MAREGA v OFFICER IN CHARGE, HARARE CENTRAL PRISON (CHIEF SUPERINTENDANT C MUSONZA) & ANOR

HIGH COURT, HARARE

[Urgent Chamber Application HH 3-16]

December 24, 30, 31, 2015 and January 13, 2016

TAGU J

Constitutional law  – Constitution of Zimbabwe, 2013  – Declaration of Rights  – Section 74  – Freedom from arbitrary eviction  – Home  – What constitutes a “home” under section 74.

The applicant, a former officer in the Prisons and Correctional Services, had been dismissed from employment following disciplinary proceedings. He appealed to the Civil Service Commission. In terms of the applicable regulations, an appeal did not suspend the decision appealed against. He was ordered to vacate his workplace accommodation within 48 hours of his dismissal. He applied to the High Court challenging his eviction on the basis of s 74 of the Constitution of Zimbabwe, 2013. He argued that the intended eviction was illegal in that it contravened s 74 of the Constitution of Zimbabwe, 2013 which protects a person from being evicted from their home without a court order.

Held, that s 74 of the Constitution of Zimbabwe, 2013 does not apply to workplace accommodation owned by an employer and provided to an employee as part of his or her conditions of service as “home” in that section refers to a person’s own home.

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, s 74

High Court Rules, 1971 (RGN 1047 of 1971), O 32 r 246 (2)

Prisons (Staff) (Discipline) Regulations, 1984, s 22 (3)

Prisons (Staff) General Regulations, 1968 (SI 405 of 1968), s 9 (2)

Rent Regulations, 2007 (SI 32 of 2007)

T Takaendesa, for the applicant

LT Muradzikwa, for the respondent

TAGU J:

The applicant, a non-commissioned rank member of the Prison Services, appeared before a disciplinary committee on 6 November 2015 at Harare Central Prisons facing a series of misconducts. He was convicted and ordered to pay a fine of US$ 50 and was further given a severe reprimand. However, the second respondent who is the Commissioner of Prisons substituted the decision of the disciplinary committee with that of a dismissal on 10 December 2015. On 15 December 2015 the applicant was notified of his discharge from the Zimbabwe Prisons and Correctional Services (ZPCS) in terms of their disciplinary code. Dissatisfied with the dismissal and on 17 December 2015 the applicant filed his Notice of Appeal to the Public Service Commission. Meanwhile, on 21 December 2015 the first respondent who is the officer in charge at Harare Central Prisons told the applicant to vacate his accommodation at Number C6 Mupfure Flat, Old Prison Camp, Harare, which was his workplace accommodation within 48 hours failure of which the first respondent would forcibly evict the applicant. The notice to vacate staff accommodation within 48 hours precipitated this application where the applicant is now seeking the following relief:

Terms of the final order sought

1. The respondents are interdicted from evicting the applicant from no. C6 Mupfure Flat, Old Prison Camp, Harare, until his appeal to the Public Service Commission is finalised.

2. The respondents are barred from harassing and threatening the applicant and his family with whatever manner of threats.

3. The respondents are ordered to pay costs of suit on a client-attorney scale.

Interim relief granted

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