Substantive rights https://old.zimlii.org/taxonomy/term/10561/all en Mbatha v Confederation of Zimbabwe Industries And Another (CCZ 5/21, Court Application No. CCZ 13/20) [2021] ZWCC (13 July 2021); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2021/5 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. CCZ 05/21</p> <p>Court Application No. CCZ 13/20</p> <p><strong>DISTRIBUATABLE:</strong><strong>          (5)</strong></p> <p><strong>RITA     MARQUE     MBATHA</strong></p> <p><strong>v</strong></p> <p><strong>(1)     CONFEDERATION     OF     ZIMBABWE     INDUSTRIES     (2)     THE     SHERIFF     OF     ZIMBABWE</strong></p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>GARWE AJCC, GOWORA AJCC &amp; PATEL AJCC</strong></p> <p><strong>HARARE: 23 NOVEMBER 2020 &amp; 13 JULY 2021</strong></p> <p> </p> <p>Applicant in person</p> <p><em>T. Zhuwarara</em>, for the first respondent</p> <p><em>No appearance for </em>the second respondent</p> <p> </p> <p><strong>GOWORA AJCC</strong>: This is an application for leave for direct access to the court made in terms of s 167(5) of the Constitution (“the Constitution”), as read with r 21(2) and (3) of the Constitutional Court Rules, 2016 (“the Rules”). The application is opposed.</p> <p> </p> <p>FACTUAL BACKGROUND</p> <p>The applicant and the respondent were involved in a labour dispute which ultimately found its way before the Supreme Court. The Supreme Court found in favour of the applicant and ordered the respondent to pay the applicant an amount of USD41 161.30 as damages for unlawful dismissal.</p> <p> </p> <p>Pursuant to the order, the applicant caused a writ of execution to be issued out for the attachment of the movable property of the respondent in satisfaction of the judgment. She instructed the second respondent to execute the writ. Upon service of the writ, on 15 January 2020, the first respondent paid through RTGS the sum of 43 495.37. Notwithstanding such payment, the applicant caused the seizure of the respondent’s movable property which prompted the latter to seek a provisional order to stay the execution of the writ.</p> <p> </p> <p>The applicant was undeterred. On 7 July 2020, she caused the issuance of an additional writ, this time against the movable and immovable property of the respondent. On 28 July 2020, an immovable property of the first respondent was attached in execution pursuant to the second writ. The second respondent was instructed to sell the property. The sale was scheduled to take place on 2 October 2002.</p> <p> </p> <p>The first respondent reacted. It filed an urgent court application seeking the setting aside of the second writ of execution and the consequential attachment of the immovable property. The applicant was given five days to respond to the application.</p> <p> </p> <p>Due to an error, the matter was treated as an urgent chamber application instead of a court application and referred to a judge in chambers. The applicant had not, at that stage, filed any papers in response. There was also no proof on record that the first respondent had served the court application on the applicant as required by the rules of court. At the time, the <em>dies induciae</em> stated on the application had not expired and the matter was removed from the roll for urgent chamber applications.</p> <p> </p> <p>After correspondence from the first respondent to the High Court pointing out the errors was received, the error was rectified and the parties filed their papers in accordance with the rules.</p> <p> </p> <p>The applicant had grievances on how papers of the application were served on her. She filed several letters in the record raising issues on how the matter was being dealt with by the first respondent and the conduct of the matter by court officials. The first respondent also requested audience with the judge to whom the matter had been assigned. The learned judge acceded and set a date for the parties to appear before her. On 28 September 2020, the parties appeared before a judge of the High Court in chambers for a case management meeting to prepare a road map for the disposal of the matter.</p> <p> </p> <p>During the meeting, the first respondent requested that the applicant agree to a postponement of the judicial sale of the immovable property. The applicant would not agree resulting in the former making an oral application for the suspension of the sale in execution. Pursuant to that meeting an order in the following terms was issued:</p> <p>“IT IS ORDERED THAT:</p> <ol> <li>First respondent to be served with applicant’s answering affidavit and heads of argument forthwith.     </li> <li>The first respondent shall if she so wishes file her heads of argument on or before 5 October 2020.</li> <li>The matter HC 4380/20 be set down on 8 October 2020.</li> <li>The writ of execution in SC 119/19 be suspended pending the decision of the court in HC 4380/20.</li> <li>Costs of the stay in execution incurred by the second respondent pending the decision of the court in HC 4380/20 shall be borne by the applicant.”</li> </ol> <p>           </p> <p>On 7 October 2020, the applicant filed this application for direct access to the Court. She attached a copy of the main application she wishes to file under s 85(1) of the Constitution in which she alleges that her rights had been violated by the order granted by the court <em>a quo</em>.</p> <p> </p> <p>THE LAW   </p> <p>The applicant intends to bring an application to the Court under s 85(1) of the Constitution alleging a violation of her fundamental rights as enshrined in s 56(1) of the Constitution. She alleges that her right to protection of the law under s 56(1) of the Constitution was infringed by a judgment of the High Court issued on 28 September 2020. Section 167(5) of the Constitution provides that rules of the court must allow a person, when it is in the interests of justice, with or without leave, to bring a constitutional matter to the Constitutional Court. In turn, r 21 makes provision for the manner of bringing such application to the court. Rule 21 (2) requires that such application be supported by an affidavit setting out the facts upon which the applicant seeks relief.</p> <p> </p> <p>The founding affidavit by the applicant for direct access does not set out any facts as required by r 21(2). Instead, the applicant incorporates her founding affidavit in the main application and the pleadings filed under Case No HC 4380/20.</p> <p> </p> <p>Direct access is an extraordinary remedy that should only be granted in exceptional cases. Rule 21(3) provides in relevant part as follows:</p> <p>(3)    An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out—</p> <p>(<em>a</em>)     the grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and</p> <p>(<em>b</em>)     the nature of the relief sought and the grounds upon which such relief is based; and</p> <p>(<em>c</em>)     whether the matter can be dealt with by the court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.</p> <p>(4) The applicant shall attach to the application a draft of the substantive application.</p> <p> </p> <p>As is evident from subrule (3)(c) the applicant should state in the affidavit whether the matter can be dealt with by the court without the need to hear oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved. The applicant has not complied with this additional requirement.</p> <p> </p> <p>In <em>Zimbabwe Development Party v President of Zimbabwe</em> CCZ 3/18, the court said the following:</p> <p>“The Rules set out the objective factors a litigant has to state in a chamber application for direct access for consideration by the Court or Judge in the determination of the question whether it is in the interests of justice to grant direct access. There must be filed with the registrar, and served on all parties with direct or substantial interest in the relief claimed, an application setting out the grounds on which it is claimed it is in the interests of justice that direct access be granted.”</p> <p> </p> <p>The view I take is that notwithstanding the omissions in the affidavit, this is a matter in which the court can reach a determination on the substance. This is because the papers themselves, including the record from the High Court, clearly map out the events surrounding the order by the court <em>a quo</em>. In addition, the learned judge provided detailed reasons for the order made. For that reason, it is my view that the failure to set out the facts as required by r 21 (2) does not disable the court from determining this matter.</p> <p>   </p> <p>I consider each of the requirements as provided in the rule <em>ad seriatim</em>.</p> <p> </p> <p>WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT DIRECT ACCESS BE GRANTED.</p> <p>The Constitutional Court is a specialised court and in terms of s 167(1), b) decides only constitutional matters and issues connected with decisions on constitutional matters. It thus exercises jurisdiction as a court of first instance and an appeal court. In view of the limited jurisdiction of this Court, direct access to the court for the exercise of its jurisdiction for the vindication of a fundamental right premised on s 85 of the Constitution as a court of first instance is granted to a litigant who is able to show that it is in the interests of justice for direct access to the court to be granted to such litigant. </p> <p> </p> <p>The import of the principle for the requirement that an applicant for direct access show that it is in the interest of justice that the application be granted ought not to be minimized. The requirement was explained by I Currie and J de Waal in “The Bill of Rights Handbook”, 6ed, at p 128 as follows:</p> <p>“Direct access is an extraordinary procedure that has been granted by the Constitutional Court in only a handful of cases.</p> <p>……</p> <p>If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest and to hear cases without the benefit of the views of other courts having constitutional jurisdiction. Moreover …… it is not ordinarily in the interest of justice for a court to sit as a court of first instance, in which matters are decided without there being any possibility of appealing against the decision given.”</p> <p> </p> <p>A court that sits to decide whether or not it is in the interests of justice that direct access be granted may take into account a number of factors for consideration. Those factors are set out in r 21(8) as follows:</p> <p>(8)     In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account—</p> <p> </p> <p>(<em>a</em>) the prospects of success if direct access is granted;</p> <p> </p> <p>(<em>b</em>) whether the applicant has any other remedy available to him or her;</p> <p> </p> <p>(<em>c</em>) whether there are disputes of fact in the matter.</p> <p> </p> <p>Within this jurisdiction, the requirement that an applicant shows prospects of success as regards the main application as provided for in r 21 (8) was settled in <em>Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor</em> CCZ 11/18, wherein the court made the following remarks:</p> <p>“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied. The first is that the applicant must state facts or grounds in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction. The second factor is that the applicant must set out in the founding affidavit facts or grounds that show that the main application has prospects of success should direct access be granted.”  (emphasis is mine)</p> <p> </p> <p><em>In casu,</em> it is common cause that the decision that the applicant alleges to be in violation of her rights is an interlocutory one. It was the decision to suspend the sale of the first respondent’s immovable property pending the determination of the matter on the substance. The suspension of the sale did not determine any rights of the respective parties. The decision served to preserve the rights of the parties until a decision on the merits had been made. The court reasoned thus:</p> <p>“This Court is required to decide, on 8 October 2020, whether the payment by the applicant,(first respondent herein), of $43, 495,37 to the Deputy Sheriff on 14 January 2020 sufficiently discharged its indebtedness to first respondent thus warranting a stay of execution and the setting aside of the writ issued on 7 July 2020. While first respondent is a self-actor she ought to understand that it is improper to insist on a sale in execution and thus render the decision of the court a <em>brutum fulmen</em>, particularly where the date of disposal of the matter has been agreed. In any event, she suffers no prejudice as the property remains under attachment with costs for the suspension of the sale being to the charge of the applicant. If she succeeds in opposing the application for stay of execution, she can continue with the execution which is merely being suspended, and not set aside. However, if execution is allowed to continue and it transpires that the applicant had indeed settled the judgment debt in full, then the harm to it would be irreparable as its property would have been sold to an innocent third party. While it is understandable that the first respondent is frustrated at the delay in obtaining just satisfaction for the applicant, it cannot be reasonable to insist on the sale in execution as that makes the whole process an exercise in futility. Therefore the balance of convenience favours the applicant.”</p> <p> </p> <p>A consideration of the reasons by the learned judge in the lower court shows that the real dispute between the parties has not even been heard. Thus, the rationale for the applicant to insist on execution of the writ of 7 July 2020 has not yet been ventilated. There are issues of fact and law that have yet to be determined.</p> <p>Indeed, if the applicant had not mounted these proceedings the main dispute which was scheduled for hearing on 8 October 2020 would have been decided by the High Court by now.</p> <p>This means that there is not even an issue of the applicant not having exhausted her domestic remedies as there were no domestic remedies to resort to. As explained by her ladyship in the judgment, the suspension of the sale was a reasonable intervention that would serve to achieve justice between the parties. The court had to decide whether or not the first respondent had satisfied the judgment debt and, in the interim, to ensure that the judgment would not be a <em>brutum fulmen</em> the sale had to be suspended. No prejudice ensued against either party as the applicant, would if successful, be able to have the sale continue and recover from the sale whatever the court would have decided was still owed.</p> <p>As a consequence, the court is disabled from considering the first factor mentioned in the rules, that of prospects of success. There is nothing to consider and determine due to the fact that the real dispute between the parties is pending before the court <em>a quo</em>.</p> <p>The correct position is that proceedings between the parties are still pending in the High Court. This, therefore, means that the application is ill-conceived and this court has in several cases pronounced on the imprudence of an applicant adopting this course of action. The dicta in <em>Chihava v Provincial Magistrate Mapfumo N.O &amp; Anor</em> 2015(2) ZLR 31,  at 38G-H, are apposite. GWAUNZA JCC (as she then was) remarked:</p> <p>“I, therefore, entertain no doubt that the certainty referred to above would be completely eroded were the courts to operate based on a literal and grammatical interpretation of s 85(1). This circumstance is not only highly undesirable, but it would also constitute an affront to the time-honoured common law principle that a superior court should be slow to intervene in ongoing proceedings in an inferior court, except in exceptional circumstances. This principle is persuasively articulated as follows in the case of <em>Wahlhaus v Additional Magistrate, Johannesburg </em>1959 (3) SA 113 (A);</p> <p>“ … a superior court would be slow to exercise any power upon the unterminated course of criminal proceedings in a court below, but would do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained.” See also <em>Mushapaidze v St Anne’s Hospital &amp; Ors CCZ 18/17</em></p> <p> </p> <p> </p> <p>The above remarks are apposite in this case. The High Court is seized with a very critical issue between the parties, viz, whether or not the first respondent has met its obligations in terms of the judgment obtained by the applicant. The court <em>a quo </em>is not aware of these proceedings or the fact that its directive is being impugned by the applicant. A perusal of the founding affidavit to the main application will tend to show that the applicant is aggrieved by the grant of the stay of execution concerning the sale scheduled for 2 October 2020. I do not read from the substance of the affidavit an allegation that the court <em>a quo</em> conducted itself in a manner that could be considered a violation of the applicant’s rights to a fair hearing. The complaints emanating from the affidavit focus on procedural and substantive issues regarding the order suspending the sale in execution.</p> <p>In <em>Bruce v Fleecytex Johannesburg CC</em> 1998 (2) SA 1143(CC) [4], the Constitutional Court of South Africa, in considering an application for direct access made the following remarks:</p> <p>“……..If Bruce is entitled to any relief she can obtain it from the High Court. In effect what she is now seeking to do through the application for direct access is to appeal against the decision of Wunsh J on an issue that was not raised in the proceedings before him, and to avoid the normal appeal procedure by launching proceedings for direct access to this Court.  </p> <p>[22] KENTRIDGE AJ made it clear in his judgment in <em>S v Zuma and Others</em> [26] that applications for direct access are to be entertained in exceptional circumstances and not merely to avoid the consequences of incorrect procedures that have been followed. If, notwithstanding the pending appeal, Bruce is entitled to raise the constitutionality of s 180(3) of the Insolvency Act in separate proceedings, she can initiate such proceedings in the High Court; but if she is not entitled to do so, she cannot avoid the consequences of her earlier omission by applying to this court for relief.</p> <p>[23] I am satisfied that grounds for direct access have not been established and that this is not a proper case for the granting of such relief.”  </p> <p> </p> <p> </p> <p>There is a suggestion that the learned judge had indicated that the matter was not urgent. This does not appear to be supported by the learned judge’s reasons for its removal from the roll. In any event, it is of no moment as the matter was filed as an urgent court application and not an urgent chamber application. There is a difference in the manner of treatment of the two by the registrar and the court itself.</p> <p> </p> <p>An urgent chamber application must be placed before the judge in chambers upon its filing, whereas an urgent court application must comply with the <em>dies induciae</em> as stated on the face of the application. It must be placed on the roll after the respondent or respondents, as the case may be, have been availed an opportunity to file papers in opposition.</p> <p> </p> <p>DISPOSITION</p> <p>I do not find it necessary to consider whether or not the applicant has established whether or not there is no other remedy available or if the matter cannot be dealt with without the calling of evidence. The application seeks to challenge interlocutory proceedings and this is not permissible in the light of the authorities referred to above.</p> <p> </p> <p>From the aforegoing, the applicant has not established that it is in the interests of justice that the application be granted. The application must fail.</p> <p> </p> <p>The first respondent has prayed that the applicant be mulcted with an order for costs. In constitutional matters, it is not the norm that costs be awarded against the unsuccessful litigant. The first respondent has not suggested that the applicant is guilty of vexatious conduct or an abuse of court process. Nor has it been suggested that the application is frivolous. In the premises, it is my view that an order for costs is not warranted.</p> <p> </p> <p>Accordingly, it is ordered that the application be and is hereby is dismissed with no order as to costs.  </p> <p> </p> <p><strong>GARWE AJCC                         :</strong>           I agree</p> <p> </p> <p><strong>PATEL AJCC                           :    </strong>       I agree</p> <p><em>Gill, Godlonton &amp; Gerrans</em>, legal practitioners for the first respondent </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2021/5/2021-zwcc.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=36878">2021-zwcc.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2021/5/2021-zwcc.pdf" type="application/pdf; length=449412">2021-zwcc.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/abuse-process-0">Abuse of process</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unlawful-dismissal">Unlawful dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/equality-law-and-equal-protection-law">Equality before the law and equal protection of the law</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sale-execution">sale (Execution)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution">stay of execution</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2018/3">Zimbabwe Development Party &amp; Another v President of the Republic of Zimbabwe &amp; 2 Others (CCZ 3/18, Constitutional Application No. CCZ 15/18) [2018] ZWCC 3 (28 May 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2018/11">Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited &amp; Anor (CCZ 11/18, Constitutional Application No. CCZ 54/17) [2018] ZWCC 11 (20 November 2018);</a></div><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2015/6">Chihava &amp; Another v Provincial Magistrate Mapfumo N.O. &amp; Another (No. 02/14) [2015] ZWCCZ 6 (14 July 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 19 Jul 2021 08:58:19 +0000 Sandra 10085 at https://old.zimlii.org Zimbabwe Homeless Peoples Federation And Another v Minister of Local Government and National Housing And 3 Others (SC 78-21, Civil Appeal No. SC 118/19) [2021] ZWSC 78 (24 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/78 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 78/21</p> <p>Civil Appeal No. SC 118/19</p> <p> </p> <p><strong>REPORTABLE:</strong><strong>      (75)</strong></p> <ol> <li><strong>    ZIMBABWE     HOMELESS     PEOPLES     FEDERATION     (2)     TAWONGA     SAVING     SCHEME     (3)     NGWARU     MASANZA</strong></li> </ol> <p><strong>v</strong></p> <ol> <li><strong>    MINISTER     OF     LOCAL     GOVERNMENT     AND     NATIONAL     HOUSING     (2)     ZVIMBA     RURAL     DISTRICT     COUNCIL     (3)     LEENGATE     PRIVATE     LIMITED     (4)     MINISTER     OF     LANDS,     LAND     REFORM     AND     RESETTLEMENT</strong></li> </ol> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, MAVANGIRA JA &amp; MATHONSI JA</strong></p> <p><strong>HARARE: 14 SEPTEMBER 2019 &amp; 24 JUNE 2021</strong></p> <p> </p> <p><em>N. Munetsi,</em> for the appellant</p> <p><em>V. Munyoro</em>, for the first and fourth respondents</p> <p>L. Uriri, for the third respondent</p> <p><strong>GARWE JA</strong></p> <p>[1]        After hearing argument from the parties, the High Court of Zimbabwe made an order dismissing the application filed by the appellants in terms of s 85 (1) of the Constitution of Zimbabwe.  The court also ordered the appellants to pay the costs of the application.  This followed a finding by the court that the appellants could not properly seek to enforce their right to shelter in terms of s 85 of the Constitution of Zimbabwe as such a right was not a fundamental right enshrined in Chapter 4 of the Constitution which contains the declaration of rights.  The court further found that the right to shelter was one of the national objectives under Chapter 2 of the Constitution and therefore not justiciable. This appeal is against that determination.</p> <p><em>FACTUAL BACKGROUND</em></p> <p>[2]        The first appellant, the Zimbabwe Homeless Peoples Federation, is a <em>universitas</em> at law with an active membership said to be ten thousand homeless people who contribute and pool their resources together for the purpose of achieving and attaining the goal for housing for poor homeless people. The second appellant, Tawonga Savings Scheme, is a saving scheme established in terms of its constitution with the power to sue and be sued. The third appellant is a resident of Newpark informal settlement situated at Haydon Farm along the Old Mazoe Road.</p> <p> </p> <p>[3]        Although counsel for appellants attempted, unsuccessfully, to urge the court <em>a quo </em>and this Court to accept that the application brought by the first and second appellants in the court was not in terms of s 85 (1) of the Constitution of Zimbabwe, it is clear, when all is said and done, that all three appellants approached the court <em>a quo </em>in terms of s 85 (1) of the Constitution. This is an aspect I will revert to in the course of this judgment as it has an important bearing on whether or not the appellants were properly non-suited by the court <em>a quo </em>on the basis that they could not seek relief in terms of s 85 of the Constitution.</p> <p> </p> <p>[4]        The first respondent is the Minister of Local Government and National Housing whose Ministry is responsible for national housing and the administration of local authorities in Zimbabwe. He is hereinafter referred to as “the Minister” of Local Government. The second respondent is Zvimba Rural District Council, a local authority that operates under the aegis of the first respondent. It will be referred to in this judgment simply as “the Council”. It is the local authority for Haydon Farm which is at the centre of the dispute between the parties herein.  The third respondent is Leengate (Pvt) Ltd (“Leengate”), a private company involved in housing development. It was this company which was given the right to develop a portion of the farm in question.  The fourth respondent is the Minister of Lands, Land Reform and Rural Resettlement, the acquiring authority of the farm.  He is hereinafter referred to as “the Minister of Lands”. It was the Minister of Lands who handed over the farm to the Minister of Local Government for housing development who, in turn, allocated it to the Council and Leengate.</p> <p> </p> <p>[5]        Members of the Tawonga Savings Scheme, including the third appellant herein, took occupation of Haydon Farm sometime in 2000, during the height of the land reform programme. They proceeded to construct fixtures, some permanent, but these were demolished in 2005 during a government operation that came to be referred to as Operation Murambatsvina. It was shortly thereafter that the land in question was acquired by the State pursuant to Constitutional Amendment No 17 after which it became State land. The informal settlement at the farm was not regularised. In due course the third respondent, Leengate, was offered a hundred hectares of the land for residential development. It is common cause that some of the appellants occupy part of the land that was offered to Leengate for development.</p> <p> </p> <p>[6]        It is not in dispute that Leengate proceeded to have the land surveyed after which roads and storm drains were constructed thereon. Leengate proceeded to develop a hundred and fifty stands which it then sold to the public. About forty per cent of this land is still occupied by the second appellant’s members.</p> <p> </p> <p><em>PROCEEDINGS BEFORE THE HIGH COURT</em></p> <p>[7]        In their founding papers before the High Court, the appellants averred that Council and Leengate then began to threaten them and proceeded to evict some of them from the farm.  They gave notice to the remaining occupants to vacate the farm by a given date. The appellants contended that the evictions were a breach of their rights enshrined under ss 28, 44, 48, 51, 56 (1) and 77 of the Constitution. They argued that, whilst there was no specific right to shelter or housing in the Declaration of Rights, other than for children, the right to dignity (S 48) necessarily incorporates the right to shelter as the latter right would be meaningless without the concomitant right to food and shelter. The appellants therefore sought an order interdicting the Council and Leengate from evicting them.  They also sought orders compelling the Minister of Local Government and the Council to allocate serviced stands to them as well as construct basic houses for them. Alternatively they sought an order compelling the Minister of Local Government and the Minister of Lands to provide them with alternative land and serviced stands thereon. An application to further amend the prayer was abandoned at the hearing of this matter.  </p> <p> </p> <p> [8]       All the respondents, including the City of Harare against which the application was subsequently withdrawn, opposed the application to interdict what the appellants termed forced evictions. The Minister of Local Government and the Minister of Lands took the common position that the land in question was State land and that the appellants had no lawful authority to occupy, use or hold it. They contended that the right to shelter was not part of the Bill of Rights and therefore the appellants could not seek relief against them in terms of s 85 of the Constitution. Leengate on the other hand averred that the appellants’ occupation of the farm was illegal and that, as a corollary, they had no right of audience before the court. Leengate also submitted that there had been no illegal evictions undertaken by itself or at its instance. Instead what it had done was follow due process and to institute eviction proceedings against the appellants in the Magistrates’ Court.  Leengate further submitted that as the right to shelter was not entrenched in the Constitution, the appellants therefore had no cause of action against it pursuant to s 85 of the Constitution.</p> <p> </p> <p>[9]        In its determination, the court <em>a quo </em>found that all the applicants had approached the court in terms of s 85(1)(d), 85(1)(e) and 85(1)(a) respectively. The court held that s 85(1) was available to litigants who sought to enforce rights enshrined under the Declaration of Rights in Chapter 4. It found that since the right to shelter was not part of the Declaration of Rights, the appellants could not have properly approached the court in terms of s 85(1) alleging a breach of a fundamental right.  The court found it unnecessary to determine the merits of the matter and, consequently, dismissed the application with costs.</p> <p> </p> <p><em>PROCEEDINGS BEFORE THIS COURT</em></p> <p>[10]      Aggrieved by the above determination, the appellants noted an appeal to this Court. They alleged that the court <em>a quo</em> had erred in three respects:</p> <ul> <li>Firstly, in failing to recognise the right of shelter on the basis that it is not included in Chapter 4 of the Constitution whereas s 47 of the Constitution, which is part of the Bill of Rights, provides that Chapter 4 does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with the Constitution.</li> <li>Secondly, in finding that the appellants could not approach the court in terms of s 85 of the Constitution when there was in existence s 47 of the same Constitution which recognised the existence of other rights and freedoms conferred by the law.</li> <li>In not making a determination on the merits through the selective application of Chapter 4, when the very same Chapter contains the non-exclusionary clause under s 47 of the same Constitution.</li> </ul> <p> </p> <p>[11]      Both in his heads of argument and oral submissions, counsel for the third respondent raised the preliminary point that the appellants’ heads of argument were not compliant with r 52(2) of the Supreme Court Rules, 2018. Although the parties had agreed before the hearing not to pursue the preliminary points taken by the respondents in their respective heads of argument, all addressed the court on whether there were proper heads of argument filed by the appellants before the court. The court directed the parties to address it on all the issues that required determination by this Court.   </p> <p> </p> <p>[12]      Counsel for the appellants argued that the rationale for the lengthy and comprehensive heads of argument was that this was the first case before this Court dealing with socio-economic rights that speak to an extension of the right to dignity, life and equal protection of the law relating to housing. It was as a result of the need to give a historical context of the right to housing in relation to other fundamental rights that it was felt necessary to capture domestic and private international law and to provide a comparative analysis of the approach taken by other developing countries.</p> <p> </p> <p> [13]     On the merits, counsel for the appellants submitted that the right to shelter ought to be declared a fundamental right pursuant to s 47 of the Constitution.  She further argued that the right to life, dignity and equal protection of the law do not exist independently of the right to shelter. Human rights are indivisible and interdependent. Indeed one cannot be said to have the right to life or dignity if one does not have the right to shelter or a home. Counsel urged the court to adopt a wide and purposive interpretation in order to determine whether the legislature intended to make shelter a fundamental right within the Constitution.</p> <p> </p> <p>[14]      Counsel further argued that the findings of the court <em>a quo </em>had not taken into account all the provisions of the Constitution. The Constitution has provided for adequate shelter as a national objective under s 28. It has provided for freedom from arbitrary evictions under s 74 of the same Constitution.  It has also made provision for the right of children to education, health services, nutrition and shelter under s 81(f). It also provides for security of tenure to every person lawfully owning or occupying agricultural land. The court should therefore have adopted a purposive interpretation and paid due regard to all these provisions that have a bearing on the right to shelter.  Taken as a whole, the Constitution provides for the fundamental right to housing.</p> <p> </p> <p> [15]     The appellants have further contended that the decision of the court <em>a quo </em>has far reaching implications as it effectively leaves the appellants’ members homeless with nowhere to go. Before sanctifying the drastic measure of eviction, the court <em>a quo </em>should have gone beyond the facts. The court did not take into account the circumstances and length of time the appellants’ members had been in occupation, the rights and needs of vulnerable sections of that group such as children and the failure by the relevant organs of the state to make suitable alternative accommodation available.</p> <p> </p> <p><em>SUBMISSIONS BY THE MINISTER OF LOCAL GOVERNMENT AND THE MINISTER OF LANDS</em></p> <p>[16]      Counsel for the two Ministers submitted that, for the reasons given by Leengate, with which they agree, the appellants’ heads of argument do not comply with the Rules of Court. He urged this Court to find that there are no proper heads before it.</p> <p> </p> <p> [17]     On the merits he argued that the right to shelter is not included in Chapter 4 of the Constitution but is envisaged as a national objective under s 28. He further submitted that the reliance by the appellants on s 47 was inappropriate as they had failed to point to any law that provides the right to shelter.  In any event any rights recognised by s 47 of the Constitution are not fundamental rights. The provision simply means the Constitution does not exclude the existence of other rights confirmed in terms of other laws recognised as such by the Constitution.  </p> <p> </p> <p><em>SUBMISSIONS BY LEENGATE</em></p> <p>[18]      Counsel for Leengate submitted that there were no proper heads of argument before the court.  The appellants’ heads span fifty-eight pages and are clearly not in compliance with r 52 (2)  of the Rules</p> <p> </p> <p> [19]     On the merits, counsel also submitted that the right to shelter is just but an aspiration. Section 47 of the Constitution refers to rights conferred by law. The appellants have not pointed to any provision of law that creates the right to shelter.  The matter brought before the court is therefore not a constitutional matter and consequently the principle of subsidiarity applies.</p> <p> </p> <p><em>ISSUES ARISING FOR DETERMINATION</em></p> <p>[20]      From the above synopsis, four issues arise for determination.  These are first, whether the appellants’ heads of argument are compliant with r 52(2) of the Supreme Court Rules, 2018. Second, whether the right to housing is a fundamental right cognizable in our law. Third, whether the court correctly found that the appellants could not properly approach the court in terms of s 85 of the Constitution and whether the doctrine of avoidance is applicable in this case.  Last, whether the court <em>a quo </em>erred by not making a determination on the merits. I proceed to deal with each of these issues in turn.</p> <p> </p> <p><em>WHETHER THE APPELLANTS’ HEADS OF ARGUMENT COMPLY WITH THE RULES OF COURT</em></p> <p>[21]      Rule 52 (2) of the Supreme Court Rules, 2018, provides as follows:-</p> <p>“(2) Within fifteen days after being called upon to file heads of argument in terms of subrule (1), or within such longer period as a judge may for good cause allow, the appellants’ legal practitioner shall file with the registrar a document setting out the heads of his or her argument together with a list of authorities to be cited in support thereof, and immediately thereafter shall deliver a copy to the respondent.”</p> <p> </p> <p> </p> <p>[22]      Rule 50 has however made provision for written arguments and not heads of argument to be filed. That Rule provides as follows:-</p> <p>“50.  A party to a civil appeal may, not less than five days before the date on which the appeal has been set down for hearing, file with the registrar a declaration in writing that he or she does not intend to be present in person or to be represented by counsel at the hearing of the appeal, together with four copies of such argument as he or she wishes to submit to the court.  Such argument shall be in numbered paragraphs under distinct heads. …”</p> <p> </p> <p>[23]      It will be apparent, from the foregoing, that our Rules of Court have deliberately made a distinction between, on the one hand, heads of argument and written arguments, on the other.  Written arguments are filed in terms of r 50 by either an appellant or a respondent who does not intend to be present in person or to be represented by a legal practitioner at the hearing of the appeal. Written arguments are intended to be a lot more comprehensive for the reason that the party will not be present before the court to motivate his or her appeal. An appellant who is called upon by the registrar to file heads of argument in terms of r 52 (2) may not file written arguments.  The filing of written arguments in that circumstance would not be compliant with the Rules.</p> <p> </p> <p>[24]      The option of filing written arguments is one that is by no means common in this jurisdiction. Invariably an appellant or applicant files heads of argument in compliance with a directive from the Registrar and failure to do so will result in the matter being deemed abandoned and dismissed – see r 39 (5). Equally, a respondent upon whom the appellant’s heads are served is required to file his or her own heads within ten days of receipt of the appellant heads.  In my experience on the Supreme Court bench, the option available to file written arguments in terms of r 50 is one that has not, to date, been utilised by litigants.</p> <p> </p> <p> [25]     That there is a significant difference between heads of argument and written arguments there can be no doubt.  Heads of argument are intended to set out, without elaboration, a relatively concise statement of the main points intended to be argued on appeal by, or on behalf of, the respective parties and represent the starting point of the debate which follows. They also constitute the background against which the actual debate during argument of the appeal coalesces but the parties may and often do depart from such heads and the debate can range beyond the bare submissions contained in the heads which, in the hearing process, are supplemented or amplified, as the debate continues.</p> <p> </p> <p>[26]      Written argument, on the other hand, is presented <em>in lieu</em> of heads of argument, and is intended to be so comprehensive and complete so as not to require any supplementing. It also presupposes that such argument adequately addresses all possible points which may arise in the course of considering the appeal.</p> <p> </p> <p>[27]      As noted in the South African decision in <em>Mandlakhe Khehla Shinga v The Society of Advocates (Pietermaritzburg Bar) (Intervening as Amicus Curiae) &amp; Anor</em> Appeal No. AR 969/2004:</p> <p>“… There is a clear distinction between “heads of argument” and “written argument”- The rules do not permit the latter.  The operative words are “main”, “heads” and “argument”:</p> <ul> <li>“main” refers to the most important part of the argument</li> <li>“heads” means “points”, not a dissertation; and</li> <li>“argument” involves a process that must be set out in the heads.</li> </ul> <p> </p> <p>In addition, and to emphasise the point, the rule requires the heads of argument to be clear, succinct, and without unnecessary elaboration.”</p> <p> </p> <p>I agree entirely with the above remarks which, in my view, correctly reflect the law in this country.</p> <p> </p> <p> </p> <p>[28]      There can be no argument that both in the court <em>a quo </em>and in this Court, the appellants were, and are guilty of, presenting written arguments.  Before the court <em>a quo, </em>the appellants’ heads of argument spanned a total of seventy (70) pages. In addition to those seventy pages, the appellants’ counsel then addressed the court at length, regurgitating the same points made in the written submissions.  His oral submissions span a further thirty two pages. In the heads of argument filed before this Court, the appellants’ legal practitioner has filed “heads of argument” spanning forty five (45) pages.</p> <p> </p> <p>[29]      There can also be little doubt that there has been a failure to comply with the Rules. The appellants were requested to file heads of argument. Instead what was filed is more of a dissertation. It is prolix, rambling and in some cases repetitious.  No consideration has been given to the need to be concise.</p> <p> </p> <p>[30]      I note that the High Court of Zimbabwe has had similar experience.  In <em>Milton Gardens Association &amp; Anor</em> v <em>Mvembe &amp; Ors</em> HH 94/16, the court, obviously exasperated, had this to say at p 5 of the judgment:-</p> <p>   “I must make observations concerning the heads of argument filed on behalf of the applicants in this matter. These stretch up to 127 pages. Heads of argument are meant to be simply that. The purpose of heads of argument is to set out fully one’s arguments. Heads of argument are required to be drawn up in a clear and concise manner. It is inappropriate to file voluminous papers and expect the other party as well as the court to plough through such a voluminous pile of papers and still be able to make sense out of them. What these heads contain is basically every fact and argument concerning this matter. This is most inappropriate. In fact, this is an abuse of court process. This style of drafting heads of argument and conduct ought to be discouraged. The eventual consequence of such conduct results in delays in delivery of the judgment concerned. Litigants who bombard the court with voluminous papers and information deserve to be penalised even if they are eventually successful in the litigation. This sort of conduct deserves censure by this Court….”</p> <p> </p> <p>[31]      The appellants were asked to file heads of argument. Instead they filed what appear to be written arguments. In filing written arguments, they thought they were complying with the direction to file heads of argument. In this regard, they erred. Ordinarily the failure to file heads of argument would have consequences. However, considering that this Court has heard the appellants on the basis of those lengthy and rambling submissions, the court, in the exercise of its discretion, will condone this anomaly, regard being had to the fact that this is perhaps the first time that this Court has taken the pains to emphasize the distinction between heads of argument and written arguments.  Parties and their legal practitioners are admonished to pay heed to this distinction in the Rules. In future heads of argument that do not comply with r 52(2) may well be struck out, the result being that the party guilty of such non-compliance may well be regarded as being barred with the concomitant results that would normally flow from such a determination.</p> <p> </p> <p><em>WHETHER THE RIGHT TO HOUSING IS A FUNDAMENTAL RIGHT</em></p> <p>[32]      It is the appellants’ submission that the court <em>a quo</em> erred in failing to adopt a purposive approach in its interpretation of the provisions of the Constitution. They have argued that had the court <em>a quo</em> correctly interpreted the Constitution, it would have found that the right to housing and shelter is provided for in the Constitution, even though such a right is not specifically provided for. For this proposition they relied on the provisions of s 47 as well as ss 48 and 51 of the Constitution. They further contended that the right to life and to dignity enshrined in the Declaration of Rights cannot be fulfilled if one does not have shelter.  The right to housing is therefore part and parcel of the right to dignity.</p> <p>                         </p> <p>[33]      The appellants accept that the right to shelter is not specifically provided for in [<em>Chapter 4</em>] of the Constitution.  They rely on <em>Chapter 2</em> of the Constitution and in particular ss 8 and 28 thereof. Section 8 provides:-</p> <p>“(1) The objectives set out in this Chapter guide the State and all institutions and agencies of government at every level in formulating and implementing laws and policy decisions that will lead to the establishment, enhancement and promotion of a sustainable, just, free and democratic society in which people enjoy prosperous, happy and fulfilling lives.</p> <p>(2) Regard must be had to the objectives set out in this Chapter when interpreting the State’s obligations under this Constitution and any other law.”</p> <p> </p> <p>[34]      It is s 28 of the Constitution – which also falls under Chapter 2 of the Constitution dealing with National Objectives - that makes reference to access to adequate shelter. That section provides:-</p> <p>“The State and all institutions and agencies of government, at every level must take reasonable legislative and other measures, within the limits of the resources available to them, to enable every person to have access to adequate shelter.”</p> <p> </p> <p>[35]      The appellants have sought to rely on a somewhat similarly worded provision in the South African Constitution. Section 26 of the South African Constitution provides as follows:</p> <p>   “26 HOUSING</p> <ol> <li>Everyone has the right to have access to adequate housing.</li> <li>The State must take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of this right.</li> <li>No-one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”</li> </ol> <p> </p> <p>[36]      There is however a major distinction between the Zimbabwean and South African provisions. Section 28 of the Constitution of Zimbabwe falls under Chapter 2 which spells out the national objectives to guide the State and all institutions of government. Section 26 of the South African Constitution, to the contrary, is part of the Declaration of Rights of that Constitution.  It is a justiciable right.  Even though s 74 of the Constitution of Zimbabwe protects people from arbitrary evictions, it states clearly that persons can be evicted from their home, or have their home demolished if a court order is granted after considering all the relevant circumstances. </p> <p> </p> <p>[37]      It is correct that, in interpreting a Constitution, the ordinary grammatical meaning used in the Constitution is not always decisive. The Constitution itself provides, in s 46, that in interpreting provisions of the Constitution, a court must pay regard to all the provisions of the Constitution, in particular the principles and objectives set out in Chapter 2.  Section 331 then stipulates that the provisions of s 46 apply, <em>mutatis mutandis</em>, to the interpretation of the whole Constitution.</p> <p> </p> <p>[38]      This Court has, in the past, had occasion to consider the status of the objectives set out in Chapter 2 of the Constitution.  It is now accepted that the national objectives are important in interpreting the various provisions of the Constitution and any other laws.  But they are not justiciable. In <em>Zimbabwe Homeless Peoples’ Federation &amp; Ors</em> v <em>Minister of Local Government and National Housing &amp; Others</em> SC 94/20, this court remarked at p 8 of the judgment:-</p> <p>“These provisions are essentially hortatory in nature, given that they are qualified by that they are to be realised “within the limits of the resources available” to the State and the government.  In this sense, they cannot be said to be strictly justiciable and enforceable in themselves. Nevertheless, they are not to be regarded as being entirely superfluous and otiose and therefore devoid of any legal significance whatsoever. They remain interpretively relevant for the purpose of informing and shaping the specific contours of the substantive rights enshrined elsewhere in the Constitution.”    </p> <p> </p> <p>[39]      The question remains whether, on a consideration of ss 28, 47, 48 and 51 of the Constitution, the right to shelter can be inferred.  This is essentially a question of interpretation.  In attempting to interpret whether such a right exists, one must bear in mind the remarks made by the Constitutional Court of South Africa in <em>State v Zuma</em> 1995 (2) SA. 642 (CC) that:</p> <p>“While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single “objective meaning”…. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean.  We must heed Lord Wilberforce’s reminder that even a Constitution is a legal instrument, the language of which must be respected.  If the language by the law giver is ignored in favour of a general resort to values, the result is not interpretation but divination….” </p> <p> </p> <p>[40]      It is the duty of this Court to give full effect to the obligations enshrined in the Constitution. The Constitution says so. However, a court does not itself create rights. It simply interprets the various provisions of the Constitution to ascertain the existence, nature and extent of those rights.</p> <p> </p> <p>[41]      The right to shelter is not provided for anywhere in the Declaration of Rights.  Parliament, in its wisdom, merely made provision for the State and all institutions of government to take reasonable steps and measures, within the limits of the resources available, to actualise access to adequate shelter.  That provision is essentially exhortatory but is one that the State and all institutions of government must bear in mind when formulating or implementing laws and policy decisions of government. Parliament is deemed to have been aware of the various provisions that make up the Constitution. It deliberately came up with founding values and principles. In Chapter 2, it came up with various national objectives that must guide the State and all its institutions in formulating and implementing laws and policy decisions. It also provided that those national objectives must be considered in interpreting the Constitution. Many national objectives have been delineated under Chapter 2.  These include the requirement, under s 28, for the State and all its institutions to do everything possible, within the limits of the available resources, to actualise access to adequate shelter.</p> <p> </p> <p>[42]      Chapter 4 of the Constitution contains the Declaration of Rights.  Under Part 2 of that Chapter, the lawmaker has listed fundamental human rights and freedom. These include the right not to be evicted from one’s home unless this is pursuant to a court order.  Part 3 of Chapter 4 elaborates certain fundamental rights “to ensure greater certainty as to the application of those rights and freedoms”. Part 4 then provides for the enforcement of fundamental human rights and freedoms and Part 5 the limitations of those rights and freedoms.</p> <p> </p> <p>[43]      A number of national objectives captured under Chapter 2 of the Constitution are not part of the fundamental rights and freedoms that are delineated under Chapter 4 of the Constitution. In fact only a few of them are recognised as fundamental human rights. These include the right to education (s 75), right to health care (s 76), right to food and water (s 77), marriage rights (s 78), rights of children (s 81), rights of the elderly (s 82), rights of persons with disabilities (s 83), and rights of veterans of the liberation struggle (s 84). </p> <p> </p> <p>[44]      The Constitution deliberately left out a number of national objectives from the Declaration of Rights. Whilst there is an obligation on the government and its institutions to adopt reasonable measures to actualise these objectives within the limits of the resources available, these cannot be enforced under s 85 as fundamental rights and freedoms. On a holistic consideration of the provisions of the Constitution, the inference is ineluctable that it was never the intention of the lawgiver to make the right to shelter a fundamental right which would be justiciable in terms of s 85.</p> <p> </p> <p>[45]      It is correct that s 47 of the Constitution provides that Chapter 4 does not preclude the existence of other rights and freedoms that may be conferred or recognized by law, to the extent that they are consistent with the Constitution. <em>Iain</em> <em>Currie &amp; Johan De Waal</em>, commenting on a provision in South African similar to our s 47, states:</p> <p>“Section 39(3) simply confirms that the Bill of Rights does not prevent a person from relying on rights conferred by legislation, the common law or customary law.  But since the Bill of Rights is supreme law, such rights may not be inconsistent with the Bill of Rights.</p> <p>For example, if the right to self-incrimination (s 35(3)(j)) is only available to persons accused in criminal proceedings, nothing prevents a person in any other proceedings from relying on his or her common law right against self-incrimination to the extent that the right is available.”</p> <p> </p> <p> </p> <p>[46]      That is all that s 47 says. It simply recognizes other rights that may be bestowed by other laws subsidiary to the Constitution. It does not state, as the appellants would want this court to believe, that these rights automatically become Chapter 4 rights and that they are enforceable as such.  Whilst these rights can be enforced, this would be in terms of the provisions of those laws and not s 85. As Mr. <em>Uriri</em> stated, correctly in my view, the right to shelter the appellants seek to enforce in terms of s 85 of the Constitution is not one in terms of our Declaration of Rights.  I am aware that in terms of s 326 of the Constitution, customary international law is also part of the law of Zimbabwe, unless it is inconsistent with the Constitution or an Act of Parliament. Further, in terms of s 327 of the Constitution, an international treaty which has been concluded by the President has binding effect if approved by Parliament and domesticated. Whilst international conventions may recognize the right to shelter or housing, such right is not, in terms of our Constitution, a fundamental right, capable of being enforced in terms of s 85 of the Constitution of Zimbabwe in favour of adult persons. It is the Constitution, the supreme law of this country itself, which has deliberately left out the right to shelter from the list of fundamental rights delineated under Chapter 4 of the Constitution.</p> <p> </p> <p>[47]      Everything considered therefore, the appellants have not shown that the right to shelter is a fundamental right in terms of our law and that it can be enforced pursuant to the provisions of s 85 of the Constitution in favour of adult persons. The right to shelter is a fundamental right that is accorded to children only, together with their rights to education, health care and nutrition (s 81).  Indeed this was the finding of the Supreme Court in a matter involving the same parties in <em>Zimbabwe Homeless People’s Federation &amp; Ors v The Minister of Local Government and National Housing &amp; Three Ors </em>SC 94/20. In the present matter, it is not the right to shelter for their children that is in issue. Rather the issue is whether the right to shelter under s 28 of the Constitution is a fundamental right and therefore justiciable in respect of persons who are not children. The conclusion by the court <em>a quo</em> that the right to shelter is not a fundamental right was therefore correct.</p> <p> </p> <p><em>WHETHER THE APPELLANTS COULD APPROACH THE COURT IN TERMS OF SECTION 85</em></p> <p>[48]      Section 85 of the Constitution is very clear as to the nature of the rights and freedoms that can be enforced pursuant to its provisions.  It provides:</p> <p>   “85 ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS</p> <ol> <li>Any of the following persons, namely –</li> </ol> <ol> <li>– (e) … (not relevant)</li> </ol> <p>is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.” (Underlining is for emphasis)</p> <p> </p> <p>[49]      The section states in no uncertain terms that an application in terms of that section must allege that a fundamental right or freedom enshrined in that Chapter has been, is being or is likely to be infringed. The corollary to this is that other rights that are not fundamental rights or freedoms can be enforced through other provisions of other laws, but not in terms of s 85.  Indeed the Constitutional Court of Zimbabwe has stressed this position in a number of decisions.  For example in <em>M &amp; Anor</em> v <em>Minister of Justice Legal &amp; Parliamentary Affairs N.O &amp; Others</em> 2016(2) ZLR 45, 55 G-H (CC) the Constitutional Court stated:</p> <p>“Section 85(1) of the Constitution is the cornerstone of the procedural and substantive remedies for effective judicial protection of fundamental rights and freedoms and the enforcement of the constitutional obligation imposed on the State and every institution and agency of government at every level to protect the fundamental rights in the event of proven infringement.</p> <p>…… The fundamental principle is that every fundamental human right or freedom enshrined in Chapter 4 is entitled to a full measure of effective protection under the Constitutional obligation imposed on the State ……….”</p> <p> </p> <p>[50]      Further, in <em>Prosecutor General of Zimbabwe</em> v <em>Telecel Zimbabwe (Pvt) Ltd</em> CCZ 10/15, the court also remarked at p 10 of the judgment:-</p> <p>“What is clearly evident from this provision is that the relief sought and to be granted by the court in terms of this section must relate to fundamental rights and freedoms enshrined in the relevant Chapter, and nothing else…….”</p> <p> </p> <p>[51]      Despite attempts by appellants’ counsel both <em>a quo</em> and in this court to urge this Court to accept that the application before the court <em>a quo</em> was not made in terms of s 85(1) of the Constitution, the papers on record reveal clearly that, in fact, the appellants approached the court <em>a quo</em> in terms of that section. For example, in its founding affidavit, in para 4, the first appellant, as first applicant stated: “The first appllicant thus has a public interest in housing and asserting the right to housing.  It is this same reason, which is the basis of this application by which this application is brought in terms of s 85(1)(d) …. It seeks in this case, to assert the existence of the right to housing for its members thereof”. The second appellant, as second applicant, in para 13 of its founding affidavit also stated: “We thus bring this application, on behalf of our members in terms of s 85(1)(e) of the Constitution of Zimbabwe.” Likewise the third appellant, as third applicant, also stated in para 52 of his founding affidavit: “As a resident of Haydon Farm and a victim of the respondents’ unlawful actions, I bring this action in my own right to protect my interest as defined in s 85(1)(a) of the Constitution of Zimbabwe”.</p> <p> </p> <p>[52]      There thus can be no doubt that the appellants approached the court <em>a quo</em> in terms of s 85(1) of the Constitution. They were alleging a violation of their right to shelter, which is not a fundamental right. In the circumstances, the finding by the court <em>a quo</em> that s 85(1) was not available to them was correct.</p> <p> </p> <p><em>PRINCIPLE OF SUBSIDIARITY</em></p> <p>[53]      It is the settled position of our law that where there exist other remedies, a litigant may not approach a court on a constitutional basis and ignore the remedies at his disposal in order to deal with what he perceives to be an infringement of his rights. The principle of subsidiarity, itself part of the doctrine of avoidance, recognizes that there are many disputes of right or interest which do not give rise to a constitutional matter. In this regard in <em>Moyo v Sgt Chacha</em> &amp; Others CCZ 19/17, the Constitutional Court remarked as follows:</p> <p>“The principle of subsidiarity … states that a litigant who avers that his or her constitutional right has been infringed must rely on legislation enacted to protect that right and may not rely on the underlying constitutional provision directly when bringing action to protect the right, unless he or she wants to attack the constitutional validity or efficacy of the legislation itself.  Norms of greater specificity should be relied upon before resorting to norms of greater abstraction.” </p> <p> </p> <p>[54]      The principle of subsidiarity is particularly apposite in the circumstances of this case. Before the court <em>a quo,</em> the appellants sought the relief of an interdict against unlawful eviction.  The relief of an interdict was available to them even without resort to the Constitution. It was a relief that could have been granted by the Magistrates’ Court or the High Court once the appellants had shown a <em>prima facie</em> or clear right.  Moreover, there was a pending application filed by Leengate in the Magistrates’ Court for their eviction which they could have opposed without them approaching the High Court on a constitutional basis.  The appellants had also filed an ordinary court application under HC 1148/18 seeking to assert the government’s obligation to the realisation of the right to housing under the Constitution, to order the halting of any evictions and for the court to determine whether Leengate had lawfully acquired land through the Council. This matter was apparently pending when the appellants filed the application in the High Court that is the subject of this appeal.  </p> <p> </p> <p>[55]      For this additional reason, the appellants could not have simultaneously moved for relief under s 85 of the Constitution.</p> <p> </p> <p><em>THE ALLEGED FAILURE TO DETERMINE THE MATTER ON THE MERITS</em></p> <p>[56]      Having correctly found that the appellants could not approach the court in terms of s 85 of the Constitution, it became unnecessary for the court to deal with the matter on the merits.</p> <p> </p> <p><em>DISPOSITION</em></p> <p>[57]      The court <em>a quo</em> was correct in finding that there was no fundamental right to shelter in terms of the Constitution of Zimbabwe. It was also correct in finding that the appellants had no standing to institute an application in terms of s 85(1) of the Constitution to enforce such a right. Part of the relief the appellants sought could have been enforced without the need to resort to remedies provided by s 85 of the Constitution.</p> <p> </p> <p>[58]      On the issue of costs, it seems to me that, although this matter has come to this court as an appeal, it essentially seeks to enforce what the appellants may have perceived, albeit wrongly, to be constitutional remedies. Rule 55 of the Constitutional Court Rules, 2016 states that, in general, a no costs order should be awarded in constitutional matters. Given the fact that the appellants may have genuinely believed that they could enforce the right to shelter, I see no reason for departing from this general position.</p> <p> </p> <p>[59]      In the result, it is ordered as follows:</p> <p>“The appeal be and is hereby dismissed with no order as to costs”.</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA    :                       </strong>I agree</p> <p> </p> <p><strong>MATHONSI JA        :</strong>                       I agree</p> <p> </p> <p><em>Tendai Biti Law</em>, appellant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office,</em> first and fourth respondents’ legal practitioners</p> <p><em>Bherebhende Law Chambers</em>, third respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/78/2021-zwsc-78.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=55986">2021-zwsc-78.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/78/2021-zwsc-78.pdf" type="application/pdf; length=514750">2021-zwsc-78.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/housing">Housing</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/heads-argument">Heads of argument</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/effect-failure-file-heads-argument-timeously">effect of failure to file heads of argument timeously</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/time-within-which-heads-argument-be-filed">time within which heads of argument to be filed</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2016/94">Milton Gardens Assoc. &amp; Another v Mvembe &amp; Others (HH 94-16, HC 1236/15) [2016] ZWHHC 94 (03 February 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2020/94">Zimbabwe Homeless People&#039;s Federation &amp; 7 Ors v Minister of Local Government and National Housing &amp; 3 Ors (SC 94-20) [2020] ZWSC 94 (17 July 2020);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 15 Jul 2021 10:29:14 +0000 Sandra 10081 at https://old.zimlii.org Sogolani v The Minister of Primary and Secondary Education & 3 Ors (CCZ 20-20, Constitutional Application No. CCZ 31/16) [2020] ZWCC 20 (28 December 2020); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2020/20 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2020/20/2020-zwcc-20.pdf" type="application/pdf; length=438191">2020-zwcc-20.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/education">EDUCATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/school-rules">School rules</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conscience">Conscience</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/education-0">Education</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/religion">Religion</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2019/10">S v Chokuramba Justice For Children’s Trust Intervening As Amicus Curiae Zimbabwe Lawyers For Human Rights Intervening As Amicus Curiae (CCZ 10/19, Constitutional Application No. CCZ 29/15) [2019] ZWCC 10 (03 April 2019);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2008/4">Diocese of Harare v Church of the Province of Central Africa and Another (Civil Application No. 17/08 ) ((Civil Application No. 17/08 )) [2008] ZWSC 4 (12 February 2008);</a></div></div></div> Mon, 04 Jan 2021 11:34:46 +0000 Sandra 9957 at https://old.zimlii.org Combined Harare Residents Association & Anor v The Minister of Health & Child Care N.O & 3 Ors (HH 642-20, HC 4070/20) [2020] ZWHHC 642 (14 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/642 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>COMBINED HARARE RESIDENTS ASSOCIATION</p> <p>and</p> <p>PASSENGER ASSOCIATION OF ZIMBABWE</p> <p>versus</p> <p>THE MINISTER OF HEALTH AND CHILD CARE N.O</p> <p>and</p> <p>THE MINISTER OF TRANSPORT, COMMUNICATIONS &amp;</p> <p>INFRASTRUCTURE DEVELOPMENT N.O</p> <p>and</p> <p>THE MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS</p> <p>&amp; NATIONAL HOUSING N.O</p> <p>and</p> <p>THE ZIMBABWE UNITED PASSENGER COMPANY LTD</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 5, 6, 13 and 18 August 2020, 4 September &amp; 14 October 2020</p> <p> </p> <p><strong>Urgent Chamber Application for Declaration of Rights in terms of s 85 of the Constitution for an order of invalidity of s 4 (2) of S.I 83/20</strong></p> <p> </p> <p><em>C Damiso</em>, for the applicant</p> <p><em>T Shumba</em>, for the 1st, 2nd &amp; 3rd respondents</p> <p><em>C Kwirira</em>, for the 4th respondent</p> <p> </p> <p>            CHITAPI J: The first applicant is Combined Harare Residents Association. It describes itself as a common law universitas created by and governed by its constitution. The main objective of the first applicant is that it is a public interest group that seeks to promote and protect the rights and interests of Harare residents in several spheres of their lives for their good. The second applicant is described as Passenger Association of Zimbabwe (PAZ) “a voluntary organisation of commuters with a membership of 4000 members.” Nothing further was pleaded about the legal standing and objectives of the second applicant. In regard to <em>locus standi, </em>only the first applicant in para 27 of the founding affidavit pleaded its <em>locus standi </em>in terms of s 85 (1) of the constitution to bring this application in the public interest of its members.</p> <p>            The draft provisional order filed by the applicants read as follows</p> <p>            “<strong>TERMS OF FINAL ORDER SOUGHT</strong></p> <p>            That you show cause why a final order should not be made in the following terms:</p> <ol> <li>The Provisional Order be and is hereby confirmed</li> <li>Section 4 (2) of the Public Health, (COVID-19 Prevention Containment and Treatment) National Lockdown Order, 2020 Statutory Instrument 83/2020 is hereby declared to be an affront of the applicant’s right to life protected under s 48 of the Constitution and the right to health provided under s 76 of the Constitution and therefore null and void.</li> <li>Pending confirmation of the declaration of invalidity by the Constitutional Court, the terms of the interim relief shall remain in force.</li> <li>Respondents shall jointly and severally the other one to be absolved bear the costs of suit.</li> </ol> <p><strong>INTERIM RELIEF SOUGHT</strong></p> <p>Pending confirmation or discharge of this provisional order, the applicant is granted the following interim relief:</p> <ol> <li>The operation of s 42 (2) of the Public Health, 9COVID-19 Prevention, Containment and Treatment) Nat ional Lockdown Order, 2020 Statutory Instrument 83/2020 is hereby suspended</li> <li>The 1st, 2nd, 3rd respondents shall within 3 working days of the issue of this order invite other providers of public transport to offer services subject to conditions imposed by the 1st respondent to implement the rules and protocols on social distancing and sanitation.</li> <li>1st and 3rd respondents shall monitor the implementation of the safety guidelines on the services operated by the 4th respondent and any other operator permitted to offer public transport services during the lockdown.”</li> </ol> <p> </p> <p>A preliminary issue had to be disposed of. The issue was concerned with the <em>locus standi </em>of the applicants to bring this application. It was not clear what the juridical status of the applicants was because no allegation on the legal status of the applicants was pleaded. Counsel agreed that the applicants would provide their constitutions to prove their <em>locus standi</em>. I then made an order that copies of the constitutions of the applicants should be filed of record before or at the resumed hearing. The copies of the constitutions were subsequently filed. Both applicants enjoy juristic standing in terms of their constitutions. It is trite that in any proceedings to be instituted by a juristic <em>persona</em>, the <em>locus standi </em>of the juristic person to sue and be sued should be pleaded and the basis for such <em>locus standi </em>must similarly be pleaded. The position is otherwise different where natural persons are concerned because <em>locus standi</em> exists when the party instituting proceedings has a direct and substantial interest in the subject matter of the litigation and the outcome see <em>Ndhlovu</em> v <em>Marufu</em> HH480/15. Having determined the applicants’ competence to bring this application, I deal with the description of the respondents. The first respondent is the Minster of Health and Child Care sued in his official capacity and administers the Public Health Act, [<em>Chapter 15:09</em>]. The first respondent is the one who passed the Public Health (Covid-19 Prevention Containment and Treatment) National Lockdown Order 2020, Statutory Instrument 83/20, published on 28 March 2020. The Statutory Instrument aforesaid is under focus in this application with applicants challenging the constitutionality of sections of the Statutory Instrument.</p> <p>The second respondent has been described as the Minister of Transport responsible for all matters pertaining to public transport and is insuer of permits and licences for transport operations in Zimbabwe. In fact, the correct citation for the second respondent is that he is the Minister of Transport and Infrastructural Development not just Transport.</p> <p>The third respondent has been described as the Minister of Local Government, Public Works and National Housing and as the Minister responsible for local government issues. I assume that the third respondent was cited <em>ex-abundanta cautela </em>because no relief is sought from him. The third respondent’s correct description is Minister of Local Government and Public Works. It is quite surprising that the applicants and the applicants’ legal practitioners do not know the correct names of government ministries most probably including the names of Ministers who lead the various ministries. It is also a serious indictment on the level of competency of some legal practitioners to properly prepare court proceedings. The errant legal practitioners who prepared the applicants’ papers should learn to be astute and pay attention to detail. Information on Ministers and Ministries which they lead is accessible from the Hansard.</p> <p>The applicants’ case from the founding affidavit is the they make application in terms of s 85 (1) of the Constitution. The applicants do not point to the specific provision of s 85 (1) which they rely upon. In para 29 of the founding affidavit, the deponent to the founding affidavit states—</p> <p>“29.      The fundamental rights of the members of the applicant have been or are likely to be infringed by the conduct of the respondents as detailed below and this application is all about seeking appropriate relief from this honourable court as contemplated in the said s 85 (1).”</p> <p> </p> <p>The applicants aver as is common cause that the world is reeling from the effects of the global pandemic known COVID-19. The World Health Organisation declared COVID-19 a global pandemic on 11 March 2020. It is also common cause that COVID-19 is highly contagious and has devastated societies globally and there is as yet no cure.  The best that the world has resolved to do whilst the scientists work on finding a vaccine and cure for COVID-19 is to arrest or slow its spread. Various measures have been put in place such as social distancing, self-isolation, hygiene and national lockdowns. The key here is for people to adopt measure which insulate them from infecting one another and others. The measures are intended to avoid, minimize and reduce chances of exposure to infection.</p> <p>The applicants aver that on 27 March 2020, His Excellency The President declared a national lockdown following a cue from other countries. The lockdown was for an initial 21 days and only certain categories of people and certain types of enterprises and businesses were excluded from lockdown. The applicants aver as it is common cause that the Presidential Proclamation was followed on 28 March 2020 by the passing of a statutory instrument made in terms of the Public Health Act. The statutory instrument again as it is common cause is the Public Health (COVID-19 Prevention, Containment and Treatment) National Lockdown Order, 2020 S.I 83/2020. The applicants have taken issue with s 4 (2) of the regulation which s they consider to be, if I may use the wording they have used in the draft of the final order sought as per the draft provisional order—</p> <p>“... and affront of the applicants’ right to life protected under 48 of the of the Constitution and the right to health under s 76 of the Constitution and therefore null and void.”</p> <p> </p> <p>There is again confusion in the applicant’s papers in that whilst the founding affidavit of the first applicant specifies that the applicants’ issue is with s 4 (2) (a) of the statutory instrument as to its constitutionality, the draft provisional order filed with the application prays for a declaration of the whole of s 4 (2) of the statutory instrument as null and void on the return date. In the interim relief, the provisional order seeks an order suspending the operation of the whole of s 4 (2) and consequential relief. It is common cause that s (4) subsection (2) of the Statutory Instrument also contain paras (a) to (c) and if s 4 (2) as aforesaid were to be declared null and void on the return date and suspended in the interim, the whole of s 4 subsection 2 would be rendered nugatory. Where there is a conflict between the founding affidavit and the draft order, whether the draft is in an urgent or ordinary application, the court relies on the founding affidavit because the affidavit acts as both the pleadings and the evidence. See <em>Nashe Family</em> <em>Trust</em> v <em>Chiwara &amp; Ors</em> HH 476/18 and <em>Bushu</em> v <em>GMB</em> HH 326/17.</p> <p>A draft order is not binding on the court or judge. In urgent applications, r 246 (2) of the High Court Rules provides that, where a <em>prima facie</em> case is established upon a consideration of the application, the judge shall grant the provisional order on the terms prayed for by the applicant or as varied. The draft order is just a draft that gives indication on what the applicant desires. The appropriate order to grant is a function of the judge to formulate and issue. It is however, apposite to emphasize that when counsel prepare draft orders they should be meticulous in doing so. It is after all, the order sought, which informs the decision to litigate.</p> <p>Section 4 (2) (a) of the Statutory Instruments provides as follows—</p> <p>“2        Transport services whether intracity or intercity, for the carriage of passengers shall be restricted to those provided by—</p> <ol> <li>the parastatal company known as the Zimbabwe United Passenger Company (ZUPCO).”</li> </ol> <p> </p> <p>The purport of the section is to grant a monopoly to ZUPCO to provide public transport services during lockdown or for the period of operation of the statutory instrument. Although the applicants do not advert to this common cause position, the ZUPCO monopoly has since been relaxed to allow the participation of other transport providers provided however, that they do so under the auspices of ZUPCO. The idea of allowing them to operate under the ZUPCO umbrella is to ensure order and for only registered and certified public transport vehicles to be allowed on the roads. Requiring the vehicles to operate under ZUPCO is meant to ensure that COVID regulations are observed rather than allow for a free for all.</p> <p>The applicants’ cause to seek the declaration of nullity of s 4 (2) (a) aforesaid arises from the following facts as averred by them. They aver that following the relaxation of the regulations on 4 May 2020,</p> <p>“... it has been observed that (sic) number of people moving around in violation of the lockdown rules have increased. This has seen an increase in the volume of commuters and with that a concomitant increase in the demand for for public transport”</p> <p>            In para(s) 40 and 41 of the founding affidavit, the deponent stated as follows:</p> <p>            “40.      The fourth respondent has not been able to cope with the demand. Results of fourth</p> <p>respondent’s failure to cope are:</p> <p> </p> <ol> <li>The ever lengthening queues at bus termini across the country. Commuters are spending inordinate amounts of time waiting for transport in situations where the rules on social distancing are not consistently observed.  </li> <li>Failure to observe the seating arrangements for optional social distancing.</li> </ol> <p> </p> <p>41.       It is clear that while the original intention behind limiting public transport services to those provided by the fourth respondent was to curb the spread of the corona virus by ensuring that these services would be provided only by a service provider who was deemed most likely to enforce the sanitary rules, this measure has backfired and the consequences of not revising this position as a matter of urgency can be devastating.”  </p> <p> </p> <p>The applicants aver that after receiving complaints from their members, they wrote a</p> <p>letter to the fourth respondent ZUPCO bringing to its attention instances of the fourth respondent’s failure to comply with COVID-19 guidelines and health protocols on its buses. The contents of the letter dated 30 June, 2020 were as follows:</p> <p>“The combined Residents Association (PAZ) would like to bring to your attention that public transportation (buses and combis) has become a potential area of risking residents of contracting or spreading he COVID-19 due to the following reasons:</p> <p> </p> <ol> <li>The introduction of occupation of all seats by passengers in buses and your combis carrying 17 passengers flouting the 1 metre physical guideline with some buses carrying standing passengers.</li> </ol> <p> </p> <ol> <li>Overcrowding of passengers at bus termini due to shortage or unavailability of buses or kombis.</li> </ol> <p> </p> <ol> <li>Non disinfection of buses and kombis soon after completing trips.</li> </ol> <p> </p> <p>In terms of respecting the right to health and the right to life we call upon you to take necessary measures in addressing the issues alluded above. We also call upon you to e consistent in the provision of buses following time tables and increase the fleet of your buses since you are operating as a monopoly.</p> <p> </p> <p>We await to hear your response on steps you intend to take in order to address issues we raised above in reasonable time.”</p> <p> </p> <p>The fourth respondent responded to the letter on 6 July 2020 as follows:</p> <p>“Reference is made to your letter dated 30 June, 2020 where you highlighted potential areas of risk regarding the spread of COVID-19 as a result of using public transportation.</p> <p> </p> <ol> <li><strong>Occupation of all seats by passengers and omnibuses </strong></li> </ol> <p>The introduction of occupation on all seats in buses and omnibuses from the previously used social distance of one metre was as a result of the need to increase capacity to carry our travelling passengers. However, over buses are carrying seated passengers only, they are no standing passengers at all. Each bus has been equipped with a thermometer and hand d sanitizer to enable the screening of high temperature cases and sanitization of hands before entry into our buses and omnibuses.</p> <p> </p> <ol> <li><strong>Overcrowding of Passengers at Bus Termini </strong></li> </ol> <p>We take note of your point and we will add more buses and omnibuses to ensure that there is no overcrowding at the bus termini.</p> <p> </p> <ol> <li><strong>Non-Disinfection of Buses and Omnibuses</strong></li> </ol> <p>We would like to notify you that our buses are actually disinfected twice a day. Before deployment in the morning as well as in the afternoon when they come for re-fuelling.</p> <p> </p> <p>We thank you very much for your contribution towards the noble cause of providing safe and affordable transport to the travelling public in Zimbabwe.”</p> <p> </p> <p>            It will be apparent from the exchange of correspondence as quoted above that the applicant’s concerns were directed at the shortcomings of the fourth respondent in the discharge of its mandate given in s 4 (2) (a) of S.I 83/2020.  </p> <p>            In para 43 of the founding affidavit, the applicants averred that the fourth respondent had not lived to its promise in that it did not increase the number of buses and omnibuses to avoid overcrowding. The situation thus remained unabated. In para 44 of the founding affidavit, the following is stated:</p> <p> </p> <p>“44.     Although in its letter fourth respondent insists that it is complying with all the other COVID-19 guidelines, and protocols aboard its buses, this is disputed by the commuters and they have deposed supporting affidavits which narrate the ordeals they are facing daily.”</p> <p> </p> <p>In regard to supporting affidavits referred to in the founding affidavit, there is one by</p> <p>Roda Ben who stays in Glen Norah A. high density suburb of Harare. She deposed that there are insufficient buses serving Glen Norah A and to use her words …” … passengers end up crowding at the bus terminuses waiting for the unreliable ZUPCO buses. There are very few buses leaving women having to push with vigor in order to gain access into the bus.”    </p> <p>            The deponent further averred that the shortage of busses had resulted in the emergence of illegal transport operators who do not comply with COVID 19 guidelines hence, exposing the travelling public to risk infection with the COVID 19 virus. She also complained that there are no temperature checks nor sanitization done as one boards the bus. She further bemoaned that being a woman, the awkward times (which she did not state) that she boards the bus, exposed her to ‘sexual violence, nagging and gender based violence in the home” (own underlining. I should comment that the supporting affidavit is so generalized as not to be capable of acting as evidence of the experience that the deponent commuter experienced. The affidavit contains theory on risks which can befall any commuter even where guidelines are not implemented. I was not able to appreciate what her specific experience was, where and when. She does not even place herself in the category of an essential service worker who should be commuting. Again the filing of the generalized affidavit speaks to the ineptitude of the applicants’ legal practitioner in failing to ensure that the supporting affidavit achieves the intended purpose.</p> <p>            Paragraphs 7 and 8 of the supporting affidavits needs restating. The deponent deposed as follows:</p> <p>“7.       It is my plea that the government of Zimbabwe take action in ensuring that ZUPCO fully follows the COVID-19 Guidelines and Protocols such as the compulsory wearing of masks in the bus and maintaining physical distancing as people in the bus by reducing the number of passengers being carried.</p> <p> </p> <p>8.         Moreover, ZUPCO must provide more buses that ferry residents to Glen Norah A, the ZUPCO personnel should have thermometers for checking temperature to minimize the spread of COVID-19.”</p> <p> </p> <p>It is apposite to note that the deponent to the supporting affidavit did not advocate for</p> <p>the suspension of the operation of s 4 (2)(a) of S.I. in the interim nor its striking down as unconstitutional on the return date. The deponent simply bemoans the scarcity of buses and the non-observance of COVID-19 guidelines by the fourth respondent. Her plea is that the government should take steps to ensure that there is compliance by fourth respondent with COVID-19 guidelines and protocals so that the spread of the virus is minimized. To this extent therefore, the supporting affidavit does not support the part of the relief which seeks a suspension of the operation of s 4 (2)(a) of S.I 83/20. </p> <p>            Another supporting affidavit was deposed to by David Sibanda who resides in Kambuzuma Section 2, High density suburb, Harare. Again, the deponent does not place himself within the class of people who are exempted from staying at home during lockdown because the S.I 83/20 excuses essential services and employees and other persons concerned therewith from staying at home. He averred that there is one ZUPCO has which services ss 1 and 2, Kambuzuma. He deposed that two other buses that ply the same route will be from Joshua Nqabuko area. He complained that the buses are very few and cannot cope with “people in need of transport in Kambuzuma considering that Kambuzuma has an estimated population of 15000 people. The deponent further alluded to congestion of commuters at bus termini especially at Seke ZUPCO rank hence increasing the spread COVID 19 virus. Further he deposed to the failure by ZUPCO to check commuters for temperatures and to provide sanitization. The deponent also pointed out to the failure by ZUPCO to ensure safe spacing of passengers on the buses. Again the affidavit is too generalized. I make the same comments I did in regard to the supporting affidavit of Roda Ben as regards the inadequacy of the affidavit.</p> <p>            Notwithstanding the inadequacy of the supporting affidavit of David Sibanda as aforesaid, I took note of para 7 of the affidavit wherein the deponent deposed as follows:</p> <p>“7.        I call upon the government to ensure that ZUPCO complies to social distancing guidelines in the sitting arrangement in the buses and provide more buses to Kambuzuma in order to decongest bus terminuses.”</p> <p> </p> <p>I again make the same observations and comment I made in regard to the supporting</p> <p>affidavit of Roda Ben that the deponent does not move for the suspension of the operation of s 4 (2) (a) of S.I 83/2020 nor its striking off as invalid on the return date. The supporting affidavit advocates for government intervention to ensure that the COVID-19 guidelines and protocals are observed as well as to ensure the provisions of more buses to service the Kambuzuma route. </p> <p>            Everyjoy Kuvarega deposed to a supporting affidavit. She stays in Eastview 2 Kambuzuma. Again she does not categorize herself as a person authorised to commute into the City or whether she is in the essential services. She makes a general complaint on the inadequacy of ZUPCO buses which leads to crowding at bus termini and her being squeezed and shoved by male commuters upon the arrival of a bus. The deponent would be violated of her right to dignity by the squeezing and shoving aforesaid. She also complained that ZUPCO did not carry out temperature checks for buses who board the buses. Despite the generality of the supporting affidavit, paras 7 and 8 of the affidavit are apposite. They read as follows:</p> <p>            “7.        I plead with the government to take action in ensuring compliance to COVID-19                          Guidelines and Protocols in ZUPCO buses in particular wearing of masks in the bus                and maintenance of physical distancing arrangements by reducing the number of                          passengers being carried.</p> <p>            8.         Furthermore, ZUPCO should allocate more buses to Caledonia and the conductors must               have thermometers for temperature check in order to minimize the spread of COVID-            19”</p> <p> </p> <p>            Edward Gramu stays in Mabvuku. He deposed to a supporting affidavit. He also complained in general terms as with the other deponents hereinbefore                                                                                                                                                                           that ZUPCO buses are inadequate and no social distancing is observed. He also averred that hand sanitizers sometimes run out and ZUPCO bus conductors allow commuters to board the buses without hand sanitization having been done. Again despite the generalized nature of the affidavit, I took note of the intervention which he seeks which is neither the suspension of the operation of s 4 (2) (a) of S.I 83/2020 nor the declaration of its unconstitutionality on the return date. I restate paras 9 and 10 of the supporting affidavit as follows:</p> <p>            “9.       Whilst the ZUPCO buses were provided to help prevent the spread of COVID -19, the                 same buses have become potential hotspots for contraction and spread of COVID -19                 due to factors mentioned above.</p> <p>            10.       We therefore plead to the government to provide more buses; which will reduce length                 of queues, time spent in a queue as well as allow for passengers to practice social                distancing in the bus by reducing number of people ferried at a time.”</p> <p> </p> <p>            The deponent does not therefore advocate for the suspension of the operation of s 4 (2) (a) in the interim and its striking it off the statute book as unconstitutional on the return date. The deponent pleads instead for government intervention to ensure compliance by the fourth respondent of COVID-19 guidelines and to also ensure increased bus numbers.</p> <p>            Lastly Alice Kasinamunda also deposed to a supporting affidavit. She resides in Dzivarasekwa. She did not state whether or not she is excluded from home lockdown or whether she is in essential services. She however deposed that she uses a ZUPCO bus daily. She complained that the bus carries commuters to full capacity without observance of social distancing protocols. She also deposed that ZUPCO conductors do not sanitize every commuter awaiting to board a bus at the terminus. She complained of congestion at bus terminuses and no temperature checks. She stated as follows in paras 6, 7 and 8 of the supporting affidavit</p> <p>            “6.        Public transportation by ZUPCO in particular the buses has become a possible area of                  areas (sic) of contracting COVID-19 due to the issues raised above.</p> <p>            7.         I plead with the ZUPCO to increase its bus fleet in order to cope with the high number                 of passengers in need of public transport since they are the sole provider of commuter               public transportation</p> <p>            8.         I further call upon the government of Zimbabwe to provide marshals to ensure                             enforcement of wearing masks at bus terminuses, while the ZUPCO conductor MUST             regularly monitor wearing of masks in the buses.”</p> <p> </p> <p>            As already observed in regard to other supporting affidavits, the deponent to the affidavit in this case prays for interventionist measure to ensure observance with COVID guidelines and protocols and not for the staying of the operation of s 4 (2) (a) of S.I. 83/2020 nor the striking down of the provision as unconstitutional on the return date.</p> <p>            The applicants aver that contrary to the provisions of s 134 (b) of the constitution which provides that a statutory instrument must not infringe or limit the rights and freedoms set out in the declaration of rights, s 4 (2) (a) of S.I 83/2020 by limiting public transport services under the current circumstances and environment the effect thereof is to infringe some rights protected under the constitution. The rights which the applicants allege to have been infringed are firstly, the right to life which is protected by s 48 of the constitution. The second right allegedly violated is the right to health care.</p> <p>            In regard to the right to life the applicants averred that a failure by first respondent to implement measures prayed for would result in a failure to protect and promote the right to life of Harare residents. It was averred that the continued use of limited services offered by ZUPCO would in all probability lead to a failure to observe COVID-19 guidelines on disinfecting buses, hence, commuters would be at risk of contracting the COVID-19 virus, fall sick and lose their lives.</p> <p>            In regard to infringement of the right to health care the applicants averred that the right implied that health care services should meet criteria of accessibility, availability and of good quality. It was averred that with developed and technologically advanced countries like “USA, Italy and Spain” struggling with COVID-19, Zimbabwe’s “ailing” health care system could not cope if a fully blown epidemic hits Zimbabwe. It was thus reasoned that Zimbabwe should concentrate on prevention rather than treatment. The argument was then that the transport system as described by the applicants had the effect of risking commuters to catch COVID 19 rather than to prevent possible infection. I agree that prevention is better than cure even for the named developed countries and in fact for any country. It is a matter of simple logic and common sense to reason that the best defence to any transmissible or communicable disease is to avoid exposure to possible infection.</p> <p>            The respondents have opposed the application. The first respondent being the Minister responsible for the administration of the Public Health Act and the authority that passed S I 83/20 averred as follows in para 38 of the opposing affidavit deposed by the Chief Director of Curative Services, Doctor Maxwell Mareza Hove, duly authorised:</p> <p>            “Applicants contend that section 4 (2) (a) of S.I 83/2020 restricts public transport services for       commuters, other than public servants to those provided by the fourth respondent. This is denied            because any transporter with suitable transport in terms of the law is allowed to obtain a ZUPCO             franchise and provide public transport for commuters.”</p> <p> </p> <p>            The first respondent agreed that the relaxation of the regulations decreed on 4 May 2020 resulted in an increase in the volume of commuters and a concomitant increase in the demand for public transport. First respondent disagreed with the applicant’s contention that violators of COVID regulations had to be assisted by the state in regard to providing transport for them. I must observe that the COVID regulations order that persons not authorized under the regulations to move about during lockdown should stay at home. It is a criminal offence to break the COVID regulations. The government in my view can only control criminal elements by a more sustained presence to monitor the situation and control unnecessary movement and to arrest the violators. The first respondent averred further that the unlawful commuters needed to follows the rules of infection prevention and that this was the solution to containing the increased risk of contamination caused by increased commuters breaking COVID regulations. The first respondent also averred that the intention in limiting public transportation had not backfired contrary to the applicant’s assertions to that effect. The first respondent noted that His Excellency, The President had pronounced more restrictions which included the imposition of a 6 am – 6 pm curfew and other measures. The first respondent argued that the application had been overtaken by events because the tightening of lockdown regulations was intended to reduce the number of people who violated the lockdown regulations and caused unnecessary demands and caused a strain in public transport provision.</p> <p>            The first respondent submitted his conclusions on the application as follows as appears from paras 9 and 10 of the opposing affidavit:</p> <p>            “9.        The applicants are failing to understand that it is not s 4 (2) of statutory instrument                       83/2020 that is in violation of the commuting public’s right to life but it is the people               who are violating the lockdown rules and causing unnecessary increase in demand for                  transport. The solution is for the people to comply with lockdown regulations by                             staying at home and stop community spreading of the virus.</p> <p>            10.       In the circumstances no good cause has been made for the Minister of Health and Child                care to amend s 4 (2) (a) of statutory instrument 83/2020. The unlawful                                              commuters should stay at home and stop spreading of the virus.”</p> <p> </p> <p>            The second respondent Minister Joel Biggie Matiza deposed to the opposing affidavit in person. He averred that his Ministry’s mandate was to issue operating licences for public transport operators who carry goods and passengers in terms of the provisions of the Road Motor Transportation Act [<em>Chapter 13:15</em>]. In addition to issuing permits as aforesaid, the Ministry had the mandate and authority to impound unroadworthy vehicles and to demand production of documents of authority to operate the public service vehicle. The Minister further averred that the enforcement of the COVID-19 regulations was a function of the first respondent through the police. The Minister averred that the applicants had failed to show cause why he had been cited inasmuch he has not committed any act which violated his legal mandates as determined and mandated by the laws in the acts and subsidiary legislation which he administers. The Minister’s position is clear. The court cannot sanction the Minister unless he has acted against the law. Equally the court cannot order that the Minister acts in a particular manner unless it is shown that the Minister was obliged to act in a certain manner and has not done so. No case was made by the applicants against the Minister as second respondent to warrant the court to issue any order against him. The interim relief sought that the second respondent should together with first and second respondent “invite other providers of public transport to offer services subject to conditions imposed by the first respondent to implement the rules and protocols on social distancing and sanitation” is vague and lacks legal grounding. In the first instance, there has to be a legal duty on the second respondent to invite public transporters to provide their services. Public administration is achieved through the rule of law. The applicants did not plead the legal basis for the second respondent to make invitations to public transporters to offer services, COVID-19 or no COVID-19. There is no doubt that the decision to cite the second respondent was ill-advised especially so as he was not cited as just an interested party but as a respondent against whom a specific order was sought, such order being incompetent to grant.</p> <p>            As regards the third respondent it filed an affidavit deposed to by its Minister, Mr July Moyo. The Minister averred that the Ministry had advised the fourth respondent as the legally mandated public transporter of commuters to increase its fleet to meet demand. The Minister averred that the fourth respondent had complied with the advice to increase its transport fleet. The Minister averred further that S.I 83/20 interpreted social distancing as keeping a metre or more apart from the next person. The duty to uphold the social distance rule is the responsibility of every citizen according to the Minister. At the same time, the minister averred that the fourth respondent only had to ensure that social distance was maintained on its buses. The fourth respondent was not an enforcement authority. The Minster also reiterated that a window had been opened for the interested public operators to operate under the auspices of the fourth respondent with government subsidizing fuel. The Minister also noted that the supporting affidavits filed did not indicate the number of passengers ferried by the fourth respondent.</p> <p>            The Minister bemoaned the fact that other operators had not registered with the fourth respondent. The need to register with fourth respondent would ensure that the number of buses would be increased for deployment as the need arise. More importantly the fourth respondent would ensure mandatory disinfection of the buses and kombis registered with it and the maintenance and monitoring of the buses and kombis for social distance compliance. The Minister also noted that S.I. 77/20 gave the first respondent power to come up with measures which the Minister deemed necessary to prevent, contain and treat COVID-19.</p> <p>            Lastly, the third respondent noted that efforts to implement measures to curb COVID- 19 spread were in place like disinfection, insisting on wearing of face masks in buses and kombis and keeping social distance. The COVID-19 outbreak was according to the Minister, still a threat and it was logical to operationalize S.I 77/20 through passage of S.I. 83/20. In paragraph 17 of the opposing affidavit, the Minister deposed as follows:</p> <p>“17. The decision to allow fourth respondent to be the only service provider was taken given the circumstances of the declaration of COVID -19 as a formidable epidemic disease in terms of section 3 of S.I 77/20. This decision was also in the public interest with regard to mitigation and control of the spread of COVID-19 taking into account that most kombi operators especially those that are not registered have a clear track record of not complying with the stipulated passenger lead and that compliance with the current 50% capacity loading would virtually render the non-subsidized private kombis non-viable.”</p> <p> </p> <p>As regard the fourth respondent, Mr <em>Kwirira</em>, its legal practitioner indicated that the fourth respondent would abide the decision of the court.</p> <p>            An in depth analysis of the application and the parties’ arguments show that the applicants are concerned with the continued in force of s 4 (2) (a) of S.I 83/20. Their grounds for seeking its declaration as unconstitutional are that its provisions infringe on the applicant’s rights as protected in the Declaration of Rights under the Constitution. In particular, the applicants aver that the provisions aforesaid infringe the applicants’ rights to life which right is protected under section 48 of the Constitution and the right to health care as provided in section 76 of the same Constitution. The above is the main relief to be sought for which interim relief suspending the provisions under attack is prayed for on an urgent basis.</p> <p>            On the merits, the applicants have not impugned the Constitutionality of s 4 (2) of S.I 83/20. By their own admission the applicants aver that the provisions of the section in their application have been overtaken by events in that the partial relaxations of the COVID-19 restrictions have seen an increase in the number of commuters thereby straining the fourth respondent’s capacity to safely carry the commuters without exposing them to the risk of contracting COVID-19. The applicants in essence seeks that the court should strike out a valid law for expediency and further order the relevant Minister (first respondent) to invite other transport operators to offer services “subject to conditions imposed by the first respondent to implement the rules and protocols as social distancing and sanitation.” I do not intend to debate the question regarding the powers of the court to order the legislature and executive to exercise their functions in relation to a particular law in a particular manner. This is so because the application can be and will be determined without the need to interrogate that issue of law.</p> <p>            For the purposes of the interim relief which I must determine, the applicant’s papers must establish a <em>prima facie</em> case before the relief claimed can be granted as an interim order. The applicants did not establish such a <em>prima facie</em> case to warrant the relief claimed. Firstly, S.I. 83/20 and in particular s 4 (2) thereof are not unconstitutional. Indeed, s 4 (2) as alluded to by the third respondent, Minister July Moyo, rather than violate the applicants right to life and health actually protects the right to life and is in the public interest. It is accepted that the first respondent has authorized other public transporter to offer their services albeit under the fourth respondent’s franchise for accountability and supervision of compliance with lock down regulations. I also agree with the Ministers deposition in the founding affidavit to the effect that were unregistered buses and kombis to operate, the right to life would in fact be under treat. In this respect I properly take judicial notice of the rowdy manner in which kombis in particular operate without control. The drivers pick up passengers from anywhere and they drive dangerously whilst playing cat and mouse games with police and local authority traffic control officials seeking to clamp kombis haphazardly parked. It is noted that the applicants seek an order that the first, second and third respondents should invite other transport operators to operate on conditions imposed by the first respondent. This is what has been done. The other public operators have been invited to register with fourth respondent and operate under its auspices. For reasons discussed that there is need to keep a check on other transport operations, hence they should operate under ZUPCO. I therefore determine that the applicants are asking for interim relief which is already in place. The condition imposed that other operators may register with and operate under ZUPCO is eminently meritorious and reasonable.</p> <p>            The applicants have also sought an interim order that first and third respondents should monitor the implementation of safety guide lines on services operated by the fourth respondent and other operators who offer public transport services. S.I 83/20 as read with the principal</p> <p>S.I 77/20 has the force of law and provides for criminal sanctions against violators of the lockdown regulations. The enforcement of Criminal Law is the responsibility of the Minister of Home Affairs and Culture as the Minister responsible for the administration of the Police Act. The applicants would have been advised to join the Home Affairs and Culture and the Commissioner of Police so that they make submission on the applicants’ complainants which in essence are matters of a failure to enforce regulations which are otherwise in the public interest in content and aims.</p> <p>            In relation to suspending s 4 (2) of S.I 83/20, there are no reasonable grounds established to warrant the granting of such a drastic measure which amounts to a blatant interference with executive function. In this regard, the decision of the Supreme Court in <em>PF-ZAPU</em> v <em>Minister of Justice</em> 1985 (2) ZLR 305 (SC) come to mind. It was held in that case that the exercise of the executive prerogative was reviewable by the court. In this application however, the argument is not about reviewing an executive prerogative. The applicants are asking the court to strike out in the main and to suspend in the interim a valid law on the basis that the law has ceased to serve its purpose. The court does not have jurisdiction to suspend the operation of a law on the basis that a person perceives it as being inadequate to serve the intended purpose. The judiciary cannot legislate for the executive unless there is a lacuna in the law to deal with a specific problem which existing laws do not cater for. The court can strike out an ultra vires or inconsistent law with the constitution to the extent of the inconsistency. The court cannot amend or suspend the operation of a valid law. See <em>Registrar General of Elections</em> v <em>Combine Harare Residents Association and Samudzimu</em> SC 7/02.</p> <p>            <em>In casu</em>, s 4 (2) of S.I 82/20 is neither ultra vires the Constitution nor inconsistent with the same. There is nothing in its making which grounds any ground for review. The fact that it may not be effective to remedy a problem which has arisen does not clothe the court with power to set it aside or suspend its operation. I am doubtful as well that a court can suspend the operation of a valid legislation on a <em>prima facie</em> standard of proof. I do not find any merit in this application. Whilst the observations made by the deponents to the supporting affidavits of the applicants may be true, the same deponents are concerned with the need for strict enforcement of the social distance aspect of the COVID-19 guidelines and not the constitutionality or effectiveness of S.I. 83/20 itself. It can safely be stated that whilst the applicants advocate for striking down and a suspensions of the operation of s 4 (2) as aforesaid, the directly affected persons who deposed to affidavits explaining the situation on the ground do not find anything unconstitutional with the regulation at play. Further in all the circumstances of this case there has not been established a basis on a <em>prima facie</em> standard for the grant of the relief sought in the interim.</p> <p>            The issue of costs arising is the last issue for consideration. Having found no merit in the application and hence determined to dismiss it, it means that the applicants are the losers and the respondents the winners. The first, second and third respondents have prayed for an order of costs. The grant of costs and the level thereof is in the discretion of the court. In this case, the applicants have not abused the court process nor cited the three Ministers in vain. The Minister’s attention has been drawn to some areas of transport operations which require to be tightened up and enforced with more strictness. COVID-19 epidemic is a life killer. It sends a shiver down the spine of the citizenry. It is better to remain astute, apprehensive and on guard to avoid or minimize the risk of infection. The court can easily understand the panic in the minds of the citizenry. I do not consider that a costs order is merited given the fact that the applicant’s cause of action concerns an alleged constitutional rights infringement on a matter involving an epidemic which has affected the globe. This application though unsuccessful invites the executive to remain on its toes to check on COVID spread. The applicants did not abuse the court process.</p> <p>            Therefore, all having been said, the following order is made:</p> <p>            “That the application be and is hereby dismissed with no order as to costs.”</p> <p><em>Women and Law in Southern Africa (WLSA),</em> applicants’ legal practitioners</p> <p><em>Civil Division (Attorney General’s Office)</em>, 1st – 3rd respondents’ legal practitioners</p> <p> </p> <p>  </p> <p> </p> <p>            </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/642/2020-zwhhc-642.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=39450">2020-zwhhc-642.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/642/2020-zwhhc-642.pdf" type="application/pdf; length=245507">2020-zwhhc-642.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/associations">ASSOCIATIONS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/health">Health</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/480">Ndlovu v Marufu (HC 7886/14) [2015] ZWHHC 480 (26 May 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2017/326">Bushu v GMB &amp; Others (HH 326-17 HC 6765/14) [2017] ZWHHC 326 (25 May 2017);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2002/7">Registrar General of Elections v Combined Harare Residents Association and Another ((22/02, 27/02) ) [2002] ZWSC 7 (07 February 2002);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/si/2020/83">Statutory Instrument 83 of 2020, Public Health (Covid -19 </a></div></div></div> Tue, 20 Oct 2020 11:15:41 +0000 Sandra 9881 at https://old.zimlii.org Zimbabwe Homeless People's Federation & 7 Ors v Minister of Local Government and National Housing & 3 Ors (SC 94-20) [2020] ZWSC 94 (17 July 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/94 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p><strong>REPORTABLE                    (83)</strong></p> <p> </p> <p> </p> <p> </p> <ol> <li> </li> <li> </li> </ol> <p><strong>v</strong></p> <ol> <li> </li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>PATEL JA, MAVANGIRA JA &amp; MATHONSI JA</strong></p> <p><strong>HARARE, 19 MARCH &amp; 17 JULY 2020</strong></p> <p> </p> <p> </p> <p><em>T. Biti</em>, for the appellants</p> <p><em>V. Munyoro</em>, for the 1st &amp; 4th respondents</p> <p><em>T. Runganga</em>, for the 2nd respondent</p> <p>No appearance for the 3rd respondent</p> <p> </p> <p><strong>PATEL JA:</strong>                    This is an appeal against the judgment of the High Court dismissing an application by the appellants for a declaratory order and consequential relief pertaining to various fundamental rights, in particular, the right of children to shelter. The application was dismissed with no order as to costs.</p> <p> </p> <p>The first appellant is an association of homeless people with public interest in the right to housing. The second and sixth appellants are members of the first appellant and brought the application <em>a quo</em> on behalf of their minor children, <em>i.e.</em> the third, fourth, fifth, seventh and eighth appellants. For ease of reference, the association, its members and their minor children will all be collectively referred to as “the appellants”.</p> <p> </p> <p>The first respondent is the Minister of Local Government and National Housing, responsible for housing and the administration of local authorities. The second respondent is Zvimba Rural District Council, the local authority wherein a peri-urban area called Haydon Farm is located. The third respondent is a housing development contractor, which acquired the right to develop the said farm. The fourth respondent is the Ministry of Lands, Land Reform and Rural Resettlement, which was cited as the acquiring authority of the farm.</p> <p> </p> <p>It is common cause that the appellants settled on Haydon Farm in the year 2000, constructed permanent houses and commenced farming activities on the farm. In 2005 the fourth respondent acquired the farm and designated it as urban land under the jurisdiction of the first respondent. Part of the land was allocated to the City of Harare and certain other parts to the second and third respondents. A low density suburb is currently sprouting on the farm.</p> <p> </p> <p>The appellants’ residential structures were demolished in 2005. They now live in cabins and shacks and are prohibited from constructing permanent structures. They were then given notice to vacate the farm so as to enable the third respondent to carry out the construction of houses thereon. It is not in dispute that the appellants have no alternative accommodation and that their children attend a school within the area.</p> <p> </p> <p>Judgment of the High Court</p> <p>The court <em>a quo</em> found that the right to shelter under s 28 of the Constitution is subject to the availability of State resources and that the State must take reasonable measures within the limits of available resources to enable citizens to have adequate shelter. The State is only obliged to provide for the progressive realisation of the right to shelter. Section 28 does not create any right to shelter but only sets out a national objective which is not enforceable.</p> <p> </p> <p>As regards s 19 of the Constitution, the court took the view that this provision merely prescribes national aspirations pertaining to the rights of children. This provision is also qualified by the availability of resources. The State must put in place policies and measures to ensure that the interests of children are paramount. However, the primary obligation lies on parents to properly care for their children. This provision does not create any enforceable rights. The State is only responsible for those children who have been removed from their family environment.</p> <p> </p> <p>Turning to s 81 of the Constitution, the court held that this provision did not create any absolute, independent and justiciable right to shelter for children. There was no primary obligation on the State to provide shelter for children in the care of their parents. The State was only obliged to take measures within its available resources to ensure the progressive realisation of the right to shelter. It is the parents who have the primary obligation to ensure that their children have adequate shelter. In the instant case, the children in question were not in State care and had not been removed from their parents.</p> <p> </p> <p>With respect to Haydon Farm, the court observed that the appellants’ stay on the land had not been regularised and that the acquiring authority had other plans for the land. Additionally, the appellants could not demand alternative land as a precondition to vacating the farm. The court could not compel the fourth respondent to allocate land to the appellants. This was a function that was purely within the domain of the State. The appellants could not insist on being allocated land within an urban area.</p> <p> </p> <p>According to the court, the conduct of the respondents was in pursuit of the legitimate aim of urban development and expansion of the City in a planned and orderly fashion. There was a pressing social need for urban housing and development. The forced eviction of the appellants and others in their position was for the general public good and was justified. However, to avoid their arbitrary eviction, the appellants must be given the opportunity for genuine consultation and adequate notice of the scheduled eviction in accordance with the due process of law.</p> <p> </p> <p>In the event, the court held that the appellants had failed to show the existence of a clear right for the interdictory relief that they sought. The application was accordingly dismissed with no order as to costs.       </p> <p>Grounds of Appeal and Relief Sought</p> <p>The stated grounds of appeal in this matter are conspicuously repetitive. Shorn of that obvious defect, they relate in essence to the interpretation and application of ss 74 and 81 of the Constitution. Section 74 codifies the freedom from arbitrary eviction, while s 81 enshrines the rights of children.</p> <p> </p> <p>With respect to s 74, the appellants attack the judgment <em>a quo</em> for having failed to protect the appellants from arbitrary eviction without due process and a valid court order. As regards s 81, the appellants asseverate the justiciability and enforceability of the right to shelter in favour of children. The judgment <em>a quo</em> is impugned for having failed to properly consider the scope and extent of the State’s obligations under s 81 insofar as children in parental care are concerned.</p> <p> </p> <p>The relief craved by the appellants is threefold. Firstly, they seek an interdict against the respondents from ejecting the minor appellants from the informal settlement on Haydon Farm. Secondly, they seek a declarator to the effect that the right of children to housing is justiciable and enforceable as an independent right not dependent upon the general right to housing or shelter. Thirdly, the appellants seek substantive relief commanding the first and fourth respondents to allocate serviced stands and construct minimum core houses on the informal settlement presently occupied by the appellants. Alternatively, the first respondent is to be ordered to provide alternative land on which it must allocate residential stands conforming to the same specifications.</p> <p> </p> <p>Right to Shelter under International Law and the Constitution</p> <p>The right to shelter is generally recognised both under international law and municipal law, as a fundamental socio-economic right. The dearth of adequate housing lies at the heart of the myriad deplorable iniquities that bedevil societies generally, not only in developing countries but also in the developed world. As has been observed in several jurisdictions, the courts play a pivotal role in ensuring the eradication of social inequalities and actualising socio-economic rights, thereby promoting and advancing the attainment of social justice. See <em>People’s Union for Democratic Rights &amp; Ors </em>v <em>Union of India &amp; Ors</em> 1983 (1) SCR 456; <em>Soobramoney</em> v <em>Minister of Health (Kwazulu Natal)</em> 1998 (1) SA 765 (CC).</p> <p> </p> <p>In the sphere of international law, there are two key instruments that enshrine the rights of children and the concept of their best interests. The first is the United Nations Convention on the Rights of the Child (1989). The second is the African Charter on the Rights and Welfare of the Child (1990).</p> <p> </p> <p>Article 3(1) of the United Nations Convention stipulates that “the best interests of the child shall be a primary consideration” in all actions concerning children. By virtue of Article 3(2), “State Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing”, taking into account the rights and duties of parents and legal guardians, “and, to this end, shall take appropriate legislative and administrative measures”. These provisions are mirrored and reaffirmed in Article 4 of the African Charter.</p> <p> </p> <p>With respect to the role of parents, Article 27(2) of the United Nations Convention recognises that parents “have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child’s development”. Nevertheless, in terms of Article 27(3), States Parties are also enjoined “in accordance with national conditions and within their means” to “take appropriate measures to assist parents” and “in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing”. To similar effect, Article 20 of the African Charter places the primary obligation to implement children’s rights on parents, but also obligates the State to assist parents in that endeavour, with particular reference to nutrition and housing.</p> <p> </p> <p>Both the United Nations Convention and the African Charter have been ratified by Zimbabwe, the former on 11 September 1990 and the latter on 19 January 1995. Consequently, by dint of s 46(1)(c) of the Constitution, it is incumbent upon our courts to take them into account in interpreting the Declaration of Rights entrenched in Chapter 4 of the Constitution. This is reinforced by s 327(6) of the Constitution which dictates the adoption of any reasonable interpretation of domestic legislation that is consistent with any treaty or convention which is binding on Zimbabwe, in preference to any alternative interpretation that is inconsistent with that treaty or convention.</p> <p> </p> <p>The next question concerns the justiciability and enforceability of the relevant rights dealt with by the court <em>a quo</em> and presently under scrutiny on appeal, <em>i.e.</em> ss 19, 28, 74 and 81 of the Constitution. Sections 19 and 28, which set out national objectives <em>vis-à-vis</em> children and shelter respectively, are located in Chapter 2 of the Constitution. Section 19(2)(b) enjoins the State to “adopt reasonable policies and measures, within the limits of the resources available to it, to ensure that children …….. have shelter and basic nutrition, health care and social services”. Section 28 calls upon the State and the government to “take reasonable legislative and other measures, within the limits of the resources available to them, to enable every person to have access to adequate shelter”.</p> <p> </p> <p>In my view, these provisions are essentially hortatory in nature, given that they are qualified by the condition that they are to be realised “within the limits of the resources available” to the State and the government. In this sense, they cannot be said to be strictly justiciable and enforceable in themselves. Nevertheless, they are not to be regarded as being entirely superfluous and otiose and therefore devoid of any legal significance whatsoever. They remain interpretively relevant for the purpose of informing and shaping the specific contours of the substantive rights enshrined elsewhere in the Constitution. I shall revert to this aspect at a later stage.</p> <p> </p> <p>Chapter 4 of the Constitution sets out the Declaration of Rights, divided into several Parts. Part 1 deals with the application and interpretation of Chapter 4. Part 2 enumerates those rights that are considered to be fundamental rights and freedoms. Part 3 elaborates certain rights and freedoms in relation to their application to particular classes of people. Part 4 provides for the enforcement of fundamental human rights and freedoms, while Part 5 delineates the limitation of those rights and freedoms. The specific provisions that are germane for the purposes of this appeal are ss 74 and 81. Section 74 guarantees the freedom from arbitrary eviction and appears in Part 2 under the rubric of fundamental human rights and freedoms. Section 81 spells out the rights of children and appears in Part 3 relative to the elaboration of certain rights.</p> <p> </p> <p>Mr <em>Biti</em>, for the appellants, submits that the rights accorded by ss 74 and 81 are justiciable and enforceable. He relies in this respect on s 44 of the Constitution which sets out the duty of the State, every person and the government at every level to “respect, protect, promote and fulfil the rights and freedoms set out in [Chapter 4]”.</p> <p> </p> <p>Ms <em>Munyoro</em>, for the first and fourth respondents, adopts a curiously contentious position grounded in the particular location of the provisions under consideration. Sections 19 and 28, dealing with children and adequate shelter, are to be found not in Chapter 4 but in Chapter 2 of the Constitution. Chapter 2 relates to national objectives and aspirations to be progressively attained according to available resources. Additionally, s 81 is located in Part 3 rather than Part 2 of Chapter 4. Consequently, so it is argued, ss 19, 28 and 81, taken together, cannot be interpreted to confer any justiciable or enforceable right to shelter in favour of children.</p> <p> </p> <p>Mr <em>Runganga</em>, for the second respondent, takes a similar stance premised on the argument that first generation civil and political rights are absolute and fully enforceable. However, second generation social and economic rights, so he contends, are not absolute, justiciable or enforceable.</p> <p>I am unable to find any merit whatsoever in the arguments propounded by counsel for the respondents. Both ss 74 and 81 are located in Chapter 4 of the Constitution, the former under Part 2 and the latter under Part 3 of that Chapter. Clearly, there can be no argument about the justiciability and enforceability of s 74. As regards s 81, the correct position relative to the application of Part 3 is amply clarified by s 79 which provides as follows:</p> <p>            “(1) This Part elaborates certain rights and freedoms to ensure greater         certainty as to the application of those rights and freedoms to particular           classes of people.</p> <p>            (2) This Part must not be construed as limiting any right or freedom set out             in Part 2.”</p> <p> </p> <p>The objective underlying Part 3 of Chapter 4 is unequivocally clear. It is to elaborate certain rights and freedoms so as to ensure greater certainty in their application to particular classes, namely, women, children, the elderly, the disabled and war veterans. The objective is certainly not to dilute, diminish or devalue the rights that are particularised in Part 3, but rather to fortify those rights by elaborating and imbuing them with a greater measure of certitude. It follows, in my view, that the rights accorded to children under ss 74 and 81 of the Constitution are not only justiciable but also constitutionally enforceable.</p> <p> </p> <p>Access to Adequate Shelter or Housing</p> <p>Section 28 of the Constitution, which appears in Chapter 2 under the broad rubric of National Objectives, provides that:</p> <p>            “The State and all institutions and agencies of government at every level must take            reasonable legislative and other measures, within the limits of the resources      available to them, to enable every person to have access to adequate shelter.” (My            emphasis)</p> <p> </p> <p>It is immediately apparent that the obligation imposed upon the State and other governmental institutions and agencies to avail access to adequate shelter is one that is to be fulfilled within the limits of the resources available to them. This qualification is significant but does not absolve the State of its administrative obligation to take reasonable legislative and other measures to enable the populace as a whole to have access to adequate shelter.</p> <p> </p> <p>The equivalent provision under the South African Constitution is contained in s 26(1) which provides for a “right of access to adequate housing”. The obvious distinction between this provision and our s 28 is that, in addition to the obligation imposed upon the State, it also confers a corresponding right to housing. In the leading case of <em>Government of the Republic of South Africa </em>v <em>Grootboom </em>2001 (1) SA 46 (CC), it was observed that access to land, services and a dwelling is also included in the right to access to adequate housing. Additionally, the State, through legislative and other measures, must create the conditions for access to adequate housing for people at all economic levels of society (at para. 35). The obligation upon the State is to achieve “the progressive realisation of this right” by examining and lowering legal, administrative, operational and financial hurdles over time. However, this does not deprive the obligation of all meaningful content. The State remains bound to move as expeditiously and effectively as possible towards the goal of full realisation of the right, with full use of the maximum resources available (at para. 45).</p> <p> </p> <p>In any event, as I have already intimated, the obligation imposed upon the State in terms of our s 28 to adopt reasonable measures is significantly qualified by the limits of available resources. As was explained in <em>Grootboom</em>, <em>supra</em>, at para. 46:</p> <p>            “…….. the obligation to take the requisite measures is that the obligation does not             require the state to do more than its available resources permit. This means that            both the content of the obligation in relation to the rate at which it is achieved as well as the reasonableness of the measures employed to achieve the result are    governed by the availability of resources. Section 26 does not expect more of the   state than is achievable within its available resources. …….. .</p> <p>           </p> <p>            There is a balance between goal and means. The measures must be   calculated to    attain the goal expeditiously and effectively but the             availability of resources is an important factor in determining what is reasonable.”</p> <p> </p> <p>I shall revert to the question of reasonableness later in this judgment in the context of the right to shelter in the particular circumstances of this case.           </p> <p> </p> <p>Protection against Arbitrary Eviction</p> <p>Section 74 of the Constitution guarantees the freedom from arbitrary eviction and stipulates that:</p> <p>            “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.”</p> <p> </p> <p>Commenting on the South African equivalent, <em>i.e.</em> s 26(3), which is <em>ad idem</em> with our s 74, Currie &amp; De Waal: <em>The Bill of Rights Handbook</em> (6th ed. 2013), at p. 586, summarise this provision as follows:</p> <p>            “The general right of access to housing can be negatively enforced against improper invasion in the form of arbitrary evictions. Section 26(3) puts the     matter beyond doubt by expressly entrenching a conventional negative right,    unqualified by considerations relating to the state’s available resources, against             arbitrary evictions and demolitions.”  </p> <p> </p> <p>Within the broader context of housing rights generally, the learned authors, at p. 586, observe that:</p> <p>            “…….. mass eviction is a retrogressive step on the road to the promotion of           the right of access to adequate housing and needs to be justified, not just on         its own terms as an eviction, but also within the bigger picture of progressive   housing delivery.”</p> <p> </p> <p>The meaning of the word “home”, as used in s 74, is to be very broadly construed. The word embraces both permanent and temporary places of abode as well as shacks and informal dwellings. It has also been conceptually defined to mean a shelter against the elements providing some of the comforts of life with some degree of permanence. See <em>Ross</em> v <em>South Peninsula Municipality</em> 2001 (1) SA 589 (C); <em>Port Elizabeth Municipality</em> v <em>Various Occupiers</em> 2005 (1) SA 217 (CC), at 228; Currie &amp; De Waal, <em>op. cit.</em> at p. 587; <em>City of Harare</em> v <em>Mukunguretsi &amp; Ors</em> SC 46-18, at p. 6; <em>Zuze</em> v <em>Trustees of Mlambo &amp; Anor</em> SC 69-19, at p. 14.</p> <p> </p> <p>In <em>Zuze’s</em> case, <em>supra</em>, at pp. 14-15, this Court elaborated the essential elements of the freedom from arbitrary eviction and demolition under s 74:</p> <p>            “The essential elements of the protection afforded by s 74 are twofold. The            first is that no person may be evicted from his home or have his home        demolished ‘without an order of court’. This is a basic procedural requirement to       ensure that the law is followed in conformity with due process. This was             underscored in the <em>City of Harare</em> case (<em>supra</em>), at paras. 12 &amp; 15, as a prerequisite             to the lawful demolition of the respondents’ homes.           …….. .</p> <p>           </p> <p>            The second element relates to the possible arbitrariness of an eviction and   necessitates that the court seized with the matter must consider ‘all the relevant circumstances’ before it grants an order of eviction or demolition.      With respect to the South African equivalent of our s 74, <em>i.e.</em> s 26, the         provision has been construed to confer not only a procedural right but also        a substantive benefit to include the issue of whether or not the prospective           evictee             has access to alternative housing.”</p> <p>As regards what constitutes “all the relevant circumstances” for the purposes of s 74, the Court took the view that the legality or otherwise of occupation by the potential evictee was immaterial and did not detract from the scope and extent of the protection afforded by the section. It was held, at p. 16:</p> <p>            “In the final analysis, what is required in considering all the relevant           circumstances is a balancing exercise between the rights and interests of all          the parties involved in or affected by the eviction dispute. In the instant case,      the relevant circumstances are relatively clear. The appellant was a <em>bona fide</em>             occupier who was not aware that the subdivision that he occupied was illegal. He had been residing on the land in question for almost nine years. What is not apparent       from the record is whether he had suitable alternative accommodation or land to            occupy consequent upon his eviction from the property.</p> <p> </p> <p>            What emerges from the foregoing factual conspectus is that the appellant had a      direct and substantial interest in the matter notwithstanding that his     occupation of the property might have been illegal. In terms of s 74 of the            Constitution, he had a procedural right to be heard <em>apropos</em> all the relevant             circumstances pertaining to his occupation of the property.”</p> <p> </p> <p>                        The relative immateriality of the applicant’s illegal occupation was further underscored, at pp. 18-19:</p> <p>            “There is no doubt that the appellant has no substantive real rights in the     property in question. Nevertheless, although s 74 of the Constitution does not      confer any substantive real rights, it operates to guarantee the procedural rights that   I have elaborated above on any person who stands to be evicted from his home. Moreover, the ambit of the protection accorded by s 74 is not confined to strictly legal occupants of land or property. Having regard to the plain and ordinary     connotation of a ‘home’, that protection extends as well to unlawful occupiers of any property that can be characterised as constituting a home.”</p> <p> </p> <p>In my view, the privacy and sanctity of one’s domestic space, and the potential trauma of being forcibly or involuntarily ejected from one’s home, cannot in any situation be overemphasised. As was recognised in the <em>Port Elizabeth Municipality</em> case, <em>supra</em>, at para. 17:</p> <p>            “Section 26(3) evinces special constitutional regard for a person‘s place of abode. It acknowledges that a home is more than just a shelter from the    elements. It is a zone of personal intimacy and family security. Often it will    be the only relatively secure space of privacy and tranquillity in what (for poor       people in particular) is a turbulent and hostile world. Forced removal is a shock for    any family, the more so for one that has established itself on a site that has become          its familiar habitat. As the United Nations Housing Rights Programme report points         out:</p> <p>                        ‘To live in a place, and to have established one‘s own personal habitat with            peace, security and dignity, should be considered neither a luxury, a privilege nor purely the good fortune of      those who can afford a decent home. Rather, the   requisite imperative of housing for personal security, privacy, health, safety, protection from the elements and many other attributes of a shared humanity, has led the international community to recognize adequate housing as a basic and         fundamental human right.’.”</p> <p> </p> <p>In any event, it is salutary to point out that s 74 does not preclude eviction generally and clearly acknowledges the possibility of informal settlers being evicted under due process, even if this results in the loss of their home. However, this does not mean that homelessness should invariably and immediately eventuate in all cases. The private landowner of property that is occupied by illegal settlers may have to be patient in the course of eviction. By the same token, the State or relevant local authority may have to take the requisite measures, within their available resources, to avert or mitigate the spectre of homelessness. Such limitations upon the rights of private landowners and the imposition of correlative obligations upon the State and local authorities may be warranted in the interests of justice and equity and dictated by the prevailing circumstances.</p> <p> </p> <p>The aforegoing considerations were aptly highlighted in <em>City of Johannesburg Metropolitan Municipality</em> v <em>Blue Moonlight Properties 39 (Pty) Ltd</em> 2012 (2) SA 104 (CC), at paras. 40 &amp; 100:</p> <p>            “It could reasonably be expected that when land is purchased for commercial         purposes the owner, who is aware of the presence of occupiers over a long time, must consider the possibility of having to endure the occupation for some time. Of       course a property owner cannot be expected to provide free housing for the       homeless on its property for an indefinite period. But in certain circumstances an   owner may have to be somewhat patient, and accept that the right to occupation           may be temporarily restricted, as Blue Moonlight‘s situation in this case has already            illustrated. An owner‘s right to use and enjoy property at common law can be    limited in the process of the justice and equity enquiry …….. .” [para. 40]</p> <p> </p> <p>            “The relief sought in the Occupiers‘ cross-appeal must therefore be considered in order not to render them homeless. The date of eviction must      be linked to a date on which the City has to provide accommodation.          Requiring the City to provide accommodation 14 days before the date of   eviction will allow the Occupiers some time and space to be assured that the order          to provide them with accommodation was complied with and to make suitable     arrangements for their relocation. Although Blue Moonlight cannot be expected to       be burdened with providing accommodation to the Occupiers indefinitely, a degree           of patience should be reasonably expected of it and the City must be given a          reasonable time to comply. The date should not follow too soon after the date of         the judgment.” [para. 100]</p> <p> </p> <p>The same considerations were further elaborated in <em>City of Johannesburg</em> v <em>Changing Tides 74 (Pty) Ltd</em> 2012 (6) SA 294 (SCA), at para. 25:</p> <p>            “Reverting then to the relationship between ss 4(7) and (8), the position can be      summarised as follows. A court hearing an application for eviction at the instance of a private person or body, owing no obligations to provide housing or achieve the            gradual realisation of the right of access to housing in terms of s 26(1) of the          Constitution, is faced with two separate enquiries. First it must decide whether it is             just and equitable to grant an eviction order having regard to all relevant factors.    Under s 4(7) those factors include the availability of alternative land or accommodation. The weight to be attached to that factor must be assessed         in the   light of the property owner’s protected rights under s 25 of the Constitution, and on        the footing that a limitation of those rights in favour of the occupiers will ordinarily           be limited in duration. Once the court decides that there is no defence to the claim         for eviction and that it would be just and equitable to grant an eviction order it is obliged to grant that order. Before doing so, however, it must consider what justice and equity demands in relation to the date of implementation of that order and it   must consider what conditions must be attached to that order. In that second enquiry     it must consider the impact of an eviction order on the occupiers and whether they         may be rendered homeless thereby or need emergency assistance to relocate        elsewhere. The order that it grants as a result of these two discrete enquiries is a    single order. Accordingly it cannot be granted until both enquiries have been          undertaken and the conclusion reached that the grant of an eviction order, effective     from a  specified date, is just and equitable. Nor can the enquiry be concluded until the court is satisfied that it is in possession of all the information     necessary to make both findings based on justice and equity.”</p> <p> </p> <p>Ejection without Due Process or Court Order</p> <p>Reverting to the situation <em>in casu</em>, the essence of the appellants’ complaint in the first ground of appeal is that the court <em>a quo</em> failed to find that the respondents could not eject the appellants without due process and without a valid court order. This ground was not specifically motivated in argument before this Court but was not abandoned and therefore remains to be dealt with and determined.</p> <p> </p> <p>In its judgment, the court <em>a quo</em> was evidently alive to the need to prevent the arbitrary eviction of the appellants. The learned judge opined that “the applicants and their children must be given an opportunity for genuine consultation. Adequate notice to all those affected of the scheduled eviction, information on the proposed evictions and the alternative purpose for which the land is required must be given”. He proceeded to find that “notice of the proposed eviction must be given within a reasonable time. The evictions must be supervised and should not be done in the terror of night. The respondents may not evict the applicants without due process of law”. In any event, the court declined to grant the interdictory relief sought barring the respondents from ejecting the appellants from the informal settlement situated on Haydon Farm.</p> <p> </p> <p>It should be borne in mind that the application before the court <em>a quo</em> was for a declarator and consequential relief having regard to the particular circumstances of the appellants’ occupation of Haydon Farm. They had been given some unspecified form of notice to vacate the farm and were required to move out to enable the third respondent to carry out the construction of houses on the land. However, what was before the court was not an actual application for eviction or a counter-application to resist any claim for eviction. Thus, the court was not called upon to consider all the relevant circumstances or whether or not the requirements of due process had been complied with, for the specific purpose of granting or declining an eviction order. The criteria and considerations that I have delineated above <em>vis-à-vis</em> s 74 of the Constitution would only have been relevant in evaluating the right to shelter that was claimed by the appellants in terms of s 81(1)(f) of the Constitution. This is a somewhat different inquiry and one that I shall address in that larger context later in this judgment.</p> <p> </p> <p>In any event, it is indisputably clear that there was no application for eviction before the court <em>a quo</em>. The court was not called upon to evict the appellants at the behest of the respondents or anyone else. What it did was to deal with the specific application before it and to decline the declaratory and interdictory relief that was sought by the appellants. Nevertheless, in so doing, it explicitly found that the appellants must be given adequate notice of the proposed eviction and that any such eviction must be duly supervised. More emphatically, it also found in unequivocal terms that the respondents could not evict the appellants “without due process of law” and therefore, by necessary implication, without a valid court order. It follows that the first ground of appeal <em>in casu</em> is entirely misconceived and misplaced. It must accordingly be dismissed.</p> <p> </p> <p>Right of Children to Shelter</p> <p>Section 81 elaborates the particular rights of children. In the portions that are relevant for present purposes, it declares that:</p> <p>            “(1) Every child, that is to say every boy and girl under the age of eighteen            years, has the right—</p> <p>                        (<em>a</em>) ……..;</p> <p>                        (<em>b</em>) ……..;</p> <p>                        (<em>c</em>) ……..;</p> <p>                        (<em>d</em>) to family or parental care, or to appropriate care when removed from the                       family environment;</p> <p>                        (<em>e</em>) ……..;</p> <p>                        (<em>f</em>) to education, health care services, nutrition and shelter;</p> <p>                        (<em>g</em>) ……..;</p> <p>                        (<em>h</em>) ……..; and</p> <p>                        (<em>i</em>) …….. .</p> <p>           </p> <p>            (2) A child’s best interests are paramount in every matter concerning the child.</p> <p>           </p> <p>            (3) Children are entitled to adequate protection by the courts, in particular by the   High Court as their upper guardian.”</p> <p> </p> <p>Mr <em>Biti</em> submits that s 81 of the Constitution is distinguishable from certain other rights incorporated in the Declaration of Rights. In particular, environmental rights (s 73), the right to education (s 75), the right to health care (s 76) and the right to food and water (s 77) are all qualified by the injunction to achieve their progressive realisation within the limits of the resources available to the State. In contrast, the rights of children entrenched in s 81 are not so qualified. They are only subject to the limitations codified in s 86 of the Constitution. They must therefore be regarded as standing on their own. Furthermore, so he submits, s 81(1)(f) applies to every child irrespective of the primary parental obligation. The State is obligated to provide for the child, especially where the parents concerned are indigent.</p> <p> </p> <p>Ms <em>Munyoro</em> does not take any issue with these submissions. She also accepts that s 81 applies whether the child in question is under parental care or is institutionalised under State care. However, she contends that there is no obligation on the State to provide for any child under parental care. Consequently, so she submits, the primary obligation to provide shelter lies on the parents of the child concerned. She further relies upon the <em>Grootboom</em> case, <em>supra</em>, for the proposition that there is no primary obligation on the State to provide shelter. The equivalent provision in the South African Constitution, <em>i.e.</em> s 28(1)(c), is identical to our s 81(1)(f) and, therefore, the decision in <em>Grootboom</em> should not be distinguished or departed from. Mr <em>Runganga</em> agrees with these submissions and adds that s 81(1)(f) only obliges the State to step in where children have not been provided for by the parents and have been institutionalised.</p> <p> </p> <p>In the South African context, Currie &amp; De Waal, <em>op. cit.</em>, at p. 610, opine that the textual differences between s 28(1)(c) and ss 26 and 27 (relating to the provision of housing, health care, food, water and social security for everyone) would support the interpretation that s 28(1)(c) was intended:</p> <p>            “to impose a direct duty on the state to ensure that children must have their            socio-economic rights met immediately, and that budgetary arguments cannot          account for failure on the part of government.”      </p> <p> </p> <p>This interpretation is bolstered by the decision in <em>Governing Body of the Juma Masjid Primary School</em> v <em>Essay N.O.</em> 2011 (8) BCLR 761 (CC). In that case, the court highlighted the distinctive features of the right to a basic education from the right to further education under s 29 of the South African Constitution, at para. 37, as follows:</p> <p>            “It is important, for the purpose of this judgment, to understand the nature             of the   right to ‘a basic education’ under section 29(1)(a). Unlike some of the other socio-      economic rights, this right is immediately realisable. There is no internal limitation            requiring that the right be ‘progressively realised’ within ‘available resources’     subject to ‘reasonable legislative measures’. The right to a basic education in             section 29(1)(a) may be limited only in terms of a law of general application which            is ‘reasonable and justifiable in an open and      democratic society based on human   dignity, equality and freedom’. This             right is therefore distinct from the right to     ‘further education’ provided for in section 29(1)(b). The state is, in terms of that             right, obliged, through reasonable measures, to make further education        ‘progressively available and accessible’.”</p> <p> </p> <p>As regards the decision in the <em>Grootboom</em> case, <em>supra</em>, Currie &amp; De Waal, <em>op. cit.</em>, at p. 611, observe that the effect of that decision <em>vis-à-vis</em> children’s socio-economic rights, such as the right to housing, “underwent a positive adjustment in the <em>TAC</em> case”. In that case, <em>Minister of Health</em> v <em>Treatment Action Campaign</em> 2002 (5) SA 721 (CC), the court dealt with access to treatment to avoid mother-to-child transmission of HIV/AIDS in the context of children born in public hospitals to indigent mothers. The court was called upon to interpret ss 28(1)(b) and 28(1)(c) of the South African Constitution, the equivalent of our ss 81(1)(d) and 81(1)(f), <em>apropos</em> the provision of basic health care services by the State and/or by parents and the family. The court recalled its earlier judgment in <em>Grootboom</em>, where it was held that paras. (b) and (c) of s 28(1) must be read together so that “a child has the right to family or parental care in the first place, and the right to alternative appropriate care only where that is lacking”. The court then proceeded to qualify its earlier decision insofar as concerns the position of children born to indigent mothers who could not afford to pay for basic health care services. The obligations of the State in that particular situation were underscored and articulated, at paras. 76-79, as follows:</p> <p>            “Counsel for the government, relying on these passages in the <em>Grootboom</em> judgment, submitted that section 28(1)(c) imposes an obligation on the parents of        the newborn child, and not the state, to provide the child with the required basic   health care services.</p> <p>           </p> <p>            While the primary obligation to provide basic health care services no doubt             rests on those parents who can afford to pay for such services, it was made           clear in <em>Grootboom</em> that</p> <p>            ‘[t]his does not mean . . . that the State incurs no obligation in         relation to children who are being cared for by their parents        or families.’</p> <p>           </p> <p>            The provision of a single dose of nevirapine to mother and child for the      purpose of protecting the child against the transmission of HIV is, as far as      the children are concerned, essential. Their needs are ‘most urgent’ and their         inability to have access to nevirapine profoundly affects their ability to enjoy all     rights to which they are entitled. Their rights are ‘most in peril’ as a result of the   policy that has been adopted and are most affected by a rigid and inflexible policy      that excludes them from having access to nevirapine.</p> <p> </p> <p>            The state is obliged to ensure that children are accorded the protection        contemplated by section 28 that arises when the implementation of the right        to parental or family care is lacking. Here we are concerned with children   born in             public hospitals and clinics to mothers who are for the most part indigent and unable  to gain access to private medical treatment which is beyond their means. They and            their children are in the main dependent upon the state to make health care services          available to them.”</p> <p>        </p> <p>It is axiomatic that the Constitution must be interpreted in an holistic and seamless fashion. Each provision is to be interpreted, without doing violence to the actual language used, in a manner that is consistent and accords with every other relevant provision, so as to achieve the underlying purpose of those provisions. They must be construed as being mutually complementary rather than as being contradictory to one another. In short, the Constitution must be construed as a unified whole.</p> <p> </p> <p>Reverting to s 81(1) of our Constitution, I am persuaded to adopt the more purposive approach to the interrelationship between paras. (d) and (f) of s 81(1). I do not think that those paragraphs must necessarily be read so that para. (f) is construed as being subordinated to or diminished by para. (d). In other words, the obligation of the State to provide shelter to children in need in terms of s 81(1)(f) is not contingent upon the absence of parental care or other appropriate care under s 81(1)(d). The obligation of the State in this respect is not negated or diluted by the primary duty of care ordinarily imposed upon parents. In most situations where socio-economic normalcy is possible, where children are living with their parents, the parental duty of care must predominate so as to proportionately reduce the State’s correlative obligations. However, where the parents themselves are financially or otherwise incapacitated from fulfilling their parental obligations, it then becomes incumbent upon the State to intervene and carry out its own obligation to ensure that the children’s welfare is adequately addressed and safeguarded. In my view, this interpretation is entirely concordant with the ultimate objective of s 81, <em>viz.</em> to secure the best interests of the child. To conclude on this aspect, the primary duty of care reposed with parents in respect of their own children does not operate to absolutely absolve the State of its underlying obligation of care towards those children.</p> <p> </p> <p>Best Interests of the Child</p> <p>By virtue of s 81(2) of the Constitution, the best interests of the child are paramount in every matter concerning the child. With reference to the equivalent s 28(2) in the South African Constitution, Currie and De Waal, <em>op. cit.</em>, at p. 620, make the point that this provision constitutes “a right, and not merely a guiding principle” and “in addition to being a self-standing right it also strengthens other rights”. In this connection, the learned authors cite the case of <em>Minister of Welfare and Population Development</em> v <em>Fitzpatrick</em> 2000 (3) SA 422 (CC), at paras. 17 &amp; 18:</p> <p>            “Section 28(1) is not exhaustive of children’s rights. Section 28(2) requires             that a child’s best interests have paramount importance in every matter             concerning the child. The plain meaning of the words clearly indicates that    the reach of section 28(2) cannot be limited to the rights enumerated in section             28(1) and section 28(2) must be interpreted to extend beyond those            provisions. It creates a right that is independent of those specified in section        28(1). …….. .</p> <p>           </p> <p>            …….. . However, the “best interests” standard appropriately has never been given             exhaustive content in either South African law or in comparative international or          foreign law. It is necessary that the standard should be flexible as individual       circumstances will determine which factors secure the best interests of a particular            child.”</p> <p> </p> <p>While the best interests of the child must be treated as being paramount, they do not necessarily override other rights entrenched in the Declaration of Rights. This important rider was emphasised in <em>De Reuk</em> v <em>Director of Public Prosecutions (Witswatersrand Local Division)</em> 2004 (1) SA 406 (CC), at para. 55:</p> <p>            “In the High Court judgment, the view is expressed that persons who         possess materials that create a reasonable risk of harm to children forfeit the         protection of the freedom of expression and privacy rights altogether, and that     section 28(2) of the Constitution ‘trumps’ other provisions of the Bill of Rights. I do not agree. This would be alien to the approach adopted by this Court that   constitutional rights are mutually interrelated and interdependent and form a single     constitutional value system. This Court has held that section 28(2), like the other    rights enshrined in the Bill of Rights, is subject to limitations that are reasonable             and justifiable in compliance with section 36.”</p> <p> </p> <p>The same qualified approach was adopted in <em>Centre for Child Law</em> v <em>Minister of Justice and Constitutional Development</em> 2009 (6) SA 632 (CC), at para. 29:</p> <p>            “…….. . The constitutional injunction that ‘[a] child’s best interests are of paramount importance in every matter concerning the child’ does not   preclude sending child offenders to jail. It means that the child’s interests are ‘more       important than anything else’, but not that everything else is unimportant: the entire             spectrum of considerations relating to the child offender, the offence and the         interests of society may require incarceration as the last resort of punishment.”</p> <p> </p> <p>It is also necessary to bear in mind that the paramountcy principle itself is not self-defining but generally indeterminate. It must perforce take colour from and be informed by the particular circumstances of each case, having regard to those factors that will effectively secure the best interests of the child. The intrinsic flexibility of the “best interests” provision was ably articulated in the case of <em>State </em>v <em>M</em> 2008 (3) SA 232 (CC), at paras. 23 &amp; 24:</p> <p>            “Once more one notes that the very expansiveness of the paramountcy        principle creates the risk of appearing to promise everything in general while       actually delivering little in particular. Thus, the concept of 'the best           interests’ has been attacked as inherently indeterminate, providing little      guidance to those given the task of applying it. …….. .</p> <p>           </p> <p>            These problems cannot be denied. Yet this Court has recognised that it is   precisely the contextual nature and inherent flexibility of section 28 that        constitutes the source of its strength. …….. . Viewed in this light, indeterminacy of     outcome is not a weakness. A truly principled child- centred approach requires a             close and individualised examination of the precise real-life situation of the           particular child involved. To apply a pre-determined formula for the sake of            certainty, irrespective of the circumstances, would in fact be contrary to the best interests of the child concerned.”</p> <p> </p> <p>The decision in <em>State</em> v <em>M</em> also highlights the point that the paramountcy principle, although seemingly emphatic and unfettered, is not absolute but subject to reasonable limitation. As was appositely observed, at paras. 25 &amp; 26:</p> <p>            “A more difficult problem is to establish an appropriate operational thrust   for the paramountcy principle. The word ‘paramount’ is emphatic.                Coupled with the far- reaching phrase ‘in every matter concerning the child’, and taken literally, it would    cover virtually all laws and all forms of public action, since very few measures      would not have a direct or indirect impact on children, and thereby concern them.             Similarly, a vast range of private actions will have some consequences for children.            This cannot mean that the direct or indirect impact of a measure or action on      children must in all cases oust or override all other considerations. If the            paramountcy principle is spread too thin it risks being transformed from an        effective instrument of child protection into an empty rhetorical phrase of weak     application, thereby defeating rather than promoting the objective of section 28(2).        The problem, then, is how to apply the paramountcy principle in a meaningful way   without unduly obliterating other valuable and constitutionally-protected interests.</p> <p>           </p> <p>            This Court, far from holding that section 28 acts as an overbearing and       unrealistic trump of other rights, has declared that the best interests      injunction is capable of limitation. …….. . Accordingly, the fact that the best    interests of the child are paramount does not mean that they are absolute. Like all rights in the Bill of Rights their operation has to take account of their      relationship to other rights, which might require that their ambit be       limited.”</p> <p> </p> <p>Reasonable Limitations and Reasonable Measures</p> <p>Section 86 of our Constitution prescribes the manner in and extent to which fundamental human rights and freedoms may be subjected to limitation or derogated from. Section 86(1) stipulates that rights and freedoms “must be exercised reasonably and with due regard for the rights and freedoms of other persons”. Section 86(2) states that rights and freedoms “may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society”. Section 86(2) also delineates the relevant factors that are to be taken into account in determining the fairness, reasonableness, necessity and justifiability of any such limitation. The list of these relevant factors is not exhaustive. Additionally, s 86(3) enumerates those rights enshrined in Chapter 4 that may not be limited by any law or violated by any person. The right of access to housing or shelter is not specifically included in the rights so enumerated.</p> <p> </p> <p>Mr <em>Biti</em>, relying on the <em>Grootboom</em> case, <em>supra</em>, submits that socio-economic rights generally are justiciable and that the State must formulate and implement reasonable policies and programmes to achieve those rights in accordance with s 19 of the Constitution. The response of the State <em>in casu</em> is to deny its obligations and its attitude is cavalier and unacceptable. It has simply asked the appellants “to join the queue for land” even though they have been settled on Haydon Farm since 2000 in tandem with the Land Reform Programme. The draft order prayed for by the appellants is designed to achieve the progressive realisation of the appellants’ right to shelter.</p> <p> </p> <p>Ms <em>Munyoro</em> contends that the appellants are not entitled to the relief that they seek. They are illegal settlers and their actions cannot be sanitised. They should, like any other citizen seeking shelter, apply to the relevant authorities to be allotted other land for their settlement. She further argues that, if the appellants are poor and cannot provide shelter for themselves, the children will be institutionalised and the State will take over and provide for their welfare.</p> <p> </p> <p>When questioned by the Court, Ms <em>Munyoro</em> reluctantly conceded that it would be preferable to leave children with their parents as this option would be more practicable and less costly for the State. Mr <em>Biti</em>, in his replying submissions, also agreed that children should not be taken away from their family and parents and that it would clearly be more expensive for the State to institutionalise children. Furthermore, to remove children from their family would be socially damaging and give rise to their proclivity towards crime and violence.</p> <p> </p> <p>Section 25 of the Constitution enjoins the State and its institutions and agencies, <em>inter alia</em>, “to protect and foster the institution of the family”. The National Objectives pertaining to children are captured in s 19 of the Constitution. In particular, s 19(1) calls upon the State to “adopt policies and measures to ensure that, in matters relating to children, the best interests of the children are paramount”. More specifically, s 19(2)(b) requires the State to “adopt reasonable policies and measures, within the limits of the resources available to it, to ensure that children …….. have shelter and basic nutrition, health care and social services”.</p> <p> </p> <p>The obligation of the State to adopt reasonable policies and measures subject to the limitation of available resources, was extensively canvassed in the <em>Grootboom</em> case, <em>supra</em>, in considering the right of access to adequate housing. It is instructive to highlight the principal observations of the court in that case, at paras. 41-44:</p> <p>            “The measures must establish a coherent public housing programme             directed towards the progressive realisation of the right of access to          adequate housing within the state’s available means. The programme must         be capable of facilitating the realisation of the right. The precise contours and             content of the measures to be adopted are primarily a matter for the            legislature and the executive. They must, however, ensure that the         measures they adopt are reasonable. …….. . It is necessary to recognise that a wide range of        possible measures could be adopted by the state to meet its obligations. Many of          these would meet the requirement of reasonableness. Once it is shown that the       measures do so, this requirement is met.</p> <p> </p> <p>            The state is required to take reasonable legislative and other measures.        Legislative measures by themselves are not likely to constitute constitutional             compliance. Mere legislation is not enough. The state is obliged to act to achieve         the intended result, and the legislative measures will invariably have to be             supported by appropriate, well-directed policies and programmes implemented by the executive. …….. . An otherwise reasonable programme that is not implemented         reasonably will not constitute compliance with the state’s obligations.</p> <p> </p> <p>            In determining whether a set of measures is reasonable, it will be necessary             to consider housing problems in their social, economic and historical context and            to consider the capacity of institutions responsible for implementing the        programme. The programme must be balanced and   flexible and make appropriate      provision for attention to housing crises and to short, medium and long term          needs. A programme that excludes a     significant segment of society cannot be said            to be reasonable. Conditions             do not remain static and therefore the programme     will require continuous review.</p> <p> </p> <p>            …….. . To be reasonable, measures cannot leave out of account the degree             and extent of the denial of the right they endeavour to realise. Those whose    needs are the most urgent and whose ability to enjoy all rights therefore is      most in            peril, must not be ignored by the measures aimed at achieving realisation of the         right. It may not be sufficient to meet the test of reasonableness to show that the             measures are capable of achieving a   statistical advance in the realisation of the     right. Furthermore, the Constitution requires that everyone must be treated with            care and concern. If the measures, though statistically successful, fail to respond to       the needs of those most desperate, they may not pass the test.”</p> <p> </p> <p>The court proceeded to examine the reasonableness of the measures adopted by the State. It noted that the housing programme in question was not haphazard but represented a systematic response to a pressing social need by seeking to build a large number of houses for those in need of better housing. Furthermore, appropriate legislative measures had been undertaken at both the national and provincial levels, through the Housing Act, so as to produce a workable legislative framework for the delivery of houses nationally [paras. 54 &amp; 55]. Nevertheless, the court questioned and found lacking the adequacy of the national housing programme in relation to those in desperate need of shelter. The sentiments of the court, at paras. 56-69, are particularly germane to the circumstances <em>in casu</em>:</p> <p>            “This Court must decide whether the nationwide housing programme is      sufficiently flexible to respond to those in desperate need in our society and           to cater appropriately for immediate and short-term requirements. This must be     done in the context of the scope of the housing problem that must be addressed.             …….. .” [para. 56]</p> <p> </p> <p>            “Section 26 requires that the legislative and other measures adopted by the             state are reasonable. To determine whether the nationwide housing          programme as applied in the Cape Metro is reasonable within the meaning of the section, one must consider whether the absence of a component catering for those in desperate need            is reasonable in the circumstances. …….. .” [para. 63]</p> <p> </p> <p>            “…….. . The housing development policy as set out in the Act is in itself    laudable. It has medium and long term objectives that cannot be criticised.            But the            question is whether a housing programme that leaves out of account the immediate       amelioration of the circumstances of those in crisis can meet the test of reasonableness established by the section.” [para. 64]  </p> <p> </p> <p>            “…….. . The desperate will be consigned to their fate for the foreseeable future     unless some temporary measures exist as an integral part of the nationwide housing        programme. Housing authorities are understandably unable to say when housing will become available to these desperate people. The result is that people in          desperate need are left without any form of assistance with no end in sight. ….. .”             [para. 65]</p> <p> </p> <p>            “…….. . The   nationwide housing programme falls short of obligations      imposed upon national government to the extent that it fails to recognise that the    state must provide for relief for those in desperate need. They are not to be ignored        in the interests of an overall programme focused on medium and long-term     objectives. …….. .” [para. 66]</p> <p> </p> <p>            “In conclusion it has been established in this case that as of the date of the launch of this application, the state was not meeting the obligation imposed upon it by             section 26(2) of the Constitution in the area of the Cape Metro. In particular, the programmes adopted by the state fell short of the requirements of section 26(2) in            that no provision was made for relief to the categories of people in desperate need             identified earlier. …….. .” [para. 69]</p> <p> </p> <p>The related question that arises in the context of the broader realisation of the right to housing is whether it is always unreasonable to order the eviction and relocation of persons, even if this would entail their temporary or short-term homelessness. Approximately nine years after <em>Grootboom</em>, in the case of <em>Residents of Joe Slovo Community, Western Cape</em> v <em>Thubelisha Homes</em> 2010 (3) SA 454 (CC), this question was answered in the negative. It was held, at paras. 115 &amp; 116:</p> <p>            “The applicants are being evicted and relocated in order to facilitate            housing development. In the circumstances their eviction constitutes a       measure to ensure the progressive realisation of the right to housing within the meaning of section 26(2) of the Constitution. …….. .</p> <p>           </p> <p>            Eviction is a reasonable measure to facilitate the housing development        programme. In addition, all the factors discussed in relation to the question         whether it is just and equitable to grant the eviction order also justify a    conclusion that the eviction is, in the circumstances, reasonable.”</p> <p> </p> <p>This decision brings to the fore the perennial tension between the rights of the community at large and those of its less privileged segments. While it is always desirable to reconcile and accommodate the interests of all sections of the community, this may not always be realistic or practicable. Each unique situation must be considered on its own peculiarities and subjected to the governing test of reasonableness, regarded as between groups or individuals and as between the State and its citizens. Ultimately, the criterion of flexibility in balancing competing interests comes into play so as to determine whether or not it is just and equitable to order the eviction of the persons concerned in all the relevant circumstances of the case.</p> <p> </p> <p>Appropriate Relief</p> <p>In the particular context of eviction, I have already observed that the eviction of people living in informal settlements may take place, even if this results in the loss of their homes. See the <em>Port Elizabeth Municipality</em> case, <em>supra</em>, at para. 21. Nevertheless, it remains imperative in that situation that eviction and relocation should take place in conformity with justice and equity. This was emphasised in the <em>Joe Slovo Community</em> case, <em>supra</em>, at para. 114:</p> <p>            “I have come to the conclusion that, provided that the order for the eviction           and relocation of the applicants makes appropriate provision for the safe, dignified and humane relocation of all the people involved, the eviction and          relocation of the applicants will be in accordance with justice and equity. I             would propose an order that would, as far as possible, achieve this.”</p> <p> </p> <p>Section 175 (6) (b) of our Constitution empowers every court, “when deciding a constitutional matter within its jurisdiction”, to “make any order that is just and equitable”. In framing an appropriate order that is just and equitable, the courts are at large to take into account all the relevant circumstances of the case, including the nature of the right infringed and the nature of the infringement. Moreover, whilst being attuned and sensitive to the doctrine of separation of powers, they should be astute not to be unduly constrained or intimidated by considerations of governmental policy. This was emphatically spelt out in the <em>Treatment Action Campaign</em> case, <em>supra</em>, at paras. 98-112:</p> <p>            “This Court has made it clear on more than one occasion that although there           are no bright lines that separate the roles of the legislature, the executive and the         courts from one another, there are certain matters that are pre-eminently within the       domain of one or other of the arms of government and not the others. All arms of       government should be sensitive to and respect this separation. This does not mean,             however, that courts cannot or should not make orders that have an impact on        policy.” [para. 98]</p> <p> </p> <p>            “…….. . Where state policy is challenged as inconsistent with the Constitution,     courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given      case that the state has failed to do so, it is obliged by the Constitution to say so. In        so far as that constitutes an intrusion into the domain of the executive, that is an             intrusion mandated by the Constitution itself. …….. . Even simple declaratory       orders against             government or organs of state can affect their policy and may well have budgetary implications. Government is constitutionally bound to give            effect to such orders whether or not they affect its policy and has to find the      resources to do so. …….. .” [para. 99]</p> <p> </p> <p>            “…….. . Section 38 of the Constitution contemplates that where it is          established that a right in the Bill of Rights has been infringed a court will grant    ‘appropriate relief’. It has wide powers to do so and in addition to the            declaration that it is obliged to make in terms of section 172(1)(a) a court may also             ‘make any order that is just and equitable’.” [para. 101]</p> <p> </p> <p>            “We thus reject the argument that the only power that this Court has in the             present case is to issue a declaratory order. Where a breach of any right has    taken place, including a socio-economic right, a court is under a duty to ensure that    effective relief is granted. The nature of the right infringed and the nature of the   infringement will provide guidance as to the appropriate relief in a particular case.  Where necessary this may include both the issuing of a mandamus and the exercise          of supervisory jurisdiction.” [para.106]</p> <p> </p> <p>            “What this brief survey makes clear is that in none of the jurisdictions         surveyed is there any suggestion that the granting of injunctive relief         breaches the separation of powers. The various courts adopt different            attitudes to when such remedies should be granted, but all accept that within the             separation of powers they have the power to make use of such remedies – particularly when the state’s obligations are not performed             diligently and without            delay.” [para. 112]</p> <p> </p> <p>Analysis of Judgment <em>A Quo</em></p> <p>It is necessary to set out the approach adopted by the court <em>a quo</em> in its interpretation of s 81(1)(f) of the Constitution and its application to the circumstances before the court. The learned judge held as follows:</p> <p>            “Section 81(1)(f) creates the right to shelter but does not create an absolute,           independent and separate justiciable right to shelter for children. Section        81(1)(f) does not place a primary obligation on the State and its agents to             provide shelter to children who are in the care of their parents on demand.             …….. The State is obliged to take reasonable legislative and other measures within the     resources available to it to ensure progressive realisation of the right and ensure          that children enjoy parental care. …….. . The parents have a primary obligation to       ensure that their children have shelter. The children are not in the care of the State            nor have they been removed from their parents. These children are different from             those who are in the care of State institutions who are the primary responsibility of            the State and hence there is no primary obligation on the State to provide them with        shelter. All the State is required to do is to create an enabling environment by    putting in place a legislative framework and other measures for parents to ensure         that they are able to provide their children with shelter. Section 81(1)(f) does         not create an absolute right to shelter for children.”                    </p> <p> </p> <p>The gravamen of these findings is twofold. The first is the proposition that s 81(1)(f) of the Constitution does create a right of shelter for children but not one that is absolute, independent and justiciable and, by implication, not one that is legally enforceable. The second is the conclusion that s 81(1)f) does not place any primary obligation on the State to provide shelter for children who are in the care of their parents. In that situation, the State is enjoined to take reasonable legislative and other measures which are to be progressively realised, so as to enable parents to provide their children with shelter. I take the view, with great respect, that the first proposition is contradictory and questionable, albeit not in its entirety, and that the second cannot be sustained on a proper purposive construction of s 81, taken as a whole and as read with other relevant provisions of the Constitution.</p> <p> </p> <p>As I have endeavoured to demonstrate earlier, the paramountcy principle enunciated in s 81(2) of the Constitution is conceived to secure the best interests of the child. It is a self-standing independent right and operates to fortify the rights entrenched in s 81(1). However, the best interests of the child do not necessarily override or trump other rights and interests. The concept of “best interests” is an indeterminate and flexible one that must take its shape and content from the particular circumstances of each given case. To this extent, it is correct to take the view that the paramountcy principle embodied in s 81(2) as well as the right to shelter guaranteed by s 81(1)(f) are not unfettered or absolute but are subject to reasonable qualification and limitation where this is necessary and justified.</p> <p> </p> <p>Nevertheless, although the parameters of the rights set out in s 81(1)(f) may not necessarily be unlimited, I have no doubt in my mind that they are justiciable. Section 81 appears in Part 3 of the Declaration of Rights. That part is designed to elaborate the rights particularised in their application to certain classes, including children, so as to configure them with greater certitude. In addition, the right to shelter conferred upon children by s 81(1)(f) is further enhanced by s 19(2)(b) of the Constitution. The latter provision enjoins the State to adopt reasonable policies and measures, within the limits of available resources, to ensure that children have shelter. As I have already concluded earlier, it is incontrovertibly clear that the right to shelter for children, as entrenched in s 81(1)(f) and as bolstered by s 19(2)(b), is eminently justiciable and legally enforceable.</p> <p> </p> <p>The more problematic area of concern relates to the respective roles of the State and parents <em>vis-à-vis</em> children who are under parental or familial care. In this situation, there can be no doubt that the primary duty to afford shelter to children reposes in their parents. The obligation of the State in this context is probably best described as being essentially secondary and supportive in nature, to wit, to assist parents in the provision of shelter and nutrition to their children. However, as was acknowledged even in the <em>Grootboom</em> case, <em>supra</em>, this does not mean that the State incurs no obligation in relation to children under the care of their parents or families. In my view, in certain circumstances, s 81(1)(f) may be invoked to impose a direct duty on the State, despite budgetary or other material constraints. This duty was unreservedly recognised in the <em>Treatment Action Campaign</em> case, <em>supra</em>, as regards the provision of urgent and essential health care for children born in public hospitals and clinics to mothers who are mostly indigent. I fully endorse the rationale of that decision and would cautiously extend it beyond incapacity due to penury to that arising from any other insuperable disability.</p> <p> </p> <p>The direct duty of the State towards children under parental care is also affirmed in the two international instruments that I have adverted to earlier, <em>viz.</em> the United Nations Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child (1990). Zimbabwe is a party to both of these instruments and, consequently, our courts are constitutionally bound to take them into account in interpreting the Declaration of Rights. Both instruments recognise that the primary responsibility to secure the conditions of living necessary for the development of children lies on their parents. At the same time, however, they also declare that member States are obligated to take appropriate measures to assist parents, and provide material assistance and support programmes in cases of need, as regards nutrition, clothing and housing.</p> <p> </p> <p>To conclude on this aspect, the obligations of the State in terms of s 81(1)(f) are not contingent upon the absence of parental or familial care. Those obligations are not counterposed but complementary to the primary duty of parental care envisaged in s 81(1)(d). In particular, the State must fulfil its own obligation to provide shelter to children whose parents are financially or otherwise incapacitated from fulfilling their parental obligations. In short, the primary duty of parental care does not absolve the State of its direct obligation to secure and provide for the best interests of the child.</p> <p> </p> <p>In arriving at its decision to dismiss the application before it, the court <em>a quo</em> reasoned as follows. Firstly, the appellants had no legal right to be on the land, having settled there illegally without any lease, permit or offer of the land concerned. In short, their stay on the land had not been regularised. Secondly, the respondents had other plans for the land and the appellants could not demand alternative land as a condition to vacate Haydon Farm. The court could not compel the respondents to allocate land to the appellants as that was a function that was purely in the domain of the State. Thirdly, the appellants could not insist on being allocated land in an urban setting. Section 81(1)(f) of the Constitution did not impose on the State an obligation to provide housing, land or shelter to anyone on demand. Finally, the court found that the respondents were pursuing a legitimate aim. The development of the area was necessary for urban development and expansion in a properly planned and orderly fashion. There was a pressing social need for housing and urban development. The interference with the appellants’ occupation of the land was in the general public interest and was for a good cause. In the event, the court concluded that the forced eviction of the appellants was justified.            </p> <p> </p> <p>I fully appreciate that in making the above findings the court <em>a quo</em> was engaged in the process of exercising its discretion in the matter. It is also trite that an appellate court will not interfere with the exercise of judicial discretion by a lower court unless that court is found to have proceeded on some material misappreciation or misapplication of the law and/or the facts or where it has relied on some extraneous or irrelevant consideration or has failed to take into account some particularly relevant matter. <em>In casu</em>, I am of the considered view that the learned judge <em>a quo</em> critically misdirected herself in the following respects.</p> <p> </p> <p>First and foremost, any proper analysis of a matter involving the possible eviction of persons necessitates, apart from the purely procedural requirement of a court order, a detailed and substantive consideration of all the relevant circumstances. As was elaborated in <em>Zuze</em>’s case, <em>supra</em>, at p. 16, this entails a balancing exercise between the rights and interests of all the parties involved in or affected by the eviction dispute. This would include not only the prospective evictees and the landowner but also the State and its agents and institutions. Secondly, and in any event, as was emphasised in <em>Zuze</em>’s case, at pp. 18-19, the ambit of the protection accorded against arbitrary eviction is not confined to strictly legal occupants of the land or property concerned. Additionally, the rights of the landowner, whether public or private, may have to be temporarily circumscribed so as to obviate the possibility of homelessness. And if that is found to be impracticable, the State or relevant local authority may have to be imposed upon in order to temporarily accommodate the evictees.</p> <p> </p> <p><em>In casu</em>, the court <em>a quo</em> appears to have concentrated on the rights and interests of the respondents and the fact that they were pursuing the legitimate aim of urban development to address the pressing social need for housing and urban development. While these considerations are very laudable, there is very little on record, apart from bald and sketchy assertions, to substantiate the supposed housing development programme and the pressing social need therefor. More significantly, the court paid minimal regard to the rights and interests of the appellants themselves. It focused instead, quite erroneously, on the illegality of their occupation and their failure to regularise the same. It pointedly failed to take into account the facts that the appellants did not have the luxury of any alternative accommodation and that the minor appellants have been attending school in the informal settlement. It also disregarded the significant and critical reality that the appellants had been in occupation of their permanent homes on the farm since the year 2000, until those homes were demolished in 2005, and have since occupied their impermanent homes thereafter. Lastly, but equally importantly, the court did not consider possible alternative measures that could have been taken by the respondents to accommodate the appellants elsewhere, either temporarily or permanently. It simply chose to distance itself from the appellants’ predicament and consigned them to the ravages of impending homelessness.</p> <p> </p> <p>Disposition</p> <p>To conclude, I take the view that the court <em>a quo</em> erred in failing to correctly evaluate and apply the considerations calling for determination under s 74 of the Constitution <em>apropos</em> the potential eviction of any person from his or her home. The court further erred in its interpretation of s 81(1)(f) of the Constitution and consequently failed to appreciate the proper scope and extent of the right to shelter conferred upon children in terms of that provision.</p> <p> </p> <p>It follows that the appeal must succeed, in the main, in respect of the second, third and fifth grounds of appeal. The first ground of appeal, as I have already concluded, is unmeritorious and is therefore dismissed. The fourth ground of appeal invokes s 81(5) of the Constitution, a manifestly non-existent provision, and is obviously quite superfluous. It is accordingly struck out.</p> <p> </p> <p>What remains is to formulate the appropriate relief that should be granted in favour of the appellants. In that regard, it seems useful to restate the principles that should guide this Court in framing an order that is just and equitable in the circumstances of this case.</p> <p>As is expressly enjoined by the Constitution, fundamental rights and freedoms must be exercised reasonably and with due regard for the rights and freedoms of others. In this respect, it is imperative not to lose sight of the rights and interests of the respondents. Consequently, they cannot be called upon to adopt much more than reasonable policies and measures, within the limits of the resources available to them, to secure the rights and interests of the appellants. In any event, it must be borne in mind that the appellants are relatively destitute and in desperate need of shelter. Moreover, in furtherance of the institution of the family, in conformity with s 25 of the Constitution, it would be more practicable and preferable for the minor appellants to stay with their parents instead of being institutionalised under State care. Ultimately, as I have stated earlier, it is necessary to apply the pivotal criteria of reasonableness and flexibility in balancing competing interests so as to arrive at an appropriate order that is just and equitable having regard to all the relevant circumstances of this case.</p> <p> </p> <p>The draft order prayed for <em>in casu</em> has three distinct components. The first is an interdict against eviction from the informal settlement on Haydon Farm. The second is a <em>dectaratur</em>, relative to the right of children to shelter. Both of these prayers, with appropriate modifications, are quite compatible with the <em>rationes decidendi</em> expounded in this judgment. The more problematic component is the substantive relief that is sought by the appellants. The principal prayer in this respect is that the first and fourth respondents be ordered to set up a joint committee, inclusive of the appellants, to allocate serviced residential stands to the appellants on the informal settlement presently occupied by them and thereafter, within a period of 12 months, to construct minimum core houses on such stands for and on behalf of the appellants. In the alternative, the first respondent is to be ordered to provide alternative land on which it must allocate residential stands in compliance with the abovementioned undertakings and specifications.</p> <p> </p> <p>Apart from the logistical <em>minutiae</em> involved in the delivery of what the appellants seek, there is a glaring paucity of factual <em>data</em> on record as to the larger elements of the relief prayed for. This relates, <em>inter alia</em>, to the relevant development plans, cost implications and scope of coverage of the works envisaged. One assumes that there might be in existence specific development plans, possibly incorporating some form of housing programme, not only for Haydon Farm but also in respect of the Zvimba Rural District Council area as a whole. The second element is equally critical in assessing the budgetary and financial capacities of the first, second and fourth respondents, <em>qua</em> institutions of the State, to provide the requisite land, infrastructure and building material. Lastly, one cannot discount the probability that there are other destitute families and children in need of shelter, both on Haydon Farm and within the District area. It would be highly remiss and unreasonable to selectively focus on the appellants’ needs without having regard to the housing needs of other persons in the area who are similarly situated. All of these larger elements are issues that should have been properly raised and thereafter thoroughly canvassed and ventilated in the proceedings <em>a quo</em>.</p> <p> </p> <p>In my considered opinion, without this larger picture, this Court is not in any informed position to command the first, second and fourth respondents to comply with their underlying constitutional obligations in terms of ss 19(2)(b) and 28 of the Constitution, <em>viz.</em> to adopt and take reasonable measures, within the limits of the resources available to them, to ensure that the appellants have access to adequate shelter. In short, the Court is critically hamstrung in its ability to afford the particular substantive relief that is craved by the appellants. On the other hand, as I have already stated, they remain entitled to the more specific declaratory and interdictory relief that they seek. As regards the latter, it may be necessary to add a further injunction to secure their stay on Haydon Farm against any interference with their homes and agricultural activities for the duration of their stay on the farm.</p> <p> </p> <p>The grant of the aforestated relief affords to the appellants the requisite respite in the short term against the possibility of being rendered homeless in the immediate future. However, it does not address their housing situation thereafter. Equally importantly, it does not concretise the precise scope and nature of the respondents’ obligations <em>in casu</em>, nor does it take into account or resolve their long term developmental concerns in respect of Haydon Farm. These are matters which, as I have already stated, should have been thoroughly and meaningfully addressed <em>a quo</em> but remain unresolved at this stage. In the event, it seems to me that the most judicious way forward is to remit this matter to the court <em>a quo</em> to enable it to fully adjudicate and definitively determine these outstanding issues. In this respect, it will be necessary for all the parties to present the requisite additional evidence in such form and manner as the court <em>a quo</em> may direct as being best suited to achieve that purpose.</p> <p> </p> <p>Without attempting in any way to be exhaustive, I consider that the principal issues that should be canvassed and determined in the proceedings <em>a quo</em> would be the following:</p> <ul> <li>the specific housing requirements to adequately accommodate the appellants;</li> <li>the material and financial resources available to the appellants themselves;</li> <li>the possibility of voluntary or assisted relocation of the appellants to a different locality;</li> <li>the availability of temporary accommodation elsewhere pending the provision of permanent housing;</li> <li>the requisite material and financial resources allocated for housing development purposes that may have been budgeted for and are available to the first, second and fourth respondents;</li> <li>the technical and financial implications for the third respondent of modifying or delaying the housing development project in question.</li> </ul> <p> </p> <p>As for costs, I see no compelling reason to deviate from the usual path that costs should follow the cause. The appellants, having succeeded in the main, are entitled to their costs on the ordinary scale.</p> <p> </p> <p>            It is accordingly ordered that:</p> <ol> <li>The appeal is partially allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is set aside.</li> <li>It is declared that the right of children to shelter, enshrined in s 81(1)(f) of the Constitution, is justiciable and enforceable as an independent right of all children, including children under parental care, subject to reasonable qualification and limitation where necessary and justified.</li> <li>The matter is remitted to the court <em>a quo</em> to determine, following the adduction of further evidence by the parties and having regard to the principles and guidelines set out in this judgment, the respective obligations of the respondents as regards the rights and interests of the appellants, subject to such reasonable qualifications and limitations as may be necessary and justified in the circumstances of this case.</li> <li>Pending the final determination of the court <em>a quo</em> pursuant to paragraph 4 above, the respondents and all those claiming authority through them be and are hereby interdicted from ejecting the appellants from the New Park Farm informal settlement situated on Haydon Farm, Old Mazowe Road, Mt. Hampden, Harare, or from interfering in any way with the homes and agricultural activities of the applicants within that informal settlement.</li> </ol> <p> </p> <p>            MAVANGIRA JA                 :                       I agree</p> <p> </p> <p>            MATHONSI JA                     :                       I agree</p> <p><em>Tendai Biti Law</em>, appellants’ legal practitioners</p> <p><em>Civil Division of the A-G’s Office</em>, 1st &amp; 4th respondents’ legal practitioners</p> <p><em>Mbano &amp; Partners</em>, 2nd respondent’s legal practitioners</p> <p><em>Bherebhende Law Chambers</em>, 3rd respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/94/2020-zwsc-94.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=71880">2020-zwsc-94.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/94/2020-zwsc-94.pdf" type="application/pdf; length=501237">2020-zwsc-94.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/international-law">International law</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interpretation">Interpretation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/state-responsibility">State responsibility</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/subjects-human-rights">Subjects of human rights</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/children">Children</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family">Family</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/housing">Housing</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Wed, 19 Aug 2020 13:13:01 +0000 Sandra 9841 at https://old.zimlii.org Mhora v Mhora (SC 89-20, Civil Appeal No. SC 617/18) [2020] ZWSC 89 (29 June 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/89 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/89/2020-zwsc-89.pdf" type="application/pdf; length=5427263">2020-zwsc-89.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/husband-and-wife-family-law">Husband and wife (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/divorce-husband-and-wife-family-law">divorce (Husband and wife FAMILY LAW)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/equality-and-non-discrimination">Equality and non-discrimination</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/house-forming-part-matrimonial-estate-registered-sole-name-husband">House forming part of matrimonial estate but registered in sole name of husband</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2009/13">Gonye v Gonye (68/06) ((68/06)) [2009] ZWSC 13 (01 April 2009);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2017/66">Muzongondi v Muzongondi (SC 66/17 , Civil Appeal No. SC 303/14) [2017] ZWSC 66 (20 October 2017);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2003/11">Usayi v Usayi (49/01) ((49/01)) [2003] ZWSC 11 (23 June 2003);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2018/483">Mutizhe v Mutizhe (nee Fuwe) (HH 483-18, HC 559/16) [2018] ZWHHC 483 (16 August 2018);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1964/81">Marriage Act [Chapter 5:11]</a></div><div class="field-item odd"><a href="/zw/legislation/consolidated-act/513">Matrimonial Causes Act ,5:13</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 20 Jul 2020 07:22:58 +0000 Sandra 9797 at https://old.zimlii.org Mlotshwa v District Administrator Hwange N.O & Anor (HB 94-20, HC 921/18) [2020] ZWBHC 94 (25 June 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/94 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/94/2020-zwbhc-94.pdf" type="application/pdf; length=4766483">2020-zwbhc-94.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/customary-law">CUSTOMARY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/chieftainship">Chieftainship</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appointment-chiefs-president">appointment of chiefs by President</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/consideration-applicable-customary-principles-succession">consideration to applicable customary principles of succession</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/equality-and-non-discrimination">Equality and non-discrimination</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mandament-van-spolie-see-spoliation">MANDAMENT VAN SPOLIE See SPOLIATION</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/35">Moyo v Mkoba &amp; Others (Civil Appeal No. SC 26/12) [2013] ZWSC 35 (06 August 2013);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1998/25">Traditional Leaders Act [Chapter 29:17]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Wed, 08 Jul 2020 08:37:42 +0000 Sandra 9774 at https://old.zimlii.org Makoka v Minister of Health and Child Care & 4 Ors (HH 414-20, HC 3003/20) [2020] ZWHHC 414 (19 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/414 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>GUMAI MAKOKA</p> <p>versus</p> <p>MINISTER OF HEALTH AND CHILD CARE</p> <p>and</p> <p>MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT</p> <p>and</p> <p>MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE</p> <p>and</p> <p>MINISTER OF LOCAL GOVERNMENT, RURAL AND URBAN DEVELOPMENT</p> <p>and</p> <p>THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSAKWA J</p> <p>HARARE, 13, 19 May 2020 and 19 June 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>T. Biti</em>, for applicant</p> <p><em>T. Tembo</em>, for respondent</p> <p> </p> <p> </p> <p>MUSAKWA J: COVID-19 has spawned a lot of litigation in the wake of its outbreak not so long ago. So much litigation such that in instances like the present case, counsel are tempted to cull whole passages from one founding affidavit and pasting onto another affidavit in a different matter without ado. The other notable feature of COVID-19 litigation is the upsurge in public interest litigation.</p> <p>In his amended draft order the applicant seeks the following relief-</p> <p>“Terms of the Interim Relief Granted</p> <p>1          The 2nd, 3rd and 4th Respondents be and are hereby ordered to provide safety nets in the form of cash handouts, food and portable water during the period in which a declaration of COVID-19 as a formidable epidemic disease has effect to eligible citizens as is provided for in regulations referred in paragraph 2 below.</p> <p>2.         The 3rd Respondent be and is hereby ordered to publish regulations in terms of section 13 of the Social Welfare Assistance Act within seven days from the granting of this order that define the eligibility of beneficiaries of the provision of social safety nets during the period in which a declaration of COVID-19 as a formidable epidemic disease has effect and the methodology to be used in identifying qualifying citizens and any other ancillary matter deemed appropriate to realise the same for such period;</p> <p>Terms of the Final Order Sought</p> <p>3.         It is ordered and declared that:</p> <p>(a)        The Respondents’ failure to enact Regulations providing mechanisms that support SI 83 of 2020, Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order, 2020 for the provision of relief from distress in the form of food and water deliveries is a breach of the right to life, the right to health and the right to a clean environment as protected by the Constitution of Zimbabwe.</p> <p>(b)        The respondents pay costs of suit.”</p> <p>The applicant resides in Crowhill with his wife, child and a nephew. He is employed in the informal sector as a driver. He does not specify the exact details of his employment. However, the applicant claims that he used to earn RTGS$600 per month prior to the national lockdown. He used to supplement his income by buying and selling unspecified goods.</p> <p>The applicant avers that from the onset of lockdown there has been public intimation to avail support to disadvantaged persons like himself. He learnt of that from radio. An unspecified Deputy Minister then visited the community to get names of those in need of aid. The applicant submitted his name and the names of his family. He further claims that no aid has since been availed.</p> <p>The applicant further avers that there are several people in the same predicament like him in Crowhill. The applicant expresses such hardship of the people in the following manner:</p> <p>“…. face hardships of shortages of water, crowded public wares along Domboshawa road which provides selling points for residents of such communities.”</p> <p>The applicant contends that the respondents must pass regulations that require and compel the government to provide safety nets that support the implementation of the restriction on movement during the tenure of lockdown to societies that are most affected by the inability to move and trade.</p> <p>Whilst commending the lockdown regulations, the applicant contends that regulations should be enacted to outline who qualifies for aid, where they can claim, how to claim and the time within which the respondents must respond to any application. This is because no objective criteria and framework is in place to allow vulnerable people to seek social protection. Therefore this is a constitutional application to compel the respondents to enact regulations that require the State to protect citizens’ rights to life, health, food and water.</p> <p>A large portion of the applicant’s founding affidavit relates to a lecture on the essence of coronavirus, how it spreads and how it can be controlled. There is reference to and statistics of the scourge in other countries. A large part of the affidavit is devoted to pleadings on the law. This is despite that a litigant should not plead the law but facts giving rise to the cause of action. Another disquieting feature of the founding affidavit is that some of its paragraphs are culled from the founding affidavit in the matter of <em>Allan Norman Markham and Another v Minister of Health and Child Care and Others</em>, HH-263-20.</p> <p>The respondents raised some preliminary points which I dismissed. I noted that some if not all the preliminary issues were more germane to the merits.</p> <p>The first respondent opposed the relief sought. An opposing affidavit was sworn to by Doctor Maxwell Mareza Hove, the director of Pathological Services in the Ministry of Health and Child Care. He contends that the first respondent has no mandate to provide social safety nets as that is the responsibility of the third respondent. The same applies to the provision of potable water which is the responsibility of the fourth respondent.</p> <p>The second respondent personally responded to the application and deposed to a detailed affidavit which I proceed to summarise. Following the declaration of national lockdown on 30 March 2020, he issued a press statement on fiscal mitigatory measures to contain the pandemic. The measures include social protection and the provision of funds to vulnerable members of society. Resources were set aside for the provision of such assistance to one million households. Resources were also allocated to the first respondent. Government also engaged the producers of water treatment chemicals in order to enable local authorities to provide potable water to residents.</p> <p>The second respondent takes issue with applicant’s averments in regard to the earnings of people of Crow Hill without any supporting proof. He also takes issue with the demography of Crow Hill which he avers is not crowded as alleged by the applicant.</p> <p>The second respondent also contends that there is no obligation on the part of the government to enact regulations on the provision of safety nets. This is because measures have already been put in place for the provision of safety nets. Reference is made to the press statement of 30th March 2020.</p> <p>Simon Masanga the permanent secretary for the Ministry of Public Service, Labour and Social Welfare deposed to an opposing affidavit on behalf of the third respondent. He contends that there is no need to pass new regulations providing for the provision of support to the vulnerable. The current legal framework is adequate. More people are being assisted than was previously the case before the COVID-19 pandemic was declared a national disaster. Measures have been put in place for the provision food, water and shelter to the vulnerable. The applicant should visit the relevant social welfare office in his locality and apply for social welfare.</p> <p>Zvinechimwe Churu, the permanent secretary in the Ministry of Local Government and Public             Works deposed to a founding affidavit on behalf of the fourth respondent. He avers that in keeping with its supervisory role of local authorities, the Ministry of Local Government and Public Works issued a circular informing local authorities to provide potable water to affected areas during the period of lockdown. A lot of litigation has been instituted in which has been sought orders for the provision of water and in the case of Harare, an order by consent was granted.</p> <p>Submissions</p> <p>Mr<em> Biti </em>submitted that there is endemic poverty that has been exacerbated by unemployment. People are food vulnerable and urban populations are living in extreme poverty. Under such circumstances the right to life entails maintaining livelihood. Thus safety nets must be provided. Whilst it is contended that interventions have been made, the third respondent is said to have claimed that it has not received any funding for that purpose from the second respondent. Whilst acknowledging that the Social Welfare Assistance Act [<em>Chapter 17:06</em>] provides for social welfare assistance, Mr Biti submitted that it was not designed for assistance that is required in the wake of the COVID-19 pandemic. Thus what is sought is mass intervention which goes beyond alleviating ordinary hardship. Even if some intervention is taking place the issue is what criteria is being employed.</p> <p>Mr <em>Biti</em> cited a number of authorities dealing with the actualisation of economic, social and cultural rights. These are <em>Soobramoney </em>v<em> Minister of Health, KwaZulu-Natal</em> 1998 (1) SA 765, <em>Minister of Health and Others </em>v <em>Treatment Action Campaign and Others</em> 2002 (5) SA 721 and <em>Louis Khosa and Others </em>v<em> The Minister of Social Development and Others</em> 2004 (6) SA 505 (CC).</p> <p>Ms <em>Tembo</em> submitted that there is no need for the enactment of regulations. This is because the Social Welfare Assistance Act has provisions that enable the applicant to apply for assistance. She drew attention to s 6 and further submitted that the scope of assistance provided by the third respondent has been widened. Various media has been used to publicise the assistance that the third respondent is providing. Even the applicant qualifies for such assistance. All that the applicant needs to do is to register for assistance. The issue is not about the deficit in the regulatory framework as is being contended. The state’s obligations towards the public is not disputed. However, actualisation of such obligations can only be done progressively.</p> <p>Analysis</p> <p>In light of the depositions and the submissions made, the issue before me is a narrow one. This is because the respondents accept that the state is obliged to assist its citizens. In respect of shelter, health and         social welfare, the specific provisions of the Constitution of Zimbabwe state that-</p> <p>“<strong>28 Shelter </strong></p> <p>The State and all institutions and agencies of government at every level must take reasonable legislative and other measures, within the limits of the resources available to them, to enable every person to have access to adequate shelter.</p> <p><strong>29 Health services </strong></p> <p>(1) The State must take all practical measures to ensure the provision of basic, accessible and adequate health services throughout Zimbabwe.</p> <p>(2) The State must take appropriate, fair and reasonable measures to ensure that no person is refused emergency medical treatment at any health institution.</p> <p>(3) The State must take all preventive measures within the limits of the resources available to it, including education and public awareness programmes, against the spread of disease.</p> <p><strong>30 Social welfare </strong></p> <p>The State must take all practical measures, within the limits of the resources available to it, to provide social security and social care to those who are in need.”</p> <p>For purposes of the present application, the issues are the provision of social welfare assistance (safety nets) to unidentified people and the passing of enabling legislation for purposes of the provision of social welfare to those affected by the COVID-19 pandemic. The applicant claims to be one of those disadvantaged by the restrictions imposed on the general populace in the State’s quest to contain the pandemic.</p> <p>In motion proceedings the founding and supporting affidavits set out the cause of action. The affidavits constitute the pleadings. Thus they must set out what is necessary to be proved in a trial.<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a></p> <p>Regarding the claim for social welfare, the applicant’s averment is that-</p> <p>“I aver that I gave my name and that of my family as persons in need of aid but to date, no aid has come, and no aid looks like it will come.”</p> <p>According to s 3 of the Social Welfare Assistance Act an application for social welfare is made to the Director in the prescribed form. Section 3 makes reference to a destitute or indigent person making such application. Section 2 defines these terms as:</p> <p>“destitute or indigent person” means any person who lacks means of subsistence;”</p> <p>This means that if the applicant or any other person lack means of survival on account of the current lockdown, they fall within the above definition and are eligible to apply for social welfare assistance. The applicant has not tendered any proof of the application he made for social welfare assistance. No date is given when he did so or to whom he made such application despite the clear provision of the Act regarding how such an application is made.</p> <p>It is also curious that the applicant is seeking the enactment of legislation on the provision of safety nets without seeking an order compelling the Director of Social Welfare to provide him with social welfare assistance. This does not show any seriousness in the institution of the present proceedings. There is a disconnect between the relief being sought and the averments in the founding affidavit. It is lofty for the applicant to purport to litigate on behalf of unidentified people who are in the dire circumstances he describes. There is no doubt that many people are experiencing hardship on account of restrictions that were imposed on their activities. However, it is one thing to know that there are generally such hardships but it is a different issue to know how many people are in dire need of assistance and have been denied such assistance.</p> <p>A look at the South African case authorities cited by Mr<em> Biti</em> shows that the litigants who instituted those proceedings had better causes to mount the constitutional applications. The litigants were either denied social welfare assistance or access to healthcare facilities. Those authorities are clearly distinguishable from the present application in as far as the causes of action are concerned. The present application is some kind of exploratory litigation. The very fact that some parts of the founding affidavit were culled from the case of <em>Allan Norman Markham and Another v Minister of Health and Child Care and Others supra</em> exposes the mischief on the part of the applicant or whoever was instrumental in influencing him to litigate. This is because the applicants in<em> Allan Norman Markham and Another v Minister of Health and Child Care and Others supra</em> were seeking the same relief that is being sought in the present application but the application was dismissed on account of not having cited the Ministry of Public Service, Labour and Social Welfare.</p> <p>I am not satisfied that the applicant has made a case warranting the court to order the enactment of subsidiary legislation on safety nets and to provide social welfare assistance to unnamed persons. Accordingly, the application is hereby dismissed. In light of the copying and pasting of averments from another matter that is evident in the drafting of the founding affidavit, the applicant is ordered to pay the respondent’s costs.</p> <p><em>Tendai Biti Law</em>, applicant’s legal practitioners</p> <p>Civil <em>Division of the Attorney General’s Office</em>, respondents’ legal practitioners</p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> Herbstein &amp; Van Winsen The Civil Practice Of The Supreme Court Of South Africa</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/414/2020-zwhhc-414.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26090">2020-zwhhc-414.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/414/2020-zwhhc-414.pdf" type="application/pdf; length=443516">2020-zwhhc-414.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/food-security">Food security</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/health">Health</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2020/263">Markham &amp; Anor v Minister of Health and Child Care &amp; 3 Ors (HH 263-20, HC 2168/20) [2020] ZWHHC 263 (15 April 2020);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 29 Jun 2020 10:27:09 +0000 Sandra 9725 at https://old.zimlii.org Markham & Anor v Minister of Health and Child Care & 3 Ors (HH 263-20, HC 2168/20) [2020] ZWHHC 263 (15 April 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/263 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ALLAN NORMAN MARKHAM   </p> <p>and</p> <p>MFUNDO MLILO</p> <p>versus</p> <p>MINISTER OF HEALTH AND CHILD CARE</p> <p>and</p> <p>MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT</p> <p>and</p> <p>MINISTER OF LOCAL GOVERNMENT, RURAL AND URBAN DEVELOPMENT</p> <p>and</p> <p>THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSAKWA AND TAGU JJ</p> <p>HARARE, 14 &amp; 15 April 2020</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p>MUSAKWA J: In the wake of the prevailing scourge wrought by the Covid-19 virus, the applicants seek the following relief:</p> <p>“Terms of the Interim Relief Granted</p> <p>1. The second, third and fourth respondents shall pass regulations and enforce such regulations that provide for emergency relief in the form of door to door food hand-outs, cash hand-outs, water deliveries and related provisions that sustain the livelihoods of affected communities during the lockdown period, within forty eight hours of this order.</p> <p>Terms of the Final Order Sought</p> <p>2. It is ordered and declared that:</p> <p>(a)The respondents’ failure to enact regulations providing mechanisms that support Statutory Instrument 83/2020, Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order, 2020 for the provision of relief from distress in the form of and water deliveries is a breach of the right to life, the right to health and the right to a clean environment as protected by the Constitution of Zimbabwe.</p> <p>2. The respondents pay costs of suit.”</p> <p>The first applicant is a Member of Parliament and represents Harare North constituency. He is also a medical doctor. The second applicant is also said to be a legislator whose constituency is not stated. He has qualifications in Regional and Urban Planning, Public Policy, Public Finance and Economics.</p> <p>Whilst the applicants support the publication of the Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order, Statutory Instrument 83/2020, they contend that the measures are inadequate as there is no provision for safety nets for the vulnerable. Hence the quest to compel the passing of regulations for the provision of emergency relief. The first applicant elaborates that the respondents have a constitutional obligation to protect the right to life and health by providing water and food subsidies during the period of lockdown. It may be noted that in many respects some of the measures being urged by the applicants are already being implemented. For example restrictions on movement and the provision of personal protective equipment</p> <p>In opposing the relief sought the first and second respondents contend that they are not responsible for the enactment of the envisaged regulations the first respondent contends that this is the responsibility of the Ministry of Public Service, Labour and Social Welfare which has not been cited in the proceedings.</p> <p>            A more detailed response was filed by the second respondent who from the onset disputes that he is obliged to pass regulations on safety nets. The second respondent points out that the government is in the process of rolling out electronic cash payments to vulnerable households. Assistance is also being extended to the “new vulnerable” during the lockdown period. Homeless people have been sent to various places of safety of which money for their welfare has been availed. Government has availed the bulk of resources for fighting the pandemic to the Ministry of Health and Child Care. The second respondent attached a press statement that he issued on 30th March 2020. The press statement covers interventions being made by the government which on the face of it address the concerns being raised by the applicants.</p> <p>It would have been remiss on the part of Mr <em>Biti </em>not to display some erudition reflective of his understanding of public interest litigation. This he did by referring to such authorities as <em>Loveness Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs and Others</em> CCZ 12/15, <em>Francis Corale Mullin v The Administrator Union</em> 1981 AIR 746, <em>Olga Tellis and Others v Bombay Municipal Council</em> [1985] 2 Supp SCR 51, <em>SP Gupta v The Union of India And Others </em>(1982) 2 SCR 365 and <em>State of Uttaranchal v Chaufal and Others AIR</em> (2010) SC 2550. It will be noted that these authorities are referred to in the judgement of <em>Loveness Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs and Others supra</em>. It is not in doubt that the present matter is of public interest and no argument was raised by the respondents to dispute that. Therefore I will not delve into s 85 of the Constitution, upon which the application is premised.</p> <p>Mr<em> Biti</em> further submitted that the government is trying to avoid responsibility by apportionment of responsibility to a party who is not before the court. He emphasised that the application has nothing to do about social welfare. Rather it has more to do with creating a legal environment to give effect to the government’s interventions.</p> <p>Counsels for the respondent submitted that the Ministry of Public Service, Labour and Social Welfare should have been cited. They further submitted that notwithstanding its non-joinder, the Ministry of Public Service, Labour and Social Welfare is already implementing what is being sought. The issue of water provision is being addressed through the various local authorities. In the case of Mutare a judgment enforcing the provision of water has already been handed down. It was also contended that it is not the second respondent’s mandate to make regulations on social protection.  </p> <p>The enactment of subsidiary legislation, notwithstanding the dire situation the country finds itself in, is not a routine affair. S 134 of the Constitution provides that-</p> <p>“Parliament may, in an Act of Parliament, delegate power to make statutory instruments within the scope of and for the purposes laid out in that Act, but—</p> <p>(<em>a</em>) Parliament’s primary law-making power must not be delegated;</p> <p>(<em>b</em>) statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights;</p> <p>(<em>c</em>) statutory instruments must be consistent with the Act of Parliament under which they are made;</p> <p>(<em>d</em>) the Act must specify the limits of the power, the nature and scope of the statutory instrument that may be made, and the principles and standards applicable to the statutory instrument;</p> <p>(<em>e</em>) statutory instruments do not have the force of law unless they have been published in the <em>Gazette; </em>and</p> <p>(<em>f</em>) statutory instruments must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny.”     </p> <p>With the above provision in mind, it will be necessary to consider the various Acts that have a bearing on the present matter. The minister with responsibility for the administration of the Civil Aviation Act [<em>Chapter 10: 06</em>] is the third respondent. S 44 of the Act provides that-</p> <p>“(1) The Minister may, by regulation, provide for all matters which by this Act are required or permitted to be prescribed or which, in his opinion, are necessary or convenient to be provided for in order to give effect to this Act.</p> <p>(2) Regulations made in terms of subsection (1) may prescribe penalties for contraventions thereof, but no</p> <p>such penalty shall exceed a fine of level five or imprisonment for a period of six months or both such fine and such imprisonment.”</p> <p>S 68 of the Public Health Act [<em>Chapter 15:17</em>] provides that-</p> <p>“(1) Subject to the provisions of this Act, in the case of the occurrence or threatened outbreak of any formidable epidemic disease, condition or event of public health concern, the Minister may make regulations as to all or any of the following matters, namely—</p> <p>(<em>a</em>) the imposition and enforcement of quarantine and the regulation and restriction of public traffic and of the movements of persons;</p> <p>(<em>b</em>) the closing of schools or the regulation and restriction of school attendance;</p> <p>(<em>c</em>) the closing of churches and Sunday schools and restriction of gatherings or meetings for the purpose of public worship;</p> <p>(<em>d</em>) the regulation or restriction or, where deemed necessary, the closing of any place or places of public entertainment recreation or amusement, or where intoxicating liquor is sold by retail, and the regulation or restriction, or, where deemed necessary, the prohibition, of the convening, holding or attending of entertainments, assemblies, meetings or other public gatherings,;</p> <p>(<em>e</em>) the prevention and remedying of overcrowding or the keeping of an dwelling or other building or the contents thereof in a state of sanitation posing or likely to pose a public health risk;</p> <p>(<em>f</em>) the medical examination of persons who are suspected of being infected with, or who may have recently been exposed to the infection of, such disease, and of persons about to depart from any infected area, and the disinfection of their baggage and personal effects, and the detention of such persons until they have after such examination been certified to be free from any infectious disease and until their baggage and personal effects have been disinfected;</p> <p>(<em>g</em>) the keeping under medical observation or surveillance, or the removal, detention and isolation of persons who may have recently been exposed to the infection of, and who may be in the incubation stage of; such disease the detention and isolation of such persons until released by due authority, the use of guards and force for that purpose, and, in case of absolute necessity, the use of firearms or other weapons, and the arrest with or without warrant of any person who has escaped from such detention or isolation;</p> <p>(<em>h</em>) the establishment of isolation hospitals and the removal and isolation of persons who are or are suspected to be suffering from any such disease, the accommodation, classification, care and control of such persons and their detention until discharged by due authority as recovered and free from infection, and the establishment, management and control of convalescent homes or similar institutions for the accommodation of persons who have recovered from any such dis-ease;</p> <p>(<em>i</em>) inquiries into the cause of death of any person, apart from any inquiry by a magistrate under any other enactment; the ordering, when deemed necessary, of post-mortem examinations or of exhumations; the prohibition in special circumstances of the burial of any dead body except on a certificate by a medical officer appointed to grant such certificates or after compliance with any other specified conditions, the regulation of the mode of disposal, the times and places of burial of dead bodies and the manner of conducting removals and burials thereof;</p> <p>(<em>j</em>) the regulation and restriction and, if deemed necessary, the prohibition of the removal of merchandise or any article or thing into, out of or within any specified or defined area;</p> <p>(<em>k</em>) the provision of disinfecting plant and equipment, and the disinfection or where disinfection is impossible, the destruction of any article or thing, or the disinfection of any premises which are or are believed to be contaminated with the infection of such disease;</p> <p>(<em>l</em>) the inspection of premises and articles and the discovery and remedying of sanitary or other defects likely to favour the spread or render difficult the eradication of such disease;</p> <p>(<em>m</em>) the evacuation, closing, alteration 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, and the definition of the circumstances under which compensation may be paid in respect of any premises so demolished or destroyed and the manner of fixing such compensation;</p> <p>(<em>n</em>) in the case of plague, the destruction of fleas and rodents and the removal or improvement of conditions likely to favour the harbourage or multiplication of rodents, and the disposal of the carcasses of rodents or other animals believed or suspected to have died of plague;</p> <p>and such other matters as the Minister may deem necessary for preventing the occurrence of such disease or limiting or preventing the spread thereof or for its eradication and generally for the better carrying out and attaining the objects and purposes of this Part.</p> <p>(2) Any person who contravenes any provision of regulations made in tents of subsection (1) shall be guilty of an offence and liable to a fine not exceeding level twelve or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.</p> <p>(3) Regulations made under subsection (1) shall not apply to persons about to depart from Zimbabwe.”</p> <p>On the other hand s 13 of the Social Welfare Assistance Act [<em>Chapter 17:06</em>] provides that-</p> <p>“(1) The Minister may make regulations providing for all matters which by this Act are required or permitted to be prescribed or which, in his opinion, are necessary or convenient to be prescribed for carrying out or giving effect to this Act.</p> <p>(2) Regulations made in terms of subsection (1) may provide for—</p> <p>(<em>a</em>) the form and manner of application to be made in terms of this Act;</p> <p>(<em>b</em>) the information and other evidence required to be furnished by an applicant or beneficiary for social</p> <p>welfare assistance in terms of this Act;</p> <p>(<em>c</em>) the duration for which social welfare assistance may be granted in respect of different categories of</p> <p>beneficiaries;</p> <p>(<em>d</em>) the rates and amounts of financial assistance that may be granted in respect of different categories of</p> <p>beneficiaries:</p> <p>Provided that before making any regulations in terms of this paragraph the Minister shall obtain the approval of the Minister responsible for finance.”</p> <p>It is trite that a matter stands or falls on its founding papers. Mr <em>Biti</em> argued that regulations must be made in terms of the Civil Protection Act and the Public Health Act. The purpose of such regulations is to give effect to the provision of relief that is being availed by the second respondent. Whilst Mr <em>Biti</em> strenuously argued that the redress they seek is not about welfare, paragraph 184 of the first applicant’s founding affidavit avers that-</p> <p>“The order sought herein is the promulgation of regulations that support the provision for relief for those in distress during this period, which relief is in the form of food hand-outs, cash hand-outs, provision for water deliveries for affected areas and provision and other consequential relief for the needs of particular areas.”</p> <p>It is inevitable that the current lockdown will inconvenience and distress a lot of people. It is also inevitable that vulnerable sections of the population will have difficulties in accessing basic necessities. Essentially what the applicants seek is the provision of welfare to the marginalised. And this is already being done by the provision of funds for that purpose by the second respondent. The second respondent has no power to pass regulations in terms of the legislation applicable in this matter. The same applies to the first respondent. Whilst a pandemic such as COVID-19 falls within the definition of national disaster as defined in the Civil Protection Act, the provisions of the Act fall short of what the Social Welfare Assistance Act provides as regards the scope of social welfare.</p> <p>It is not in dispute that the Ministry of Public Service, Labour and Social Welfare is already seized with the exercise of providing relief to those worst affected by the lockdown. It is the Ministry of Public Service, Labour and Social Welfare that is responsible for the administration of the Social Welfare Assistance Act. What the applicants seek is <em>fait accompli</em>, but for there being no regulations governing what is already being implemented. Consequently Ministry of Public Service, Labour and Social Welfare should have been cited in the present proceedings.</p> <p>In the result, the application is dismissed with no order as to costs.</p> <p> </p> <p>TAGU J agrees</p> <p> </p> <p><em>Tendai Biti Law</em>, applicants’ legal practitioners</p> <p><em>Civil Division of the Attorney-General</em>, Respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/263/2020-zwhhc-263.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25291">2020-zwhhc-263.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/263/2020-zwhhc-263.pdf" type="application/pdf; length=340170">2020-zwhhc-263.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/food-security">Food security</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/health">Health</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2016/12">Mudzuru &amp; Another v Ministry of Justice, Legal &amp; Parliamentary Affairs (N.O.) &amp; Others (Const. Application No. 79/14, CC 12-15) [2015] ZWCC 12 (20 January 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 29 Jun 2020 10:22:16 +0000 Sandra 9724 at https://old.zimlii.org Mutamba & 2 Ors v City of Masvingo & 3 Ors (HMA 19-20, HC 84/20) [2020] ZWMSVHC 19 (21 May 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/19 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>NEVERMIND MUTAMBA</p> <p>and</p> <p>MUSEKIWA SUNGANO ZVAREBWANASHE</p> <p>and</p> <p>MASVINGO UNITED RESIDENTS AND RATEPAYERS ALLIANCE</p> <p>versus</p> <p>CITY OF MASVINGO</p> <p>and</p> <p>MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O</p> <p>and</p> <p>MINISTER OF HEALTH AND CHILD CARE</p> <p>and</p> <p>MINISTER OF FINANCE N.O</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>WAMAMBO J</p> <p>MASVINGO, 6, 7, 10 April and 21 May 2020</p> <p> </p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p> </p> <p><em>M. Mureri</em> for the applicants</p> <p><em>R. Makausi </em>with him<em> J. Mupoperi </em>for the 1st respondent</p> <p><em>T.Undenge </em>with him<em> F. Chingwere</em> for the 2nd to 4th respondents</p> <p> </p> <p> </p> <p>WAMAMBO J:   I earlier, ordered that the application is dismissed with costs. These are the comprehensive reasons for so ordering.</p> <p>This is an urgent chamber application wherein applicants seek the following relief:</p> <p>TERMS OF FINAL ORDER SOUGHT</p> <p>That you show cause to this Honourable Court why a Final Order should not be made in the following terms: -</p> <p> </p> <ol> <li>The 1st respondent is ordered to continue to supply adequate constant, clean and potable running tap water or water from bowsers to the 1st applicant and residents of Rujeko, Mucheke, Zimre Park, Rhodene and Cloverly, Masvingo.</li> </ol> <p> </p> <ol> <li>The 1st Respondent’s failure to ensure supply of adequate constant clean and potable water to 1st applicant and residents of Rujeko, Mucheke, Zimre Park, Rhodene and Cloverly in Masvingo be and is hereby declared to be a violation of Applicant’s right to clean, safe and potable water as provided for under Section 77(a) of the Constitution of Zimbabwe (2013).</li> </ol> <p> </p> <ol> <li>The 2nd, 3rd and 4th respondent’s failure to take steps to ensure that 1st respondent supplies adequate constant, clean safe and potable water to the Applicants and the residents of Rujeko, Mucheke, Zimre Park, Rhodene and  Cloverly for the period of the national lockdown and beyond.</li> </ol> <p> </p> <ol> <li>be and is hereby declared to be a violation of the Applicants’ right to clean, safe and potable water in terms of section 77(a) of the Constitution.</li> </ol> <p> </p> <ol> <li>it further be and is hereby declared to be a violation of the Applicants right to basic healthcare in terms of section 76 of the Constitution.</li> </ol> <p> </p> <ol> <li>The respondents shall jointly and severally one paying the other to be absolved bear the costs of this suit.</li> </ol> <p> </p> <p>INTERIM RELIEF GRANTED</p> <p> </p> <p>Pending determination of this matter applicant is granted the following relief:-</p> <p> </p> <ol> <li>That the 1st respondent is ordered to immediately supply adequate constant, clean and potable tap water and water on wheels of water bowsers to the 1st applicant and residents of Rujeko, Mucheke, Zimre Park, Rhodene and Cloverly suburbs during the period of the national lockdown and state of disaster and as may be subsequently extended.</li> </ol> <p> </p> <ol> <li>The 1st respondent is ordered to supply a schedule for the immediate deployment of water bowsers within Rujeko, Mucheke, Rhodene, Zimre Park and Cloverly suburbs to the applicant’s legal practitioners within twenty-four hours   of this order.</li> </ol> <p> </p> <ol> <li>The 1st respondent shall supply bulk water supplies to the applicants during the period of the national lockdown and state of disaster and or its extension and such supplies shall be supplied subject to social distancing guidelines</li> <li>The 2nd Respondent and 3rd respondent are ordered to ensure that they provide oversight and monitoring to the 1st respondent in implementing the measures above.</li> </ol> <p> </p> <ol> <li>The 4th respondent shall urgently assist the 1st respondent in implementing the measures above.</li> </ol> <p> </p> <ol> <li>There should be no order as to costs</li> </ol> <p> </p> <p>SERVICE OF THIS ORDER</p> <p>Applicants legal practitioners be and are hereby granted leave to effect some of this order on the relevant parties.</p> <p> </p> <p>The first respondent is opposed to the application.  <em>Mr Mureri</em> for the applicant withdrew the application against the 4th respondent on the grounds that 4th respondent had disbursed money to first respondent and additionally paid money towards water treatment.  The second to third respondents were content to abide by the decision of the court.</p> <p><em>Mr Makausi</em> counsel for the first respondent raised a number of points in <em>limine</em> as follows:</p> <ul> <li>matter is not urgent</li> <li>3rd applicant is improperly before the court and lacks <em>locus standi</em> to bring this application</li> <li>the draft   order is defective</li> <li>the applicants used the wrong form for the application</li> </ul> <p>It would appear that some of the points in <em>limine </em>appear as separate in separate<em> paragraphs </em>though the actively are just points that flow from the main points<em> in limine as </em>reflected above.  I will deal with the points in <em>limine</em> in full.</p> <p>URGENCY</p> <p> First respondent avers that the application is not urgent as applicants have not alleged that 1st respondent has not been supplying water to the residents of Masvingo as specified before the Minister of Health lockdown declaration encapsulated in S.1.83 of 2020 (hereafter referred to as the Lockdown Order).   First respondent further avers that applicants make it clear that the cause of action arose many years before the Lockdown Order as referred to earlier. </p> <p>First respondent makes many other averments which effectively denote that the applicants did not act when the need to act arose and that they are abusing court process.</p> <p>The applicants stick by their application and clarified the issues by stating that their application clearly relates to the period after the Lockdown Order.  Effectively that the cause of action only arose because of the COVID epidemic that has engulfed virtually the whole world.  Between the Lockdown Order and this application are only four days.  It is indeed common cause that COVID 19 is an epidemic with astronomical consequences.</p> <p>I am in agreement with the applicants that they have established urgency.  Clearly the need to act in this cause only arose after the Lockdown Order. The application was filed a few days afterwards.  If I understand the applicants well the need to act only arose because COVID 19 was officially and legally recognised as an epidemic in our country through the law.  The application has its basis on the recognition that the disease COVID 19 is not only an epidemic but the real and broad dimensions have also been recognised under our law.  That is to say the precautions to be taken against the disease, the symptoms thereof among others are spelt out explicitly in the law and is splashed all over the television advertisements, radio and other media.  The certificate of urgency is also attacked for various reasons. I find that the attack is misplaced. It clearly reflects the history, the reasons and the implications of the urgency as based on founding affidavit.  In light of the above I find the preliminary point.</p> <p><em>LOCUS STANDI</em> OF 3RD APPLICANT.</p> <p>1st respondent argues that 3rd applicant is not only a universitas but also that Anoziva Muguti who deposed to an affidavit representing 3rd applicant calls himself a director while the organisation he purports to represent does not have directors but Trustees. While arguing that 3rd applicant is not a universitas 1st respondent in paragraph 3.2. of the application avers as follows:-</p> <p>“<em>Further to that a perusal of the same Annexure ‘D’ to the applicant’s urgent chamber application reveals that the universitas created by the document is MASVINGO UNITED RESIDENTS AND RATEPATERS AND ALLIANCE TRUST (MURRAT).”</em></p> <p> </p> <p>Clearly 1st respondent have acknowledged that 3rd applicant is indeed a universitas. In the same paragraph 1st respondent avers that 3rd applicant is improperly before this court as it has not been shown how it is a universitas.</p> <p>A further major complaint raised by 1st respondent is that Annexure “D” the Deed of Trust creating 3rd respondent indicates that it is not membership based but is made entirely of 6 to 10 Trustees, the management team and the employees. That there is no mention of any general membership of the residents of Masvingo as members of the Trust. 1st respondent avers that the objectives of the Trust do not mandate 3rd applicant to represent Masvingo residents in court. The residents purportedly represented by 3rd applicant are not only mentioned but clearly 3rd applicant cannot represent people who are not its members. The 1st respondent argues further that 3rd applicant does not allege that it is a resident of Masvingo or where it operates from or how it is affected by the water shortage.</p> <p>The applicant’s counter argument is that they are covered by section 85 of the Constitution.</p> <p>In <em>C.T. Bolts (Pvt) Ltd</em> v Workers Committee SC 16/12 GARWE JA at page 2 had this to say:-</p> <p>“<em>Under the common law an incorporated association not being a legal persona cannot as a general rule, sur or be sued in its name apart from the individual members, whose names have to be cited in the summons. A universities on the other hand has the capacity apart from the rights of the individuals forming it to acquire rights and incur obligations. The position is also established that a body that has no Constitution is not a universitas for it is the Constitution that determines whether an association is or is not a universitas</em>.”</p> <p> </p> <p>MUSAKWA J <em>in Southlea Park Home Owners’ Association</em> <em>v Sensene Investments</em> (Private) Limited &amp; Others HH 90/19 at page 5 contributed as follows:-</p> <p>“<em>Another essential ingredient of locus standi is that a party who institutes legal proceedings must demonstrate some interest that requires legal protection. In the case of Lottie Gertrude Bevier Stevenson v The Minister of Local Government and National Housing and Others SC 38/02 it was held that there must be real and substantial interest or direct and substantial interest</em>.”</p> <p> </p> <p>In this case 3rd applicant’s Deed of Trust – Annexure “D’s” first main objective is ‘to advocate for quality service provision by the local authority and other service providers for the residents of Masvingo’.</p> <p>Section 85 of the Constitution reads as follows:-</p> <p>“<em>85.     Enforcement of fundamental human rights and freedoms </em></p> <p><em>(i)           Any of the following persons, namely-</em></p> <p><em>            (a) any person acting in their own interests; </em></p> <p><em>(b) any person acting on behalf of another person who cannot act for  </em></p> <p><em>      themselves; </em></p> <p> </p> <p><em>(c) any person acting as a member, or in the interests, of a group or class  </em></p> <p><em>     of persons; </em></p> <p> </p> <p><em>(d) any person acting in the public interest; </em></p> <p><em>(e ) any association acting in the interests of its members;</em></p> <p> </p> <p><em>is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.” </em></p> <p> </p> <p>Applicants aver that the failure to supply adequate, clean potable water is a violation of their rights to clean, safe and potable water as provided for under section 77(a) of the Constitution Section 77(a) reads as follows:-</p> <p>“<em>77.     Right to food and water </em></p> <p><em>Every person has the right to-</em></p> <ol> <li><em>safe, clean and potable water; and </em></li> <li><em>sufficient food; and the State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of this right.</em>”</li> </ol> <p> </p> <p>I find in the circumstances that not only has 3rd applicant established that it has a Constitution but that the Constitution expressly provides inter alia that it can advocate for quality serve provision by the local authority and other service providers, for the residents of Masvingo.</p> <p>Applicant has also established that it is acting in the interests of its members in pursuance of the right established by section 77(a) of the Constitution.</p> <p>That the 3rd applicant’s representative may call himself a director as opposed to a Trustee is neither here nor there for the 3rd applicants Constitution clearly establishes that the representative, Anoziva J. Muguti is one of the Trustees.</p> <p>In the circumstances I find that the 3rd applicant has <em>locus standi</em> to institute these proceedings. The point <em>in limine</em> raised is thus dismissed.</p> <p>DEFECTIVE DRAFT ORDER</p> <p>First respondent argues that the applicants do not assert that they are representing all residents of Masvingo. It is further argued that the interim and final relief are the same.</p> <p>A close examination of the terms of the interim and final relief reflect major differences. The interim relief seeks the relief of supply of constant water during the period of national lockdown and ancillary relief of schedules, oversight and monitoring in light of the COVID 19 disease and its inherent damages, for example social distancing.</p> <p>The final relief sought is a continuation of supply of water and declarations that the respondents’ actions are violations of Sections 77(a) and 76 of the Constitution.</p> <p>Clearly the draft order could have been better drafter. There are repetitions and gaps in some parts.</p> <p>However it is not so badly drafted that it amounts to the same relief in the interim and final order.</p> <p>I dismiss this point <em>in limine</em>.</p> <p>WRONG FORM USED FOR THE APPLICATION</p> <p>1st respondent avers that applicants have notified respondent to file their notice of opposition in Form 29 B while the High Court Rules do not provide for a Form 29B. Further that the format employed by applicants left the respondents confused on how to file their responses.</p> <p>In this case it becomes clear that applicants were supposed to make use of Form No. 29 “with appropriate modifications as provided for in Rule 241(1) of the High Court Rules 1971.</p> <p>In <em>Luke Harvest Aquaculture (Pvt) Ltd </em>versus <em>Tichaona Revesai</em> CHITAPI J said at page 9:-</p> <p>“<em>The problem which I find with the proviso to r 241(1) s that it does not spell out the nature and extent of the ‘appropriate modifications which should be made to Form 29 where a chamber application is to be served on interested parties”</em>.</p> <p> </p> <p>While it is commendable to use the correct Forms in such applications there was no prejudice occasioned to the respondents. 1st respondent on his part managed to file a response within three days of the filing of the application. I take a purposive robust approach and condone the wrong form and format being employed by applicants. This point <em>in limine</em> is dismissed.</p> <p>On the merits applicants seeks an interim order for the supply of adequate constant clean and potable tap water and water on wheels of water bowsers to Rujeko, Mucheke, Zimre Park, Rhodene and Cloverly suburbs of the ancient city of Masvingo and ancillary relief as spelt out at the start of this judgment. Paragraph 5 of the draft order falls away as a result of the withdrawal by applicants of 4th respondent as a party in these proceedings.</p> <p>Applicants’ case hinges on the laws relating to the COVID 19 epidemic. Basically applicant’s case hinges on the fact that the history and background reflect that 1st respondent has for years been rationing water supplies to the applicants. More particularly that in light of the COVID 19 pandemic there are guidelines issued by the World Health Organisations specifically encouraging individuals to wash their hands using running water including hand washing facilities.</p> <p>Applicants aver that the Government of Zimbabwe has recognised and declared a state of disaster and a mandatory lockdown to prevent and contain the spread of the COVID 19 virus. To that end the erratic supply of adequate clean and potable water is exposing Masvingo residents to the COVID 19 virus. Flowing therefrom applicants’ rights under sections 76 and 77 (a) of the Constitution have been infringed.</p> <p>The 1st respondent opposes the application. A brief history of the challenges facing Masvingo water supplies is given as follows:-</p> <p>Masvingo City abstracts and treats water at Bushmead Water Works close to Lake Mutirikwi. The city has a water demand of about 45 000 cubic meters a day for residential, commercial and industrial use. The water treatment plant has the capacity to deal with only 30 000 cubic metres per day. However because the water treatment plant is old its pumping capacity is 27 000 cubic metres per day, which amounts to 60% of the demand. The pumping capacity of 27 000 cubic metres is only achievable where there is no load shedding and electricity is available around the clock.</p> <p>The Town Engineer Mr Tawanda Gozo’s report on the state of water supply is attached as Annexure “B”.</p> <p>1st respondent attaches letters reflecting efforts made to increase the pumping capacity of the water to be supplied to Masvingo City.</p> <p>1st respondent also avers that it has drilled 39 boreholes to avert the water problem within the city and also attaches Annexure “G” reflecting that 1st respondent through its employees regularly supplied water via bowsers to different section of Masvingo.</p> <p>Applicant asserts that 1st applicant’s house is at a low lying area. After being served with the interdict application a council employee was dispatched to 1st applicant’s house and found that water was running, that the house had no water problem and that a garden flourishes at 1st applicant’s house. Monthly water bills apparently reflecting that water is consistently supplied are attached as Annexure “H”. 1st applicant avers that he resides at Rujeko suburb and goes on to traverse water problems apparently faced by residents in other suburbs of Mucheke, Rhodene, Zimre Park and Cloverly.</p> <p>1st respondent responds that 1st applicant has not proffered any proof of the alleged actions or inactions of 1st respondent. 1st respondents avers that a council employee was dispatched to 1st applicants’ house and determined that he has been receiving regular water at his residence.</p> <p>In <em>TM Supermarkets (Private) Limited</em> and <em>Sheriff of Zimbabwe</em> CHIDYAUSIKU CJ enumerated the factors to be considered when interim relief is sought as follows at page 5 :-</p> <p><em>´The factors to be take into account in considering the grant of interim relief are well settled. These are –</em></p> <p> </p> <ol> <li><em>whether or not the party seeking the relief has a prima facie right in casu, whether the University has a prima facie right to stay the executions of the sale of the attached property pending the determination of the appeal</em></li> </ol> <p> </p> <ol> <li><em>whether or not the appellant, in this case the University will suffer irreparable harm if execution of the arbitral award is not stayed and the appeal succeeds, and</em></li> </ol> <p> </p> <ol> <li><em>the balance of convenience</em>.”</li> </ol> <p> </p> <p>The first and second applicants reside in Rujeko and Mucheke suburbs respectively. Do they have a <em>prima facie</em> right to demand the supply of water in the face of the COVID 19 epidemic?</p> <p>The 1st respondent has responded by asserting that the 1st applicant resides in a low lying area which receives a constant water supply. A supporting affidavit of Onias Chirovera is attached supporting the 1st respondent’s position. I did not hear the applicants laying any strong opposition to the assertions by Onias Chirovera. 1st applicant has on the papers been proven to receive a constant water supply. This has not been controverted. 1st applicant refers to the water supply in other suburbs where he does not lay any personal and positive knowledge of the water supply thereat. He refers to Zimre Park, Rhodene and Cloverly suburbs without laying a basis on how he obtained or has reasonable proof of the water supply position of those suburbs.</p> <p>2nd respondents resides at Chesvingo, Masvingo. He associates himself with 1st applicant’s founding affidavit. His affidavit clearly does not advance the case any further.</p> <p>3rd applicant is represented by Anoziva J. Muguta. His affidavit is quite short. He associates himself with the affidavit deposed to by the first applicant. He states as follows in paragraph 5;</p> <p>“<em>I also wish to add that in some parts of Masvingo particularly Rujeko, Mucheke, Zimre Park and Cloverly the 1st respondent does not supply any clean and potable water at all.”</em></p> <p> </p> <p>The assertion above leaves other suburbs of Masvingo. The assertion that 1st respondent does not supply any clean and potable water at all is not substantiated. This is considered in the light of the position of 1st respondent as supported Annexures “B” and “C”</p> <p>There appear to be contradictions between Anoziva J. Muguti’s affidavit and that of 1st applicant’s representative, Nevermind Mutamba.</p> <p>In the light of the 1st respondent’s response and efforts made to elicit the true water supply situation of the 1st and 2nd applicants I find that the 3 applicants have not established a <em>prima facie</em> right.</p> <p>I have not lost sight of the interim relief as sought which also includes suburbs where no representative has deposed to an affidavit in this case. This gap was supposed to be closed by 3rd applicant who has not added much.</p> <p>It has been demonstrated that as for the 1st and second applicants their personal supplies of water are not erratic and if anything are fairly consistent. As mentioned before 3rd applicant’s representative’s affidavit is not very helpful.</p> <p>Irreparable harm to be suffered by applicants if the relief they seek is not granted has not been proved either 1st respondent has brought to the fore the position on the ground which has not been controverted. Much as it is expected that 1st respondent should attempt by all means to adequately supply consistent water to the residents of the city they have laid bare their capacity and efforts to resolve the same. In the light of the limited pumping capacity of 1st respondent in the circumstances I do not find that irreparable harm has been proven. There are further avenue like sinking of boreholes and deliveries of water to residential areas as per Annexure “G”.</p> <p>The alarming and possibly fatal consequences of the COVID 19 disease aside, it has not been proven that there will be irreparable harm if the relief sought is not granted. To revert to the rights under Sections 76 and 77(a) of the Constitution which applicants advanced in their applications it should be clear that both rights are subject to the State taking reasonable legislative and other measures within the limits of the resources available to it, to achieve the progressive realisation of this right.</p> <p>The 1st and 2nd applicants themselves have not demonstrated irreparable harm as they have been proved to receive constant water supply. They advert to other residents and other suburbs without laying such a basis.</p> <p>3rd applicant as pointed out earlier adds little flesh to the matter.</p> <p>I find that he does not prove that irreparable harm will occur. It is clear 3rd applicant places reliance on 1st applicant’s founding affidavit. As a representative of the residents of Masvingo there was need for 3rd applicant to prove a <em>prima facie</em> right in the circumstances. The contradictions in the applicants’ affidavits of the true state of the water supply in Masvingo does not help matters either.</p> <p>It is a well-known adage that he who alleges must prove.</p> <p>As for the balance of convenience one only has to consider the nature of relief sought to realise that the balance of convenience does not favour the applicant.</p> <p>The nature of interim relief sought namely “adequate consistent, clean and potable water and water on wheels” is on its own vague. Particularly where applicant seeks supply of adequate water. What is adequate is not defined in the application. In oral submissions, counsel for applicants was asked to define adequate water and was not very helpful in that regard.</p> <p>I am averse to granting as vague an order as one reflecting “adequate” supply of water.</p> <p>It is this type of order that will result in parties reverting time and again back to court for a definition of what is adequate.</p> <p>I am aware that the COVID 19 epidemic presents many challenges to our country and the world at large. The 1st respondent should clearly assist in averting a catastrophe in the circumstances. However in the circumstances as spelt out before me I also find that the balance of convenience does not favour the applicant. It has not been proven before me that the current supply of water as presented by the applicants as averted to earlier is such that the balance of convenience favours their case.</p> <p>Although 1st respondent proposed that I dismiss the application and grant costs against the applicants on a legal practitioner and client scale, I have considered that the grave implications of the COVID 19 are not to be disregarded. The application deals with a novel area impacting on citizens health. To that end I will make an order of costs on the ordinary scale.</p> <p>In the circumstances I make the following order –</p> <p>The application is dismissed with costs.</p> <p> </p> <p><em>Matutu and Mureri</em>, applicants’ legal practitioners</p> <p><em>Saratoga Makausi</em>, 1st respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s office</em>, 2nd to 4th respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/19/2020-zwmsvhc-19.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=38246">2020-zwmsvhc-19.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/19/2020-zwmsvhc-19.pdf" type="application/pdf; length=484753">2020-zwmsvhc-19.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/health">Health</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/locus-standi-0">Locus standi</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2012/16">CT Bolts (Pvt) Ltd v Workers Committee (SC 91/11) [2012] ZWSC 16 (26 March 2012);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2017/242">Lake Harvest Aquaculture (Pvt) Ltd. v Revesai (HH 242-17 HC 4537/16) [2017] ZWHHC 242 (12 April 2017);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 25 Jun 2020 12:58:04 +0000 Sandra 9708 at https://old.zimlii.org Habakuk Trust v Clerk of Parliament & 2 Ors (HB 118-20, HCB 899/20) [2020] ZWBHC 118 (18 June 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/118 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>HABAKUK TRUST</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>CLERK OF PARLIAMENT</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>PARLIAMENT OF ZIMBABWE</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>MINISTER OF JUSTICE, LEGAL &amp;</strong></p> <p><strong>PARLIAMENTARY AFFAIRS</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MOYO J</p> <p>BULAWAYO 15 AND 18 JUNE 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>J. Sibanda</em> for the applicant</p> <p><em>S. J. Chihambakwe</em> for the 1st and 2nd respondents</p> <p>            <strong>MOYO J:       </strong>In this matter the applicant seeks the following interim relief:</p> <p>“Pending the confirmation or discharge of the order it shall operate as a temporary order having the effect of interdicting the respondents from holding public gatherings or meetings in Bulawayo, or anywhere in Zimbabwe, to consider or debate Constitutional Amendment Bill No. 2”.</p> <p> </p> <p>            In the certificate of urgency, the applicant stated that on 8 June 2020, 2nd respondent placed an invitation in the social media inviting members of the public to attend public hearings at various venues around the country in accordance with section 328 of the Constitution of the country.  Applicant further avers therein that Zimbabwe is under lockdown since 30 March 2020 due to the Covid 19 pandemic, that is, to try and contain the spread thereof.  That, the law that put the country on lockdown is still in force.  That, not more than 50 people are allowed at public gatherings.  In paragraph 9, applicant avers that:</p> <p>“The 2nd respondent has invited the public to attend public meetings without making known any arrangements for the protection of  those that would attend such meetings”. (emphasis made)</p> <p>            Applicant further avers that due to the importance of such meetings it is thus unreasonable to hold them during a pandemic and a national lockdown.  In paragraph 16 of the founding affidavit applicant says it is the meeting to be held in Bulawayo on 17 June 2020 that concerns it the most.  In paragraph 17 of the founding affidavit applicant avers that this application is filed on an urgent basis due to the fact that Zimbabwe is currently facing a health pandemic.  That, this pandemic has caused a lockdown and also caused public gatherings to be banned.  Applicant further avers that regulations were promulgated in the form of a Statutory Instrument to restrict gatherings to a maximum number of 50 people.  Applicant further avers that it would be unreasonable for respondent to hold such meetings during a pandemic and in so doing risk the lives of the members of the public. Applicant avers that the country must first of all return to normalcy before such process of amending the Constitution is undertaken.  It further submits that there is no prejudice in putting such process in abeyance until the situation has normalized.  Applicant further avers that alternatively, the respondents must be put on terms to conform with the Covid 19 safety measures.  From the facts alluded to herein, it appears applicant has issues with holding public hearings or continuing with the constitutional amendment process whilst there is a pandemic that risks the lives of the public and whilst the country is on lockdown.  Other than this, applicant has no other grievance against the respondents.  In his oral submissions counsel for the applicant also submitted that movement is restricted and that people will not be adequately catered for by the number of the venues proposed as well as the time period within which such meetings will be held.</p> <p>            Respondents on the other hand argued that what they are embarking on is a process dictated upon them by the Constitution, section 328 thereof, and that they have no option but to oblige with constitutional directives.  Respondents, also argued that SI 136/2020 has amended the initial regulations to allow for public hearings conducted by Parliament.  Section 4 (k) of SI 136/2020 amends section 5 of the previous lockdown regulations by stipulating that; not more than 50 adult individuals gathered for the purpose of a public hearing conducted by a portfolio or other committee of Parliament for as long as masks are worn and social distancing rules are followed as well as the disinfection of the area within which such a gathering is conducted are exempted.  In other words, section 4 (k) of SI 136/2020 permits no more than 50 adults to gather for purposes of public hearings conducted by Parliament.</p> <p>From the facts before me, it seems applicant has an issue with conducting the public gatherings during a pandemic and therefore putting people’s lives at risks.  It further argues that the respondents should wait for a normal situation before proceeding with the constitutional process.  Applicant says such meetings put the lives of the members of the public at risk.  It further says in the alternative, respondent should only proceed upon satisfactory compliance with the Covid 19 precautions and safety guidelines.  Respondents’ counsel has already alluded to the advert purportedly flighted in the Sunday Mail which shows that such gatherings will be conducted in line with the Covid 19 safety measures as it specifically states that;</p> <p>“The public hearings will at all times comply with the Ministry of Health and Child Care Covid 19 Regulations as outlined in SI 99and 110 regulations regarding social distancing, sanitization, temperature screening and wearing a facial masks.  It further stipulates the following;</p> <ol> <li>Only 50 participants will be allowed at any one time;</li> <li>Where more than 50 participants want to attend, they will only be allowed in groups that comply with the requirements;</li> <li>Hand sanitization and temperature screening will be done at all venues;</li> <li>All participants must be wearing face masks;</li> <li>Appropriate social distancing will be observed.</li> </ol> <p>            The advert goes on to provide for monitoring by the Ministry of Health and Child Care teams.  Applicant seems to have issues with health risks.  Applicant sought to file an urgent chamber application to bar public hearings on account of health risks before finding out from the respondents what health measures would be taken to safeguard the lives of the members of the public who would attend.  Applicant, it seems presumed and suspected without any facts that participants would be exposed to health risks.  Respondents have rebutted that assumption and suspicion by providing information that shows that they are intent upon following the Covid 19 safety measures in the conduct of these public hearings.  Respondents have also stated that people can contribute their views via various print and electronic media as well as social media.</p> <p>            This in essence means that applicant has no presented a well grounded apprehension of harm as all applicant did was to suspect rather than obtain concrete information on how the respondents intended to go about this.  Again, the issue of the stoppage of a constitutional process and waiting for normalcy to return is also a difficult claim to sustain by the applicant, for, the mere existence of a pandemic cannot be the sole ground to stop certain processes.  Processes can only be stopped upon reasonable grounds that indeed they fly in the face of Covid 19 prevention and safety measures.  That is to say applicant’s case should have gone further to show how being in the middle of a pandemic is inconsistent with the holding of the public gatherings in a practical sense.  Applicant seems to want this court to assume that the mere fact that we are in the middle of a pandemic means that the public gatherings cannot be held.  Applicant should have gone further to show the practical difficulties or impediments as well as disadvantages or prejudice to the ordinary citizen occasioned by the presence of the pandemic <em>vis-a-vis</em> their attendance at such gatherings.  Applicant simply makes a sweeping statement on the facts and applicant bases its case on a conclusion it has made that such processes must wait for normalcy to return without taking us through the prejudice that will result factually.  In any event, if such public hearings do commence and applicant observes anormalies therein, applicant could still approach these courts with a factually loaded application on the shortcomings of the hearings than to seek relief on the basis of a suspicion that has no factual basis.  I hold the view that applicant should have sought further details from the respondents on how Covid 19 safety measures will be observed.  It is my view that applicant in this matter has put the cart before the horse.  Even in its founding affidavit applicant at paragraphs 30 – 38 therein seeks that respondents must ensure that precautions to contain the disease are put in place.</p> <p>            Paragraphs 30-38 of the founding affidavit actually, although being claimed as in the alternative, bear testimony to the fact that even applicant itself concedes that such gatherings can indeed be held in so far as appropriate measures are taken to safeguard the health of the public.  In other words respondents can proceed per applicant’s own affidavit, provided safety measures are adhered to.  I accordingly hold that no factual basis has been made at all for the relief sought by the applicant as I have shown herein.</p> <p>            On the law, clearly I do not have the power to stop a constitutional process that is mandated by the supreme law of our country.  Applicant itself avers that what the respondents are doing is in accordance with the law, in terms of the country’s Constitution.  I do not have the power to change what the Constitution provides.  All of us, members of the Executive, Parliament and the Judiciary are here to uphold the constitutional provisions of the supreme law of the land.  We do not have the power to suspend constitutional processes per personal views, we are not allowed.  I have not been favoured by the applicant with any case law authority that is precedent for suspending the Constitution.  Applicant has thus not shown me that I do have the power to stop constitutional processes.  In fact, to the contrary, there is authority to support the trite position that a court cannot stop or suspend a constitutional process except where the Constitution itself provides for such a scenario with stated guidelines, refer to the case of <em>Zimbabwe Development Party &amp; Anor</em> vs <em>The President of the Republic of Zimbabwe &amp; Ors</em> CCZ 3/18.  SI 136/2020, although promulgated on Friday 12 June 2020, is law as at the time that I deliberate on this matter and it has provided for the holding of the meetings that applicant seeks to stop.  As we speak such meetings are lawful in terms of the Covid 19 lockdown regulations and I cannot therefore find otherwise.</p> <p>            It is for these reasons that I find that applicant has not made a case for the relief sought and I accordingly dismiss the application with costs.</p> <p> </p> <p><em>Job Sibanda &amp; Associates</em>, applicant’s legal practitioners</p> <p><em>Chihambakwe, Mutizwa &amp; Partners</em>, 1st and 2nd respondents’ legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/118/2020-zwbhc-118.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20881">2020-zwbhc-118.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/118/2020-zwbhc-118.pdf" type="application/pdf; length=134530">2020-zwbhc-118.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/assembly">Assembly</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/health">Health</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2018/3">Zimbabwe Development Party &amp; Another v President of the Republic of Zimbabwe &amp; 2 Others (CCZ 3/18, Constitutional Application No. CCZ 15/18) [2018] ZWCC 3 (28 May 2018);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 25 Jun 2020 10:09:39 +0000 Sandra 9704 at https://old.zimlii.org The Zimbabwe Chamber for informal Workers & 2 Others v Minister of Health and Child Care & 6 Others (HH 334-20, HC 2221/20) [2020] ZWHHC 334 (26 May 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/334 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE ZIMBABWE CHAMBER FOR INFORMAL WORKERS</p> <p>and</p> <p>PASSENGER ASSOCIATION OF ZIMBABWE</p> <p>and</p> <p>CONSTANTINE CHAZA</p> <p>versus</p> <p>MINISTER OF HEALTH AND CHILD WELFARE</p> <p>and</p> <p>MINISTER OF LOCAL GOVERNMENT, RURAL AND URBAN DEVELOPMENT</p> <p>and</p> <p>MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT</p> <p>and</p> <p>MINISTER OF PUBLIC SERVICE LABOUR AND</p> <p>SOCIAL WELFARE</p> <p>and</p> <p>MINISTER OF TRANSPORT AND INFRASTRUCTURE</p> <p>DEVELOPMENT</p> <p>and</p> <p>THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE</p> <p>and</p> <p>ZIMBABWE UNITED PASSENGER COMPANY (PVT) LTD</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE J</p> <p>HARARE, 14 May 2020 &amp; 26 May 2020</p> <p> </p> <p> <strong>Urgent chamber application </strong></p> <p> </p> <p><em>T Biti</em>, for applicants,</p> <p><em>C Siqoza</em>, for 1st to 6th respondents,</p> <p>No appearance for the 7th respondent</p> <p> </p> <p> DUBE J:</p> <p><em>Introduction </em></p> <p>[1]   The applicants have brought an application on an urgent basis seeking an interim order on the following terms; </p> <p><strong> Terms of the Interim Relief Sought </strong></p> <p> Pending the final determination of the matter,</p> <ol> <li>The 1st Respondent within 3 days of this order amend the Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order 2020 published under Statutory Instrument 83 of 2020 to allow the operation of registered transporters and other operators to ferry passengers on their licensed routes subject to compliance with relevant lockdown conditions such as social distancing, temperature testing and the use of sanitizers.</li> <li>Allow informal businesses to reopen, subject to compliance with lockdown regulations of social distancing, temperature testing and sanitizing.  </li> </ol> <p>In the final, the applicants seek an order declaring that s8 of  the Public Health (COVID-19, Prevention, Containment and Treatment) Regulations, published as  Statutory Instrument 77 /20 is <em>ultra vires</em> s  68 of the Public Health Act and breaches s 134 of the Constitution. Secondly, a declaration hat s 4(2), 4(1) and 11(f) of the Public Health (COVID-19, Prevention, Containment and Treatment) Regulations, published as Statutory Instrument S.I 83\20 as amended be declared to be <em>ultra vires</em> the Public Health Act and s 134 of the Constitution of Zimbabwe.</p> <p><em>The parties </em></p> <p>[2] The first applicant is the Zimbabwe Chamber of Informal Economy Associations, a registered trust representing the interests of workers in the informal industries in particular, vendors, cross border traders, artisanal minors, commuter omnibus operators, and drivers such as hairdressers, backyard mechanics and other informal workers. The second respondent is the Passenger Association of Zimbabwe representing the interests of commuters. The third applicant is an individual and a worker who commutes every day from Chitungwiza to Harare.</p> <p>[3] The first to fifth respondents are government ministers who hold different portfolios in the Government of Zimbabwe. The sixth respondent is the President of the Republic of Zimbabwe. The respondents are cited in their official capacities. The seventh respondent is the Zimbabwe United Passenger Company (Pvt) Ltd, [ZUPCO], a company in the transport business.</p> <p>[4]    According to the Centre for Disease Control and Prevention of South Korea, this is how</p> <p>the COVID 19 was fuelled in South Korea. A 35 year old Chinese national flew into South</p> <p>Korea feeling well. On 6 February 2020, she was involved in a minor traffic accident. She</p> <p>decided to go to hospital for a check-up. She had a slight temperature but no physical injuries.</p> <p>The authorities wanted to test her and she declined and said she was not sick and went away.</p> <p>On the 9 and 16 February she attended two church services. After that, her symptoms started</p> <p>to show. She went to a hotel and had a buffet lunch .She was tested for the Corona virus and</p> <p>she tested positive. She was made patient 31 of South Korea .Patient 31created approximately</p> <p>60 % of all cases in S Korea. A total of 1200 people were infected at the two church services.</p> <p>Some of the people from the church services went on to attend a funeral and infected some</p> <p>people there. There was a domino effect. Patient 31 created 5382 COVID-19 cases.</p> <p>[5] This narration comes in the backdrop of the deadly Corona virus disease, officially known as the COVID -19 virus. COVID -19 is a highly infectious disease. The case of patient number 31 of South Korea, is a classic example of how contagious the virus is. It is a severe respiratory disease with no known cure which is spreading wildly across the globe.</p> <p> [6]   Sometime in November 2019 a novel virus broke out in Wuhan, China. On December 31, 2020, the Chinese government alerted the World Health Organization, [WHO], of the disease outbreak. On 11 March 2020, the WHO declared COVID -19 a global pandemic. As at the time of writing this judgment, there are more than 5.548, 858 COVID -19 recorded cases, 347, 858 deaths, 2,327, 338 recoveries and 2,873, 662 active cases worldwide. The COVID -19 has caused more deaths than most epidemics in recent history.</p> <p>[7]  The first case of the COVID -19 virus was reported in Zimbabwe sometime in mid-March 2020. As at 26 May 2020, a total of 56 people have been confirmed infected with the virus. There have been 4 deaths and so far there are 25 recoveries. As part of the fight against the virus, the sixth respondent declared the COVID - 19 a national disaster.  The first respondent has declared the COVID -19 a formidable epidemic and put in place measures to tackle the disease. These are the measures under challenge.</p> <p><em>Applicants’ submissions </em></p> <p>[8] The applicants’ challenge is targeted at the regulations that allow the opening up of the economy to the formal sector and the restriction of transport services to the seventh respondent.</p> <p> [9] Applicants submitted as follows. The orders made by the first respondent in consultation with the sixth respondent under the following Statutory Instruments,  S.I 83/0F 2020, S.I 83 /2020. S.1 86/2020, S.I 93/2020, S.I 94/2020. S.I 99/2020, S.I 101/2020, S.I 102/2020, S.I 103/2020, are a nullity in that s 8 of S.I 77/2020 upon which they are premised, is unconstitutional for the reason that it allows unlawful delegation of delegated power to the sixth respondent in breach of s 134 of the Constitution of Zimbabwe. Whilst s 68 of the Public Health Act delegates powers to the first respondent to make regulations, the first respondent may not sub delegate that power to the sixth respondent or in any other manner .The powers exercised are <em>ultra vires </em>the powers given to the respondent in s 68 of the Public Health Act, [<em>Chapter 15:17</em>], making all the other statutory instruments that follow upon this instrument are illegal.</p> <p>[10] Secondly, that the power exercised in allowing the seventh respondent and vehicles provided by the Public Service Association to operate to the exclusion all other public transporters creates a monopoly over public transport by the seventh respondent. It affects the rights of their members and infringes upon their right to freedom of profession, trade and occupation codified under s 68 of the Constitution and the right to equal protection and benefit of the law in terms of s 56 (1) of the Constitution .The seventh respondent has only 160 buses and is unable to meet the demand for transport. Their members who are commuter omnibus owners are prejudiced in that they are unable to carry out their businesses, operate and source income to feed their families.</p> <p> [11]  Thirdly, the power exercised in terms of  s 11F (1) of S.I  83/20  allowing formal business to open while the informal sector remains closed, is unfair and unreasonable and <em>ultra vires</em> s 68 of the Public Health Act and even s 8 of  S.I 77/20. The majority of the people of Zimbabwe are in the informal sector and are the hardest hit by the lockdown measures and poverty. Their members have been unable to fend for their families and pay rentals. Safety nets in the form of handouts have not been provided to their members. Whilst they appreciate that the government has a duty to protect the right to health, a balance must be struck between the welfare of the people and the imposition of the restrictions. There is no reason why their members should be prevented from working. It is discriminatory, unfair and unconscionable for the government to reopen formal businesses to the exclusion of the informal sector.</p> <p>[12] The restrictions imposed affect the applicants’ members and infringe upon their rights to health, the right to life in terms of s 48 (1) of the Constitution. The monopoly given to seventh respondent infringes applicants’ right freedom of profession, trade and occupation guaranteed under s 64 of the Constitution. The treatment of applicant’s members is discriminatory and unfair and is in breach of their rights right to equal protection and benefits of the law as protected by s 56(1) of the Constitution.</p> <p><em>Respondents’ submissions </em></p> <p>[13] The seventh respondent did not defend the application. The first to 6th respondents challenged the application on the basis that it is not urgent. The challenge related to the <em>locus standi</em> of the first applicant was abandoned. The respondents submitted as follows. The restrictions under Statutory Instrument 83 of 2020 came into effect on 28 March 2020.The applicants waited for a month before they approached the court for relief. The applicants’ urgency is self-created. The applicants failed to act when the need to act rose and failed to assert them timeously. They urged the court to dismiss the application on the basis of lack of urgency.</p> <p>[14]  On the merits, they submitted as follows. Section 68 of the Act gives the first respondent wide powers to make regulations. He may make regulations putting into place restrictions on any matter in order to prevent the spread of the virus. The section gives the first respondent the power to open or close businesses in order to prevent and contain the spread of the COVID-19. The first respondent was alive to the fact that the restrictions impact on the lives of citizens and the most vulnerable and has put social measures and safety nets in place to cushion citizens from the impact of the restrictions.</p> <p> [15] The respondents refuted that the restrictions discriminate against the applicants. They submitted that the restrictions are being eased gradually taking into account the stage of the pandemic, in a bid to control it. The Mbare vegetable market has as a result been partially opened. One cannot say that there is a blanket discrimination on the entire informal sector.</p> <p> [16] The seventh respondent was given a monopoly because it is possible to do social distancing in a bus than a commuter omnibus. The other bus operators have been called upon to engage and operate under Zupco and some have heeded the call.</p> <p>[17] There has to be a balance between the need to protect the health of citizens and the need for citizens to work. If the court finds that there has been any discrimination, such discrimination is fair, reasonable and justified considering that we are in extraordinary circumstances which are not unique to Zimbabwe alone. This is a matter of life and death. The restrictions are necessary to ensure that citizens’ health is protected and this includes the health of the applicants.</p> <p><em>Urgency </em></p> <p>[18] A litigant seeking to have a matter dealt with on an urgent basis must show that the matter is urgent and cannot wait to be dealt with as an ordinary matter in the sense that if it is not dealt with immediately, irreparable harm will occur him. Such litigant must assert himself when the need to act arises. He must treat the matter as urgent, see <em>Kuvarega </em>v<em> Registrar General &amp; Anor</em> 1998 (1) ZLR 188;<em> Madzivanzira </em>v<em> Dextprint Invts (Pvt) Ltd</em> HH 145/02.</p> <p> [19] The Public Health (COVID -19) (No 5), S.I 99 of 2020 introduced the following salient amendments. Formal businesses were allowed to open. The informal sector was restricted from operating from the 3rd to the 17th of May 2010. Everyone was required to wear masks and transport services were to continue but restricted to those provided by the seventh respondent. Only the seventh respondent was to be responsible for the ferrying of commuters.  </p> <p> [20]  The restrictions under challenge were brought into effect at a time when the country was already under lockdown and still is. In determining whether the applicants asserted themselves timeously, the court has considered that the applicants’ movements were, as in the case of everyone else, under nationwide lockdown and restricted. It was not easy to travel from one place to another due to restrictions to movement of people. The applicants’ predicament in delaying to file the application is understandable and reasonable in the circumstances.</p> <p>[21]  Although the application may appear not to meet the basic requirements of urgency, the fact of the matter is that the application will not be capable of being dealt with at a subsequent stage should the lockdown be declared over soon. If the application is not dealt with now, it may be rendered <em>brutum fulmen.</em> This is not the sort of matter that can wait and be dealt with at a subsequent stage.</p> <p>[22]  Our courts have to be prepared to relax the rules of urgency in deserving cases, in order to avoid injustices to litigants. Each case must be determined on its own circumstances .This matter is in the public interest in the sense that the lockdown affects every Zimbabwean. The circumstances of this case raise matters of national importance. The public have an interest in learning what the outcome of the court’s interpretation of the rules will be. This application cannot wait.  For these reasons, I have decided to entertain the application on an urgent basis.</p> <p><em>Lawfulness of quarantine powers</em></p> <p>[23]  <em>Section</em> 134 of the Constitution clothes the first respondent with the power to make subsidiary legislation as follows:</p> <p> </p> <p>“134 Subsidiary legislation</p> <p>Parliament may, in an Act of Parliament, delegate power to make statutory instruments within the scope of and for the purposes laid out in that Act, but—</p> <p>(a) Parliament’s primary law-making power must not be delegated;</p> <p>(b) Statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights;</p> <p>(c) Statutory instruments must be consistent with the Public Health Act of Parliament under which they are made;</p> <p>(d) The Public Health Act must specify the limits of the power, the nature and scope of the statutory instrument that may be made, and the principles and standards applicable to the statutory instrument;”</p> <p> </p> <p>Parliament has an obligation in terms of s 29 (3) of the Constitution to enact laws to protect public health.  In terms of s 134 of the Constitution, Parliament may in an Act of Parliament delegate power to make statutory instruments within the scope of and for the purposes laid out in an Act.</p> <p> [24]   Section 68 gives the first respondent the power to make regulations that include;</p> <p>“i) the imposition and enforcement of quarantine</p> <p>ii) the regulation and restriction of public traffic and of the movements of persons</p> <p>iii) the closure schools or the regulation and restriction of school attendance</p> <p>iv) the closing of churches and restriction of gatherings or meetings for the purpose of public worship</p> <p>v) the regulation or restriction or, where deemed necessary, the closing of any place or places of public entertainment recreation or amusement, or where intoxicating liquor is sold by retail, and the regulation or restriction, or, where deemed necessary, the prohibition, of the convening, holding or attending of entertainments, assemblies, meetings or other public gatherings</p> <p>vi) the prevention and remedying of overcrowding or the keeping of a dwelling or other building or the contents thereof in a state of sanitation posing or likely to pose a public health risk;</p> <p>(vii) the medical examination of persons who are suspected of being infected with, or who may have recently been exposed to the infection of, such disease, and of persons about to depart from any infected area, and the disinfection of their baggage and personal effects, and the detention of such persons until they have after such examination been certified to be free from any infectious disease and until their baggage and personal effects have been disinfected;</p> <p>(viii) the keeping under medical observation or surveillance, or the removal, detention and isolation of persons who may have recently been exposed to the infection of, and who may be in the incubation stage of; such disease the detention and isolation of such persons until released by due authority, the use of guards and force for that purpose, and, in case of absolute necessity, the use of firearms or other weapons, and the arrest with or without warrant of any person who has escaped from such detention or isolation;</p> <p>(ix) the establishment of isolation hospitals and the removal and isolation of persons who are or are suspected to be suffering from any such disease, the accommodation, classification, care and control of such persons and their detention until discharged by due authority as recovered and free from infection, and the establishment, management and control of convalescent homes or similar institutions for the accommodation of persons who have recovered from any such dis-ease;</p> <p>(x) the provision of disinfecting plant and equipment, and the disinfection or where disinfection is impossible, the destruction of any article or thing, or the disinfection of any premises which are or are believed to be contaminated with the infection of such disease;</p> <p>(xi) the inspection of premises and articles and the discovery and remedying of sanitary or other defects likely to favour the spread or render difficult the eradication of such disease;</p> <p>xii) and such other matters as the Minister may deem necessary for preventing the occurrence of such disease or limiting or preventing the spread thereof or for its eradication and generally for the better carrying out and attaining the objects and purposes of this Part.”</p> <p>[25]  On 23 March 2020 and in response to the pandemic, a state of disaster was declared in terms of S.I 79/20. The first respondent enacted the Public Health (COVID -19 Prevention , Containment and Treatment) Regulations 2020, published in S.I  77/20 in terms of s68 of the Public Health Act, [<em>Chapter 15:17</em>], hereinafter referred to as the Act. He declared COVID -19 as a formidable epidemic disease in terms of s 3(1). In s 6(1) he introduced compulsory testing, detention of any person infected with Covid -19, the mandatory quarantine of any person confirmed with Covid -19 and prohibition of public gatherings during the time the declaration is in force.</p> <p>[26] On 29 March 2020, the first respondent promulgated the Public Health Covid -19 Prevention, Containment, and Treatment) (National Lockdown) Order, Statutory Instrument 83 of 2020 providing for a national lockdown and prohibition of all gatherings. Movement of all citizens was restricted in order to minimize transmission of the virus. Every individual except those employed in essential services were confined to their homes with permission to leave only in order to buy basic necessities, medicines and medical assistance                                                                                              A 21 day lockdown from 30 March 2020 to 19 April 2020 was announced. Having reviewed the position on the ground on 19 April 2020, it was announced that the lockdown would continue for a further 14 days from 20 April 2020 to 3 May 2020 under S.I 93/20 and later to 17 may under S.I 94/20.</p> <p> [27]  The Public Health (COVID -19 Prevention Containment and Treatment) (Amendment) Regulations, S.I 98/2020 were published and declared the COVID -19 as a formidable epidemic disease and  extended the lockdown  until 1st of January 2021.</p> <p> [28] This was followed by the Public Health (COVID -19 Prevention Containment and Treatment) (National Lockdown) (Amendment) Order, 2020 (No 5),   published under S.I 99 of 2020 on 2 May 2020. This statutory instrument was made in terms of s 8 of S.I 77/2020. The regulations   introduced the changes which are the subject of these proceedings.</p> <p><em>Did the First respondent sub delegate his powers?</em></p> <p>[29]  Regulations stem from delegated power. It is trite law that regulations can only be promulgated when an executive or local authority has been given statutory power to do so by constitutions and parliamentary Acts. Delegated legislation is flexible and any developments or limitations experienced in the practice of the delegated legislation may be cured by amendments.</p> <p>[30]  A person or authority who has been given  statutory power to make delegated legislation cannot sub delegate his powers to make legislation to another person or administrative authority  without express or implied  authority, see <em>R </em>v<em> Burah</em> (1873) 3 App Cas 889, where the court remarked as follows;</p> <p>“When parliament delegates legislative powers, those powers cannot without express authorization from parliament be passed on…. to some other body or person”.</p> <p>[31] This principle is explained by the latin maxim <em>delegatus non potest delegare</em>. The principle prohibits sub delegation of delegated power without authority to do so. Sub delegated legislation is <em>ultra vires </em>the enabling Act where it is promulgated without authority and is invalid.</p> <p> [32] Statutory Instrument 77/20   stipulates as follows in s 8(1);</p> <p>“8. (1) In pursuance of the object of these regulations the Minster may (in consultation with the President, and in conformity with any other directions the President may give) by orders published in the Gazette-</p> <ol> <li>impose restrictions…..”</li> </ol> <p> </p> <p> The provision goes on to outline the nature of the restrictions that may be imposed. The provision allows the Minister to consult the President and for the President to give directives over the regulations.</p> <p>[33] Reference to consultation with the President of Zimbabwe does not suggest that the President makes the regulations nor that he makes the regulations together with the first respondent. All things being, one would expect a minister who has been delegated power to make regulations and come up with regulations of this nature, to consult the President of the country regarding the content of the regulations. To consult cannot be to sub delegate nor does consultation entail the making of a thing. There is nowhere in the regulations where the first respondent expressly or impliedly sub delegated his powers to make regulations to the President. There is no evidence of sub delegation of the legislative power reposed on the first respondent.</p> <p>[34] The fact that the first respondent may have consulted the sixth respondent is neither here nor there. The regulations simply recognize the need to consult the President but the individual who makes the regulations remains the responsible Minister. Section 8 (1) of S.I 77/20 does not vest the power to make regulations in the President and is not <em>ultra vires</em> s 134 of the Constitution and s 68 of the Public Health Act. There was no sub delegation of the power conferred upon the first respondent in terms of the Public Health Act.  The court opines that the regulations do not become irregular on this basis.</p> <p> [35] Section 68 does not confine the first respondent to one set of regulations. It enables him to make all such regulations as he deems fit depending on the situation he wishes to address. No law bars him from amending previous regulations. The first respondent’s regulations are regular.</p> <p><em>International Rights jurisprudence</em></p> <p> [36]  A number of international human rights treaties to which Zimbabwe is a party deal with the right to health.  Article 16 (2) of the African Charter places responsibility on State parties to;</p> <p>“take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.’’</p> <p>[37]  Article 12 of the International Covenant on Economic Social and Cultural Rights obliges governments to take effective steps for the “prevention, treatment and control epidemic, endemic, occupational and other diseases”.</p> <p>[38] The Government has an obligation to ensure the realization of the right to health for its citizens. It must ensure that its public heath response to epidemics meets the human rights standards required. A margin (of appreciation) is accorded to authorities which permits them to interfere with the rights of citizens to enable their proper functioning. According to the UN International Covenant on Civil and Political Rights (ICCPR), the measures taken to restrict freedom of movement in a pandemic must be lawful, necessary and proportionate to the legitimate aim.</p> <p>[39] International rights jurisprudence has laid out a step by step test to establish whether a litigant’s rights have been infringed. A court dealing with a case of violation of rights must first determine if the right alleged to have been violated exists at law. If the right exists, it must proceed and determine if there was any interference with the right. If the court finds that there has not been any interference with the right, the matter ends there.</p> <p>[40] Where there has been some interference with the human rights of a citizen, the court must consider the conduct complained of and determine if it impacted on an individual’s rights by preventing him from enjoying the right prescribed at law. The court must consider whether the interference is prescribed at law and carried out in accordance with the law. The measures taken must be based on scientific evidence and be not be arbitrary nor discriminatory in application. The court must enquire if the measures taken pursue a legitimate aim. The interference must be necessary in a democratic society to achieve the objective. If the interference is not prescribed at law, the complainant is entitled to a remedy. This approach was followed in <em>Khauyeza </em>v<em> The Trial Officer and Anor   </em>HH 311/16.</p> <p>[42] These guidelines take into account the<em> Siracusa Principles</em> <em>on the Limitation and Derogation of provisions in the ICCPR</em>. The principles lay down guidelines adopted by the UN Economic and Social Council, 1984.</p> <p> <em>Limitations on rights </em></p> <p>[43] The enjoyment of a human right is not absolute, and may be limited by issues of security, public health, public interest or the need for discipline. Limitations enable governments to effectively carry out their functions.  The <em>Siracusa Principles</em> give guidance on interpretation of the ICCPR on how restrictions on limitations imposed on human rights to protect public health in public emergencies that threaten the life of a country should be implemented.</p> <p> [44] The Siracusa principles accept that;</p> <p>“Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.”</p> <p> This principle emphasizes the point that public health suffices as a ground for limiting a person’s rights in the face of a serious threat to public health. However, the measures taken must have as their legitimate aim the prevention of disease.</p> <p>   [45] The guidelines state that no limitation on a right recognized by the ICCPR shall be discriminatory. Any limitation must be provided for by law and must be necessary and based on grounds justifying limitations, respond to a pressing public or social need, pursue a legitimate aim, and be proportional to that aim. States should use no more restrictive means than are required for the achievement of the purpose of the limitation. Every limitation imposed shall be subject to the possibility of a challenge and a remedy against its abusive application.No limitation should be applied in an arbitrary manner and must be subject to review</p> <p> [46] The guiding principles on limitations have been discussed and applied in numerous human rights cases. In <em>African Commission on Human and People’s rights </em>v <em>Republic of Kenya,</em> Applic 006/12 the court emphasized that the enjoyment of a right may be limited where such a restriction is legitimate, in the public interest, is proportionate and necessary, see. In the case of <em>Gambia 2000 AHRLR</em> (ACHPR 2000), the court held that limitations placed on the enjoyment of rights must not make the right illusionary. </p> <p>[47] Section 86 of the Constitution provides for limitation of rights and freedoms in general. Section 87 of the Constitution allows for limitations to the enjoyment of rights during public emergencies. The fundamental rights and freedoms provided for must be exercised reasonably and with due regard for the rights and freedoms of other persons.</p> <p>[48] In terms of these provisions, the rights are limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors such as ;</p> <p>“(a) the nature of the right or freedom concerned;</p> <p>(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;</p> <p>(c) the nature and extent of the limitation;</p> <p>(d) the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;</p> <p>(e) the relationship between the limitation and its purpose, in particular whether it imposes greater re-strictions on the right or freedom concerned than are necessary to achieve its purpose; and</p> <p>(f) whether there are any less restrictive means of achieving the purpose of the limitation.”</p> <p> [49] The rights allegedly violated do indeed exist at law as they are provided for in our Constitution. I agree with the applicants that the stay at home restrictions put in place by the regulations have the effect of limiting public gatherings and commercial activity by the informal and transport sector. The applicants are not able to move freely and conduct their business. The applicants have been restricted from operating in a bid to control the spread of the COVID-19. The regulations have the effect of restricting the enjoyment of the rights complained of. There has been interference with the constitutional rights of the applicant’s members.</p> <p>   [50] Section 68 grants powers to the Minister during formidable epidemic diseases and conditions  and events which are of public health concern  to impose and enforce a quarantine and the regulation and restriction of public traffic and of the movements of persons, and other restrictions listed in the section among other matters as the Minister may deem necessary for preventing the occurrence of such disease or limiting or preventing the spread thereof or for its eradication and generally for the better carrying out and attaining the objects and purposes of the Act.  Section 68 empowers the Minister to make regulations on, ‘’such other matters as the Minister may deem necessary for preventing the occurrence of such disease or limiting or preventing the spread thereof or for its eradication and generally for the better carrying out and attaining the objects and purposes of this Part”. The section is wide and gives the first respondent the power to open or close businesses.</p> <p> [51] The restrictions were employed to facilitate the government’s response to the disease. Only essential services are operational. If people are restricted to their homes, the rate of infection will be controlled and the burden on our already overburdened health delivery system lessened. </p> <p>  [52] The limitations are provided for by law. The restrictions imposed by the regulations on the enjoyment of the rights of the applicants are permitted by the Constitution. This is a public health emergency where enjoyment of rights is limited. The limitations are compatible with the objects and purposes of protecting public health. The court has considered that the limitations have no effect of completely taking away the enjoyment of these rights. There is a health disaster at hand. The limitations are necessary and serve to respond to a pressing public and health need and hence pursue a legitimate aim.</p> <p>[53] The burden is on an applicant in a matter such as this to show that he has been treated unequally, unfairly and in a discriminatory fashion. Once he has so proved, the burden shifts onto the State to justify the discrimination. The courts have recognized that there can be “objective justification for discrimination”, see <em>Glass </em>v<em> UK European Court of Human Rights</em>, 9 March 2004. The reasons advanced by the State for the discrimination have to be justified. The reason for the limitation must be proportionate and must be for the purposes of pursuing a legitimate aim.</p> <p>[54] The informal sector poses a risk in the spreading of the COVID -19. The intervention by the government in ordering that the sectors remain under lockdown for the time being is likely to reduce the risk of the spread of the virus. Re-opening the informal sector at this stage may have the effect of fueling the spread of the disease. It will be difficult to monitor the lockdown rules in the informal sector as opposed to the formal sector.</p> <p>[55] There is no discrimination against the omnibus operators and other ordinary buses as they are not barred from operating their buses.   The commuter omnibus operators have been called upon to engage and operate under the umbrella of ZUPCO. The strategy is to be to ensure social distancing rules and other requirements of the lockdown rules are enforced and monitored. The respondents expressed a difficulty in enforcing lockdown rules in the informal sector. The first respondent has considered that it is easy to do social distancing in a bus than a commuter omnibus. Some operators have heeded the call. The court takes judicial notice of the fact that there is sizable number of  commuter omnibuses and other ordinary buses labelled ZUPCO that are operating under the banner of ZUPCO. The restriction that applies to the informal and transport sectors seeks to achieve a legitimate aim. The applicants’ members have chosen not to comply with the requirement that they operate under strict monitoring. Even assuming that the court is not correct that there is no discrimination, the restrictions imposed pursue a legitimate purpose of curbing a pandemic.</p> <p> [55] The limitations imposed on all the rights of the applicants are proportionate to the aim sought to be achieved. The limitations imposed are necessary in the interests of public safety, public order, public morality, public health and the general public interest. Government is entitled in terms of the Public Health Act to make regulations for lockdown and restriction of movement of people. The enjoyment of rights and freedoms by the applicants will impact negatively and prejudice the rights and freedoms of other citizens as the relaxation of the restrictions will fuel the disease. There is a need to balance the applicants’ entitlement and responsibility of Government in terms of the Public Health Act and the constitutional liberties provided for in the Constitution.</p> <p>  [56] The measures taken by the government are rational measures to achieve the desired purpose. They serve to protect the rights of every citizen to life, dignity and a safe environment.  The limitations have no effect of completely taking away the enjoyment of these rights. The restrictions on applicants’ rights become lawful because they are imposed for legitimate purposes .It is necessary that these rights be enjoyed restrictively during lockdown.</p> <p>[57] The COVID -19 constitutes a serious public threat .It poses a threat to mankind. The limitation on rights is necessary and reasonable for the containment of the Covid -19 pandemic given the magnitude of the disease. It is necessary that these rights be enjoyed restrictively during the lockdown.</p> <p> [58] Government has the responsibility to put in place measures to contain the Covid -19 pandemic which goal is legitimate. The appearance is that Zimbabwe may be entering a second wave of the pandemic as the infections are on the increase.   The respondents have an obligation to plan for the epidemic and should be afforded the opportunity to do so without interference. It is not the business of the court to interfere with government policy.  The Government has the right to govern. It must be afforded an opportunity to govern and plan for the epidemic and put in place adequate measures for the containment of the disease.</p> <p>[59]   If the informal and transport sector are reopen, to allow the operation of registered transporters to ferry passengers and the informal sector to reopen their businesses when the respondents have no capacity to monitor their activities, the development will fuel the pandemic. The restrictions are necessary in a democratic society to protect the health of all citizens. They restrictions in place are not arbitrary or discriminatory in their application and are subject to review. The measures put in place are proportionate to the good that the respondents seek to achieve. There is no other lesser alternative effective remedy that is less restrictive to achieve the same objective. The interference is commensurate with the threat posed.</p> <p> [60]  I must conclude that the Covid -19 is a deadly pandemic and is not an ordinary flue pandemic. It calls for drastic measures. If the economy is reopened in a rush and without proper considerations, the spread of the disease is likely to be accelerated. It would be irresponsible of the court to accede to the request of the applicants at this juncture, when one considers that the pandemic rages on. Without any no know how on how to fight the disease with no cure and vaccine in sight, the consequences of such an approach would be disastrous.</p> <p>[61] The applicants are not taking this epidemic seriously. They have tried to downplay the severity of the pandemic. If this disease is going to be defeated, that will only happen with the cooperation of everyone concerned, and that must happen despite all odds. People must be united in order to fight this scourge. We must all be part of the solution. Sentiments of <em>Abhijit Nasker </em>an international bestselling author of a number of books,  are pertinent.  He has said ;</p> <p>“The holy trinity of tackling a crisis is unity, faith and sacrifice. We must stay united as humans above all else, we must have faith in ourselves and in each other and we must sacrifice our self-obsession”</p> <p> </p> <p>[62] The restrictions imposed by the Government are rational, reasonable and justifiable in the circumstances. No just cause has been shown for the relief sought. The applicants have not shown an entitlement to the interim   order sought.</p> <p>Accordingly,</p> <p>The application is dismissed.</p> <p> No order as to costs</p> <p> </p> <p><em>Tendai Biti Law</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office, </em>respondents’ legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/334/2020-zwhhc-334.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=50612">2020-zwhhc-334.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/334/2020-zwhhc-334.pdf" type="application/pdf; length=509591">2020-zwhhc-334.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/international-law">International law</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/state-responsibility">State responsibility</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/assembly">Assembly</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/health">Health</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/si/2020/83">Statutory Instrument 83 of 2020, Public Health (Covid -19 </a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Wed, 03 Jun 2020 08:49:29 +0000 Sandra 9627 at https://old.zimlii.org Stringer v Minister of Health and Child Care & Anor (HH 259-20, HC 2154/20) [2020] ZWHHC 259 (31 March 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/259 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/259/2020-zwhhc-259.pdf" type="application/pdf; length=412707">2020-zwhhc-259.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/environment">Environment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/equality-and-non-discrimination">Equality and non-discrimination</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/health">Health</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/joinder-parties">Joinder of parties</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/non-joinder">non-joinder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-joinder-parties">principles (Joinder of parties)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-ordered-joinder-parties">when may be ordered (Joinder of parties)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/locus-standi-0">Locus standi</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict-sought-provisional-relief-urgent-application">interdict sought as provisional relief (Urgent Application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div></div></div> Thu, 02 Apr 2020 09:33:54 +0000 Sandra 9607 at https://old.zimlii.org Sadiqi v Muteswa (HH 249-20, HC 3971/19) [2020] ZWHHC 249 (18 March 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/249 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>FRANK BUYANGA SADIQI</p> <p>versus</p> <p>CHANTELLE TATENDA MUTESWA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 3 October 2019 &amp; 18 March 2020</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>T. Mpofu </em>for the applicant</p> <p>Miss <em>F. Mahere </em>for the respondent</p> <p> </p> <p> </p> <p>            ZHOU J: This application is essentially a challenge to the common law position that the mother of a child born out of wedlock is the sole guardian of and has exclusive custody over that child.  The applicant in this instance seeks to be declared joint guardian of the minor child together with the respondent who is the mother and under the current law the natural guardian of the child.  Applicant also wants joint custody over the child.  In respect of guardianship, the applicant asks the court to order that he and the respondent exercise the rights of guardianship in consultation with each other and that if the parties disagree on any matter relating to the exercise of the rights of guardianship and the matter involved has a bearing on the life, health and morals of the child, either party be entitled to approach a Judge of this Court in Chambers for an order to resolve the disagreement.  There is also a prayer for costs if the matter is to be opposed.</p> <p>            The application is opposed by the respondent.  The respondent raised an objection <em>in limine </em>that the matter is <em>res judicata</em>.  In the papers, including the heads of argument, the respondent raised the defence of estoppel but did not pursue it in argument.  After hearing argument on the objection I dismissed it and advised that my reasons would appear in the judgment.</p> <p>The factual background to the dispute is as follows.  The applicant and respondent were involved in a relationship which resulted in the birth of the child, Daniel Alexander Sadiqi, who is at the centre of this and many other disputes which have clogged this court.  They were never married but lived together in South Africa at some point.  The child was issued with a South African birth certificate.  After the termination of their relationship the respondent moved to Zimbabwe to live with the child.  The parties had executed an agreement which accepted and recorded that the respondent “has the custody and guardianship of the child by operation of law”.  There was then agreement that applicant be given access to the child as detailed in the memorandum.  There was also agreement on the applicant’s obligations in respect of the maintenance of the child.   An order by consent was granted by the High Court of South Africa on 19 December 2014 in a matter in which the respondent herein was the applicant and the applicant herein was the respondent.  The terms of that order are as follows:</p> <p>            “BY AGREEMENT BETWEEN THE PARTIES IT IS ORDERED THAT:</p> <ol> <li>The respondent is to sign any documentation that the Department of Home Affairs may require for the issuing of a passport of Daniel Alexander Buyanga Sadiqi (Daniel) on or before 22 December 2014 before 1000.</li> <li>Should the respondent not abide by the Order as set forth in paragraph 1 above, then and in that event that Sheriff of the Court with jurisdiction and/or the Registrar of the High Court of South Africa Gauteng Local Division, Johannesburg, is to sign all such documentation on behalf of the respondent.</li> <li>The respondent and his family are entitled to with (<em>sic</em>) Daniel by prior arrangement at 13 Coventry Road, Greystone Park, Harare, Zimbabwe for a minimum of two days for 2 hours of time within the 24 December 2014 to 8 January 2015period unless the parties agree to lenghthen such ….period.</li> <li>The respondent is to pay the costs on the approved scale.”</li> </ol> <p> </p> <p><strong>The objections <em>in limine</em></strong></p> <p>            The respondent’s contention in respect of the objection <em>in limine </em>is that there is an extant order of court in terms of which the respondent was awarded sole guardianship and sole custody of the child.  Respondent makes reference to annexure FS2a to the founding affidavit and annexure “B” to the opposing papers as the bases for saying that the issue of sole guardianship and sole custody have been determined by a competent court.  Annexure FS2a is a memorandum of agreement between the parties.  It is not an order of court.  Paragraph 1.1 of that agreement which the respondent relies upon in her contentions states: “It is recorded that the mother of the minor child has the custody and guardianship of the child by operation of law.”  The paragraph merely records what the parties understood to be the position of the law.  The order of the High Court of South Africa whose terms are quoted above did not deal with the question of custody.  Annexure B to the opposing affidavit contains the interim relief which was granted in CCA205/18 by the Magistrates Court.  The question of the sole custody appears in the “terms of final order sought”.  The draft which is on record shows that a rule <em>nisi </em>was granted calling upon the applicant who is the respondent in that matter to show cause why a final order should not be made declaring the respondent who is the applicant in that matter to be the sole custodian of the minor child.  Applicant submits in the heads of argument that the order was granted by consent on 27 May 2019 but has not produced a copy of the order.  Joint guardianship was not considered because the parties then accepted that they were bound by the common law position.  Also, the question of whether or not the parties must have joint custody over the child was not considered. </p> <p>            The constitutional validity of the common law position on custody and guardianship of a child born out of wedlock is what is at issue <em>in casu</em>.  In other words, the issue is whether the applicant, being the father of a child born out of wedlock, is entitled to joint guardianship and joint custody over the child under the Constitution of Zimbabwe, 2013. The order granted by consent was based on the existing common law position whose constitutional validity he is challenging.  This issue has not been determined by any court and is therefore not <em>res judicata</em>.  For these reasons I dismissed the objection <em>in limine</em>.</p> <p>            In respect of the argument based on estoppel the respondent’s case is that the applicant was estopped from disowning the representations to the Children’s Court consenting to respondent being the guardian and custodian of the minor child.  The so-called representation is not the representation which is envisaged in the context of estoppel.  The representation must be of a factual nature.  In other words, it must be shown that the party against whom the defence of estoppel is being invoked represented to the other party that a certain factual situation existed.  As shown above, the parties proceeded on the basis that because the child was born out of wedlock the respondent was entitled to sole custody and sole guardianship to the exclusion of the applicant, by operation of law.  That is the legal principle which the applicant seeks to impeach on the ground of constitutional invalidity in the instant case.  There can be no representation of a legal position because the court, which is presumed to know the law, is not bound by a party’s representation as to the legal position obtaining in respect of a particular factual situation.  A concession by a party on a question of law does not constitute a representation and does not bind a court.</p> <p> </p> <p><strong>The applicant’s case</strong></p> <p>            The applicant‘s case, as set out in the founding affidavit is that the common law rule in respect of custody and guardianship of children born out of wedlock is contrary to the provisions of s 19 (1) and s 19 (2) as read with s 81 of the Constitution of Zimbabwe.  Further, that the common law on custody and guardianship of children born out of wedlock is inconsistent with s 56 (3) of the Constitution.  Applicant complains that the exercise by the respondent of her exclusive rights of guardianship and custody are not in the best interests of the minor child in that he as the biological father of the child has been prevented from freely interacting with the child by the respondent who always reminds him that she has sole guardianship and sole custody of the child.  He therefore wants to be granted joint custody and joint guardianship of the child together with the respondent.</p> <p><strong>Respondent’s case</strong></p> <p>            The respondent disputes that joint custody and joint guardianship with the applicant is in the best interests of the child.  She also questions the suitability of the applicant to be given custody or guardianship rights over the child.  Respondent denies that the common law on the custody and guardianship of a child born out of wedlock is inconsistent with s 19(1) and s 19(2) as read with s 81 of the Constitution and, further denies that s 56(3) is contravened by the existing common law.  The respondent, just like the applicant, has made certain factual allegations against the applicant on the basis of which she questions his suitability to have custody of or to be granted joint guardianship over the child.  These are detailed in paragraph 17(a) to (j) of the opposing affidavit.  These allegations are denied by the applicant, in paras 31-41 of the answering affidavit. </p> <p>            This court makes no determination or factual findings on these disputed factual allegations for two reasons.  Firstly, the disputed facts cannot be resolved on the papers.  Secondly, the question of the entitlement or lack thereof of the applicant as the father of a child born out of wedlock to joint guardianship and custody can be resolved without necessarily attempting a resolution of the disputed facts.</p> <p><strong>The Roma-Dutch common law on custody and guardianship of a child born outside wedlock</strong></p> <p>            The applicant and respondent have consistently understood the question of custody and guardianship of the minor child to be governed by the common law, hence their agreement that these two rights vested in the respondent by operation of law.  The common law position is settled.  Professor Welshman Ncube articulates it succinctly in his book <em>Family Law in Zimbabwe</em>, pp. 108-109:</p> <p>            “Except for purposes of maintenance the Roman-Dutch common law regarded an    illegitimate child as having no father.  All parental rights to the child vested in its mother.             This position of a father with respect to his illegitimate child is summarized effectively by Spiro in <strong>The Law of Parent and Child</strong> in the following words:</p> <p>            ‘. . . the natural father is not possessed of the parental power and is not the guardian of the minor             child.’</p> <p>            Thus the guardianship of illegitimate children under Roman-Dutch common law rests with the             mother.  This position concerning a mother’s guardianship is clearly expressed by Boberg in <strong>The     Law of Persons and the Family</strong> in the following words:</p> <p>            ‘Whereas the parental power over a legitimate child rests with his father, in the case of an     illegitimate child it is his mother who, unless she is herself a minor, has the right of guardianship            and custody over him and whose surname and domicile he assumes.’</p> <p>            This view was cited with approval by Muchechetere J in <em>Douglas </em>v <em>Meyers (supra) </em>and was also expressed in <em>Dhanabakium </em>v <em>Subramanian and Anor </em>when Watermeyer JA stated:</p> <p>            ‘Now though the mother, and not the father of an illegitimate child is, generally speaking, the             natural guardian of the child . .  a person who is a minor is disqualified from being a guardian . . .‘   It is clear from the above that under the general law the sole guardianship of an illegitimate minor           child rests with its mother if she is herself a major.  In cases in which the mother is herself a minor,      however, a guardian dative would be appointed over the child by the court.  It would also appear that the court as upper guardian of all minors, has the power to deprive a mother of her guardianship           and award it to any suitable third party, including the child’s father, if it is satisfied that the mother’s guardianship is harmful to the welfare of the child.”</p> <p>           </p> <p>            See also <em>Edwards </em>v <em>Flemming </em>1909 TH 232; <em>Docrat </em>v<em> Bhayat </em>1932 TPD 125 at p. 127.</p> <p>Also, under the Roman-Dutch common law the natural custodian of a child born out of wedlock is the mother of the child, see <em>Douglas </em>v<em> Mayers (supra) </em>pp. 914-15 where muchechetere j (as he then was) said:</p> <p>            “In <em>Docrat </em>v<em> Bhayat </em>1932 TPD 125 it was held that the father of a minor illegitimate child   cannot claim custody of the child ‘as of right’ . . . From the above, my conclusion is that   there is             no inherent right of access or custody for a father of a minor illegitimate child but the father, in the         same way as other third parties, has a right to claim and will be granted these if he can satisfy the       court that it is in the best interests of the child.”</p> <p> </p> <p>See also <em>Cruth </em>v <em>Manuel </em>1999 (1) ZLR 7(SC) at p. 10E-11D.</p> <p>The authorities cited above show that the position of a father of a child born out of wedlock is the same as that of any other third party who wants to have custody or guardianship of the child.  The father would need to show that the mother’s custody and guardianship of the child would be harmful to the welfare of the child, <em>Edwards </em>v<em> Fleming, supra</em>;<em> F </em>v<em> L and Another </em>1987 (4) SA 525 at 527D-E.  This is precisely the reason why the parties to the instant case in their agreement recorded that the respondent had custody and guardianship of the minor child by operation of law.  What has to be determined <em>in casu </em>is whether the common law position is inconsistent with the cited provisions of the Constitution.</p> <p> </p> <p><strong>The best interests of the child concept, equality and non-discrimination</strong></p> <p>            The adoption of the concept of the best interests of the child as the paramount consideration in all matters concerning the access, guardianship or custody of minor children changed the approach to these rights. The Constitution of Zimbabwe Amendment (No. 20) Act 2013 protects the rights of children. Section 81 provides the following:</p> <p>            “(1)      Every child, that is to say every boy or girl under the age of eighteen years, has the   right –</p> <ul> <li>To equal treatment before the law, including the right to be heard;</li> <li>. . .</li> </ul> <p>(2)        A child’s best interests are paramount in every matter concerning the child.”</p> <p> </p> <p>            There is also an equality and non-discrimination provision in the Constitution.  Section 56 states as follows:</p> <p>            “(1) All persons are equal before the law and have the rights to equal protection and benefit of the   law.</p> <p>            (2)        . . .</p> <p>            (3)        Every person has the right not to be treated in an unfairly discriminatory manner on such                             grounds as their nationality, race, colour, tribe, place of birth, social origin, language, class,             religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status,                               age, pregnancy, disability or economic or social status, <strong>or whether they were born in or                 out of wedlock</strong>.”</p> <p> </p> <p>            The common law position discriminates against a child born out of wedlock by treating the child as if he or she had no father save for the purpose of maintenance.  The treatment of a father of such a child like any other third party in matters concerning access, custody and guardianship shows that the child was regarded as “fatherless”, and deserving of no paternal care or attention save for the purposes of maintenance.  The child was in essence being regarded as a commodity of some sort given that without rights of access, custody or guardianship, the maintenance contribution was essentially channeled through the mother of the child.  In practice, a father could pay maintenance for a child that he had never seen in his life and the child would be receiving such a benefit from a person he or she had never seen.  Because the mother would be the sole guardian and custodian of the child, if she decided that the child should never meet with his or her father the child would grow up without interacting with his or her biological parent. </p> <p>            It is unfair discrimination to deny a child the benefits of associating with his or her biological father, which is an aspect of parental care, on the mere ground of the marital status of the parents at the time that he or she was born.  The principle of the common law in this respect is inconsistent with s 81(1)(a) and s 56(1) and (3) of the Constitution of Zimbabwe.  The parties to this matter fully appreciated the importance of establishing and nurturing a parental bond between the applicant and the child hence their agreement on access notwithstanding the prescriptions of the common law.  However, the interaction appears to be losing its value because the applicant and respondent now spend more time in court arguing about the very same child that they accept is entitled to be brought up by both of them.  This unending conflict is largely attributable to the fact that the right of access was given benevolently by the respondent and not by the law, yet the respondent by virtue of her exclusive right of guardianship and custody has an overriding advantage in deciding on all the other matters concerning the child without consulting the applicant who is not only the father of the child but has been introduced into the life of the child since birth.  The right to family and parental care which is enshrined in s 81(1)(d) of the Constitution includes the child’s right to be cared for by both natural parents, see Iain Currie and J. de Waal, <em>Bill of Rights Handbook 5th Ed. p. 607.  </em>Care means more than just channeling monetary maintenance to the child through the mother.  It entails the opportunity to influence and shape the personality, character and life of the child by spending time with the child and being involved in making choices about the child’s life and future.     </p> <p>            Likewise, it is unfair discrimination to deny the biological father of a child custody and guardianship rights merely on the basis of his marital status in relation to the mother at the time of the birth of the child.  In this respect the common law rule that denies the applicant inherent custody and guardianship of the minor child is inconsistent with s 56 (1) and (3) in that it discriminates on the basis of marital status.  In the case of <em>Fraser </em>v<em> Children’s Court, Pretoria North </em>1997 (2) SA 261(CC), the Constitutional Court of South Africa held that the discrimination against fathers in non-Christian marriages is no longer permitted.  That reasoning applies equally to unwed fathers like the applicant in relation to denial of the right to custody and guardianship of the child.  There are compelling arguments for abolishing the maternal preference by allowing fathers of children born out of wedlock automatic parental rights of access, guardianship and custody.  Such an approach, as argued by Currie and de Waal in <em>The Bill of Rights Handbook 5th Ed. at pp. 607-608</em>, promotes gender equality by encouraging fathers to be actively involved in the care of their children.  The learned authors further posit that giving mothers automatic preferential rights of parental care on the ground of their gender encourages the “harmful stereotypes which require only women to shoulder the burden of child care”.  The approach urged here recognizes that parental roles do not reside in the biological make up of a person.  The anatomical constitution of a person as a man or woman is an act of biology, of nature; yet the gender roles pertaining to the roles of mother and father in bringing up a child are social constructs which may and must be challenged in the light of the changing dynamics of our society.  Gone are the days when the mother was expected to be carrying a heavy luggage with a baby strapped on her back while the father was carrying only his walking stick or knobkerrie.  For these reasons a rule that pretends that a child born of unwed parents has no father must be abolished as it violates the anti-discrimination provisions and values of the 2013 Constitution of Zimbabwe.</p> <p>            The “best interests of the child” requirement enjoins this court as the upper guardian of all minor children to exercise its authority by giving priority to the interests of the child over the rights, interests and entitlements of the parents.  In the case of <em>Fletcher </em>v <em>Fletcher </em>1948 (1) SA 130, long before the advent of the democratic constitutions in both South Africa and Zimbabwe, the Appellate Division held that the most important consideration in matters of custody and access (and, necessarily, guardianship) is not the rights of parents but the best interests of the child.  The constitutional entrenchment of this test shows the importance that the law attaches to it.  hungwe j (as he then was) dealt with a case in <em>Dangarembizi </em>v <em>Hunda </em>HH 447 – 18 where the marital status of the parents was raised as a ground of objecting to the granting of custody to the father.  At p. 7 of the cyclostyled judgment the Learned Judge said:</p> <p>            “There is considerable judicial opinion that deciding issues relating to guardianship, custody and             access based on the birth status of the child belongs to a bygone era.  The best interest of the child   was the main criterion employed in disputes relating to the custody of children, to the exclusion of         any rule of customary law.  Therefore, the criterion, irrespective of the type of marriage contracted,       and irrespective of whether or not the parents are unmarried, or <em>lobola </em>has been fully provided,             applies to all disputes concerning children.”</p> <p> </p> <p>            The Constitution trumps all legislation, other laws or rules, practice, custom, practice or conduct inconsistent with it by reason of its supremacy as enshrined in s 2(1). There is therefore no legal obstacle to the granting of joint guardianship and joint custody between the applicant and respondent in respect of the minor child.  It seems to me that it is in the best interests of the child that these rights be exercised jointly. The parties must take back their egos and consider the welfare of the child.  They must not use the child to resolve their other differences.  For the avoidance of doubt, it is important for the court to declare the legal position in respect of the rule of the common law regarding the entitlement of unwed fathers to the custody and guardianship of their children.  The legislature is invited to consider outlawing the use of the term “illegitimate” in describing children born out of wedlock.  That term is pejorative and stigmatizes children unnecessarily.</p> <p>            There has been a lot of litigation involving this minor child.  The court is concerned at the effect that such litigation has or may have had on the child.  It is necessary that a social worker interviews the minor child in order to assess the extent, if any, to which the litigation between the applicant and the respondent has affected the social life of the child and report to this court with recommendations on how the parties shall exercise their joint custody given that they do not live together.  Clearly, from the number of cases filed there is very little chance that giving sole custody to one parent would serve the best interests of the child given how they have continued to litigate over the exercise of access rights.  It is therefore in the best interests of the child that there be joint custody.    </p> <p>            On the question of costs, this matter is of importance.  It raises the issue of the constitutionality of the common law rule relating to a father’s right to guardianship and custody of a child born to unmarried parents.  It is therefore just that each party bears his or her own costs.</p> <p>            In the result, IT IS ORDERED THAT:</p> <ol> <li>The common law rule that gives the mother of a child born out of wedlock sole guardianship and sole custody and denies the natural father of such a child parental power is inconsistent with sections 56(1), 56(3), 81(1)(a) and 81(2) of the Constitution of Zimbabwe, 2013, and is invalid.</li> <li>The applicant be and is hereby granted, together with the respondent, joint guardianship and joint custody of Daniel Alexander Sadiqi (born 14 August 2014).</li> <li>The applicant and respondent shall exercise their rights of guardianship in consultation with each other and if a decision of either parent on any matter relating to guardianship is incompatible with the other parent’s wishes and likely to affect the life, health and morals of the minor child, and the applicant and respondent cannot reach agreement, either party may apply to a Judge of the High Court in Chambers for a determination of the course which is in the best interests of the minor child.</li> <li>The applicant and respondent shall within thirty days of this order arrange to have the minor child interviewed by a Government Social Worker to be appointed by the Registrar of this Court, after which the appointed social worker shall prepare and present a report with recommendations on how the parties shall exercise their joint custodial rights without disrupting the social life of the child.Such report shall be placed before any judge of this Court within thirty days of it being presented to the Registrar, together with this record, for a final order to be made regarding the full terms of the joint custody.</li> <li>If any costs are to be incurred in respect of the work of the Social Worker referred to in paragraph 4 hereof, such costs shall be shared equally by the applicant and the respondent.</li> <li>Each party shall bear his or her own costs.</li> </ol> <p> </p> <p><em>Rubaya and Chatambudza</em>, applicant’s legal practitioners</p> <p><em>Wilmot &amp; Bennett</em>, respondent’s legal practitioners                </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/249/2020-zwhhc-249.pdf" type="application/pdf; length=2738665">2020-zwhhc-249.pdf</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/249/2020-zwhhc-249.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30255">2020-zwhhc-249.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/child-family-law">Child (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/custody-child">custody of child</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/guardianship">guardianship</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/joint-custody">joint custody</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/equality-and-non-discrimination">Equality and non-discrimination</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1961/34">Guardianship of Minors Act [Chapter 5:08]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Fri, 20 Mar 2020 06:54:48 +0000 Sandra 9579 at https://old.zimlii.org S v Musiiwa (HH 52-14, CRB BNP 2055/19) [2020] ZWHHC 52 (14 January 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/52 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p>versus</p> <p>LIBERTY MUSIIWA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 14 January 2020</p> <p> </p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p>            CHITAPI J: The criminal justice trial system in Zimbabwe has satisfactory in built safeguards which ensure that criminal proceedings in the Magistrates Court are subjected to a quick control measure that protects an unrepresented person from judicial irregularity and excesses. This is done by requiring as a matter of law that depending on the nature of proceedings and/or threshold of sentences imposed at trial, the proceedings are thereafter automatically scrutinized by the Regional Magistrate or reviewed by a judge of this court in terms of respectively ss 58 and 57 of the Magistrate Court Act [<em>Chapter 7:10</em>]. In regard to both processes, the scrutinizing regional magistrate or the reviewing judge as the case may be will go through the completed proceedings and certify them as being in accordance with real and substantial justice, decline to do so or correct them. In the case of a criminal review by a judge of this court, the powers of the court are set out in s 29 of the High Court Act</p> <p>[<em>Chapter 7:06</em>]. I will not burden this judgment with listing individually the powers of the judge as set in the said section. However, one of the powers which the judge exercise is to correct the proceeding and make such comments as may guide future proceedings.</p> <p>            It is my view that it is good practice for the judge to make positive comments where the conduct of proceedings deserve such comments. A positive comment can also act as a learning tool for others and as a stimulant to strive for excellence by the person receiving positive comments. In this review, what first struck me as deserving mention was the framing of the charge. The proceedings were presided over by M Makati Esquire, senior magistrate sitting at Bindura Magistrates Court. The charge and state outline were hand written on lined examination pad sheets. The details of the police station, CR, CRB, FR, PPs Ref etcetera were neatly written out, boxed and underlined. Spaces were left for the magistrate to insert his or her name and rank. For the discerning reader the charge sheet in the Magistrates Court styled is a summary jurisdiction sheet. It is printed by the Government Printer. Having to copy it in long hand clearly indicates that there is shortage of stationery for police at Bindura to use. I say so because apart from this case, I also reviewed as part of the same batch, other records of proceedings where the summary jurisdiction sheet is either similarly reproduced in long hand or details which are normally typed in, are in long hand. Again, this signifies a shortage or non-availability of computers or other typing gadgets. The handwritten reproduced forms and the state outlines are however very legible. Additionally, the magistrate herein complimented the police effort by also legibly completing in long hand in the spaces left for the magistrate to fill in. The shortage of stationery has not dampened the spirits of the police to pursue justice despite such a scenario obviously affecting moral. Such resilience is deserving of commendation. The situation must however be corrected to increase morale and not overwork the police officers who prepare the documents for court. Therefore, I must exhort the responsible authorities to provide the necessary budgetary support so that police functions are enhanced</p> <p>            Another feature which presented itself to me for positive comment was the way that the charge was drafted. Of recent, this court has had to deal with a number of applications made by accused persons through their legal practitioners for quashing of charges for a variety of reasons which <em>inter-alia</em> include deficiency in such detail as would inform the accused sufficiently of the nature of the charge which the accused must meet. In <em>casu </em>the case concerns a charge of assault. In very legible handwriting the summary jurisdiction or charge sheet read as follows:</p> <p>“ASSAULT AS DEFINED IN SECTION 89 (1) (A) OF THE CRIMINAL LAW CODIFICATION AND REFORM ACT, [CHAPTER 9:23]</p> <p>In that on the 5th day of August, 2019 and at Mupandenyama Shopping Centre, Bindura LIBERTY MUSIIWA committed an assault upon SHADRECK TAMBU by hitting him with a hoe handle once on the back, twice on the right thigh and once on the left leg, also hit the complainant with a pool stick three times on the forehead and kicked him with a booted foot once on the upper lip intending to cause bodily harm upon Shadreck Tambu or realizing that there was a real risk or possibility that bodily harm might result thereby causing pain on  SHADRECK TAMBU’S BODY.”</p> <p>If one considers the manner in which the above charge is framed, barring negligible</p> <p>grammar errors, the charge easily satisfies the essentials of a charge as set out in s 146 of the Criminal Procedure &amp; Evidence Act, [<em>Chapter 9:07</em>] which provides that the charge “… shall set forth the offence with which the accused is charged in such manner, and with such particulars as  to the alleged time and place of committing the offence and the person, if any against whom and the property, if any in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.”</p> <p>            A charge worded as done in his case leaves the accused in no doubt as to the nature and details of the wrong alleged against him, in respect of whom and the date and place of occurrence. The time of the offence ought to have been inserted. However, the omission to do so is not fatal to the charge more so because time was not of the essence in the charge.</p> <p>            In regard to the trial proceedings themselves, there are two issues which deserve comments. The first issue concerns the duty of the magistrate to explain to the accused the accused’s right to legal representation. The right to legal representation is a constitutional right provided for in s 70 (1) (d) and (e) of the Constitution. In para (a) the accused has a right to choose a legal practitioner and be represented by such legal practitioner at the accused’s expense. In para (e), the accused has right of legal representation by a legal practitioner assigned by the State at the State’s expense if, “substantial injustice could otherwise result.” The right to legal representation is provided for in s 191 of the Criminal Procedure &amp; Evidence albeit not with as much detail and clarity as in s 70 (1) (d) and (e) of the Constitution. A related s 163A of the Criminal Procedure Act, provides as follows:</p> <p>            “<strong>163 Accused in magistrate court to be informed of s 191 rights</strong></p> <p> </p> <p>At the commencement of any trial in a Magistrates Court, before the accused is called upon to plead to the summons or charge, the accused shall be informed by the magistrate of his or her right in terms of s 191 to legal or other representation in terms of that section.</p> <p>(2) The magistrate shall record the fact that the accused has been given the information referred to in subsection (1); and the accused’s response to it.”</p> <p> </p> <p>            Section 191 of the Criminal Procedure and Evidence Act provides as follows:</p> <p>            “<strong>191 Legal representation</strong></p> <p>Every person charged with an offence may make his defence at his trial and have the witnesses examined or cross examined-</p> <p> </p> <ul> <li>By a legal practitioner representing him; or</li> <li>In the case of a accused person under the age of sixteen years who is being tried in the magistrates court, by his natural or legal guardian; or</li> <li>Where the court considers he requires the assistance of another person and has permitted him to be so assisted, by that other person.”</li> </ul> <p>It can therefore be accepted that there are three classes of persons who can represent an accused person in the Magistrates Court in term of s 191. These are, a legal practitioner representing the accused, a natural or legal guardian of the accused of the accused is under 16 years of age, and any other person subject to the court determining that the assistance of that person is required and the accused has consented to such person to represent him. As to the principles governing the invocation of the provisions of s 191 (c) on the accused being represented by any other person as envisaged therein, the subject requires jurisprudential argument and in any event is beyond or outside the scope of this review. Having interrogated the provisions of ss 163 A and 191 aforesaid, I then considered whether the trial senior magistrate complied with the peremptory provisions of s 163 A.</p> <p>The record shows the following recorded detail which preceded the putting of the charge and recording of a plea.</p> <p>“Right to legal representation explained and understood – I will be a self-actor.</p> <p> </p> <p>Charged read and understood.</p> <p> </p> <p>Plea – Not guilty</p> <p> </p> <p>Facts read and understood.</p> <p> </p> <p>Provisions of ss 188 and 189 of the CP &amp; E explained and understood.”</p> <p> </p> <p>Thereafter followed a recording of the defence outline and the evidence of witnesses and the accused’s evidence in his defence.</p> <p>Whilst, I am inclined to accept, given that the magistrate in question is a senior magistrate and therefore sufficiently experienced in conducting trials procedurally did comply with the provisions of ss 163A and 188 and 89 as recorded by him, I must caution that the recording done by the senior magistrate falls short of what should be recorded in compliance with the requirements of procedure. The provisions of s 163A are peremptory as with section 188. For fullness of record, s 188 (b) is the one which is relevant to the protection of the accused’s right to remain silent as provided for in s 70 (1) (i).</p> <p>The provisions of the same provides as follows-</p> <ul> <li> </li> </ul> <p>In a trial before a magistrate, if the accused pleads not guilty or a plea of not guilty is entered in terms of section one hundred and eighty-two—</p> <ul> <li> </li> <li>The accused shall be requested by the magistrate to make a statement, if he wishes, outlining the nature of his defence and the material facts on which he relies and, if he is not represented by a legal practitioner, his right to remain silent, and the consequences of exercising that right, shall be explained to him.”</li> </ul> <p> </p> <p>The senior magistrate recorded that he had explained the provisions of ss 163A and 188 and that the accused understood the explanation. The question remains; what was the content of the explanation given and how did the accused signify or indicate that he understood the unrecorded content of the explanation? I need not overemphasize that the procedures in ss 163A and 188 are central to the ensuring and safeguarding of a fair trial as envisaged in s 69 (1) of the Constitution. In terms of s 86 (3) (a) of the Constitution, the rights to a fair trial is absolute. No law may limit, and no person may violate the right to a fair trial. This includes the court. A fair trial inter alia is one which is conducted in accordance with the law both procedurally and substantively. Since the Magistrates Court is a court of record, the record of proceedings especially where the proceedings are not on tape should show the details of what has transpires and been said by the court to the accused and vice versa. One easily appreciates the pressure under which magistrates work in that they are expected to clear many cases placed before them daily. Due to lack of resources, not all courts have recording facilities and the recording of proceedings is through and through in long hand. Expediency dictates that the recording of proceedings is curtailed as in this case by making a note that accused’s rights have been explained without recordings the explanation in full and the response given. Such practice should be desisted from. Fair trial procedures must be strictly adhered to because a fair trial is a fundamental or foundation to the rule of law. Justice should not be compromised for expediency. Where a statute requires that certain procedures should not only be followed but recorded, this must be done. A failure to record what has been done may lead to the review court quashing the proceedings as there is no way for the court to be satisfied that the proceedings under review are regular and in accordance with real and substantial justice.</p> <p>            It will be noted that in terms of s 188 (b) of the Criminal Procedure &amp; Evidence Act which deals with a defence outline</p> <p>“the accused shall be requested by the magistrate to make a statement, if he or she wishes, outlining the nature of his defence and the material facts on which he relies and, if he is not represented by a legal practitioner, his or her right to remain silent and the consequences of exercising that right, shall be explained.”</p> <p> </p> <p>The right to remain silent is a constitutional right which is available to the accused upon</p> <p>his arrest in terms of s 50 (4) (a) and (b) as well as at trial as provided for in s 70 (1) of the Constitution. Significantly, the latter provision provides that the accused has the right–</p> <p>            “to remain silent and not to testify or be compelled to give self-incriminating evidence”</p> <p>            The right against self-incrimination is one of the pillars of a fair criminal trial. It is intertwined with the right to remain silent. In my view such important right cannot be inferred to have been properly explained by a mere recording which is given as “provisions of s 188 of the Criminal Procedure &amp; Evidence Act explained and understood.” The explanation given should be recorded in detail. Most unrepresented accused persons are ignorant of procedural law. It is therefore important that the review court is satisfied that the accused has not been a victim of his ignorance. Without a detailed recording of the explanation given by the magistrate and the response thereto, it is not possible to say that the proper explanation was given and the accused’s rights concomitantly protected as mandated by s 44 of the Constitution.</p> <p>            That said, in relation to the rest of the proceedings, the accused was properly convicted on overwhelming evidence. His defence that he was restraining others from assaulting the complainant was rightly rejected. An independent witness corroborated the evidence of the complainant and 2 other witnesses that the accused struck the complainant with a hoe handle on the buttocks and on his leg. The court determined the matter on credibility of witnesses and there was nothing in the evidence to suggest that a wrong assessment of the evidence was made by the court <em>a quo</em>.</p> <p>            In regard to sentence, the accused was sentenced to 18 months’ imprisonment with 6 months suspended on condition of future good behaviour. Although the accused was a youthful offender aged 22 years, the court <em>a quo </em>took into account the seriousness of the assault and injuries suffered by the complainant. Further, the accused used a weapon which aggravated his conduct and moral blameworthiness. The accused also assaulted a person who tried to assist the complainant. The complainant suffered a fracture of the right tibia and fibula bones. Severe force was used and the injuries were described as serious in the medical report prepared by the doctor who examined the complainant. Assault constitutes inhuman and degrading punishment. Section 89 of the Criminal Law (Codification and Reform Act) provides severe penalties wherein the court can impose a fine exceeding level fourteen or imprisonment up to 10 years’ or both. Zimbabwe must be a violent free society and crimes like assault call for exemplary and deterrent sentences so that people’s rights to human dignity and personal security are promoted and protected.</p> <p>            In the circumstances, despite the pointers I set out on the need for magistrates to make a detailed record of the explanations of rights which they are required by statute to give to the accused and similarly record the accused’s responses, I am satisfied that the shortcomings did not result in a failure or miscarriage of justice. I am persuaded to hold so because the magistrate was alive to the court’s duty to explain the rights though the magistrate did not record the details of the explanation and the accused’s answers. I accordingly issue my certificate confirming the proceedings as being in accordance with real and substantial justice.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/52/2020-zwhhc-52.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24377">2020-zwhhc-52.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/52/2020-zwhhc-52.pdf" type="application/pdf; length=236995">2020-zwhhc-52.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/charge">Charge</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/have-his-cause-heard-fair-trial">Have his cause heard (fair trial)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1931/18">Magistrates Court Act [Chapter 7:10]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Wed, 29 Jan 2020 14:31:06 +0000 Sandra 9469 at https://old.zimlii.org