By Dr Masimba Mavaza
The streets of Harare and Chitungwiza flow with tears of citizens who watch helplessly as their lives are tossed in the dust. Their chicks distinct with the two lines of sorrow left behind as tears tear through the chicks down to the neck.
Zimbabweans sit and cry as MDC A Municipal police and council officials have been demolishing market stalls and illegal cabins in the greater Harare area, particularly in high-density suburbs. The demolitions are said to be intended to help prevent the spread of Covid-19, but it is not clear who made the decision to carry them out.
While Zimbabwe has been commended for its fight against COVID 19 the fight being waged by the MDC Chamisa led council is a war against people and moreso against their livelihoods.
Ironically the demolitions are done in the strongholds of the MDC. This makes people believe that it is a pay back vindictive and knee shaking scenario.
NO one knows where the minister of local government is. While the council believe that it is doing well in its fight against COVID the demolitions are a blow below the belt and ouchhhhh it pains.
Apparently the Ministry of Local Government, Public Works and National Housing is said to have asked the Council to comply with a Cabinet resolution to the effect that during the national lock-down local authorities should clean up and renovate work spaces used by SMEs and informal traders.
The Council’s spokesperson suggested that the Council complied willingly, saying the demolitions were being conducted in line with Council by-laws and that vendors would be given stands in properly designated areas. The thoughts behind the actions of demolitions are plausible. But what happens where the landlord is repairing the property or renovating it as the council intimated.
The Tenants have a duty of giving access or moving out so repair work can be done. Rent reduction where part of the property becomes unusable during repair work. They must provide access for landlord to carry out repairs and the Landlord must carry out repairing obligations.
At common law, any repairing obligation by a landlord carries with it an implied obligation by the tenant to give access to the landlord in order for those repairs to be carried out,so long as reasonable notice is given.
This can include the tenant having to move out of the property in situations where the repair work requires it.
If a tenant denies the landlord access to carry out necessary repairs, they would be in breach of the tenancy agreement and could be at risk of possession proceedings. So the argument by the City fathers that the demolitions are done in the best interest of the tenants is an insult to the families who have lost all their life savings in a one blow. The council has a duty to give notice and to make sure the property is empty before the demolition is allowed.
A landlord who is seeking to meet repairing and renovation obligations is under no obligation to provide alternative accommodation. But has the obligation to notify the tenants and to ensure that the property is empty before demolition.
The tenant is expected to co-operate where the repairing obligation is being met. A landlord can apply to the courts for an order allowing them access to carry out repairs but not improvements if the tenant refuse.
In one case, the court held that the tenant
was not obliged to give the landlord exclusive occupation unless it was essential in order to do the repairs. If exclusive occupation is not essential, the landlord must either do the work one room at a time in order to accommodate the tenant or provide alternative accommodation.
So before demolition the council was expected to give adequate notice and again give a reminder. The demolitions done were inhuman thoughtless and diabolical. Should access to the whole of the property be required to meet the repairing obligation, the tenant needs to negotiate with the landlord concerning suspension of rent payments, expenses, the duration of works and continued security of tenure despite the absence.
To the contrary the council continued taking rent from the people yet the demolition plan was being mooted.
In every decision which affects the other party it is courteous and expected that the other party gives his own view before any action is taken. So the behaviour of the council is not fair. When a tenant is required to move out, whether temporarily while repair works are undertaken, or because before works start the conditions are sufficiently serious, the costs of removal or alternative accommodation can be recovered as ‘special damages’.
This means that, if the disrepair and the failure to meet the repairing obligation renders the premises uninhabitable, the tenant may recover as damages (compensation) any expense reasonably incurred in occupying alternative accommodation from the date the premises could not longer be occupied up to the date of assessment or repair.
The tenant may also be able to claim general damages for the inconvenience of having to obtain and occupy alternative accommodation including the loss of property. So the demolitions being done throughout the city by council workers is the work of the council. Councils are Responsible for their Employees’ Actions
The first point to make is that the Council, like every other employer, is generally responsible for what its employees do in the course of their employment. If council employees have been demolishing structures then the Council itself is regarded in law as having conducted the demolitions unless it can show that its employees had disengaged themselves completely from their employment with the
Council and were promoting their own objectives or interests. That certainly does not seem to be the case here.
There exists a wide variety of laws (statutes) which underpin the activities of.regional and urban planning.. These forms of planning are part of public planning which is primarily carried out by the state and its agencies (e.g. parastatals). Public planning is a state activity which represents intervention in economic, social and political activities to achieve a set or sets of goals.
The nature of public planning is influenced by the prevailing state ideology, where in capitalist economies it will be relatively limited given the central role given to market forces in the management of the economy, whereas in socialist systems planning assumes a central role as the state controls and manages the major means of production.
In most developing countries the state assumes a central role, not necessarily because of socia list ideology, but because of the overriding desire to develop, which requires massive physical and social infrastructure invest-, ments.
The interventionist role of planning in most cases is backed by legislation, which in most cases establishes what can be termed a ‘legitimating’ framework. Laws establish the rules and conventions, which reflect the different societal or class interests. Laws are created and used by the state apparatus (including the judiciary and administration) to legitimate state power.
Planning law therefore has no ideology of its own, but that of the state; laws are created to reflect state powers. This is very true but local government bye laws are enacted by the council to give them a way to run their councils.
So MDC can not run away from its responsibilities. The opposition will always attack the government even if there is no evidence that the government has erred.
If the minister of local government interferes the opposition will quickly cry foul. The suffering of the indigenous business people who are seeing their businesses being demolished by bulldozers can not be explained.
Are the Demolitions Necessary to Comply with Any Law? The councillors we quoted above said they were told that if they stopped the demolitions they would infringe the law and “emergency stipulations”.
Whatever the councillors may have been told, there is no emergency law that compels a council to demolish stalls and other structures in current circumstances. The President has not declared a state of public emergency under the Constitution, so the Emergency Powers Act cannot be invoked.
The laws that might be employed to justify the demolitions are the following:
Public Health legislation Section 67 of the Public Health Act states that if the Minister of Health and Child Care is informed by the Chief Health Officer [i.e. his Permanent Secretary] that a local authority is not dealing efficiently with an outbreak of a formidable epidemic disease such as Covid-19, the Minister can:
• inform the local authority of the measures he considers it should be taking, and • if the local authority fails to take action, authorise the Chief Health Officer or a district health committee to take the necessary measures, and in that event the Chief Health Officer or the committee will have the same powers as the local authority to take those measures.
This section does not apply to the demolitions being carried out by the Harare City Council. In the first place, the Minister of Health and Child Care does not seem to have been involved at all: it is the Council’s officers who are carrying out the demolitions, not the Chief Health Officer or a health committee.
Section 68(1)(m) of the Public Health Act gives the Minister of Health and Child Care power to make regulations for: “the evacuation, closing … or, if deemed necessary, the demolition or destruction of any premises the occupation or use of which is considered likely to favour the spread or render more difficult the eradication of such disease [i.e. a formidable epidemic disease such as Covid-19], and the definition of the circumstances in which compensation may be paid in respect of any premises so demolished or destroyed …”
No such regulations have been made.
Section 8(1)(l) of the Public Health (COVID-19 Prevention and Containment) Regulations (SI 77/2020) gives the same Minister power, by order published in the Gazette, to:
“authorise in any local authority the evacuation, closing … or, if deemed necessary, the demolition or destruction of any premises the occupation or use of which is considered likely to favour the spread or render more difficult the eradication of such disease [presumably Covid-19], and define the circumstances in which compensation may be paid in respect of any premises so demolished or destroyed …”
Again, no such order has been published in the Gazette. In sum, the Council has not been compelled to carry out the demolitions in terms of the Public Health Act
The Urban Councils Act
Under section 199 of the Act councils have a duty to enforce title deed conditions and conditions under which townships have been established; if necessary, such enforcement measures can include demolishing buildings. The current demolitions are not being carried out to enforce conditions of title or any other conditions, however, so section 199 does not apply to them.
Under the Third Schedule to the Act, councils can make by-laws for the demolition of temporary structures that are unhealthy or have been erected without permission (paragraph 42 of the Schedule) and of permanent buildings that have been erected unlawfully (paragraph 43). It is clear from paragraphs 42 and 43, however, that before a council can demolish buildings and structures under its by-laws it must give the owners or occupiers an opportunity to remove them. This cannot have been done by the Harare City Council in the present instance, because the vendors who own or occupy the stalls have been (or should have been) locked away at home.
Under section 315 of the Act the Minister of Local Government can order a council to take steps to carry out a duty imposed on it by the Act or any other law, but before issuing such an order he must give the council an opportunity to make representations in the matter ‒ for example, as to whether the steps suggested by the Minister are desirable or possible. It does not seem that the Minister gave the Council an order under section 315 to demolish vendors’ stalls and other structures; the letter from his Ministry contained a request or recommendation rather than an order.
There does not seem to be anything in the Urban Councils Act, therefore, to suggest that the current demolitions are being done by the Harare City Council under orders from the central government, nothing that might relieve the Council of responsibility for the demolitions.
The question we have as Zimbabweans is whether it is necessary or desirable to demolish vendors’ stalls in the interests of combating Covid-19 in particular or public health in general. The MDC A and it’s leadership have not raised any concern about this act. This then supports the general belief that it is the MDC A led council which is pushing for the demolitions.
Under the laws of Zimbabwe and strictly speaking The Harare City Council is responsible for the demolitions. The Council is not compelled by law to carry them out. So they are doing it because as a council run by MDC A they have no people’s interests at heart.
Demolitions should not be carried out unless the owners or occupiers of the stalls have been given reasonable notice and an opportunity to remove their property. The demolitions done must and indeed they do entitle the victims to seek for compensation.
Because of the position of the Law the MDC A led council must not disclaim responsibility and liability.
MDC A or Chamisa as they are about to be called have shown that they do not have the best interest of the people at heart. These are people elected by the people for only one reason to serve the people. MDC has shown us that they will never serve but they will destroy.
They have been elected to the Council, which is the decision-making body that ultimately controls the staff of the City of Harare. If the staff are carrying out demolitions without the authority of the Council, then the councillors must stop them. If the councillors do not approve of the demolitions then, if they form a majority on the Council, they must rein their staff in and stop the demolitions. If, after proper consideration, they think the demolitions are necessary then they must say so and ensure that correct legal steps are taken.
The livelihood of many people has been chucked in the dust bin by these demolitions.
The demolitions are cruel, horrible and “heartless” people are now left in desperate positions.
It should be known that the heartless and cruel demolition of citizens’ homes and their industrial premises is a violation of the dignity and security of persons.