A crucial judgment with wide-ranging implications for Zimbabwe has been delivered by Zimbabwe’s supreme court – but very few are aware of it and there’s been no comment from the legal, academic or human rights communities even though the decision was handed down in June.
That silence, even on as important an issue as whether Zimbabwe’s constitutional includes a justiciable right to shelter, is perhaps understandable given the background: written reasons for decisions have been the exception rather than the rule in Zimbabwe’s courts, and it often takes a great deal of effort to obtain a judgment.
According to one legal commentator and practitioner, Musa Kika, this is not unusual. "Many times people are unable to interact with judicial pronouncements, precisely because detailed judgments are not handed down and put in the public domain, sometimes not early enough. The result of this is that people are unable to interrogate judicial pronouncements, yet that should be a regular practice in order to ventilate the issues pronounced upon, and also as a way of exacting judicial accountability".
Another significant detail about the case is that while it was argued in September 2019, judgment was only delivered at the end of June 2021, a year and nine months later. It is a 22-page decision. The heart of the matter, namely ‘whether the right to housing is a fundamental right’, starts on page 12. In other words, the essence of the case is dealt with in 10 pages. It has to be asked why a straight-forward matter like this took so long to complete and deliver, particularly when, in other jurisdictions, such a delay would lead to complaints and criticisms.
The case itself was brought by the Zimbabwe Homeless Peoples Federation and the Tawango Savings Scheme. They were representing a variety of people who ‘took occupation’ of Haydon Farm, outside Harare, during 2000 when the government’s programme of seizing land without compensation from white farmers (and from a few black farmers) – officially termed ‘the land reform programme’ – was at its height.
The new occupiers put up temporary structures along with some that were more permanent, but these were demolished in 2005 as part of a government drive to ‘clear slums’. The land was then ‘acquired’ by the state and sold to Leengate, a developer. Leengate, in turn, wants the people off the land to allow the new residential development to go ahead.
According to the people still living on what was once a farm, they were threatened by Leengate. Some of them have actually been evicted while the rest have been given notice to vacate the land.
Their argument in the high court was that while there was no ‘specific right’ to shelter or housing in Zimbabwe’s declaration of rights, other than for children, the right to dignity ‘necessarily incorporates the right to shelter’: without the right to shelter and to food, the promise of dignity in the declaration of rights would be meaningless. In pursuit of this right, they asked for an order interdicting the local council and Leengate from evicting them, and they asked for serviced stands and for basic houses.
As an alternative, they asked the minister of local government and the minister of lands to provide them with land and serviced sites. Needless to say, their application against what they characterised as ‘forced evictions’ was opposed by Leengate and the council. According to the two ministers, the people were living on ‘state land’ and they had no lawful authority to occupy, use or hold it.
Heads of argument
Having lost in the high court and the court of appeal, the people asked the supreme court for its view on the matter.
From page nine to page 12 the court considered the question of whether the heads of argument put in on behalf of the appellants complied with the rules of court, and the precise difference between heads of argument and written argument.
The judge concluded that the heads did not square with the requirements for heads of argument. Referring to a South African decision on the ‘clear distinction’ between ‘heads of argument’ and ‘written argument’, the court concluded that the appellants ‘were and are guilty of presenting written arguments’. This argument had come in at some 70 pages, in addition to which counsel addressed the court ‘at length’, ‘regurgitating the same points made in the written submissions’. Oral submissions took a further 32 pages, while in the heads of argument for the supreme court, another 45 pages was filed.
The court said it would condone the anomaly, particularly since it might be the first time that the supreme court had ‘taken the pains’ to emphasise the distinction between the two forms – heads of argument and written argument.
‘Parties and their legal practitioners are admonished to pay heed to this distinction in the rules. In future heads of argument that do not comply … may well be struck out, the result being that the party guilty of such non-compliance may well be regarded as being barred with the concomitant results that would normally flow from such a determination.’
That matter dealt with, the court turned to the question of whether the right to housing was a fundamental right, and quickly replied in the negative.
Counsel for the appellants had accepted that the right to shelter was not specifically provided for in the constitution, but they urged the court to adopt a purposive approach from which such a right could be deduced.
According to the court, the problem was that reference to adequate shelter fell under the section that spells out national objectives to guide the state. These objectives were important for interpreting the constitution and other laws, ‘But they are not justiciable.’
Quoting an earlier decision of the supreme court, the judges said such provisions were ‘essentially hortatory in nature’ rather than ‘strictly justiciable and enforceable in themselves’.
Could a right to shelter nevertheless be inferred? ‘This is essentially a question of interpretation,’ and the court bore in mind that the constitution ‘does not mean whatever we might wish it to mean’. The court did not create rights, said the judges, ‘it simply interprets the various provisions of the constitution to ascertain the existence, nature and extent of those rights.’
Parliament ‘in its wisdom’ merely made provision for government to take reasonable steps and measures within the limits of available resources, to ‘actualise access to adequate shelter’. It was merely something for government to ‘bear in mind’ when deciding on law and policy. A careful reading of the constitution lead to an ‘ineluctable’ ‘inference’ that it was never the intention of the lawgiver to include the right to shelter among Zimbabwe’s fundamental rights.
True, other rights, consistent with the constitution, could be recognised by law but they could not become rights under the constitution’s declaration of rights. And even if Zimbabwe had been party to international treaties that included the right to shelter or housing, such a right was not a fundamental right under the constitution.
‘It is the constitution, the supreme law of this country itself, which has deliberately left out the right to shelter form the list of fundamental rights delineated under Chapter 4 of the constitution.’
Since the appellants had pinned their case to constitutional provisions, it was not appropriate to consider whether relief could have been granted to them under any other laws.
The court also found the people could have sought an interdict ‘without resort to the constitution’. They could also have merely opposed Leengate’s application for their eviction, again without needing to approach the high court on a constitutional basis.
Having been thoroughly trounced, the people at the heart of the matter had only one tiny cause for gratitude: at least the court made no order as to costs.