Eddies Pfugari Private Limited v Zvimba Rural District Council

### Preamble
1
HH 779-18
HC 3772/18
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EDDIES PFUGARI PRIVATE LIMITED

versus

ZVIMBA RURAL DISTRICT COUNCIL

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 18 October 2018 & 22 November 2018

Opposed Application

T Magwaliba, for the applicant

C Mupungani, for the respondent

MANZUNZU J: This is an application in which the applicant seeks the following order:

“1.  The respondent shall issue the applicant with the rates clearance certificates in respect of

stands subdivided and sold by the applicant at Whitecliff property held under deed of transfer     number 485/1990 upon payment of the deposit required in respect of the rates.

2.  The respondent shall pay costs of suit”

The applicant is a land developer which is into the business of servicing stands and selling them to prospective buyers.

It is not in dispute that applicant owns a piece of land in Whitecliff which land falls under the jurisdiction of the respondent as the local authority. In 1998 applicant was issued with a permit in terms of the Regional, Town and Country Planning Act, [Chapter 29:12] to subdivide Whitecliff into residential stands.

The applicant has since managed to service some stands and sold them. The respondent had also issued applicant with rates clearance certificates for such stands to facilitate transfer of ownership to the purchasers.

In 2018 applicant requested a rates clearance certificate for one of the stands but the respondent refused to issue one.

The applicant has brought this application to compel respondent to issue the rates clearance certificates.

The application is opposed by the respondent who alleges that the applicant had failed to comply with conditions of his permit hence respondent was under no obligation to issue the   rates clearance certificates. For now what concerns the court is not the merits of this application but rather the points in limine raised by the respondent. These are

(a)  whether this court has jurisdiction to deal with this application

(b)  whether applicant is tainted with dirty hands

(c)  whether there are material disputes of facts

JURISDICTION:

The act complained of by the applicant is the refusal by the respondent to issue rates clearance certificates. The applicant seeks for an order to compel the respondent to issue the same.

In submissions respondent relied on s 11(2) of the Regional Town and Country Planning Act, [Chapter 29:12] which reads;

“1……..

2. Subject to Part VIII, if any person is aggrieved by anything done by a local planning authority 	in terms of subsection (1) he may, within one month of that thing having been done or such 	longer 	period as the President of the Administrative Court may in writing authorise; appeal to 	the Administrative Court in such manner as may be prescribed in rules and the Administrative 	Court may make such order as it deems fit.”

Counsel for the respondent argued that this is a matter in which the applicant intends to overturn the decision made by the respondent. In that case, it was argued, the proper thing to do was to appeal to the Administrative Court.

Section 4 (2) of the Administrative Court Act, [Chapter 7:01] was relied upon. It reads;

“1. The court shall have such jurisdiction, powers and authority as may be conferred upon 	it by this Act or any other enactment.

2. The court may, in relation to any matter referred to it in terms of this Act or any other 	enactment –

(a) in relation to an appeal or review, confirm, vary, reverse or set aside the decision, order or 	action concerned or refer the matter back to the body, person or authority concerned for further 	consideration; or

(b) make such determination or order or exercise such powers as may be provided for by 	any 	other enactment.”

Further the respondent relied on the permit to the extent it draws attention to the right of appeal to the Administrative Court.

The argument by counsel for the applicant was that the position of the law as stated by the respondent, be it as it may, was not applicable to this case in that the duty to issue rates clearance certificates fell under the Rural District Council Act which makes no reference to the Administrative Court. It was further argued that this application is brought under common law for a mandamus which the Administrative Court cannot entertain for lack of jurisdiction.

I agree with counsel for applicant that s 11 and 44 of the Regional, Town and Country Planning Act which allows an appeal to the Administrative Court, does not cover issuance of clearance certificates. It is a duty under the Rural District Councils Act. The provisions of the Acts referred to by the respondent cannot oust the jurisdiction of this court. The point in limine challenging jurisdiction cannot be sustained.

Dirty Hands:

It was alleged the applicant was tainted with dirty hands. The basis of such allegation is that the applicant failed to comply with condition 2 (a) 2 (b) and 2 (d) of the permit.

The dirty hands doctrine does not apply to this situation. One must be in breach of the law. To allege a mere non-compliance to a condition of a permit does not imply dirty hands nor an act of guilt on the part of the applicant. There is just no merit in this point in limine and I do not need to go into any greater depth to discuss the dirty hands doctrine.

Material disputes of fact:

In respect to this point in limine no such facts were shown. It must fail.

In the result:

IT IS ORDERED THAT

The three points in limine raised by the respondent be and are hereby dismissed.

Costs in the cause.

Scanlen and Holderness, applicant’s legal practitioners

Manase and Manase, respondent’s legal practitioners