White farmers demand title deeds

. . . Describe 99-year lease as a mere paper

LIVINGSTONE MARUFU

The remaining white commercial farmers say the government should give them title deeds instead of 99-year leases which guarantees them security on the land, Business Times heard this week.

The farmers have seen their land reduced by 60% under the land redistribution programmes while others are entering into joint ventures with the indigenous people who own land.

President Emmerson Mnangagwa

In 2019, President Emmerson Mnangagwa’s administration directed the Lands Ministry to give all remaining white commercial farmers 99-year leases to their land in an effort to improve relations with the farmers who lost their farms more than two decades ago under the land reform programme.

But the farmers are not secure with the 99-year leases as the land remains government’s property and is not bankable.

Even those who now want land instead of compensation are pressing for title deeds instead of 99-year leases.

Commercial Farmers Union (CFU) representative Mike Clark told Business Times that 99-year leases application rate remains low at his offices in Harare.

“Farmers are urged to come and apply for the 99-year leases but the application rate is very low as the land remains in the hands of the State and the 99-year lease is unbankable,” Clark told this publication yesterday.

CFU said most of the land in Zimbabwe has become State land and there are worries that the powers vested in the Lands minister are unprecedented.

The farmers said the Constitution still overrides the terms of any lease agreement entered into by the government with farmers.

Section 72(2) is still in force and gives the government the power to acquire any land for a public purpose and the State can do that with the mere stroke of a pen.

The Lands minister has wide powers to distribute and re-allocate land and to some extent can even ignore extant bilateral protection agreements entered into with foreign governments for the benefit of international investors.

A legal expert close to the developments said from a purely property law perspective, a lease does not confer a real right, enforceable against the whole world in the way that title deeds do.

“A lease is a mere contract affording only personal rights. A lease does not confer ownership and is a legal relationship that is capable of being terminated on good cause shown under law. Under the Gazetted Lands (Consequential Provisions) Act, a lease is on a similar footing to an offer letter and a permit,” said the legal expert.

“It gives one the right only to possess the land. One cannot sell or encumber the property as one would if they were an owner.”

It is believed that the decision only to protect current possessors of agricultural land is arbitrary and a possible violation of section 68 of the Constitution which guarantees, inter alia, the right to substantive fairness when it comes to government conduct.

Law experts said there is no legal reason why a farmer who was dispossessed two years ago should not be afforded the same administrative treatment as a farmer who remains on the land today.

“To do so, is to violate the right to equal protection of the law enshrined under section 56(1) of the Constitution. There is a misconception that these leases will be able to stand as real security for bank loans and other mortgages. The unfortunate reality is that long leases won’t improve a lessee’s ability to borrow money from a bank,” said a legal expert.

It is understood that land leases of the nature contemplated do not carry the same strength as title deeds to urban land, registered in the Deeds Office in the eyes of a financial institution.

The principles that govern real security are such that the lender should be able to register their mortgage over the property with a view to selling the same should the debtor default .

Section 72 of the Constitution vests all agricultural land in the State and the bank would be powerless to sell the land in the event of a default.

Resettled farmers have struggled to access financing from banks who continue to shun 99-year leases as not bankable, thereby affecting production on the farms.

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