Linda Sahwenje v Tinashe Chitemere and Director of Works (City of Harare) and City of Harare

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LINDA SAHWENJE
versus
TINASHE CHITEMERE
and
DIRECTOR OF WORKS (CITY OF HARARE)
and
CITY OF HARARE


HIGH COURT OF ZIMBABWE
KATIYO J
HARARE, 4 March 2022


Urgent Chamber


T Tabana, for the applicant
P Matsanura, for the 1st respondent
N B Nyathi, for 2nd & 3rd respondents

    KATIYO J:        The applicant approached this court on urgency seeking the
following order:
    TERMS OF FINAL ORDER SOUGHT ARE AS FOLLOWS:
    That you show cause to the Honorable court why a final order should not be in
the following terms:-
     1. The first respondent be and are hereby ordered to demolish any structures
        which he erected on Stand 40295 Belvedere, Harare or subdivided portion
        thereof known as Stand 41550 Belvedere, and fill up all the trenches dug
        there at pending the finalization of the case in HC 2973/21.
     2. The first respondent is interdicted from effecting any developments or taking
        occupation of Stand 40295 Belvedere, Harare or the subdivided portion
        thereof known as Stand 41550 Belvedere until the matter in HC 2973/21 is
        finalized.
     3. The respondent shall pay the costs of this suit on a legal practitioner and
        client scale.
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INTERIM RELIEF:
Pending the finalization of this matter, the applicant is granted the following relief:
    1. Pending the determination and/or finalization of the matter in HC 2973/21, the
        first respondent and all those claiming occupation him be and are hereby
        barred from conducting any construction work namely, digging of trenches,
        footing, brickwork slabbing on Stand 40295 Belvedere, Harare or the
        subdivided portion thereof known as Stand 41550 Belvedere, Harare.
    2. Pending the determination and/or finalization of the matter in HC 2973/21, the
        first respondent and all those acting through him, be hereby prohibited from
        taking occupation of Stand 40295 Belvedere, Harare or the subdivided portion
        thereof known as Stand 41550 Belvedere, Harare.
    3. Pending the determination of and/or finalization of the matter in HC 2973/21,
        the first respondent and all those acting through him be and are hereby
        prohibited from uprooting plants cultivated or otherwise interfering with
        applicant’s occupation of Stand 40295 Belvedere, Harare or the subdivided
        portion thereof known as Stand 41550 Belvedere, Harare.
SERVICE OF PROVISIONAL ORDER
    This provisional order shall be served upon the respondents by applicant’s legal
practitioners.
BRIEF FACTS OF THE MATTER:
    The applicant and the first respondent entered into an agreement of cession in
relation to a piece of land measuring 1000 square meters in extent. It was also agreed
that the costs of the subdivision would be borne equally between the two parties. The
applicant had not yet fully paid for the land to the City of Harare it was therefore
agreed that the balance of ZW$29,145.60 would be paid directly to the City of Harare
(third respondent). On trying to file building plans the applicant was advised that the
site he intended to build belonged to the first respondent and that was when he
discovered a subdivision permit had been issued. In the files of the third respondent
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there was only site plan with the subdivision permit missing. All the second
respondent could produce was the permit number. The applicant then sought to cancel
the agreement of cession as per Annexure ‘C’. The applicant proceeded to file court
application ref HC 2973/21 seeking an order setting aside the subdivision permit on
the basis that it had been fraudulently obtained by the first respondent. Also that the
agreement of cession was in contravention of section 39 Regional Town and Country
Planning Act which prohibits the disposal of land before subdivision permit. What
followed on the 29 and 30 December 2021 was the digging of trenches and uprooting
of crops planted by the applicant on the site and possible demolition of the cottage he
built. Because of this new development the applicant argues that this matter is urgent
and if the first respondent is not interdicted he will suffer irreparable harm.
    The respondent on the other hand argues that this matter is not urgent as all they
did was above board. He argues that he lawfully bought the property. He also makes
reference to Annexure ‘A’ and ‘B’ consisting of Compliance Certificate and Survey
diagram attached to the notice of opposition. Also that the applicant has no locus
standi but the third respondent. They further argue that the need to act did not arise as
submitted above but on the day the cession agreement was entered into.
WHAT CONSTITUTES URGENCY
    What constitutes urgency is now a settled law in Zimbabwe and there are a
number authorities on the subject. The case of Kuvarega v The Registrar & Anor
1988(1) (ZLR) states:
         “What constitutes urgency is not only the imminent arrival of the day of reckoning.
         A matter is urgent if at the time of the need to act arises, the matter cannot wait.
         Urgency which stems from a deliberate or careless absentatim from action until the
         deadline draws near is not the type of urgency contemplated by the rules”.

    Also in the case of Documented Support Centre (Pvt) Ltd v Mapuvire 2006(2)
ZLR 240:
         “Urgent applications are those where if the courts fail to act, the applicants may
         well be within their rights to dismissively suggest to the court that should not bother
         to act subsequently as the position would have become irreversibly so to the
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         prejudice of the Applicant”
    After perusing the documents filed of record and listening to the arguments for
and against on the issue of urgency of the matter it is quite clear that a dispute has
arisen regarding the agreement of cession. The issue is not centered on urgency as
being contemplated but on an intention to have the whole cession agreement revoked.
This is a situation where the agreement has gone sour and already a dispute is now
pending before this court. There is no doubt that the applicant is no longer interested
in the agreement entered regarding the cession to the property. The events of the 29
and 30 December 2021 cannot be interpreted to constitute urgency. Whichever party
decides to build or make improvements on the property do so with the full knowledge
that there is a dispute before the court. This is an issue which with proper engagement
of the two contesting parties the matter could have been easily resolved than resorting
to Urgent Chamber Application. A mere disagreement cannot constitute urgency.
Parties should learn to use other means of dispute resolution than resorting to courts at
every turn as was in this case. This court does not understand how the irreparable
harm would be occasioned to the applicant by not treating this matter as urgent. There
is nothing put before me to suggest the kind of urgency sought by the applicant.
    In the final analysis the court makes a finding that the facts submitted do not at all
constitute urgency but a contractual dispute as a result of conduct of the parties
involved.
In the result I make the following order:
   1. The application is not urgent and is therefore removed from the roll of
       urgency.
   2. The applicant to pay the costs of the application on ordinary scale.




Tabana and Marwa, plaintiff’s legal practitioners
Mboko TG Legal Practitioners, first respondent’s legal practitioners
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Gambe Law Group, second and third respondent’s legal practitioners