HH 114-16 - Dusabe v City of Harare

In the matter between


JEAN PIERRE DUSABE                                                  1ST APPLICANT




JOHN PETER MUTOKAMBALI                                      2ND APPLICANT


CITY OF HARARE                                                       1ST RESPONDENT





MINISTER OF LANDS AND                                        3RD RESPONDENT


Urgent Chamber Application

Ms. B. Chinowawa, for the applicants
L. P. Mutizwa, for the 1st respondent
E. Mukucha, for the 2nd & 3rd respondents

CIDGUMBA J: This is an urgent chamber application in which the applicants seek an interim order that the first respondent be barred froni' 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 [mal 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 o• f 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. 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 authorizing 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 Council's 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 recognized by- the office of the District Administrator, Harare Metropolitan Province, by the Governor and resident minister. On 4 April 2013. Mr. A. S. Tome, of the office of the Provincial Administrator, confrrmed that Nyikavanhu housing cooperative had been offered subdivision E of Arlington estate for housing development purposes.

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