 in the exercise or performance of its, his or her functions pursuant to Part III.
  • Every person, body, organ, agency or institution, belonging to or employed by the State, shall afford the Commission such assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission.
  • No member of the Commission or member of the staff of the Commission shall 40

conduct an investigation or render assistance with regard thereto in respect of a matter in which he or she has any pecuniary or any other interest which might preclude him or her from exercising or performing his or her functions in a fair, unbiased and proper manner.

  • If a member of the Commission or member of the staff of the Commission fails to disclose an interest contemplated in subsection (4) and conducts or renders 45 assistance with regard to an investigation while having an interest so contemplated in

 

the matter being investigated, the Commission may take such steps as it deems necessary to ensure a fair, unbiased and proper investigation.

 7 Reports of Commission

  • The Commission       shall      no         later      than      sixty     days      after      the        end       of         each         financial            year submit to the Minister an annual report on its operations and activities during the preceding       financial
  • In addition, the Commission—

 

(a)         shall submit to the Minister any other report, and provide him or her

with any other information, that he or she may require in regard to the

10                              operations and activities of the Commission;  and

(b) may submit to the Minister any other report that it considers desirable.

(3)  The Minister shall table before Parliament any report submitted to him or her by the Commission under subsections (1) and (2), no later than the thirtieth sitting day of whichever House of Parliament sits first after he or she has received such report.

15                                                                                  pART III

Audits And investigAtions by Commission

 8 Jurisdiction of Commission to conduct comprehensive inspections and audits of agricultural land

  • Subject to subsection (2), the Commission shall, on its own initiative, on 20 not less than fourteen days’ written notice to the Minister, undertake—
(a) comprehensive inspections of agricultural land, whether nationwide or incrementally and rotationally by province, not more frequently than twice in any calendar year, in connection with any or all of the matters upon which it may make recommendations to the Government in terms
25

30

(b) of section 297(1)(c) of the Constitution, or for any purpose related to its functions;  and comprehensive audits of agricultural land¸ whether nationwide or incrementally and rotationally by province, not more frequently than once in    any       continuous         period   of            five       years,    in         connection         with      any       or            all         of         the        matters upon which it may make recommendations to the Government in terms of section 297(1)(c) of the Constitution, or for any purpose related to its functions.
  • The Minister may, on not less than fourteen days’ written notice to the

Commission, direct the Commission to undertake an additional or extraordinary

35 comprehensive inspection or audit of agricultural land¸ whether nationwide or incrementally and rotationally by province.

 9 Jurisdiction of Commission to conduct investigations

  • Any person having a complaint or affected by a dispute regarding the supervision, administration and allocation of agricultural land may make a written 40 complaint to the Commission requesting it to investigate such complaint or dispute.
  • When a person by whom a complaint might have been made under this section has died or is for any reason unable to act for himself or herself, the complaint may be made by his or her legal representative or a member of his or her family or such other person as the Commission considers suitable to represent 45 him or her.
  • The Commission shall not investigate a complaint or dispute—
  • unless the complaint is made within three years from the date on which the cause     of         the        complaint     or         dispute  first      arose     or         came     to         the        notice    of         the complainant or disputant;  or
  • where the action or omission to which the complaint or dispute relates—
    • is the subject-matter of civil proceedings before any court of competent jurisdiction; or
    • involves relations or dealings between the Government and a foreign Government.

                 10 Manner of making complaints                                                                      10

  • The Commission shall, in regulations prescribe the general manner in which complaints to it should be made, including the particulars required to be completed in a form     specified            by         the        Commission            in         those
  • The Commission may require a complaint to be supported by such evidence and documentation as it may prescribe or in any particular case ask for. 15
  • The Commission shall not refuse to investigate a complaint solely on the grounds that the complaint is not in proper form or not in compliance with the prescribed requirements or that it is not accompanied by the required documentation.

11 Refusal to investigate

  • The Commission       shall      refuse    to         investigate         any       complaint          if          it          is            satisfied 20 that it is not authorised in terms of the Constitution or this Act to carry out such investigation.
  • The Commission       shall      discontinue        any       investigation      if          it          is          satisfied by            the evidence received that it is not authorised in terms of the Constitution or this Act

to continue the investigation.                                                                                     25

  • If the Commission refuses to investigate a complaint or discontinues an investigation it shall, in writing—
  • inform the complainant and any party complained against of its decision, stating its reasons for the decision; and
  • if appropriate, advise the complainant of any other remedy that appears 30 to it to be available to him or her.

12 Manner of conducting investigations and audits

(1) Subject to subsection (6) (concerning non-disclosure of certain evidence) the Commission may in its discretion conduct an investigation or audit in the form of a public or closed hearing, for which purpose the Commission shall have the following 35 powers—

  • to issue summons to any individual, or to the principal officer of any public authority, company, corporate body or unregistered association, to attend before the Commission and to produce any document or record relevant to any investigation or audit by the 40 Commission;  and
  • to put        any       questions           to         the        individual,         or         to         the        principal     officer   of         any       public authority, company, corporate body or unregistered association, which the Commission considers will assist its investigation of the

complaint or the audit in question;  and                                           45

  • to require any person questioned by it to answer such questions and to disclose any information within such person’s knowledge which the Commission considers relevant to any investigation or audit by it; and (d) to request the assistance of the police during an investigation or audit.
    • In conducting a hearing the Commission shall not be bound by the common law rules of evidence, and it may ascertain any relevant fact by any means which it thinks fit         and       which    is          not        unfair    or unjust    to         any
    • The Commission shall afford any individual, or         the        principal            officer   of         any public authority, company, corporate body or unregistered association, who is alleged

10 to be responsible for any act or omission giving rise to the complaint or dispute subject to the investigation, an adequate opportunity to respond to such allegations.

 

  • Any person appearing before the Commission may be represented by a legal practitioner.
  • Information obtained by the Commission or any member of its staff at a 15 closed hearing shall not be disclosed to any person except—
  • without disclosing the identity of any person who gave the information in confidence,        for        the           purposes            of         the        investigation      and       for        any       report    to         be made thereon;  or
  • for the purposes of any proceedings for perjury alleged to have been 20 committed in the course of an investigation.
  • The Minister may, at any stage during the investigation of a complaint by the Commission, produce to the        Commission       a           certificate          in         writing  signed   by         him       or         her        to the effect that the disclosure of any evidence or documentation or class of evidence or     documentation   specified in         the        certificate          is,         in         his        or         her        opinion, contrary to         the

25 public interest on the grounds that it may prejudice the defence, external relations, internal security or economic interests of the State, whereupon the Commission shall make arrangements for evidence relating to that matter to be heard in camera at a closed hearing and shall take such other action as may be necessary or expedient to prevent the disclosure of that matter.

30       (7)                                                Upon   receipt   of         a           certificate          in         terms    of subsection (6)—

(a) the Commission or any member of the staff of the Commission shall not communicate any such evidence or documentation to any other person for any purpose, unless the Minister allows the Commission to do so, subject to such         conditions          as         he         or         she        may      fix;                   and

35                         (b) an aggrieved person may, in accordance with the Administrative Justice

Act [Chapter 10:28] (No.      24         of         2004),   appeal   against  such      certificate,         and      the court hearing the appeal shall treat any evidence or documentation subject           to         the      certificate          in         the        manner  specified            in         section  8          (“Discretion

 

to refuse or to restrict supply of reasons”) of the Administrative Justice

40                                     Act [Chapter 10:28] (No. 24 of 2004).

(8) Any person who—

  • has been summoned by the Commission to give evidence or to produce any documentation for the purposes of an investigation and who fails to attend or to remain in attendance until excused by the Commission from 45                         further  attendance,        or         refuses  without sufficient           cause,    the        onus      of         proof           whereof lies upon him or her, to be sworn as a witness or to answer fully and satisfactorily a question lawfully put to him or her, or to produce the evidence or documentation requested;  or
  • gives false evidence to the Commissioners, knowing such evidence to be false or not knowing or believing it to be true;

shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

  • For the avoidance of doubt it is declared that the law relating to the competence or compellability of any person on the grounds of privilege to give evidence, answer any questions or produce any book or document before the Commission, shall apply.
  • Any member of the Commission or member of staff who without being authorised to do so by the Commission, discloses any information, evidence or 10 documentation referred to in subsection (5) or (6), or makes any use of such information for his        or         her        benefit, shall      be         guilty    of         an         offence  and       liable    to            a           fine       not        exceeding          level twelve or to imprisonment for a period not exceeding two years or to both such fine and       such

                 13 Conflicts of interest                                                                                       15

  • No member shall participate in an audit or investigation or have a vote on any question before the Commission, whether or not involving any audit or investigation, in which the member is aware that he or she has direct or indirect interest that may conflict with his        or         her        functions           as         a
  • A member who contravenes subsection (1) shall be guilty of an offence and 20 liable to         a           fine            not        exceeding          level     six        or         to         imprisonment     for        a           period   not            exceeding          one       year      or         to         both      such      fine       and       such

14 Proceedings after audit or investigation

(1)  If, after conducting an audit or  investigation, the Commission is of the opinion that the action or omission which was the subject-matter of the audit or 25 investigation constitutes grounds for a criminal prosecution or delictual action,  or involves any sanctionable breach of a constitutional right or statutory duty, and that—

  • the action or omission relates to any decision or practice on the part of

any public authority which needs to be abolished, cancelled, reversed,

varied or altered;  or                                                                     30

  • the issue giving rise to the complaint should be given further consideration by the public authority against whom or which the complaint was made; or
  • the action or         omission            should   be         rectified;                       or
  • any law on which the act or omission was based should be reconsidered; 35 or
  • reasons should have been given for any decision complained against; or
  • any other steps should be taken in relation to the action or omission complained against;

the Commission shall report its opinion, together with its reasons, to the public authority 40

or person against whom the complaint was made and may make such recommendations as it thinks fit and shall also send a copy of its report and recommendations to the Minister.

  • In particular, the Commission may, where it considers it necessary,

recommend—    45          (a)        specific remedial            measures           in         favour   of         a           person aggrieved          by                     an         action    or omission giving rise to the complaint or dispute;  or  (b) that the complainant seek redress in a court of law.

  • The Commission may request the authority or person in relation to whom or which    it          made     any        recommendation to         notify    it,         within   a           specified            time,     of         the        steps,        if any, that it proposes to take to give effect to its recommendation.
  • If, within a reasonable time after a report is made in terms of subsection (1), no action is taken which, in the opinion of the Commission, is adequate and appropriate, the Commission may, if it thinks fit         after      considering        the        comments,         if          any,      made     by

10          or on behalf of any authority or person affected, submit a special report on the case to the Minister for the Minister to present to the President and lay before Parliament.

PART IV

Powers of APProPriAte minister in relAtion to stAte lAnd generAlly

15 Interpretation in Part IV

15                   In this Part—

“appropriate Minister” means the Minister responsible for the State land in question;

“property” means any land which is described as a single piece of land in any deed           of         grant,       transfer or         other     certificate          of         title       registered          in         the        Deeds

20                                     Registry;

“share-cropping” means any right to depasture livestock on any portion of a property or cultivate any portion of a property granted in return for a share in the crops grown or livestock depastured, or under an obligation to sell all or part of such crops or livestock to the owner of the property,

25 but does not include such agreements or arrangements in the nature of share-cropping as may be prescribed;

“State land” means all State land to which this Act applies, but does not include any land held by a statutory corporation or other entity wholly owned by the State.

30             16 Acquisition of land otherwise than by means of Cap. 20:10

(1)  In addition or alternatively to the acquisition of land by the use of the Land Acquisition Act [Chapter 20:10], the Minister may—

(a)   with the approval of the President, by way of exchange for State Land; or

35          (b) by means of the acceptance of gifts or bequests; acquire land on behalf of the State.

(2) Subject to this section, the appropriate Minister shall direct the Registrar of Deeds to cancel the title deeds of any land acquired in terms of subsection (1) and the Registrar of Deeds shall comply with such direction.

40                       (3) Before a direction in terms of subsection (2) is given—

(a)    the Minister shall—

  • give notice, in terms of subsection (4), of his or her intention to direct the Registrar of Deeds to cancel the title deeds of the land concerned; and
  • consider every objection lodged in accordance with the notice given in terms of subsection (4);

(b) every servitude or other encumbrance registered over the land concerned shall be extinguished.

  • A notice referred to in subsection (3)(a) shall—
  • be published in the Gazette and in a newspaper circulating in the district where the land concerned is situated, once a week for three consecutive weeks; and
  • state that the appropriate Minister proposes to direct the Registrar of

Deeds to cancel the title deeds of the land concerned;  and                10

  • state the name, if any, of the land concerned, the district in which the land

is situated, the name of the registered owner of the land and the number, if any, of the title deeds of the land;  and

  • call upon any person who has any objection to the proposed cancellation to lodge his or her objection in writing with the appropriate Minister within thirty 15 days of the date of the last publication of the notice in terms of paragraph (a).
  • Where the title deeds of any land have been cancelled in terms of subsection

(2) the land shall vest in the President.

(6) On one of the thirty days on which Parliament next sits after the beginning of each session of Parliament the appropriate Minister shall lay before Parliament a 20

report on any business transacted under this section during the previous calendar year, together with a schedule of the land acquired.

17 Lease or other alienation of State Land

  • The Minister may, after consultation with the Commission and with the approval of the President, lease, sell or otherwise dispose of State land for such purposes 25 and subject to such conditions as he or she may determine.
  • Land may be leased or alienated to a single individual, a single corporate body, a single household or to two or more persons jointly.

18 No share-cropping without agreement approved by Minister

  • No owner or occupier of land to which this Act applies shall permit the 30 occupation on a share-cropping basis by another person of any portion of such land unless an agreement in writing has been entered into between such owner or occupier and such other person in respect of the occupation of such land on a share-cropping basis and such agreement has been approved by the Minister.
  • The Minister shall within seven days of the receipt of an agreement 35 mentioned in subsection (1) acknowledge the receipt thereof and if no decision has been made within six weeks of the date of acknowledgement thereof the agreement, the owner or occupier concerned shall be entitled to make an application in terms of the Administrative Justice Act [Chapter 10:28] (No. 12 of 2004) (or any other law that may be substituted for that Act) to compel the Minister to consent to or withhold his 40 or her consent to the transaction, or otherwise give written reasons for the delay.

19 Penalty for contravention of section 18

  • Any owner or occupier of land who contravenes section 18(1) shall be guilty of an         offence  and       liable       to         a           fine       not        exceeding          level     ten        or         to         imprisonment     for        a       period   not        exceeding          two       years     or         to         both      such      fine       and       such       50

 

  • Where an owner of land is convicted of an offence under subsection (1), the court before which he or she is convicted shall order that any alienation, lease, permit or right granted in contravention of section 18(1) shall be cancelled, and shall, in the case of any alienation, lease, permit or right registered in the Deeds Registry, cause

5 a copy of such order to be sent to the Registrar of Deeds who shall note the contents thereof on any document relating to the land concerned which is registered in the Deeds Registry      and       shall      make     the        necessary  entries   in         the        registers kept      in         his        or         her        office.

20 Exercise of duties pursuant to sections 17 and 18

In the exercise of the duties, functions and powers pursuant to sections 17 and 18

10           regard shall be had to—

  • the matters mentioned in the Third Schedule; and
  • any representations made in connection with any matters by any local authority, a town planning or responsible authority, any environment committee appointed in terms of section 61 of the Rural District Councils 15 Act [Chapter 29:13] or any farmers’ association, which is affected or

likely to be affected thereby.

21 Regulations under Part IV

(1)  The Minister shall have power to make such regulations as he or she may deem expedient to give force or effect to this Part or for its better administration.

20 (2)  The appropriate Minister may make regulations in terms of subsection (1) providing for—

  • limiting the number of pieces of land that any person may own or hold for farming or other purposes;
  • limiting the size of any piece of land that may be owned by any person for

25 farming               or    other     purposes            and,      in         so         doing,   the        Minister may      fix        the       size       of any such piece of land according to the natural region in which such land is located or according to such other criteria as he or she considers appropriate;

(c)    restricting the right of—

30 (i) individuals who are not indigenous citizens of Zimbabwe to own, lease or otherwise occupy State land in Zimbabwe;

(ii) individuals who are not residents or citizens of Zimbabwe, or companies or bodies corporate whose activities are controlled by individuals who are not resident in Zimbabwe, to own, lease or

35                                              otherwise occupy land in Zimbabwe.

PART V lAnd settlement

22 Minister may make provisions for land settlement, etc.

After consulting the Commission, the Minister may establish schemes or make 40 other provision for—

  • the settlement of persons on and the alienation to such persons of agricultural land;
  • objects incidental to and connected with any object referred to in paragraph (a).

23 Minister may issue offer letters, leases, deeds of grant and permits

The Minister may, subject to section 17, issue offer letters, leases, deeds of grant and permits in respect of Gazetted or other State land.

24 Applications for leases to be referred to Commission

No lease in respect of Gazetted or other State  land shall be issued to an applicant 5 therefor until the application has been referred to the Commission for its consideration and report:

Provided that nothing in this section shall be construed as requiring the Minister to comply with a recommendation or report of the Commission in relation to an application.

                25 Matters to be considered by Commission                                                    10

(1)  In the exercise of its functions referred to in section 24, the Commission shall have regard to—

  • the age of the applicant;
  • the character and legal competence of the applicant to hold, acquire and farm the holding or portion of Gazetted or other State land; 15
  • whether the        applicant           possesses           the        qualifications     and       capital   necessary           to make proper use of the holding or portion of Gazetted or other State land, having regard to the purpose for which it is proposed to be alienated;
  • any other facts which, in the opinion of the Commission, are relevant to

the individual applicant or the holding.                                                     20

(2) The Commission shall not recommend an applicant who is a corporate body, unless it is a company—

  • incorporated under the law of Zimbabwe relating to companies; and
  • legally competent to acquire, hold and farm the holding; and
  • that possesses or is able to raise share capital which is necessary to make 25 proper use of the holding, having regard to the purpose for which it is proposed to be alienated; and
  • that has no shareholder who, individually or through another company,

holds other agricultural land in contravention of any provision of this Act prohibiting or restricting the multiple holding of agricultural land;  and 30

  • that is otherwise compliant, in terms of the composition of its directors and shareholders and otherwise, with the provisions of Indigenisation and Economic Empowerment Act [Chapter 14:33] (No. 14 of 2007).

26 Issue of lease

Where the Minister leases a holding or portion of Gazetted or other State land to 35 an applicant, such lease, subject to this Act shall—

  • be on such      terms    and       conditions          as         may      be         fixed     by         the        Minister;
  • not contain an option to purchase the land to which it relates if the land in question is Gazetted land.

                27 President may retake for public purposes                                                   40

(1)  The President may, at any time and in such manner and under such conditions    as         he         or         she may      deem     fit,        retake    possession          of         land      alienated            in         terms    of         this Act or any portion thereof, for State, local authority or public purposes on payment to the lessee or grantee, as the case may be, of such compensation as may be agreed upon or, failing such agreement, as may be determined by arbitration:

Provided that if the land retaken is land held under ninety-nine year lease, compensation shall be payable only for the improvements to such land on the date of

5           retaking.

(2)  Moneys required for the payment of compensation referred to in subsection

(1) shall be paid out of moneys appropriated for the purpose by Act of Parliament.

28 Prohibition of cession, etc.

(1)  Subject to the terms of the offer letter, lease or permit in question, an offer 10 letter holder, lessee or permit holder shall not—

  • cede, assign, hypothecate or otherwise alienate his or her lease or his or

her rights thereunder or place any other person in possession of his or her holding or portion of Gazetted land;

  • enter into a partnership for the working of his or her holding or portion

15                                    of Gazetted land;

without the consent in writing of the Minister.

(2) A transaction entered into by a lessee in contravention of subsection (1) shall be of no force and effect.

29 Special provisions relating to leases with a purchase option

20                      (1) The Fourth Schedule applies to leases with an option to purchase.

(2) The provisions of the repealed Agricultural Land Settlement Act shall, to the extent that they are re-enacted or substantially re-enacted in the Fourth Schedule, be construed as being continued without interruption from the date of commencement of that Act.

25                                                                                                                           PART VI

Control And oCCuPAtion of AgriCulturAl lAnd

30 Interpretation in Part VI

In this Part—

“lawful holder or occupier”,  in relation to a farm or land that is— 30                          (a)        private agricultural land, means the owner thereof;

(b) any portion of State land or Gazetted land, means the holder of a lawful authority from the State to hold, use or occupy such land in the form of—

(i) an offer letter;  or
(ii) a ninety-nine year lease or other lease;  or
 

35

 

 

(iii)      a lease with a purchase option;  or

(iv)      a permit;  or

(v)        any other land settlement lease;

and the word “landholder” shall be construed accordingly.

31 Minister may require Commission to carry out investigations

40 (1)  In order to ensure that in the national interest agricultural land is not being occupied adversely in regard to the land or neighbouring holders of land the Minister

 

may by notice in writing, direct the Commission to undertake an investigation of any farm within any area to ascertain whether or not the farm is being so occupied.

(2)  On receipt of a notice in terms of subsection (1) the Commission shall carry out as expeditiously as possible any investigation directed by the notice and shall report to the Minister thereon.

32 Minister may give orders to lawful holders or occupiers of farms

(1) Subject to section 34, after considering any report in terms of section 31,

the Minister may, by order in writing served on the holder or occupier of the farm,

direct the holder or occupier—

  • not to         permit   any       more     than      such      number of         persons  as         is          specified     in         the        10

order to occupy the farm;  or

  • to permit   only      such      class      of         persons  as         is          specified            in         the        order     to     occupy

the farm;  or

  • to permit   only      such      activities            or         class      of         activities            as         is          specified     in         the

order to be conducted on the farm;                                                           15

and may in such order direct the holder or occupier to take measures as may be specified

in the order to ensure compliance therewith.

(2) Any holder or occupier of a farm who contravenes or fails to comply with an

order served on him or her in terms of subsection (1) shall be guilty of an offence and

liable                                                                                                                       to   a           fine       not                                                                                                                   exceeding   level nine or to imprisonment for a period not exceeding                                                                                          20

two years or       to         both      such      fine       and       such      imprisonment.

33 Minister may give orders to other occupiers of farms

(1)  Subject to section 34, where the Minister makes an order in terms of section

32 he or she may, in addition, by order in the Gazette and in a newspaper circulating

in the district where the farm concerned is situated, direct such persons or classes of         25

persons  as         are        specified            or         described           in         the        order     to         cease     to            occupy  the        farm     concerned

within   such      period   as         may      be         specified            in         the        order     and       that—

  • no more than such number of persons shall occupy the farm; or
  • no persons other     than      such      class      as         is          specified            in         the        order shall occupy

the farm;  or                                                                                          30

  • no activities or         class      of         activities            other     than      those     specified            in         the     order

shall be conducted on the farm;

until such time as the order is revoked or varied in terms of section 35.

(2) Any person who contravenes or fails to comply with an order in terms of

subsection (1) shall be guilty of an offence and                                                        liable   to         a           fine       not                                                                                                                   exceeding   level     six        35

or         to         imprisonment     for        a           period   not        exceeding          one       year      or         to         both            such      fine       and       such

imprisonment.

34 Minister to give notice of proposal to make order

(1) Before making an order in terms of section 32 or 33 the Minister shall give

notice of his or her  intention to make such order—                                                      40

  • to the lawful holder or occupier of the farm concerned; and
  • to the persons or classes of persons who will be required to cease occupying the farm concerned or cease conducting the prohibited activities, as the case may be;

and shall afford such persons the opportunity of making representations in writing in relation to the proposal.

(2)  Notice to persons or classes of persons referred to in subsection (1)(b) may be given by notice published in a newspaper circulating in the district where the farm 5 concerned is situated.

35 Minister may revoke or vary order or extend time for compliance therewith

(1)  The Minister may at any time—

(a)    revoke;  or

10                                          (b) with the consent of the lawful holder or occupier to whom an order was given, vary;

an order made in terms of section 32 or 33.

(2) If the lawful holder or occupier of a farm or any person or classes of persons referred to in section 34(1)(b) to whom an order in terms of section 32 or 33

15 has been given feels that he or she will be unable to comply with the order within the time   specified            he         or she        may      request  the        Minister to         grant     an         extension           of         that       time,     and if the Minister refuses to do so or grants him or her an extension which he or she considers to be inadequate he or she may,      before   the        expiry   of         the        specified            time,     appeal   to the Minister through the Commission, and section 61(4) and (5) shall apply to the

20 appeal.

(3) The Minister may, in determining the appeal, seek, but not be bound by, the advice of the Commission on the appeal.

PART VII

APPellAte And disPute settlement funCtions of Commission

25 36 Appellate and dispute settlement functions of Commission

(1)  The Commission or any three of its members appointed by the chairperson for the settlement of any particular dispute or appeal has jurisdiction to determine—

(a) any appeal which this Act expressly provides shall be determined by the Commission;  and

30                                                                                          (b) any dispute or appeal which regulations made under this Act or the terms

of any lease or permit provide shall be determined by the Commission.

(2)  In determining a dispute or appeal the Commission—

(a) shall be bound by the rules of natural justice, and otherwise by the rules set forth in the Fifth Schedule;  and

35 (b) shall not be bound by the common law rules of evidence, and may ascertain any            relevant fact       by         any       means   which    it          thinks    fit         and       which    is          not        unfair    or unjust to any party;  and

(c)      any contempt of the Commission by any party to an appeal or dispute

before the Commission shall constitute the crime of contempt of court

40                      in terms of section 181 of the Criminal Law Code.

  • For the purposes of determining any appeal or dispute before the Commission the chairperson of the Commission shall select two assessors from a panel of names submitted by the Minister responsible for justice after consultation with the Minister.
  • An assessor who is not in the full-time employment of the State shall be paid such remuneration and allowances as the Minister responsible for justice, after consultation with      the        Minister responsible        for        finance, may
  • For the avoidance of doubt it is declared that the existing law on the devolution of property on marriage, dissolution of marriage, death, insolvency and mental and other incapacity shall apply to partially alienated State land except to the extent that different provision for such eventualities is expressly made by or under this Act or in a lease or permit issued under this Act or the repealed Agricultural Land Settlement Act.
  • Regulations relating to appellate and dispute settlement functions 10

of Commission and amendment of Fifth Schedule

  • The Commission, with the approval of the Minister may make regulations

providing for all matters which in its opinion are necessary or convenient for carrying

out or giving effect to this Part.

  • Regulations made in terms of subsection (1) may provide for— 15
  • regulating appeals to the Commission and the determination of disputes

by it and the fees payable in connection therewith;

  • the manner in which assessors shall perform their functions;
  • the determination of appeals or disputes which appear to it to be frivolous

or vexatious.                                                                                         20

  • Subject to subsection (1), the Minister, after consultation with the

Commission, may by notice in a statutory instrument amend or replace the Fifth

Schedule.

  • When the Minister wishes to amend or substitute the Fifth Schedule the

Minister shall—                                                                                                       25

  • refer the draft statutory instrument amending or substituting the Fifth

Schedule to Cabinet for its approval;  and

  • if Cabinet approves the draft statutory instrument amending or substituting

the Fifth Schedule (with or without amendments), lay the draft statutory

instrument before the House of Assembly.                                                30

  • If the House of Assembly makes no resolution against the publication of

the statutory instrument within the next seven sitting days after it is laid before it under

subsection (4), the Minister shall cause it to be published in the Gazette.

PART VIII

register of PArtiAlly AlienAted stAte lAnd rights                                                     35

  • Interpretation in Part VIII
    • In this Part—

“Register” means the Register of Partially Alienated State Land Rights, being

the central register of such rights referred to in section 40(1);

“Registrar” means the Secretary as provided in section 39(1).                             40

  • For the avoidance of doubt it is declared that offer letters are subject to registration in terms of this Part prior to the registration of the lease to which they relate. 39 Registrar of Partially Alienated Land Rights
    • For the purposes of this Part there shall be a Registrar of Partially Alienated Land Rights, who shall be the Secretary.
    • The Registrar shall be assisted by such other employees in the Ministry

5 specially designated by the Registrar as are necessary to assist the Registrar in discharging   the        functions           of  his        or         her        office.

(3) The Registrar may delegate or assign all or any of his or her functions to any one or more of the employees referred to in subsection (2), and any reference in this Act to the “Registrar” shall be construed as including a reference to any such employee.

10 40 Register of Partially Alienated State Land Rights

  • The Registrar           shall      establish            and       maintain            at          the        head      office    of         the        Ministry            a register to be known as the Register of Partially Alienated State Land Rights.
  • There shall be entered in the Register—
(a) the name of every holder of a partially alienated State land right;  and
15

20

 

 

 

 

(b)

(c)

(d)

(e)

the date of the registration of every partially alienated land right;  and particulars of any renewal, transfer, cancellation, revocation, suspension, termination, surrender or repossession of any partially alienated State land right, and of any statutory servitude in relation to any such right;  and the location of the partially alienated State land to which the registered right refers;  and such other particulars as the Registrar may deem necessary.
  • Notwithstanding subsection (2), regulations in terms of section 63 may provide for different registers to be kept in respect of different partially alienated State land rights or classes thereof, or for the Register to be divided into different parts for 25 the registration of such different partially alienated State land rights or classes thereof.
  • Any person may, with the written consent of the holder of the partially alienated State land right in question—

(a) on payment of the prescribed fee, if any, inspect the entry in the Register relating   to         that       holder   at       all         reasonable         times     at          the        head      office    of         the

30 Registry or at such other places as the Registrar may specify by notice published in the Gazette;  and

(b)   be         furnished           by         the        Registrar           with      a           certified copy     of       the        entry     in         the        Register relating to that holder on payment of the prescribed fee.

(5)  Any person may, without the consent of the holder of the partially alienated

35 State land right in question or, if the request for information does not relate to any particular holder of a partially alienated State land right—

  • on application in writing to the Registrar in the prescribed form, and on payment of the prescribed fee, if any, inspect the Register at all reasonable times at          the        head      office    of         the        Registry or         at            such      other     places    as         the        40 Registrar may specify by notice published in the Gazette;  and
  • be furnished           by         the        Registrar           with      a           certified copy     of         any       entry            in         the        Registry requested in the form referred to in this subsection, on payment of the prescribed fee.

(6) The Registrar shall consider an application in terms of subsection (5) as

45         expeditiously as possible and in any event no later than seven working days from the date of the application.

(7)  On consideration of an application pursuant to subsection (5) the Registrar may—

  • grant it unconditionally;
  • refuse to grant it, or grant it partially or conditionally on the grounds that the disclosure or full or unconditional disclosure of the requested information is prejudicial or potentially prejudicial to the defence, public safety or public order of Zimbabwe or to the general public or national interest.

41 Registration of partially alienated State land rights

  • Immediately upon receiving any application for the issue or grant of a partially 10 alienated land right, the Registrar shall without delay transmit the particulars thereof to the Executive Secretary of the Commission, which shall at its next meeting (whether ordinary or extraordinary) without undue delay determine whether or not to recommend to the        Minister the            final      registration        of         the        partially alienated            State     land      right     in         question:

Provided that in order to enable the Commission to properly consider the 15 application the Commission may, through the Executive Secretary, request for further particulars from the Registrar in connection with the application for the partially alienated State land right in question, and the Registrar shall promptly comply with such request so that the question of whether or not to recommend that the Minister should exercise his or her powers in terms of section 17 to grant the application may 20 be made by the Commission no later than its next meeting after the meeting when the additional particulars were requested.

  • Immediately on concluding its consideration of an application in terms of subsection (1) the Commission shall transmit in writing to the Minister through the Registrar its recommendation together with any observations it may wish to make 25 thereon, and the Minister, after taking into account any observations of the Commission, do any       one       the            following          as         may      be         appropriate        or         seem     fit         to         him       or         her—
  • uphold the recommendation of the Commission not to issue or grant the partially alienated State land right; or
  • reject the recommendation of the Commission not to issue or grant the 30 partially alienated State land right; or
  • uphold the recommendation of the Commission to issue or grant the partially alienated State land right; or
  • reject the recommendation of the Commission to issue or grant the partially

alienated State land right.                                                                       35

(3)  If the Minister makes a decision in accordance with—

  • subsection (2)(a) or (2)(d), he or she shall communicate his or her decision to the Commission in writing through the Registrar, giving his or her reasons for the decision where he or she makes a decision in accordance

with subsection (2)(d);  or                                                                       40

  • subsection (2)(b) or (2)(c), he or she shall communicate his or her decision to the Commission through the Registrar (giving his or her reasons for the decision where he or she makes a decision in accordance with subsection (2)(b)), and thereupon the Registrar shall without delay register the partially alienated State land right to which the particulars 45 relate by entering it in the Register.

(4)  A partially  alienated            State     land      right     shall      be         or         be         deemed to         be finally   registered  on the date such partially alienated State land right is entered in the Register. 42 Entries in Register to be conclusive proof of partially alienated State land right

(1)  Every entry in the Register of a partially alienated State land right shall be deemed            to         be         the  definitive           record   of         such      right,    and       in         the        event     of         any       inconsistency

5 between such entry and any other record of such right kept in terms of this Act or otherwise, the entry in the Registry shall prevail as proof of the partially alienated State land right or any particular thereof.

(2)  A document (including one issued pursuant to section 40(4)(b) or (5)(b)) purporting         to         be         a  certificate          issued    by         the        Registrar           of         the        contents of         any       entry     in  the

10 Registry shall be admissible in any proceedings on its production by any person as prima facie evidence of such contents.

PART IX

stAtutory servitudes in relAtion to PArtiAlly AlienAted stAte lAnd

43 Interpretation in Part IX

15                         In this Part—

“claimant” means an interested party who lodges a request for the creation or variation in his or her favour of a statutory servitude in terms of section 45(1)(b), and includes—

(a) any one or more interested parties who are lawful holders or occupiers
20

25

 

 

 

referred      to         in         paragraph          (b)        of         the     definition          of         “lawful  holder   or         occupier”;  or

(b)      the owner of private agricultural land claiming a statutory servitude over partially alienated State land, in relation to which servitude he or she will be the holder of the dominant tenement thereof;

(c)      the State or a local authority; or

(d)      any statutory body other than one referred to in section 44(2);

“creation”, in relation to a statutory servitude, includes the preservation, confirmation, restoration         or       adjustment                     of         a           pre-existing       servitude           by         means of the creation of the statutory servitude;

30                      “designated        officer” means—

  • a Government       Land     Officer;             or
  • such other officer   as         the        Secretary           may      designate           in         writing;

“dispute in connection with the creation of a statutory servitude” means a dispute about whether to create the servitude in question, or about the

35 nature, scope or particulars of the statutory servitude to be created, or whether any compensation is payable for an alleged  loss or deprivation of rights suffered by the holder of a servient tenement in relation to that servitude, and as to the amount of the compensation, if payable;

“interested party” means every lawful holder or occupier of land within the area

40 on or over which a statutory servitude is proposed to be created, varied or cancelled in terms of section 45;

“lawful holder or occupier”,  in relation to land that is—

  • private agricultural land, means the owner thereof;

 

  • any portion of State land or Gazetted land, means the holder of a lawful authority from the State to hold, use or occupy such land in the form of—
  • an offer letter; or
  • a ninety-nine lease; or         5
  • a lease with a purchase option; or
  • a permit;
  • any other land settlement lease;

and the word “landholder” shall be construed accordingly;

“negotiated statutory servitude” means a proposed statutory servitude referred 10 to in section 45(1)(c);

“permanent servitude” means a servitude other than a temporary servitude;

“servitude” means any praedial or personal servitude registrable as such in terms

of the Deeds Registries Act, including (but not limited to) a servitude for a right of way, a water servitude, a grazing servitude, and a servitude for the 15 extraction of water, wood or other materials from the servient tenement;

“servitude of passage” means the right to occupy and use so much land belonging to another as may be necessary for or incidental to the passage of water and includes the right—

  • to construct such water works as may be necessary for such passage 20 on such land and over, under or alongside other water works, or to enlarge and extend existing water works; and
  • of access to and over the area subject to such right of occupation and use, after giving such notice as is reasonable in the circumstances to the occupier thereof, for the purpose of constructing, inspecting, 25 maintaining and operating water works referred to in paragraph (a) or for any other purpose necessary for the effective enjoyment of the rights    referred to     in         this       definition;

“servitude of right of way” means the right to pass through land lawfully held

or occupied by another;                                                                          30

“servitude of storage” means the right to occupy and use land lawfully held

or occupied by another by inundating it with water by means of water storage works, together with such land—

  • contiguous to the land so inundated as may be required to be occupied and used by the holder of the servitude of storage for the purpose 35 of preventing the pollution of the water stored by or in the water storage works; and
  • adjacent to or near the land so inundated as may be required to be

occupied and used for the purpose of passage, after giving such notice as is reasonable in the circumstances to the occupier thereof, 40 for the purpose of cleansing and maintaining the water storage works or for any other purpose necessary for the effective enjoyment of the            rights    referred to         in         this          definition;

“temporary servitude” means a servitude with a duration of—

  • a fixed     number of         years;                or         45
  • the period for which it is used for the purpose for which it is granted, with or         without further  specification     of         such      duration;

“Water Act” means the Water Act [Chapter 20:24] (No. 31 of 1998) or any other law that may be substituted for the same;

“water storage works” means a dam, reservoir or well;

“water works” means—

5                                                                  (a) a           borehole,           canal,    channel, embankment,     filter,                                                               filterbed,        pipeline,

pumping           plant,    purification        plant,    plant     for        the        generation         of           hydroelectric power, water storage works or well;  or

(b)       any       accessory,          apparatus,          appliance,          fitting,  machinery         or           other     thing     constructed, erected or used for or in connection with the abstraction,

10

15

 

 

control,      diversion,          drainage,           filtration,     passage, purification,       storage, supply   or         use        of     water,   including           effluent or         waste    water,   or     the        conservation of rainfall or the development of water power;  or

(c)      any land occupied for or in connection with the abstraction, control, diversion,   drainage,           filtration,           passage,     purification,       storage, supply   or         use        of     water,   including           effluent or         waste    water;        or

(d)      any gauge post, measuring weir or other appliance erected or used for undertakings authorised by or in terms of the Water Act.

44 Application of Part IX

(1)  This Part applies to the creation of statutory servitudes, including water 20 servitudes         as         defined  in the        Water    Act,      as         between—

  • interested parties who are all lawful holders or occupiers referred to in paragraph (b) of         the      definition          of         “lawful  holder   or         occupier”           in         section  43;                    or
  • any one or more interested parties who are lawful holders or occupiers referred to in         paragraph      (b)        of         the        definition          of         “lawful  holder   or         occupier”           and—

25                                                                                          (i) a claimant who is the owner of private agricultural land, if the

claimant is proposed to be the holder of the dominant tenement in relation to the statutory servitude;

(ii) an owner of private agricultural land, if the owner is proposed to be the holder of the servient tenement in relation to the statutory

30                                                                                     servitude     and       the        owner   consents            in         writing  to                                                                       the         designated         officer

to the proposal for the creation of the statutory servitude being dealt with in accordance with this Part.

(2) Where any statutory body is—

(a)    established directly by or under any enactment;  and

35 (b) empowered or required by the enactment referred to in paragraph (a) to acquire any servitude;

and the statutory body wishes to acquire a servitude in relation to partially alienated State land that is lawfully held or occupied by persons referred to in paragraph (b) of the        definition          of         “lawful  holder   or         occupier” in         section  43,        then,     subject  to         subsection          40 (3), where the land is held under—

(c) a ninety-nine year lease or a lease with a purchase option, the provisions of the enactment concerned shall apply as if the holder or lessee is the owner of private agricultural land;  or

45            (d)  an offer letter, a permit or any land settlement lease other than a ninetynine year lease or a lease with a purchase option, this Part shall, despite

anything contained in the enactment concerned, apply as if the statutory body is a claimant.

  • If the enactment referred to in subsection (2) provides for the compulsory acquisition by the statutory body of the servitude in question, then, to the extent that this Part applies to the acquisition of that servitude in terms of subsection (2)(d), neither 5 the        designated         officer   nor       the        Commission       shall      entertain            any            dispute  or         question concerning the creation of the servitude, other than disputes or questions involving—
  • the extent of the loss or deprivation of rights (if any) likely to result from the creation of the servitude; and
  • if the extent of such loss or deprivation is established, the amount of 10 compensation payable therefor by the statutory body.
  • Where, in relation to         private  agricultural        land,     the        Minister is          satisfied,            after affording the owner thereof a reasonable opportunity to make representations in the matter, that it is necessary—

(a) in the interests of defence, public safety, public order, public morality, 15 public health or town and country planning; or (b)        for        a           purpose beneficial          to         the        community;

to create a statutory servitude in favour of any one or more interested parties who are lawful holders or occupiers referred to in paragraph (b) of the definition of “lawful holder or occupier” in section 43, the Minister may, if negotiations with the owner 20 concerned do not result in an agreement to create the statutory servitude in question, apply the provisions of the Land Acquisition Act [Chapter 20:10] for the purpose of acquiring such right or interest in the private agricultural land concerned as may be required for the creation of the servitude.

45 Powers of designated officers in regard to creation, variation and 25 cancellation of statutory servitudes

(1)        Subject  to         this       Part,     a           designated         officer   (on       notice    to         the        Secretary, and       subject to any written directions of the Secretary) may—

  • on his or her own initiative; or
  • at the written request of any claimant or person wishing to have a statutory 30 servitude created, cancelled or varied; or
  • at the written request of two or more interested parties who are holders of the dominant and servient tenements involved in the creation or variation of the statutory servitude and have agreed to the creation or variation of the statutory servitude (hereinafter in this Part referred to as a “negotiated 35 statutory servitude”); or
  • at the written request of two or more interested parties wishing to cancel an

existing statutory servitude who are holders of the dominant and servient tenements of that servitude;

exercise his or her power to create, vary or cancel any statutory servitude in relation 40

to any portion of State land or Gazetted land that is lawfully occupied by two or more holders of offers letters, ninety-nine year leases, leases with a purchase option, permits, other leases issued by the State, or any combination of the foregoing.

(2)                    Subject  to         subsection          (3)        a           designated         officer   shall      not        exercise his or         her        45 power in terms of subsection (1) to create, vary or cancel a statutory servitude—

  • except for        the        purpose of         preserving,        confirming,       restoring            or         adjusting     any       pre-existing servitude in relation to the land referred to in that subsection

(whether or not the servitudes in question were extinguished when the land was originally acquired by the State);  or

  • unless, in the case of the proposed creation of any new servitude in relation

to the land referred to in that subsection, or the variation of an existing

5                                                                       statutory     servitude,                      the        designated         officer   is                                                       satisfied      that—

  • the object for which the servitude is to be created or the existing

servitude varied is best achieved by the creation or variation of the

servitude, as the case may be;  and

  • the proposed new servitude, or the variation of an existing one, is

10                                fair and reasonable and is—

  1. of sufficient           agricultural        or         other     utility    to         justify   its         creation

or variation;  or

  1. required to secure access by any landholder to his or her holding

or to the nearest public road;  or

15                                                                                C.      required for a purpose (other than a purpose referred to in

subparagraph     A          or         B)         which    is          justifiable          in         the        public   or

national interest.

or

(c)     unless, in the case of the proposed cancellation of an existing statutory

20                            servitude in relation to the land referred to in that subsection, the

designated         officer   is          satisfied that       there     is          no         reasonable         or         sufficient

objection or impediment to its cancellation.

  • Before exercising his or her power in terms of subsection (1) a designated officer shall      conduct such       investigation      as         he         or         she        deems   fit         to         ensure   that       the        creation,       25 variation or cancellation of the statutory servitude in question will not involve—
(a) undue damage to or interference with the rights of any landholder subjected to the servitude;  or
(b) where three or more landholders will be affected by the creation, variation or cancellation of the servitude, more loss to or damage or interference
30

35

(c) with the rights of any landholder subjected to the servitude than would be justified        by         the        benefits accruing            to            the        affected landholders        collectively; or in the case of a negotiated statutory servitude, unfairness to any of the interested parties involved, or will not prejudicially affect the rights of neighbouring landholders.
  • For the purpose of an investigation in terms of subsection (3) the designated officer and       any       person       authorised          in         writing  by         him       or         her        may      enter     upon     any       land,     other than a dwelling-house thereon, for the purpose of obtaining the information required for compliance with that subsection.

40 46 Method of creating, varying or cancelling statutory servitudes

(1)                     Where   a           designated         officer   proposes            to         create,   vary      or         cancel a           statutory            servitude (whether on his or her own initiative or in the circumstances referred to in section 45(1)(b), (c) or (d)) he or she shall serve on every interested party notice in writing—

45 (a) describing the locality and nature of the proposed or existing statutory servitude, whether the proposed statutory servitude is permanent or

temporary and, in the case of a variation of an existing statutory servitude, the nature and extent of the variation;  and

  • state whether the proposal to create, vary or cancel the statutory servitude is being made     at          the           designated         officer’s own      initiative,           or         at          the        request  of any claimant or interested party (in which event each claimant or 5 interested party concerned shall be named in the notice);  and
  • inviting any interested party—
    • to state whether he or she agrees to the creation, variation or cancellation of the statutory servitude conditionally or unconditionally and, if conditionally, to specify the conditions under 10 which he or she may agree to its creation, variation or cancellation; and
    • if he or she wishes to seek compensation in respect of any loss or deprivation of rights likely to result from the creation, variation or cancellation of the statutory servitude, to submit to the designated 15 officer, within a     period   of         sixty     days      from     the        date      of         service  of         the        notice    or     such      longer   period   as         the        designated         officer   may      for        good     and     sufficient           reason   allow,   a           statement           in         writing  specifying          in detail the nature of the loss or deprivation of rights likely to be caused to the interested party as a result of the creation, variation 20 or cancellation of the statutory servitude.
  • Where a           designated         officer   seeks     to         create    or         vary      a           statutory            servitude           to         give effect to a negotiated statutory servitude, he or she shall, after an investigation, if any, referred to in section 45(3)(c), proceed in terms of subsection (6).
  • Where compensation in respect of any loss or deprivation of rights likely 25 to result from the creation, variation or cancellation of a statutory servitude is sought by an interested party in terms of this section and the proposal to create, vary or cancel a statutory servitude was made—
  • on the initiative            of         the        designated         officer,  the        compensation     shall      be     payable by the Ministry alone or, where the statutory servitude is to be 30 created       in         favour   of         any     interested           party     (“the     beneficiary”),     in         the        shares    agreed by the Ministry and the interested party concerned;  or
  • at the request of any claimant or interested party, the compensation shall be payable by         the        claimant     or         interested           party,    and       the        designated         officer   shall transmit a copy of any statement referred to in subsection (1)(c)(ii)     35

to the claimant or interested party

  • If an         interested           party     notifies  the        designated         officer   that       he         or         she            agrees   to the creation, variation or cancellation of the statutory servitude conditionally upon compensation being paid in respect of any loss or deprivation of rights likely to result from    its         creation,            variation            or            cancellation,      the        designated         officer   shall      endeavour          within   40 sixty days of the service of the notice under subsection (1)—
  • to establish the extent of the loss or deprivation of rights (if any) likely to result from the creation, variation or cancellation of the statutory servitude; and
  • if the extent of such loss or deprivation is established, to conclude an 45 agreement on the amount of compensation payable therefor by the Ministry, the        claimant            or         interested           party,    or         the     Ministry            and       beneficiary        jointly, as the case may be.

(5)  If an interested party (hereinafter referred to as a “non-concurring interested party”) referred to in subsection (1)—

(a)      does not, within a period of sixty days from the date of service of the

notice referred to in that subsection or such longer period as the designated

5                                                                      officer        may      for        good     and       sufficient           reason   have                                                     allowed—

  • agree in writing to the request referred to in paragraph (a) of that subsection for the creation, variation or cancellation of the statutory servitude; or
  • agree in         writing  with      the        designated         officer,  claimant            or         beneficiary

10                               on the amount of compensation payable for any loss or deprivation

of rights likely to result from the creation, variation or cancellation of the statutory servitude;

or

(b) lacks full legal capacity to agree to the request referred to in paragraph

15                      (a) of that subsection;

the designated officer shall require by notice in writing every non-concurring interested party or his or her legal representative to furnish to the Secretary (within thirty days of the receipt of the notice) the prescribed security for the costs of having the dispute determined by the Commission.

20 (6) If there is no dispute about the creation, variation or cancellation of a statutory servitude or about any compensation to be payable therefor, or if no nonconcurring party furnishes the prescribed security within the allowed period (or such longer  period   as         the        Secretary           may      for        good     and       sufficient           reason   allow),  the  designated         officer   shall      by         notice    in         writing  to         every    interested           party,  summon            every    interested

25 party or his or her legal representative, if any, to attend a meeting at the time and place specified      in         the        notice  for        the        purpose of         enabling            the        designated         officer   to         verify    the particulars of the statutory servitude in the presence of every interested party in attendance:

Provided that—

30 (a) every interested party or his or her legal representative, if any, shall have not less than three days’ notice (including Saturdays, Sundays and public holidays) of the time and place of the meeting;  and

(b) the failure by any interested party to attend the meeting of which he or she has been given due notice in accordance with this subsection shall

35 not affect the validity of the meeting or anything  done in the course or as a result of the meeting.

(7)                     At         a           meeting convened           in         terms    of         subsection          (6)        the  designated         officer   shall—

(a) cause the document embodying the particulars of the proposed creation,
40

45

(b)

(c)

variation or cancellation of the statutory servitude (hereinafter called the “statutory servitude protocol”) to be read over or made available to every interested party;  and

record on the statutory servitude protocol the time and place of the meeting, the names of all those who attended at the meeting and the capacities in which they so attended;  and

verify the statutory servitude protocol by endorsing upon it the word

“verified”          and       his        or         her        signature           and            the        place     and       date      of         verification; and

(d) invite every interested party present, or his or her legal representative, to sign the statutory servitude protocol:

Provided that any failure by an interested party to sign the protocol shall not affect its validity.

  • At the conclusion of the meeting convened in terms of subsection (6) the 5 designated officer   shall      transmit two     authenticated      copies   of         the        statutory            servitude           protocol to the Secretary in his or her capacity as the Registrar of Partially Alienated State Land Rights, and the Secretary shall make the appropriate entries in the Register recording the creation, variation or cancellation of the statutory servitude as an endorsement or encumbrance on the offer letter, lease or permit concerned: 10

Provided that if there is any prescribed fee for the making of this record by the Secretary, any claimant for the statutory servitude or its variation recorded in his or her favour (or, in the case of a negotiated statutory servitude, all the parties thereto in equal shares) shall pay the prescribed fee.

  • Upon receiving           written  confirmation      from     the        Secretary           that       the        appropriate     15 entries in the Register have been made, the designated officer shall furnish an authenticated copy of the statutory servitude protocol to every interested party with the date of the recording of the creation, variation or cancellation of the statutory servitude endorsed thereon.
  • Sections 47 and 48 shall apply if— 20
  • there is a dispute about the creation, variation or cancellation of a statutory servitude or about any compensation to be payable therefor; and
  • any non-concurring party furnishes the prescribed security within the

allowed period (or such longer period as the Secretary may for good and

sufficient                                                                              reason   allow).  25

47 Reference of disputes in connection with proposed statutory servitudes and rights, privileges and obligations of interested parties at hearings

  • If a           designated         officer   responsible        for        proposing          the        creation,            variation       or cancellation of a statutory servitude (whether on his or her own initiative or in the 30 circumstances  referred to       in         section  45(1)(b),           (c)        or         (d))       receives written  confirmation      from the Secretary that a non-concurring party in relation to that proposal has furnished to the Secretary the prescribed security within the allowed period (or such longer period as           the        Secretary           may      for        good     and       sufficient       reason   allow),  the        designated         officer   shall,     through the Secretary, lodge with the Commission the notice referred to in section 46(1) 35 and a written statement of the issues in dispute, and thereafter provisions of the Fifth Schedule and section 61 shall apply to the resolution of the dispute.
  • A non-concurring party and every other interested party shall—
  • have the right to appear as a party before the Commission on the hearing of a proposal to create, vary or cancel a statutory servitude or an issue of 40

compensation or both;  and

  • if he or she appears in terms of paragraph (a)—
    • have all the privileges belonging to; and
    • be subject to all the obligations which are or may be imposed on;

a party to proceedings before the Administrative Court.                                                 45

 

48 Powers of Commission in regard to disputes in connection with proposed statutory servitudes

(1) Subject to this section, the Commission may, if a dispute in connection with the creation, variation or cancellation of a statutory servitude is not resolved in accordance with the Fifth Schedule and is put before it for its determination in accordance with that Schedule—

(a) grant the proposed servitude or endorse its variation or cancellation, with or          without modifications     and       subject  to         such      conditions          as         it          thinks    fit; or

10 (b) dismiss the proposal for the creation, variation or cancellation of the statutory   servitude,          or         for        the       preservation,      confirmation,     restoration         or         adjustment  of a pre-existing servitude by means of the statutory servitude, on the ground that—

(i) the proposal is not, in terms of section 44, a competent one to be

15                                              made in accordance with this Part;  or

  • the object for which the servitude is to be created, varied or cancelled

or,       if          it          relates   to         a           pre-existing       servitude,          preserved,           confirmed,         restored or adjusted, is better achieved by other means;  or

  • the proposed new servitude or the variation of an existing servitude

20                                               is not—

  1. of sufficient agricultural or other utility to justify its creation; or
  2. required for a purpose (other than a purpose referred to in

subparagraph A) which is justifiable in the public or national

25                                                         interest;

or

  • the proposal is not fair and reasonable or is not made in good faith; or
  • the servitude concerned or its variation is likely to cause—

30 A. undue damage to or interference with the rights of any landholder subjected to the servitude;  or

  1. where three or more landholders will be affected by the creation of the servitude, more loss to or damage or interference with the rights of any landholder subjected to the servitude than would

35                                                       be justified by the benefits accruing to the affected landholders collectively;

and shall dismiss the proposal if, in the case of a servitude referred to in section 11 of the Communal Land Act [Chapter 20:04], the Minister responsible for the administration of that Act has not consented to the creation of the servitude, or a condition fixed by that

40 Minister in giving his or her consent cannot be made binding on a claimant, beneficiary or any holder of a servient or dominant tenement in relation to the proposed servitude.

(2) Subject to this section, the Commission may, on an issue of compensation that is put before it for its determination in accordance with the Fifth Schedule, award or refuse to award compensation to the interested party concerned in respect of any

45          loss or deprivation of rights likely to result from the creation of the proposed statutory servitude.

 

  • Whenever any diagram showing the land affected by, and the situation

thereon of, the proposed statutory servitude is sought to be adduced or received in

evidence at the hearing of a dispute in connection with the creation, variation or

cancellation of a statutory servitude, the diagram shall not be admissible in evidence

before the Commission unless it has been prepared in accordance with the Land Survey       5

Act [Chapter 20:12].

  • Compensation awarded by the Commission in terms of subsection (2)

shall not exceed an amount representing compensation for any expense or loss which

may reasonably be incurred or suffered directly as a result of the creation, variation or

cancellation of the statutory servitude.                                                                         10

49 Rights of lawful holders or occupiers subject to statutory or other

servitudes of passage, rights or way, storage, etc.

  • A lawful holder or occupier of land who constructs water works for the

passage of water, which water works—

  • prevent any owner of land from passing freely over or on to his or her 15

land or from exercising his or her rights under a statutory servitude or

other servitude of right of way or of passage; or

  • obstruct the free circulation of water in the drainage or irrigation of any

land or interfere with any mining operations thereon;

shall construct, maintain and repair—                                                                          20

  • such bridges and other works as will make it convenient and safe

to pass over or on to the land referred to in paragraph (a); or

  • such aqueducts, culverts and other works as are necessary to secure

the free circulation of water referred to in paragraph (b) or prevent

interference with the mining referred to in that paragraph;                   25

unless he or she is exempted from the duty to do so by agreement or otherwise.

  • In exercising a statutory servitude or other servitude of passage across a

road, the holder of the servitude of passage shall, after having obtained the consent of

the road authority concerned, construct, maintain and repair such works as will prevent

inconvenience or danger to members of the public using the road, in accordance with       30

the instructions of the Secretary.

  • Subject to any statutory servitude protocol or other agreement or award by

which the servitude concerned was acquired, a statutory servitude or other servitude

of storage shall not deprive the lawful holder or occupier of the land subject to the

servitude of the use of any part of the land, whether submerged or unsubmerged:              35

Provided that such use is not detrimental to the enjoyment of the servitude of

storage.

  • The holder of a statutory servitude or other servitude of storage shall, before

commencing the construction of the water storage works concerned, notify the lawful

holder or occupier of the land subject to the servitude of storage in writing of—               40

  • his or her intention to construct the water storage works; and
  • the provisions of subsection (5).
  • The lawful holder or occupier of land subject to a statutory servitude or other

servitude of storage may, before the construction of the water storage works concerned

is commenced and on—                                                                                             45

  • payment to the holder of the servitude of storage of such share of the costs of constructing, enlarging, maintaining or repairing the water storage works; and
  • fulfilment of         such      conditions,         other     than      the        payment            referred to            in         paragraph

(a);

as           may      be         agreed   or,        failing   agreement,         as         may      be         fixed     by         the designated         officer,  participate         in         the        benefit  of         the        water    storage  works    in proportion         to         the        share     of         the        cost:

Provided that, if the servitude of storage has been acquired by—

(a)    the State or a local authority;  or
10

 

 

(b) any statutory body—

(i)        established or re-established directly by or under an enactment, including;  and

(ii)      empowered or required by the enactment referred to in subparagraph (i) to acquire the servitude of storage;

15 the lawful holder or occupier of land shall not be entitled so to participate in the benefit of such water storage works.

(6) Every statutory or other water storage servitude or other servitude for the construction or maintenance of water works shall include a right to take gravel, rock, sand, soil, stone or wood from the land subject to the servitude for the purpose of

20 maintaining or repairing any water works thereon on payment to the lawful holder or occupier of such land of such compensation as may be agreed or, failing agreement, as      may      be         fixed     by         the        designated officer:

Provided that no gravel, rock, sand, soil, stone or wood shall be taken from—

(a)        within   a           distance of         five       hundred metres   of         any       afforested          or cultivated          25            lands, premises or other structures, mining works or quarries;  or      (b)        forest    land      as defined  in         the        Forest   Act       [Chapter 19:05]; without the permission of the lawful holder or occupier thereof.

(7) Notwithstanding anything contained in subsection (1), the designated officer—

30 (a) may, if he or she considers that the permission of the lawful holder or occupier concerned is being unreasonably withheld, authorise the taking of gravel, rock, sand, soil, stone or wood from—

(i) within the distance referred to in paragraph (a) of the proviso to subsection (1);  or

35        (ii)         forest    land      as         defined  in         the        Forest   Act       [Chapter 19:05];            and

(b) shall determine what compensation, if any, is to be paid by the holder of the servitude concerned to the lawful holder or occupier referred to in paragraph (a) in respect of any loss or damage which may result from any taking authorised in terms of that paragraph.

40                      (8) In subsection (2)—

“road “and “road authority” have the respective meanings given by the Roads Act [Chapter 13:18] (No. 6 of 2001).

50 Registration of statutory servitudes in Deeds Registry

(1)  Any lawful holder or occupier of land affected by the creation of a statutory servitude who is—

  • the owner of private agricultural land that is—
    • the dominant tenement in respect of the statutory servitude in 5

question, shall, at his or her own expense, register the servitude at the Deeds Registry in accordance with this section;  or

  • the servient tenement in respect of the statutory servitude in question,

shall (unless otherwise agreed by the parties to the servitude), register the servitude at the Deeds Registry in accordance with this section 10 at the expense of the holder of the dominant tenement in question (which expense, if not paid by the holder of the dominant tenement, may be sued for by the holder of the servient tenement in a court of competent jurisdiction);

or                                                                                                         15

  • the lessee of a ninety-nine year lease, may, in accordance with this section, register the servitude at the Deeds Registry by endorsement of his or her lease as if references to a “title deed” and or “owner” in this section and in the Deeds Registries Act were references to such lease and such lessee.

(2) For the purpose of registration of a servitude, there shall be lodged with 20 the Registrar of Deeds the necessary registration fees together with—

  • in the case of a servitude awarded by the Commission, two copies of the award duly      certified by         the     Registrar:

Provided that no such copies shall be lodged with the Registrar of Deeds until after the expiry of the period within which notice of an 25 appeal in terms of section 61(1) to the Minister against such award may be given or, if notice of appeal has been given, until the award of the servitude has        been      confirmed          on         appeal   or     the        appeal   concerned          has        not        been prosecuted or has been dismissed;

or                                                                                                         30

  • in the case of a servitude created by virtue of a statutory servitude protocol, the copies of the protocol and such other documents as may be required by the Registrar of Deeds for the registration of the servitude.
  • On receipt of the fees and documents referred to in subsection (2), the Registrar of Deeds    shall,     if            satisfied that       the        fees       and       documents         are        in         order,    cause     the        servitude            35 concerned to be registered on the title deeds of all pieces of land affected by it and in the appropriate registers in accordance with the terms of the award or agreement concerned:

Provided that the Registrar of Deeds may refuse to register a servitude referred to in subsection (2)(a) if, in his or her opinion, the award or agreement is not reasonably

free from ambiguity.                                                                                                  40

  • If the owner of land subject to a servitude fails to produce his or her copy of the title deed of the land for the purpose of registration, the Registrar of Deeds shall note the servitude on the title deed in the Deeds Registry and in the appropriate registers.
  • After making a note in terms of subsection (4), no other act of registration shall be made in respect of the piece of land concerned until the servitude has been 45

registered on the title deed of the owner of the land.

  • If the title deed referred to in subsection (5) is for any reason lodged with the Registrar of Deeds he or she shall retain the title deed until the servitude concerned has been registered thereon.
  • Whenever a formal or other minor alteration in the wording of a servitude awarded by the Commission is required for the purpose of registering the servitude, the alteration may be made under the signature of the chairperson of the Commission.
  • For the purpose of registering a servitude which, in the opinion of the Registrar of         Deeds,   cannot            adequately         be         defined  by         description,        a           diagram prepared            in accordance with the Land Survey Act [Chapter 20:12] shall be submitted to him or her showing the land subject to, and the situation thereon of, the servitude.

51 Disputes in connection with statutory servitudes

(1)  An interested party who is aggrieved by—

10                           (a)   any       act        or         omission            of         a           designated         officer   or         other       interested           party     in         connection with the exercise of the rights or obligations in connection with a statutory servitude after it has been created or varied, or by the interpretation of any provision of a statutory servitude protocol;  or

(b)      any       act        or         omission            of         a   designated                                                     officer   or         other     person   in         connection

15                                    with the application of section 49;

shall furnish to the Secretary (within thirty days of giving written notice of the dispute to the appropriate designated officer referred to in subsection (2)) the prescribed security for the costs of having the dispute determined by the Commission.

(2)                  If          a           designated         officer   responsible         for                                                             the      area      on         or         over      which    the        statutory

20 servitude        concerned          in         the        dispute  subsists, receives written  confirmation      from     the  Secretary that a disputant in relation to that servitude has furnished to the Secretary the prescribed security within the allowed period (or such longer period as the Secretary may   for        good     and       sufficient           reason  allow),  the        designated         officer   shall,     through the

Secretary, lodge with the Commission a written statement of the issues in dispute, and

25           thereafter—

  • the provisions of the Fifth Schedule and section 63 shall apply to the resolution of the dispute; and
  • section 47(2) applies to the rights, privileges and obligations of the disputants.

30 52 Registration of certain pre-existing servitudes or agreements for servitudes concluded before commencement of this Act

If           a           designated         officer   is          satisfied that       there     subsists  on         or         over      any land      in         the        area for which he or she is responsible—

(a) a pre-existing servitude that the lawful holders or occupiers of the land
35

40

(b) subject to the servitude are aware of, and have been exercising the rights and obligations deriving from, the servitude before the commencement of this Act; any rights or obligations in the nature of a servitude which, before the commencement of this Act, had been agreed between the lawful holders or occupiers of the land subject to the agreement, whether or not such agreement     was       brokered            by         any            officer   of         the        Ministry,           and       whether or            not such agreement has been reduced to writing;

then the designated officer shall, notwithstanding anything in section 45 and 46, act in terms of section 46(4), (5), (6) and (7) to create the statutory servitude embodying

45 the pre-existing servitude or the agreement referred to in paragraph (b) as if there is no dispute about the creation of a statutory servitude or about any compensation to be payable therefor.

PART X

finAnCiAl Provisions

53 Funds of Commission

(1)  The funds of the Commission shall consist of—

  • moneys appropriated by Act of Parliament for the salaries and allowances   5

payable to and in respect of members of the Commission and the recurrent

administrative expenses of the Commission;  and

  • any other moneys that may be payable to the Commission from moneys

appropriated for the purpose by Act of Parliament;  and

  • any donations, grants, bequests or loans made by any person or 10

organisation or any government of any country to the Commission with

the approval of the Minister;  and

  • any other moneys that may vest in or accrue to the Commission, whether

in terms of this Act or otherwise.

  • The Commission shall apply its         funds    to         the        fulfilment          of         its                   15
  • Moneys not immediately required by the Commission may be invested in

such a manner as the Commission, with the approval of the Minister and the Minister

responsible        for        finance, considers           appropriate.

  • Accounts of Commission and appointment of internal auditors
    • The Commission shall ensure that proper accounts and other records 20

relating to such accounts are kept in respect of all the Commission’s activities, funds

and property, including such particular accounts and records as the Minister may direct.

  • As soon      as         possible after      the        end       of         each      financial            year,     the        Commission

shall prepare and submit to the Minister a statement of accounts in respect of that

financial                                                                 year    or         in                                                          respect                                                                     of    such      other     period                                                              as                                                                        the    Minister may      direct.                                                              25

  • The internal auditors of the Ministry appointed in terms of section 80 of

the Public Finance Management Act [Chapter 22:19] (No. 11 of 2009), shall perform

the duties of internal auditors with respect to the funds Commission.

  • Audit of Accounts
    • The accounts of the Commission shall be audited by the Auditor-General, 30

who for that purpose shall have the functions conferred on him or her by sections 7

and 8 of the Audit Office Act [Chapter 22:18] (No. 12 of 2009).

  • Any person under the authority or supervision of the Commission who

refuses to provide the Auditor-General with an explanation or information required by

him or her for the purposes of an audit or knowingly provides the Auditor-General with      35

a false explanation or information, or an explanation or information that the person has

no         grounds for        believing           to         be         true,      shall      be         guilty    of         an         offence  and            liable    to         a           fine       not

exceeding level six or to imprisonment for a period not exceeding one year or to both

such      fine       and       such      imprisonment.

(3) Notwithstanding anything contained in subsection (1), the Auditor-General      40

may      appoint  a           suitably qualified            person   to         audit     the        accounts            of         the            Commission       and

if he or she does so—

  • subsections (1) and (2) shall apply in respect of the person so appointed as if he or she were the Auditor-General; and

 

  • any expenses incurred by the person so appointed in carrying out his or her audit shall be met from the funds of the Commission.

PART XI generAl

  5             56 Rentals payable by holders of partially alienated State land

(1) The Minister, after consultation with the Minister of Finance, may, subject to subsection (2), charge monthly or annual rentals to be payable by holders of partially alienated State land, and in so doing may—

(a)                                                                                                    fix  the        same     rate       of       rental    payable                                                                                                 by  all         holders of partially alienated

10                                     State land;

(b) fix         different      rates      of         rental    depending          on whether the partially alienated State land is held under a permit, offer letter, ninety-nine year lease, lease with a purchase option or any other kind of lease.

  • Subject to subsection (3), the rate of any rentals referred to in subsection 15 (1) shall      be         fixed     by       the        Finance Act       [Chapter 23:04].
  • The Minister may, by statutory instrument, prescribe the following in relation to the rentals payable by holders of partially alienated State land, which statutory instrument may, subject to subsection (4), take effect before the matters prescribed therein are        fixed     and       enacted  by         the        Finance Act       [Chapter 23:04] —

20 (a) the persons responsible for the payment, collection and remittal of the rentals;  and

  • the manner in which and the times at which the rentals shall be paid, collected and remitted; and
  • the basis upon which the rentals shall be calculated; and 25            (d) the date from which the rentals shall be collected:

Provided that such date shall not be earlier than the date of publication of the statutory instrument in the Gazette;

and

(e) the surcharge or interest, if any, to be paid by the persons referred to in 30 paragraph (a) for failure to pay or remit the rentals timeously.

(4)  If the matters prescribed in a statutory instrument made under subsection (3) are  not        fixed     and enacted  by         an         Act       of         Parliament         amending          the        Finance Act       [Chapter 23:04] within six months from the date of operation of the statutory instrument, the statutory instrument is deemed with effect from the expiry of that period to have been

35 annulled, without, however, affecting the validity of anything done under it in the interval between the date when it came into operation and the date of its annulment 57  Minister may give policy directions to Commission, etc.

  • Subject to subsection (2), the Minister may give the Commission such general directions relating to the policy the Commission is to observe in the exercise 40 of its functions as the Minister considers to be necessary in the national interest.
  • Before giving the Commission a direction in terms of subsection (1), the Minister shall inform the Commission, in writing, of the proposed direction and the Commission shall, within thirty days or such further period as the Minister may allow, submit to the Minister, in writing, its views on the proposal.
  • The Commission shall take all necessary steps to comply with any direction given to it in terms of subsection (1).
  • When any direction has been given to the Commission in terms of subsection

(1), the Commission shall ensure that the direction and any views the Commission has

expressed on it in terms of subsection (2) are set out in the Commission’s annual report.       5

  • Subject to subsection (6), where the Minister, after consultation with the

President, is of the view on reasonable grounds that any decision or action of the

Commission is not in the interests of—

  • the national defence, public safety or public order of Zimbabwe or is

prejudicial to the general public or national interest;  or                             10

  • the interests of holders of partially alienated State land as a whole;

the Minister may direct the Commission in writing to reverse, suspend or rescind such

decision or to reverse, suspend or rescind such action.

  • Before making any direction in terms of subsection (5), the Minister shall

inform the Commission in writing of his or her intention to do so, setting out the purport    15

of the proposed direction and his or her grounds for making it, and the Commission

may, within fourteen days of being so informed, make written representations to the

Minister on the matter.

  • The Commission shall, with due expedition or within a period that the

Minister may direct in writing, comply with any direction given to it in terms of          20

subsection (5).

  • Immunity

No legal proceedings shall lie against the Commission or any member of the

Commission or the Executive Secretary or any person acting under the direction of

the Commission in respect of anything which is done in good faith and without gross       25

negligence in pursuance of this Act.

  • Provincial, district and other offices of Commission

The  Commission       shall    endeavour                                                                                                             to  establish            a     principal                                                                                                         office  and       offices   at

provincial,         district  and       other     administrative    levels    as         it          considers           fit         for        the            better

performance of its functions.                                                                                     30

  • Entry upon land
    • The Minister or any person authorised thereto in writing by the Minister,

may, for the purposes of Part IV, at all reasonable times, enter upon any land with such

persons, animals, vehicles and appliances as may be necessary for the execution of

his, her or their duties and may enter and inspect any such land and do all such things      35

thereon as are necessary for surveys or investigations in connection with the carrying

out of anything authorised to be done under Part IV.

  • Any member of the Commission or a designated member of the staff of the

Commission may, for the purposes of Part VI, at all reasonable times enter upon any

farm which is the subject of an investigation under that Part or in respect of which an       40

order has been given in terms of that Part, together with such persons, animals, vehicles

and appliances as may be necessary for the purposes of conducting such investigation

or for ascertaining whether or not the terms of the order are being complied with.

  • Every member of the Commission or employee of the Commission

authorised by the Commission, and every inspector or a person authorised by the          45

Minister may, at all reasonable times, enter upon a holding with such other persons,

animals, vehicles and appliances as may be necessary for the purpose of examination of the holding or the farming operations being conducted thereon or ascertaining whether or not the permit holder, holder of the offer letter or lessee is complying with the terms and conditions of his or her permit or lease:

  • Nothing in this section contained shall be construed as authorising entry into a dwelling-house.
  • Any person who—

(a)             obstructs, hinders or prevents  entry upon land as is authorised by

subsection (1);  or

10                          (b) obstructs, hinders or prevents entry upon a farm in terms of subsection

(2);  or

  • obstructs, hinders or prevents entry upon a holding in terms of subsection

(3);  or

  • obstructs or hinders any person in the lawful exercise of his or her powers

15                                    or duties under this Act, whether in the course of an exercise of a power

of entry upon land in terms of this section or otherwise;

shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.

20             61 Appeals

(1) Subject to this section, any person who is aggrieved by—

  • the decision of, or action or lack of action on the part of, the Commission upon any dispute or complaint; or
  • such decision or action of the Commission as may be prescribed;

25 may, within twenty-eight days after being notified of the decision or action of the Commission concerned, appeal in writing to the Minister, submitting with his or her appeal such fee as may be prescribed, and such appeal shall suspend the operation of any decision issued by the Commission.

(2) For the purpose of determining an appeal the Minister may require the

30 Commission to furnish him or her with the reasons for the decision or action that is the subject of the appeal and a copy of any evidence upon which the reasons are based.

(3) The Minister, after due and expeditious inquiry, may make such order on any appeal as he or she considers just:

Provided that if the appeal involves any question of law, or any question of

35 mixed law and fact, the Minister may consult with the Attorney-General and obtain in writing from the Attorney-General an opinion concerning the legal aspects of the appeal, and such opinion shall (subject to subsection (5)) be conclusive of the question of law.

(4)  Without prejudice to the right of an aggrieved party to seek judicial review

40 of any decision of the Minister on appeal affecting him or her, the decision of the Minister   upon     the        appeal   shall  be         final.

(5)  Upon any review of the Minister’s decision in terms of subsection (4), the reviewing court shall do one of the following—

  • uphold the Minister’s decision on appeal; or
  • refer the matter of the appeal back to the Minister for reconsideration,

whether with or without directions on how the matter is to be reconsidered.

62 False statements in land applications

A person who, in connection with an application for a partially alienated State land right, makes a false statement, knowing it to be false or not having reasonable   5 grounds for believing it to be true, shall be guilty of an offence and        liable    to a           fine       not        exceeding level six or to imprisonment for a period not exceeding one year or to both such      fine and       such      imprisonment.

63 Regulations

(1)  The Commission may make regulations—                                                  10

  • prescribing anything which by this Act and its Constitutional mandate is required or permitted to be prescribed or which, in its opinion, is necessary or convenient to be prescribed for the carrying out or giving effect to this Act;
  • providing for the conditions of service of the Executive Secretary and the 15 staff of the Commission;
  • the charging of any fee in connection with any service provided by the Commission;
  • providing for the conduct of the Commission’s audit, investigative and

dispute settlement functions.                                                          20

  • Regulations made in terms of subsection (1) may create offences and provide for the imposition of penalties for the contravention thereof not exceeding level fourteen or, in default of payment, imprisonment for a period not exceeding six months.
  • The regulations of the Commission shall not have effect until—
  • the Minister has referred the regulations to Cabinet for its approval;  and          25
  • they have been published (with such amendments as Cabinet may have made) by the Minister in the

64 Repeal of Cap. 20:01 and Cap. 20:18; savings and transitional provisions

  • Subject to this section, the Agricultural Land Settlement Act [Chapter 20:01] 30 and Rural Land Act [Chapter 20:18] are repealed.
  • Despite the repeal of the Agricultural Land Settlement Act [Chapter 20:01]—
  • any lease, permit, offer letter, agreement or transaction issued or entered into or deemed to have been issued or entered into under that Act, and 35 in force immediately before the date of commencement of this Act, shall continue in force, and in the case of ninety-nine year lease or permit, be entered in the Register without compliance with the formalities for registration under Part VIII;
  • regulations made or deemed to have been made under that Act and in 40 force immediately before the date of commencement of this Act, shall continue in force until amended, replaced or repealed in terms of this Act and shall be deemed to have been made in terms of this Act;
  • anything done, or commenced under that Act and which, immediately

before the date of commencement of this Act, had or was capable of 45

acquiring legal effect, shall be deemed, on or after that date, to have been made, done or commenced under the appropriate provision of this Act and shall continue to have or to be capable of acquiring, as the case may be, the same legal effect;

  • any dispute commenced or complaint lodged under that Act involving the terms or issuance of a lease, permit or offer letter to which the Agricultural Land Settlement Board or the Ministry was a party or of which it was an intermediary shall, if not resolved before the commencement of this Act,

10 be referred to the Commission for settlement as a dispute or complaint in accordance with this Act.

(3) Despite the repeal of the Rural Land Act [Chapter 20:18]—

(a) an agreement or transaction entered into or deemed to have been entered into under that Act, and in force immediately before the date of
15

20

25

 

 

(b)

(c)

commencement of this Act, shall continue in force; regulations made or deemed to have been made under that Act and in force immediately before the date of commencement of this Act, shall continue in force until amended or repealed in terms of this Act and shall be deemed to have been made in terms of this Act; anything done, or commenced under that Act and which, immediately before the date of commencement of this Act, had or was capable of acquiring legal effect, shall be deemed, on or after that date, to have been made, done or commenced under the appropriate provision of this Act and shall continue to have or to be capable of acquiring, as the case may be, the same legal effect.

65 Transfer of certain employees from Ministry to Commission

(1) In this section—

“transferred member” means a member who has been transferred to the service of the Commission in terms of subsection (3) or (4).

30 (2) Any person who immediately before the commencement of this Act was employed by the State as a member of the staff of the Ministry or the Agricultural Land Settlement Board and who, with the leave of the Secretary and Civil Service Commission, wishes to be employed as a member of the staff of the Commission, may become so employed without any diminution in his or her previously applicable 35 conditions of service.

(3)  The assets and rights of the State which—

(a)                                                                                               before  the        fixed     date,     were        used         or                                                                                           otherwise  connected          with      the     Ministry

responsible for the repealed Agricultural Land Settlement Act [Chapter 20:01] and the Agricultural Land Settlement Board constituted thereunder;  and

40       (b)                                                        are           specified            by         the        Minister by         notice    in           a                                                     Statutory      Instrument;

together with any liabilities or obligations attaching to them, shall be transferred with effect     from     the        date specified            in         the        notice,   in         any       one       or         more     of         the        following ways—

  • to the Commission exclusively; or
  • to the Ministry exclusively; or

45 (iii) to the Ministry and the Commission jointly, in which event the accounting       officer   of         the        Ministry           responsible        for        this       Act       shall      continue            to         be         the           accounting         officer   in         respect  of         those     assets.

  • Any regulation, notice, circular or other document which, immediately before the commencement of this Act, regulated the conditions of service of any class of transferred members in terms of the Public Service Act [Chapter 16:04] shall continue, on and after that date, to regulate the conditions of service of—
  • those transferred members; and          5
  • any persons who join the Commission after the commencement of this Act and who are in the same class as those transferred members;

until the Commission replaces the regulation, notice, circular or other document concerned or otherwise alters the conditions of service concerned in terms of this Act.

  • If on the commencement of this Act— 10
  • there were disciplinary proceedings in terms of the Public Service Act [Chapter 16:04] pending against a person who, but for this subsection, would be a transferred member, such proceedings shall continue after the commencement of this Act in all respects as if such person is a member of the Civil Service and, if the proceedings result in the dismissal of that 15 person, that person shall not be transferred to the Commission;
  • any promotion or advancement was being processed in terms of the Public Service Act [Chapter 16:04] in relation to any transferred member, such promotion or advancement shall be processed and completed after the commencement of this Act in all respects as if such transferred member 20

is a member of the Civil Service and, if the promotion or advancement proceedings result in the promotion or advancement of that transferred member, that member shall be transferred to the Commission at the equivalent grade or post;

  • any civil proceedings were instituted and are pending against any 25 transferred member in         his        or         her     official  capacity,            such      proceedings       shall      continue and be completed after the commencement of this Act in all respects as if such transferred member is a member of the Civil Service.

66 Amendment of Cap. 20:10

The Land Acquisition Act [Chapter 20:10] is amended by the insertion in Part       30

VI of the following section after section 39—

“39A  Secretary may sit as observer in Derelict Land Board

The Secretary or his or her authorised delegate may, on written

notice to the Chairperson of the Derelict Land Board, sit in at any meeting  of the Board as an observer, that is to say, without participating in 35 its deliberations (unless invited to do so by the Chairperson).”.

FIRST SCHEDULE (Section 3(2))

Provisions relAting to Commission

Chairperson and deputy chairperson of Commission

  1. (1) The       chairperson        and       deputy   chairperson        of         the        Commission       shall hold      office    40 as      such      for        so         long      as         they      remain  members,          unless    they      earlier resign    their      offices.

(2)  The deputy chairperson of the Commission shall perform the chairperson’s functions whenever the chairperson is unable to perform them or the office of chairperson is vacant.

Terms of office and conditions of service of members

  1. (1) Subject to the Constitution, a member shall, subject to this Part, hold office for        such      period,  not exceeding          five       years,    as         the        President           may      fix        on         his        or her appointment.
  • A member shall      hold      office    on         such      conditions          as         the        President may      in         his        or         her        case
  • A retiring member shall be eligible for re-appointment for one more consecutive term.

Disqualification for appointment as member 10               3. (1)  In this paragraph—       “statutory body” means—

  • any commission established by the Constitution; or
  • any body corporate established directly by or under an Act for special purposes            specified            in       that       Act,      the        membership       of         which

15 consists wholly or mainly of persons appointed by the President, a Vice-President, a Minister or any statutory body or by a commission established by the Constitution.

(2) The President shall not appoint a person as a member and no person shall be        qualified            to         hold office    as         a           member who—

20                     (a)    has in terms of a law in force in any country—

  • been adjudged or otherwise declared insolvent or bankrupt and has not been rehabilitated or discharged; or
  • made an assignment to or arrangement or composition with his or her creditors which has not been rescinded or set aside;

25                             or

(b)         has        within   the        period   of         five       years     immediately       preceding          the        date of         his        or her proposed appointment, been convicted—  (i) within Zimbabwe of a criminal offence;  or

(ii) outside Zimbabwe of an offence by whatever name called which, if

30 committed within Zimbabwe, would have been a criminal offence;   and sentenced by a court to imprisonment for a term of six months or more,         without the        option   of         a           fine,      whether or         not        such  sentence            has        been      suspended, and has not received a free pardon.

(3) Any person who is—

35                               (a) a  Senator or member of the National Assembly;  or

  • a member of two or more statutory bodies; or
  • in the full-time employment of the State or the Commission; shall not        be         qualified            to       be         appointed          or         to         hold      office    as         a

Vacation of office by member

40        4.                       A          member shall      vacate   his        or         her        office    and       his        or her office  shall      become vacant—

(a) one month after the date he or she gives notice in writing to the President through  the        Minister of         his       or         her        intention            to         resign    his        or         her        office    or         after       the expiry of such shorter period as he or she and the President may agree;

45                                    or

  • thirty days after the date he or she is sentenced by a court to imprisonment referred to in paragraph 3(2)(b) after conviction of an offence referred to in that paragraph:

Provided that, if during the said period of thirty days an application         for        a           free       pardon  is          made     or         an         appeal   is          filed,     the          5 question whether the member is to vacate his or her office         shall      not        be         determined        until      the        final      disposal of         such     application         or appeal, whereupon the member shall forthwith vacate his or her office      and       his     or her office       shall      become vacant   unless    he         or         she is granted a free pardon, his or her conviction is set aside, 10 his or her sentence is reduced to a term of imprisonment of less than six months or a punishment other than imprisonment is substituted;

or

  • if he         or         she        becomes            disqualified        in         terms    of         paragraph          3(2) 15 (a) or in terms of subparagraph (3) of that paragraph to hold office    as         a           member;                 or
  • if he or she is required in terms of section 320 of the Constitution paragraph 3 of this Schedule to vacate his or her

President may suspend member                                    20

  1. (1) The President may,  pending the determination of the question of       a           member’s          continuance       in        office    by         a           tribunal referred to         in         section  187       of         the        Constitution,        suspend a           member from     his        or         her        office    if          the        President           is        satisfied that       the        member—
    • has been guilty of improper conduct as a member; or  25
    • has failed    to         comply  with      the        conditions          of         his        or         her        office     fixed     by         the        President           in         terms    of         paragraph          2(2);                 or
    • was absent without the permission of the Commission from three consecutive meetings of the Commission or of any committee of the Commission of which he or she is a member 30 and of which he or she has had notice; or
    • is mentally or physically          incapable           of         efficiently          performing        his or her duties as a member.

(2)        The       President           may      suspend from     office    a           member against  whom   criminal proceedings are instituted for an offence in respect of which a 35 sentence           of         imprisonment     without the        option   of a           fine       may      be         imposed and,      whilst that member is so suspended, he or she shall not carry out any duties or be entitled to any remuneration as a member. Filling of vacancies

  1. On the        death     of,        or         vacation of         office    by,        a           member the        President           40 may  appoint  a           person   to         fill        the        vacancy until      the        expiry   of         the        period        during   which the member would, but for his or her death or the vacation of his or her           office,   have        continued          in

Meetings and decisions of Commission

  1. (1) The Commission shall meet for the dispatch of business and 45

adjourn, close and otherwise regulate its meetings and proceedings as it thinks           fit.

 

(2) The chairperson of the Commission may himself or herself at any time, and shall at the request in writing of not less than two members, convene a special meeting of the Commission, which meeting in the latter case shall be convened for a date not less than seven days or more than thirty

5                                 days after the receipt of such request.

  • The chairperson or, in his or her absence, the deputy chairperson shall preside at all meetings of the Commission at which he or she is present.
  • If neither the chairperson nor the deputy chairperson of the

Commission are present at any meeting of the Commission, the members

10                               present shall elect one of their number to preside as chairperson at that meeting.

  • Half the members shall form a quorum at any meeting of the Commission.
  • All acts, matters or things authorised or required to be done

15 by the Commission may be decided by a majority vote at a meeting of the Commission at which a quorum is present.

(7) At all meetings of the Commission each member present shall have one vote on a question before the Commission and, in the event of an equality of votes, the chairperson shall have a casting vote in addition to a

20                                 deliberative vote.

(8) Any proposal circulated among all members and agreed to in writing by a majority of all members shall be of the same effect as a resolution passed at a duly constituted meeting of the Commission and shall be incorporated in the minutes of the next succeeding meeting of the

25                                 Commission:

Provided that, if a member requires that such a proposal be placed before a meeting of the Commission, this subsection shall not apply to such proposal.

Electronic meetings of Commission

30 8. (1)  In addition to meeting with members physically present, the Commission may hold or continue a meeting by the use of any means of communication by which all the members at the meeting can hear and be heard at the same time (hereinafter referred to as an “electronic meeting”).

35 (2) A member who participates in an electronic meeting is taken for all purposes to have been present at the meeting.

(3) The Commission may establish procedures for electronic meetings (including recording the minutes of such meetings).

Committees of Commission

40                                           9. (1)  For the better exercise of its functions the Commission may

establish one or more committees in which it may vest such of its functions as         it          thinks    fit:

Provided that the vesting of any such functions in a committee shall not divest the Commission of the functions, and the Commission may amend 45 or rescind any decision of the committee in the exercise of its functions.

  • The chairperson of the Commission or of a committee may at any time and at any place convene a meeting of that committee.
  • The procedure of any committee shall be fixed by the Commission.
  • On the establishment of a committee in terms of subparagraph (1) the Commission—
  • shall appoint to that committee at least one member of the   5

Commission who shall be the chairperson of that committee;

  • may appoint to that committee persons who are not members

of the Commission.

Minutes of proceedings of Commission and committees

  1. (1) The Commission shall cause minutes of all proceedings of and 10

decisions taken at every meeting of the Commission or of a committee of

the Commission to be entered in books kept for the purpose.

  • Any minutes referred to in subparagraph (1) which purport to

be signed by the chairperson of the meeting to which the minutes relate or

by the chairperson of the next following meeting of the Commission or the      15

committee concerned, as the case may be, shall be accepted for all purposes

as prima facie evidence of the proceedings of and decisions taken at the

meeting concerned.

  • The Commission shall cause copies of all minutes that have

been signed as provided in subparagraph (2) to be sent without delay to the      20

Minister for his or her information.

Members of Commission and committees to disclose certain connections

and interests

  1. (1) In this paragraph—

“relative”, in relation to a member of the Commission or a committee,    25

means the member’s spouse, child, parent, brother or sister.

  • Subject to subparagraph (4)—

(a)    if a member of the Commission or of a committee—

  • knowingly acquires or holds a direct or indirect pecuniary

interest in any matter that is under consideration by the       30

Commission or the committee;  or

  • owns any property or has a right in property or a direct or

indirect pecuniary interest in a company or association of

persons which results in the member’s private interests

coming                                        or    appearing          to                                                                                         come                                        into   conflict with      his                                                                                           or                                           her   35

functions as a member;  or

  • knows or has reason to believe that a relative of his or

hers—

  1. has acquired or holds a direct or indirect pecuniary

interest in any matter that is under consideration by      40

the Commission or the committee;  or

  1. owns any property or has a right in property or a

direct or indirect pecuniary interest in a company or

association of persons which results in the member’s

private interests coming or appearing to come into      45

conflict with his or her functions as a member;

or

(b) if for any reason the private interests of a member of the Commission     or         of         a   committee         come     into       conflict with      his        or functions as a member;

the member shall forthwith disclose the fact to the Commission or to the

5                                 committee, as the case may be.

(3) A member referred to in subparagraph (2) shall take no part in the consideration or discussion of, or vote on, any question before the Commission or the committee, as the case may be, which relates to any contract, right, immovable property or interest referred to in that

10                                 subparagraph.

(4) Any person who contravenes subparagraph (2) or (3) shall be   guilty    of         an         offence  and          liable    to         a           fine       not        exceeding          level     four      or         to          imprisonment     for        a           period   not        exceeding          three     months  or         to          both      such      fine       and such imprisonment.

15                                                            Validity of decisions and acts of Commission

  1. No decision or act of the Commission or act done under the authority of the Commission shall be invalid by reason solely because—

(a)    the Commission consisted of less than the minimum number

of members for which provision is made in section 296 of the

20                                                          Constitution;  or

(b)              a  person   disqualified        in         terms    of         paragraph          3          acted     as   a           member of the Commission at the time the decision was taken or the act was done or authorised.

SECOND SCHEDULE (Section 3(3))

AnCillAry Powers of Commission

  1. To acquire premises necessary or convenient for the exercise of its functions and for that purpose to buy, take on lease or in exchange, hire or otherwise acquire immovable property and any interest therein and any rights, concessions, grants, powers and privileges in respect thereof.
  2. To buy, take in exchange, hire or otherwise acquire movable property necessary or convenient for the exercise of its functions.
  3. To maintain, alter or improve property acquired by it.
  4. To mortgage any assets, or part of any assets and, with the approval of the Minister, to sell, exchange, lease, dispose or turn to account or otherwise deal with any assets or part of any assets which are not required for the exercise of its functions for such consideration as it may determine.
  5. To open bank accounts in the name of the Commission and to draw, make, accept, endorse, discount, execute and issue for the purposes of its functions promissory notes, bills of exchange, securities and other negotiable or transferable instruments.
  6. To insure against losses, damages, risks and liabilities which it may incur.
  7. With the approval of Minister, to establish and administer such funds and reserves not    specifically        provided            for        in         this       Act       as         the        Commission considers appropriate or necessary for the proper exercise of its functions.
  8. To pay such remuneration and allowances and grant such leave of absence and to make such gifts, bonuses and the like to members of the staff of the Commission as         it          considers
  9. To provide pecuniary          benefits for        members           of         the        Commission    on         their      retirement, resignation, discharge or other termination of service or in the event of their sickness or injury and for their dependants, and for that purpose to effect policies of insurance, provident funds or make such other provision as may be necessary to secure for its members and their dependants any       or         all         of         the        pecuniary          benefits to         which    the    provisions          of this paragraph relate.
  10. To purchase, take on lease or in exchange or otherwise acquire land for residential purposes or dwelling-houses for use or occupation by members of the staff of the
  11. To construct dwellings, outbuildings or improvements for use or occupation by members of the staff of the
  12. To provide security in respect of loans by the deposit of securities, in which the Commission may invest such money as it may consider necessary for the purpose.
  13. Subject to any conditions that may be imposed by the Commission from time to time, to provide loans to any members of the staff of the

Commission—

  • for the purpose of purchasing vehicles, tools or other equipment to be used by the members in carrying out their duties; or
  • not exceeding six months’ salary or wages payable to the members concerned, for any purpose and on such security as the Commission thinks adequate.
  1. To do anything for the purpose of improving the skill, knowledge or usefulness of members of the staff of the Commission, and in that connection to provide or assist other persons in providing facilities for training, education and research, including the awarding of scholarships for such training.
  2. To provide such services as the Commission considers appropriate and to charge for such services such fees as the Commission, may from time to time determine.
  3. To engage in any activity, either alone or in conjunction with other organisations or international agencies, to promote better understanding of land tenure issues.
  4. Generally to do all such things that are conducive to the performance of the functions of the Commission in terms of this Act or any other enactment.

THIRD SCHEDULE (Section 20(A))

mAtters in regArd to whiCh minister shAll give ConsiderAtion

  1. The size of the land units proposed in any development in relation to the nature of the development contemplated and the facilities proposed to be provided for its occupation and development.
  2. The suitability of the land for the type of development proposed in relation to existing development in adjacent areas and having regard to the area, position, soil, aspect and climatic conditions.
  3. The pattern of development in the area and the amenities available to the community likely to arise therefrom.
  4. The conditions proposed to be attached to the sale or lease of any land.
  5. The availability of access roads, existing or proposed to be provided,

5 the permanent water supplies existing or proposed to be provided, and any other improvements such as buildings, cattle dipping facilities, irrigation works or fencing, whether in existence or proposed to be provided.

  1. Any other matter which may be prescribed by regulation under section 21.

10                                                               FOURTH SCHEDULE (Section 29(1))

Provisions APPliCAble to leAses with oPtion to PurChAse

Interpretation in Fourth Schedule

  1.        In this Schedule—

“Compensation Fund” means the Fund that was established under

15                                                            section 18 of the Public Finance Management Act [Chapter

22:19] (No. 11of 2009) for the payment of compensation for land or improvements on land compulsorily acquired by the Ministry on behalf of the State;

“leasehold” means a leasehold to which this Schedule applies, that 20 is, land subject to a lease with a purchase option that was

concluded before the commencement of this Act.

Grant of title

  1. (1) Where a lease contains an option to purchase and such option has accrued and has been exercised, the lessee shall be entitled to a grant of

25                                 title in respect of his or her leasehold, if—

  • the whole of the purchase price in respect of the leasehold

has been paid or has been guaranteed to the satisfaction of the

Minister;  and

  • all rates and taxes due in respect of the leasehold to a rural

30                                                          district council have been paid;  and

  • the lessee has complied in all respects with this Act as

applicable to him or her and with the terms and conditions of

his or her lease;  and

  • in relation to a lease that commenced on or before the 30th

35                                                           September, 1975, in the case of an individual, the lessee is a

citizen of Zimbabwe or, in the case of a company, the majority

of the directors thereof are citizens of Zimbabwe;  and

(e) in relation to a lease that commenced on or after the 1st October,

1975, in the case of an individual, the lessee is a citizen of

40                                                     Zimbabwe or, in the case of a company, the controlling interest

therein is held by a person who is or by persons who are,

citizens of Zimbabwe.

(2)  The President may in special circumstances approve the grant of title to a lessee in respect of his or her leasehold notwithstanding the fact

45                                 that—

  • subparagraph (1)(c) has not been complied with; or
  • an option to purchase has not yet accrued to the lessee; or
  • in the case of a company, the majority of the directors thereof

are not citizens, or the controlling interest therein is not held by a person who is or by persons who are, citizens of Zimbabwe.  5

  • A grant of title referred to in subparagraph (1) or (2) shall be subject to—
  • the payment by the lessee of any title registration fee and land grant stamp duty;
  • any servitudes which are registrable against the leasehold; 10
  • the registration or noting against the title of a debt which in terms of any law must be so registered or noted;
  • the right in terms of this Act of the President to retake the land or any portion thereof;
  • any special conditions upon which the leasehold was leased. 15
  • Until the grant of title the lessee shall, notwithstanding that all moneys due from him or her to the State have been paid, continue in possession of the leasehold under the terms and conditions of his or her lease, including those under which the lease may be terminated or cancelled, and

subject to this Act.                                                                                     20

  • For the purposes of this paragraph, no person or persons shall be regarded as having controlling interest in a company unless such person has or such persons have the power to carry resolutions binding the company in all its affairs, by reason of leasehold shares in the company, and the power

to appoint and dismiss the majority of its directors.                                        25

Insolvency of lessee

  1. (1) If the estate of a lessee is sequestrated or assigned under the laws relating to insolvency, the trustee or assignee, as the case may be, of his or her estate may cede the lease to a person approved by the Minister in writing and upon such terms and conditions as may be imposed by the 30 Minister.
  • If the trustee or assignee, as the case may be, fails within six months, or such longer period as the Minister may in writing approve, after the date of his or her appointment to cede the lease, the lease shall terminate.
  • If a lessee which is a company is wound up, the provisions of 35

this paragraph relating to a trustee or assignee shall apply to the liquidator of such company.

Death or insanity of lessee

  1. (1) If a lessee dies or is detained as a mentally disordered or defective person under the laws relating to mental disorders or is, by order 40 of a competent court, declared incapable of managing his or her own affairs, the legal representative of the lessee, including any person empowered by law to administer or to give directions as to the administration of his or her estate, may, subject to this paragraph, cede the lease to a person approved by the Minister or continue the lease on behalf of the estate upon such terms 45

and conditions as may be imposed by the Minister.

(2) Until the lease is ceded or during the period the legal representative continues the lease on behalf of the estate, as the case may be, the provisions of this Act applicable thereto and the conditions of the lease         shall      be         fulfilled by         the        legal     representative     of         the        estate    or         on         his        or

5 her behalf by a person nominated by him or her and approved in writing by the Minister.

(3) If the legal representative of the estate—

(a)          gives not less than three months’ notice to the Minister of his or her  intention to terminate the lease;  or

10                                                     (b) fails within twelve months, or such longer period as the

Minister may approve, of the date of the death of the lessee or of the date of the issue of the order of court directing that the lessee be detained as a mentally disordered or defective person or of the date of issue of the order of court declaring

15                                                               the lessee incapable of managing his or her own affairs, to

notify the Minister in writing that he or she intends to cede or to continue the lease;  or

(c)              having     notified the        Minister of         his        or         her        intention            to  cede      the        lease,    fails      to         cede      it          within   such      period   as  may      be         fixed     by

20                                                          the Minister;

the lease shall terminate.

Termination or cancellation of lease

  1. (1)  A lessee may terminate his or her lease by giving not less than three months’ written notice of his or her intention to do so.

25                                            (2) If a lessee fails to comply with any term or condition of his or

her lease, the Minister may cancel the lease.

Rights and duties on termination or cancellation of lease

  1. (1) Upon the termination or cancellation of a lease in terms of paragraph 3, 4 or 5, the Minister shall have the right to retake possession

30                                of and, subject to paragraph 7, occupy the leasehold with all improvements thereon.

(2) The termination or cancellation of a lease in terms of paragraph 3, 4 or 5 shall not extinguish any debt due from the lessee to the State in terms of the lease.

35                                                                                         Improvements

  1. (1) Where the lease has been terminated or cancelled in terms of paragraph 3, 4 or 5, compensation shall be payable from the Compensation Fund to the lessee or his or her  trustee, assignee or legal representative, as the case may be, for improvements effected on or to the leasehold.

40 (2)  In lieu of the payment referred to in subparagraph (1) the Minister may permit the lessee or his or her trustee, assignee or legal representative, within three months of the termination or cancellation of his or her lease in terms of paragraph 5, to remove any improvements effected by him or her or on his or her behalf on or to the leasehold:

45                                           Provided that—

  • any rent due in respect of the leasehold, any amount due to the State in respect of any improvement on the

 

leasehold and any amount outstanding on any loan made

to the lessee in respect of the leasehold or his or her

farming operations on the leasehold by the State or the

Corporation       as         defined  in         section  2          of         the        Agricultural

Finance Corporation Act [Chapter 18:02] is paid or            5

repaid, as the case may be, before such removal;

  • such removal is effected without injury to the land.

FIFTH SCHEDULE (Section 36(2)(A))

ruLEs rELating to appEaLs and dEtErmination of disputEs by

Commission                                                                      10

Costs

  1. The costs of appeal or dispute that is determined by the Commission

shall be borne by each party to the appeal or dispute, unless the Commission

is of the opinion that a disputant or his or her legal practitioner was being

vexatious, frivolous or dilatory in the pursuit of his or her claim, in which        15

event the Commission shall award costs against the disputant or de bonis

propriis against the representative, as the case may be.

Legal representation

  1. A party to an appeal or dispute that is to be determined by the

Commission may be represented by a legal practitioner:                                 20

Provided that the legal practitioner shall not recover any costs

exceeding the amount of the costs which he or she would have recovered

had he or she instituted the proceedings in a magistrates court.

Penalisation of dilatory conduct

  1. The Commission may order a legal practitioner representing a party 25

to an appeal or dispute that is being determined by the Commission to pay

a civil penalty not exceeding level two (ten United States dollars) for every

day by which a sitting of the Commission has had to be postponed because

of the absence at that sitting of the legal practitioner, if the legal practitioner

has been given due notice of the date of the sitting, and the Commission is       30

of the opinion that his or her absence was due to negligence or intentionally

dilatory conduct on his or her part.

Condonation of delays

  1. The Commission may extend any of the times and periods set out

in these rules on good cause being shown or by agreement of the parties.         35

Rules for appeals

  1. (1) When any person has given notice of an appeal he or she shall

state the grounds of his or her appeal and set forth in writing all the facts

which he or she considers material and relevant and the contentions in law

based thereon.                                                                                           40

Such statement shall be called the “appellant’s case” and shall be lodged

with the Commission in duplicate within sixty days of the date on which

notice of appeal is given to the Secretary or other person against whom the

appeal is made (“the respondent”).

(2) Should the statement of facts in the appellant’s case be admitted      45

by         the        respondent         to         be         sufficient           and       correct, the        respondent         shall      within

fourteen days of the lodging of the appellant’s case draw up and submit to the appellant a document embodying the admitted statement of facts, the contentions in law of the appellant and the contentions in law of the respondent. Such document shall be called an “agreed case”.

5                                             (3) The appellant and the respondent may agree to a statement of

facts, each setting out his or her respective contention in law based on such facts, in the form of an agreed case.

(4) The agreed case shall be transmitted to the Commission by the respondent within fourteen days of submitting the agreed case to the appellant

10 in terms of subrule (2), and the arguments on appeal and the decision of the Commission     shall      be         confined          to         the        facts      admitted.

(5) Should the respondent not admit the statement of facts in the appellant’s          case      to         be         correct  or         sufficient,          or         should   he         or         she        not        come     to an agreement with the appellant on a statement of facts, the respondent

15                                shall within thirty days of the receipt of the appellant’s case lodge with the appellant a statement setting out which of the allegations he or she admits as correct and which he or she denies, and shall set out all such other facts which he or she considers relevant and material to the determination of the appeal. The respondent shall also state his or her contentions in law. Such

20                                 statement shall be called the “respondent’s case”.

(6) Should the appellant and the respondent not agree in regard to the statement of facts, the respondent shall transmit to the Commission the appellant’s case and the respondent’s case within thirty days of the lodgement of the respondent’s case with the appellant.

25 (7) The Commission shall, after consultation with the parties, notify them of a day, time and place for the hearing of the appeal, such day being not less than thirty days after the receipt of the agreed case or of the appellant’s and respondent’s cases, and shall give notice to the Commissioner of the appointed day.

30 (8) If any facts are in dispute either the appellant or the respondent may call such evidence and produce such documents at the hearing of the appeal as may be deemed material and relevant.

(9) If neither the appellant nor anyone authorised to appear on his or her behalf appears before the Commission at the time and place appointed

35 for the purpose then the Commission, upon the request of the respondent and upon proof that the prescribed notice of the sitting of the Commission has been given to the appellant, shall uphold the respondent’s case, unless any question of law arises, in which case the Commission may, before giving its decision, call upon the respondent for argument in support of his or her

40                                 case.

Rules for disputes

  1. (1)        The       Commission       shall      appoint  a           legally   qualified member of the staff of the Commission or (unless the State or the Secretary is a party to the dispute)     may      avail         itself     of         the        services of         any       legally   qualified            employee           of

45 the Ministry or of the Ministry responsible for justice  to be an intermediary between the parties to any dispute to be determined by it.

(2) The intermediary shall assist the parties to the dispute to state the grounds upon which they base their contentions, setting forth in writing

 

all the facts which each of them considers material and relevant and the contentions in law based thereon.

The statements so prepared shall be lodged with the Commission in duplicate within sixty days of the date on which notice of the dispute is

given to the Commission.

(2)                Should the statement of facts in the disputants’ statements be admitted            by         each      of         them     to         be            sufficient           and       correct, the        intermediary      shall            within fourteen days of the lodging of the disputants’ statements  draw up and submit to each of them a document embodying the admitted statement of facts, and the contentions in law of the disputants. Such document shall be called an “agreed case”.

(3)                The agreed case shall without delay be transmitted to the Commission by the intermediary, and the arguments on the dispute and the decision of         the        Commission       shall      be         confined            to         the        facts      admitted.

(4)                Should the disputants not admit the statement of facts in each of            their      statements          to         be         correct  or            sufficient,          or         should   they      not        come     to            an agreement with each other on a statement of facts, the intermediary shall without delay after completing their statements lodge with each of them a statement setting out which of the allegations the disputants admit as correct and which they deny, and shall set out all such other facts which the intermediary considers relevant and material to the determination of the dispute.

(5)                Should the disputants not agree in regard to the statement of facts, the intermediary shall without delay transmit to the Commission the respective statements of the disputants.

(6)                The Commission shall, after consultation with the disputants, notify them through the intermediary of a day, time and place for the hearing of the dispute, such day being not less than thirty days after the receipt of the agreed case or of the disputants’ statements.

(7)                If any facts are in dispute any of the disputants may call such evidence and produce such documents at the hearing of the dispute as may be deemed material and relevant.

(8)                If any party to a dispute or anyone authorised to appear on his or her behalf does not appear before the Commission at the time and place appointed for the purpose then the Commission, upon the request of the other disputant and upon proof that the prescribed notice of the sitting of the Commission has been given to the absent disputant, shall uphold the other disputant’s case, unless any question of law arises, in which case the Commission may, before giving its decision, call upon the disputant who is present to present argument in support of his or her case.

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