HARARE
–
The
Constitutional
Court
has
confirmed
the
order
of
constitutional
invalidity
by
the
High
Court
which
last
year
ruled
that
some
by-laws
which
were
being
used
by
local
authorities
to
demolish
people’s
houses
without
obtaining
court’s
permission
were
unconstitutional.
A
seven
panel
bench,
in
a
recent
judgement,
confirmed
the
lower
court’s
ruling
stating
that
the
concessions
made
on
behalf
of
the
respondents
were
properly
made.
“Accordingly,
with
a
few
minor
but
necessary
amendments
to
the
draft
order,
it
is
ordered
by
consent
that:
The
order
of
constitutional
invalidity
issued
by
the
High
Court
under
Case
No.
HCH
6718/20
be
and
is
hereby
confirmed,”
said
the
bench.
The
judges
also
said
Section
32(2)(c)
and
section
32(2)(d)
of
the
Regional
Town
and
Country
Planning
Act
[Chapter
29:12]
is
declared
to
be
inconsistent
with
section
74
of
the
Constitution
and
therefore
invalid.
The
matter
before
the
High
Court
was
instigated
by
the
publication
of
a
demolition
order
by
the
Chitungwiza
Municipality.
The
published
notice
contained
a
schedule
of
identified
municipal
areas
in
St
Mary’s,
Zengeza,
Seke,
and
Nyatsime,
where
illegal
structures
had
been
prefabricated
without
prior
council
approval.
The
residents
in
these
areas
were
ordered
to
restore
the
land
to
its
original
state
after
demolishing
all
illegally
erected
structures
and
removing
all
their
property.
The
notice
stated
that
the
failure
to
comply
with
the
order
within
the
prescribed
period
would
entitle
the
municipality
to
proceed
with
the
required
demolitions
without
incurring
any
legal
liability.
Following
the
demolition
notice,
the
lawyers
representing
Chitungwiza
Residents
Trust
wrote
the
municipality
reminding
it
that
s74
of
the
Constitution
proscribed
any
eviction
or
demolition
of
a
home
without
a
court
order
made
after
considering
all
the
relevant
circumstances.
They
requested
it
to
furnish
them
with
an
order
that
gave
it
permission
to
evict
and
demolish
houses
in
the
areas
mentioned
in
the
demolition
order.
In
turn,
the
municipality
wrote
to
the
applicant’s
legal
practitioners
on
11
October
2020
and
indicated
that
they
had
resolved,
through
a
special
full
council
meeting
held
on
9
October
2020,
to
put
the
demolition
exercise
in
abeyance
and
that
the
demolitions
would
no
longer
be
effected
as
per
the
order.
However,
the
applicant
then
approached
the
court
a
quo
for
an
order
of
constitutional
invalidity
in
respect
of
ss
32(2)(c),
32(2)(d)
and
37(1)(a)(i)
of
the
Act.
A
ruling
was
then
made
in
favour
of
Chitungwiza
Residents
Trust.
High
Court
Judge
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
on
areas,
where
there
are
disputes
of
ownership
of
land,
do
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.
The
residents
were
represented
by
Tererai
Mafukidze
who
was
instructed
Tinashe
Chinopfukutwa,
Kelvin
Kabaya
and
Paidamoyo
Saurombe
of
Zimbabwe
Lawyers
for
Human
Rights,
