Eddies Pfugari Properties (Pvt) Ltd v Officer in Charge, Dzivarasekwa Police Station and Others

The applicant was the registered owner of a property known as the Remainder of Whitecliff, situated in the district of Salisbury, measuring 1065.7090 hectares, held under Deed of Transfer number 10444/2000. The Supreme Court in SC 45/12 confirmed the applicant's ownership and ordered the Minister of Lands and Rural Resettlement and anyone claiming occupation through him to vacate the property within five days. Following this order, the applicant instructed the Sheriff to evict illegal settlers from the property. The Sheriff requested police assistance from the first respondent to maintain peace during eviction. The first respondent engaged in delaying tactics, initially requesting details of persons to be evicted, scheduling and rescheduling eviction dates, calling off scheduled evictions, and insisting on various meetings and verifications. The property had been subdivided into residential stands, some sold to innocent purchasers, but illegal occupiers had randomly constructed structures, some on roads and reserved infrastructure land, and became violent towards the applicant's officers and employees. The applicant was effectively barred from accessing its own property and could not give purchasers vacant possession or service the land as a developer.

• Whether the police respondents had a constitutional and statutory duty to assist the Sheriff in maintaining peace and order during the execution of a lawful court order for eviction
• Whether illegal occupiers needed to be cited as parties before the police could assist with eviction
• Whether the illegal occupiers had acquired constitutional rights under section 74 of the Constitution (right against arbitrary eviction)
• Whether the police could refuse to enforce a Supreme Court order on the basis that affected parties were not cited
• Whether the applicant was entitled to an order compelling police assistance in enforcing the writ of ejectment

IT BE AND IS HEREBY ORDERED THAT: 1. The first and second respondents shall, within ten days of service of this order, provide the third respondent with sufficient police manpower and equipment to maintain the peace while the third respondent enforces the writ of ejectment in case number SC 45/12. 2. The first and second respondents shall pay costs of suit.

The binding legal principles established are: (1) The police have a constitutional and statutory duty under section 219 of the Constitution and section 93(1) of the Police Act to maintain law and order and assist in the enforcement of lawful court orders by maintaining peace during eviction processes; (2) Police cannot refuse to provide assistance on the basis that persons to be evicted were not cited as parties to the application for police assistance; (3) Illegal occupiers do not acquire constitutional protection under section 74 of the Constitution against eviction pursuant to lawful court orders, as property they illegally occupy is not their "home" and such eviction is not arbitrary; (4) Property owners with real rights have the right to vindicate their property from illegal occupiers; (5) Police must act in a non-partisan, professional manner and cannot arrogate to themselves the power to review or refuse to comply with court orders; (6) The role of police in eviction proceedings is to maintain peace and order while the Sheriff executes the court order, not to enforce the order themselves.

The court made several non-binding observations: (1) It expressed serious concern about the police respondents appearing to review the Supreme Court order and suggesting that the Supreme Court had overlooked the rights of affected persons; (2) The court observed that it was "unfortunate and a sad day of the country's vibrant democracy" that police officers whose duty it is to observe and enforce the law would attempt to review a Supreme Court order; (3) The court noted with disapproval the respondents' suggestion that illegal settlers be furnished with alternative accommodation before eviction, describing this as "not only unfortunate" but "totally misplaced"; (4) The court commented that the respondents appeared to suggest that illegal settlers have a right to remain on the applicant's property, which was incorrect; (5) The court stated that "illegal settlers are what they are" and should be removed from wherever they have settled themselves, particularly where the applicant holds a court order; (6) The court observed that the police "cannot be allowed to pick and choose" which court orders to enforce.

This case is significant in Zimbabwean jurisprudence as it clarifies the constitutional and statutory duties of the police to assist in the enforcement of lawful court orders, particularly eviction orders. It establishes that police cannot refuse to maintain law and order during the execution of court orders on the basis that affected parties were not cited, and cannot take a partisan approach by effectively reviewing or refusing to comply with Supreme Court orders. The judgment reinforces the principle that illegal occupation does not confer legal rights or constitutional protection against eviction pursuant to lawful court orders, and that property owners have real rights to vindicate their property. It also clarifies that section 74 of the Constitution (protection against arbitrary eviction) does not apply to illegal occupiers being evicted pursuant to court orders, as such eviction is not arbitrary and the property is not their "home" in the constitutional sense. The case emphasizes the subordination of police to civilian authority and the rule of law.