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

The applicants, all members of the ZANU (PF) youth league, settled on land at Heany Junction Farm outside Bulawayo in January 2013. They alleged that the 1st respondent (Minister of Lands) 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. They built permanent homes and lived there for over 3 years. In November 2017, officials from the Ministry of Lands and Rural Settlement, accompanied by 40 armed police officers in riot gear, arrived at the settlement demanding immediate eviction by 1800 hours or face arrest. On the night of 8 November 2017 and the following day, settlers were arrested and detained at Queens Park Police Station before being 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 the settlers and demolish their homes without a court order, prompting the urgent application.

• Whether the applicants could interdict the Prosecutor General from prosecuting them for unlawful occupation
• Whether section 74 of the Constitution protects illegal occupiers from eviction without a court order
• Whether the state can evict settlers and demolish their homes without first obtaining a court order
• Whether the state has an obligation to provide alternative land before evicting occupiers who settled with its acquiescence
• What constitutes 'all the relevant circumstances' that a court must consider under section 74 of the Constitution

The court granted a provisional order with the following interim relief: The 1st, 2nd, 4th and 5th respondents are interdicted from threatening to evict, attempting to evict, evicting and in any way 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 of structures by a court of competent jurisdiction. The application to interdict the Prosecutor General (3rd respondent) from prosecuting was dismissed.

The binding legal principles established are: (1) Section 74 of the Constitution protects all persons, including illegal occupiers, from eviction without a court order; the provision is intended to protect illegal occupiers and settlers from arbitrary eviction or destruction of their homes. (2) The state cannot evict occupiers or demolish their homes without first obtaining a court order from a competent jurisdiction, regardless of whether the occupation is lawful or unlawful. (3) The state's constitutional obligation under section 28 to provide adequate shelter means it must provide alternative land to evictees before it can lawfully remove them from where they have established their homes. (4) Socio-economic rights entrenched in the Constitution override other laws and must be enforced by courts. (5) When considering whether to grant an eviction order under section 74, courts must consider 'all the relevant circumstances' and determine whether eviction would be just and equitable to all parties. (6) The Prosecutor General cannot be interdicted from executing his constitutional mandate to prosecute as he is independent under section 260 of the Constitution.

Mathonsi J made several notable obiter observations: (1) He invoked William Shakespeare's expression 'hoist with own petard' to describe the state's predicament in seeking to evict settlers whom it had encouraged or allowed to settle through its acquiescence. (2) He emphasized that 'the power of the courts is not only to correct errors and misdemeanors but all manner of misgovernment' and that 'the adoption of guerilla tactics in addressing land hunger cannot be countenanced in a democratic and civilized society like Zimbabwe.' (3) He noted that the respondents' conduct violated not only section 74 but also the settlers' rights to personal security and privacy, and trampled on their feelings and affronted their social standing. (4) He quoted Cameron JA from the South African case Tswelopele about the humiliation of being 'hounded unheralded from the privacy and shelter of one's home' and emphasized that constitutional protection of dignity applies to 'everyone.' (5) He observed that municipal authorities which allowed informal settlements to develop cannot now 'ride on such rights roughshod operating under the cover of darkness to perform forcible evictions.' (6) He noted the irony that some settlers had been issued offer letters while others had not, despite all having moved to the area at the same time.

This case is significant in Zimbabwean constitutional law for several reasons: (1) It clarifies that section 74 of the Constitution protects all occupiers, including illegal occupiers, from eviction without a court order, representing a modern approach to socio-economic rights; (2) It establishes that the state's constitutional obligation under section 28 to provide shelter means it must provide alternative land before evicting occupiers who settled with its acquiescence or blessing; (3) It demonstrates the court's willingness to enforce socio-economic rights in the Bill of Rights and to restrain state organs from arbitrary action; (4) It imports South African jurisprudence on eviction and housing rights into Zimbabwean law, providing a framework for future cases; (5) It affirms that constitutional provisions protecting fundamental rights override other laws and that courts have a duty to prevent misgovernment and protect the dignity of even the most vulnerable citizens. The case represents a departure from past practices where illegal settlers were summarily evicted without regard to their constitutional rights.