On
the 19th
of August 2015, the Honourable Mr Justice BERE, sitting at Harare,
issued a Provisional Order in the following terms -
“TERMS
OF INTERIM RELIEF GRANTED
It
is hereby ordered that, pending the determination by this Honourable
Court of the issues referred hereinabove, it is ordered that;
1.
The 1st Respondent, be and is hereby barred from demolishing the
Applicants' homes in Budiriro 4 in the absence of the order of a
competent court.”
The
issue that lies for determination by this court, at this stage, is
whether or not the demolition of the applicants' houses in Budiriro
4, by the first respondent, in the absence of a Court Order, is
lawful or not.
The
applicants contend that in the absence of a court order, any
demolitions carried out by the first respondent amount to self-help
and are unlawful in view of the provisions of section 74 of the
Constitution of Zimbabwe.
On
the other hand, the first respondent strenuously argued that by
operation of the Urban Councils (Model Use and Occupation of Land and
Buildings) By Laws of 1979 (herein after referred to as S.I.109 of
1979) it is entitled to demolish structures it deems illegal in the
absence of a court order. The first respondent further argued that as
S.I.109 of 1979 has not been declared unconstitutional it is not
necessary to seek a court order before any demolitions are carried
out.
The
applicants, however, argued that on the 17th
of March 2013, the majority of Zimbabweans voted for the overhaul of
the 1979 Constitution and the establishment of a new Constitutional
order.
In particular, the applicants relied on the provisions of section 74
of the new Constitution. The section says -
“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.”
Further,
the applicants submitted that Clause 10 of Part 4 of the 6th
Schedule to the Constitution provides that 'subject to this
Schedule, all existing laws continue in force but must be construed
in conformity with this Constitution.'
They
therefore argued that to the extent that the Urban Councils (Model
Use and Occupation of Land and Buildings) By-Laws of 1979 (S.I. 109
of 1979) is inconsistent with the Supreme law of the land, it is
unconstitutional.
In
support of their contention, the applicants relied on the case of
Kombayi & Others v Minister of Local Government & Another
HB188-15 where MOYO J interpreted Clause 10 of Part 4 of the 6th
Schedule in the following terms -
“My
understanding of this clause is that the current Constitution did not
repeal all existing laws; they are still in force, but, rather, they
should be construed in conformity with the Constitution meaning that
they should be applicable where they conform with the Constitution,
and, where they are inconsistent with the Constitution, obviously,
they should be amended and re-aligned to it. It is my considered view
that the interpretation, as submitted by counsel for the respondents,
would lead to an absurdity as this interpretation would fly in the
face of the principle of legality in that Acts that are inconsistent
with the Constitution, and are therefore ultra vires, are nonetheless
construed to be in conformity with the Constitution.
How
can an inconsistency be construed to be in conformity?
Such
an interpretation would result in an absurdity and an illegality for
the simple reason that the Constitution would cease to be the supreme
law and will now be subservient to the non-conforming Acts.”
Simply
put, it means that from the effective date of the new Constitution,
the first respondent was obliged to consider the Constitutional
implications of legislation passed before that date, such as the
Urban Councils (Model Use and Occupation of Land and Buildings) By
Laws of 1979 (S.I.109 of 1979) and could not conduct business as
usual.
According
to the applicants, this view is cemented by a consideration of the
views of KENTRIDGE JA in Du Plessis v De Klerk 1996 (3) SA 850
wherein he stated:
“…,
there may be cases where the enforcement of previously acquired
rights would, in the light of our present constitutional values, be
so grossly unjust and abhorrent that it could not be countenanced,
whether as being contrary to public policy or on some other basis.”
Be
that as it may, the first respondent submitted that a law which
remains on the Statute Book remains enforceable unless declared
unconstitutional by a court of competent jurisdiction. The first
respondent, therefore, submitted that the Urban Councils (Model Use
and Occupation of Land and Buildings) By Laws of 1979 (S.I. 109 of
1979), which gives it power to demolish structures without a court
order, has not been declared unconstitutional.
Among
other things, the first respondent argued that section 74 of the
Constitution should not be read in isolation, but should be read with
section 86 of the Constitution which provides that -
“(1)
The fundamental rights and freedoms set out in this Chapter must be
exercised reasonably and with due regard to rights and freedoms of
other persons.
(2)
The fundamental rights and freedoms set out in this Chapter may be
limited only in terms of a law of general application and to the
extent that the limitation is fair, reasonable, necessary and
justifiable, in a democratic society based on openness, justice,
human dignity, equality and freedom taking into account all relevant
factors including:-
(a)
The nature of the right or freedom concerned;
(b)
The purpose of the limitation, in particular, whether it is necessary
in the interest of defence, public safety, public order, public
morality, public health, regional or town planning or the public
interest;
(c)
The nature and extent of the limitation;
(d)
The need to ensure that the enjoyment of rights and freedoms by any
person does not prejudice the rights and freedoms of others;
(e)
The relationship between the limitation and its purpose, in
particular, whether it imposes greater restrictions on the right or
freedoms concerned than are necessary to achieve its purpose; and
(f)
Whether there are any less restrictive means of achieving the purpose
of the limitation.”
The
first respondent therefore submitted that in light of the provisions
of section 86 of the Constitution, the right enshrined in section 74
is not absolute….,.
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 section 74 of the
Constitution 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 can lawfully
demolish the houses of the applicants, or any other illegal
structures within its area of administration, 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 the Urban Councils (Model Use and
Occupation of Land and Buildings) By-Laws of 1979 (S.I.109 of 1979)
in as far as it is inconsistent with the provisions of the current
Constitution of Zimbabwe….,.
In
the result, it is ordered that -
(a)
The demolition of houses in Budiriro 4, in the absence of a court
order, be and is hereby declared unlawful.
