Ntombizodwa Mhlanga and Others v Douglas Mombeshora N.O and Others

The applicants, all members of the ZANU (PF) youth league, settled on tracts of land at Heany Junction Farm outside Bulawayo in January 2013. They alleged that the 1st respondent (Minister of Lands and Rural Resettlement) was aware of their settlement and the 2nd respondent (Member of Parliament for the constituency and Minister of Home Affairs) assured them their settlement was lawful and they could build homes. After more than 3 years of peaceful occupation in permanent homes, on 8 November 2017, officials from the Ministry of Lands and Rural Settlement accompanied by 40 armed police officers in riot gear arrived to evict them, threatening arrest if they did not vacate by 1800 hours that day. Settlers were arrested and detained at Queens Park Police Station and charged with unlawful occupation of gazetted state land under section 3(1)(a) and (b) of the Gazetted Lands (Consequential Provisions) Act. The respondents threatened to evict and demolish homes without a court order. Some settlers received offer letters while others did not, despite all settling at the same time.

• Whether illegal occupiers are protected by section 74 of the Constitution from eviction without a court order
• Whether the state can evict settlers and demolish their homes without obtaining a court order
• Whether the court can interdict the Prosecutor General from executing criminal prosecutions
• Whether the state has a constitutional obligation to provide alternative shelter before evicting illegal occupiers
• What constitutes 'all relevant circumstances' under section 74 of the Constitution

The court granted a provisional order interdicting the 1st, 2nd, 4th and 5th respondents from threatening to evict, attempting to evict, evicting or interfering with the applicants' and other occupiers' occupation of their homesteads at Heany Junction Farm and from demolishing their homesteads without first seeking and being granted a court order for eviction and/or demolition from a court of competent jurisdiction. The application to interdict the 3rd respondent (Prosecutor General) from prosecuting was dismissed as incompetent.

Section 74 of the Constitution protects all persons, including illegal occupiers, from eviction and demolition of their homes without a court order. The provision was intended by the law-giver to protect illegal occupiers from arbitrary eviction and demolition. The state's constitutional obligation under section 28 to provide adequate shelter means it cannot evict citizens and render them homeless without providing alternative land, particularly where it has acquiesced in or encouraged their settlement. When considering an eviction application under section 74, courts must consider 'all relevant circumstances' and determine whether eviction is just and equitable to all parties. The state cannot resort to self-help or guerilla tactics in addressing land issues and must follow due process through the courts, even against illegal occupiers.

Mathonsi J made several obiter observations: (1) The court noted approvingly the 'seismic shift' in Zimbabwean jurisprudence towards protecting illegal occupiers in line with modern trends; (2) The judge observed that although Zimbabwe does not have legislation equivalent to South Africa's Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, constitutional provisions protecting fundamental rights override other laws; (3) The court commented that the power of courts extends to correcting 'all manner of misgovernment'; (4) The judge stated that guerilla tactics in addressing land hunger 'cannot be countenanced in a democratic and civilized society like Zimbabwe'; (5) The court noted that eviction from one's home, even in reduced circumstances, is 'a painful and humiliating indignity' that tramples on dignity; (6) The judge made reference to William Shakespeare's expression 'hoist with own petard' in describing the situation where the state encouraged settlement but later sought to evict the settlers it had encouraged.

This case is significant in Zimbabwean constitutional law as it affirms the broad protection offered by section 74 of the Constitution against eviction without a court order, extending this protection to illegal occupiers and not just lawful owners. It establishes that the state's constitutional obligation under section 28 to provide adequate shelter requires it to provide alternative land before evicting illegal occupiers, particularly where the state acquiesced in or encouraged the initial settlement. The judgment represents a progressive interpretation of socio-economic rights in Zimbabwe's Constitution, drawing on South African jurisprudence to develop principles for balancing competing interests in eviction cases. It reinforces the supremacy of constitutional protections over administrative action and establishes that even illegal occupation creates certain rights that must be respected through due process.