and/or by the local authority.118 It may well be that many of the evictees do not have leases, or
have breached them; it remains essential that they be given the opportunity to raise such defences.
The mission was able to ascertain that in some cases the vendors, whose stalls and marketplaces
were destroyed and whose goods were confiscated, held valid vendors’ licenses. It would
therefore appear that the actions against them were not in accordance with the planning
regulations119. The mission obtained information that some properties, which had been
constructed in compliance with relevant laws, were also destroyed.120
Some affected people have filed applications in the Courts to prevent demolition and eviction. In
some instances, provisional orders to interdict the police and relevant authorities from carrying
out their actions and to restore possession to those who had been in possession of the same have
not been heeded, while in other cases they have been.121
Notably, the High Court issued a provisional order on 29 June 2005 banning the government from
allocating stands and constructing sample houses on property known as Whitecliff Farm, which is
owned by a private individual.122 This site has been earmarked by Government to provide housing
and livelihoods as part of Operation Garikai (Reconstruction /Resettlement) to provide
stands/plots and vendor stalls in response to the consequences of Operation Restore Order. The
Special Envoy had witnessed the launch of the reconstruction phase by the First Vice President
on this very site. The sustainability of this intervention in terms of security of tenure can be
seriously questioned as the very land allocated for reconstruction and resettlement soon became
the subject of an unresolved legal challenge. The Special Envoy brought this serious development
for Operation Garikai to the attention of the Minister of Local Government. He clarified, albeit
verbally, that the new urban land acquisition law provides a landowner whose land has been
earmarked for acquisition no option but to surrender the land while negotiations for compensation
are ongoing. The Government further insisted that the courts had no basis to interdict its new
plans, but this remains unclear.
6.4
When can Governments/State Parties be justified in law?
Under both relevant international law and national legislation forced evictions can be justified
under certain circumstances. The Committee of Economic Social and Cultural General Comment
4, paragraph 18, states that instances of forced evictions are prima facie incompatible with the
requirements of the Covenant and can only be justified under the most exceptional circumstances.
These exceptional circumstances include persistent anti-social behaviour which threatens,
harasses or intimidates neighbours; persistent behaviour which threatens public health or is
manifestly criminal behaviour as defined by law, which threatens others; and illegal occupation of
property without compensation.
118
Tinashe Tafira & 6 others vs Harare City Council & 2 Ors Harare Magistrate Court Case No.
16596/05. See submissions from Law Society of Zimbabwe, Action Aid, and Zimbabwe Lawyers for
Human Rights. June/July 2005
119
See submission presented by the City of Bulawayo on the Clean-Up Operation, 6 July 2005.
120
See the case of Batsirai Children’s Care vs The Minister of Local Government, Public Works & Urban
Development & 4 Ors HC 2566/05, in the submissions of Action Aid 8 July 2005
121
Dare Remusha Co-operative vs. Ministry of Local Government and Public Works & Urban
Development & 4 Ors HC 2467/05
122
Submission of Law Society of Zimbabwe
59
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