THE High Court has ordered the demolition of a clinic in Domboshava after the rural district council (RDC) charged that the health facility was irregularly built.
The clinic was built by Precious Gwande on a communal piece of land that she allegedly inherited from her grandmother who had enjoyed peaceful occupation since 1961.
The RDC approached the courts seeking that the clinic, situated at Zimbiru Business Centre, Ward 4 in Domboshava and meant to serve the local community, be demolished.
In the application, the RDC cited Gwande as the respondent.
According to court papers on August 20, 2021, the RDC issued an enforcement order against Gwande arguing that she had constructed an unauthorised clinic.
Gwande was directed not only to cease further development in the form of construction activities on the stand, but to demolish the condemned clinic.
She was also ordered to restore the land back to its original state.
Dissatisfied with the prohibition and demolition orders, Gwande approached the Administrative Court challenging the enforcement order by the RDC.
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In its judgement on February 22, 2022, the Administrative Court ruled that the clinic had been irregularly built, and upheld the enforcement order by the RDC.
Gwande appealed the ruling at the Supreme Court.
The Supreme Court on September 13, 2022 dismissed her appeal with costs.
The RDC then issued summons in the Magistrate’s Court seeking an order for the demolition of the clinic, and to reclaim the land from Gwande.
In her defence, Gwande argued that the clinic was built on a piece of communal land which she had inherited from her grandmother who had enjoyed occupation rights since 1961.
Gwande said she had been in occupation since 2013, and her application to construct the structures had not received any response.
The RDC proceeded to file an application for summary judgment in the magistrate court.
The RDC argued that Gwande`s plea disclosed no bona fide defence given that the validity of the enforcement orders had been confirmed by the Administrative Court and the Supreme Court.
The matter spilled to the High Court and it was heard by High Court judges of appeal Justice Samuel Deme and Amy Tsanga.
The judges said there was nothing unique about Magistrates’ courts granting demolitions.
They cited the Housing Standards Control Act [Chapter 29:08] which grants councils the right to demolish structures if it does not meet requisite standards.
The judges then ordered the demolition of the clinic.
The judges, however, said the parties should have been allowed to make their submissions.
"This court finds merit in the ground of appeal particularly when the second ground of appeal is examined that the court erred in holding that it had no jurisdiction to deal with the application, which among other things also sought the demolition of the illegal structure,” the ruling reads.
"If the parties had been accorded right to be heard on the issue of jurisdiction, they would have been able to ventilate their reasoning before the court in order for the court to make an informed decision on whether or not it indeed lacked subject matter jurisdiction.”
