Peter Makani and Others v Epworth Local Board and Others

The five applicants were illegal settlers who occupied land at Stoob area in Epworth, approximately 12 kilometres from Harare. They constructed houses on land earmarked for industrial development. The first respondent (Epworth Local Board), assisted by police, demolished their homes in September 2012. The applicants approached the Supreme Court, with the matter pending in the Constitutional Court. On 26 September 2014, officers of the first respondent, accompanied by police in riot gear, descended on the settlement during the day and at night, allegedly assaulting residents and demolishing houses. Police returned on 28 September 2014, arresting 23 people and threatening further demolitions. The first respondent claimed it was merely surveying and allocating stands to people who had paid for industrial stands, but evidence showed systematic demolitions were occurring without court orders.

• Whether the demolition of homes and eviction of occupants without a court order violates section 74 of the Constitution of Zimbabwe
• Whether illegal settlers are entitled to constitutional protection against arbitrary eviction despite their unlawful occupation
• Whether local authorities can resort to self-help in removing illegal occupants without due process
• Whether the applicants have made out a case for urgent interdictory relief

The provisional order was granted as amended, interdicting the 1st, 2nd, 3rd and 4th respondents and those acting through them from demolishing the houses and/or evicting applicants and residents located in the Stoob area of Epworth without a court order, and from interfering with or obstructing applicants' efforts to rebuild their houses. The respondents were ordered to pay costs of suit.

No person may be evicted from their home or have their home demolished without a court order made after considering all relevant circumstances, as provided in section 74 of the Constitution of Zimbabwe. This constitutional protection applies even to illegal settlers who have unlawfully occupied municipal land. Local authorities cannot resort to self-help or forcible evictions outside the law, regardless of the illegality of the occupation. The effective legal remedy for unlawful occupation of municipal land is an eviction order obtained through proper court processes. Such eviction orders must be made with compassion and upon realization that human beings, no matter how poor, must be treated with dignity as protected by section 51 of the Constitution.

The court made several non-binding observations: (1) The country faces serious problems relating to poverty, unemployment and housing, manifesting in illegal occupations encouraged by 'land barons'; (2) Local authorities have been complicit in allowing illegal settlements to develop; (3) Unlawful occupation of immovable property belonging to municipalities must be discouraged by all means; (4) Local authorities must take blame for dire consequences for urban planning and structured development; (5) The court criticized legal practitioners for failing to comply with Form 29C as required by Rule 247 of the High Court Rules, 1971, and reminded them to ensure compliance with court rules; (6) Unlike South Africa which has the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998, Zimbabwe does not yet have aligned legislation, but constitutional provisions must be enforced until such legislation is enacted.

This case is significant in South African and Zimbabwean jurisprudence as it affirms the constitutional protection against arbitrary eviction under section 74 of the Constitution of Zimbabwe, even for illegal occupants. It establishes that local authorities cannot resort to self-help and must obtain court orders before evicting persons or demolishing their homes, regardless of the illegality of their occupation. The case reinforces the constitutional protection of socio-economic rights and human dignity (section 51) in the context of housing and evictions. It represents an important judicial recognition that constitutional protections apply to all persons, including those in informal settlements, and that authorities must follow due process even when dealing with unlawful occupants. The judgment also holds local authorities accountable for allowing illegal settlements to develop before attempting forcible removals.