SIX residents from Norton have approached the Constitutional Court (ConCourt) challenging their arrest for illegally occupying a farm arguing that conviction could lead to eviction from land they have occupied for more than 10 years.
The residents, who are being represented by Tinashe Chipfukuto from the Zimbabwe Lawyers for Human Rights, were recently arrested for illegally occupying Nyagori Farm in rural Norton.
Lazarus Munyama, Saul Magombedze, Jeremiah Mapeka, Esther Phiri, Frikanos Chikombe and Zvanguzvino Murombe have cited the National Prosecuting Authority in their application saying the arrest violated their constitutional right.
They are also being accused of contravening Section 3(1) of the Gazzeted Lands (Consequential Provisions) Act as read with Section 3(4) of the Gazetted Lands (Consequential Provisions) Act, that is, occupying gazzeted land without lawful authority.
They reportedly unlawfully occupied the farm between 2010 and 2019. The charges could lead to their eviction from the farm.
The residents approached the ConCourt, arguing that there are constitutional issues that need to be addressed before trial.
They submitted that Section 81 of the Constitution provides, among others, the right to equal treatment before the law including the right to be heard.
“The court is given statutory command to evict any person convicted of contravening Sections 3(3) and (4) of the Gazetted Lands (Consequential Provisions Act). There is no room for the court to exercise discretion or consider any relevant circumstances.
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“The applicants live with minor children who are under their parental care. If the applicants are convicted, the minors under their parental care would be rendered homeless together with the applicants and thus breaching their right to shelter in terms of Section 81(1)(f) of the Constitution,” they submitted.
They further argued that the penalty of eviction which could be arrived at does not afford the affected minors the opportunity to make representations and to be heard.
“It is thus an adverse decision being taken against children without hearing them in breach of their right to be heard which is guaranteed in terms of Section 81(1)(f) of the Constitution,” they said.
The applicants also said the request for referral was not frivolous and vexatious, adding that they were depending on a constitutional provision which granted minor children rights which are under threat from the conviction of their parents and guardians.
“Faced with this contradiction, the applicants have no option except to ask this honourable court to refer to the constitutionality of Section 3(5) of the Gazetted Lands (Consequential Provisions) Act particularly as they relate to the applicants’ children’s right to shelter and the right to be heard.
“The request for referral to the Constitutional Court is thus a proper request that meets constitutional requirements. It is not frivolous and vexatious,” they further submitted.
