Several informal traders and residents have filed an urgent chamber application at the High Court seeking an order to stop local and central government from demolishing their vending stalls and tuck shops across the country.
In an application filed on Sunday 26 April 2020 by Dr Tarisai Mutangi and Moses Nkomo of Zimbabwe Lawyers for Human Rights, the informal traders and residents together with some residents associations, protested that the widespread demolition of tuckshops, vending stalls and other property belonging to or used by small and medium enterprises and informal traders by local and central government personnel was unlawful and should be stopped immediately.
The informal traders, residents and residential associations represented by Chitungwiza Residents Trust and Kushinga Epworth Residents Association, which have some members, who are individual owners and users of tuckshops and vending stalls, want the High Court to interdict local authorities and central government from demolishing any tuckshops and vending stalls.
Local and central government authorities have been demolishing informal traders’ market stalls and tuckshops across the country after Moyo issued Circular Minute 3 of 2020 addressed to leaders of local authorities advising them of a recent Cabinet resolution and instructing them to “take advantage of the national lockdown to clean up and renovate small and medium enterprises and informal traders’ workspaces” and implored them “to make every effort to comply with the resolution”.
In purported compliance with Moyo’s circular, local authorities and their associations by way of random verbal announcement, supposedly notified owners and users of tuckshops and vending stalls to pull down their tuckshops and vending stalls or face demolition and immediately commenced destruction of properties.
The informal traders and residents argued that Moyo’s circular is unlawful as it was not issued in terms of any provision of the law and that there is no law which requires local authorities to execute Cabinet resolutions outside the provisions of the applicable laws. The unlawful instruction, the residents and informal traders charged, appears to have been taken seriously by some local authorities which commenced demolitions in an apparent compliance with Moyo’s circular.
Informal traders and residents argued that the demolition of tuck-shops and vending stalls by local authorities amounts to compulsory deprivation of property in violation of the fundamental right to property enshrined in section 71 of the Constitution to the extent that the affected owners and users of tuck-shops and vending stalls pay fees and levies to local authorities and had not consented to the pulling down of their properties.
Local authorities, the informal traders and residents said, have been indiscriminately demolishing tuckshops and vending stalls without any consultation with the affected citizens including those who have been paying fees and levies to councils. By demanding such fees and rates, local authorities do acknowledge the legal existence of the affected vending stalls and tuckshops and cannot suddenly deem them illegal structures, the informal traders charged.
The informal traders and residents said local councils have not complied with section 199(3) of the Urban Councils Act, which requires proper notice of any proposed demolition of illegal structure to be given to the owner of such a structure, a provision which provides for an appeal against the notice to be filed with the Administrative Court within 28 days, during which period no action may be taken on the basis of the notice until the appeal is either determined or abandoned.
Moyo’s circular, the residents and informal traders charged, is a blatant violation of the lockdown measures announced by government through Statutory Instrument 83 of 2020 as it necessitates the congregation of people among them vendors and local authorities’ personnel at the vending stalls and tuckshop sites to carry out the instructions issued by local councils thus exposing citizens to infection by the deadly coronavirus.
Furthermore, local authority employees deployed to carry out the illegal demolitions of vending stalls and tuckshops, the residents and informal traders argued, were doing so in their regular workplace attires contrary to the instruction in Moyo’s circular and World Health Organisation Guidelines that they ought to put on personal protective equipment to prevent contracting and spreading coronavirus.
Residents and informal traders noted that the workers conducting the demolitions have not been declared as essential service employees as required by the law and that the demolition of citizens’ only source of legitimate livelihood, especially as government is struggling to provide social support to those in need of it due to resource constraints exacerbated by inability of people to work during the national lockdown, does not meet the definition of essential service and can wait.
The informal traders said the state, with all its might and resources, can always clear up and renovate workspaces without violating the fundamental rights of its citizens and moreover, Moyo’s circular did not mandate local authorities to demolish any structures, but simply requires them to clear and renovate and hence it is possible for them to rearrange small to medium enterprises’ workspaces without demolitions.
