BOMBA & ORS v MUREWA RURAL DISTRICT COUNCIL & ANOR 2016 (2) ZLR 212 (H)

Flynote

Constitutional law: " Constitution of Zimbabwe 2013 " Declaration of Rights c " right to lawful administrative conduct (s 68(1)) " right violated if legal processes laid down by statute are not followed

Constitutional law: " Constitution of Zimbabwe 2013 " Declaration of Rights " right not to be evicted without a valid court order (s 74) " rural council displacing villagers in order to expand growth point " need for council to follow due process in displacing villagers " right of villagers to raise claim in High Court if right violated

Headnote

The plaintiffs were a group of villagers who were being displaced from their rural homes by the actions taken by the defendant in expanding Murewa Growth Point. They had sought a declaratur stating that their constitutional and legal rights had been contravened, and were seeking compensation.

The defendants entered a special plea barring the plaintiffs on the basis that theyad approached the wrong court, that theyad not exhausted f domestic remedies and that their claim for compensationad prescribed. They argued that the plaintiffs shouldave approached the Administrative Court, since under s 53 of the Regional Town and Country Planning Act [Chapter 29:12] grievances regarding compensation should beeard by that court. They also claimed that they were entitled to take any action g when operating a master plan and once again grievances should be addressed to the Administrative Court. If theyad a complaint under the Administrative Justice Act it could be taken to the High Court, but as an application, not by summons as theyad done. Furthermore, since this processad begun several years previously, the plaintiff's claimsad expired through prescription andence could not beeard.

The plaintiffs, a challenging the special plea, argued that the jurisdiction of the Administrative Court does not provide for it to make a declaratur. They pointed out that the defendants could not rely on s 53 of the Regional Town and Country Planning Act, as they had produced no evidence that they were acting on the basis of a master plan, or even that a master plan existed, hence s 53 of this Act was irrelevant. No draft plan had been presented to the public, and no consultation had taken place. The plaintiffs were making their claim based on protections of rights in the Constitution and acting on s 85(1) of the Constitution. The council had acted unlawfully, evicting people without a court order, hence violating s 74(1) of the Constitution.

Held, that in failing to follow legal procedures the Council had indeed violated the plaintiffs' constitutional right under s 68 to administrative conduct that is lawful. According to s 327 of the Constitution, the court was required to interpret legislation in line with international law and that the right not to be evicted without due process is protected in international law. No evidence was presented to suggest that any legal process had been followed, hence the council's actions were unlawful. The defendants could not restrict the plaintiffs to processes which would limit their ability to claim their rights when they themselves had not followed legal procedures. The special plea was dismissed with costs.