NewZimbabwe.com has invited Mr. Vengai Madzima, the Senior Partner at Madzima Chidyausiku Museta Legal Practitioners (MCM Legal), to discuss with us legal issues that affect Zimbabweans. The discussions are of a general nature and those seeking specific legal advice should contact their lawyer.
Reporter: Welcome back Mr. Madzima. This week we want to discuss the law of succession as it relates to agricultural land in Zimbabwe. What are the main considerations?
VM: Thank you
Before delving into the laws of succession in agricultural land, it is necessary that I first address how agricultural is held in Zimbabwe. Agricultural land is held either through title deeds, 99-year leases, leases with an option to purchase, offer letters, permits or customarily as rural land under Rural District Councils.
These forms of holding confer personal rights to the holder except in title deeds, where the holder has real rights to the land. The personal rights titles emanating from Land Reform, being mainly permits, offer letters and 99-year leases, are a result of potentially one of the most significant wealth transfer events in post-colonial Africa.
The land itself is owned by the state and occupiers have usufructs on the land to use, enjoy and earn from it.
This background or understanding is necessary as it has a direct effect on succession.
Succession itself has become topical as farming by its very nature is a generational business.
If land reform started around 2000, it means the process is now 25 years old and cases of succession by heirs are now commonplace.
Reporter: You highlight land reform beneficiaries, that is A1 and A2. What is the process when the initial beneficiary dies?
VM: It is important that we first differentiate the A1, being a small holder farm held under a permit from the government and an A2 farm being a large-scale commercial farm held under an offer letter or a 99-year lease.
I understand that the current government policy is aimed at issuing deeds for these holders. I will discuss on succession for deeds later on. For now, I will restrict myself to permit, offer letter and lease holders.
First thing to understand is that the land under these models belongs to the State and not individuals, therefore, ‘succession’ in its strictest sense, which is through the Master of the High Court, is only for improvements and movable property.
If it’s for land, then the ‘succession’ or reallocation of land to an heir has to be approved by the government who is the landowner. When the estate of the late holder is being administered, the value of the land is not included in the process as it does not belong to the estate but the government.
Making the process two–tier
For A1 farms, the surviving spouse and dependants may succeed although the successor has to be approved by the Minister of Lands. The process is done through the District Lands office within 3 – 6 months after the death of the land owner, depending on whether or not there are disputes. In situations of disputes, spousal rights are protected and consideration is also given to potential successors who developed the farm.
The process is similar for A2 offer letters; there is a need for an application to the Ministry of Lands district office with the required documents, which is dealt with by the Valuation and Estate Management section. As part of its consideration, it will assess, among other things, the capacity to farm, whether or not the potential heir has other farms et cetera.
As for lease holders, it is governed by general inheritance laws; the executor, upon completing the beneficiary identification process, will still be required to make an application to the Minister for approval of allocation.
Reporter: What issues may inhibit or stop the A1 or A2 farms being re-allocated or distributed to the selected beneficiary?
VM: I am forced to start by reiterating that the rights conferred by offer letters and or leases are personal in nature. This makes it necessary for the beneficiary or potential heir to prove the rights to the Ministry of Lands.
Such proof is through the offer letter, permit or lease granted to the deceased. A failure to prove implies that the late occupier may potentially have been an unlawful occupier.
In the absence of proof, the Ministry of Lands has no obligation to re-allocate the land to the selected heir. As there may be back and forth between the offices, it is important that copies of correspondence with the Ministry are kept judiciously in the event there is a need for them to be reproduced
Reporter: What is the inheritance position for rural ‘kumusha’ land when it comes to inheritance and farms having a title deed?
VM: Communal land is vested in the President and administered by the Rural district Councils through traditional leaders being chiefs and headmen. Their inheritance for use is normally through family lines.
As for farms having title deeds, they fall under our normal inheritance laws under the purview of the Master of the High Court. The Ministry of Lands does not have jurisdiction over these types of farms.
Reporter: Thank you, Mr. Madzima we have run out of time.
VM: Thank you.
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You can contact Vengai Madzima on vengai@mcmlegal.co.zw or at www.mcmlegal.co.zw.