Plate 9.5: Gas Welders Working along Madzindadzi Road
9.3 Land Parcelling and Compartmentalisation Practices
Study results showed that a lot of manufacturers secure operating space through family,
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friendship and political ties. New manufacturers join their friends or family members who parcel out pieces of land from their stands or plots. Alternatively, they are allocated operating space by political leaders. Lessees remit rentals to individuals who would have allocated them operating space. This observed and reported reality leads to at least two manufacturers sharing a stand designated to one manufacturer. Section 39(1) of the RTCPA [Chapter 29:12] states that:
No subdivision or consolidation without permit (1) Subject to subsection (2), no person shall—
(a) subdivide any property; or (b) …
(c) consolidate two or more properties into one property; except in accordance with a permit granted in terms of section forty: Provided that an undivided share in any property, whether or not it is coupled with an exclusive right of occupation, shall not be regarded for the purposes of this subsection as a portion of that property.
It is important to observe that law prohibits division or merging of properties without permission of the LPA. Such practices have wider economic, health, order and amenity implications.
From a health viewpoint, over concentration of manufacturers overloads already burdened sewer facilities and other supporting infrastructure. A load that exceeds carrying capacity leads to failure of sewer infrastructure. For example, Gazaland experiences frequent bursts of sewer pipes leading to ground flow of raw grey turbid water. Manufacturers working in home industries and people residing in surrounding areas are prone to water borne maladies like cholera and typhoid. Furthermore, illegal land parcelling has resulted in mixed land uses on individual properties. An instrumental example of mixed land uses is captured in Plate 9.1.
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Plate 9.1: A Case of Mixed Land Uses at Gazaland (Study Findings, 2017)
What is happening is that ancillary activities such as catering services are situated in the midst of panel beating, car services, welding, tyre services and brake moulding activities. Plate 9.1 shows a woman preparing some food for manufacturers working in surrounding properties. In the same yard, there are panel beaters and informal operators who are into tyre servicing. The net result is that dust from panel beaters lands on caterers’ dishes. Some dust may contain toxic substances which are harmful to people’s health if ingested.
Furthermore, rubber moulders working on the roadside of Madzindadzi road next to the panel beaters in Gazaland home industry generate massive air pollution. They burn rubber from used earthmovers’ tyres with the view of moulding it into engine and gearbox mountings. This form of air pollution directly affects other manufacturers, road users and residents who stay in houses adjacent to Madzindadzi road. In providing for use groups 4, 5 and 6, SI 216 provides in
176 relevant parts as follows:
Group 4 – Service Industry
Any building or use which the service industrial properties carried on, or the machinery installed are such as may operate without detriment to the amenity of that area and are only for domestic and local day−to−day industrial requirements of persons resident in the locality concerned…where not more than ten persons perform work.
Group 5 – Warehousing and General Industrial Use Use –
(a) for any industrial purpose in which the process is carried on, the machinery used and the goods produced and carried to and from the premises are not likely to cause injury to the amenities of the area due to the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or
(b) as a store or storage yard for anything produced in this group which is not likely to cause injury to the amenities of the area or for small scale storage of goods/items produced in Group 6; or…
Group 6 – Storage and Special Industrial Use Use –
(a) for any industrial purpose in which the process is carried on, the machinery used and the goods produced and carried to and from the premises are likely to cause injury to the amenities of the area due to the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, and are considered to be injurious health and safety or are toxic; or
(b) for any industrial use which may give rise to –
(i) …
(ii) the emission into the atmosphere of any noxious or offensive gas as defined in Section 2 of the Atmospheric Pollution Prevention Act [Chapter 318]; or
(iii) water−pollution, including the discharge, other than directly into the sewage system of a local authority, of ant effluent or waste water which does not comply with the standards of quality prescribed in the Water (Effluent and Waste Water Standards) Regulations, 1977; or…storage of gases, chemicals, goods or items produced by industrial processes mentioned above or are likely to harm the environment.
It must be highlighted that SI 216 of 1994 only provides for manufacturing activities through
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its use groups 4, 5 and 6 where these activities are less likely to injure amenities of an area due to production of noise, fumes, smoke, waste water or dust. As such, rubber moulders are contravening what is provided for by SI 216 of 1994. Plate 9.2 is a picture showing the rubber moulding process in Gazaland.
9.2a 9.2b
Plate 9.2: Smoke Coming from Rubber Moulding at Gazaland (Study Findings, 2017)
Rubber moulder captured in Plate 9.2 (both a and b) was directly inhaling smoke coming from the special industrial activity without a dust mask. This is a daily sight in this section of Gazaland. To the left of the manufacturer in Plate 9.2b is a piece of an old earth mover tyre used to cut rubber used in reconditioning of engine and gearbox mountings. Hot metal rods are used to drill a hole through a reconditioned mounting. This process generates huge amounts of smoke which then freely circulates in the air. This injures the general pleasantness of the area and is detrimental to both private and public health since manufacturers directly inhale this smoke every working day and the public in surrounding areas inhale the same smoke. In the same vein, this has a wider contribution to global warming. The injury to amenities in the area due to smoke needs to be scientifically measured to determine the extent of damage.
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Case law shows that, in town planning, the interests of the inhabitants of the area in question must be taken into consideration. For example, in Muniswamy Gowda versus State of Karnataka Air 1998 Karnataka 281, residents of an area adjacent to a rice mill petitioned against air pollution caused by husk and dust emissions because it was hazardous to health.
The court ordered the rice mill to shut down in order to protect public health. Similarly, in the case of Olivia Zenda Phiri versus City of Harare T9/15 the appellant who was rearing more than 880 chickens at a residential property was served with enforcement, prohibition and demolition orders in pursuance of Sections 32, 34 and 35 of the RTCPA [Chapter 29:12] by the City of Harare (the LPA) to stop the project and demolish fowl runs at her property. She appealed against the orders citing the fact that the 6 months period given to wind up operations was too short considering the nature of business. The case was decided in favour of City of Harare because continued use of the property for chicken rearing exposes neighbours to fowl smells and health risks. So, the appellant was given further 12 months to wind up, failure of which the City of Harare was given a court order to forcibly evict the appellant without any further adjudication of the matter through courts.
The cases of Muniswamy Gowda versus State of Karnataka Air 1998 Karnataka 281and Olivia Zenda Phiri versus City of Harare T9/15 are a testimony that the public must be protected from profit−driven motives which expose the public to health risks. Lessons from these cases are supported in Vainona Estate Ltd and others versus Anderson and Anderson 1960 R and N 382 at page 385 D where it is stated that “but…the overriding consideration in their determination is the general good of the neighbourhood, not the rights of individuals”. Another instrumental case of the 17th century which led to the creation of environmental law is Aldred versus Benton case of 1610. Benton had created a pigsty close to Aldred’s property and Aldred claimed that the unpleasant smell from the pigsty made his home unliveable. The court ruled that the olfactic
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displeasing pigsty deprived Aldred of his personal dignity and was a violation of his rights. As such, industrial activities that are injurious to public health and the environment must be prohibited.
Economically, lessors are enjoying revenue in the form of rent and depriving the City of Harare of potential revenue. Land compartmentalisation practices in home industries are only benefiting individuals who are assuming role of lessors. In this case, if the tax measure is introduced, the lessees are likely averting to contribute to the fiscus since they are unrecognised as lawful occupiers of such land parcels thereby depriving the revenue authorities of much needed revenue.
Apart from over concentration in designated stands in home industries, some manufactures are dotted along roadsides, open spaces and boundaries of home industries. This denotes growth of successful clusters (Porter, 1990). However, uncontrolled growth inconveniences other road consumers and the public. Road shoulders in all study sites are littered by manufacturers and retailers who in turn force pedestrians to walk along carriageways and subsequently disturb the smooth movement of vehicular traffic. One of the main aims of the RTCPA [Chapter 29:12] is to support convenience and safety of the public. According to law, it is not permissible because it advances personal interests at the expense of public interests as explained in the case of Vainona Estate Ltd and others versus Anderson and Anderson 1960 R and N 382.