City of Harare v Tawanda Mukungurutse and Others

In 2008, Tembwe Housing Co-operative was allocated land by the City of Harare (appellant) for development of 175 residential stands. The chairman, Caleb Kadye, began allocating stands to members before the land was fully serviced and illegally allocated stands on land not offered by the appellant, including sites earmarked for schools. The first to third respondents were among those allocated these illegal stands. The first respondent paid monthly instalments for surveying fees and charges, moved onto the stand in August 2011, and built a 3-roomed cottage where he lived with his wife and 3 children. In 2013, he received assurances from the appellant's Department of Housing that no one would be moved until an amicable solution was found. Despite this, the appellant began demolishing neighboring homes. The respondents approached the High Court seeking a provisional order to stop the demolition of their homes without a court order, relying on section 74 of the Constitution of Zimbabwe which prohibits eviction or demolition without a court order.

• Whether existing legislation (SI 109 of 1979) permitting demolition without a court order was invalidated by section 74 of the Constitution of Zimbabwe
• At what stage does invalidity of existing legislation inconsistent with the Constitution occur - upon promulgation of the Constitution or when declared invalid by a court
• Whether the structures erected by the respondents constituted 'homes' for purposes of section 74 of the Constitution
• Whether the Constitution has retroactive effect so as to deprive the appellant of rights it lawfully possessed before the Constitution came into effect

The appeal was dismissed. Each party was ordered to pay its own costs.

The invalidity of existing legislation inconsistent with a constitutional provision occurs at the time the constitutional provision comes into force, not at the time a fundamental right is infringed or when an order of invalidity is pronounced by a court. A court order declaring invalidity does not invalidate the law; it merely declares it to be invalid. Pre-existing laws either remain valid or become invalid upon the provisions of the Constitution coming into operation. Section 74 of the Constitution of Zimbabwe prohibits the demolition of any 'home' without a court order, and 'home' must be given its ordinary meaning as a dwelling place or fixed residence where one's family life and affections are centered. The protection of section 74 applies regardless of whether the structure was erected lawfully or unlawfully.

The Court expressed displeasure at the conduct of the cooperative and the applicants (respondents), describing them as 'outlaws who deliberately sought to disregard the law who now seek the protection of the same law.' The Court noted that had it not been for section 74 of the Constitution, the order would not have been granted. This moral disapproval influenced the costs order, with each party bearing its own costs despite the respondents' success. The Court also observed that the appellant genuinely believed, albeit unconstitutionally, that it had power to demolish illegal structures in terms of SI 109 of 1979, which justified not burdening it with costs.

This case is significant in Zimbabwean constitutional law as it establishes the principle of immediate automatic invalidity of pre-existing legislation upon promulgation of a new Constitution. The judgment clarifies that when a Constitution comes into effect, any existing law inconsistent with it is immediately invalid from that date, not merely from the date a court declares it invalid. The court's declaration of invalidity is merely declaratory, not constitutive. This has important implications for the application of constitutional rights and the validity of administrative actions taken under pre-constitutional legislation. The case also interprets section 74 of the Constitution of Zimbabwe, which protects against arbitrary eviction and demolition, broadly to include informal structures that serve as homes, regardless of their legality. This provides constitutional protection to vulnerable persons living in informal settlements, requiring municipalities to obtain court orders before demolition even of illegal structures.