CASES HANDLED UNDER PUBLIC INTEREST LITIGATION UNIT

Ongoing Litigation (May 2005 - July 2005)

CASES TO THE AFRICAN COMMISSION 2005

PUBLIC INTEREST LITIGATION

a) Dare Remusha Cooperative vs. The Minister of Local Government, Public Works & Urban Development & 4 Ors HC 2467/05 (Supreme Court Appeal No. 169/05)
One of the areas most affected by Operation Murambatsvina was Hatcliffe Extension where homes built on stands allocated to people in 2002 by the Ministry of Local Government, Public Works & Urban Development were declared illegal structures and destroyed by members of the ZRP. ZLHR responded to the affected people’s distress calls and filed an Urgent Chamber Application in the High Court at Harare seeking a spoliation order and/or an interdict to allow the evicted people to have restored possession of their homes, and secondly to stop any further destruction and evictions.

Justice Tedius Karwi heard the application on the 1st of June 2005. In his final judgement he ruled that the evicted residents of Hatcliffe Extension had breached the lease agreements they had entered into with the Ministry by erecting unapproved structures, that they had been given adequate notice by the authorities and that the “public policy considerations” in destroying their homes and evicting them “far outweighed the interests of a few who had contravened the law”. The Judge neglected to look at the question of spoliation or the human rights that had been violated through the forced evictions. He only stated in passing that the forced evictions had caused “untold suffering to a number of people”.

This ruling has since been appealed to the Supreme Court, and a set-down date is awaited. We are being assisted in this matter by one of our member lawyers, The Honourable Member of Parliament Mr Tendai Biti.

b) Batsirai Children’s Care vs The Minister of Local Government, Public Works & Urban Development & 4 Ors HC 2566/05
Batsirai Children’s Care (BCC) is an organisation, operating as a common law universitas, which was carrying on its business of providing relief to orphaned children within Hatcliffe Extension at Stand No. 385A Hatcliffe Extension. It provided supplementary feeding and paid school fees among other things. The organisation had been allowed to use the stand by a Mrs Anna Gore. Mrs Anna Gore had acquired rights over the stand through a 7-year lease granted to her by the Ministry of Local Government, Public Works and Urban Development in 2002. On the 26th of May 2005 members of the ZRP attended at Stand 385A and destroyed the structure in which BCC was carrying out its business, thereby effectively forcibly and unlawfully evicting BCC from the premises.

On the 6th of June 2005 an urgent application was filed for a spoliation order allowing BCC to return to its stand and carry on its business. ZLHR project lawyers from the Public Interest Litigation Unit appeared before Justice Ben Hlatshwayo on the 10th of June 2005. The Judge postponed the matter to the 17th of June 2005 to allow Respondents to file their Opposing Affidavits. On the 17th of June the Judge again postponed the matter to the 23rd of June for filing of Heads of Argument. While the Judge has been more than prepared to postpone the matter, he has not been willing to grant any provisional relief in the form of a spoliation order to BCC, and has generally ignored the urgency of the matter and the ongoing violations to the constitutional human rights of the affected children.

c) Phillan Zamchiya & Anor vs. Officer In Charge Goromonzi Police Station & 2 Ors Goromonzi Magistrates Court Case No. B51/05
The two clients reside at Takadii Village in Goromonzi. As far back as 1993 they were allowed and authorised by the Goromonzi Rural District Council to reside in Takadii Village and build houses therein. The Council provided our clients with letters indicating such authorisation.

On the 9th of June 2005 members of the ZRP’s riot police attended at our clients’ homes, as well as other homes in Takadii Village, and ordered that they vacate their homes within two days failing which the police would return to demolish their homes.

On the 13th of June an application was filed in the Goromonzi Magistrates’ Court and on the same day an interim order was obtained stopping and barring the police and the local authority from forcibly evicting clients from their homes without due process of the law being followed. Following service of the application on the local authority and ZRP and having the application published in the Daily Mirror on the 17th of June 2005, the intended forced eviction of clients and other residents not covered by the application was stopped. The Goromonzi Rural District Council is reported to now be denying any responsibility over the attempted forced evictions. The matter will be heard in court for a final order to be granted on the 14th of July 2005.

d) Tinashe Tafira & 6 Ors vs Harare City Council & 2 Ors Harare Magistrates Court Case No. 16596/05
ZLHR was approached by seven families who are residing at Glen Norah A Flats, Nedlow Close, in Glen Norah, which flats are owned by the Harare City Council. Our clients are the orphaned children of parents who were originally leased the flats by the City Council as far back as 1977. Following their parents’ deaths our clients remained in the flats as statutory tenants paying monthly rentals to the City Council. The present amount of monthly rentals being paid is $650 000. On the 11th of June 2005 employees of the City Council threatened our clients with immediate eviction from the flats under the ongoing Operation Murambatsvina.

On the 21st of June an urgent application was filed in the Harare Magistrates’ Court requesting that the City Council authorities be barred from evicting clients without following due process of the law. On the same day our clients were granted an interim order barring their illegal forced eviction. The hearing of the matter for a final order has been set down for the 30th of August 2005.

e) St Mary’s Development Trust
In October of 2000 the St Mary’s Development Trust was authorised by the Chitungwiza Municipal Council to construct a market place where Chitungwiza residents could engage in informal trading. The local authority and the Trust signed a contract allowing the Trust to construct the market place. The Trust proceed to obtain funds from the German High Commission’s Small Projects Fund in the amount of 135 000 German Deutsche Marks. The market place was completed and began operating in March 2001.

On the 20th of June 2005 around 200 heavily armed members of the Chitungwiza and Harare Municipal Police, assisted by members of the ZRP, demolished the market place without any prior notice or enforcement/prohibition orders having been served on the affected persons.

ZLHR is in the process of drafting an urgent application for a spoliation order to be filed in the Chitungwiza Magistrates’ Court.

f) Combined Harare Residents Association & Anr vs. The Chairperson Zimbabwe Electoral Commission HC 2587/05
While this case may not be directly linked to Operation Murambatsvina it is connected to the Operation in that it seeks to have the Harare Commission, being the current local authority running the affairs of the city of Harare and the Operation, removed from office following the termination of its time in office on the 9th of June 2005. CHRA is seeking to restore democratic local governance in Harare through the democratic election, by Harare residents, of a local authority that serves their best interests. The belief is that a democratically elected local authority would not summarily unleash an operation with such grave effects and consequences on those who elected it into power, but would have followed the norms of administrative justice namely lawfulness, fairness and reasonableness in implementing such an operation.

On the 7th of June 2005 ZLHR filed an urgent application on CHRA’s behalf. Unfortunately Justice Lavender Makoni, before whom the matter has been placed, has not yet dealt with the matter as an urgent application; neither has she responded to a formal request for directions on how the matter should proceed. This urgent application has now been pending before the judge for almost one month. Meanwhile the Minister of Local Government, on whom the application was served, has ignored the challenge and instead has unprocedurally reappointed the Harare Commission to “accomplish its mission as dictated by government”.

(g) Ashgtony Shumba & Ors (Porta Farm Residents) vs Officer in Charge Norton Police Station & Ors – Norton Magistrates Court Case No. 376/05

We received information on the 28th of June 2005 that the residents of Porta Farm had been served with a notice to vacate their “illegal structures” and leave the Farm by the City of Harare. On the same day members of the Zimbabwe Republic Police and Municipal Police descended upon the farm and began to demolish our clients’ homes with a bulldozer. On the same day Mr Muchadehama, a lawyer we had instructed to provide legal services, attended at the farm and enquired from the law officers why they were evicting clients and forcing them off the farm despite two High Court orders (HC.3177/91 and HC10671/04) prohibiting the forced eviction of Porta Farm residents. The police officers responded that they could not read and were taking orders from above. Two ZLHR lawyers attended at the Farm the following day, 29 June, and found the police officers and municipal police in the process of evicting people and demolishing their homes, all of which we recorder on video. Having been requested by 228 heads of families we proceeded to the Norton Magistrates Court where we obtained interim order on behalf of the Porta Farm residents to the effect that the police or anyone else should not do the following:
- evict, threaten to evict them from their homes.
- beat or threaten to beat them up.
- force them or their property to go to Caledonia Farm or any other place.
Despite serving the Officer in charge at Norton police station and the Commissioner of Police on the 29th and 30th of June 2005 (respectively) members of the Zimbabwe Republic Police, in contempt of court, continued to force people and their property off the farm. Even when we served those police officers that were forcing people onto the trucks they told us they would not be stopped by a court order.
On the 30th of June 2005 Mr. Muchadehama filed an urgent application for contempt of court in the High Court, Case No.HC3225/05, against the Minister of Local Government, Minister of Home Affairs, Commissioner of Police and The Chairperson of City of Harare. We await the application to be heard.

Intended Cases

a) A full-scale legal challenge of the actions taken by the Minister, the local authorities and the law enforcement agencies against lawfully abiding citizens in terms of the appropriate legislation, valid lease agreements etc
One case, either in the Bulawayo or Harare High Court, should be considered. Research should be directed towards the possibility of a class action in order to obtain an order in respect of all those lawfully abiding people who were affected by the Operations. Provision should be made for an appeal to the Supreme Court. Specific emphasis will be placed on the vulnerable groups, and this litigation will be undertaken on a joint basis between ZLHR and ZWLA.
(1 case)

b) Pre-emptive action to prevent affected people currently being held in holding camps from being removed to unknown destinations by the ZRP or others acting in similar capacity.
At least one case should be prepared in order that if the ZRP or other law enforcement agents attempt to move the affected people the matter can be filed and heard urgently in an ex parte application in the Magistrates’ Court. This can be used as a precedent for further similar cases around the country.
(1 case)

c) Challenge of the legality of the forced removal to holding camps as it amounts to abduction and illegal detention in such camps.
This would take the form of an urgent application through the High Court, either in Bulawayo or Harare.
(1 case)

d) A constitutional challenge in the Supreme Court against the overall Operations and their impact on constitutional and other human rights of affected persons
Senior Counsel will argue this matter in the Supreme Court of Zimbabwe.
(1 case)

All these cases are urgent, but it should be borne in mind that there has been severe destruction of property, loss of livelihoods and unbudgeted expenditure on the part of all affected persons due to the actions of the government, the local authorities and the law enforcement agencies. It will be imperative to file numerous claims for compensation on behalf of these affected people.

Challenges

- Most affected people have been hesitant have their cases taken to court for fear of victimisation, namely that they may not be allocated stands in future (an example exists in Victoria Falls)
- Denial of access to people requiring legal assistance, for example those at Caledonia transit camp

Conclusion

A look at the above cases that the PIL has handled to date makes evident the clear contrast in the manner in which the lower courts (Magistrates Courts) and the High Court have responded to applications for relief made by people whose rights have been violated by local authorities and the ZRP through Operation Murambatsvina. While the Magistrates Courts have been more than prepared to restore and safeguard the rights of those that have approached them for relief a completely different approach has been taken by the High Court which has failed to prioritise and protect the rights of the victims of Operation Murambatsvina. The High Court’s failure to safeguard the rights of the victims of Operation Murambatsvina serves to reaffirm the argument that the Zimbabwean Judiciary has generally failed to act and be seen to act as the custodian of human rights in Zimbabwe and that there has been a regrettable failure by members of the Bench to remain independent from the national and local politics of the day. This has had a severe impact on the rule of law and administration of justice and has caused the person on the street to have a lack of faith in achieving justice through legal channels.