LAND LAW CUZL222

SESSION 4 HISTORICAL BACKGROUND OF LAND TENURE SYSTEM IN

ZAMBIA.
HISTORICAL BACKGROUND OF LAW TENURE
SYSTEM IN ZAMBIA.

• Land reforms in the 2nd republic

• Land reforms in the 3rd Republic of Zambia
• Compulsory Acquisition of Land or property – (land acquisition and
land requisition)
LAND REFORMS IN THE SECOND REPUBLIC – THE LAND (CONVERSION OF
TITLES) ACT.

• At independence Zambia retained both the Statutory and

customary land systems
• Though land commission appointed at independence, its
recommendations were not implemented.
• Due to uncertainty in land issues President Kaunda announced far
reaching changes in 1975 in land issues at Mulungushi Rock of
Authority
• The changes were made against a background of land speculation
(especially of bare land) and manipulation of property prices.
Land Reforms Announced By President
Kaunda

• Among the land reform measures announced by President Kaunda

which were to take effect immediately were:
• Farm land - All freehold titles to land and all land held by
commercial farmers under freehold title was converted to
leasehold of 100 years.
• Unutilized tracts of farmland were with immediate effect to be
taken over by the State.
Land Reforms

• Land in Residential Areas in Cities and Towns – Freehold titles in

urban areas converted to leasehold of 100 years.
• No more undeveloped land in urban areas was to be sold apart
from developments on the land.
• All undeveloped land in Lusaka and other cities to be taken over
by Local Authorities.
Land Reforms

• Real Estate Agents: All real estate agencies were closed down.
• They were identified as largely responsible for inflated prices of
land and housing and hence
• Rent Control measures: Government identified the area of
provision of rent as a field of extensive exploitation of the
common man.
• Individuals banned from building houses for rent.
Land Reforms

• The question of accommodation was to be left to the State, with

its institutions like the Party, Central Government, Local
Government, Parastatal Organisations and Co-operatives.
• All rented buildings owned by individuals whose value or cost had
been realized were to be taken over by local authorities.
• Control of Unplanned Townships - Local Authorities were to
ensure that no unauthorized buildings were erected within their
areas of jurisdiction.
Theoretical Justification of The 1975 Land Reforms

• Largely influenced by UNIP’s socialist ideology, the Philosophy of

Humanism and President Kaunda’s perception of the African
traditional conception of land ownership.
• Mvunga has observed that the whole tenet of the 1975 reforms
hinged on President Kaunda and his Party’s thinking that land must
remain the property of the State.
Justification

• A position or premise which in no way departed from the

traditional heritage
• UNIP’s perception was that land was to remain the property of the
state.
• Mvunga criticized this proposition.
Salient Provisions of the Land (Conversion
of Titles) Act

• The Land (Conversion of Titles) Act was the legislation that was to
implement the land reforms announced by President Kaunda in his
Watershed Speech.
• Even if was passed in August 1975, the reforms were implemented
in July shortly after the speech.
Objectives of the Act

• Vesting of all land in the President

• Conversion of all titles to land
• Imposition of restrictions on the extent of all agricultural land
holdings
• Abolition of sale, transfer and other alienation of land for value
Objectives of the Act

• Conversion of Freeholds into Leaseholds – Section 5 abolished

freehold tenures and replaced them with leasehold tenures of 100
years renewable.
• Section 6 of the Act provided for the creation of leasehold by
operation of the law.
Compensation

• No compensation was payable by the President or by any other

person in respect of the conversion of the nature of title in land or
in respect of extinguishment, restriction or abridgment of any
rights or interests in or over land resulting from the operation of
the Act.
Renewal

• Section 7 provided for renewal of statutory leases on expiry by

effluxion of time for a further period of 100 years unless the
lessee failed to comply with or observe any term, condition or
covenant of the lease, where the non-compliance or non
observance was such as to render the lease liable to forfeiture.
Bare Land - No Value

• Section 7 (2) provided for compensation only for unexhausted

improvements and not bare land per se.
• In the case of non renewal of lease, this was in line with the
general notion under the Act that undeveloped or bare land had no
value.
• Section 10 reflected the view that land was a gift from God and
could not be bought and sold and especially made the subject of
speculation by inhuman exploiters.
Section 13 – Presidential Consent for All
Transactions or Dealings in Land.

• Provided for the prohibition of any transaction or dealing in land

without presidential consent.
• This offered the government the opportunity to monitor dealings
or transactions in land to ensure compliance with stated policies
or goals.
• Section 13 of the Act generated a great deal of litigation.
The 1985 Amendments To The Land (Conversion Of Titles)
Act - Restriction of Alienation of Land to Non Zambians

• Initially there was no distinction in acquisition of land between

Zambian and non-Zambians.
• Later parliament amended s13 to restrict the acquisition of land
by non-Zambians.
• This was brought about by the grant of land to a foreigner in
Chiawa for the growing of wheat.
• The grant was opposed.
Restriction of Alienation of Land to Non
Zambians

• Grant was opposed for the following reasons:

• 1. Displacement of the local people.
• 2. Illegal export of government trophy as area was near a GMA
• 3. Threat to national security as land was near Zimbabwe border
• 4. Grant of land was too large (20,000 hectares) to people without
a proven record of experience in proposed agricultural venture.
Restriction of Alienation of Land to Non
Zambians

• Though the Government opposed the motion, it lost when the

same was put to a vote.
• The grant was later rescinded by Government.
• This is what led to Parliament enacting the Land (Conversion of
Titles) Act (Amendment) [No.2] Act No. 15 of 1985 with the aim of
restricting non-Zambians from acquiring land.
Critique of The Land (Conversion of Titles)
Act

• A number of issues were raised on the Land (Conversion of Titles)

Act
These were:
• Lack of regulations to determine prices, premiums and rents
• Absence of appellate system
• Absence of enforcement provisions
• Administrative delays in processing of consent applications.
Case law

• If prior Presidential Consent was not obtained for any

transaction or dealing in land, the whole contract was
unenforceable.
• In Mutwale V Professional Services Limited a landlord sublet a
flat without prior presidential consent to a tenant who throughout
defaulted in paying rent.
Mutwale V Professional Services Limited (1984) ZR 72 (SC)

• When the landlord sued for arrears, the High Court entered
judgment for the landlord for the sum claimed, saying that the
failure to obtain presidential consent could not nullify the
agreement.
• On appeal to the Supreme Court, it was held that if prior
presidential consent was not obtained for a sublease, the whole
contract including the provision for payment of rent was
unenforceable.
Summary of other cases involving Section 13 (1) of The 1975 Act.

• The courts have had occasion before and after the Mutwale case
to interpret the effect of section 13 of the 1975 Act on the various
dealings in land.
• In Attorney General V Zambia Sugar Co. Ltd and Another, the
High Court held that a debenture creating a floating charge over
assets of the company which included land required prior written
consent of the president under Section 13(1) of the 1975 Act.
Section 13 (1) of The 1975 Act.

• In Hina Furnishing Ltd V Mwaiseni Properties Limited, the High

Court held, inter alia, that without presidential consent under
section 13(1) of the Lands (Conversion of Titles) Act, no legal
estate or interest in the demised premises was conveyed to the
Plaintiff tenant.
Section 13 (1) of The 1975 Act.

• In Naik and Naik Motors Ltd V Chama, it was held that the
prohibition against letting premises without presidential consent
applied primarily to the landlord in the absence of any wrongdoing
on the part of the tenant, and it was therefore for the landlord to
obtain Consent and to suffer from any illegality arising from
failure to obtain such consent.
Section 13 (1) of The 1975 Act.

• A tenant who was not in default himself did not lose the
protection of the Rent Acts, as a result of a landlord’s failure to
obtain presidential consent.
Section 13 (1) of The 1975 Act.

• In Mufalo V Nganga, the Supreme Court held that there was

nothing to prevent parties entering into contracts for the sale of
land conditionally upon the obtaining of presidential consent
under section 13 (1) of the Land (Conversion of Titles) Act.
• In Mpashi V Avondale Housing Project Limited, the Supreme
Court dispelled the misconception that section 13 of the Land
(Conversion of Titles) Act operated to prohibit absolutely the
entering into contracts by purchasers and vendors conditionally
upon obtaining of Presidential consent.
Section 13 (1) of The 1975 Act.

• In Mundanda v Mulwani and others, in an appeal against refusal

to grant an order for specific performance of a contract of sale of
land, the Supreme Court held, inter alia, that:-
• the application for permission to subdivide and presidential
consent are not matters which are usually expected to be the
subject of litigation, uncertain or otherwise, and the need to
obtain such consent is not in itself a ground for refusing to grant
an order of specific performance.
Section 13 (1) of The 1975 Act

• Since the court cannot make orders which it cannot enforce,

parties applying for the specific performance of contracts for the
sale of land should come to court with evidence that if the order
they seek is made in their favour, all necessary consents will be
granted.
Section 13 (1) of The 1975 Act

• All the cases cited above dealt with land under statutory tenure.
It was not until the case of Siulapwa V Namusika (1985) ZR 21
that the High Court was presented with an opportunity to consider
the effect of the 1975 Act on land held under customary tenure.
• The case is excerpted below.
 LAND REFORMS IN THE THIRD REPUBLIC-THE LANDS ACT, 1995 AND
THE PROPOSED CONSTITUTIONAL PROVISIONS RELATING TO LAND.

• Land reforms of 1995 emanated from MMDs liberal economic policy

• MMD promised to reform the land tenure.
• Promised to reform the customary land tenure as well as facilitate
the emergency of private land market.
• The MMD Government adopted a minimalist approach to
intervention in the economy and that in respect to land this meant
removing all those obstacles under the 1975 Act that infringed on
the right of free alienation.
LAND REFORMS IN THE THIRD REPUBLIC

• There was much resistance and opposition mainly from traditional

rulers, opposition parties and NGOs.
• Bill failed to go through in parliament twice due to alleged lack of
consultation.
• Eventually Bill was passed in 1995.
• It was known that the bill was passed because of pressure from the
world bank if there was going to be continued donor support.
LAND REFORMS IN THE THIRD REPUBLIC

• Because of the external pressure, there was no meaningful

consultations.
• This could perhaps explain the continued controversy and
resentment surrounding the Lands Act of 1995 especially by or
among the traditional rulers.
Objectives of the 1995 Lands Act

• The continuation of leaseholds and leasehold tenure;

• The continuation of vesting land in the President and alienation of
land by the President;
• To provide statutory recognition and continuation of customary
tenure;
• To provide for the conversion of customary tenure into leasehold
tenure.
Objectives of the 1995 Lands Act

• To establish a land development fund and lands tribunal

• To repeal the following Acts:
• (i)The Land (Conversion of Titles) Act,
• (ii) The Zambia(state lands and reserves) Order 1924 to 1964
• (iii) The Zambia (Trust Lands) Order 1947 to 1974.
• (iv) The Zambia (Gwembe district) Orders 1959 to 1964
• (v) The westrn province (Land and Miscellaneous) Provisions Act 1970
Principal Features of The Act

• Reserves and trustland were merged and are now known as

customary area.
• Two types of land or tenures under the 1995 Lands Act, namely,
stateland (statutory tenure) and customary area (customary
tenure).
• Vesting Of Land in The President, Powers To Alienate Land And
Administration Of Land.
• The instances under which a non-Zambian may acquire land have
been enlarged compared with those that existed under the 1985
Amendment to the 1975 Act.
Principal Features of The Act

• The powers of the President to alienate land situated under

customary tenure are circumscribed under subsection 4 of section
3.
• No alienation of land by the President if it is under customary
tenure without considering the local customary law or without
consulting the chief or local authority or without consulting any
person or body whose interest may be affected
Controversy

• This has generated a lot of controversy.

• The President is proscribed from granting or alienating land to
either a Zambian or non-Zambian for a term exceeding ninety nine
(99) years
Conditions on Alienation of Land And
Presidential Consent

• Under section 4(1) of the Act, the President is proscribed from

alienating any land to either a Zambian or non-Zambian without
receiving any consideration in money for such alienation and
ground rent for such land except where the alienation is for public
purposes.
• No consideration is required for conversion of land from customary
tenure to leasehold tenure
Conditions on Alienation

• The 1995 Act only requires Presidential consent in cases of sell,

transfer, or assignment of land.
Purpose:
• To reduce the delays in allocation of land by abolishing numerous
requirements for state consents to land transaction such as to
mortgage, sublet, subdivide and to charge and by retaining the
only requirements- state consent to sell, transfer and assign.
• Only 45 days required for consent to be given
• If not done in that time person should proceed.
Conditions on Alienation

• Where the president refuses to grant consent within 30 days, a

reason should be given.
• Person refused consent can appeal within 30 days.
• In the 1975 Act the president’s decision could not be challenged by
any court or tribunal.
Customary Holdings to Be Recognized and
To Continue

• The rights and privileges of any person to hold land under

customary tenure are recognized and the application of customary
law to such holding is not to be construed as to infringe any
customary right enjoyed before the commencement of the Act.
Conversion of Customary Tenure into Leasehold Tenure.

• A holder of land under customary tenure may convert it into

leasehold tenure not exceeding ninety nine years on application by
way of:
• (a) A grant of leasehold by the President;
• (b) Any other title that the President may grant; and
• (c) Any other law.
Prohibition of Unauthorised Occupation of Land.

• A person shall not without lawful authority occupy or continue to

occupy vacant land.
• Any person who occupies land without a lawful authority is liable
to be evicted.
• Renewal of Leases - Section 10 makes it mandatory for the
President to renew the lease upon expiry for a further 99 years
where he is satisfied that the lessee has complied with or observed
the terms, conditions or covenants of the lease and the lease is
not liable to forfeiture.
Re-Entry

• Re-Entry - 13. (1) Where a lessee breaches a term or a condition

of a covenant under this Act the President shall give the lessee
three months notice of his intention to cause a certificate of re-
entry to be entered in the register in respect of the land held by
the lessee and requesting him to make representations as to why
a certificate of re-entry should not be entered in the register.
The Land Development Fund

• The fund is required to be applied to the opening up of new areas

for development of land
• A council that wishes to develop any area in its locality may apply
to the fund for money to develop the area.
• The Minister has made regulations relating to the Fund.
Dispute Settlement: The Lands Tribunal

• The Tribunal was created as a forum for speedy adjudication of

land disputes as well as a way of reducing the cost of litigation in
land matters.
• This was a good innovation as compared to the 1975 Act.
• The tribunal has 9 members appointed by the Judicial Service
Commission.
• The Chief Justice has by virtue of the powers vested unto him
under section 24 of the Act made rules for regulating the
procedure of the tribunal.
Case law

• SIWALE v SIWALE (1999) ZR 84 (SC)

• (a) Failure to consult any person or body whose interest might be
affected by the grant before alienating land situate in a
customary area is fatal.
• Chenda v Phiri and Another –Lat/80/98 [Lands Tribunal]
• (b) Section 3(4) (C) of the Lands Act - need to consult any
person or body whose interest might be affected by the grant or
conversion - Section 3(4) (d) of the Lands Act - need for applicant
for leasehold title in a customary area to obtain prior approval of
the local authority.
Case law

• In Village Headman Mupwaya and Another v Mbaimbi. it was

held by the Supreme Court, inter alia, that failure to consult any
person whose interest may be affected by the grant as required
under section 3 (1) 4 (c ) of the Lands Act was fatal .
• SCZ Appeal No. 41 of 1999 (unreported).
• Still Water Farms Limited v Mpongwe District Council and
Others- Supreme Court Appeal No. 90/2001 [Unreported]
Case law

• Makwati V Senior Chieftainess Nkomesha - Lat/60/97 – [Lands

Tribunal] [Unreported]
• (D) Once customary land has been converted to leasehold, a
Chief has no control over the land and cannot thereafter
withdraw the consent to convert.
GOSWAMI v COMMISSIONER OF LANDS [2001] ZR 31

• (e) Re-entry- Section 13 of the Lands Act of 1995 - Right to

compensation following re-entry- Article 16 of the Constitution-
protection from deprivation of property - Lands tribunal
unfettered by the pleadings or technicalities and is expected to
do justice to the parties after it has concluded its enquiry.
Compulsory Acquisition of Land or property – (land acquisition and land requisition)

• The power of taking private property for public uses generally

termed as the right of eminent domain belongs to every
independent State.
• It is one of the incidents of sovereignty.
• Law relating to compulsory acquisitions is in article 16 of the 1991
constitution and amended Lands acquisition Act.
• Security of rights in land is guaranteed as long as land is put to
legal use.
Compulsory Acquisition

• When such land is compulsorily acquired compensation is given.

• There are, however, some exceptions under the Article where no
compensation may be made which include cases where land is
abandoned, unoccupied, unutilized or undeveloped, or is owned by
a non-resident.
• The procedure for acquisition are in Land Acquisition Act.
• The powers vested in the president for compulsory acquisition are
very broad.
Compulsory Acquisition

• When these powers are used for ulterior motives by the president
they can be challenged.
• The provisions of the Act have to be strictly followed and adhered
to in any compulsory acquisition as courts will generally interpret
penal statutes strictly.
• The Land Acquisition Act is silent on the question of the purpose or
purposes for which the State may compulsorily acquire property
upon payment of adequate compensation.
Compulsory Acquisition

• The issue of public use or what is desirable or expedient in the

interest of the republic is a judicial one and depends on the facts
of each case.