Together As One Housing Coop v City of Harare AND Nyatsime Beneficiaries Trust & 11 Ors v Chitungwiza Municipality (HC 386 of 2016; HC 518 of 2016; HH 101 of 2016) [2016] ZWHHC 101 (3 February 2016)

1. TOGETHER AS ONE HOUSING CO-OPERATIVE versus CITY OF HARARE 2. NYATSIME BENEFICIARIES TRUST AND 11 OTHERS versus CHITUNGWIZA MUNICIPALITY HH 101-16 HC 518/16 HC 386/16 HIGH COURT OF ZIMBABWE MANGOTA J HARARE, 30 January and 3 February, 2016 Urgent chamber application 1) T Mutebere, for the applicant C Kwaramba, for the respondent 2) F F Hwenhira, for the applicants T J Mafonyaya, for the respondents’ MANGOTA J: Two urgent chamber applications were placed before me on different dates but during the week 18th – 22nd January, 2016. The applications comprise: (a) Together As One Housing Co-operative Society Limited and the City of Harare- and (b) Nyatsime Beneficiaries Trust plus Eleven Others and Chitungwiza Municipality. The applications were filed under case numbers HC 518/16 and HC 386/16 respectively. I will, for clarification purposes, refer to the application which falls under HC 518/16 as the first case or the first application and that which falls under HC 386/16 as the second case or the second application. The issues which fall for determination in either case are more or less identical. It is for the mentioned reason that I considered it appropriate to deal with them as one single matter. They involve the use, or abuse, by the respondents of clause 18 (2) of Statutory Instrument number 109 of 1979. The clause allows the respondents to evict, at short notice, or HH 101-16 to demolish structures of, persons whom the respondents’ deem to be on the respondents’ land without the latter’s authority or permission. The applicant in the first case is a co-operative society. It was registered in terms of the Co-operative Societies Act [Chapter 24:05]. Its objects are to provide housing stands to its members. The respondent is the City of Harare which is a legal persona. In 2012, the applicant applied to the respondent for land which it would subdivide and allocate to its members. It attached to its affidavit the following annexures which it said showed that it applied to the respondent for land: (i) Annexure D1 which is the applicant’s application to the respondent for land. The annexure is dated 16 August, 2012. It was addressed to the respondent’s City Treasurer Department. (ii) Annexure D2 is a letter which Councillor P. Charumbira of Ward 43 wrote in support of the applicant’s application for land. The annexure is dated 19 August, 2012. It was addressed to the respondent’s Estates And Evaluation Manager. (iii) Annexure E is a letter which the respondent’s City Treasurer addressed to the Chairperson of the applicant. It is dated 24 October, 2012. It reads: “Dear Sir RE: APPLICATION FOR UNSERVICED VACANT LAND IN BUDIRIRO TOWNSHIP FOR RESIDENTIAL DEVELOPMENT. Reference is made to your letter on the above issue. Please, be advised that the site depicted on the site plan submitted to this office with your application has already been subdivided to create residential stands following an earlier application. On completion of the remaining town planning processes the resultant residential stands will be handed over to the Director of Housing and Community Services for allocation to applicants on the Municipal Housing waiting list in line with Council policy on housing. The allocation of all Municipal residential stands in Harare falls under the purview of the Director of Housing and Community Services. Yours faithfully ………………….. CITY TREASURER 25/10/12.” It is not clear from the record if the applicants pursued its application for land with the respondent beyond the City Treasurer’s Department. What is clear, though, is that the applicant settled its members on the Remainder of Gleneagles Farm, now Budiriro 4 HH 101-16 Township, being a portion of stand No. 7171. The applicant stated in its affidavit that, with the blessing and full knowledge of the respondent, it serviced the land by having it properly surveyed with road network and the water system being laid out. The applicant’s unchallenged statement was that it occupied the land in issue in 2013 after the site plan had been drawn showing the individual stands for its members. It stated that a total of sixty-two (62) housing stands were allocated to members and three-quarters of the same had already been developed. It said the respondent later advised it that, of the 62 stands which had been allocated, thirty-seven (37) of them were regular and the remaining twenty-five (25) stands were not. These, it was said, were encroaching on the respondent’s land. The applicant engaged the respondent’s councillors and the chamber secretary’s office with a view to having the issue of the regularisation of the twenty-five (25) irregular stands addressed. It attached to its application a copy of the letter which it addressed to the respondent’s town clerk on 18 January, 2016. The letter was the applicant’s request to the respondent to regularise the twenty-five (25) stands. The respondent’s response to the letter was to issue a notice in terms of clause 18 (2) of the Urban Council’s [Model] [Use and Occupation of Land And Buildings] By –Laws 1979: Statutory Instrument 109 of 1979:Vacate Municipal Land]. The notice gave the applicant forty-eight (48) hours within which it had to vacate the land which relates to the twenty-five stands and demolish the structures which were on the stands. In the case of Nyatsime Beneficiaries Trust and Eleven (11) Others, the respondent, Chitungwiza Municipality, sold to the first applicant’s members the stands which relate to the application. Agreements of sale of stands which the respondent concluded with each applicant are filed of record. The sale of the stands took place during the Zimbabwe dollar era. The stands, as the record showed, were selling at prices which ranged from Z$60 million right through to Z$150 million each. The size of the stand appeared to have influenced the prize for the same. It was also evident that, after the introduction of the multiple currency regime in February, 2009 the respondent requested, in writing, each of the applicants to pay to it what it termed a top up service charge of $400 and a survey fee of $500. Each applicant, therefore, forked out of his or her pocket a total of $900 for the purpose. It was on the basis of the abovestated matters that the applicants, in either case, approached the court on an urgent basis. They moved the court to interdict the respondents HH 101-16 from evicting them from the stands which they had taken occupation of and/or from demolishing the structures which they constructed on the stands. That each application was or is urgent is evident from the date that the respondents’ threatened action arose as read with the date that each applicant filed its application with the court. In the first case, the respondents’ threatened action was on 18 January, 2016 and the applicant filed its application some two days later. In the second application, the respondents’ threatened action was served on each applicant on 13 January, 2016 and the applicants’ application was filed with the court some two days later. There is, therefore, no doubt that the applicants treated their respective applications with the urgency which the same deserved. The complaint of each of them was that the respondents’ reliance for their conduct on statutory instrument number 109 of 1979 was unrealistic, draconian and unconstitutional. All of them urged the court to reign in on the respondents whom they said should comply with s 74 of the Constitution of Zimbabwe. The respondent, in each case, opposed the application. It insisted that its conduct which was rested on the provisions of Statutory Instrument number 109 of 1979 was legal and should, therefore, be upheld. The court was not amused by the position which the respondents took. Each respondent was ably legally represented. Professionals who have been in the practice of law for a considerable period of time and who were expected to know what the law provides surprised the court when they submitted that, since the by-law had not been declared unconstitutional, its provision was of full force and effect. The court was at pains to make them appreciate the fact that any law which is inconsistent with the constitution is, to the extent of the inconsistency, null and void. A piece of legislation which is inconsistent with any provision of the constitution does not have to wait for the constitutional court to pronounce it unconstitutional. The respondents are, in this regard, referred to s 2 of the constitution of Zimbabwe. The section reads: “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”. (emphasis added). HH 101-16 Section 74 of the constitution which relates to freedom from arbitrary eviction states that: “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”. Statutory Instrument number 109 of 1979 is inconsistent with s 74 of the constitution. It offers sweeping powers to the respondents to act in an arbitrary and very high-handed manner to the detriment of such persons as the applicants who may find themselves on a collision course with the respondent(s). The people of this country took part in the constitution making process which ushered in the Constitution of Zimbabwe Amendment (No 20) Act, 2013. They remained alive to the need to protect the rights of persons against the high-handedness of such authorities as the respondents and others who stand in authority over the Zimbabwean populace. It is for the mentioned reasons, if for no other, that they agreed amongst themselves to insert s 74 into the constitution. What they insisted upon was, or is, that before any eviction of a person from his home is made and before any demolition of a structure which a person has constructed on some land is allowed to occur, the authority which seeks the eviction of the person or the demolition of the structure must first take the matter which pertains to the contemplated action to court. It is the court which would consider the propriety or otherwise of the action contemplated and decide if the eviction of the person or demolition of the structure is justified in a democratic society. In stating as they did under s 2 as read with s 74 of the constitution, the people of this country did away with the high-handedness which used to characterise the conduct of those who were, or are, in authority over others. The statutory instrument upon which the respondents relied for their intended actions existed prior to the promulgation of the constitution’s Bill of Rights. Prior to the Bill, those who were in authority over others trampled upon the ruled’s right to food, shelter and even life. Such high-handedness has been outlawed by the advent of the new constitution. The respondents’ intended conduct was, or is, unlawful and it cannot be tolerated. The respondents must approach the court and obtain a court order before they evict, or demolish the structures of, persons who are on what they say is their land. The applicants, in either case, were able to show that they have a prima facie to right the stands which they are in occupation of. The first lot of applicants established that the respondent, by conduct, allowed them to be where they constructed their structures. They said the respondent acquiesced to the development of the land by the applicants who constructed HH 101-16 houses on the same with the respondent’s full knowledge and blessing. Their submissions in the mentioned regard is not without merit. The second lot of applicants purchased the stands from the respondent. Evidence which supports that fact is filed of record. The statutory instrument which the respondents employed in support of their position cannot hold in the face of the constitutional provisions which have already been examined. The respondents should have sought a court order before they proceeded to implement the action which they threatened the applicants with. There is nothing which prevented them from complying with the clear and ambiguous provisions of the constitution. The court is satisfied that the applicants, in each application, proved their case on a balance of probabilities. Each application is, accordingly, upheld as prayed. 1. Mutebere & Company, applicant’s legal practitioners Mbidzo Muchadehama & Makoni, respondent’s legal practitioners 2. Muringi Kamdwefere, applicant’s legal practitioners Matsikidze & Mucheche, respondents’ legal practitioners