Automated Summary
Key Facts
The applicants, Jean Pierre Dusabe and John Peter Mutokambali, had their homes demolished by the City of Harare on 21 January 2016 without a court order or written notice. They were members of the Nyikavanhu Housing Cooperative, which allocated them plots in Arlington Estate. The cooperative was mandated to distribute state land but failed to meet conditions for development permits and layout plans. The court ruled the demolition unlawful under the Constitution's administrative justice provisions (s 68), as the respondents violated the requirement for lawful, procedurally fair conduct. The cooperative had been barred by a 2013 court order from allocating stands at Arlington Estate. Applicants were offered relocation to Stoneridge Farm but faced health risks living in rubble post-demolition. The court prohibited further harassment and ordered costs against the respondents.
Issues
- The court determined whether the demolition of the applicants' homes by the City of Harare and the Minister of Local Government without a court order violated Section 74 of the Constitution, which mandates that no person may be evicted or have their home demolished without a court order. The respondents admitted they had no such order, leading the court to rule the demolition unlawful.
- The court examined if the respondents' actions violated the applicants' right to administrative justice under Section 68 of the Constitution. The respondents failed to provide written notice, acted without a court order, and their conduct was not procedurally fair, lawful, or transparent, thus breaching the constitutional requirements for administrative conduct.
- The court considered whether the applicants were entitled to emergency alternative accommodation following the unlawful demolition. The court concluded that since the applicants lacked legitimate title to the land and the housing cooperative had no authority to allocate it, the respondents were not obligated to provide alternative housing. The claim for alternative accommodation was deemed unsuitable for an urgent application and would require a separate damages assessment.
Holdings
- The court held that the demolition of the applicants' homes without a court order and notice violated section 74 of the Constitution, which mandates that no person may be evicted or have their home demolished without a court order. The respondents' conduct was deemed unlawful and procedurally unfair.
- The respondents were ordered to pay the costs of the suit on a legal practitioner-client scale as a punitive measure to discourage future disregard of the law.
- The applicants were not entitled to alternative accommodation as they lacked legitimate title to the land, and the housing cooperative had no authority to allocate the land. The court emphasized that s71 of the Constitution does not apply to their circumstances since their property rights were not compulsorily acquired under a law of general application.
- The court issued an order barring the respondents from threatening or harassing the applicants and prohibiting further destruction of their property without a court order. This interim relief was granted to protect the applicants' rights.
Remedies
- The court ordered the 1st and 2nd respondents to pay the costs of the suit on a legal practitioner and client scale as punitive relief for their unlawful conduct.
- The court issued an order barring the 1st and 2nd respondents (City of Harare and Minister of Local Government) from threatening, harassing, or further destroying the applicants' property without a court order.
- The court prohibited the 1st and 2nd respondents from destroying the applicants' household property or continuing to demolish their homes without a court order, reinforcing the requirement for judicial authorization.
Legal Principles
- The court conducted a judicial review of the respondents' actions, finding them ultra vires and procedurally unfair. The respondents' conduct was deemed unlawful as it lacked a court order and proper notice, breaching constitutional protections for administrative justice.
- The court applied a purposive interpretation of the Constitution, particularly s 68, to safeguard individual rights against arbitrary administrative actions. The focus was on ensuring fairness, transparency, and compliance with constitutional mandates.
- The court emphasized that government departments must act within the bounds of the law, particularly the Constitution, and cannot unilaterally demolish structures without a court order. The respondents violated the rule of law by failing to adhere to procedural and substantive legal requirements.
Precedent Name
- Chiroodza v Chitungwiza Town Council & Anor
- Affretair (Pvt) Ltd & Anor v M K Airlines (Pvt) Ltd
- Tengwe Estates (Pvt) Ltd v Minister of Lands & Anor
- Silver Trucks (Pvt) Ltd & Anor v Director of Customs & Excise
Cited Statute
- Land Acquisition Act [Chapter 20:10]
- Constitution of Zimbabwe (Amendment number 20) Act 2013
- Cooperative Society Act [Chapter 24:05]
- Administrative Justice Act [Chapter 10:28]
- Urban Council's Act [Chapter 29:15]
Judge Name
Chigumba J
Passage Text
- The problem arises from the cooperative having accepted cash for the state land that it allocated to the applicants when it had no mandate, permission or authority to itself accept charge or receive the cash.
- It is my view that the reference in s 71 (3) (a) to deprivation in terms of a law of general application does not entrench in the Constitution, a right to fair compensation... to just anyone 'deprived of their property'.
- Section 74 of the Constitution of Zimbabwe (Amendment number 20) Act 2013 provides that; 'No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances'.