RURAL district councils have no authority to sell communal land, the High Court has ruled, while nullifying the sale of land between a family trust and Buhera Rural District Council.
The ruling comes at a time when the Government has, on countless occasions, warned village heads who are also allocating and selling State land in peri-urban areas.
Some local authorities are leasing and selling traditional, communal, and grazing lands in breach of provisions of the Communal Land Act, the Rural District Councils Act and the Traditional Leaders Act.
At the centre of the dispute in the High Court was a 40-hectare piece of land within Madzivanyika Village in Buhera comprising homesteads for more than 35 villagers on one section and grazing lands and communal fields on the other section.
The land had been sold to Munda Family Trust for the construction of a boarding school and plans to evict the 35 families were at an advanced stage.
The villagers took the local authority to the High Court challenging its decision.
Justice Webster Chinamora declared the sale of the land illegal and nullified the agreement of sale between Munda Family Trust and the council.
“The application for a declaratory order be and is hereby granted. The agreement of sale of 40 hectares of communal land situated in the Madzivanyika Village, Chief Chitsunge Buhera, entered into between Munda Family Trust and Buhera Rural District Council dated March 23 2020 be and is hereby declared illegal and is accordingly cancelled,” said Justice Chinamora.
“The first and second respondents (Munda Family Trust and Mr Pomerai Munda) be and are hereby ordered not to evict any of the villagers residing at the 40 hectares of communal land.”
In their application for a declaratory order, the villagers argued that communal land is vested in the President of Zimbabwe, and the local authority can only allocate land in line with the customary laws relating to allocation, occupation and use of communal land.
They further argued that a rural district council did not have the right and power to dispose of, by way of sale, any portion of communal land.
The rural district council could only issue a permit for the use of communal land and the permit could only be issued with the approval of the Minister.
Where such approval was given, the approval was published in the form of a Statutory Instrument in the Government Gazette and in this case no such permit was ever issued, rendering the disposal of the land unlawful.
In his judgment, Justice Chinamora said it was clear that communal land could not be sold. As a result, the judge ruled that the purported agreement of sale between the transgressing parties was a nullity, saying Section 9 of the Communal Land Act was instructive in that regard.
Crucially, the provision stipulates that alienation of communal land was subject to both the approval of the Minister of Local Government and Public Works and the provisions of the Regional, Town and Country Planning Act.
Section 10 of the same Act goes further to state that, where communal land is set aside for a specific development purpose, the Minister had to issue a Statutory Instrument describing the land in question and the purpose upon which it has been set aside. This, Justice Chinamora said, had not been done in the Buhera case.
The Munda Trust and local authority argued that the land in question was a vacant lot situated in Gandiwa Village and not in Madzivanyika Village. In addition, the two parties argued that the building of the school would not negatively affect the livelihood of the community.
The local authority also echoed the same argument and insisted that the land in question was vacant.
But the court made a finding that the land in question was in Madzivanyika Village and further observed that the inspection in the loco report indicated that there was some activity on the disputed land.
