The Southern Africa Litigation Centre is working with Zambia Land Alliance-Monze Branch in assisting community members (“Appellants”) of Mugoto Settlement Scheme, Chikankata District, in challenging the decision of the new Chikankata District Council’s taking over individual farms, residential areas and the grazing land of a community of 4429 people without following the legal and constitutional procedures more specifically the compulsory acquisition of land without compensation.
Background
This case relates to a dispute over a piece of land within the Mugoto/Naluama Settlement Scheme, which is near Nega-Nega Turn Off in Chikankata District in the Southern Province of Zambia (disputed land). The dispute arose in 2013 when the Chikankata District Council ( “1st Respondent”) took possession of the disputed land to establish the Chikankata township and construct the district administration offices.
Around 1978, the government of the Republic of Zambia repossessed Farm No 106(a) in Mazabuka District from an absentee landlord and set up the Mugoto/Naluama Settlement Scheme. The Scheme was established on a village basis and constituted three components of land: the residential, 10 hectares arable for farming, and the communal grazing land. The 10 hectares arable for farming was properly surveyed and demarcated, and the residential plots were allocated individually while the grazing land was allocated on a communal basis for all the settlers in the Scheme. The Appellants were allocated disputed land under the Scheme in 1978, including communal grazing land and occupied and started using the land in 1979. The Appellants are among the 229 community members registered under the Scheme since 1978.
In 1980, the then President of the Republic of Zambia, Kenneth Kaunda, constituted a commission named the Sakala Commission. This Commission was tasked with, among other things, exploring the land in the Southern province and assessing the issues of unequal distribution of land in the region including whether there was any bare land available. After two years of investigations, the Sakala Commission reported that no empty land was available in the Southern province but only land held by white settlers who had since left the country and had become absentee landlords. In its Report, the Sakala Commission confirmed that the “[S]cheme was established in 1978 and that farmers began to move in during 1979” and that the “total hectarage is 7,953 which was divided into arable units of 10 hectares each, communal grazing land and residential areas. The scheme is organised on village settlement basis” and further that it “ascertained that there were 164 settler farmers on the scheme at the time of the Commission’s visit”. Regarding recommendations, the Sakala Commission recommended that the government, among other things, consider repossessing farms left by absentee landlords living outside the country.
Around 1998, the Appellants were among the 229 registered settlers under the Scheme who were advised by the Mazabuka Municipal Council to apply for Title Deeds to register their pre-allocated individual 10 hectares of arable land with the Lands and Deeds Registry of the Ministry of Lands. The Mazabuka Municipal Council approved the Appellants’ application for Title Deeds in 2002. On 3 August 2004, the Town Clerk for Mazabuka Municipal Council forwarded the list of all 229 settlers, including the Appellants, together with their approved forms to the Commissioner of Lands, and recommended that they be issued with Title Deeds.
From the time the Appellants and other community members occupied and started developing the disputed land in 1978/ 1979 until 2013 when the 1st Respondent took over the disputed land, no one challenged their rights and interests over the land.
Upon taking over the disputed land, the 1st Respondent started constructing administration offices, staff houses, and a police station on the communal grazing land. On 14 September, the settlers watched helplessly as large commercial mobile machines moved into the settlement and began grading, levelling and other activities whilst surveyors pegged re-demarcated plots and other construction works were carried out on their grazing land. On 2 October 2013, the settlers sent a demand letter to the Chikankata District Council asking them to halt the construction works on their land within three days or risk facing legal proceedings. The letter was ignored, and the construction work continued. The 1st Respondent never consulted the Appellants and has not made any undertaking to compensate them in any form. Instead, the 1st Respondent argues that none of the Appellants holds a title to the disputed land, whether statutory, customary or otherwise.
In the High Court
On 14 November 2013, members of the affected community commenced proceedings in the High Court challenging the Council’s action. The community specifically asked the Court to issue some of the following declarations and orders:
- A declaration that the Appellants are the lawful and legal occupants of Mugoto/ Naluama Settlement consisting of arable farmland, residential areas, and communal grazing land.
- A declaration that the 1st Respondent’s action of displacing the Appellants from the disputed land was unlawful because the land was lawfully and legally allocated to the Appellants for farming and settlement purposes.
- An order that the Chikankata District Council cannot displace them from the land that has already been allocated to them and surveyed, awaiting issuance of Title Deeds
- An order that the intended evictions and demolitions of their properties were wrongful and unlawful.
- An order for compensation for the loss of grazing land and demolition of their properties
- An order for damages for unlawful and wrongful acquisition and use of land
- An order of interlocutory injunction against the Respondents.
On 4 January 2016, the Attorney General, who is the 2nd Respondent, advised that from the information available regarding the matter, the Plaintiffs appear to be legitimately enjoying customary land rights over the disputed land and that they are entitled to be appropriately compensated if the disputed land was lawfully acquired in accordance with the Lands Acquisition Act. The Attorney General further advised that if the correct procedure was not followed for the compulsory acquisition of the disputed land, such acquisition was void and the Plaintiffs were entitled to continue enjoying the use of the land in accordance with the customary law under which it was granted.
On 28 September 2017, the High Court of Zambia granted an interim injunction in the case and found that the settlers have a clear claim to be determined at trial. The Court restrained the Chikankata District Council and its servants or agents from interfering, fencing off, harassing, evicting, displacing, developing or illegally taking possession of Farm 106, Chikankata District, Southern Province, forming part of the Mugoto Settlement, or in any way dealing with the property pending the final determination of the matter or further order of the Court.
After a lengthy trial in 2019, the High Court delivered a partially favourable judgment on 21 May 2020. The High Court found that the Appellants are settlers in the Mugoto Settlement Scheme of Chief Naluama which was established in 1978 after the Government repossessed Farm No.106(a) Mazabuka District. The Court also held that the Appellants were beneficiaries of the repossessed Farm No.106(a) Mazabuka District and have been on the disputed land from sometime in 1978/1979. Furthermore, that they have been living on, farming, and grazing their animals on the land in issue. Despite these findings, the High Court only granted the Appellant the 10 hectares of arable land to be put on the Title Deed. The Court dismissed all the other claims, including the claims to the residential and communal grazing. Instead, the Court held that the Appellants only had an equitable interest in the use of communal grazing land but that the state as the legal owner has the overriding legal interest and the right to change the use of the land from common grazing to another activity.
In the Court of Appeal
Partially dissatisfied with the High Court’s judgment, particularly dismissing their claims to residential and communal grazing land, and to damages or compensation for displacement, the Appellant filed an appeal to the Court of Appeal of Zambia, where they asked the Court to reverse the complained decision of the High Court. The Appeal was argued on 23 August 2023.
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