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Whitecliff: State bends the law
Walter Marwizi, The Standard (Zimbabwe)
August 21, 2005

http://www.thestandard.co.zw/read.php?st_id=3103

FOR George Gapu, the mere mention of the name Whitecliff conjures up images of the twin evils of lawlessness and hopelessness.

"That feeling is unavoidable. It's inevitable when you have nowhere else to turn to," says Gapu, a lawyer with Scanlen and Holderness in Harare.

It's now more than four years since Gapu agreed to represent the interests of the developer of Whitecliff farm, but he has had to contend with disappointment at every turn.

His client, Eddies Pfugari Properties (Pvt) Ltd, the owner of Whitecliff remains disgruntled while his farm, hogs the limelight as the focal point for "Operation Garikai/Hlalani Kuhle", an ambitious programme by the government to provide housing for victims of the "Operation Restore Order".

It is not that Gapu's legal skills in court have been found wanting, but simply that judicial authority is being disregarded in a manner that brings the administration of justice in Zimbabwe into question.

Since 2001 when war veterans and other "landless" people invaded Whitecliff farm, Gapu has been in and out of courts trying to seek judicial redress fore his client who wants nothing less than the removal of the "invaders" from the farm.

"Back then when the problems started, we obtained an eviction order to remove the people from Whitecliff. However, the Deputy Sheriff could not evict the people because they had the support of the government. We could not do anything about it," he said.

The invaders who went on to put up makeshift structures, some of which were a eyesore to behold for travellers along the busy highway, were only evicted in May this year when government launched "Operation Murambatsvina" which reportedly displaced an estimated 700 000 people in Zimbabwe.

Yet this did not bring any relief to the owners of the farm who have, since 2000, sold more than 700 low-density stands and transferred title to over 200 buyers. Just a few days after the blitz, Whitecliff took centre-stage again, this time, being the launch pad of "Operation Murambatsvina's" successor, "Operation Garikai/Hlalani Kuhle".

Local Government, Public Works and Urban Development Minister Ignatious Chombo announced that the government would build sample houses on the farm, which, for five years, remained a playground for proponents of the "Third Chimurenga" in a clear violation of a court order.

Subsequently, the government announced that it had subdivided the farm into 9 960 stands and named the beneficiaries of the stands.

Acting on Eddies Pfugari's instruction, Gapu filed for an urgent chamber application and won a provisional Order on 21 June interdicting the minister from "constructing sample houses or any structures without the written consent or authority of the applicant" and "allocating stands (at Whitecliff) without the written consent of the applicant."

The minister, who had opposed the application on the basis that government intended to acquire the property under the Land Acquisition Act, was also ordered to destroy structures built before the order, in 48 hours.

The order was served at the minister's offices on 30 June but in clear violation, construction at the Whitecliff has not stopped. A few weeks ago, acting Foreign Affairs Minister Stan Mudenge took diplomats to Whitecliff to reassure them that the programme was in full swing.

"It is very frustrating. There is no other arm of the State which one can use in enforcing court orders," says Gapu who on 28 July, went again to the High Court seeking that Chombo be punished for disobeying court orders.

His fresh application implores the court to order that Chombo, who has to put a stop to all construction activity, to be imprisoned for 30 days and fined $20 million for contempt of court.

Until the High Court makes a ruling on the matter, Gapu and his client can only wait, as they have done since early 2001, in the belief that orders of the court will carry the day. In the meantime, Whitecliff will remain a classic example of how President Mugabe's government continues to blatantly disregard court orders with the judiciary remaining silent about it.

"When the government fails to obey court orders, then you have a situation where ordinary people would be justified in not having faith in the rule of law and administration of justice. It is very dangerous for the rule or law and democracy," says a disappointed Gapu.

The Zimbabwe Lawyers for Human Rights (ZLHR) says it is particularly disturbed by how the case has unfolded. "When the legal owner sought and indeed was allowed to stop these constructions, the court came to his rescue with a Court Order barring the construction.

"Paradoxically the same government that said it was restoring order acted in flagrant disregard of a Court Order by continuing with the construction of housing units on this private property…In essence therefore the government continues to act in unashamed and arrogant contempt of a Court of law," the ZLHR said.

What is more worrying is the silence of the judiciary. "The judiciary is called upon to stamp its lawful and constitutional authority as provided for by the laws of the land to ensure that its lawful orders are obeyed by all. ZLHR is particularly concerned at the judiciary's deafening silence in such times when its authority is daily undermined by the executive arms of the State."

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