Online Reporter
Dr Benjamin Chinyai
THE High Court judgment in Mutale v Nyikadzino and Others raises a critical question that goes beyond procedure: whose land is it, and whose law governs it?
While the court correctly observed that A2 farms remain State land, and that cession requires ministerial approval under the Land Commission Act, the ruling risks undermining both the philosophy of Zimbabwe’s land reform programme and the African family system it was intended to restore.
“One family, one farm” means the farm belongs to the family, not the individual.
Government policy since 2000 has been clear: A2 resettlement was designed to establish viable family farms under the principle of “one family, one farm”. Although an offer letter is issued to the household head, the underlying expectation is that the farm functions as a family asset.
To treat the death of the named holder as extinguishing all family rights contradicts the spirit of the policy. Evicting a family and reallocating the farm to third parties, as occurred in this case, amounts to reversing land reform through judicial interpretation.
This is not merely sentimental. If land cannot pass within the family, the incentive to invest, develop and transfer agricultural knowledge collapses. No family will build a homestead, plant orchards or invest in irrigation if the farm can be deemed “vacant” the moment the household head dies.
African customary succession is automatic, registration is administrative
In African cosmology, the homestead is a corporate entity. The father, or household head, is primus inter pares — first among equals — holding the land in trust for his spouse and children. Death does not create a vacuum. Succession to headship is automatic. What remains is the administrative act of updating records with the acquiring authority.
The court’s position that rights “remain suspended” until ministerial approval treats the farm as a commercial lease divorced from social reality. It overlooks the fact that the widow, eldest son or appointed heir immediately assumes management responsibilities to keep the farm productive.
To demand that production effectively stops until Harare grants approval is to legislate for idleness and food insecurity.
Legitimate expectation and the first right of refusal
Administrative law in Zimbabwe recognises legitimate expectation where a person has an established interest and a reasonable expectation of continuity. The Mutale family had occupied, developed and managed the farm since 2005.
Allowing third parties to “pry on dead people’s farms” without first granting the family the right of refusal creates legal uncertainty and encourages land grabs disguised as due process.
The African value of Ubuntu/Hunhu — “I am because we are” — demands that the law protects the surviving family before strangers. Failure to do so risks turning land reform into a new form of dispossession.
The problem of transplanting Western land law into Africa
The judgment leans heavily on a Western conception of land as a divisible, individual and freely alienable asset governed by rigid probate and contract law. This model assumes a nuclear family structure and a land market that simply do not exist across much of rural Zimbabwe.
Customary land tenure, by contrast, is communal, intergenerational and anchored in social obligation. As Mamdani argued, colonial and post-colonial states have long erred in attempting to “civilise” African land through imported legal frameworks, producing a form of legal pluralism that privileges the State and elites over communities.
Insisting that an A2 farm cannot form part of an estate without ministerial consent imports this colonial logic. It effectively reduces African families to tenants-at-will on their own land.
Additional African traditional factors the court should have considered
Widow and orphan protection: Shona and Ndebele customary systems place a responsibility on the lineage to safeguard widows and children. Judicial silence on this issue risks exposing families to destitution.
Productivity as a public good: African legal traditions prioritise land use over abstract title. If a family is productively using the farm, that consideration should carry greater weight than paperwork alone.
Traditional chiefs and headmen: These institutions often resolve land disputes more quickly and with greater legitimacy than distant litigation in Harare. The law should integrate, rather than marginalise, them.
Ancestral linkages: Land is not merely an economic resource; it is ancestral. Displacing a family severs spiritual and cultural ties that Western legal systems may not recognise, but which remain profoundly important in Zimbabwe.
Towards a balanced legal framework
Zimbabwe does not need to choose between statutory law and customary practice. Section 281 of the Constitution recognises traditional leaders and customary law where these are consistent with constitutional principles.
A balanced approach would therefore:
Presume automatic succession to the spouse or eldest child for A2 farms, subject to registration within 12 months.
Require the acquiring authority to approve or reject the succession within 90 days, with rejection permitted only on grounds such as non-use of the land or criminal conduct.
Mandate mediation through traditional leaders before litigation reaches the High Court. Codify the “first right of refusal” for the deceased’s family within the Land Commission Act.
On the whole, Mutale v Nyikadzino is technically sound in its statutory interpretation, but limited in its social vision.
Land reform was intended to restore African dignity and family security, not to replace one form of insecurity with another.
If the courts continue applying 19th-Century English land law to 21st-Century African realities, Zimbabwe risks hollowing out the gains of land reform. The law must evolve to recognise that, in Zimbabwe, land is family, and family is land.
Dr Benjamin Chinyai is a social scientist with an interest in climate change impact and mitigation. He holds a Doctor of Philosophy (PhD) in African Leadership Development from the National University of Science and Technology, a
Master of Commerce degree in Strategic Management and Corporate Governance, as well as a Bachelor of Commerce Honours degree in Business Management from Midlands State University.
