The Sunday Mail
Lloyd Mhishi & Tichawana Nyahuma
The media have been awash with stories of certain persons referred to as land “barons” having been arrested for allegedly illegally selling State land to unsuspecting desperate home-seekers.
When we were conferring on this contribution, we thought it prudent to first verify the exact meaning of the word “baron”. Surprisingly, according to the website, Dictionary.reference.com, the word is a noun which means:
1. A member of the lowest grade of nobility.
2. A feudal vassal holding his lands under a direct grant from the king.
3. A direct descendant of such a vassal or his equal in the nobility.
4. A member of the House of Lords.
If a female, she is called a “baroness”.
So, if the meanings attributed to the word are anything to go by, then it escapes us why the persons arrested for unlawfully parcelling out State land are being referred to as “barons” because clearly, they are not.
If anything, the real land barons are the legitimate beneficiaries of the Land Reform Programme because one might argue that they are holding that land “. . . under the direct grant of the king”, as per number 2 above.
In this case, we are equating the king to the President as the Head of the State.
Now, away from all that. Our attention today is on the law in-so-far-as it applies to certain settlements that have mushroomed in and around Harare in these past few years.
In particular, we have in mind here such places as Caledonia in the east, Stoneridge in the southwest, Nyatsime in Chitungwiza and such other like residential areas elsewhere in the country which, upon just one look, are really a disaster to say the very least.
The whole issue of urban land developing revolves around a land developer. He is a central player in the growth of residential and industrial sites in Zimbabwe. There are a number of persons that qualify as land developers.
These are:
The owner of land, which is urban or rural land, in which case the land may need to be incorporated into the urban area for development.
A person engaged by the owner of land to develop such land, that is to say, to put in place the infrastructural development of the land. We understand that in the case of Stoneridge some of the so-called land barons were carrying out developments and parcelling out stands without the consent and authority of the registered owner.
A person who has entered into a contract with the land-owner in a joint venture to develop the land concerned.
A person who has been lawfully allocated land by the State and authorised to cause development of that land.
Now, if the land intended to be developed was previously set aside as agricultural land or any other purpose which is not industrial or residential, then the land developer is obliged to apply to the Department of Physical Planning or to the local planning authority, as for example, the City of Harare, for a Change of Land Use Certificate.
Thereafter, it will be necessary that a planner be engaged to come up with a layout plan of the residential or industrial development and more critically, to apply for the subdivision permit required in terms of the Regional Town and Country Planning Act. This is not the same as the surveying of the land.
However, the fact that authority for change of use of the land has been granted is no licence for the developer to immediately proceed to willy-nilly and haphazardly demarcate the land and sell to individuals.
There are yet other often expensive and cumbersome processes in the intervening period that must be adhered to.
In certain circumstances, it may be necessary to have regard to the provisions of the Environmental Management Act just in case the proposed development may have negative consequences upon the environment.
The surveying of the land is, therefore, the next stage. This is done by a land surveyor and in terms of the Land Survey Act. By surveying the land is meant that the land surveyor has to physically go on the concerned land and put demarcations and pegs or beacons indicating the boundaries and extent of the subdivisions.
A general plan which is normally prepared for the land developments under discussion is produced when diagrams have been dispensed with in terms of the Land Survey Act.
As we have already said, the Subdivision Permit does not authorise the land developer to begin selling the stands at that stage. This is where we locate the genesis of most land purchases problems in Zimbabwe.
The permit will contain conditions that must first be fulfilled by the owner or the developer.
These are normally the following:
Payment of a percentage of the value of each subdivision;
Installation of a reticulated water system;
Erection of a sewage reticulation system and connecting it to the local authority’s mains;
Construction of roads according to the stipulated specifications.
To ensure that these conditions are complied with, the planning authority normally specifies that transfer of ownership of each subdivision is not permissible unless the local authority has issued a certificate called the Endowment Certificate that payment of the moneys mentioned earlier has been made and the planning authority has issued a Compliance Certificate that the other conditions have been complied with.
Occupation will also not be permitted before these conditions have been fulfilled. We add that selling or occupying a subdivision without this permit is a criminal offence.
Since it is an illegality, the contract will also not be enforceable. This puts a lot of risk on gullible members of the public who purchase stands in this way.
There are a number of cases decided by the courts on this.
Lawyers always strongly advise against buying stands simply because there is a layout plan. This is largely because the size of the land itself may change after the survey or the owner/developer fails to satisfy the permit conditions which then leave the purchasers stranded.
Otherwise, it is more advisable to buy the stands after the local authority has issued the Compliance Certificate.
However, construction of the properties is a separate process altogether which is not linked to transferability. The buyer can successfully obtain title deeds without building first, unless the local authority has made it a condition of the title that a building must be constructed first before title is granted.
Even then, the purchaser of land must engage someone to prepare a building plan in accordance with the local authority’s by-laws and which plan has to be approved by the local authority before commencement of construction.
The local authority officials inspect the property at each and every stage and issue a certificate of occupation at the end enabling the owner to occupy the building. This could be before or after title transfer.
So, you can, therefore, see that there are various legal entities involved from the very beginning to the end. Every stage is subject to inspection and approval. All these processes are there for a purpose and that is to ensure that firstly there is order and secondly that the structures are safe for human habitation.
Would our towns and cities have been what they are today or at least before the advent of the so-called land barons if things had been done haphazardly from the beginning?
Further, can it be said that any of these requirements were complied with in respect of Caledonia, Stoneridge, Nyatsime and such other places in other like places in Zimbabwe?
It consequently follows that some of these settlements could be illegal. We mean even a passing glance at the type of structures that have been erected leave us with no doubt that someone somewhere slept on the job.
Was it council, was it the various government departments?
There are, therefore, numerous risks attached to building before compliance with the permit conditions. It is, therefore, prudent that purchasers of residential stands, particularly those still under development, get advice and guidance from their lawyers and estate agents every step of the way.
Not to be out done, Zesa has proceeded to install electricity in some of these places. We are aware that there is no law as such that prohibits the installation of electricity in such residential places. The same seems to be the position even in South Africa where the shanty towns there are all electrified albeit some of the connections are illegal.
But then, is this proper particularly where the demand for power far outweighs Zesa’s electricity generating capacity?
Having said all this, we are of the view that the question that must find an answer is what is the best way forward? Is another Murambatsvina an option?
- The writers are Harare-based legal practitioners. They write in their personal capacities. Feedback: [email protected] and [email protected]
