Home demolitions without orders declared unconstitutional

Fidelis Munyoro, Chief Court Reporter

The Constitutional Court has delivered a decisive blow to local authorities seeking to demolish homes using their administrative authority by declaring that demolishing homes without a court order is unconstitutional.

The court also ordered the relevant law to be amended to ensure that all can have their day in court before a home is demolished and that a court has been persuaded that a demolition order is necessary.

This historic ruling, building on a 2024 High Court decision, cements the protection of homeowners across the nation, particularly those in informal settlements, who have long suffered under the shadow of arbitrary evictions.

The case began in 2020, spearheaded by the Chitungwiza Residents Trust (CHITREST), which challenged sections of the Regional, Town, and Country Planning Act.

These provisions granted local authorities the power to demolish homes without judicial oversight.

Represented by Zimbabwe Lawyers for Human Rights, with Advocate Tererai Mafukidze leading the charge, CHITREST argued that these laws violated Section 74 of the Constitution, which guarantees protection against arbitrary eviction.

In a judgment authored by Justice Bharat Patel on behalf of the seven-judge bench, the court unanimously upheld the High Court’s earlier finding.

Justice Patel ruled that the provisions in question contravened Section 74, stating: “It is patently clear that this process, without any rider or qualification, would invariably result in the occupants affected being arbitrarily evicted from their homes or having their homes demolished, without due process.”

He further noted that such actions “render nugatory the socio-economic rights enshrined in the Constitution” and undermine Section 28, which obligates the state to ensure access to adequate shelter.

The provisions under scrutiny – sections 32(2)(c) and (d) and 37(1)(a)(i) of the Act – allowed local authorities to issue demolition notices and proceed with demolitions once the notice period expired, without ever seeking judicial approval.

Justice Patel described this approach as “unduly excessive and disproportionate”, asserting that the rights enshrined in Section 74 must not be sacrificed on the altar of town planning.

He emphasised that “freedom from arbitrary eviction or demolition guaranteed by Section 74 cannot be overemphasised,” adding that demolitions must comply with due process and the audi alteram partem rule, which ensures all parties are heard before action is taken.

This means that someone whose home is up for demolition must first have their day in court. They can still lose the home, but not until all factors are weighed by an impartial court.

While acknowledging the need for urban planning, Justice Patel reasoned that the Act’s provisions failed to strike a proper balance between this legitimate purpose and the constitutional rights of citizens.

“The justification for demolition, i.e., the interests of town planning, does not, in my view, suffice to override the requirements of due process and thereby warrant the infringement of Section 74,” he declared.

The court’s decision stemmed from a settlement reached in October 2024, where all parties agreed that the contested provisions were unconstitutional.  This settlement also invalidated a demolition order issued by Chitungwiza Municipality on October 8, 2020.

The court confirmed the constitutional invalidity of the provisions and suspended their effect for 12 months, granting the Government time to amend the defective legislation.

Justice Patel observed, “By virtue of Section 175(6)(b) of the Constitution, it is just and equitable to make an order suspending the declaration of invalidity for a specific period to allow the competent authorities to correct the defective legislation.”

The ruling compels local authorities to obtain a court order before demolishing any structure, ensuring affected home owners can challenge such actions in court.

This marks a significant victory for residents of informal settlements, who have historically borne the brunt of mass demolitions, often left homeless and destitute. They can still have their homes demolished, but only after due process and not on the whim of a city official.

The Ministries of Local Government, Public Works, and Justice, Legal, and Parliamentary Affairs have been tasked with amending the unconstitutional sections of the Act to ensure that the courts intervene between the desire for demolition and the demolition.