Craig Joseph Guthrie and Kenneth Peter Moores and The Toremore Park Residents Association v City of Harare and Lagrandy Electrical Industries (Pvt) Limited

### Preamble
1
HH 353-21
HC 3331/21
---------


CRAIG JOSEPH GUTHRIE

and

KENNETH PETER MOORES

and

THE TOREMORE PARK RESIDENTS ASSOCIATION

versus

CITY OF HARARE

and

LAGRANDY ELECTRICAL INDUSTRIES (PVT) LIMITED

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE,30 June 2021 &7 July 2021

Urgent Chamber Application- Interdict

Mr. E. Mubaiwa, for the applicant

Mr.A. Moyo, for the 1strespondent

Mr…Donzvambeva, for the 2nd respondent

MUSITHU J:

INTRODUCTION

The first and second applicants are members of the third applicant, an unincorporated association. The third applicant approached the court in terms of Order 2A of the High Court Rules, which recognizes its status as such. The first respondent is an administrative body tasked with providing services for residence of Harare. It is established in terms of the Urban Councils Act. One of its major functions is the regulation of the disposal of land that falls under its jurisdiction. In casu, it stands accused by the applicants of surreptitiously selling a piece of land to the second respondent. It is that land which is at the centre of the dispute between the parties herein. The second respondent is a company incorporated according to the laws of Zimbabwe. The applicants approached this court on an urgent basis seeking the following relief:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to the Honourable Court why a final order should not be made on the following terms-

The transaction between the 1stand 2ndRespondents for the sale of Stand No. 37 Pomona Township be and is hereby set aside.

The 2ndRespondent and all those claiming occupation of Stand No. 37 Pomona Township, be and are hereby ejected from Stand No. 37 Pomona Township.

The 2ndRespondent be and is hereby ordered to demolish the development at Stand No. 37 Pomona Township.

The Respondents shall pay the costs of this application on the higher scale of attorney and client jointly and severally, the one paying the other to be absolved.

INTERIM RELIEF GRANTED

Pending determination of this matter the Applicant is granted the following relief:

The 2ndRespondent be and is hereby interdicted from developing Stand No. 37 Pomona Township.

SERVICE OF PROVISIONAL ORDER

That leave be and is hereby granted to Applicant’s Legal Practitioner or the Deputy Sheriff/Messenger of Court to attend to the service of this Order forthwith upon the Respondents in accordance with the Rules of the High Court of Zimbabwe.”

The application was initially filed at the Bulawayo High Court for reasons best known to the applicants’ counsel. That court declined to hear the matter on the basis that the cause of action arose in Harare, and the applicants’ legal practitioners were also based in Harare. The matter therefore ought to be determined by the High Court in Harare. The application was filed at the Harare High Court on 16 June 2021. It was placed before me on 24 June 2021at 14:00 hours. I set it down for hearing on 28 June 2021. On the day of the hearing, counsel for the first respondent applied for a postponement to enable him to take instructions from his clients, as well as retrieve and study the file pertaining to the land in dispute. That file was allegedly in the hands of the Police. I postponed the matter to 30 June 2021, with the consent of the parties. I also exhorted the parties to meet and attempt to resolve the matter amicably. Such attempts at resolving the matter amicably were unsuccessful.

FACTUAL BACKGROUND

The applicants claim that Stand No. 37 Pomona Township, also known as Toremore Park (the property) was donated from a deceased estate to the first respondent. The donation was subject to the condition that the property would continue being utilized as a recreational park for the benefit of the residents of Pomona and Vainona in Harare. Over the years, the residents had utilised the property for recreational purposes. The applicants claim that they were shocked to hear that the property had apparently been sold to the second respondent for recreational purposes. The applicants also avered that some ten years back, the residents attended a meeting at the first respondent’s City Town Hall after they heard rumours of a lease or sale of the property to a resident of Ballantyne Park. The residents were assured that the property was not being sold or leased, but the alleged individual had offered to maintain the property for their benefit.

The applicants claimed that they soon discovered that the property had been leased to the second respondent by the first respondent for a nominal fee. This was all part of an underhand scheme to eventually transfer title to the second respondent, as the property was later sold to that party.

Applicant’s Case

The applicants took umbrage with the manner in which the property was sold to the second respondent. The transaction was under Police investigation. The issue also arose for debate in Parliament following questions that were raised by the local Member of Parliament, directed to the responsible Minister. The Member of Parliament wanted to know why development structures on the property, which belonged to a deceased estate, were ongoing despite objections and offers by residents to run the property as a park. The Minister responsible for Local Government and Public Works confirmed in Parliament that the issue was under Police investigations. Attached to the first applicant’s affidavit was an extract from the Suburban issue of 11-17 June 2021, confirming the discussions that ensued in Parliament.

The applicants’ concern was that despite the ongoing investigations which were confirmed by the highest authority, thesecond respondent was proceeding with development. The second respondent allegedly sunk a borehole and commenced development works on 8 June 2021. It is that conduct that prompted an approach to this court on an urgent basis. The applicants contended that as residents, they had legal and vested interests in the property. Further as beneficiaries of the laws that governed the change of use of the property, they were concerned with the developments that were contrary to the wishes of the testator. Such laws were not made for the benefit of the first respondent alone, but they were also meant to serve the interests of the residents as ratepayers. The applicants averred that the first respondent did not carry out a tender process in the disposal of the property, and neither did it comply with the process for change of use of the property.

The first respondent allegedly ignored the residents’ objection to the purported sale and change of use of the property. The objections were communicated to the first respondent’s Mayor through letters of 1 June 2021. The applicants further averred that if further developments on the property were not halted, the residents would suffer irreparable harm. The investigations under way would be compromised. The relief sought on the return day would have been overtaken by events. The mere idea of having a commercial development in an area preserved for recreational purposes was unpalatable.  The applicants further averred that they had no alternative remedy. Their complaint was grounded in the lawfulness of the process leading to the disposal of the property to the second respondent. It needed to be scrutinized before developments on the property were completed. There was no need to pre-empt the outcome of the investigations, or the determination of the court on the return day by allowing secondrespondent to continue with the developments complained about. They contended that the balance of convenience was therefore in their favour. Further developments had to be suspended in order to avoid rendering the outcome of the investigations and the court challenge ineffectual. On its part, the second respondent would suffer no harm if the development process was suspended pending the outcome of this court challenge as well as the Police investigations underway.

FirstRespondents’ Case

In its opposing affidavit, first respondent raised the following preliminary points: absence of locus standi,lis pendensand availability of an alternative remedy.  As regards the absence of locus standi, Mr Moyo for the first respondent’s submitted that the applicants had failed to establish a prima facie case against the second respondent who was the holder of real rights in the property. The second respondent had already taken transfer of the property and its rights were unimpeachable. With respect to lis pendens, the first respondent’s submission was that the relief sought by the applicants to have the agreement between the first and second respondents declared null and void was already pending before the police. If police investigations established that the transaction between the two parties was tainted with illegality then that sale would be cancelled. In proceeding to determine the matter, the court would essentially be duplicating a process already under investigation by a competent authority. The police investigations would be rendered nugatory. Lastly, Mr Moyo submitted that the application was unnecessary as the applicants had an alternative and effective remedy in the form of the ongoing police investigations. The matter was under control and the applicants had no cause to rush to this court on an urgent basis.

On the merits, the first respondent contended that the applicants had failed to produce evidence that supported their averments before the court. No deed of donation was produced to support the claims that the property was indeed donated to the first respondent from a deceased estate. The first respondent denied allegations of any impropriety in the disposal of the property to the second respondent. The sale of the land was advertised to solicit for objections by interested parties. No objections were received. The first respondent denied that any developments were taking place on the property. All developments could only be done with the approval of the first respondent as the local planning authority. No application had been made for the requisite approvals to commence development. The first respondent also dismissed allegations that the park was being converted for commercial use. The second respondent needed to make an application for change of use, but the first respondent had not received such an application as yet. It was within the first respondent’s powers to guard against any unlawful change of land use. The first respondent also had the power to demolish structures that were built illegally. The applicants’ fears were therefore farfetched.

The first respondent contended that the applicants had failed to demonstrate the existence of a clear right on a balance of probabilities, and the perceived harm they stood to suffer. The alleged right of public use created through the donation made to the first respondent was not substantiated. There was no evidence to back it up. The mere fact that applicants were beneficiaries of the Urban Councils Act did not entitle them to interfere with real rights of other citizens. It did not entitle them to interfere with sale agreements that were lawfully executed and advertised. The Administration of Estates Act was not violated. There were no encumbrances against the title of the property. The alleged objections made to the sale had long prescribed. The advertisements calling for objections to the proposed sale were made in 2019. That is when the objections ought to have been made. In conclusion, the first respondent averred that the balance of convenience favoured the dismissal of the application. There were no threats to the applicants’ alleged rights as no developments were underway. The first respondent had not sanctioned any change of use of the property.

Second Respondent’s Case

The second respondent also raised the following points in limine: failure to exhaust domestic remedies and defective certificate of urgency. Regarding the failure to exhaust domestic remedies, the second respondent’s contention was that the applicants ought to have approached the police with a complaint since the matter was allegedly under police investigation. The second respondent averred that it was not aware of any investigations as it had received no formal communication to that effect. As regards the certificate of urgency, the second respondent averred that the certificate failed to speak to the urgency of the matter. In his submissions Mr Donzvambeva for the second respondent referred to the case of Chidawu & 3 Others v Jayesh Sha & 4 Others, where the court held that a certificate of urgency was the sine qua non for the placement of an urgent matter before a judge.

Mr Donzvambeva also submitted that there was no relationship between the interim relief sought and the final order sought in relation to the facts pleaded in the certificate of urgency and the founding affidavit. The applicants’ case was based on conjecture and surmise, and so was the urgency itself. The applicants were not even sure whether the transaction between first and second respondents was done in compliance with thelaw. Mr Donzvambeva further submitted that the applicants’ case was not based on proved facts. No urgency could be founded on that which was not proved. The applicants had failed in their duty to make full and frank disclosure of important facts. The court was referred to the case of Graspeak Investments (Pvt) Ltd v Delta Operations.

The second respondent also averred that the applicants were aware that it purchased the property in 2019, but they never approached the court at that stage. The property was registered in the second respondent’s name on 19 December 2019. The need to act clearly arose in 2019. The matter was therefore not urgent.

Regarding the merits, second respondent denied that the property was donated to the first respondent. No evidence was placed before the court to support the alleged donation. The secondrespondent also denied that there were ongoing investigations in connection with the sale of the property. It claimed to have acquired real rights following the transfer of the property into its name. It had a right to deal with the property as it pleased without any interference. The Police who were allegedly investigating the transaction had not directed that it suspends development on the property. The second respondent also averred that the mere fact that the property was discussed in Parliament did not affect its rights to develop the property. In any event, the second respondent was required to comply with the Development Control Provisions issued by the first respondent if it decided to develop the property.

Applicant’s Reply

In reply,Mr Mubaiwa for the applicants insisted that the applicants had the locus standi to approach the court for the relief sought. Applicants approached the court in their capacities as residents falling under the jurisdiction of the first respondent. It was within their rights to get the first respondent to account for any acts that potentially violated the law. According to Mr Mubaiwa, the applicants had in their affidavits alleged that the property was donated to the first respondent for the benefit of the residents. The applicants also alleged that the first respondent did not comply with the law in selling the property to the second respondent. The residents had over the years enjoyed the use of the park for recreational purposes. As residents therefore, the applicants had a direct and substantial interest in the property that was the subject matter of litigation. The court was referred to the case of Zimbabwe Teachers Association vMinister of Education and Culture, which established the requirements for locus standi.

On the existence of an alternative remedy, Mr Mubaiwa submitted that the ongoing police investigations could not provide an alternative to the relief sought herein. The applicants could not approach the police for an interdict. Only the courts were vested with powers to grant interdicts as a form of remedy. Further, only the court could grant an order setting aside the transaction between the first and second respondents on the return day. The objection of lis pendens was therefore devoid of merit. The matter could not be said to be pending before the police. Counsel further submitted that the applicants could not approach the first respondent for recourse. The firstrespondent was accused of illegally selling the property to the second respondent. It was a key player in the dispute. It could not investigate itself under the circumstances.

As regards the defects afflicting the certificate of urgency, Mr Mubaiwa submitted that the court was enjoined to read the certificate of urgency together with the founding affidavit. More importantly, in determining whether a matter was urgent, the court was required to consider two key factors,which are “time” and “consequences”. The applicants had in their affidavits related to these two elements of urgency. The certificate of urgency was therefore not defective. The matter was urgent. Counsel also submitted that the relief sought did not affect the urgency of the matter. What the applicants wanted on the return date was not a matter to be argued at this stage. For now, the court was only preoccupied with whether the applicant had established a prima facie case to justify the granting of the interim relief sought.

Determination on the Preliminaries

Locus Standi

In Makarudze & Anor v Bungu & Ors, mafusire jset out the test for locus standi in judicioas follows:

“Locus standi in judicio refers to one’s right, ability or capacity to bring legal proceedings in a court of law. One must justify such right by showing that one has a direct and substantial interest in the subject-matter and outcome of the litigation: see Zimbabwe Teachers Association & Ors v Minister of Education and Culture. In that case EBRAHIM J, as he then was, stated:

“It is well settled that, in order to justify its participation in a suit such as the present, a party … has to show that it has a direct and substantial interest in the subject-matter and outcome of the application.”

The direct and substantial interest test has been followed in a plethora of cases such as those listed in footnote one above. In Henri Viljoen (Pty) Ltd v Awerbuch Brothers it was held to connote:

“… an interest in the right which is the subject-matter of the litigation and … not thereby a financial interest which is only an indirect interest in such litigation.”

corbett j, in United Watch & Diamond Co (Pty) Ltd & Ors v Disa Hotels Ltd & Anor, elucidated it as follows:

“This view of what constitutes a direct and substantial interest has been referred to and adopted in a number of subsequent decisions, including two in this Division … and it is generally accepted that what is required is a legal interest in the subject-matter of the action which could be prejudicially affected by the judgment of the Court (See Henri Viljoen’s case supra at 167)”.

I associate myself with the views of the learned judges. Direct and substantial interest denotes a significant interest in the subject matter of litigation, as well as its outcome. It must not be fanciful. The first and second applicants approached the court in their capacities as residents, as well as being members of the third applicant. Their interest was in the property which for years had been used for recreational purposes. They alleged some impropriety in the disposal of the property to the second respondent. It is not clear what structures second respondents intends to put up on the property.As residents of the area in which the property is located, the applicants had an interest regarding any change of use of that property. It is the finding of the court that the applicants have locus standi to institute these proceedings. The preliminary objection is accordingly dismissed.

Lis pendens, alternative and domestic remedies

The submission that the matter was lis pendens because of the ongoing police investigations was not pursued with vigour by the first respondent’s counsel. Criminal investigations are not synonymous with court proceedings. As rightly submitted by Mr Mubaiwa, police investigations do not avail the kind of injunction that ordinarily only a court can grant. The mere fact that a matter is under investigation does not take away a party’s right to approach a court for an interdict. While the first respondent appeared to be confirming that there are some investigations under way, it did not state the nature of those investigations. The second respondent on the other hand denied having knowledge of any investigations. That having been said, I do not see how the relief sought by the applicants will stifle the ongoing police investigations. The objection is devoid of merit.

The court finds that the first respondent cannot be expected to provide an alternative remedy to the applicants’ concerns. It is its conduct that is being impugned. It is the main actor in all the processes that led to the sale and transfer of the property to the second respondent. The applicants averred that they approached the first respondent and got some assurances that the property will be maintained for recreational purposes. Events occurring on the ground however suggested otherwise. It was for the same reason that the local Member of Parliament also raised the issue with the Minister of Local Government in Parliament.  The objection therefore lacks merit.

The same goes for the argument that the applicants were supposed to have exhausted domestic remedies by approaching the first respondent first before coming to court. It is the conduct of the first respondent that prompted the applicants to approach this court. The first respondent cannot be a judge in its own cause. It is within the rights of the applicants to approach the court where they perceive the first respondent’s conduct to be inconsistent with the law. The objections are accordingly dismissed.

Defective certificate of urgency

Order 32 rule 244 of the High Court rules provides that:

“244Urgent applications

Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of subrule (2) of rule 242 to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to a judge, who shall consider the papers forthwith.

Provided that, before granting or refusing the order sought, the judge may direct that any interested person be invited to make representations, in such manner and within such time as the judge may direct, as to whether the application should be treated as urgent.”

Mr Donzvambeva submitted that a certificate of urgency is the sine qua non for the placement of an urgent chamber application before a judge. The judge does not look at the certificate of urgency in isolation. Rule 244 requires the judge to consider “the papers forthwith”. The judge is also allowed to invite any interested person to come and address him or her on the question of urgency. Standing on its own, the certificate of urgency acts as a signal to the registrar to immediately place the matter before a judge. Mr Mubaiwa drew the court’s attention to paragraph 2 of the certificate of urgency which explained when the need to act arose. What triggered the approach to the court on an urgent basis was the placing of building materials on the property showing second respondent’s readiness to commence development. A borehole had also been sunk. This was done notwithstanding the ongoing investigations by the police to establish the lawfulness of the transaction between first and second respondent. Similar averments were made in paragraph 19 of the first applicant’s founding affidavit.

Paragraphs 6 and 8 of the certificate of urgency speak to the harm that will be suffered by the applicants and fellow residents if the matter is not heard on an urgent basis. Similar averments were also made in paragraph 37 of the first applicant’s founding affidavit. Mr Donzvambeva appeared to conflate the defectiveness of the certificate of urgency and the lack of urgency. It became unclear whether his concerns were about the alleged defects afflicting the certificate of urgency or the urgency of the matter itself. A perusal of the entire certificate of urgency and the founding affidavit shows the time when the need to act arose, as well as the consequences attendant upon a failure to hear the matter on an urgent basis, were set out. Though it may not have been elegantly drafted, the certificate of urgency set forth the reasons why the matter was certified to as urgent. The preliminary objection lacks merit and it is hereby dismissed.

It is also the finding of the court that the matter is urgent. Though the counsels for the first and second respondents submitted that no developments had been commenced as yet, the court noted that the second respondent did not deny that it recently sunk a borehole on the property. Further, the concerns raised on behalf of the residents by their Member of Parliament in Parliament could not just have been a case of grandstanding. He referred to recent developmental structures that were taking shape. Similarly, the article in the Suburban newspaper referred to earlier on also made reference to some building being put up on the property recently. That article is dated 11-17 June 2021. The story in that article confirms that the applicants approached the court when the need to act arose. The recent development activities on the property prompted their Member of Parliament to raise the issue in Parliament.

The Merits

All that the applicants seeks at this stage is the suspension of all development activities on the property pending the return date. On the return date the applicants seeks the setting aside of the transaction between the first and second respondents, among other things. It means that the substantive rights of the parties will arise for determination on the return date. The issue for determination at this stage is whether the applicants have established a prima facie case that entitles them to be granted the interim relief that they seek. Mr Mubaiwa submitted that it was not in dispute that there were some developments on the ground. The second respondent did not deny that it had recently sunk a borehole on the property.

In his submissions, Mr Donzvambeva vehemently denied that the second respondent had commenced developments on the property. He referred to the case of Mupukuta v Motor Insurance Pool & Othersin advancing the argument that courts exist to resolve concrete disputes. For the first respondent, Mr Moyo argued that the applicants had failed to establish a prima facie right. They had no rights worth protecting. He also submitted that the second respondent had not yet submitted any plans to the first respondent for approval in order to commence development on the property. He further submitted that the balance of convenience favoured the protection of holders real rightsin properties, such as the second respondent herein.

It is clear from extracts of the question and answer session in Parliament that the issue of developmental structures taking shape at the property was raised in Parliament. The Minister of Local Government told Parliament that the file for that property was with the Harare Metropolitan police and under investigation. He was constrained from making further comments with regards to that matter. That debate in Parliament was confirmed in an extract of the Suburban issue of 11-17 June 2021. The newspaper article attached to the first applicant’s founding affidavit quoted the honourable Minister as confirming that the property was indeed under police investigation. Although it is not in dispute that the second respondent holds title to the property, the lawfulness of the process leading to the acquisition of that title is a matter for the return date. At this stage the court is only required to ensure that no further development takes place pending the determination of the applicants’ complaint on the return date.

What this court cannot ignore is that there is an investigation into the legality of the process leading to the acquisition of ownership by the second respondent. That issue is receiving attention at ministerial level in Government. Law enforcement agents are also involved. For that reason the situation on the ground needs to be arrested through an interim relief freezing any form of development pending the determination of the matters alluded to on the return date. If development works are allowed to progress it means that the matter would have been overtaken by events on the return date. The court also noted that the first and second respondents’ counsels professed lack of knowledge of the alleged developments on the ground. In fact, the first respondent’s counsel even submitted that the second respondent was yet to approach the first respondent for the approval of any proposed development plans. It follows that both first and second respondents will not be unduly prejudiced if any development is suspended pending the determination of this matter on the return date.

For the foregoing reasons, this court is satisfied that the applicants have established a prima facie case that entitles them to be granted the interim relief they seek.

DISPOSITION

Accordingly, it is ordered that:

Pending the return date, thesecond respondent be and is hereby interdicted from 	developing Stand No. 37 Pomona Township.

This provisional order shall be served on the respondents by the Sheriff of the High 	Court or by the applicants’ legal practitioners.

Matizanadzo & Warhurst, applicant’s legal practitioners

Gambe Law Group, 1strespondent’s legal practitioners

T.K. Takaindisa Law Chambers, 2ndrespondent’s legal practitioners