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
On
the 19th
of ...
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
On
the 19th
of 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)…,.”
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 s74 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 S.I.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.
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, Caleb Kadye began
allocating Stands to members of Tembwe Housing Co-operative (the
Co-op) before the land was fully serviced. Having exhausted all the
lawfully obtained Stands, Caleb 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.
In
his founding affidavit, the first respondent alleged that he was
advised by the Chairman of Tembwe Housing Co-operative (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 Tembwe Housing Co-operative (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 three (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.
The
second and third respondents are also members of Tembwe Housing
Co-operative (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 section 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.
The
applicable Constitutional provisions are sections 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.”
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,
Clause
10 of Part 4,
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.
The
above principle was lucidly enunciated by MALABA DCJ…, in Loveness
Mudzuru & Anor v Minister of Justice, Legal & Parliamentary
Affairs N.O. & 2 Ors
CC12-15…, 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.”…,.
See
also Registrar
General of Zimbabwe v Chirwa
1993 (4) SA 272 (ZSC).
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.”
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.
Much
argument was advanced, by learned counsel for the appellant, on the
issue of retro-activity of the Constitution…, and the alleged
mis-application by the court a
quo
of certain dicta
in the South African case of Du
Plessis v De Klerk 1996 (3) SA 850.
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 in Du
Plessis v De Klerk 1996 (3) SA 850…,;
“…,.
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
s15 as a defence to an action for damages for a defamation published
before the Constitution came into operation.”
In
my view, the facts and circumstances of the instant case are
different from those in Du Plessis v De Klerk 1996 (3) SA 850. There,
the issue was whether section 15 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.
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.
