Compulsory acquisition and deprivation of property rights under Zimbabwe’s 2013 Constitution: Dissecting the interpretive problems.

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Author: 
J Tsabora
Journal Citation: 
Midlands State University Law Review
Media Neutral Citation: 
[2017] MSULRJ 5
Publication Date: 
18 August 2017

 

The acquisition and deprivation of property rights within a state mirrors the respect and value accorded to private property rights in a particular state. Such respect and value is usually echoed in constitutional documents, or the basic law of the state, and given effect to in ordinary legislation. Section 71 of the 2013 Constitution of Zimbabwe2 establishes a framework not only for the recognition, protection and regulation of property rights in the legal system, but also for the compulsory acquisition and deprivation of same rights by the state. Ordinarily, this constitutional property clause reflects the tensions and conflicts inherent in a constitutional property rights system shaped by colonial legacies and common law principles.3 Indeed, that the constitutional provisions on compulsory acquisition and deprivation of property rights arouse debates and controversy owes much to this context.

Since 1980, the jurisprudence of constitutional property law has significantly developed, consequently leaving very few grey areas. This development has led to a largely settled position, thanks to judicial interpretation, regarding the meaning, application and scope of the terms compulsory acquisition and deprivation.4 Indeed, both the legislature and the executive have largely followed the interpretation of the courts regarding the meaning of these terms. Quite unsurprisingly, the legislature and the executive have practically enacted and implemented legislation whose application gave effect to the meaning extended to acquisition and deprivation by the courts.

However, the 2013 Constitution clearly introduces a very different position in relation to compulsory acquisition and deprivation of property rights. The property rights regime that is entrenched in section 71 resurrects debates long interred. This contribution examines the general interpretive problems and controversies introduced by the clause, and the implications of the various interpretive approaches to the property rights regime entrenched in section 71 of the 2013 Constitution.