GARWE
JA
[1] After
hearing argument from the parties, the High Court of Zimbabwe made an
order dismissing the application filed by the appellants in terms of
s85(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 s85 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
[2]
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 is a resident of Newpark
informal settlement situated at Haydon Farm along the Old Mazoe Road.
[3]
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 s85(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 s85(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 s85 of the
Constitution.
[4] 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.
[5] Members
of the Tawonga Savings Scheme, including the third appellant herein,
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, 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 for development.
[6] It
is not in dispute that Leengate 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
[7] In
their founding papers before the High Court, the appellants averred
that Council and Leengate 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 ss28, 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 (S48) 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 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.
[8] 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 s85 of the Constitution. Leengate 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 s85 of the Constitution.
[9] In
its determination, the court a
quo
found
that all the applicants had approached the court in terms of
s85(1)(d), 85(1)(e) and 85(1)(a) respectively. The court held that
s85(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 s85(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
[10] 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 s47
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 s85 of the Constitution when there was in existence s47
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 s47 of the same Constitution.
[11]
Both in his heads of argument and oral submissions, counsel for the
third respondent raised the preliminary point that the appellants'
heads of argument were not compliant with r52(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.
[12]
Counsel for the appellants argued that the rationale for the lengthy
and comprehensive heads of argument was that this was the first case
before this Court dealing with socio-economic rights that speak to an
extension of the right to dignity, life and equal protection of the
law relating to housing. It was as a result of the need to give a
historical context of the right to housing in relation to other
fundamental rights that it was felt necessary to capture domestic and
private international law and to provide a comparative analysis of
the approach taken by other developing countries.
[13]
On the merits, counsel for the appellants submitted that the right
to shelter ought to be declared a fundamental right pursuant to s47
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.
[14]
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 s28. It has provided for freedom from arbitrary
evictions under s74 of the same Constitution. It has also made
provision for the right of children to education, health services,
nutrition and shelter under s81(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.
[15]
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
[16]
Counsel for the two Ministers submitted that, for the reasons given
by Leengate, 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.
[17]
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 s28. He further submitted that the reliance by the
appellants on s47 was inappropriate as they had failed to point to
any law that provides the right to shelter. In any event any rights
recognised by s47 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
[18]
Counsel for Leengate 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 r52(2) of the Rules.
[19]
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
[20]
From the above synopsis, four issues arise for determination. These
are first, whether the appellants' heads of argument are compliant
with r52(2) of the Supreme Court Rules, 2018. Second, whether the
right to housing is a fundamental right cognizable in our law. Third,
whether the court correctly found that the appellants could not
properly approach the court in terms of s85 of the Constitution and
whether the doctrine of avoidance is applicable in this case. Last,
whether the court a
quo
erred
by not making a determination on the merits. I proceed to deal with
each of these issues in turn.
WHETHER
THE APPELLANTS' HEADS OF ARGUMENT COMPLY WITH THE RULES OF COURT
[21]
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 appellants' 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.”
[22] 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. …”
[23] 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 r50 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 r52(2) may not file written arguments. The
filing of written arguments in that circumstance would not be
compliant with the Rules.
[24] 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 r39(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 heads. In my
experience on the Supreme Court bench, the option available to file
written arguments in terms of r50 is one that has not, to date, been
utilised by litigants.
[25]
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.
[26] 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 presupposes
that such argument adequately addresses all possible points which may
arise in the course of considering the appeal.
[27] 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 emphasise 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.
[28] 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.
[29] 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.
[30] 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….”
[31]
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 emphasize 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 r52(2) 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.
WHETHER
THE RIGHT TO HOUSING IS A FUNDAMENTAL RIGHT
[32]
It is the appellants' submission that the court a
quo
erred in failing to adopt a purposive approach in its interpretation
of the provisions of the Constitution. They have argued that had the
court a
quo
correctly interpreted the Constitution, it would have found that the
right to housing and shelter is provided for in the Constitution,
even though such a right is not specifically provided for. For this
proposition they relied on the provisions of s47 as well as ss48 and
51 of the Constitution. They further contended that the right to life
and to dignity enshrined in the Declaration of Rights cannot be
fulfilled if one does not have shelter. The right to housing is
therefore part and parcel of the right to dignity.
[33]
The appellants accept that the right to shelter is not specifically
provided for in [Chapter
4]
of the Constitution. They rely on Chapter
2
of the Constitution and in particular ss8 and 28 thereof. Section 8
provides:
“(1)
The objectives set out in this Chapter guide the State and all
institutions and agencies of government at every level in formulating
and implementing laws and policy decisions that will lead to the
establishment, enhancement and promotion of a sustainable, just, free
and democratic society in which people enjoy prosperous, happy and
fulfilling lives.
(2)
Regard must be had to the objectives set out in this Chapter when
interpreting the State's obligations under this Constitution and
any other law.”
[34]
It is s28 of the Constitution – which also falls under Chapter 2
of the Constitution dealing with National Objectives - that makes
reference to access to adequate shelter. That section provides:
“The
State and all institutions and agencies of government, at every level
must take reasonable legislative and other measures, within the
limits of the resources available to them, to enable every person to
have access to adequate shelter.”
[35]
The appellants have sought to rely on a somewhat similarly worded
provision in the South African Constitution. Section 26 of the South
African Constitution provides as follows:
“26
HOUSING
(1)
Everyone has the right to have access to adequate housing.
(2)
The State must take reasonable legislative and other measures within
its available resources, to achieve the progressive realisation of
this right.
(3)
No-one may be evicted from their home, or have their home demolished
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.”
[36]
There is however a major distinction between the Zimbabwean and
South African provisions. Section 28 of the Constitution of Zimbabwe
falls under Chapter 2 which spells out the national objectives to
guide the State and all institutions of government. Section 26 of the
South African Constitution, to the contrary, is part of the
Declaration of Rights of that Constitution. It is a justiciable
right. Even though s74 of the Constitution of Zimbabwe protects
people from arbitrary evictions, it states clearly that persons can
be evicted from their home, or have their home demolished if a court
order is granted after considering all the relevant circumstances.
[37]
It is correct that, in interpreting a Constitution, the ordinary
grammatical meaning used in the Constitution is not always decisive.
The Constitution itself provides, in s46, that in interpreting
provisions of the Constitution, a court must pay regard to all the
provisions of the Constitution, in particular the principles and
objectives set out in Chapter 2. Section 331 then stipulates that
the provisions of s46 apply, mutatis
mutandis,
to the interpretation of the whole Constitution.
[38]
This Court has, in the past, had occasion to consider the status of
the objectives set out in Chapter 2 of the Constitution. It is now
accepted that the national objectives are important in interpreting
the various provisions of the Constitution and any other laws. But
they are not justiciable. In Zimbabwe
Homeless Peoples' Federation & Ors v Minister of Local
Government and National Housing & Others
SC94/20, this court remarked at p8 of the judgment:
“These
provisions are essentially hortatory in nature, given that they are
qualified by that they are to be realised 'within the limits of the
resources available' to the State and the government. In this
sense, they cannot be said to be strictly justiciable and enforceable
in themselves. Nevertheless, they are not to be regarded as being
entirely superfluous and otiose and therefore devoid of any legal
significance whatsoever. They remain interpretively relevant for the
purpose of informing and shaping the specific contours of the
substantive rights enshrined elsewhere in the Constitution.”
[39]
The question remains whether, on a consideration of ss28, 47, 48 and
51 of the Constitution, the right to shelter can be inferred. This
is essentially a question of interpretation. In attempting to
interpret whether such a right exists, one must bear in mind the
remarks made by the Constitutional Court of South Africa in State
v Zuma
1995 (2) SA 642 (CC) that:
“While
we must always be conscious of the values underlying the
Constitution, it is nonetheless our task to interpret a written
instrument. I am well aware of the fallacy of supposing that general
language must have a single 'objective meaning'…. But it cannot
be too strongly stressed that the Constitution does not mean whatever
we might wish it to mean. We must heed Lord Wilberforce's reminder
that even a Constitution is a legal instrument, the language of which
must be respected. If the language by the law giver is ignored in
favour of a general resort to values, the result is not
interpretation but divination….”
[40]
It is the duty of this Court to give full effect to the obligations
enshrined in the Constitution. The Constitution says so. However, a
court does not itself create rights. It simply interprets the various
provisions of the Constitution to ascertain the existence, nature and
extent of those rights.
[41]
The right to shelter is not provided for anywhere in the Declaration
of Rights. Parliament, in its wisdom, merely made provision for the
State and all institutions of government to take reasonable steps and
measures, within the limits of the resources available, to actualise
access to adequate shelter. That provision is essentially
exhortatory but is one that the State and all institutions of
government must bear in mind when formulating or implementing laws
and policy decisions of government. Parliament is deemed to have been
aware of the various provisions that make up the Constitution. It
deliberately came up with founding values and principles. In Chapter
2, it came up with various national objectives that must guide the
State and all its institutions in formulating and implementing laws
and policy decisions. It also provided that those national objectives
must be considered in interpreting the Constitution. Many national
objectives have been delineated under Chapter 2. These include the
requirement, under s28, for the State and all its institutions to do
everything possible, within the limits of the available resources, to
actualise access to adequate shelter.
[42]
Chapter 4 of the Constitution contains the Declaration of Rights.
Under Part 2 of that Chapter, the lawmaker has listed fundamental
human rights and freedom. These include the right not to be evicted
from one's home unless this is pursuant to a court order. Part 3
of Chapter 4 elaborates certain fundamental rights “to ensure
greater certainty as to the application of those rights and
freedoms”. Part 4 then provides for the enforcement of fundamental
human rights and freedoms and Part 5 the limitations of those rights
and freedoms.
[43]
A number of national objectives captured under Chapter 2 of the
Constitution are not part of the fundamental rights and freedoms that
are delineated under Chapter 4 of the Constitution. In fact only a
few of them are recognised as fundamental human rights. These include
the right to education (s75), right to health care (s76), right to
food and water (s77), marriage rights (s78), rights of children
(s81), rights of the elderly (s82), rights of persons with
disabilities (s83), and rights of veterans of the liberation struggle
(s84).
[44]
The Constitution deliberately left out a number of national
objectives from the Declaration of Rights. Whilst there is an
obligation on the government and its institutions to adopt reasonable
measures to actualise these objectives within the limits of the
resources available, these cannot be enforced under s85 as
fundamental rights and freedoms. On a holistic consideration of the
provisions of the Constitution, the inference is ineluctable that it
was never the intention of the lawgiver to make the right to shelter
a fundamental right which would be justiciable in terms of s85.
[45]
It is correct that s47 of the Constitution provides that Chapter 4
does not preclude the existence of other rights and freedoms that may
be conferred or recognized by law, to the extent that they are
consistent with the Constitution. Iain
Currie & Johan De Waal,
commenting on a provision in South African similar to our s47,
states:
“Section
39(3) simply confirms that the Bill of Rights does not prevent a
person from relying on rights conferred by legislation, the common
law or customary law. But since the Bill of Rights is supreme law,
such rights may not be inconsistent with the Bill of Rights.
For
example, if the right to self-incrimination (s35(3)(j)) is only
available to persons accused in criminal proceedings, nothing
prevents a person in any other proceedings from relying on his or her
common law right against self-incrimination to the extent that the
right is available.”
[46]
That is all that s47 says. It simply recognizes other rights that
may be bestowed by other laws subsidiary to the Constitution. It does
not state, as the appellants would want this court to believe, that
these rights automatically become Chapter 4 rights and that they are
enforceable as such. Whilst these rights can be enforced, this would
be in terms of the provisions of those laws and not s85. As Mr. Uriri
stated, correctly in my view, the right to shelter the appellants
seek to enforce in terms of s85 of the Constitution is not one in
terms of our Declaration of Rights. I am aware that in terms of s326
of the Constitution, customary international law is also part of the
law of Zimbabwe, unless it is inconsistent with the Constitution or
an Act of Parliament. Further, in terms of s327 of the Constitution,
an international treaty which has been concluded by the President has
binding effect if approved by Parliament and domesticated. Whilst
international conventions may recognize the right to shelter or
housing, such right is not, in terms of our Constitution, a
fundamental right, capable of being enforced in terms of s85 of the
Constitution of Zimbabwe in favour of adult persons. It is the
Constitution, the supreme law of this country itself, which has
deliberately left out the right to shelter from the list of
fundamental rights delineated under Chapter 4 of the Constitution.
[47]
Everything considered therefore, the appellants have not shown that
the right to shelter is a fundamental right in terms of our law and
that it can be enforced pursuant to the provisions of s85 of the
Constitution in favour of adult persons. The right to shelter is a
fundamental right that is accorded to children only, together with
their rights to education, health care and nutrition (s81). Indeed
this was the finding of the Supreme Court in a matter involving the
same parties in Zimbabwe
Homeless People's Federation & Ors v The Minister of Local
Government and National Housing & Three Ors
SC94/20.
In the present matter, it is not the right to shelter for their
children that is in issue. Rather the issue is whether the right to
shelter under s28 of the Constitution is a fundamental right and
therefore justiciable in respect of persons who are not children. The
conclusion by the court a
quo
that the right to shelter is not a fundamental right was therefore
correct.
WHETHER
THE APPELLANTS COULD APPROACH THE COURT IN TERMS OF SECTION 85
[48]
Section 85 of the Constitution is very clear as to the nature of the
rights and freedoms that can be enforced pursuant to its provisions.
It provides:
“85
ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS
(1)
Any of the following persons, namely –
(a)–(e)…
(not relevant)
is
entitled to approach a court, alleging
that a fundamental right or freedom enshrined in this Chapter has
been, is being or is likely to be infringed,
and the court may grant appropriate relief, including a declaration
of rights and an award of compensation.” (Underlining is for
emphasis)
[49]
The section states in no uncertain terms that an application in
terms of that section must allege that a fundamental right or freedom
enshrined
in that Chapter
has been, is being or is likely to be infringed. The corollary to
this is that other rights that are not fundamental rights or freedoms
can be enforced through other provisions of other laws, but not in
terms of s85. Indeed the Constitutional Court of Zimbabwe has
stressed this position in a number of decisions. For example in M
& Anor v Minister of Justice Legal & Parliamentary Affairs
N.O. & Others 2016
(2) ZLR 45, 55 G-H (CC) the Constitutional Court stated:
“Section
85(1) of the Constitution is the cornerstone of the procedural and
substantive remedies for effective judicial protection of fundamental
rights and freedoms and the enforcement of the constitutional
obligation imposed on the State and every institution and agency of
government at every level to protect the fundamental rights in the
event of proven infringement.
…… The
fundamental principle is that every fundamental human right or
freedom enshrined in Chapter 4 is entitled to a full measure of
effective protection under the Constitutional obligation imposed on
the State ……….”
[50]
Further, in Prosecutor
General of Zimbabwe v Telecel Zimbabwe (Pvt) Ltd CCZ10/15,
the court also remarked at p10 of the judgment:
“What
is clearly evident from this provision is that the relief sought and
to be granted by the court in terms of this section must relate to
fundamental rights and freedoms enshrined in the relevant Chapter,
and nothing else…….”
[51]
Despite attempts by appellants' counsel both a
quo
and in this court to urge this Court to accept that the application
before the court a
quo
was not made in terms of s85(1) of the Constitution, the papers on
record reveal clearly that, in fact, the appellants approached the
court a
quo
in terms of that section. For example, in its founding affidavit, in
para 4, the first appellant, as first applicant stated: “The first
appllicant thus has a public interest in housing and asserting the
right to housing. It is this same reason, which is the basis of this
application by which this application is brought in terms of
s85(1)(d) …. It seeks in this case, to assert the existence of the
right to housing for its members thereof”. The second appellant, as
second applicant, in para 13 of its founding affidavit also stated:
“We thus bring this application, on behalf of our members in terms
of s85(1)(e) of the Constitution of Zimbabwe.” Likewise the third
appellant, as third applicant, also stated in para 52 of his founding
affidavit: “As a resident of Haydon Farm and a victim of the
respondents' unlawful actions, I bring this action in my own right
to protect my interest as defined in s85(1)(a) of the Constitution of
Zimbabwe”.
[52]
There thus can be no doubt that the appellants approached the court
a
quo
in terms of s85(1) of the Constitution. They were alleging a
violation of their right to shelter, which is not a fundamental
right. In the circumstances, the finding by the court a
quo
that s85(1) was not available to them was correct.
PRINCIPLE
OF SUBSIDIARITY
[53]
It is the settled position of our law that where there exist other
remedies, a litigant may not approach a court on a constitutional
basis and ignore the remedies at his disposal in order to deal with
what he perceives to be an infringement of his rights. The principle
of subsidiarity, itself part of the doctrine of avoidance, recognizes
that there are many disputes of right or interest which do not give
rise to a constitutional matter. In this regard in Moyo
v Sgt Chacha & Others CCZ 19/17,
the Constitutional Court remarked as follows:
“The
principle of subsidiarity… states that a litigant who avers that
his or her constitutional right has been infringed must rely on
legislation enacted to protect that right and may not rely on the
underlying constitutional provision directly when bringing action to
protect the right, unless he or she wants to attack the
constitutional validity or efficacy of the legislation itself. Norms
of greater specificity should be relied upon before resorting to
norms of greater abstraction.”
[54]
The principle of subsidiarity is particularly apposite in the
circumstances of this case. Before the court a
quo,
the appellants sought the relief of an interdict against unlawful
eviction. The relief of an interdict was available to them even
without resort to the Constitution. It was a relief that could have
been granted by the Magistrates' Court or the High Court once the
appellants had shown a prima
facie
or clear right. Moreover, there was a pending application filed by
Leengate in the Magistrates' Court for their eviction which they
could have opposed without them approaching the High Court on a
constitutional basis. The appellants had also filed an ordinary
court application under HC1148/18 seeking to assert the government's
obligation to the realisation of the right to housing under the
Constitution, to order the halting of any evictions and for the court
to determine whether Leengate had lawfully acquired land through the
Council. This matter was apparently pending when the appellants filed
the application in the High Court that is the subject of this appeal.
[55]
For this additional reason, the appellants could not have
simultaneously moved for relief under s85 of the Constitution.
THE
ALLEGED FAILURE TO DETERMINE THE MATTER ON THE MERITS
[56]
Having correctly found that the appellants could not approach the
court in terms of s85 of the Constitution, it became unnecessary for
the court to deal with the matter on the merits.
DISPOSITION
[57]
The court a
quo
was correct in finding that there was no fundamental right to shelter
in terms of the Constitution of Zimbabwe. It was also correct in
finding that the appellants had no standing to institute an
application in terms of s85(1) of the Constitution to enforce such a
right. Part of the relief the appellants sought could have been
enforced without the need to resort to remedies provided by s85 of
the Constitution.
[58]
On the issue of costs, it seems to me that, although this matter has
come to this court as an appeal, it essentially seeks to enforce what
the appellants may have perceived, albeit wrongly, to be
constitutional remedies. Rule 55 of the Constitutional Court Rules,
2016 states that, in general, a no costs order should be awarded in
constitutional matters. Given the fact that the appellants may have
genuinely believed that they could enforce the right to shelter, I
see no reason for departing from this general position.
[59]
In the result, it is ordered as follows:
“The
appeal be and is hereby dismissed with no order as to costs”.
MAVANGIRA
JA: I
agree
MATHONSI
JA: I
agree
Tendai
Biti Law,
appellant's legal practitioners
Civil
Division of the Attorney General's Office,
first and fourth respondents' legal practitioners
Bherebhende
Law Chambers,
third respondent's legal practitioners
