DEFINITIONS

Property Law

Consists of legal rules determining the nature, content, vesting, protection, transfer and

termination of various real relationship between a legal subjects and objects, as well as the
rights

and duties ensuing from these relationships.

Legal Subject

Is a natural or legal person capable of acting as a subject in legal relationship of acquiring

rights

and incurring duties in the process.

Human beings, the State, universities, companies, close corporations, and so on, are all
legal

subjects, since they can act as legal subjects in legal relationships and can therefore acquire

rights duties.

Legal Object

Rights and duties established by legal subjects in legal relationships pertain to one or more

various kinds of legal object.

A legal object can be defined as every object with which a legal subject has a legally
recognised

relationship. The legal objects may be divided into things, performances, immaterial property

and personality property. Each of legal objects has its own characteristics which distinguish it

from other legal objects.

Characteristics of legal objects

Things

Is material (corporeal) in nature. Defines as an independent part of the corporeal

world, which is external to humans and subject to human control , as well as

useful and valuable to humans.

●​ Perfomance
 ●​ Immaterial property
●​ Personality propery

Legal Rights

A legally enforceable claim.

An interest or title in an object of property.

Rights deal with the lawful relationship between legal subjects and the relationship between

legal subjects and the objects of their right

Legal relationship

A legal relationship is an association to which the law attaches consequence.

Real Right

A lawful real relationship between a legal subject and a thing confers direct control over the

thing on the legal subject, as well as a relationship between the legal subject and all other

legal subjects who must respect this relationship.

Real Relationship

A real relationship is the particular legal relationship between one or more legal subjects and
a

thing.

Difference between a real right a real relationship?

Important real relationships

The most important real relationships are usually divided into three categories-

Ownership

which is always a lawful real relationship and therefore a real right.

Possession

Physical control of a thing with the intention of an owner (animo domini).

Physical control of a thing with the intention to derive a benefit.

May be lawful or unlawful.

When it is lawful it can give rise to a real right, for example, a pledge, usufructuary right
(right to enjoy the use and advantages of another’s property short of the destruction or

waste of its substance), etc.

Entitlement

A legal subject who acquires a real right from a lawful real relationship is usually is given

power by the legal order to perform certain acts in connection with the thing.

SUBJECT MATTER OF PROPERTY

The subject matter of property in legal contexts refers to the specific property or rights being
transferred, disputed, or governed by law. In property law, it includes real property (land and
buildings), personal property (movable items), and intangible property (such as intellectual
property rights). In legal disputes, the subject matter is the central issue or controversy, such
as ownership rights or property [Link] trusts, certainty of the subject matter is crucial to
ensure clarity on which properties are included. In intellectual property, the subject matter
involves creative works protected under copyright and industrial property rights.

FREEDOM OF PROPERTY

The concept of freedom of property in Zimbabwe refers to the legal right of individuals and
entities to acquire, hold, use, and dispose of property, subject to the limitations imposed by
law. This principle is enshrined in Section 71 of the Constitution of Zimbabwe (2013), which
guarantees the right to private property. However, this freedom is not absolute and is
balanced against public interest considerations and the state's regulatory powers.

Key Aspects of Freedom of Property in Zimbabwe

1.​ Constitutional Protections

Section 71(2) of the Constitution affirms that every person has the right to acquire, hold,
occupy, use, transfer, or dispose of property in any part of Zimbabwe.

- Section 74 further protects individuals from eviction or demolition of their homes without a
court order, ensuring procedural fairness

2.​ Limitations on Freedom of Property

- Section 71(3) allows for the deprivation of property rights if it is done in terms of a law of
general application and is necessary for public safety, public order, public interest, defense,
or the benefit of the community.

- Section 72 vests all agricultural land in the state, limiting private ownership of such land.
This provision has been a source of concern for investors and property owners, as it allows
for compulsory acquisition without compensation for the land itself, except for improvements.

3.​ Balancing Public and Private Interests**:

 - The principle of eminent domain permits the state to acquire private property for public
purposes, such as infrastructure development or urban planning. However, this must be
done in a manner that is fair, just, and equitable.

- The courts play a critical role in ensuring that the state's exercise of power does not
violate constitutional rights.

4.​ Practical Implications

- While urban and commercial properties enjoy stronger protections under laws like the
Deeds Registries Act, agricultural land remains subject to state control.

- The lack of absolute property rights, particularly for agricultural land, has implications for
investment and economic development.

In summary, the concept of freedom of property in Zimbabwe is a balance between

individual rights and the state's regulatory powers. While the Constitution provides robust
protections, the practical application of these rights, especially in the context of land reform
and compulsory acquisition, reflects the complexities of Zimbabwe's legal and historical
landscape.

THEORIES SUPPORTING PRIVATE PROPERTY

1.​ Personality Theory

• Emphasises the person against whom the right may be enforced.

• Real right operates absolutely – it is enforceable against the world at large.

• Recognition & compliance with such a right may be enforced against anyone.

i.e. whatever my relationship with someone – that person will have to

recognise my ownership of a thing & I can claim my thing from anyone in

control of it.

• Personal right has relative operation – can be enforced only against the

particular person who is obliged to perform.

• Weaknesses: over emphasises absolute operation of real rights, which

don’t always & necessarily operate absolutely. Owner may be prevented

by estoppel (owner culpably created impression that 3rd person was

owner).

• Personal rights don’t always have only relative operation. In exceptional

circumstances – operate absolutely & have to be respected by outside

2.​ Classical Theory

• Corresponds to Roman Law distinction – it refers to nature of the object to

which right pertains.

• Real rights concern relationship btwn person & thing. A real right confers

direct control & right of disposal over a thing.

• Personal rights concern relationship btwn persons. A personal right entitles

creditor ONLY to claim performance from particular person – object of right

is therefore performance.

• Weaknesses: most instances – this will help to determine if dealing with real

right / not – BUT – it’s sometimes difficult to determine exactly what is

meant by a “direct relationship with a thing”.

• Certain personal rights also have a thing as their object, but they aren’t real

rights (i.e. personal rights to acquire a thing – X buys a car from Y)