MUKUNGURUTSE & ORS v CITY OF HARARE & ANOR 2016 (2) ZLR 398 (H)

Flynote

Constitutional law: " Constitution of Zimbabwe 2013 " Declaration of Rights" freedom from arbitrary eviction (s 74) " effect on by-laws authorizing demolition of illegal structures

Local government: " by-laws " construction of " must be read in conjunction with Constitution " by-law authorizing demolition of illegal structures " constitutional prohibition of demolition of homes without court order " such prohibition overriding by-laws

Headnote

A provisional order barred the first respondent from demolishing the applicants' homes in a high density suburb in Harare, in the absence of a court order. In confirmation proceedings, the applicants alleged that the demolition was unlawful without a court order in view of s 74 of the Constitution.The respondents argued that the council was entitled in terms of the Urban Councils (Model) (Use and Occupation of Land and Buildings) By-Laws 1979 (RGN 109 of 1979) to demolish structures it deemed illegal in the absence of a court order and that the by-laws had not been declared unconstitutional. The applicants contended, however, that all existing laws must be construed in conformity with the Constitution.The first respondent argued that s 74 of the Constitution needed to be read with s 86 of the Constitution, which stated inter alia that the fundamental freedoms may be limited in the interest of regional or town planning or the public interest.

Held, that the Constitution was the supreme law and any law inconsistent with the Constitution is ultra vires the Constitution. Section 74 of the Constitution was clear and unambiguous and before the respondents could lawfully demolish the homes of the applicants, or any other illegal structures, a court order was required.