BILL WATCH 18/2020
[22nd April 2020]
Demolitions : Who is Responsible?
Municipal police and council officials have been demolishing market stalls and illegal cabins in the greater Harare area, particularly in high-density suburbs. The demolitions are intended to help prevent the spread of Covid-19, but it is not clear who made the decision to carry them out.
Apparently the Ministry of Local Government, Public Works and National Housing asked the Council to comply with a Cabinet resolution to the effect that during the national lock-down local authorities should clean up and renovate work spaces used by SMEs and informal traders. The Council’s spokesperson suggested that the Council complied willingly, saying the demolitions were being conducted in line with Council by-laws and that vendors would be given stands in properly designated sites.
A caucus of councillors, on the other hand, has denied that the Council was responsible for the demolitions. They said that the Government assumes control over all security matters in an emergency situation, and that what was happening had nothing to do with the Council because it does not supervise the State. They had tried to stop the demolitions, they said, but were told “they will be infringing the Acts of Parliament and the emergency stipulations”.
So who is responsible, and is it lawful to destroy informal traders’ stalls and other structures?
Councils are Responsible for their Employees’ Actions
The first point to make is that the Council, like every other employer, is generally responsible for what its employees do in the course of their employment. If council employees have been demolishing structures then the Council itself is regarded in law as having conducted the demolitions unless it can show that its employees had disengaged themselves completely from their employment with the Council and were promoting their own objectives or interests. That certainly does not seem to be the case here.
Are the Demolitions Necessary to Comply with Any Law?
The councillors we quoted above said they were told that if they stopped the demolitions they would infringe the law and “emergency stipulations”.
Whatever the councillors may have been told, there is no emergency law that compels a council to demolish stalls and other structures in current circumstances. The President has not declared a state of public emergency under the Constitution, so the Emergency Powers Act cannot be invoked.
The laws that might be employed to justify the demolitions are the following:
Public Health legislation
Section 67 of the Public Health Act states that if the Minister of Health and Child Care is informed by the Chief Health Officer [i.e. his Permanent Secretary] that a local authority is not dealing efficiently with an outbreak of a formidable epidemic disease such as Covid-19, the Minister can:
- inform the local authority of the measures he considers it should be taking, and
- if the local authority fails to take action, authorise the Chief Health Officer or a district health committee to take the necessary measures, and in that event the Chief Health Officer or the committee will have the same powers as the local authority to take those measures.
This section does not apply to the demolitions being carried out by the Harare City Council. In the first place, the Minister of Health and Child Care does not seem to have been involved at all: it was the Permanent Secretary for Local Government who asked the Council to implement a Cabinet resolution. Secondly, it is the Council’s officers who are carrying out the demolitions, not the Chief Health Officer or a health committee.
Section 68(1)(m) of the Public Health Act gives the Minister of Health and Child Care power to make regulations for:
“the evacuation, closing … or, if deemed necessary, the demolition or destruction of any premises the occupation or use of which is considered likely to favour the spread or render more difficult the eradication of such disease [i.e. a formidable epidemic disease such as Covid-19], and the definition of the circumstances in which compensation may be paid in respect of any premises so demolished or destroyed …”
No such regulations have been made.
Section 8(1)(l) of the Public Health (COVID-19 Prevention and Containment) Regulations (SI 77/2020) gives the same Minister power, by order published in the Gazette, to:
“authorise in any local authority the evacuation, closing … or, if deemed necessary, the demolition or destruction of any premises the occupation or use of which is considered likely to favour the spread or render more difficult the eradication of such disease [presumably Covid-19], and define the circumstances in which compensation may be paid in respect of any premises so demolished or destroyed …”
Again, no such order has been published in the Gazette.
In sum, the Council has not been compelled to carry out the demolitions in terms of the Public Health Act
The Urban Councils Act
Under section 199 of the Act councils have a duty to enforce title deed conditions and conditions under which townships have been established; if necessary, such enforcement measures can include demolishing buildings. The current demolitions are not being carried out to enforce conditions of title or any other conditions, however, so section 199 does not apply to them.
Under the Third Schedule to the Act, councils can make by-laws for the demolition of temporary structures that are unhealthy or have been erected without permission (paragraph 42 of the Schedule) and of permanent buildings that have been erected unlawfully (paragraph 43). It is clear from paragraphs 42 and 43, however, that before a council can demolish buildings and structures under its by-laws it must give the owners or occupiers an opportunity to remove them. This cannot have been done by the Harare City Council in the present instance, because the vendors who own or occupy the stalls have been (or should have been) locked away at home.
Under section 315 of the Act the Minister of Local Government can order a council to take steps to carry out a duty imposed on it by the Act or any other law, but before issuing such an order he must give the council an opportunity to make representations in the matter ‒ for example, as to whether the steps suggested by the Minister are desirable or possible. It does not seem that the Minister gave the Council an order under section 315 to demolish vendors’ stalls and other structures; the letter from his Ministry contained a request or recommendation rather than an order.
There does not seem to be anything in the Urban Councils Act, therefore, to suggest that the current demolitions are being done by the Harare City Council under orders from the central government, nothing that might relieve the Council of responsibility for the demolitions.
In this Bill Watch we have not gone into the question ‒ an important one ‒ whether it is necessary or desirable to demolish vendors’ stalls in the interests of combating Covid-19 in particular or public health in general. We are concerned solely with legal issues, and from our legal analysis it seems that:
- The Harare City Council is responsible for the demolitions.
- The Council is not compelled by law to carry them out.
- Demolitions should not be carried out unless the owners or occupiers of the stalls have been given reasonable notice and an opportunity to remove their property. They probably also should be compensated, but we have not gone into that.
In view of this, councillors cannot disclaim responsibility. They have been elected to the Council, which is the decision-making body that ultimately controls the staff of the City of Harare. If the staff are carrying out demolitions without the authority of the Council, then the councillors must stop them. If the councillors do not approve of the demolitions then, if they form a majority on the Council, they must rein their staff in and stop the demolitions. If, after proper consideration, they think the demolitions are necessary then they must say so and ensure that correct legal steps are taken. But they cannot just sit back and wring their hands, still less wash their hands of responsibility like Pontius Pilate.