Anderson Hamandishe and Matthew Hamandishe v Chirumhanzu Rural District Council and The Sheriff for Zimbabwe N.O.

The applicants are brothers operating a liquor supply business at the Hamandishe complex. They used adjacent premises designated as open space near Shayabvudzi Business Centre for offloading merchandise. In April 2023, the first respondent (Chirumhanzu Rural District Council) indicated plans to allocate residential stands on the premises. The applicants objected, contending this was ultra vires the local development plan, master plan, and regional plan, as the area was designated as open and breathing space. Despite correspondence and objections, the first respondent proceeded with allocating stands and beneficiaries began constructing structures including dwelling houses. The applicants withdrew a prior interdict application in the Magistrates' Court and then brought this application seeking a mandatory interdict to compel the first respondent to revoke stand allocations, evict occupants, and demolish structures. Critically, the applicants did not cite the persons allocated stands and occupying the structures as parties to the proceedings.

• Whether non-joinder of persons affected by the order sought is fatal to the application
• Whether the court can grant an eviction and demolition order without citing the persons to be evicted and whose structures are to be demolished
• The proper interpretation and application of Rule 32(11) and (12) of the High Court Rules, 2021 regarding non-joinder
• Whether constitutional requirements under section 74 of the Constitution regarding eviction and demolition require affected persons to be heard

1. The application be and is hereby struck off the roll. 2. The applicants bear the first respondent's costs jointly and severally, the one paying the other to be absolved.

Where applicants seek an order for eviction of persons and demolition of their dwelling structures, the failure to cite those persons as parties constitutes fatal non-joinder. Persons whose homes are to be demolished and who face eviction have a direct and substantial interest in the proceedings, not merely an indirect or financial interest. Section 74 of the Constitution requires a court to consider all relevant circumstances before ordering eviction or demolition of homes, which necessitates that affected persons be joined as parties and given an opportunity to be heard. Rule 32(11) of the High Court Rules, 2021, which provides that non-joinder shall not defeat proceedings, does not permit a court to grant drastic relief affecting third parties' fundamental rights without their participation in the proceedings. Non-joinder is fatal where the rights and interests of unjoined parties cannot be properly determined without their presence and participation.

The court noted that the applicants appeared to have taken a simplistic approach to the question of non-joinder, seemingly believing that compliance with the constitutional requirement to seek a court order before eviction was sufficient, without recognizing that the affected persons must also be heard. The court observed that the applicants were "only telling half the story" by seeking a court order but not citing those affected by it. The court also noted without deciding that the applicants' contention that the first respondent should know who the affected parties are (as it keeps a register of allocated stands) did not absolve the applicants of their responsibility to join necessary parties. The judge emphasized that "no court would countenance" granting relief that interferes with persons' rights without affording them the chance of being heard on the subject.

This case clarifies the application of non-joinder principles in Zimbabwean law, particularly in the context of eviction and demolition proceedings. It establishes that while Rule 32(11) of the High Court Rules, 2021 provides that non-joinder shall not defeat a matter, this does not permit courts to grant orders with drastic consequences affecting third parties without affording them the opportunity to be heard. The judgment reinforces the constitutional protection in section 74 against eviction and demolition without judicial consideration of all relevant circumstances, which necessarily includes hearing from affected persons. The case serves as an important reminder that procedural rules must be interpreted consistently with constitutional rights and principles of natural justice, particularly the audi alteram partem rule.