CONSTITUTION WATCH 2/2014
[28th February 2014]
Unpacking and Giving Effect to the Constitution
Are Demolitions of Illegal Structures Constitutional?
According to press reports, local authorities have started to demolish houses and other structures which, they say, have been or are being built illegally. In most cases, it seems, the structures are on stands which have been improperly allocated for residential purposes.
The problem is widespread and serious. In Chitungwiza alone there are 8 260 illegally occupied stands on land which has been set aside for clinics, schools, cemeteries, recreational activities and roads; in the Seke Communal Lands there are 6 200 such stands. On 25th January, residents of Chitungwiza formed a human wall to block a bulldozer which the council had sent to demolish their houses. Some residents claimed they had been paying rents and rates to the council for the same buildings which the council was trying to destroy.
The local authorities say that in carrying out the demolitions they are complying with a directive from the central government. That such a directive was issued was confirmed by the Deputy Minister of Local Government, Public Works and National Housing in an interview reported in The Herald newspaper on 11th November last year.
It is clear that the local authorities have not obtained court orders authorising the demolitions. They do not claim to have done so, and the people whose houses are being demolished maintain that they received no notice before the bulldozers arrived. It is inconceivable that any court in Zimbabwe would order demolitions unless proper notice had been served on the people whose houses were to be demolished.
Constitutional right to shelter
Section 28 of the Constitution requires all government institutions at every level [i.e. both central government and local authorities] to take reasonable measures, within the limits of their resources, to enable every person to have access to adequate shelter. This is reinforced by section 74, which states: “No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.” [See note below for definition of “home”]
Taken together, sections 28 and 74 confer an important socio-economic right: the right to shelter, a place to live. According to the South African Constitutional Court, interpreting very similar provisions in that country’s constitution, the right entails:
- On the positive side, making land available for housing, providing appropriate services such as water supplies, and providing finance for these services and the building of houses.
- On the negative side, prohibiting evictions and demolitions without a court order.
On the right to shelter, a place to live, the State and local authorities have some leeway, because the extent to which they must provide shelter depends on their resources. On prohibiting evictions and demolitions without a court order, however, there is no leeway: people may not be evicted from their homes, and homes may not be demolished, unless a court has considered all the relevant circumstances and has authorised the eviction or demolition. Evictions and demolitions cannot take place on the strength of an administrative decision alone, but only on the authority of a court order.
Note: What is a “home”? The Constitution does not try to define what is meant by a “home” in section 74, but in South Africa the term has been defined by the courts as a shelter against the elements providing some of the comforts of life with some degree of permanence. Rented accommodation, housing provided to farm-workers, traditional dwellings, shacks and informal dwellings — all can qualify as homes so long as their occupants intend to reside in them permanently or for a reasonably long time. That they are unfinished does not matter provided that people are residing in them, which is often the case with unfinished buildings in Zimbabwe. Nor does it matter that the occupants do not have title to the land on which the houses are built or being built, because section 74 of the Constitution is intended to benefit squatters as much as landowners.
Demolition of Homes Constitutionally Illegal
Any demolitions being carried out without the authority of court orders are unconstitutional and illegal in so far as they are being carried out on homes, i.e. buildings or structures which are being occupied as residences, whether they are fully built or uncompleted.
Illegality of demolitions under ordinary law
Apart from being unconstitutional, the demolitions are illegal under our ordinary law — and this applies to the demolition of all types of building, not just homes.
As a general rule, people must not take the law into their own hands, even when enforcing their rights: they must seek a remedy through the courts. Hence a landlord is not allowed forcibly to evict a former tenant who is occupying his house illegally; if he does so the person who has been evicted can apply to court for an order restoring his occupation pending a ruling by a court on his right to occupy the house.
The same applies to local authorities and, in a constitutional State, to the central government. They cannot take the law into their own hands either. Local authorities — i.e. urban councils and rural district councils — can exercise only the powers that are given to them by statute or by the Constitution. They cannot carry out demolitions except to the extent that a statute authorises them to. The Urban Councils Act allows urban councils to demolish buildings and structures, but only in the following circumstances:
- Where the structures have been built over sewers, drains or water mains — though in the case of water mains the council must give at least 30 days’ notice [sections 180 & 186].
- In order to enforce conditions of title to land, though the council must allow the person allegedly infringing the conditions at least 28 days within which to appeal to the Administrative Court [section 199].
- In order to prevent buildings encroaching on to roads, though again the council must allow an opportunity to appeal to the Administrative Court [section 213].
The Act does permit councils to make by-laws requiring the demolition of buildings which are dangerous, dilapidated or unhealthy or which do not conform to approved plans or building standards, and allowing the councils to demolish the buildings if the owners refuse to do so [paragraphs 30, 42 and 43 of the Third Schedule]. The Rural District Councils Act gives very similar powers to rural district councils. BUT the Act does not give local authorities a broad general power to demolish buildings; they can do so only in specific circumstances. And in all the cases listed in the Acts, local authorities must first give notice to the people whose buildings are to be demolished; and in some cases the people must be allowed an opportunity to appeal to the Administrative Court. Demolitions in the absence of notice are illegal.
The Housing Standards Control Act provides for the demolition of buildings which are unsuitable for occupation, whether through being badly built, or lacking in essential facilities or through general dilapidation. BUT local authorities are not allowed simply to demolish such buildings. Before doing so they must approach a housing court [i.e. a magistrates court] and obtain an order requiring the owner of the building to demolish it, and only if the owner fails to do so may the local authority send in its bulldozers. The owner must be given notice of the application to the housing court and must be given an opportunity to oppose the granting of a demolition order.
Quite clearly, local authorities have not followed the procedures laid down in the Housing Standards Control Act before undertaking the demolitions, and they have not given the notice required by the Urban Councils Act or the Rural District Councils Act. There is no other statute that authorises local authorities to demolish buildings and structures. The demolitions are therefore not only unconstitutional but illegal under ordinary law as it stands.
Local authorities are undoubtedly faced with a very difficult situation. Thousands of residential stands have been allocated on land that was reserved for public purposes, and if people are allowed to occupy these stands they will need services such as water, sewerage and refuse removal which the local authorities may be unable to provide. On the other hand the local authorities are not blameless. They must have known that stands were being allocated illegally, yet they sat back and did nothing. Only when the problem reached unmanageable proportions did they try to do something about it — and then the remedy they chose was unlawful.
The rule of law requires laws to be enforced continuously. If the local authorities had remembered that, instead of sitting back until enforcement became virtually impossible, they would not have to cope with the mess that confronts us all today.
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