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; those seeking specific legal advice should consult their lawyer.
Reporter: Welcome back, Mr Madzima. This week we want to discuss the inheritance of farm land in Zimbabwe. Almost 26 years following the start of the land reform program, we have been witnessing deaths of initial beneficiaries, including contested succession cases. What laws are in place to govern the issue of succession of these vast areas of land?
VM: Thank you for having me.
Your question, I believe, can first be answered in the broader context of our general succession laws in Zimbabwe.
Follow us on WhatsApp | LinkedIn for the latest headlines
By this I mean, a person in Zimbabwe either dies testate or intestate, that is, with a will or without a will. This forms the general basis of how any estate will be distributed.
Where there is a will, which stipulates the wishes of the deceased, those wishes of the deceased are prioritised and implemented to the extent that they can be implemented both practically and legally.
Where there is no will, our laws prescribe a distribution format that presupposes what the will of the deceased would be or what is commonly considered just and fair in estate distribution.
Reporter: You are correct that general estate laws would apply first. How does our law then treat land reform land specifically?
VM: I was coming to that; it would have been remiss to dissociate farm succession from the general estate administration context.
And now to be particular, there are 2 types of holding for farms distributed under the land reform program, that is, your A1 farms and A2 farms.
The A1 farms being small holder farms of approximately 6 hectares and the A2 farms are commercial farms of 20 hectares plus. The holding of the land differs, being either offer letters, leases and recently title deeds.
How the farms are held from a title perspective has a direct impact on how the farms themselves are distributed in the event of the death of the initial holder of rights.
I will start with A1 farms, whose succession is governed by Statutory Instrument 53 of 2014. Long and short, the instrument prescribes that the surviving spouse or dependents will inherit the land.
The surviving spouse is the primary beneficiary, and in the case of a polygamous marriage, each surviving spouse will hold an equal joint and undivided share in the property.
So in terms of A1 farms, there is not much complexity; it is straightforward.
Reporter: What is the position as it relates to A2 farms?
VM: A2 farms, whose rights are held by an offer letter, our courts have rejected the position that the rights of the offer letter pass automatically to the heirs in the same manner as other property.
This should be understood from the position that our courts recognise that offer letters confer legally protectable rights. With that as a background, it becomes necessary to review the terms of the offer letter or what the offer letter says.
Clause 1 ( c ) (ii) of the offer letter prescribes a condition that the rightful heir shall apply for succession.
A strict reading of this condition acknowledges that the land remains state land subject to administrative approval of a succession application, which application is to be made by the executor of the estate within 6 months of the death of the holder of the offer letter.
This position also applies to A2 farms under leases under the Land Commission Act (Chapter 20:29), where the executor is empowered to continue holding the lease on behalf of the estate pending Ministerial approval of succession.
The use of the word 'rightful' has to be considered in the context of general estate administration, taking into cognisance that our courts have accepted that farm land or a farm can be considered as a matrimonial home.
Reporter: From your experience, what problems are brought by this position of the executor having to apply first for succession to happen?
VM: In the real world, a lot of things happen upon the death of a person, especially in situations where the deceased was a breadwinner, which may include a prolonged mourning period.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
Further, there are normally cultural assumptions of how succession will take place, more so, where there is no contestation of who is to inherit the farm.
Inheritance of farm land is often assumed through use or production, although that is not the prescribed position in law.
My view will be that the 'mudhumenis,' that is, your agricultural extension officers, should assist the bereaved with advising them of the legal steps required to regularise holdings.
In one of the cases I dealt with, the opposite was true; there were allegations that the mudhemeni was the one advising other potential applicants to apply for allocation of the particular farm as it had been considered abandoned in law, despite the work on it by potential beneficiaries, which work he was aware of.
Reporter: Thank you, Mr. Madzima. We have to end here because of our time.
VM: Thank you.
You can contact Vengai Madzima on vengai@mcmlegal.co.zw or at www.mcmlegal.co.zw
