Common Vision Housing Consortium v City of Harare & 5 Ors

### Preamble
1
HH 442-18
HC 11845/16
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COMMON VISION HOUSING CONSORTIUM

versus

CITY OF HARARE

and

THE DIRECTOR OF HOUSING & COMMUNITY SERVICE –

CITY OF HARARE

and

THE CITY OF HARARE TOWN CLERK

and

THE DIRECTOR OF URBAN PLANNING SERVICES –

CITY OF HARARE

and

THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS

AND NATIONAL HOUSING

and

JOHANE MARANGE APOSTLE CHURCH

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 17 July 2018 & 25 July 2018

Opposed

N Tsarwe, for the applicant

A Muchandiona, for the 6th respondent

FOROMA J: This is an application for a declaratur in terms of which the applicant seeks the following order.

That the allocation and sale of stands 19751 – 19793 Budiriro Township to applicant’s member co-operatives by the first respondent is legally binding and

The first, second and third respondents be and are hereby ordered to stop the re-planning and or re-allocation of stands 19751 – 19793 to any other person who is not the applicant’s member co-operatives.

The sixth respondent be and is hereby ordered to demolish the brick and mortar wall  erected encroaching over the applicant’s member co-operatives stands ranging from stand No. 19750 – 19793 Budiriro Township and held under General Plan Number TPX 1349/1 Budiriro 5 Harare within 7 days of being served with this order.

In the event that the sixth respondent failed neglected and or denied to comply in terms of Clause (iii) of this Order the first respondent through its department of Local Planning Services with the assistance of the Deputy Sheriff Harare and the members of the ZRP be and are hereby ordered to demolish the brick and mortar wall erected by the sixth respondent encroaching over a block of stands allocated and sold to the applicant’s member co-operatives being stands 19750 – 19793 Budiriro  Township and held under Plan Number TPX  1349/1 Budiriro 5 Harare.

In the event that sixth respondent failed neglected and or denied to comply in terms of para (iii) of the order and the demolition is done in terms of para IV of the order the sixth respondent be and is hereby ordered to pay all the costs incurred by the first respondent in carrying out the demolition in terms of para (IV).

That sixth respondent pays the costs of suit on an attorney and client scale.

Although first to fourth respondents purported to oppose the application by filing a notice

of opposition and an opposing affidavit deposed to by one Engineer Phillip Mabingo – Pfukwa in his capacity as the first respondent’s Acting Town Clerk the said opposing affidavits was filed out of time. On 30 March 2017 first to fourth the respondents purported to file heads of argument despite that no condonation of their late opposition had been sought or granted. In the said heads of argument first to fourth respondents indicated that they would abide by the court’s decision. The adoption of this neutral position in the dispute between applicant and sixth respondent was of no consequence as the said respondents were barred. The court will ignore the said heads of argument as they as well as the notice of opposition are not properly before the court. Applicant’s claim for a declaratur in terms of para 1 of the draft order is grounded on the following factual background which the sixth respondent did not dispute save that it confessed that it had no knowledge of same. The undisputed factual background as laid in applicant’s founding affidavit as follows –

In November 2011 first respondent by its Council Resolution approved the allocation of 1 300 unserviced stands depicted on first respondent’s plan number TPX 1349/1 Budiriro 5, Harare to 35 Housing Co-operatives as represented by applicant. The 35 Housing Co-operation are herein after referred to as “member co-operatives” of applicant. The first respondent’s resolution approving the allocation and sale of the unserviced stands was attached to the applicant’s founding affidavit as Annexure B.

After the aforesaid approval of allocation first respondent addressed to each  of the 35 member – cooperatives of applicant a letter worded as follows:

“The Chairman

Balioboth Housing Co-operative Society Ltd

RE: Provisional Allocation of  Unserviced Residential Stands on Plan Number TPX 1349/1 Budiriro 5.

Congratulations, your co-operative has been provisionally allocated 55 unserviced residential stands on the above mentioned lay out plan.

Servicing of the stands shall be undertaken under the umbrella of Common Vision Housing Co-operative Consortium. Final allocation of stands to your co-operative will be done by the Director of Housing and Community Services on a pro rata basis upon completion of water and sewerage reticulation and opening of loads by the Consortium.

Yours faithfully

Acting Director of Housing and Community Services.”

Each of the member co-operative was addressed a similarly worded letter dated the 1st of February 2012  and attached to the said letter was a provision for acceptance of the offer. Each member co-operative of applicant accepted the offer.

There therefore can be no doubt that applicant’s 35 member-co-operatives were validly allocated and sold the unserviced stands as aforesaid. In the absence of a valid cancellation of the allocation and sale of the said stands there remains a binding agreement between the applicant’s membership and the first respondent.

It should be pointed out that each member co-operative was allocated a different number of stands. In sixth respondent’s opposing affidavit no suggestion was made that the agreements with the member-cooperating of applicant was cancelled or withdrawn.

In its heads of argument sixth respondent objected in limine to the applicant’s locus standi to bring this application. This objection was raised only in the heads of argument but was not addressed in the opposing affidavit and as a result the applicant did not deal with this objection in its answering affidavit.

The sixth respondent seeks to rely on this point in limine after picking it up in first respondent’s opposing affidavit. Unfortunately for sixth respondent no opposing affidavit was validly filed by the first – fourth respondents as the same was filed out of time and when an automatic bar was operative against them. This was highlighted by applicant in paragraph 3 of its answering affidavit. No leave was granted to first – fourth respondents to file their opposing affidavit out of time. The said opposing affidavit is accordingly not before this court

Indeed, the applicant is correct in its contention in the point in limine per answering affidavit that there was no notice of opposition before the court. Despite this point in limine being raised the first – fourth respondents did not regularize their opposition by seeking an upliftment of the bar. Clearly therefore first – fourth respondents’ objection does not fall for consideration by the court. However for the avoidance of doubt a consortium as an association (and not a universitas) is entitled to sue in the name of the association. See Order 2A Rule 8 of the High Court Rules 1971.

The court is satisfied that the agreements between applicant and the first respondent remain valid and binding as between the applicant’s membership and the first respondent in the absence of any evidence that same were cancelled. The sixth respondent did not dispute the existence of the said agreements that the applicant averred existed between the first respondent and the applicant’s membership. In its opposing affidavit the sixth respondent responded to para(s) 9-15 of the founding affidavit which dealt with the background to acquisition of the said 1300 unserviced stands as follows–  “I have no knowledge of these allegations but---

The applicant’s membership co-operatives proceeded to develop dwelling structures, roads, water and sewerage reticulation in terms of the plans drawn by the first respondent’s relevant departments in their effort to comply with the conditions stipulated in the agreement for the allocation and sale of the unserviced stands which include stands 19751-19793 (the subject of the this dispute). It is clear that the applicants have established a clear right to be settled in the land in dispute.

The sixth respondent on the other hand claims that it has been “at the area in question for 4 decades.

It is not clear in terms of what authority the alleged occupation is based. If it be true that the sixth respondent has been in occupation for 4 decades it means it took occupation of the disputed area prior to Zimbabwe’s independence. The court can take judicial notice of the fact that Budiriro as a township or suburb of Harare was established after independence and 4 decades is a period dating back a period to before independence. The sixth respondent did not produce the source of its authority to occupy the area in question. It is not in dispute that in November 2015 sixth respondent erected a brick and mortar boundary wall which the applicant complainants encroached over a block of stands covering stands 19750 – 19793 Budiriro 5 Township. What is in dispute is that sixth respondent claims that it did not encroach on the applicant’s duly allocated stands as complained. The sixth respondent produced letter dated 9/11/16 from the District Officer Budiriro which says “As per our discussion yesterday, this office hereby request you to accommodate the Common Vision Beneficiaries for seven days” and argued that the said letter is evidence of recognition by the first respondent that the sixth respondent was lawfully settled in the area in dispute and that Member co-operatives of applicant were the ones illegally occupying their location. This the court cannot accept as the said letter does not make any reference to the land in dispute.

Regrettably the sixth respondent did not produce proof of the authority to occupy the land in dispute so as to justify the encroachment.  The documents attached to the opposing affidavit as Annexure B1 and B2 do not support their claim at all. Annexure B1 is a bill in relation to property tax for stand 63-2 Chigwenhure Road Mufakose while Annexure B2 is a ZESA receipt for an electricity token in respect of Jonh Marange Apostle for undefined New Mufakose. The court does not need to adopt a robust approach to resolve what may appear to be a material dispute of fact between the parties as in fact no dispute of fact exists at all. The 2 Annexures B1 and B2 do not refer to the same area allocated to applicant’s member co-operatives.

The sixth respondent produced a new plan Annexure C which purports to be a cancellation of stands 19750 – 19793 (the stands in dispute.) In its Answering Affidavit in response to Annexure C to sixth respondent’s opposing affidavit applicant had the following to say- “7 AD paragraph 5.3. This is denied. Annexure C to sixth respondent’s opposing affidavit is a purported cancellation of stands and therefore does not add value to the present application …. If Annexure C to sixth respondent’s opposing affidavit genuinely emanated (originated) from the first respondent’s office the applicant ought to have been notified of the first respondent’s intention to cancel the General plan, the reasons for such cancellation and be invited to make representations to that effect……” .

It is significant to note that Annexure C is labelled Plan No. TP2F/WR 09/16. There is no date to it and it is a matter of speculation whether or not it may not have been originated in response to applicant’s application as a recent fabrication. It is however clear that there is no council resolution of the first respondent referred to by sixth respondent which confirms the first respondent’s decision to cancel the allocation of stands 19750-19793 allocated to the applicant in 2012.

Annexure C is therefore of no probative value viewed alone and against the back drop of the fact that in its opposing affidavit the first respondent made no mention whatsoever that the first respondent had withdrawn its offer of stands 19750-19793 to the applicant’s membership co-operative. In the absence of any evidence that the first respondent re-allocated stands 19750-19793 to sixth respondent the legal position is that the said stands remain validly allocated and sold to the applicant’s membership co-operatives.

The court’s position is fortified by the first respondent’s objection to the boundary wall per letter dated 1 December 2015 addressed to sixth respondent. The sixth respondent acknowledges that it received the said letter but claims that it managed to convince the first respondent that the said letter be ignored. It is important to realise that the response attributed to the first respondent when the sixth respondent James Lloyd protested about letter dated 1 December 2015 is and remains hearsay. The first respondent did not confirm such response. Besides, one would have expected a retraction if the alleged response to the said letter were true. It should also be noted that 2 bases of objection were raised in first respondent’s letter dated 1 December 2015 namely

Construction of the wall without approved plans and

Encroachment on stands 19750-19793.

Although the first respondent did not follow up their letter of 1 December 2015 there

is no evidence that the first respondent withdrew its objection. This may justify a conclusion that there is a material dispute of fact which in reality does not exist. The onus is on the sixth respondent to show that the first respondent abandoned its demand for the demolition of the unauthorised boundary wall. It is not possible for the first respondent to maintain a mutually inconsistent position as between the two contesting positions of the parties namely observe the sanctity of the allocation and sale of the stands 19750-19793 to the applicant’s membership  while at the same time allegedly upholding the sixth respondent’s claim to the same stands. As is indicated hereinabove a valid and legal allocation and sale of stands 19750-19793 to applicant’s membership-co-operatives has been established. Such finding is clearly one which negates a finding that there is a material dispute of fact as to whether or not the brick and mortar boundary wall was an encroachment on the applicant’s membership’s stands as legally allocated.

In the circumstances the applicant has established a clear case for a declaratur in terms of s 14 of the High Court Act. [Chapter 7:06] see Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994 1 ZLR 337 S at p 343.

Accordingly, the court grants the applicant an order in terms of the draft order on p 145-146 which the court has amended in minor respects in order to make it grammatically correct.  For the avoidance of doubt it is ordered that:

It is declared that the allocation and sale of stands 19751-19793 Budiriro Township to the applicant’s member co-operatives by the 1st respondent is legally binding.

The 1st, 2nd, 3rd and 4th respondents be and are hereby ordered not to reallocate stands 19751-19793 to any person other than applicant’s member co-operatives.

The 6th respondent be and is hereby ordered to demolish the brick and mortar wall erected encroaching over the applicant’s member co-operatives stands ranging from Stand Number 19750-19793 Budiriro Township and held under General Plan number TPX 1349/1, Budiriro 5, Harare within 7 days of being served with this order.

In the event that the 6th respondent fails neglects and or refuses to comply with the terms of Clause (3) of this order, the 1st respondent through its department of Local Planning Services with the assistance of the Deputy Sheriff Harare and the members of the Zimbabwe Republic Police be and are hereby authorized to demolish the brick and mortar wall erected by the 6th respondent encroaching over a block of stands allocated and sold to the applicant’s member co-operatives being stands 19750-19793 Budiriro Township and held under Plan Number TPX 1349/1, Budiriro 5, Harare.

In the event that the 6th respondent fails neglects and or refuses to comply with terms of para (3) of the order and the demolition is done in terms of para (4) of the order, the 6th respondent be and is hereby ordered to pay all the costs incurred by the 1st respondent in carrying out the demolition in terms of para (4).

The 6th respondent pays the cost of suit.

Tadiwa & Associates, applicant’s legal practitioners

Danziger & Partners, 6th respondent’s legal practitioners