[Bill-Watch] Constitution Watch 2/2014 of 28th February [Are Demolitions of Illegal Structures Constitutional?]

[Veritas Bill Watch]

CONSTITUTION WATCH 2/2014
[28th February 2014]
Unpacking and Giving Effect to the Constitution
Are Demolitions of Illegal Structures Constitutional?
Introduction
According to press reports, local authorities have started to demolish
houses and other structures which, they say, have been or are being built
illegally.  In most cases, it seems, the structures are on stands which have
been improperly allocated for residential purposes.
The problem is widespread and serious.  In Chitungwiza alone there are 8 260
illegally occupied stands on land which has been set aside for clinics,
schools, cemeteries, recreational activities and roads; in the Seke Communal
Lands there are 6 200 such stands.  On 25th January, residents of
Chitungwiza formed a human wall to block a bulldozer which the council had
sent to demolish their houses.  Some residents claimed they had been paying
rents and rates to the council for the same buildings which the council was
trying to destroy.
The local authorities say that in carrying out the demolitions they are
complying with a directive from the central government.  That such a
directive was issued was confirmed by the Deputy Minister of Local
Government, Public Works and National Housing in an interview reported in
The Herald newspaper on 11th November last year.
It is clear that the local authorities have not obtained court orders
authorising the demolitions.  They do not claim to have done so, and the
people whose houses are being demolished maintain that they received no
notice before the bulldozers arrived.  It is inconceivable that any court in
Zimbabwe would order demolitions unless proper notice had been served on the
people whose houses were to be demolished.
Constitutional right to shelter
Section 28 of the Constitution requires all government institutions at every
level [i.e. both central government and local authorities] to take
reasonable measures, within the limits of their resources, to enable every
person to have access to adequate shelter.  This is reinforced by section
74, which states: "No person may be evicted from their home, or have their
home demolished, without an order of court made after considering all the
relevant circumstances."  [See note below for definition of "home"]
Taken together, sections 28 and 74 confer an important socio-economic right:
the right to shelter, a place to live.  According to the South African
Constitutional Court, interpreting very similar provisions in that country's
constitution, the right entails:
.      On the positive side, making land available for housing, providing
appropriate services such as water supplies, and providing finance for these
services and the building of houses.
.      On the negative side, prohibiting evictions and demolitions without a
court order.
On the right to shelter, a place to live, the State and local authorities
have some leeway, because the extent to which they must provide shelter
depends on their resources.  On prohibiting evictions and demolitions
without a court order, however, there is no leeway:  people may not be
evicted from their homes, and homes may not be demolished, unless a court
has considered all the relevant circumstances and has authorised the
eviction or demolition.  Evictions and demolitions cannot take place on the
strength of an administrative decision alone, but only on the authority of a
court order.
Note: What is a "home"? The Constitution does not try to define what is
meant by a "home" in section 74, but in South Africa the term has been
defined by the courts as a shelter against the elements providing some of
the comforts of life with some degree of permanence.  Rented accommodation,
housing provided to farm-workers, traditional dwellings, shacks and informal
dwellings - all can qualify as homes so long as their occupants intend to
reside in them permanently or for a reasonably long time.  That they are
unfinished does not matter provided that people are residing in them, which
is often the case with unfinished buildings in Zimbabwe.  Nor does it matter
that the occupants do not have title to the land on which the houses are
built or being built, because section 74 of the Constitution is intended to
benefit squatters as much as landowners.
Demolition of Homes Constitutionally Illegal
Any demolitions being carried out without the authority of court orders are
unconstitutional and illegal in so far as they are being carried out on
homes, i.e. buildings or structures which are being occupied as residences,
whether they are fully built or uncompleted.
Illegality of demolitions under ordinary law
Apart from being unconstitutional, the demolitions are illegal under our
ordinary law - and this applies to the demolition of all types of building,
not just homes.
As a general rule, people must not take the law into their own hands, even
when enforcing their rights:  they must seek a remedy through the courts.
Hence a landlord is not allowed forcibly to evict a former tenant who is
occupying his house illegally; if he does so the person who has been evicted
can apply to court for an order restoring his occupation pending a ruling by
a court on his right to occupy the house.
The same applies to local authorities and, in a constitutional State, to the
central government.  They cannot take the law into their own hands either.
Local authorities - i.e. urban councils and rural district councils - can
exercise only the powers that are given to them by statute or by the
Constitution.  They cannot carry out demolitions except to the extent that a
statute authorises them to.  The Urban Councils Act allows urban councils to
demolish buildings and structures, but only in the following circumstances:
.      Where the structures have been built over sewers, drains or water
mains - though in the case of water mains the council must give at least 30
days' notice [sections 180 & 186].
.      In order to enforce conditions of title to land, though the council
must allow the person allegedly infringing the conditions at least 28 days
within which to appeal to the Administrative Court [section 199].
.      In order to prevent buildings encroaching on to roads, though again
the council must allow an opportunity to appeal to the Administrative Court
[section 213].
The Act does permit councils to make by-laws requiring the demolition of
buildings which are dangerous, dilapidated or unhealthy or which do not
conform to approved plans or building standards, and allowing the councils
to demolish the buildings if the owners refuse to do so [paragraphs 30, 42
and 43 of the Third Schedule].  The Rural District Councils Act gives very
similar powers to rural district councils.  BUT the Act does not give local
authorities a broad general power to demolish buildings;  they can do so
only in specific circumstances.  And in all the cases listed in the Acts,
local authorities must first give notice to the people whose buildings are
to be demolished;  and in some cases the people must be allowed an
opportunity to appeal to the Administrative Court.  Demolitions in the
absence of notice are illegal.
The Housing Standards Control Act provides for the demolition of buildings
which are unsuitable for occupation, whether through being badly built, or
lacking in essential facilities or through general dilapidation.  BUT local
authorities are not allowed simply to demolish such buildings.  Before doing
so they must approach a housing court [i.e. a magistrates court] and obtain
an order requiring the owner of the building to demolish it, and only if the
owner fails to do so may the local authority send in its bulldozers.  The
owner must be given notice of the application to the housing court and must
be given an opportunity to oppose the granting of a demolition order.
Quite clearly, local authorities have not followed the procedures laid down
in the Housing Standards Control Act before undertaking the demolitions, and
they have not given the notice required by the Urban Councils Act or the
Rural District Councils Act.  There is no other statute that authorises
local authorities to demolish buildings and structures.  The demolitions are
therefore not only unconstitutional but illegal under ordinary law as it
stands.
Conclusion
Local authorities are undoubtedly faced with a very difficult situation.
Thousands of residential stands have been allocated on land that was
reserved for public purposes, and if people are allowed to occupy these
stands they will need services such as water, sewerage and refuse removal
which the local authorities may be unable to provide.  On the other hand the
local authorities are not blameless.  They must have known that stands were
being allocated illegally, yet they sat back and did nothing.  Only when the
problem reached unmanageable proportions did they try to do something about
it - and then the remedy they chose was unlawful.
The rule of law requires laws to be enforced continuously.  If the local
authorities had remembered that, instead of sitting back until enforcement
became virtually impossible, they would not have to cope with the mess that
confronts us all today.
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