Draft constitution, property rights

In Section 71 of the draft constitution, “property” means property of any description including any right or interest in property.
In simple terms it is anything that can form a person’s estate, ranging from personal artefacts to real estate.

The draft constitution on the issue of property also covers interest or rights to such property.
Subject to the limitations imposed on agricultural land in Section 72 as explained in my previous article, every person in Zimbabwe has the right to acquire, hold, occupy, use, hypothecate, lease or dispose of all forms of property.

The draft constitution following section 16 of the current Lancaster constitution maintains that no person may be compulsorily deprived of their property except where the deprivation is in terms of the law of general application.

Deprivation of such property may be allowed if it is considered necessary in the interests of defence, public safety, public order, public morality, public health or town and country planning or where such property is required in order to develop or use that or any other property for a purpose which is beneficial to the community.

Before such property which may fall within the above reasons of deprivation may be acquired, the acquiring authority is required to give reasonable notice of intention to acquire property to everyone whose interest or right in the property would be affected by the acquisition.

The acquiring authority is to pay a fair and adequate compensation for the acquisition before acquiring the property or within a reasonable time after the acquisition. What may be considered a reasonable time may be a question for the courts.

Where the acquisition of the property is contested after the giving of reasonable notice, the acquiring authority will need to apply to a competent court before acquiring the property for an order confirming the acquisition.

If the acquiring authority acquires the property first in a contested situation, then the acquiring authority has to apply to a competent court for an order confirming the acquisition not later than thirty days after the acquisition.

Where the acquisition of property by an acquiring authority is not confirmed by the courts, the draft constitution allows any person who has had their property acquired to apply to a competent court for the prompt return of the property.
This requirement to apply to courts first is to curb or prevent self-help measures, which may in some instances be criminal.

Where a person has had his property acquired by an acquiring authority and seeks compensation for such acquisition, one is required to apply to a competent court for the determination of the existence, nature and value of their interest in the property concerned.
The competent court will also determine the legality of the deprivation in the application for compensation. When the competent court is satisfied with the legality of acquisition, it will determine the amount of compensation one will be entitled to.

When the amount of compensation is determined, one has to apply to the court for any order directing the prompt payment of any compensation.
The section on property rights in the draft constitution also encompasses ‘pension benefit’ which means a pension, annuity, gratuity or similar allowance which is payable to any person from a consolidated revenue fund or in respect of a person’s service with any employer or in respect of a person’s ill health or injury or on a person’s retirement through age, ill health or any other reason.

This includes a commutation of such pension benefit and a refund of contributions paid towards such pension benefit.
Where a person has a vested or contingent right to the payment of a pension benefit, a law which provides for the extinction or diminution of that right is regarded as one that provides for compulsory acquisition of property and would have to satisfy the conditions listed above to apply.
Agricultural land does not fall under this section.

Vengai Madzima is a property investment consultant and analyst and writes in his personal capacity. He can be contacted on 0772 468093 or [email protected]