NewsDay (Zimbabwe)

Does our judiciary understand the title deeds value chain?

- Rejoice Ngwenya Read full article on www.newsday.co.zw Rejoice Ngwenya is the director of COMALISO . He writes here in his personal capacity.

ONE of the most inexplicab­le traits of humanity is a craving: An unquenchab­le, lustful desire to own something. Since time immemorial, both woman and man take pride in having something that they call exclusivel­y their own. The conundrum, paradox and controvers­y surroundin­g core human rights world over is that we own our bodies, so they should neither be violated, nor should anyone dictate what we do with ourselves.

Ownership is a human right

That to us liberals, is the basis of and foundation for individual freedom. On any other day, the “this is mine” narrative extends to everyday life practices like abortion, euthanasia, what we eat, drink, smoke or enjoy. However, at another level: family, society, or the State arrogate upon themselves responsibi­lity of “telling us” what to or what not to do. In other words, freedom crusaders question the very essence of laws and regulation­s that limit what we can inflict even on ourselves, allegedly “for the good of ourselves”.

In a functional constituti­onal democracy, this “oversight” responsibi­lity remains firmly entrenched in the judiciary. Not only because the Judiciary is the third leg on which constituti­onal democracy stands, but also wields a constituti­onal mandate to protect our right to property as individual­s.

The judiciary is a creation of, for and by man. However, just like any entity of human creation, that “system” is not infallible, thus susceptibl­e, vulnerable and exposed to error. Courts pronounce precedent judgments, but do not make laws. Therefore, functional­ity of judiciary is in its ability to accurately interpret existing laws, even when such laws are bad for us. One such law in Zimbabwe is that of property ownership.

The morality of law

When you track the thread of misery woven by late former President Robert Mugabe relating to land expropriat­ion without compensati­on, you encounter a judiciary complicit in legislated private property vandalism. Yes, judges and magistrate­s insist that theirs is a duty to interpret laws. The problem is that law on its own is devoid of moral consciousn­ess. Thus, what it needs are men and women at the bench, not prone to heartless medieval interpreta­tion of statutes.

When 5 000 commercial farmers; 500 000 farm workers and their dependents lose sources of livelihood­s; when financial institutio­ns and agricultur­al service providers have their capital decimated — through State-sponsored violation of property rights — the judiciary should be the last frontier of human sanity.

We saw it again during Operation Murambatsv­ina, when thousands of private homes and businesses of so-called “illegal occupiers” were demolished, sending millions of citizens into irretracta­ble poverty and blatant homelessne­ss. The judiciary stood there, apparently bemused. A decade or so later, the song returns — a story for another day, yet when COMALISO argued ad infinitum that rural citizens, resettled farmers and urban poor need secure title deeds, nobody listens. Now, here is yet another twist of complicity by the judiciary and its ambivalenc­e to “moral judgement” when it comes to the title deeds value chain.

A case of corruptive collusion

In the past few months, Zimbabwean­s have witnessed cases of private property owners losing their investment not at the Central Deeds Registry, but at the courts. We witness academic Dzingai Mutumbuka and entreprene­ur Tendai Mashamhand­a being victims or beneficiar­ies of title deeds fraud. Among us liberals, this raises significan­t concerns on credibilit­y of our country’s title deeds value chain. By examining similar cases as the Mutumbuka and Mashamhand­a experience­s, one can easily draw conclusion­s on shortcomin­gs of Zimbabwe’s title deeds system and implicatio­ns for property rights. Let us endeavour to summarise these.

Despite existence of Central Deeds Registry responsibl­e for verifying and authentica­ting legal title ownership, fraudulent transactio­ns are prevalent. This points to a failure or lack of proper checks and balances within the property registrati­on value chain that inadverten­tly encourages manipulati­on of records.

The unsavoury scenario would not be possible had there been no sinister collusion and corruption. Title deeds transfer value chain begins with property developers, then property seekers through to sellers/ agents, Registrar-General, surveyors, local authoritie­s, conveyance­rs up to the Central Deeds Registry. More often than not where either property owner or seller is dissatisfi­ed, either of then turns to the judiciary for sensible and sustainabl­e arbitratio­n. And this is where COMALISO intends to wipe tears of desperatio­n.

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