In the wake of the COVID-19 pandemic, Zimbabwe responded
with measures to reduce its spread and impact on all citizens.
These include the declaration of a national lockdown which
commenced on 30th March 2020 and was effective for an initial 21 days before it
was extended by a further 14 days to May 3rd 2020.
In order to mitigate the impact of the national lockdown,
on April 29th, 2020, the President promulgated, Presidential Powers (Temporary
Measures) Deferral of Rent and Mortgage Payments During National Lockdown)
Regulations Statutory Instrument 96 of 2020.
The statutory instrument was gazetted in terms of Section 2
of the Presidential Powers (Temporary Measures) Act. SI 96 of 2020 defers
payment of rentals in respect of residential premises and all mortgage
repayments.
This, in the view of the Law Society of Zimbabwe, brings
about an unjustifiable scenario where a commercial landlord who benefits from a
deferment of mortgage repayments can still legitimately demand rental payments
from his tenants of the same commercial premises.
In the preamble to the Statutory Instrument, it is stated
that the instrument was made in the interest of health and public safety, as
provided in Section 2 of the Act.
The preamble then goes on to elaborate the situation
forming the basis for the Statutory Instrument in the following terms, “on
account of the lockdown many people are on forced leave from employment and
therefore unable to earn the income necessary to pay for among other things,
rentals for residential accommodation and mortgage repayments.”
It is the Law Society of Zimbabwe’s considered view that
the above basis as stated in the preamble to the regulations does not meet the
criteria set out in Section 2 of the Presidential Powers (Temporary Measures)
Act.
The situation as given above does not address, the interest
of defence, public safety, public order, public morality, public health, the
economic interest of Zimbabwe or the general public interest.
The situation describes an economic difficulty in respect
of a section of the population and only in respect of a section of the national
economy. In this regard, therefore, the Law Society believes the regulations
are ultra vires the enabling Act.
Given the foregoing, the Society also believes that SI 96
of 2020 would, therefore, be irrational when measured against the principal law
from which it draws its authority.
It also fails to take into account the effect of loss of
income that would result from the implementation of the SI for individuals who
solely rely on rental income.
At the same time, the individuals whose property rights are
being interfered with, are still liable to pay rates, insurance premiums and
other expenses for the same properties. They are also suffering the negative
effects of the lockdown.
Instead of holistically solving the burden brought about by
the lockdown, the SI seeks to take the burden from one citizen and thrust it
upon another who may also be suffering the consequences of the lockdown.
It is the expectation of the Law Society of Zimbabwe, its
membership and the general populace that government will cause public service
providers like Zinwa, Local Authorities and ZESA to suspend or defer charging
for their services which are basic needs if the inspiration behind S1 96 of
2020 was to cushion the public against the negative effects of the COVID19
pandemic.
The Law Society is deeply concerned that SI 96 of 2020 only
interferes with contracts between parties in relation to residential properties
and leaves out the contracts in respect of commercial properties for no
apparent reason.
The LSZ believes the Government could have approached this
issue in a more holistic manner if indeed the rationale was to reduce the
burden of COVID-19 effects on the populace.
It is important that during these difficult times and at
all times, that every state action must be lawful, transparent, compassionate
and conform to domestic and international human rights standard. Standard
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