Hanna Housing Consortium v City of Harare

### Preamble
1
HH 503-18
HC 7528/18
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HANNA HOUSING CONSORTIUM

versus

CITY OF HARARE

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 21 & 29 August 2018

Urgent Chamber Application

T. Chakabva, for the applicant

C. Kwaramba, for the respondent

CHIKOWERO J: The applicant is a housing consortium with a membership of eleven cooperative societies.

The applicant occupies the remainder of Glen Eagles farm (Budiriro 5) Harare.

Its application for regularisation of occupation is currently before the respondent for determination.

The allegation is made that thirty members of the applicant are in occupation and about 200 families had erected temporary structures on the land in question.

On 9 August 2018 the respondent delivered a notice to the applicant 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.

The notice gave the applicant’s members forty eight (48) hours notice to vacate the remainder of Glen Eagles Farm (Budiriro 5) and to demolish any structures thereon failing which the respondent would summarily evict the applicant and unilaterally demolish structures put up thereon.

The interim relief sought was couched as follows:

“INTERIM RELIEF GRANTED

Pending determination of this matter, the applicant is granted the following relief:

6. 	Pending the return date, the respondent be and is hereby prohibited from attaching and demolishing property belonging to the applicant and any of its members at the remainder of Glen Eagles Farm, Budiriro without a court order.

7.	Pending the return date, the respondent be and is hereby prohibited from evicting the applicant and any of its members from the remainder of Glen Eagles Farm, Budiriro without a court order.”

The application was filed on 17 August 2018. It was not, and could not, be disputed

that the matter was urgent.

I am satisfied that the pending application for regularisation of occupation of the land in question satisfied the first requirement of an interim interdict.

The applicant’s members have been in occupation since 2015, with full knowledge of the respondent. The applicant submitted an application for regularisation of such occupation.

Attached to the urgent chamber application was the respondent’s resolution contained in Report No. 93 DHCS 2016 authored by the Acting Director of Housing and Community Services to the Acting Town Clerk.

That Report reads in relevant part:

“1.	Subject: Update on the Regularisation and Relocation of Illegal settlers in Harare

2.	……

3.	…..

4.	Recommendations

4.1	That Council notes the progress made so far in the regularisation and relocation of illegal settlers in Greater Harare.

4.2

5.	Relevant Information

5.1	Council at its 1853th Ordinary meeting on the 13th of June 2016, resolved that:

(a)	…..

(b)	….

(c)	that Council approves the recommendations to regularise illegal settlements on sites zoned for residential purposes subject to procedural planning process and payment of land intrinsic value, regularisation fees and any other related charges.

(d)-(f) 	(not relevant)

5.2 to 5.6 (not relevant)

6.	Concurrence to my recommendation on paragraphs 4.1 to 4.2 is now being sought.

Signed,

Retired Major M. Marara

Acting Director of Housing and Community Services.”

Also attached to the application is a letter of 17 August 2018 wherein the applicant’s

legal practitioners made reference to the applicant’s members’ occupation of the land since 2014, that regularisation of occupation was awaited and that the notice which is the subject of this suit was unlawful. The letter was addressed to the respondent’s Director of Corporate and Legal Services. It was delivered on 17 August 2018, the same date on which it was authored and the urgent chamber application filed.

It is self-evident that all the requirements of an interim interdict have been satisfied in this matter.

I agree that the By-Law in question is unlawful. It is inconsistent with s 74 of the Constitution of Zimbabwe (No 20) Act, 2013.

Section 74 reads as follows:

74  Freedom from Arbitrary eviction

“No person may be evicted from their house, or have their home demolished, without an order of court made after considering all the relevant circumstances.”

This court has already held that 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: Dusabe v City of Harare and Ors 2016 (1) ZLR 348 (H), Together As One Housing Cooperative v City of Harare, Nyatsime Beneficiaries Trust and 11 Ors v Chitungwiza Municipality HH 101/16.

There was no court order authorising the eviction and demolishing of the structures in casu.

It mattered not whether applicant’s members occupied in 2014, 2015 or two days before the recent harmonized elections.

The absence of a court order rendered the notice to vacate illegal. See also Farai Mushoriwa v City of Harare HH 195/14 where the court held that disconnecting water supply without a court order was unlawful.

I was not moved by applicant’s argument that the thirty family members could not call the structures they put up on the land two days before the 2018 harmonized elections “home.”

The argument was that they clearly resided elsewhere, which were their homes. Consequently, they fell outside the protective provisions of s 74 of the Constitution of Zimbabwe.

To begin with, no evidence was put before me that the occupation was recent. I could not take Mr Kwaramba’s submissions as evidence despite the fact that the argument was developed from the opposing affidavit filed of record. All that that affidavit contained were unsubstantiated averments to the same effect.

More fundamentally, what the law proscribes is eviction without a court order. My view is that even if the applicant’s members had not put up any structure on that land but were in occupation the law would not countenance respondent ousting the jurisdiction of the court by evicting them without a court order.

I also do not credit Mr Kwaramba’s argument that, for practical purposes, respondent’s operations would simply collapse if it were required to institute eviction summons every time settlers whom it considered illegal were in occupation of its land. That argument promotes lawfulness and anarchy.

I did not rely on an article I had read in the print media on the day the application was argued before me. The article suggested that the By-law in question had been declared unconstitutional by the Constitutional Court. My latest batch of judgments handed down by the Constitutional Court do not include any such judgment, if any.

I therefore grant the interim relief sought.

Consequently, it is ordered that;

Pending the return date, the respondent be and is prohibited from attaching and demolishing property belonging to the applicant and any of its members at the remainder of Glen Eagles Farm, Budiriro without a Court Order.

Pending the return date, the respondent be and is prohibited from evicting the applicant and any of its members from the remainder of Glen Eagles Farm, Budiriro without a Court Order.

The applicant’s legal practitioners be and are granted leave to serve a copy of this judgment on the respondent.

Masinire & Chakabva, applicant’s legal practitioners

Mbidzo Muchadehana & Makoni, respondent’s legal practitioners