In the heat of countrywide fights for land, the High Court in Blantyre has ruled that owners of customary land who have owned and used customary land for a long time are protected by the Constitution and cannot be stripped of ownership of the land using customary law or cultural practices.
In his judgement, High Court Judge Jack N’riva stated that once chiefs have given customary land to someone, the allocation is perpetual and such land will pass through the generations of that person’s family, unless it is sold or voluntarily given away.
High Court has further said than women and children cannot be disposed of customary land because it is not located in the village where they originally come from but they found themselves there by virtue of marriage or were born out of such marriages.
This means that the common practice that children born from or women married in lobola marriages cannot inherit land from the mother’s side has been quashed by the court.
Further, it also means that the practice that women married under the lobola system or their children cannot inherit land in the husband’s village has been dismissed by the court.
N’riva’s made the ruling in a landmark case of Mary Manyenje vs Manuel Mpingo and Melenia Pondani in which the court emphasised that such practices contravene the right to property under Section 28 of the Constitution and would not be allowed to stand.
The appellant, Mary Manyenje had appealed a judgement by the Namitambo Magistrate Court in which her paternal uncle and aunt applied that she be dispossessed customary land she had used in the area for 20 years because her mother was married under the lobola system.
In the case, the court heard that Manyenje commenced a case at Namitambo Magistrate Court that her paternal aunt and uncle had grabbed and dispossessed her of a piece of customary land that was used and occupied by her grandmother, then her late mother for 40 years and herself for over 20 years since 1998.
Her aunt and uncle sought to dispossesses her of the land in 2018 on the grounds that the land originally belonged to the paternal side of the appellant’s ancestors and is located in the paternal village and she had to leave it and go back to her mother’s village where she should till land there. This was after 20 years of using and occupying the land which she tills and relies on together with her children to date.
The Namitambo Magistrate court held that the land is situated in Mdala village, a paternal village, belonged to Manyenje’s grandfather on behalf of the paternal side and had to be repossessed by the said paternal side through the aunt and uncle in line with customary law and that the appellant has to hand over ‘ownership’ use and occupancy of the land after 20 years using the same and relocate to her village.
In an interview after the judgement, Manyenje’s lawyer Khuleza Phokoso noted:“We are happy that the court has upheld and vindicated this established position of the law and essentially closed the door to the inconsistency and uncertainty of principles governing tenure in customary land brought in by application of customary law .”
Manyenje said customary land remains the largest and vulnerable portion of the country’s land and as such, it is where future litigation in land matters will be fought in terms of adjudication of use and occupancy rights, adjudication of interests for title registration, titling itself, disposal by non-legitimate holders of use and occupancy rights and maybe even by lending institutions if pledged as security.Follow and Subscribe Nyasa TV :