Tawanda Mukungurutse and Others v City of Harare and Another

The applicants were members of Tembwe Housing Cooperative who had constructed houses of various sizes in Budiriro 4 on land allocated through the cooperative. The land in question had been zoned for a school site. The City of Harare (first respondent) had served notifications on the cooperative warning them to stop allocating the land and that failure to comply could result in demolitions, as the conduct deprived citizens' children of their right to education. These warnings were ignored. The first respondent sought to demolish the structures relying on SI 109 of 1979 (Urban Councils Model Use and Occupation of Land and Buildings By-Laws). A provisional order was granted on 19 August 2015 by Justice Bere barring the first respondent from demolishing the applicants' homes in the absence of a court order, pending determination of the matter.

• Whether the City of Harare could lawfully demolish structures erected on illegally allocated land without obtaining a court order
• Whether section 74 of the Constitution of Zimbabwe 2013, which prohibits eviction or demolition without a court order, applies to the structures in question
• Whether SI 109 of 1979, which purported to give the City power to demolish illegal structures without a court order, is constitutional
• Whether the structures erected by the applicants qualified as 'homes' within the meaning of section 74 of the Constitution
• Whether section 74 rights are subject to limitation under section 86 of the Constitution

The court declared the demolition of houses in Budiriro 4 in the absence of a court order to be unlawful. Each party was ordered to bear its own costs.

The binding legal principles established are: (1) Section 74 of the Constitution of Zimbabwe 2013 requires that no person may have their home demolished without an order of court made after considering all relevant circumstances; (2) This constitutional protection applies immediately and renders inconsistent pre-constitutional legislation (such as SI 109 of 1979) unenforceable to the extent of the inconsistency, without requiring a formal declaration of unconstitutionality; (3) Local authorities, including the City of Harare, must obtain a court order before demolishing any structures that constitute 'homes', even if those structures were erected illegally; (4) Existing laws must be construed in conformity with the Constitution pursuant to Clause 10 of Part 4 of the 6th Schedule, and where they are inconsistent with the Constitution, they cannot be applied; (5) The demolition of houses without a court order, even by a local authority purporting to act under pre-constitutional legislation, is unlawful and unconstitutional.

The court made several obiter observations: (1) The court characterized the applicants and their cooperative as 'outlaws who deliberately sought to disregard the law who now seek the protection of the same law'; (2) The court indicated that but for the provisions of section 74, it would not have granted the order sought, given the applicants' deliberate flouting of the law; (3) The court noted that the land was allocated by a cooperative, not the City of Harare, and that the cooperative ignored multiple warnings that the land was zoned for a school site and that illegal allocations were depriving children of their right to education; (4) The court's comments suggest that while constitutional rights must be protected, courts may express disapproval of litigants' prior unlawful conduct through costs orders; (5) The court indicated sympathy for the first respondent's position, noting it genuinely believed, albeit unconstitutionally, that it had power to demolish under SI 109 of 1979, which influenced the decision on costs.

This case is significant in Zimbabwean constitutional law as it represents an early judicial interpretation and application of section 74 of the 2013 Constitution, which protects against arbitrary eviction and demolition. The judgment establishes that constitutional protections took immediate effect and that pre-constitutional legislation inconsistent with the new Constitution cannot be relied upon, even if not formally declared unconstitutional. The case demonstrates the supremacy of the Constitution and the principle that fundamental rights provisions have direct horizontal and vertical application. It clarifies that local authorities must obtain court orders before demolishing structures, even those built illegally, marking a significant shift from previous administrative practices. The case also illustrates the tension between constitutional rights protection and legitimate government functions in town planning and enforcement of land use regulations.