After hearing argument from the parties, the High Court of Zimbabwe made an order dismissing the application filed by the appellants in terms of section 85(1) of the Constitution of Zimbabwe. The court also ordered the appellants to pay the costs of the application.
This followed a finding by the court that the appellants could not properly seek to enforce their right to shelter in terms of section 85 of the Constitution of Zimbabwe as such a right was not a fundamental right enshrined in Chapter 4 of the Constitution which contains the declaration of rights. The court further found, that, the right to shelter was one of the national objectives under Chapter 2 of the Constitution and therefore not justiciable.
This appeal is against that determination.
FACTUAL BACKGROUND
The first appellant, the Zimbabwe Homeless Peoples Federation, is a universitas at law with an active membership said to be ten thousand homeless people who contribute and pool their resources together for the purpose of achieving and attaining the goal for housing for poor homeless people. The second appellant, Tawonga Savings Scheme, is a saving scheme established in terms of its Constitution with the power to sue and be sued.
The third appellant, Ngwaru Masanza, is a resident of Newpark informal settlement situated at Haydon Farm along the Old Mazoe Road.
Although counsel for appellants attempted, unsuccessfully, to urge the court a quo, and this Court, to accept that the application brought by the first and second appellants in the court was not in terms of section 85(1) of the Constitution of Zimbabwe, it is clear, when all is said and done, that all three appellants approached the court a quo in terms of section 85(1) of the Constitution.
This is an aspect I will revert to in the course of this judgment as it has an important bearing on whether or not the appellants were properly non-suited by the court a quo on the basis that they could not seek relief in terms of section 85 of the Constitution.
The first respondent is the Minister of Local Government and National Housing whose Ministry is responsible for national housing and the administration of local authorities in Zimbabwe. He is hereinafter referred to as “the Minister” of Local Government.
The second respondent is Zvimba Rural District Council, a local authority that operates under the aegis of the first respondent. It will be referred to in this judgment simply as “the Council”. It is the local authority for Haydon Farm which is at the centre of the dispute between the parties herein.
The third respondent is Leengate (Pvt) Ltd (“Leengate”), a private company involved in housing development. It was this company which was given the right to develop a portion of the farm in question.
The fourth respondent is the Minister of Lands, Land Reform and Rural Resettlement, the acquiring authority of the farm. He is hereinafter referred to as “the Minister of Lands”. It was the Minister of Lands who handed over the farm to the Minister of Local Government for housing development who, in turn, allocated it to the Council and Leengate.
Members of the Tawonga Savings Scheme, including the third appellant herein (Ngwaru Masanza), took occupation of Haydon Farm sometime in 2000, during the height of the land reform programme. They proceeded to construct fixtures, some permanent, but these were demolished in 2005 during a Government operation that came to be referred to as Operation Murambatsvina.
It was shortly thereafter that the land in question was acquired by the State pursuant to Constitutional Amendment No.17 after which it became State land.
The informal settlement at the farm was not regularised.
In due course, the third respondent, Leengate (Pvt) Ltd, was offered a hundred hectares of the land for residential development.
It is common cause that some of the appellants occupy part of the land that was offered to Leengate (Pvt) Ltd for development.
It is not in dispute that Leengate (Pvt) Ltd proceeded to have the land surveyed after which roads and storm drains were constructed thereon. Leengate proceeded to develop a hundred and fifty Stands which it then sold to the public.
About forty per cent of this land is still occupied by the second appellant's members.
PROCEEDINGS BEFORE THE HIGH COURT
In their founding papers before the High Court, the appellants averred that Council and Leengate (Pvt) Ltd then began to threaten them and proceeded to evict some of them from the farm. They gave notice to the remaining occupants to vacate the farm by a given date.
The appellants contended, that, the evictions were a breach of their rights enshrined under sections 28, 44, 48, 51, 56(1) and 77 of the Constitution.
They argued, that, whilst there was no specific right to shelter or housing in the Declaration of Rights, other than for children, the right to dignity (section 48) necessarily incorporates the right to shelter as the latter right would be meaningless without the concomitant right to food and shelter.
The appellants therefore sought an order interdicting the Council and Leengate (Pvt) Ltd from evicting them.
They also sought orders compelling the Minister of Local Government and the Council to allocate serviced Stands to them as well as construct basic houses for them. Alternatively, they sought an order compelling the Minister of Local Government and the Minister of Lands to provide them with alternative land and serviced Stands thereon.
An application to further amend the prayer was abandoned at the hearing of this matter.
All the respondents, including the City of Harare against which the application was subsequently withdrawn, opposed the application to interdict what the appellants termed forced evictions.
The Minister of Local Government and the Minister of Lands took the common position that the land in question was State land and that the appellants had no lawful authority to occupy, use, or hold it. They contended that the right to shelter was not part of the Bill of Rights and therefore the appellants could not seek relief against them in terms of section 85 of the Constitution.
Leengate (Pvt) Ltd, on the other hand, averred, that, the appellants occupation of the farm was illegal and that, as a corollary, they had no right of audience before the court. Leengate also submitted that there had been no illegal evictions undertaken by itself or at its instance. Instead, what it had done was follow due process and to institute eviction proceedings against the appellants in the Magistrates Court. Leengate further submitted, that, as the right to shelter was not entrenched in the Constitution, the appellants therefore had no cause of action against it pursuant to section 85 of the Constitution.
In its determination, the court a quo found that all the applicants had approached the court in terms of section 85(1)(d), 85(1)(e) and 85(1)(a) respectively.
The court held, that, section 85(1) was available to litigants who sought to enforce rights enshrined under the Declaration of Rights in Chapter 4. It found that since the right to shelter was not part of the Declaration of Rights, the appellants could not have properly approached the court in terms of section 85(1) alleging a breach of a fundamental right.
The court found it unnecessary to determine the merits of the matter, and, consequently, dismissed the application with costs.
PROCEEDINGS BEFORE THIS COURT
Aggrieved by the above determination, the appellants noted an appeal to this Court. They alleged that the court a quo had erred in three respects:
(i) Firstly, in failing to recognise the right of shelter on the basis that it is not included in Chapter 4 of the Constitution whereas section 47 of the Constitution, which is part of the Bill of Rights, provides that Chapter 4 does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with the Constitution.
(ii) Secondly, in finding that the appellants could not approach the court in terms of section 85 of the Constitution when there was in existence section 47 of the same Constitution which recognised the existence of other rights and freedoms conferred by the law.
(iii) In not making a determination on the merits through the selective application of Chapter 4, when the very same Chapter contains the non-exclusionary clause under section 47 of the same Constitution.
Both in his heads of argument and oral submissions, counsel for the third respondent (Leengate (Pvt) Ltd) raised the preliminary point, that, the appellants heads of argument were not compliant with Rule 52(2) of the Supreme Court Rules, 2018.
Although the parties had agreed, before the hearing, not to pursue the preliminary points taken by the respondents in their respective heads of argument, all addressed the court on whether there were proper heads of argument filed by the appellants before the court.
The court directed the parties to address it on all the issues that required determination by this Court.
On the merits, counsel for the appellants submitted, that, the right to shelter ought to be declared a fundamental right pursuant to section 47 of the Constitution.
She further argued, that, the right to life, dignity, and equal protection of the law do not exist independently of the right to shelter. Human rights are indivisible and interdependent. Indeed, one cannot be said to have the right to life or dignity if one does not have the right to shelter or a home.
Counsel urged the court to adopt a wide and purposive interpretation in order to determine whether the legislature intended to make shelter a fundamental right within the Constitution.
Counsel further argued, that, the findings of the court a quo had not taken into account all the provisions of the Constitution.
The Constitution has provided for adequate shelter as a national objective under section 28.
It has provided for freedom from arbitrary evictions under section 74 of the same Constitution. It has also made provision for the right of children to education, health services, nutrition, and shelter under section 81(f). It also provides for security of tenure to every person lawfully owning or occupying agricultural land.
The court should therefore have adopted a purposive interpretation and paid due regard to all these provisions that have a bearing on the right to shelter.
Taken as a whole, the Constitution provides for the fundamental right to housing.
The appellants have further contended, that, the decision of the court a quo has far reaching implications as it effectively leaves the appellants members homeless with nowhere to go.
Before sanctifying the drastic measure of eviction, the court a quo should have gone beyond the facts.
The court did not take into account the circumstances and length of time the appellants members had been in occupation, the rights and needs of vulnerable sections of that group, such as children, and the failure by the relevant organs of the State to make suitable alternative accommodation available.
SUBMISSIONS BY THE MINISTER OF LOCAL GOVERNMENT AND THE MINISTER OF LANDS
Counsel for the two Ministers submitted, that, for the reasons given by Leengate (Pvt) Ltd, with which they agree, the appellants heads of argument do not comply with the Rules of Court. He urged this Court to find that there are no proper heads before it.
On the merits, he argued, that, the right to shelter is not included in Chapter 4 of the Constitution but is envisaged as a national objective under section 28.
He further submitted, that, the reliance by the appellants on section 47 of the Constitution was inappropriate as they had failed to point to any law that provides the right to shelter. In any event, any rights recognised by section 47 of the Constitution are not fundamental rights. The provision simply means the Constitution does not exclude the existence of other rights confirmed in terms of other laws recognised as such by the Constitution.
SUBMISSIONS BY LEENGATE
Counsel for Leengate (Pvt) Ltd submitted, that, there were no proper heads of argument before the court. The appellants heads span fifty-eight pages and are clearly not in compliance with Rule 52(2) of the Supreme Court Rules 2018.
On the merits, counsel also submitted, that, the right to shelter is just but an aspiration.
Section 47 of the Constitution refers to rights conferred by law. The appellants have not pointed to any provision of law that creates the right to shelter.
The matter brought before the court is therefore not a constitutional matter, and, consequently, the principle of subsidiarity applies.
ISSUES ARISING FOR DETERMINATION
From the above synopsis, four issues arise for determination. These are:
(i) First, whether the appellants heads of argument are compliant with Rule 52(2) of the Supreme Court Rules 2018.
(ii) Second, whether the right to housing is a fundamental right cognizable in our law.
(iii) Third, whether the court correctly found that the appellants could not properly approach the court in terms of section 85 of the Constitution and whether the doctrine of avoidance is applicable in this case.
(iv) Last, whether the court a quo erred by not making a determination on the merits....,.
WHETHER THE APPELLANTS HEADS OF ARGUMENT COMPLY WITH THE RULES OF COURT
Rule 52(2) of the Supreme Court Rules, 2018 provides as follows:
“(2) Within fifteen days after being called upon to file heads of argument in terms of subrule (1), or within such longer period as a judge may for good cause allow, the appellant's legal practitioner shall file with the registrar a document setting out the heads of his or her argument together with a list of authorities to be cited in support thereof, and immediately thereafter shall deliver a copy to the respondent.”
Rule 50 has, however, made provision for written arguments and not heads of argument to be filed. That Rule provides as follows:
“50. A party to a civil appeal may, not less than five days before the date on which the appeal has been set down for hearing, file with the registrar a declaration in writing that he or she does not intend to be present in person or to be represented by counsel at the hearing of the appeal, together with four copies of such argument as he or she wishes to submit to the court. Such argument shall be in numbered paragraphs under distinct heads….,.”
It will be apparent, from the foregoing, that, our Rules of Court have deliberately made a distinction between, on the one hand, heads of argument, and, written arguments, on the other.
Written arguments are filed, in terms of Rule 50 of the Supreme Court Rules 2018, by either an appellant or a respondent who does not intend to be present in person or to be represented by a legal practitioner at the hearing of the appeal.
Written arguments are intended to be a lot more comprehensive for the reason that the party will not be present before the court to motivate his or her appeal.
An appellant who is called upon by the Registrar to file heads of argument in terms of Rule 52(2) of the Supreme Court Rules, 2018 may not file written arguments. The filing of written arguments in that circumstance would not be compliant with the Rules.
The option of filing written arguments is one that is by no means common in this jurisdiction.
Invariably, an appellant, or applicant, files heads of argument in compliance with a directive from the Registrar; and failure to do so will result in the matter being deemed abandoned and dismissed – see Rule 39(5).
Equally, a respondent upon whom the appellant's heads are served is required to file his or her own heads within ten days of receipt of the appellant's heads.
In my experience on the Supreme Court bench, the option available, to file written arguments in terms of Rule 50, is one that has not, to date, been utilised by litigants.
That there is a significant difference between heads of argument and written arguments there can be no doubt.
Heads of argument are intended to set out, without elaboration, a relatively concise statement of the main points intended to be argued on appeal by, or on behalf of the respective parties and represent the starting point of the debate which follows. They also constitute the background against which the actual debate during argument of the appeal coalesces but the parties may, and often do, depart from such heads and the debate can range beyond the bare submissions contained in the heads which, in the hearing process, are supplemented or amplified, as the debate continues.
Written argument, on the other hand, is presented in lieu of heads of argument, and is intended to be so comprehensive and complete so as not to require any supplementing. It also pre-supposes that such argument adequately addresses all possible points which may arise in the course of considering the appeal.
As noted in the South African decision in Mandlakhe Khehla Shinga v The Society of Advocates (Pietermaritzburg Bar) (Intervening as Amicus Curiae) & Anor Appeal No. AR969/2004:
“…,. There is a clear distinction between 'heads of argument' and 'written argument' - The rules do not permit the latter. The operative words are 'main', 'heads' and 'argument':
(i) 'main' refers to the most important part of the argument;
(ii) 'heads' means points, not a dissertation; and
(iii) 'argument' involves a process that must be set out in the heads.
In addition, and to emphasize the point, the rule requires the heads of argument to be clear, succinct, and without unnecessary elaboration.”
I agree entirely with the above remarks which, in my view, correctly reflect the law in this country.
There can be no argument that both in the court a quo and in this Court, the appellants were, and are guilty of presenting written arguments.
Before the court a quo, the appellants heads of argument spanned a total of seventy (70) pages. In addition to those seventy pages, the appellants counsel then addressed the court at length, regurgitating the same points made in the written submissions. His oral submissions span a further thirty-two pages. In the heads of argument filed before this Court, the appellants legal practitioner has filed “heads of argument” spanning forty-five (45) pages.
There can also be little doubt that there has been a failure to comply with the Rules.
The appellants were requested to file heads of argument. Instead, what was filed is more of a dissertation. It is prolix, rambling, and, in some cases, repetitious. No consideration has been given to the need to be concise.
I note that the High Court of Zimbabwe has had similar experience.
In Milton Gardens Association & Anor v Mvembe & Ors HH94-16, the court, obviously exasperated, had this to say at p5 of the judgment:
“I must make observations concerning the heads of argument filed on behalf of the applicants in this matter. These stretch up to 127 pages.
Heads of argument are meant to be simply that.
The purpose of heads of argument is to set out fully one's arguments. Heads of argument are required to be drawn up in a clear and concise manner. It is inappropriate to file voluminous papers and expect the other party, as well as the court, to plough through such a voluminous pile of papers and still be able to make sense out of them. What these heads contain is basically every fact and argument concerning this matter.
This is most inappropriate. In fact, this is an abuse of court process.
This style of drafting heads of argument and conduct ought to be discouraged. The eventual consequence of such conduct results in delays in delivery of the judgment concerned. Litigants who bombard the court with voluminous papers and information deserve to be penalised even if they are eventually successful in the litigation. This sort of conduct deserves censure by this Court…,.”
The appellants were asked to file heads of argument. Instead, they filed what appear to be written arguments.
In filing written arguments, they thought they were complying with the direction to file heads of argument.
In this regard, they erred.
Ordinarily, the failure to file heads of argument would have consequences. However, considering that this Court has heard the appellants on the basis of those lengthy and rambling submissions, the court, in the exercise of its discretion, will condone this anomaly, regard being had to the fact that this is perhaps the first time that this Court has taken the pains to emphasise the distinction between heads of argument and written arguments.
Parties, and their legal practitioners, are admonished to pay heed to this distinction in the Rules.
In future, heads of argument that do not comply with Rule 52(2) of the Supreme Court Rules 2018 may well be struck out, the result being that the party guilty of such non-compliance may well be regarded as being barred with the concomitant results that would normally flow from such a determination.
