Toverengwa Marega v The Officer in Charge Harare Central Prison (Chief Superintendant C. Musonza) and The Commissioner General of Prisons & Correctional Services

The applicant was a non-commissioned rank member of the Prison Services who appeared before a disciplinary committee on 6 November 2015 at Harare Central Prisons facing a series of misconducts. He was convicted and ordered to pay a fine of US$50.00 and given a severe reprimand. However, the second respondent (Commissioner of Prisons) substituted the decision with a dismissal on 10 December 2015. On 15 December 2015, the applicant was notified of his discharge from the Zimbabwe Prisons and Correctional Services. The applicant filed a Notice of Appeal to the Public Service Commission on 17 December 2015. On 21 December 2015, the first respondent (officer in charge at Harare Central Prisons) ordered the applicant to vacate his workplace accommodation at Number C6 Mupfure Flat, Old Prison Camp, Harare within 48 hours, failing which he would be forcibly evicted. This precipitated the urgent application.

• Whether the applicant could rely on section 74 of the Constitution of Zimbabwe (freedom from arbitrary eviction) to prevent eviction from government accommodation allocated to him as a Prison Officer
• Whether the Rent Regulations, 2007 applied to government accommodation allocated to members of the Prison Service
• Whether the applicant was entitled to remain in the quarters until his appeal to the Public Service Commission was finalized
• Whether section 22(3) of the Prisons (Staff) Regulations 1984 and section 9(2) of Prisons (Staff) Regulations 1968 permitted immediate eviction notwithstanding a pending appeal
• Whether reasonable time should be given to vacate government accommodation following dismissal

The court granted the application in part with the following final order: (1) The respondents are interdicted from dismissing the applicant from the Prison Service and Correctional Services until his appeal to the Public Service Commission is finalized; (2) The respondents are ordered to pay costs of suit on a client-attorney scale. The interim relief was granted as follows: (1) The eviction of the applicant from No. C6 Mupfure Flats, Old Prison Camp, Harare is stayed for 3 months from the date of service of the order; (2) The applicant's legal practitioners are authorized to serve the order.

Section 74 of the Constitution of Zimbabwe, which protects persons from eviction from their home without a court order, does not apply to government accommodation allocated to employees by virtue of their employment, as such accommodation is not the employee's 'home' but government property. The Rent Regulations 2007 do not apply to dwellings let by the State, local authority, board, commission, or council by virtue of section 2(2) of those Regulations. Section 22(3) of the Prisons (Staff) Regulations 1984 provides that any punishment confirmed by the Commissioner has immediate effect notwithstanding a pending appeal to the Public Service Commission. However, while section 9(2) of the Prisons (Staff) (General) Regulations 1968 empowers the Director to order vacation of quarters in writing, reasonable time must be given to a former member to vacate and find alternative accommodation, and immediate eviction would be too harsh.

The court observed that section 9(2) of the Prisons (Staff) (General) Regulations 1968 'leaves a lot to be desired' as the regulations empower the Director to order vacation in writing but do not stipulate the time frame within which a member is supposed to vacate, leaving the Director to stipulate whatever conditions and time frames he deems fit. The court noted that in normal situations where a member resigns, goes on pension, is fired, or a spouse dies, the member or surviving spouse is given about 3 months to vacate after looking for alternative accommodation. The court also acknowledged the security concerns raised by respondents' counsel that the flat is within a cordoned area reserved for members only and close to where prisoners are housed, which necessitates access by authorized personnel only.

This case is significant in Zimbabwean constitutional and administrative law as it clarifies the scope and application of section 74 of the Constitution of Zimbabwe (freedom from arbitrary eviction). The case establishes that constitutional protection against arbitrary eviction does not extend to government accommodation allocated to employees by virtue of their employment, as such accommodation does not constitute their 'home' within the meaning of section 74. The judgment also demonstrates the court's willingness to exercise discretion and vary orders on compassionate grounds to ensure fairness, even where statutory regulations have been properly invoked. It highlights the balance between enforcing employment-related disciplinary measures and ensuring humane treatment of former employees, particularly regarding reasonable notice periods for vacating accommodation.