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Writes Kumbirai Mafunda
The High Court has frowned upon the unlawful and pervasive practice of local authorities in demolishing residential properties across the country and criticised the impugned legislation, which they had abused for several years, to arbitrarily demolish houses and evict people, as having outlived its usefulness.
In a written judgment handed down on 16 October 2024, High Court Judge Justice Never Katiyo adjudged that the provisions of section 32 of the Regional, Town, and Country Planning Act and section 37 of the Regional, Town, and Country Planning Act, which Chitungwiza Municipality relied upon in issuing some enforcement orders, had outlived its usefulness and hence should be repealed and realigned with the Constitution.
Justice Katiyo had earlier on 24 July 2024 declared section 32(2)(c) and (d) of the Regional, Town and Country Planning Act as well as section 37(1)(a)(i) of the Regional, Town, and Country Planning Act to be ultra vires section 74 of the Constitution and therefore unconstitutional and had also declared the demolition order issued by Chitungwiza Municipality on 8 October 2020 to be invalid.
On 16 October 2024, Justice Katiyo ruled that local authorities such as Chitungwiza Municipality, which administer the Regional, Town and Country Planning Act, must always ensure that construction of residential properties in areas, where there are disputes of ownership of land, does not take place in their full view and they must not react after the construction of houses.
The Judge stated that local authorities must follow due process and procedural safeguards provided in terms of section 74 of the Constitution, which guarantees freedom from arbitrary eviction.
Justice Katiyo ruled that the impugned provisions of the Regional, Town, and Country Planning Act do not provide a reasonable limitation of the right to freedom from arbitrary eviction.
The High Court Judge declared that the order of constitutional invalidity will be suspended for 12 months from the date of confirmation by the Constitutional Court to enable Local Government and Public Works Minister Hon. Daniel Garwe, Justice, Legal, and Parliamentary Affairs Minister Hon. Ziyambi Ziyambi and Attorney-General Virginia Mabhiza, who were cited as respondents alongside Chitungwiza Municipality, to amend the impugned legislation so that it complies with section 74 of the Constitution.
The High Court judgment came after some aggrieved residents represented by Chitungwiza Residents Trust (CHITREST) in 2020 filed an application seeking an order of declaration of constitutional invalidity of some offensive by-laws, which permitted local authorities to demolish houses without obtaining a court order as is required by the provisions of the Constitution.
In the application, CHITREST, which was represented by Tinashe Chinopfukutwa, Kelvin Kabaya and Paidamoyo Saurombe of Zimbabwe Lawyers for Human Rights, asked the High Court to issue an order impugning section 32(2)(c) and (d) of the Regional, Town and Country Planning Act as well as section 37(1)(a)(i) of the Regional, Town, and Country Planning Act.
Chinopfukutwa, Saurombe, and Kabaya argued that the Constitution is the supreme law of the land and any law that is inconsistent with it is invalid to the extent of the inconsistency hence section 32(2)(c) and (d) and section 37(1)(a)(i) of the Regional, Town and Country Planning Act, are inconsistent with the provisions of section 74 of the Constitution.
The human rights lawyers requested the High Court to issue an order declaring the said offending provisions constitutionally invalid because section 32(2)(c) and (d) as well as section 37(1)(a)(i) of the Regional, Town, and Country Planning Act, infringes section 74 of the Constitution, which confers a right on people against arbitrary eviction from their homes.
Chinopfukutwa, Saurombe, and Kabaya also requested the High Court to declare the demolition order issued by Chitungwiza Municipality in 2020 as invalid.
Following Justice Katiyo’s judgment, the Constitutional Court will on Wednesday 23 October 2024 at 9: 30 AM preside over the hearing and determination of CHITREST’s application for confirmation of an order of constitutional invalidity sought by the residents’ association.
