ZIYAMBI
AJA:
[1]
This
is an appeal against a judgment of the High Court declaring unlawful
the demolition of the respondents' houses in Budiriro 4 in the
absence of a court order.
[2]
The matter turns on a determination of the question at what stage
does the invalidity of existing legislation inconsistent with the
Constitution of Zimbabwe occur. The appellants contend that an
invalidity occurs when it is pronounced as such by a court. The
respondents maintain that the invalidity occurred upon the coming
into effect of the Constitution.
BACKGROUND
[3]
On the 19 August 2015, the High Court, following an urgent
application, granted a provisional order with interim relief in the
following terms:
“It
is hereby ordered that, pending the determination by this Honourable
Court of the issues referred hereinabove, it is ordered that:
(i)
The first respondent (the appellant herein) be and is hereby barred
from demolishing the Applicants' homes in Budiriro 4 in the absence
of the order of a competent court….
(ii)…”
[4]
In due course, the matter came before that court for a confirmation
of the provisional order. In granting the order sought, the learned
Judge remarked:
“In
my view the Constitution of Zimbabwe is the supreme law of the land.
Any law that is inconsistent with the provisions of the Constitution
is ultra vires the constitution. The provisions of s 74 are clear and
unambiguous. Before any person whatsoever can lawfully demolish the
houses or homes of any person, that person has to first of all obtain
a court order. Consequently, it follows logically that before the
first respondent [appellant] can lawfully demolish the houses of the
applicants … it has to first approach a court and obtain a court
order. Failure to do so renders the conduct of the first respondent
unlawful and unconstitutional. Therefore, the first respondent cannot
rely on SI 109 of 1979 in as far as it is inconsistent with the
provisions of the current Constitution of Zimbabwe.”
Dissatisfied
with the ruling of the High Court, the appellant has appealed to this
Court.
[5]
Briefly stated, the facts leading up to the application before the
High Court are as follows. In 2008, Tembwe Housing Co-operative (“the
Co-op”) operating under the chairmanship of one Caleb Kadye, was
allocated land by the appellant for the development of 175
residential stands for the benefit of its members. The Co-op was
directed to work in consultation with certain departments of the
appellant in the development of the land. However, in about 2011,
Kadye began allocating stands to members of the Co-op before the land
was fully serviced. Having exhausted all the lawfully obtained
stands, Kadye proceeded to allocate stands on land which had not been
offered by the appellant to the Co-op and which was not reserved for
residential purposes, including a site earmarked for a school. The
first to third respondents are among those to whom the illegally
obtained stands were allocated. These facts are common cause.
[6]
In his founding affidavit the first respondent alleged that he was
advised by the chairman of the Co-op that a certain lot of land had
been acquired in Budiriro 4, from the appellant, for allocation to
members of the Co-op. Having ascertained that the Co-op was duly
registered and had indeed acquired the land, he began paying monthly
instalments which were meant for surveying fees and the costs and
charges of other professionals who were to partition the stand. He
was, in August 2011, advised that he could move onto the stand, which
he did, and had built thereon a 3 roomed cottage where he lives with
his wife and 3 children of school going age.
In
July 2013, he was threatened with eviction by functionaries of
another co-operative who claimed to have acquired the same lot of
land. He sought assistance from the appellant and received a
handwritten letter from one Tafireyi date stamped by the Department
of Housing, Planning and Research unit of the appellant assuring him
that no one would be moved until an amicable solution was found which
would accommodate everyone. He was therefore surprised when the
appellant began to evict his neighbours bulldozing their homes to the
ground.
[7]
The second and third respondents are also members of the Co-op and
associated themselves with the first respondent's averments. They
alleged that the appellant had acted in breach of their right
enshrined in s 74 of the Constitution and sought a provisional order
barring the demolition of their homes in the absence of an order of a
competent court.
[8]
The applicable Constitutional provisions are ss 2 and 74. They are
set out below.
“2
Supremacy of Constitution
(1)
This Constitution is the supreme law of Zimbabwe and any law,
practice, custom or conduct inconsistent with it is invalid to the
extent of the inconsistency.
(2)
The obligations imposed by this Constitution are binding on every
person, natural or juristic, including the State and all executive,
legislative and judicial institutions and agencies of government at
every level, and must be fulfilled by them.”
“74
Freedom from arbitrary eviction
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.”
[9]
The two constitutional provisions set out above are clear in their
implications. The Constitution is the supreme law. Upon its
promulgation every law inconsistent with it immediately became
invalid. Therefore, no existing law can stand which is inconsistent
with the Constitution. This is because the Constitution itself
invalidates the inconsistency. That this is clearly the intention of
the framers of the Constitution, is emphasized by the Sixth Schedule
which provides that all laws in existence at the time of coming into
effect of the Constitution must be construed in conformity with the
Constitution. In my view nothing can be clearer. An existing law
inconsistent with the Constitution is invalid to the extent of the
inconsistency. To the extent that the law on which the appellant
relies is inconsistent with the Constitution, that inconsistent
provision became invalid on the date the Constitution came into
force.
[10]
The above principle was lucidly enunciated by MALABA DCJ, as he then
was, in Loveness
Mudzuru & Anor vs Minister of Justice, Legal & Parliamentary
Affairs N.O. & 2 Ors
CCZ 12/15 at p47 of the judgment where he stated:
“The
invalidity of existing legislation inconsistent with a constitutional
provision occurs at the time the constitutional provision comes into
force and not at the time a fundamental right is said to be infringed
or
when an order of invalidity is pronounced by a court.”
(My emphasis).
See
also Registrar
General of Zimbabwe v Chirwa
1993 (4) SA 272 (ZSC).
[11]
The position is the same in South Africa. In Ferreira
v Levin; Vryenhoek v Powel
1996 (1) SA 984 (CC); 1996 (1) BCLR1, ACKERMANN J put it thus:
“The
court's order does not invalidate the law; it merely declares it to
be invalid. It is very seldom patent, and in most cases is disputed,
that pre-constitutional laws, are inconsistent with the provisions of
the Constitution. It is one of this court's functions to determine
and pronounce on the invalidity of laws, including Act [s] of
Parliament. This does not detract from the reality that pre-existing
laws either remain valid or became invalid upon the provisions of the
Constitution coming into operation. In this sense laws are
objectively valid or invalid depending on whether they are or are not
inconsistent with the Constitution. The fact that a dispute
concerning inconsistency may only be decided years afterwards, does
not affect the objective nature of the invalidity. The issue of
whether a law is valid or not does not in theory therefore depend on
whether, at the moment when the issue is being considered, a
particular person's rights are threatened or infringed by the
offending law or not.”
[12]
The above, in my view, resolves the matter. Section 74 of the
Constitution forbids, in clear and unambiguous terms, the demolition
of homes without a court order. The law in terms of which the
appellant acted, though valid in the past, became invalid when the
Constitution came into effect.
[13]
Much argument was advanced, by learned counsel for the appellant, on
the issue of retroactivity of the Constitution
and the alleged misapplication by the court a
quo
of certain dicta
in the South African case of Du
Plessis v De Klerk.
The gist of the argument advanced, as I understand it, is that the
Constitution cannot be interpreted in a manner that would have the
effect of depriving the appellant of a right which it lawfully
possessed before the Constitution came into effect, namely, the right
to demolish illegal structures on notice without a court order. For
this argument counsel relied on the following passage from the
judgment of KENTRIDGE AJ.
“...The
Constitution does not turn conduct which was unlawful before it came
into force into lawful conduct. It does not enact that, as at a date
prior to its coming into force, the law shall be taken to have been
that which it was not. The consequences of that principle are,
however, not necessarily invariable. I
would therefore hold that the Defendants are not entitled to invoke s
15 as a defence to an action for damages for a defamation published
before the Constitution came into operation”.
[14]
In my view, the facts and circumstances of the instant case are
different from those in Du
Plessis.
There, the issue was whether s15 of the South African Constitution
which guaranteed the right of freedom of expression could be used by
a newspaper as a defence to a claim for defamation which arose before
the promulgation of that constitution. Here, we have a by-law which
is inconsistent with the Constitution and which the Constitution has
specifically declared to be invalid. The difference is obvious.
[15]
I therefore agree with the learned Judge, that the appellant must
comply with the dictates of the Constitution and follow the procedure
prescribed therein. It must obtain a court order before it can
lawfully demolish the homes of the respondents.
ALTERNATIVE
ARGUMENT
[16]
The appellant raised, in its heads of argument, the alternative
argument that the structures sought to be demolished are not 'homes'
in terms of s 74 of the Constitution. This argument, though advanced
by the appellant in the court a
quo,
is not supported by its opposing affidavit in which it maintained
that the structures erected by the respondents are illegal but made
no denial of the averments made in the founding affidavit of the
respondents that the houses and structures earmarked for demolition
are their homes.
[17]
More importantly, however, the Constitution gives no definition of
'home'. The word must therefore be attributed its ordinary
meaning, which is:
A
“dwelling place; fixed residence of a family or household;
dwelling-house”;
“A
house or apartment that is the usual place where one lives”;
“The
place in which one's family life and affections are centred.”
[18]
Quite clearly, on the evidence presented in the papers, the
respondents lived in those houses or structures with their families
and regarded them as their homes. In the premises, no basis has been
established for setting aside the judgment of the High Court as
prayed by the appellant.
COSTS
[19]
On the question of costs, the respondents' success on appeal should
normally carry with it an award of costs. However, for the reasons
given by the court a
quo
and set out below, which sentiments I endorse, I will order each
party to pay its own costs. The learned Judge said the following:
“In
a nutshell, this is no more than a case of outlaws who deliberately
sought to disregard the law who now seek the protection of the same
law. Had it not been for the provisions of s 74 of the Constitution
this court would not have granted the order being sought. To register
its displeasure on the conduct of the cooperative and the applicants
the court will not grant the applicants an award of costs despite the
fact that they won. The first respondent cannot be burdened with
costs when it genuinely believed, albeit unconstitutionally, that
they [it] had the power to demolish the illegal structures in terms
of the provisions of SI 109 of 1979.”
[20]
It is accordingly ordered as follows:
1.
The appeal is dismissed.
2.
Each party shall pay its own costs.
GARWE
JA:
I agree
GUVAVA
JA: I
agree
Chihambakwe,
Mutizwa & Partners,
appellant's legal practitioners
Zimbabwe
Lawyers for Human Rights,
1st
– 3rd
respondents' legal practitioners.
Civil
Division Attorney General,
4th
respondent's legal practitioners
1.
Clause 10 of Part 4
2.
Appellant's Heads of Argument pp48-53
3.
1996 (3) SA 850
4.
Du
Plessis (supra)
p866E para 20
5.
Concise Oxford Dictionary of English 7th
ed.
6.
WordReference Random House Learner's Dictionary of American English
2018
7.
Ibid.
See also Port Elizabeth v Port
Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7;
2005 (1) SA 217 (CC) at para 17.
