Harare businessman Tendai Mashamhanda has filed an urgent application with the High Court seeking to postpone his eviction from his upmarket US$1,5 million home.
This follows his loss in his legal battle to keep the mansion after the Supreme Court upheld a lower court ruling. Soon after the ruling, the Sheriff of Zimbabwe declared that the enforcement of the eviction order would be carried out on February 29th.
But the applicant argues that the 72-hour notice given by the Sheriff is unconstitutional and violates his right to freedom from arbitrary eviction enshrined in Section 74 of the Zimbabwean Constitution.
“In issuing his aforesaid ‘Notice of Removal, the 2nd Respondent acted without checking whether or not the immovable property in question was a home within the contemplation of section 74 of the Constitution of Zimbabwe.
“72 hours notice of ejectment from a person’s home is unconstitutional as an infringement of the fundamental right to freedom from arbitrary eviction protected by section 74 of the Constitution of Zimbabwe,” Mashamhanda, through his lawyer Lovemore Madhuku, argues.
Mashamhanda claims he has resided in the property for four years with his wife and two young children. He argues that the short notice period creates undue hardship for his family and disregards the constitutional requirement for reasonable notice in cases of eviction from a home.
The application highlights that Mashamhanda has already filed an appeal against the High Court judgement that ordered his eviction. This appeal is scheduled to be heard on the same day as the planned eviction, further emphasizing the urgency of the matter.
Mashamhanda contends that the Sheriff’s actions were arbitrary and failed to consider the property as a “home” as stipulated by the Constitution.
He argues that the Sheriff should have engaged him to determine a reasonable notice period and potentially obtain a court order in this regard.
“He/she (Sheriff of Zimbabwe) is mandatorily required by the Constitution to: Ascertain whether it is an eviction from a home.
“If so, engage the occupiers with a view to giving them an opportunity to indicate what they consider to be a reasonable notice period in the light of any hardships they may experience,” he added.
The application relies on Section 74 of the Constitution and Section 85(1) which empower individuals to seek legal protection against violations of fundamental rights.
Mashamhanda emphasizes the imminent threat of eviction and urges the court to hear the case before any action is taken.
This development comes amidst an ongoing legal battle between Mashamhanda and another party over ownership of the property.
The outcome of this urgent application will determine whether the eviction proceeds as planned or if a delay is granted to allow for further legal proceedings.
