UNIVERSITY OF ZIMBABWE

DEPARTMENT OF GEOINFORMATICS AND SURVEYING

SV420 LAND LAW

LECTURE NOTES

JULY 2010

LECTURER: DAVID NJIKE

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COURSE OUTLINECourse Description

The basic objective of this course is to give students an understanding of Land Law in Zimbabwe. This involves a consideration of the relevant statutes and principles of common law. Indeed, many aspects of land and property law are governed by principles that have developed over hundreds of years and as a result of judicial precedents.

What rights in land vest in the state? What is the concept of ownership? Are there other rights in land besides ownership? How are problems of encroachment dealt with? These are just some of the issues that will be looked at in this course.

Course RequirementsStudents will be expected to submit a written assignment which will count as their course mark for the semester.

SYLLABUS1. Basic Concepts of Law

1.1. What is Law?1.2. Roman-Dutch Law1.3. Sources of Law1.4. Structure of the courts1.5. Legal Practitioners

2. Legal Rights2.1. Real Rights2.2. Personal Rights

3. The concept of ownership3.1. Rights in corporeal things3.2. Rights in incorporeal things3.3. Possession3.4. Alienation

4. Acquisition of Rights in land4.1. Delivery4.2. Succession4.3. Marriage4.4. Contract4.5. Order of court4.6. Expropriation

5. Partial Rights in Land5.1. Usufruct5.2. USUS5.3. Fidel Commission

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5.4. Habitatio5.5. Servitudes5.6. Lease5.7. Mortgage5.8. Lien

6. Encroachment7. Land Acquisition

7.1. Introduction to the Land Acqusition Act No. 3 of 19927.2. Designation7.3. Acquisition7.4. Compensation

8. Conveyancing8.1. Organising of Deeds registration8.2. Provisions relating to documents8.3. Duties and powers of registrar8.4. Conveyances8.5. Land registration8.6. Power of Attorney8.7. Analysis of Deed of Transfer8.8. Document to be lodged

9. The Land Survey Act10. The Surveyors Act11. International Law and International Boundaries

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LIST OF LEGISLASTION FOR TRIAL SURVEY AND LAW EXAMINATION

Enactment of legislation is a responsibility of parliament and the duly delegated organs of the State. The statutes can be enacted, amended or repealed at any time and it is the duty of every citizen to keep abreast with these variations as published in the Government Gazette.

1. LAND SURVEY ACT (CHAPTER 20:12

- the whole

Land Survey (General) Regulations. 1979. As amended – whole.

2. LAND SURVEYORS ACT (Chapter 27:06)

- the whole

Land Surveyors (General Rules), 1990 S.1 96/1990. - the whole

Legal Practitioners Act (Chapter 27:07) - relevant sections

3. REGIONAL, TOWN AND COUNTRY PLANNING ACT (CHAPTER 29:12)

Part III, Section 10Part IV. the wholePart VI. the wholePart VII Section 45 – 47 general appreciationPart VIII the general appreciationPart IX The whole, Part X, general appreciationPart XI, section 68 (2) (b)

Regional. Town and Country Planning (Subdivisions and Consolidation) Regulations SI 924/1976 - the whole

4. INNER BANK TITLE ACT (CHAPTER 20:09)

- the whole

General Law Amendment Act (Chapter 8:07) - the relevant sections

5. LAND OCCUPATION CONDITIONS ACT (CHAPTER 20:11)

- Section 12

6. PRESCRIPTION ACT (CHAPTER 8:11)

Parts I, II, III

7 MINES AND MINERALS ACT (CHAPTER 21:05)

Part IV, sections 46,47,51, 52, 57 Part VIII, the whole with special attention to sections 135, 137, 143, 144, 151, 154 and 155Part XXVII, 397 and 398

General Law Amendment Act (Chapter 8 : 07) - relevant sections

8. ROADS ACT (CHAPTER 13:12)

Section 3, definitions of "branch road", "declared road", "district road", and “main road" and "road".

- Sections 5, 6, 7, 11, 12, 18 and 28

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General Law Amendment Act (Chapter 8:07) - the relevant sections

9. DEEDS REGISTRIES ACT (CHAPTER 20:05)

- Parts II, the whole- Part III, the whole with special reference and attention to 10, 13 and 14- Part IV the whole with special reference and attention to sections 16-18, 20-22, 24, 27. 29, 40 - 42

- Part V, section 50- Part VI, 56 - 60, 63, 65, 66

(64 general appreciation) - Part VII, 71, 76, 82, 87 general appreciation

10. LAND ACQUISITION ACT (CHAPTER 20:10)

Part III only – general appreciationAdministrative Court Act (Chapter 7:01)High Court Act (Chapter 7:06)

11. PIPELINE ACT (CHAPTER 13:08)

Section 2, 4, 8 and 9

12. COMMUNAL LAND ACT (CHAPTER 20:04)

-general appreciation with special attention to sections 4, 10 and 11

13. TITLE REGISTRATION AND DERELICT LANDS ACT (CHAPTER 20:20)

- general appreciation

14. RURAL LAND ACT (CHAPTER 20:18)

-general appreciation

- Rural Land (Farm Sizes) Regulations, SI 419/1999 - the whole

15. TRADITIONAL LEADERS ACT (CHAPTER 29:17)

Part VI – appreciation and vision

16. FENCING ACT (CHAPTER 20:06)

General appreciation with special reference to Section 31 and 32

Legal Practitioners Act (Chapter 27:07) - relevant sections

High Court Act (Chapter 7:06) - relevant sections

17. URBAN COUNCILS ACT (CHAPTER 29:15)

Part X - the whole

Legal Practitioners Act (Chapter 27:07) - relevant sections

18. ADMINISTRATIVE COURT ACT (CHAPTER 7:01)

- general appreciation

19. WATER ACT (CHAPTER 20:24)

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Section 2 - definitions of "area under the jurisdiction of a local authority", "catchment area", "permit", "existing permit", "provisional permit", "temporary permit", "final permit", "owner", "non riparian owner", "primary purpose", "public stream", "riparian land", "riparian owner", "water storage works" and water works.- Part III - general appreciation,- Part IV - the whole- Part VII - the whole- Part VIII - the whole'- Part IX - definition of "full supply level" and "high flood level", - Part XII - section 124

General Law Amendments Act (Chapter 8:07) - relevant sections

(It is important to realise that Chapter (20:22) was repealed and replaced with Chapter 20:24. It is important to appreciate(It is important to realise that Chapter (20:22) was repealed and replaced with Chapter 20:24. It is important to appreciate the differences in the two pieces of legislation and the definitions of the following terms that no longer exist in the currentthe differences in the two pieces of legislation and the definitions of the following terms that no longer exist in the current Act; section 2 - "flood water", " existing right", "final right", "lapsed right" and "normal flow". Act; section 2 - "flood water", " existing right", "final right", "lapsed right" and "normal flow".

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1. BASIC CONCEPTS OF LAW1.1. What is Law?A simple definition of law is

“the body of rules which a state or community recognizes as binding on its subjects or members, and which determines those persons’ rights or duties.”

The famous 19th Century English Legal Scholar John Austin defined Law as “The General Commands of a Sovereign supported by the threat of sanctions”.

More modern scholars have tended to emphasize the importance of the judiciary in determining what law is. Accordingly it is possible to extend Austin’s definition so that it now reads

“Laws are the General Commands of the Sovereign supported by the threat of sanctions,“Laws are the General Commands of the Sovereign supported by the threat of sanctions, as interpreted and determined by the court”.as interpreted and determined by the court”.

Definitions of this sort fall within the school of JURISPRUDENCE known as positivism, which holds that law is simply what legitimate authorities declare it to be. This position contrasts with that of the natural law school which argues that law, in order to qualify as law in the full sense of the word, must contain within itself a minimum moral context.

Consider the following example: - A positivist believes that any bill duly passed by parliament is law. There is no need for any further enquiry. The naturalist however, will want to know first what the content of the legislation is. If he finds that it violates what he might refer to as the moral law of the universe, he will not regard such an enactment as Law. Eg legislation that perhaps discriminates against certain specified groups in a way deemed to be unacceptable will clearly fall within the ambit/parameters of enactment lacking the necessary minimum moral content to qualify as LAW.

The essential purpose of law is to regulate human behavior. This obviously involves establishing beforehand what the rules of conduct are. In this connection it is important to grasp that in most cases the law is only concerned with the external behavior of members of society. Thoughts are not subject to punishment. However it must be stressed that in many instances, but not all, a person’s legal liability would depend on whether his act was accompanied by the requisite intention.

The word Sanctions simply refers to punishments or penalties. A person convicted of a criminal offence will be punished by being sentenced to a term of imprisonment, fined or even executed, depending on the nature of the offence. Sanctions can also be applied in civil matters. Briefly, civil litigation embraces all those court cases that are not criminal e.g. a breach of contract action would be an instance of civil litigation. A party who fails to perform his obligations in terms of a validly constituted contract would find himself subject to a court order for either specific performances or damages.

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A deed of sale of a piece of land must be in writing and signed by the parties to the sale or by their authorized agents. If the deed of sale document is not formally correct, it is null and void. Thus there is no sale and o contract. This is a sanction of nullity.Another term that frequently crops up is “equity”. This is a collection of principles based on conceptions of ideal justice but not supposed to be instinctively known. In this respect it is similar to the idea of natural justice referred to earlier.

The Purpose of Law.In its general sense, a norm is a rule or law which governs our ordinary, everyday activities in a recognized and standard way. We have moral codes, laws of etiquette and fashion, and rules applicable to certain games. The laws pertaining to all such aspects are norms. The norm we are talking about here is the legal norm, or one that has been called “the law of the Law Courts”. Expressed in other words, we wish to learn about the laws regulating human conduct which are dealt with by the courts of law, all for the following reasons.

a) Preservation of order.The law would not be required if all people were perfect. If they were, there would not be the continual conflict of interests which does, in fact, take place. In providing rules of conduct, the law stipulates what must be done, what may be done and what must not be done. This is in order that the individual and collective rights of each member of the community may be protected. The law tries to prevent one person’s rights clashing with another’s, and the rights of an individual from clashing with the rights of the community. It tries to preserve peace and order.

b) JusticeJustice is what appears to be right and fair to the fair-minded man. It is a remarkable fact that the fundamental principles of justice are principles common to virtually all developed legal systems. The machinery by which these principles are put into effects varies between nations but the basic principles remain the same. Human nature, generally speaking, remains the same wherever it may be. Among the element that form an integral part of the man’s being is the sense of what is right and just. If every selfish interest were eliminated, men the world over would arrive at practically the same conclusion in interpreting a problem of right and wrong. The more “just” the law, the more likely it is that people will obey it. Law must conform to the prevailing sense of justice in a community or it will fail to preserve peace.

Principles of LawWe may classify the principles of law as follows:

a) Just Applicationb) Equalityc) Uniformityd) Authoritye) Certainity

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1.2. Roman-Dutch LawIn Zimbabwe and South Africa, the common law is referred to as the Roman-Dutch law. Common law is law that doesn’t emanate from Parliament. This system of law originate in Holland and was transplanted into South Africa as a result of the colonial process. In more recent years, our system of law has also been strongly influenced by English law so that while our system still referred to as the Roman-Dutch law, it is in fact a kind of hybrid of English and Roman-Dutch law.

1.3. Sources of LawThe laws that apply in Zimbabwe originate from several different sources as follows:

a) CustomThis is an important source of law at the level of international law where the way in which states behave with respect to each other in order to create binding rules of customary international law. In Zimbabwe the constitution express the rules of African customary that will be made use of with regard to certain types of situations. Four requirements must be satisfied if a custom has to be recognized as such: The custom must be reasonable The custom must have existed for a long time The custom must generally be recognized and observed the community The content of the customary rule must be clear and certain.

b) Legal writingsA Fundamental source, where Parliament has not legislated concerning a particular matter and where no appropriate case law precedent exists, a court of law will look to the writings of the old jurists for guidance. In the Roman-Dutch tradition, the most important writers: Note in particular the treaties of Grotius, Van Leeuven and of Voet, all 17 th century Dutch jurists. Also the Corpus Juris of Roman Law.

c) LegislationThis is law created by legislative bodies, the most notable being Acts of Parliament. Other subsidiaries also exist such as Town Councils, Urban & Rural Councils etc. Also known as statute law. The validity of an act of Parliament cannot be questioned, but its interpretation is a matter for the courts. All other statutes are subordinate to an Act of Parliament.In some cases ministers are also empowered by acts of Parliament to create subsidiary legislation. All subsidiary law making bodies are only entitled to create regulations in respect of matters delegated to them by Parliament. In Zimbabwe, all legislation must be framed in terms which do not conflict with the wording of the constitution. Acts passed by Parliament which are contrary to a provision of the constitution may be struck down as invalid by the Supreme Court.

d) Case law or adjudication:

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Judicial decisions make law and decide on the meaning of statutes. By judicial decisions are meant court judgments. A court will always stand by its own decision or by the decision of a similar ranking or higher court, unless that decision has been proved wrong.

Does this mean that the Courts actually create new law? YES and NO.

YES - in the sense that where there are gaps in Common Law, the courts will use a process of inferential reasoning to develop and expand the law.

NO - in the sense that strictly speaking all the courts do is apply the law as enunciated by parliament, the jurists or case precedence.

The principle by which courts are bound by precedent is known as the principle of stare decisis. All important judgments are published in law reports for reference purposes in future cases.

Law reports on all cases of interest are published in the Zimbabwean law reports, a practice which extends back to about 1891. These reports summarize the litigation and give the judges’ full written judgment.

1.4. Structure of the courtsThe highest legal authority in Zimbabwe is the Supreme Court of Justice. Inferior courts include High courts and Magistrate Courts in descending order. There is a high court in Bulawayo and Harare and there is a Magistrates Court in most of the main urban centres of Zimbabwe. The power of these courts is limited.

Judgments given in the Magistrates Courts do not establish binding legal precedents and are not reported in the law reports, only the judgments in Supreme and High Courts do. Both High courts and Magistrate Courts are trial courts in others words they are courts of first instance. A trial court is a court that seeks to discover facts by reviewing evidence and hearing witnesses. Once the facts have been obtained it is then possible to decide what principles of law ought to apply. The supreme court is usually confined to hearing appeals and is generally not a court of first instance. However section 24 of the constitution makes it clear that the persons who feel a constitutional right has been infringed, can take their cases directly to the Supreme court.

1.5. Legal PractitionersEver since 1981 when the bar was fused, all legal practitioners have been entitled to appear in all courts. Previously only advocates were allowed to appear in higher courts. Advocates tend to specialize in litigation i.e. court proceedings, while attorneys specialize in drawing up wills, contracts as well as practicing conveyancing (land transfers).

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2. LEGAL RIGHTS

A legal right is an interest conferred by and protected by the law entitling one person to claim that another person(s) either give him something or do a particular act for him or refrain from doing an act. Right can thus be framed in either positive or negative sense. The existence of a right also implies the existence or corresponding obligation. From this definition follows the concept of right in things (jura in re). These are negative rights.

If you have the right to use and enjoy an object this is the same as having a legal right to insist that all persons i.e. everyone in the world other than yourself refrain from using and enjoying that object and refrain also from preventing or impairing your use and enjoyment of if. In other words you can but all others cannot. In the latter respect we have an example of a negative right.

It is important to distinguish real rights from personal rights.

2.1. Real RightsReal right (direct relation with a thing). A real right establishes a direct legal connection between a person and a thing, the holder of the right being entitled to control that thing within the limits of his right without necessary relation to another man. Silberg and Schuman in their book “The law of property” note that,

“The power of direct control which is conferred from the holder of a real right is as a general rule protected against interference by any other legal subject, emphasizing that a real right is a right to a thing conferring a power of direct control over such thing. We should accordingly bear in mind that it also constitutes legal relationships between legal subjects having a right to a thing which, as a general rule is enforceable against all other persons i.e. against any person who seeks to deal with the thing to which is inconsistent with the exercise of the holder’s power to control it”.

It must follow therefore that real rights are basically a species of absolute right; some examples will help to illustrate this point.

Since a person’s right of ownership is absolute, he may generally enforce it against persons who have quiet control of the property as a result of its having been stolen. This right does not only apply as against the actual thief but also against subsequent purchaser in good faith or indeed any other person. The owner is entitled to return of the property in question, mere payment of compensation will not suffice since the property or thing is the real object of his right of ownership.

In the same way, the holder of a servitude in respect of a piece of land has the right to enforce the servitude being a real right, against both the original grantor and the latter’s successes in title. Whether or not they have any knowledge of the existence of the

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servitude is irrelevant being servitude that creates a real right. It runs with the land. The land is the object of the right.

2.2. Personal RightsPersonal right (related to the person who is related to the thing). In terms of a personal right on the other hand, a person becomes bound to the holder of the right to render a particular performance i.e. to do or not to do something, the performance itself being the object of the right. It never establishes a direct legal connection between its holder and the thing if any in respect of which a performance has to be rendered. A personal right may generally only be enforced against particular persons where some kind of special legal relationship has been established in terms of e.g. contract. This means that personal rights are essentially relative rights. Silberg and Schuman illustrate this point;

“Suppose O Sales his car to P1 who consequently acquires a personal right by virtue of a contract of sale, which entitles him to claim delivery from O. Before delivery takes place, O enters into a second contract of sale in respect of the same vehicle i.e. with P2 who is unaware of the prior sale. P2 forthwith takes the car and thus becomes the owner thereof. The personal right acquired by P1 will not enable him to successfully claim the car from P2 because it is enforceable only against a particular person(s), in this case O. If, however the vehicle was delivered to P1 prior to the 2nd sale and as a result of which P1 acquired a real right of ownership, he will be able to claim the return of his car from whosoever is in control of it because the right is enforceable against the word at large being an absolute right”.

Finally it is important to understand to understand what constitutes a person in terms of the law. Any subject of law is a person, anything that can have rights. Naturally individual human beings are persons, however in addition, entities like companies and statutory bodies are also regarded as legal persons even though they are artificial entities.

3. THE CONCEPT OF OWNERSHIP

Ownership may be defined as a sum total of all rights in a thing. Ownership gives the person in whom the right refers the right to use, change and even destroy the thing in question. The owner is entitled to use its fruits and prevent others from using it and transfer rights in respect of the thing. Of course ownership rights may be subject to limitations imposed by law.

If on the other hand one enjoys only some of the possible rights in a thing, the relationship cannot constitute ownership. At this point it is necessary to understand the meaning of the word ‘Re or Res’ in Latin. Certain things may obviously be owned e.g. a bicycle or a right of way while other things may not be owned e.g. the air or the high seas. Those things capable of ownership are of two types namely corporeal and incorporeal. These terms date from the time of the Roman law where corporeal things were those things which were tangible while

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incorporeal things were things that were intangible such as rights. In essence this definition is still valid today, basically the test to be applied is, can the thing in question be perceived by the senses. If it can, then it is obviously corporeal. Both corporeal and incorporeal things may be further subdivided into movable and immovable things. Silberg and Schuman note, “It is not only of theoretical but also of the greatest practical importance insofar as the law applicable to these two classes of things often differs substantially e.g. for a valid transfer of ownership registration in a deeds registry is required in respect of immovable things while delivery suffices in the case on movables”.

3.1. Rights in corporeal thingsBasically movable corporeal things are items that can be readily be moved from one place to another. Of course it must be noted that some immovable things may become movable after being quarried e.g. hitherto immovable stone becomes movable. On the other hand a movable thing may be attached to something immovable by either natural or artificial means so that it becomes part of the immovable thing in question. Three factors are taken into account in deciding whether the movable thing has lost identity.

Objectively the nature of the thing and the manner of its annexation must be considered.Subjectively the intention of the owner of the movable at the time of its annexation is also important.

Immovable corporeal things include land and everything attached to the land by natural or artificial means e.g. a growing crop of wheat.

3.2. Rights in incorporeal thingsAn incorporeal thing may also be regarded as either movable or immovable, however it is important first to distinguish clearly between real and personal rights i.e. between rights having and rights having performance as objectives respectively. All personal rights are movable, this is in spite of the fact that the performance concerned relates to the transfer of immovable property. With respect to real rights, distinction has to be made between real rights that have immovable things as their object and real rights that have movable things as their object, former unnecessary immovable while the latter are movable e.g. mineral rights and praedal servitudes are classified as immovable. Consequently usufruct of a herd of cattle is movable while usufruct of land is immovable. (Usufruct means right to use of fruits).

The ownership of a thing involves a legal relationship between a person and a thing which a person and a thing which if established to the satisfaction of the law means that title to the property vests in the owner.

What exactly is title?Essentially title is proof of ownership. It is often difficult to prove title in respect of movable things. Since often no legal document exists that reflects the fact of ownership. Actual

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possession of a movable thing does generally raise the presumption of ownership. However this presumption may be rebutted.

As far as immovable are concerned especially land and land rights, proof of ownership is straight forward and usually difficult to dispute mere possession i.e. the physical control of a thing with the intention of retaining that control for one’s own benefit is never by itself a lone proof of ownership, it is quite possible to retain the ownership of land even after what has been divested of the right of possession. Note that some of the right of ownership may be delegated from by statute e.g. in our modern world a land owner will not usually enjoy all the rights of ownership in respect of his land e.g. one cannot build a house on a piece of land without municipal or government approval, consent is also needed with regard to subdividing the land. The use to which land is put ia also subject to control e.g. one is not entitled to use a residential plot in e.g. Mt. Pleasant as a cattle market.3.3. Possession3.4. Alienation

4. ACQUISITION OF RIGHTS IN LAND

There are several different ways in which rights in land can be acquired.

4.1. DeliveryThis is referred to in Latin as ‘traditio’, as a prerequisite to delivery, certain conditions have to exist, these are as follows:

a) The thing must be capable of ownershipb) It must be possible for the owner to transfer ownership and the owner must indeed

intend to transfer ownershipc) Transferee has to be able to receive ownership and must in addition intend to receive

ownership.d) The type of delivery used must be appropriate to the particular circumstances, with

regard to the delivery of immovable. This will take place through registration or conveyance. If the right in question that is being transferred is personal, a contract will suffice to effect delivery.

e) Where there has been a cash sale, payment must be made.

There are various forms of delivery, in the first place there’s physical or actual delivery. This is known as ‘traditio vera’, where this occurs, the thing in question is physically handed over by the transferor to the transferee while their intentions determine the nature of real right which the latter obtains in it i.e. the right of ownership. In most instances neither the objective nor the subjective aspect of the transfer will lead to any difficulties, the intention of the transferee is usually indicated by the way he acts. Sometimes however, it will not be so easy to ascertain what was intended by the transferor e.g. did he intend to transfer ownership to the transferee or did he merely intend to make the latter his agent? The question of what the intention of the

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parties is will be determined by the courts objectively. This will involve examining nature of delivery in the context of the circumstances surrounding it, in other words the courts will look at what the parties actually said and did.

Sometimes delivery may be constructive rather than actual, this means that ownership or some other real right is transferred without the handling of the thing. However the physical thing still has some importance, according to Silverburg and Schuman, “The transferee is either:

a) Placed in a position to exercise physical control, known in Latin as ‘traditio longa manu’ and ‘traditio symbolica’

b) Already in physical control by virtue of some other legal relationship known as ‘traditio brevi manu’ or see someone else exercise physical control on his behalf”

There are different forms of constructive delivery, firstly there is delivery brevi manu, here the intended transferee is already in possession of the thing in respect of which he shall acquire ownership e.g. as a lease borrower or perhaps depositoree.

Secondly delivery ‘longa manu’ according to Silverburg and Schuman, “It is necessary and sufficient that the transferor places the thing to be transferred at the disposal of the transferee so the latter can immediately exercise effective control over it. It is however generally assumed that it applies only to those cases in which the thing is placed at the disposal of the transferee in the presence of the latter. This is obviously the ideal form of delivery where the things are difficult to move because of their large size. Note that in the case of immovable incorporeal and corporeal. Delivery is effected by registration of title in a deeds registration of titles in a deeds Registration office. The title to every piece of land other than an alienated State land is constituted either by a deed of grant or a deed of transfer together with a diagram of the land. Title to a right in a registered piece of land is constituted either by endorsement on the title deed or by the registration of a notarial deed.

4.2. SuccessionPerson may create a will that states that when he dies, his property including land will pass to persons named in the will as beneficiaries. However, the mere death of the testestore (person who wrote will) does not mean that the beneficiary will immediately acquire ownership of the property in the question. When the testetore dies, the property in the deceased state vests in the master of the high court and thereafter with the executors of the estate.

It is the duty of the executors to disperse the contents of the estate according to the of the will. Until such time as the transfer of the land is registered, a beneficiary has mere claim against the estate.

4.3. MarriageIn Zimbabwe most marriages are out of community of property. However, it is possible to be married in community of property if that is something the parties particularly desire. If marriage is in community of property the law states that half the husband’s property vests in the wife

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and the half the wife’s property vests in the husband. In addition the husband has what is known as marital power. This means that he alone has the right to alienate the common property.

4.4. ContractA contract can never constitute nor create a real right e.g. a deed of sale is a contract between two parties namely a seller and a purchaser of a piece of land. The deed of sale itself doesn’t create or transfer rights in the land. It merely obliges the parties to comply with the agreement. Thus contracts are simply species of personal rights. Note that not every agreement is a contract in the eyes of the law. Certain essential elements must be present in the agreement for its constitute contract.

1. In the first place the parties must have the legal capacity to enter into contracts eg minors that is persons under the age of 18 do not have legal capacity except where this is authorized by the legal guardians. 2. In addition, an agreement has to be something that is physically possible and legally permissible. An agreement that is deemed to be contra-bona-mores will not be enforced. (Contra-bona-mores: contrary to good morals).3. The parties to the contract must seriously intend to carry out their obligations. Absence of serious intent may invalidate the contract. Finally if an agreement specifies that certain formalities must be complied with, if this is not done, the agreement will not be a contract.

4.5. Order of court4.6. Expropriation

5. PARTIAL RIGHTS IN LAND

It is important to understand that right in land may be distributed between two or more persons. These persons may possess the rights jointly or the rights may be separated into different groups and so allocated to different persons e.g. the owner of the farm may lease its use to a second person and during the duration of the lease it may be that the land owner himself will not be entitled to use the land. Basically ownership id the sum total of all possible rights. One or more of these rights may vest in another person, where this is the case, it will amount t a delegation from the full rights of ownership.

5.1. UsufructThe word usufruct essentially refers to the right to use the fruits of specified property. If a person is a usufructuary, he will have the right to use the property and exploit the fruits of the

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property. This will usually incorporate the right to possess the property but not to destroy or adversely damage the property in question. The usufructuary is often able to lease the right to use the fruit to some other person. 5.2. USUSThe concept of usus is very similar to that of usufruct except that here the usufructuary cannot give the right to use fruits to anyone other than the owner.

5.3. Fidel Commission

5.4. Habitatio

This is basically the right to reside in a dwelling that is a property of somebody else. The right relates only to the dwelling itself and not to the land on which it stands.

5.5. ServitudesA servitude is defined by Silverburg and Schuman as a limited real right which entitles its holder either to the use and enjoyment of another’s property or to insist that such other persons refrain from exercising certain powers claiming from his right of ownership which he would have if the servitude did not exist”

There are 2 basic types of servitudes namely praedial and personal. Praedial servitudes are concerned with 2 or more pieces of land, such servitudes are created in order to benefit one piece of land known as the dominant tenement at the expense of another piece of land known as servient tenement. According to Suverburg and S, praedial servitude confires a benefit on the dominant tenement and imposes a corresponding burden on the servient tenement so that one piece of land serves another.” Accordingly the owner of the dominant tenement is entitled to enforce the praedial servitude against the owner of the servient tenement. However, it does not matter who these individuals are. This is because a praedial servitude runs with the land. Thus changes of ownership will not destroy the legal relationship between the two pieces of land.

Personal servitude on the other hand exists for the benefit of a particular person who has the right to enjoy somebody else’s property. A personal servitude is, by definition a right that cannot be transferred by the holder to someone else. However, the changes with regard to the ownership of the land that must bear the burden of the personal servitude will not destroy the servitude. It is on this basis therefore possible level to regard personal servitudes as creating limited real rights. Note that personal servitudes can exist in respect of both movable and immovable property. This is not the position with praedial servitudes which can only exists in respect of immovable property

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EXAMPLES OF PRAEDIAL SERVITUDES

These can be divided into 2 categories, namely urban and rural servitudes. The essential distinction between the two is determined not by the property’s locality but by the purpose to which it is put. Silverburg and Schuman note, “ Rural servitudes relate to tenement which is used for agricultural purpose whereas an urban servitude relates to a tenement which is used normally for a commercial land purposes.”

Examples of Rural Praedial servitudes

1. Rights of way, these may exist in order to facilitate travel across another person’s land either by foot or by vehicle. On the other hand a right of way may also be granted in order to allow cattle to be driven over land. Sometimes the cattle will also be allowed to graze as they cross where this is so, the servitude is called a track path.

2. Ways of necessity, this servitude is not dependent for its existence on the agreement of the owner of the servient tenement. It is usually claimed as a right by an owner of land whose property is isolated by other land so that no direct or reasonable access to a public road exists where this is the case, the owner of the hemmed in land will be obliged to travel over adjacent land belonging to someone else in order to reach the road. Silverburg and S note, “The owner is entitled to reasonable and sufficient access to a public road and if such right is granted, it is extended to all other persons who wish to visit the owner of the land. However, it is important to note that a way of necessity will not be granted simply in order to reduce the distance to a public road that could be arrived at without having to travel over neighboring land. Generally therefore a way of necessity may be claimed in circumstances where the property of the neighboring land will not be unduly adversely affected. Usually, the right to pertain will respect to access to the nearest public road. However, the interior land owner that is the one land is not always entitled to make use of the shortest route to the road. Inevitably, the interest of both parties must be taken into account. It is important to note that a person cannot claim a way of necessity if his hemmed in position is entirely his own fault e.g. if an owner applies for the closure of a public road to which he has access, he cannot then prejudice a neighbor by seeking access over his land to some other road.

WATER SERVITUDES

Water servitudes are taken in that they give dominant tenement the right to use H2o for the servient land in question. This may involve the installation of piping or furrows. H20 servitude may also grant cattle from the dominant the right to drink water from the servient tenement.

GRAZING SERVITUDES

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As its name implies, the servitude is concerned with allowing cattle to graze on the servient tenement. Silverburg and Schuman note, “If the number of cattle is fixed by the servitude, the servient owner may subsequently grant others similar servitudes that in so doing so he does not prejudice the first grantee in the exercise of his rights.”

Usually the person in whom the right vests will not be able to monopolize a specific grazing area thus the servient owner will also entitled to use that grazing facility.

URBAN SERVITUDES

Examples of urban servitudes include a situation where servitude has been brought into existence for express purpose of preventing the construction of certain types or sizes of buildings on the servient tenement. The underlined purpose here is usually to prevent either light or particular view from being obscured in respect of the dominant tenement.

5.6. LeaseThe owner of certain land may decide not to live in it or to use it himself; on the contrary, he may decide to lease either the land or a building on it to somebody else. The effect of the lease is to give the lease the right to occupy and to use the land or building on it to somebody else. The effect of the lease is to give the lease the right to occupy and to use the land or building in question. A lease is a species of contract so that the use to which the land or building may be put to will be determined by the terms of the contract. One of the most fundamental characteristics of a lease is the payment of rent at specified intervals. There essentially two types of leases namely the short leases and the long leases. Short leases are not leases are not registered while long leases may be registered. In order to qualify as a long lease, the lease in question must be designed to endure for a period of at least 10 years. Indeed a long lease may in fact be intended to last for the life time of the lease. If a long lease is registered, a real right will come into existence. Where this is the case, the lease will endure and continue even where the owner i.e. the lessor sells or otherwise transfers the property in question. A lease of a part of a registered piece of land may itself be registered only if a land surveyor’s diagram is produced to define the exact part of the land that is intended to lease. If contract expires, lessor has no right to chase off the leasee.

5.7. Mortgage

5.8. LienEssentially a lien is a right of retention which owes its existence to someone having pit money or money’s worth into somebody else’s property. There are two main types of liens. In the first place there are enrichment liens, which may be subdivided into improvement and salvage liens.

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The second types of liens are debtor and creditor liens. Enrichment liens are a species of real rights.

Improvement liens are concerned with useful expenses while salvage liens are characterized by necessary or essential expenses.

Silverburg and Schuman note, “there are confined on a person irrespective of any prior relationship between himself and the owner of the property”

Silverburg and Schuman note , “ the question on whether the person with the salvage lien will arise if that person has protected another person’s property from loss or damage either as a negotiorum gestor or in pursuance of a contract with the possessor or occupier of property whom he had bona fide and reasonably believed to be the owner of the property or authorized agent”

It is important to bear in mind that enrichment takes place both where the value of the property is being enhanced and also where decline in its value has being prevented. Not all improvements to a piece of property will support a claim to a lien. This is because the property owner can not be forced to accept simply any enhancement of his property. Silverburg and Schuman note” in deciding whether or not a claim to an improvement lien should be allowed, his financial status, whether h intended to sell the property or keep it for personal use, the ease or difficulty with which the improvement may be separated from the principal thing.

DEBTORS AND CREDITORS LIENS

These derive their existence from circumstances in which one person has put work into someone else’s property or has provided some kind of service as a result of contract. However, Silverburg and Schuman note, “debtor and creditor liens are not confined by virtue of contract but by operation of law when money or money’s worth is put into the property of another in consequence of a prior contract. They remain personal rights in so far as they are not available against the owner expect where he was a party to the contract or against third parties acquiring rights to the property in good faith.

The following are examples of debtors and creditors liens. land surveyors, lawyers, Engineers etc may be able to claim a lien in respect of documents, plans etc prepared belonging to guests as against the payment of money due to lodging etc. Silverburg and Schuman note, “An artificier’s lien may be claimed by a person who has made, manufactured or repaired goods for another person.” Builders will be able to claim liens over structures elected by them in terms of contractual agreement.

General Principles regarding liens

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It is an essential prerequisite to the creation of a lien that the person is claiming the lien be in possession of the property that is purpoted object of the lienAlien will be dissolved where the lien holder loses possession of the property. In general terms lien will not be revived automatically if the lien holder regains possession of the property after having earlier having lost possession. However if the dispossession has resulted from theft or the application of the illegal force, the lien will be revived once possession has been restored. ion. It is important to bear in mind that a lien is essentially a defensive mechanism in litigation. In other words, if the owner of the property instates legal proceedings in order to facilitate the return of the property it will be valid defence to such an action to establish the property is being retained by virtue of a lien. Where security is paid by the debtor to court of law, the lien will be extinguished. This stands to reason given that the object of a lien is to provide a creditor with a form of security. One of the problems that arises in respective liens is the question of whether or not lien can be claimed against the owner of the property where the purported lien holder is in possession of the property as a results of the contractual arrangements with someone other than the owner. This problem arose in the case of Brooklin House Furnishers Vs Cnoetze and sons.1970 Vol no” 3 SA pg 264 Law Report.

A certain woman had purchased from Brooklin house furnishers in terms of a higher purchase contract. The contract stipulated that if the woman for what ever reason decided to store her property, it must be stored with Brooklin alone. Contrary to the agreement, the woman decided to store the property with Cnoetze, the woman was infact going into hospital. Cnoetze guienely believed that she was the owner of the property. He was unaware of the high purchase agreement. When Brooklin eventually decided to repossesses the property, Cnoetze purported to claim a lien over it, Cnoetze argued that by looking after the furnisher he had incurred expense in maintaining it and preventing a decline in its value. The court accepted the validity of the lien, in this case a salvage lien. The court took the view that storage was necessary to protect the property. Silver and Sh argue, “ Even the knowledge of the possessor that he is contracting with the person other than the owner would not destroy a salvage lien as long as the possessor is unable to obtain the owner’s instruction and consent”

6. ENCROACHMENT

It is an obvious general principle that a person may only built on his own land. Sometimes however, a person will elect a structure that protrudes onto a neighbour’s land. Where this happens without the consent of the affected neighbour, the latter will have 3 remedies open to him. In the first place he may demand that structure be demolished. This does not mean however, that the neighbour is himself entitled to remove the structure. One cannot purport to take the law into one’s hands. In the case of Smith Vs Bason 1979 (1) SA 559 the court noted , “

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unlike plants that part of the structure that is on the neighbour’s land is still an integral portion of the whole which is not his property. It cannot simply be demolished. It is treated rather as a trespass by the owner of the building giving rise logically to an action in law for the removal of the encroachment”. According to Silver and Sh, “ the right to insist on the removal for year or one day”. In this kind of situation the owner of the land encroached upon will however remain entitled to sue for damages. If the owner of the encroaching structure agrees to the encroachment but reserves his right to call for the destruction of building at any time. This right will remain intact. It is important to note that where a person has reserved his right to demand the removal of the protruding structure, the courts have a discretionary power nevertheless to order that damages to paid instead. However, they will only to do where this would be in the interest of justice. Silver and Sh note, where the cost of removing an encroachment will be excessive in comparison with any damage or inconvenience which the owner of the encroached land might suffer the payment of damages will be permissible”. Where this happens the court may also order that affected portion of the land be transferred to owner of the encroaching land. However, where this happens the person receiving the land must pay the cost of the transfere in addition of the value of the property. Secondly a person whose land has been encroached may remove the encroachoor i.e. the person who has erected the structure but if he does so must pay an amount to the encroachor in recognition of the fact that the value of the land has now be increased. Thirdly it is possible that the person whose land has been encroached may actually demand that the encroachoor take possession of the transfere of the property.

Trees and over hanging branches

If the trees planted at a boundary protrude onto a neighbour’s property or airspace this will constitute encroachment. The encroachee is entitled himself to cut off the protruding branches. However he is not entitled to keep the branches unless the owner of the trees either agrees or fails to collect them. The position is similar with regard to tree roots. Again these may be removed by the owner of the encroached land without the need for any court order.

7. LAND ACQUISITION7.1. Introduction to the Land Acquisition Act No. 3 of 1992Essentially the purpose of the land acquisition act is to give the President the power to acquire land and other immovable property compulsorily. Circumstances, under which the president is entitled to acquire land, are set out in the section 3 of the act. NB: that other immovable property refers to buildings and other things attached to the land. According to section 3 1(a) Any land may be acquired where the acquisition is reasonably necessary in the interest of defense, public safety, public order, public morality, public health,

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town and country planning. All the utilization of that or any other property for a purpose beneficial to the public generally or to any section of the public. Note therefore that the acquisition will be valid even if it doesn’t benefit the public as a whole. It suffices that any section of the public will benefit.

Section 3:1(b) deals with the compulsory acquisition of any rural land. This may be acquired where reasonably necessary for settlement for agricultural, forestry, environmental, conservation or for the relocation of persons dispossessed as a result of their land being acquired to follow one of these objectives. The president is also entitled to acquire any land that has been declared derelict in terms of section 42 of the act.

NB: Both land and rural land are terms that have been defined in section 2 of the act. The word land includes and incorporates rural land. The word land is defined as including anything permanently attached to or growing on land and any interests or right in land. Rural land is defined in a way that makes it clear that is refers to basically to commercial farming land. In fact communal and municipal land are expressly excluded from the definition. Note as well that the words acquiring authority usually refer to the president. When an acquiring authority decides to acquire land on a compulsory basis, certain procedural requirements have to be complied with first. In the first place a preliminary notice describing the property and its extent must be published in the Government Gazette and in a newspaper circulating in the area where the land situated. This preliminary notice must specify the purposes for which the land is to be acquired. According to section 5:1(a) the notice must call upon the owner or occupier or any other person having an interests or right in the land whose wishes to contest the acquisition of the land, to launch a written objection with the acquiring authority within 30 days from the date of the publication of the notice in the Government gazette.

Besides being published, this notice must also as far as it is reasonably possible be served on the owner and other interested parties. Once the notice has been published a land owner is prohibited from disposing of the land, constructing improvements on it or subdividing it without the permission of the acquiring authority. The acquiring authority may also prohibit other forms of activity on the land. A preliminary notice remains in force for a period of one year or until it is either withdrawn or the land is acquired. Note that the registrar of deeds is expressly forbidden to register any transfer of land in respect of which a preliminary notice is in force. Note that according to section 5:8 it is a criminal offence to demolish or damage structures on land that is subject to a preliminary notice. What happens where the acquiring authority indicates that it is only interested in acquiring part of the land owner’s property. The

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answer is that this is perfectly permissible though this must be stated on the notice. If the land owner believes that the remaining land is insufficient for the purpose for which it was being used prior to the preliminary notice being served, he can insist that the acquiring authority acquire all the land. In other words the acquiring authority will be obliged to acquire the remaining land as well.According to section 7 of the act where an objection to a proposed acquisition has been lodged the acquiring authority is to apply to the magistrate of court for an order authorizing or confirming the acquisition as the case may be. The administrator of court will only grant such an order if it is satisfied that the acquisition of such land is reasonably necessary on the grounds set out in section 3:1(a) of the act. Similarly it will only issue an order in respect of rural land where the acquisition meets the criteria set out in section 3:1(b). If the administrate of court decides not to grant the order applied for by the acquiring authority, the latter must withdrawn the preliminary notice. If the land has already been acquired then the acquiring authority must return it to the person from whom it was acquired. Note that section 8 gives the acquiring authority the right to acquire the land 30 days after the publication of the preliminary notice. Where this takes place, section 9 authorizes the acquiring authority to evict the previous owner from the property. Where an acquiring authority has the right to acquire land it may prior to doing so enter upon the land at all reasonable times in order to investigate the suitability of the land for acquisition purposes.

7.2. DesignationWhat has been said so far concerns general principles that apply to all forms of acquisition of land. However Part IV of the Act lays down special rules that apply when the acquiring authority decides to acquire rural land through the process of designation. It must be made clear at the outset that designation and acquisition are two different things. Designation occurs where the Minister of Lands points out that land will be acquired. NB: Only rural land can be designated.

In other words it is a declaration of an intention to acquire but not acquisition itself. According to section 12:2, the Minister when designating rural land must state the purpose for which it is intended to acquire the rural land concerned. The name of the intended acquiring authority and the period not exceeding 10 years within which it is intended to acquire the rural land. Once the Minister has designated the rural land in question, he must publish a notice in the government gazette describing the land and must take reasonable steps to inform the owner of the land that his land has been designated. NB: the Minister may at any time invoke or amend any designation of land. However such invocation or amendment may only be done with the consent of the land owner. This is because the land owner acting on the assumption that his land is to be acquired may well have made alternative plans and may be prejudiced if the land is

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suddenly either designated or the period within which the Government can acquire it is unilaterally extended.

According to section 13 of the Act, any land owner who objects to his land being designated may make representations to the Minister setting out the reasons for his objection. The Minister may investigate and may allow further representations to be made. The word may is significant since it indicates that the Minister is not obliged to either investigate or entertain further representations. He has discretion in the matter. Similarly with regard to deciding what to do, when representations have been considered, to either uphold or revoke the designation. Section 13:3 provides that the Minister’s decision in this regard shall be final. A land owner whose land has been designated is not allowed to sell, lease or otherwise dispose of it without the written permission of the Minister. Where a land owner applies for such permission, the Minister may either grant or refuse it within 90 days after receipt of the application. However, if the applicant can prove to the Minister that a valid agreement of sell was concluded before designation, the Minister must allow sell to proceed. Where the Minister refuses to grant permission to sell, lease or dispose of the land, Section14:4 provides that the land owner is entitled to insist that the acquiring authority acquire the land. Where this is the case, the acquiring authority shall forthwith take steps to acquire the land concerned. NB: designation by itself does not affect the right of the land owner or anyone else with the right to use the land, to use and occupy the land until actual acquisition takes place. 7.3. Acquisition7.4. CompensationAccording to section 16 of the Act, the acquiring authority shall pay fair compensation to the owner of any rural land and any other person whose right or interest in the designated rural land has been acquired.

Similarly fair compensation must be paid to persons whose land has been acquired otherwise than by designation. In order to facilitate the subjectives, compensation committee has been established in terms of section 13 of the Act. It consists of the secretary of the Ministry of Lands who acts as Chairman, the director of Agriculture, Technical and Extension services, Chief Government valuation officer and not more than three other persons appointed by the Minister. According to section 17:3, the function of the committee is to determine the compensation payable in respect of designated rural land. Thus the committee is not concerned in determining the amount of compensation payable in respect of non-designated land.

With regard to the procedure used in assessing compensation in respect to designated rural land. The 1st step is for evaluation officer, to prepare a preliminary estimate of the compensation payable, this will involve investigating the land in question. The report must be submitted to the compensation committee which must carry out its own investigations and produce its own report. It will consider representations from interested parties, thereafter the committee will fix amount of compensation to be paid. Note that the 1 st schedule to the Act

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sets out in some detail the principles to be followed in calculating compensation e.g. the size of land, type of soil, the nature and condition of buildings on it etc.

The compensation paid to a land owner will not include the cost of evicting him from the land where this is necessary. Note that according to section 19:3, “the Minister with the approval of the Minister of Finance may from time to time give a compensation committee written guidelines as to the fixing of compensation in respect of all or any types or classes of designated rural land and the compensation committee shall fix the compensation in accordance with any such guidelines. According to subsection 4, guidelines given by the minister according to subsection 3, “may relate to the amount in compensation payable to any designated rural land or to the principles to be applied in assessing such compensation provided that no such guidelines shall be inconsistent with the principles prescribed in the Act”.

With regard to the form and manner in which compensation is to be paid in respect of designated rural land, section 19 stipulates that at least half of the compensation shall be paid at the time the designated rural land concerned is acquired or within reasonable time thereafter. Half of the balance owing must be paid within 2 years of the acquisition while the rest must be paid within 5 years of acquisition. Note that payment does not have to be in cash, it can take the form of government bonds or share.

Compensation in respect of non-designated land is dealt with in section 20. The conditions of compensation here are more generous with regard to land owners than is the case in designated land situation. Subsection 1 makes it clear that where land other than designated rural land is acquired, compensation is to be calculated on the basis of the loss of land and the actual expense which has been incurred. Note that the amount of compensation awarded in respect of designated rural land may not be challenged in the court. Section 23 makes it clear that only the procedure used to arrive at the figure in question may be challenged in the administrative court. The correct procedure provided for in the Act must be followed and the court is entitled to order that the correct procedure be followed. This may or may lead to a change in the amount arrived at. Where land other than designated rural land is acquired, the jurisdiction of the courts to determine the fairness or otherwise of the compensation in not ousted (excluded).

In the case of Davies versus Minister of Lands 1994 (2) ZLR (Zimbabwe Law Reports) page 294, the court had to determine whether sections 12-15 of the Act i.e. sections dealing with designation were unconstitutional. The applicant’s farm had been designated in terms of section 12:1 of the Act. He argued that section 11 and 16 of the constitution require the payment of compensation whenever property or an interest or right in property is compulsorily acquired. He argued that designation is an act that essentially involves the acquiring authority in acquiring an interest or a right in the designated land in question. Therefore he argued because the Land Acquisition Act only provides for compensation to be paid at the time of formal acquisition and not when designation takes place. The relevant sections of the Act must be ultravenus the constitution and therefore invalid. However the court rejected this argument.

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Chidyausiku J. accepted that the state must pay compensation when property or interest or right in it is acquired, but he noted that the state has the right to control or regulate the use of private property under its jurisdiction in the public interest. He said “where the state exercises its power reasonably and properly, no compensation is payable to the persons affected only if the regulation of control goes so far that it amounts to acquisition will the state be obliged to pay compensation”. He held that designation does not constitute the acquisition of an interest in land. It is simply a control measure. Whether or not the land is designated, it is still liable to be compulsorily acquired by the state in the public interest. The judge noted that, “the state does not acquire a further right to acquire the land upon designation that it did not already possess. The land owner loses nothing and the state gains nothing by the designation of land, thus the owner of the land has no right to receive compensation from the state when his land is designated”. However, the court agreed that if the Minister refuses to allow the owner of designated rural land to sell, dispose or lease the land, control becomes acquisition. However the Land Acquisition Act is still within the parameters of the Constitution because the Act provides that in these circumstances that the land owner in question can insist that the acquiring authority acquire the land there and then. 8. CONVEYANCING

Basically conveyancing is concerned with the transfere of the ownership of land. In order for transfere to take place, it must be registered. Conveyancing as a career is concerned with the preparation of deeds and documents for registration with filing in a deeds Registry’s Office. The objective of registration is to protect the right that is registered. In effect it is noticed to the world at large of such protection. In the events of disputes taking place the records are easily ascertainable, there are two deeds Registrar’s offices in Zimbabwe, one in Harare and the other in Bulawayo each of these serves its own area as defined in the schedule of the act i.e. the deeds Registry’s Act. The chief Registry of Deeds is based in Harare. The Registry’s office holds copies of all documents lodged. Duplicate copies remain with the conveyance himself. The original is always filed with the deeds Registry’s office while the person acquiring ownership is given a client’s copy. Documents have to be lodged with the deeds registry’s office within a specified [period and stamp duty will be assessed. Teams of examiners at the deeds Office examine exhaustively documents submitted to them for endorsement and errors. Sometimes title deeds will be endorsed with a caveat, for instance a judgement in respect of the property so that the property is subject to attachment by the deputy sheriff of the high court. Only the person who attaches the property can remove the caviet on title deeds i.e. the deputy sheriff.

8.1. Organising of Deeds registration

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8.2. Provisions relating to documentsFirst of all the documents must be on strong while paper A4 size. There should be a 35mm margin. On the first page of the document, the upper half must be left blank for endorsements e.g. caviets, servitudes etc. No carbon copies must be submitted for filing unless the Registrar of Deeds approves. Spaces between sentences are not allowed to be left blank, they must be ruled through. There must be a catch word at the bottom of each page i.e. a word that links on to next page. Documents must not be folded when submitted. Place and date of execution of the document must be stated. Documents must be in English. If the transaction relates to a company either as a transferor or transferee, the constitution of the company must be filed. However there’s no need to file the memorandum and articles of association of the company because these are already filed in the company’s office.

8.3. Duties and powers of registrarSection 5 of the Act makes it clear that the registrar can only do what he is empowered to do by the act.he has a duty to execute all documents referred to him provided only that the documents referred to him provided only that the documents are not repugnant (invalid). The Registrar has the power to hold court where a particular interpretation is disputed by the conveyancer . it’s not the function of the Registrar to insists that new clauses must be inserted in existing Deeds that have been accepted. The Registrar is in charge of examining all deeds and documents submitted for execution and Registration purposes. When documents are lodged, the Registrar is not interested in the financial arrangements. That is the responsibility of the conveyancer, note that registration and utterstation takes place when the registrar signs the deed.

8.4. Conveyances8.5. Land registrationState Land belongs to no one other than the state .the original title deed to a part of what was state land given to an individual is known as a Deed of grant. It was previously unalienated land. This must be surveyed and given a diagram which must be approved by the surveyor General. If further subdivision takes place ,another survey must takes place, another survey must take place, another survey must take and a new diagram must be produced. Where the subdivision takes place, what is left is the remaining extent in terms of the original deed of grant. Where the portion transferred is not on the deed of grant , it will be on what is known as the deed of transfere because a new piece of land is transferred again, the new diagram is not necessary. This will be known as the holding deed , Note that a holding deed and a diagram deed will be same thing when the property becomes a separate entity for the first time. The holding deed is the current deed i.e the deed under which property is currently held. Every subsequent deed must refereto the earlier diagram deed. However it is not necessary to have diagrams of subsequent transferes.

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8.6. Power of AttorneyPersons are identified by means of their names and dates of birth. No assumed name or alias (false name) may be added to any name registered at the deeds of the registry. A power of arttoney must contain the full name and date of birth of persons mentioned in it except where persons in the power of attorney appear in a representative capacity. Essentially a power of arttoney authorises one person to act for and on behalf of somebody else namely the creator of the power of arttoney. The conveyance will only be able to pass transfere on behalf of client where the client authorities him to do so through a valid power of arttoney, indeed the registrar of Deeds will not accept any submissions by a conveyance in the absence of such a power of arttoney. A power of arttoney granting the power of arttoney, in other words persons authorised by the power of arttoney to carry out the specific function specified in the power of arttoney. The power of arttoney must be lodged with the deed’s office and it must be the original copy. A certified copy will be filed by the conveyancer . the power of arttoney must clearly and sufficiently state and describe the property it is concerned with. Each sheet of the power of arttoney must initialled by the parties and testing witness. Any alterations must also be initialled by all parties concerned. The description in the power of arttoney of the grantor must follow that of the title deed. If there’s a change in marital status, it’s not necessary to change the title deed provided an amendment is provided giving details of the previous name etc.

8.7. Analysis of Deed of Transfer(a) Preparation certificate

All deeds of transfere must be prepared by a conveyance or other legal practitioner. Such a certificate appears on the top right hand corner of the first page.

(b) The heading

This describes the nature of the deed in question. For our purpose this would be a deed of transfere but other deeds will be deed of donation etc, it is important that the correct heading be used.

(c) The preamble

This invariably begins with the words know all men whom it may concern’ or “ Be it hereby made known” preamble would usually end with the words, “and the said appear or declared that”. In the preamble a reference is made to the power of the attorney pointing the appearer. The full names of the appearer must be given as well as the full name of the transferor. The

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grantoor of the power of attorney is one and the same person as the transferor in the transfere deed.

(d) The recital

This specifies the cause or reason for the transfere. It comes immediately after the preamble. The recital must be worded concisely with an emphasis on clarity of meaning. If the validity of the transfere is challenged in court, it will usually be because the wording used in the recital was unclear clause is as follows, “------- declared that his constituent had truly and legally sold on the seventh of October 1996, and he in his capacity -----“. Constituent is the person who constituted to the creation of the power of attorney, transferor.

(e) Vesting Clause

This clause contains the full name and date of birth of the transferee. Companies have to be described by name as in the company’s certificate of incorporation Abbreviations are not permissible. An example of a vesting clause is as follows “----- deed by the presents, seed and transfere in full and free property to and on behalf of James Moyo born 2 nd January 1960. His heirs, executors, administrators or assigns”

(f) The property Clause

This is a description of the property as it appears in the existing title deed. It describes the land, the name of township or administrative district, the registered number of the land etc

(g) The Extending Clause

This shows where the diagram deed is to be found. References made to the diagram deed and to the transferoor’s title e.g. as will appear more fully on certain piece of land being certain farm.

(h) The Diversting Clause

This is concerned with declaring the previous registered owner to be diversted of ownership e.g. “ wherefore the appearor renouncing all the rights and title, the said transferor is entirely dispossessed of and disentitled to property named and that by virtue of these presents the said transferee, his heirs , executors, administrators or assigns now are and henceforth shall be entitled thereto, state however reserving its rights”.

(i) The consideration Clause

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this specifies the purchase price and or evaluation of the property accepted for transfere duty purposes. E.g. “ and finally acknowledging the purchase price to be a sum of ($ 1 million)$1m.

(j) The execution clause

In this clause, the act the act of execution by the appear before the registrar is recorded. Both the registrar and the appearor will sign at this point.

8.8. Documents to be lodged(a) Title deed

If the client’s copy has been lost, the certified copy may be lodged instead at the deed’s Registry Office. The conversion certificate may be needed where the title deed refers to feet rather than metres.

(b) Existing bonds together with the concerns for their disposal, these have to be lodged in order to establish that the bond holders have agreed to the transfere proceeding (c). The power of the arttoney to make transfere. This is lodged for obvious reasons i.e. to justify the role of the appearor. If the transaction is one of donation and not sale, two powers of arttoney must be lodged, namely one to donate and another to accept. Rates clearance certificate:

(d)Rates clearance certificate

Rates and duties must be cleared, in order to show tat this has been done, it is necessary to apply to the municipality for a rates clearance certificate. These certificates are valid for 3 months from the date of the issue of the certificate . rates are payable in respect of the property . because of this, it will not be necessary to get more than one certificate in respect of multiple transferes.

(e) Declarations by seller and purchaser

These indicate the dates the property was sold and brought. They contain a description of the seller and buyer and indicate how the purchase price was paid eg cash etc. These declarations may also make a reference to any improvements done on a property. The registrar on receipt of those declarations will then assess duty payable

(f) Necessary consents necessary in terms of the title of the property eg there may be requirement that no transfere is to take place unless certain improvements are made on the property. Where this is the case, transfer will not be able to proceed unless the consent of the city council is obtained.

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9. The Land Survey ActSection 7 of the Act outlines the duty of the Surveyor General and this includes a number of duties:

a) Supervising and controlling cadastral surveysb) Obliged to keep and protect all survey records from May 1933 and all subsequent

recordsc) Examine all general plans and diagrams and approve them if constructed accuratelyd) The SG does have certain discretion in that he can sometimes pursue a policy of spot

checks rather than rigorously checking everything. e) He is also charged with the task of deducting subdivisions of previously registered

housing land.f) He also has to define the figure of any portion of land subject to a real right or lease.g) The SG prepares and certifies copies of diagrams and other documents on request.

Where this occurs, a specified fee must be paid. h) Where the Minister directs that certain survey must take place, the SG may carry this

out or alternatively delegate it to either another land surveyor in the SG’s office or to a private firm of Surveyors.

i) The SG is in charge of preparing maps when instructed to do so by the Minister. Section 12 of the Act deals with qualifications of Surveyors.

The Surveyor must be at least 21 years old Surveyors must hold a degree in land survey from any recognized University in

Zimbabwe or specified foreign institutions. The SG is entitled to specify which institutions qualify. Prospective surveyors must have carried out prescribed practical work, i.e. a number of

various types of survey carried out under the supervision of a registered land surveyor. The surveyor must have passed trial survey set by the SG. Candidates must also must have passed to the satisfaction of the SG, an examination of

the laws in force in Zimbabwe relating to survey registration and transfer in land.Other SG duties

Supervise and control all matters pertaining to aerial and space surveys conducted in Zimbabwe

Prepare list of official control pointsThere are regulations brought about by the Board, how instruments are tested, type and form of beacons, system of measure, period of training land surveyor not more than 2 years.Board consists of:

2 surveyors appointed by the minister The SG 2 other surveyors

No land surveyor shall supervise more than 2 land-surveyors-in-trainingSection 20 – rectification of title deeds after determination of boundary disputesSection 25 – subdivisions

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DUTIES OF LAND SURVEYORS

-Basically land surveyors must perform surveys in a way that is conducive to accurate results. Moreover surveys must be conducted in accordance with the provisions of the Act.

-Land surveyors are responsible and accountable to the Surveyor General for the correctness, documents bearing the land surveyor’s signature.

-Land surveyors must deposit all records with the S.G. If the S.G instructs a land surveyor to correct any error in excess of the prescribed limits, thus must be done.

Note that it is an offence to destroy or damage any beacon, trig beacon, bench mark etc. However, if it is absolutely necessary application may be made for permission to the S.G and where this is granted, the specified change is permissible. All diagrams and general plans have to be prepared in line with the land survey regulations.

Note that for registration of land purposes, the only acceptable diagrams or general plans are those approved by the S.G. The S.G may approve diagrams and general plans where these have been signed by registered land surveyor. While it is certainly permissible for a draughtsman to draw up such documents, the land surveyor must still supervise the draughtsman and must sign the resulting documents. If a diagram of a piece of land fails to accurately depict the land in question, a caviet or endorsement may be imposed effectively stopping further registration of that land or even any portion of it unless and until a new diagram has been prepared . Land surveyors are given the power in terms of section 46 of the Act to enter any land in order to carry out cadastral work. As a matter of curtesy, land surveyors are usually advised to give notice of intention to enter a person’s land for survey purposes but this is not a legal necessity.

10. The Surveyors Act11. International Law and International Boundaries

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