DUSABE & ANOR v CITY OF HARARE & ORS

HIGH COURT, HARARE

[Urgent Chamber Application HH 114-16]

February 1, 2 and 10, 2016

CHIGUMBA J

Constitutional law  –  Right to administrative justice  –  Administrative authority cannot demolish property without following due process.

The applicants sought a court order interdicting the respondents from arbitrarily demolishing their homes and household property.

Held, that every citizen has the right to administrative justice which is enshrined in s 68 of the Constitution of Zimbabwe, 2013. This means that administrative conduct must be lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. Under no circumstances are government departments at liberty to unilaterally and arbitrarily demolish any structures in the absence of a court order authorising them to do so, whether the structures were built without approval of building plans, or layout plans or without complying with any other legal requirement.

Cases cited:

Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S), referred to

B Tengwe Estates (Pvt) Ltd v Minister of Lands & Anor 2002 (2) ZLR 137 (H), referred to

Chiroodza v Chitungwiza Town Council & Anor 1992 (1) ZLR 77 (H), referred to

Silver Trucks (Pvt) Ltd & Anor v Director of Customs & Excise (2) 1999 (2) ZLR 88 (H), referred to

Legislation considered:

Administrative Justice Act [Chapter 10:28], ss 2, 3

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 68, 71, 71 (2), (3)(a), (b)(i)-(iii), (c)(i)-(iii), (d), (e), 71 (4), 74

Cooperative Society Act [Chapter 24:05]

Land Acquisition Act [Chapter 20:10], s 7

Urban Councils Act [Chapter 29:15]

Book cited:

Bennion F Bennion on Statutory Interpretation (1st edn, Butterworths, London, 1984)

B Chinowawa, for the applicants

JP Mutizwa, for the first respondent

E Mukucha, for the second & third respondents

CHIGUMBA J:

This is an urgent chamber application in which the applicants seek an interim order that the first respondent be barred from threatening and harassing them and be prohibited from destroying their household property. The applicants also seek an interim order that the respondents provide them with emergency alternative accommodation, together with their families. The final order sought is a declaratur that the demolitions of the applicants’ houses in subdivision E of Arlington Estate, Hatfield, in the absence of a court order was unlawful, an order of adequate restitution on a scale to be determined by an independent evaluator, and costs on a legal practitioner and client scale.

Every citizen of this country has the right to administrative justice which is enshrined in s 68 of the Constitution of Zimbabwe Amendment (No 20) Act, 2013 (“the Constitution”). This means that administrative conduct must be lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. It is a disgrace for two government departments to admit that houses which had been built without the requisite planning authority were demolished and razed to the ground without a court order, without notice in writing being given to all those likely to be affected. The process was not procedurally fair. What is shocking and of great concern is the apparent misapprehension by these government departments, of their duty to uphold the Constitution, by ensuring that their conduct is not only lawful, it must be procedurally fair. Under no circumstances are government departments at liberty to unilaterally and arbitrarily demolish any structures in the absence of a court order authorising them to do so, whether the structures were built without approval of building plans, or layout plans or without complying with any other legal requirement. Even if the structures are an eyesore, they cannot just be razed to the ground at the drop of a hat, or on a whim. This is a democratic society in which such conduct, especially on the part of government department whose operations are funded by taxpayers’ money, is not justifiable.

The applicants are members of Nyikavanhu housing cooperative. They constructed houses on subdivision E of Arlington Estate. The first respondent is a local authority, the City of Harare. The second respondent is the Minister of Local Government, Public Works and National Housing (Minister of Local Government), cited in his capacity as the public official responsible for the administration of the Urban Councils Act [Chapter 29:15]. The third respondent is the Minister of Lands and Rural Resettlement (Minister of Lands), cited in his capacity as the public official responsible for the allocation of state land. The basis on which this application was brought on an urgent basis is that the first respondent demolished the applicants’ homes on 21 January 2016 without notice or a court order, and is currently threatening to destroy their household property and forcibly evict them. The applicants assert a constitutionally guaranteed protection from arbitrary eviction, property rights, and lawful administrative conduct. The applicants seek the urgent protection of the court because they are living in the open, in the rubble of their houses, and subject to health challenges.

At the hearing of the matter, which was delayed because counsel for the second and third respondents needed to take his client’s instructions as he had been served with the application at the eleventh hour, parties agreed that the matter was inherently urgent. The first applicant in his founding affidavit averred that; on 15 June 2013 he purchased plot 1101 Arlington Estate, Hatfield from Nyikavanhu Housing Cooperative which is registered properly in terms of the Cooperative Society Act [Chapter 24:05], certificate of registration number 4504. On 31 January 2005, the Ministry of Youth Development and Employment creation confirmed that Nyikavanhu Housing Cooperative was registered. The registrar of Cooperatives confirmed the same, on 26 January 2011. On 23 November 2010 the cooperative was recognised by the office of the District Administrator, Harare Metropolitan Province, by the Governor and resident minister. On 4 April 2013, Mr AS Tome, of the office of the Provincial Administrator, confirmed that Nyikavanhu housing cooperative had been offered subdivision E of Arlington estate for housing development purposes.

In terms of the agreement of sale of stand 1101 of Arlington estate, measuring 2000 square metres, the first applicant paid the purchase price in full. The property, a vacant stand, was sold voetstoots. In clause 2.1 the first applicant acknowledged that he had made himself fully acquainted with the property, and with all the terms imposed by the Town Planning Authority or vested in Government or any other authority, statutory or otherwise. On 15 January 2006, the Ministry of Local Government offered Nyikavanhu Housing Cooperative 530.25 hectares of the remainder of Arlington for development. The offer was subject to the following conditions; that a subdivisional plan be approved by the department of physical planning, that they obtain City of Harare approval for engineering drawings for water, sewage reticulation and roads as well as inspection and certification of civil works, that they meet the cost of compensating the original owner in order to finalise the acquisition process. Subsequently, on 16 July 2010 the remainder of Arlington Estate was gazetted and acquired by the third respondent in terms of the Land Acquisition Act [Chapter 20:10]. Mr PF Mawire, Director of Airports, on 26 October 2011, wrote a letter from the office of the Director of Airports, Civil Aviation Authority of Zimbabwe, in which he gave clearance to the subdivisional proposal of the remainder of Arlington Estate. In the letter he advised that, although the Civil Aviation Authority of Zimbabwe had cleared the subdivisional proposal, the developments should be carried out according to the requirements listed by the Harare City Council Combination Master Plan. On 4 April 2012, the Administrative Court confirmed the acquisition in terms of s 7 of the Land Acquisition Act.

On 20 February 2013, Mr N Mutsonziwa, a director of the Civil Division of the Attorney General’s office wrote a letter to the secretary for national housing and social amenities, on behalf of the Nyikavanhu housing Cooperative, in which he berated and castigated them for refusing to approve the layout plan. He reiterated that according to the documents given to his office, the cooperative was in lawful occupation and had the requisite government permission to develop the piece of land into residential stands. The first applicant has been living on this property together with his family since early 2015. The house that he built was valued at US$ 75 000 and the stand at US$ 35 000, on 19 January 2016. No meaningful challenge was lodged to put in issue the first applicant’s averments that he was living in this property with a large extended family which includes a seven month pregnant wife with a broken leg, minor children one of whom suffers from Bronchitis, and a teenager with a chest condition. It is accepted that the first applicant and his family are currently living in the rubble of their former home, with no toilet or ablution facilities, and that they are at the mercy of the weather in this rain season and at considerable health risk.

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