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 RIGHT TO HOUSING IS A FUNDAMENTAL RIGHT
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 section 47 as well as sections 48 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.
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, sections 8 and 28 thereof.
Section 8 of the Constitution 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.”
It is section 28 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.”
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.”
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 section 74 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.
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 section 46, 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 section 46 apply, mutatis mutandis, to the interpretation of the whole Constitution.
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.”
The question remains whether, on a consideration of sections 28, 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….,.”
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.
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 section 28, for the State and all its institutions to do everything possible, within the limits of the available resources, to actualise access to adequate shelter.
Chapter 4 of the Constitution contains the Declaration of Rights.
Under Part 2 of that Chapter, the lawmaker has listed fundamental human rights and freedoms. 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.
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 (section 75); right to health care (section 76); right to food and water (section 77); marriage rights (section 78); rights of children (section 81); rights of the elderly (section 82); rights of persons with disabilities (section 83); and rights of veterans of the liberation struggle (section 84).
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 actualize these objectives within the limits of the resources available, these cannot be enforced under section 85 of the Constitution 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 section 85 of the Constitution.
It is correct that section 47 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 Africa similar to our section 47, 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 (section 35(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.”
That is all that section 47 of the Constitution 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 section 85 of the Constitution.
As counsel for the third respondent (Leengate (Pvt) Ltd) stated, correctly in my view, the right to shelter the appellants seek to enforce in terms of section 85 of the Constitution is not one in terms of our Declaration of Rights.
I am aware, that, in terms of section 326 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 section 327 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 section 85 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.
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 section 85 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 (section 81).
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 section 28 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.
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:
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 section 85 of the Constitution.
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…,.”
Further, in Prosecutor General of Zimbabwe v Telecel Zimbabwe (Pvt) Ltd CC10-15, 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….,.”
Despite attempts by the 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 section 85(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 paragraph 4, the first appellant, as first applicant stated:
“The first applicant 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 section 85(1)(d)…,. It seeks, in this case, to assert the existence of the right to housing for its members thereof.”
The second appellant (Tawonga Saving Scheme), as second applicant, in paragraph 13 of its founding affidavit, also stated:
“We thus bring this application, on behalf of our members in terms of section 85(1)(e) of the Constitution of Zimbabwe.”
Likewise, the third appellant (Ngwaru Masanza), as third applicant, also stated in paragraph 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 section 85(1)(a) of the Constitution of Zimbabwe.”
There thus can be no doubt that the appellants approached the court a quo in terms of section 85(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 section 85(1) of the Constitution was not available to them was correct.
