Promise Zvavahera v Smart Kanyama & 2 Ors

### Preamble
1
HH 496 - 25
HC 1592/24
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PROMISE ZVAVAHERA

versus

SMART KANYAMA

and

MINISTER OF NATIONAL HOUSING AND SOCIAL AMENITIES

and

MINISTER OF LOCAL GOVERNMENT & PUBLIC WORKS

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE: 4 September 2025

Opposed Application

L. Toindepi, for the applicant

J. Mavange, for the first respondent

CHITAPI J:

The applicant seeks a declaratur in terms of s 14 of the High Court Act [Chapter 7:06]. The declaration sought by the applicant was couched as follows:-

“IT IS ORDERED THAT

The application for a declaratur be and is hereby granted.

The purported allocation of stand 7219 Dzivarasekwa Extension, Harare, measuring 300 square metres to first respondent by the second and third respondents be and is hereby declared null and void and is hereby set aside.

The applicant be and is hereby declared the lawful holder of the rights and interest in stand 7219 Dzivarasekwa Extension, Harare measuring 300 square metres in extent.

The first respondent shall pay costs of suit on a legal practitioner and client scale.”

The applicant is Promise Zvavahera and the first respondent is Smart Kanyama, both adults of Harare, Zimbabwe. The second and third respondents are the Minister of National Housing and Social Amenities and the Minister of Local Government and Public Works respectively. The dispute between the parties concern disputed proprietary rights over the property called stand 7219 Dzivarasekwa Extension, Harare as more described in the draft order quoted above. The applicant claimed that the property was allocated to him in 2011 at a time that he was employed by the Ministry of Environment and Natural Resources Management under a housing reallocation scheme which was put in place to benefit civil servants. The applicant attached as annexure to the founding affidavit a letter written by the Housing Officer in the Ministry of National Housing and Social Amenities, A Chitawa addressed to what is addressed as FUND ACCOUNT. The letter dated 26 September 2011 read as follows:

“Please allow ZVAVAHERA PROMISE to pay administration fees $100 for stand number 7219 Dzivarasekwa Extension Phase 2. He/she was allocated stand under the re – allocation programme”

The applicant attached copy of a deposit slip showing a deposit of $100 made to the credit of Ministry of National Housing Dzivarasekwa Extension and the applicants name also endorsed thereon.

The applicant averred that he did not immediately develop the property because of lack of funds. He averred that in 2011 the first respondent offered to purchase the property from the applicant. The applicant turned down the offer, so he stated. The applicant averred that he was served with a court application No. HC 6306/23 in which the first respondent was claiming ownership to the stand. The applicant consulted his legal practitioners who by letter dated 2 October 2023 sought clarification from the Ministry of National Housing and Social Amenities on the correct ownership of the disputed stand. By letter dated 12 October 2023 the Ministry concerned responded as follows:

Re: HC 6306/23 SMART KANYAM v PROMISE ZVAVAHERA AND 2 OTHERS

“Reference is made to your letter dated 2 October 2023 on the above captioned matter.

We can confirm that Mr Promise Zvavahera is the legal allottee of stand number 7219 Dzivarasekwa Extension, Harare.”

The applicant also attached an affidavit filed by the second respondent herein in case No. 6306/23 aforesaid. It is noted that the same parties herein were the parties cited in case No. HC 6306/23 save that the first respondent herein was the applicant. The affidavit aforesaid was deposed to by the Acting Permanent Secretary of the second respondent. He stated in para 3 of the affidavit as follows in relation to the disputed stand;

“Ad para 8 – 25

3. According to Ministry records, the stand in question, stand 7219, Dzivarasekwa Extension, Harare, was allocated to the first respondent of record, Promise Zvavahera. See Annexure “A” being an extract of the membership list for Dzivarasekwa stands Phase 2.”

To the affidavit was attached a list of the allottees of the scheme. The first respondent is not listed as an allottee. The applicant is listed as the allottee to stand 7219.

For the record case No. HC 6306/23 was not proceeded with. It was listed for hearing before me on 16 February 2024. The application was withdrawn with costs by the first respondent for nullity in that he invalidly cited the second respondent therein as the “Ministry” and not the Minister, an elementary error committed occasionally by the underscoring legal practitioner. The matter was not subsequently brought back to court. The first respondent opposed the application. He took a point in limine of prescription. He averred that the cause of action arose in 2011 when the applicant was purportedly allocated the property. The first respondent claimed to have been allocated the property by the second and third respondents in 2000 and that he had constructed a foundation and box for an 8 roomed house of which three rooms were completed in 2002. He claimed to have taken possession and occupation of the property for nine (9) years in 2011 when the allocation of the property to the applicant was made. The first respondent claimed that the applicant’s right to redress in the court prescribed in 2014, after the lapse of three (3) years. He averred that the applicant had filed this application fourteen years after the event. The first respondent averred that the applicant was aware that the first respondent was in occupation of the property because the two engaged in 2011 over the property ownership.

The first responded also averred that the applicant delivered bricks to the property in 2017 and again raised the issue of his ownership which the first respondent disputed. He contended that since he was in occupation of the property, the applicant should have applied to court for the declaration of ownership within three years of 2017.

The first respondent also averred that the court should dismiss the application because the applicant lied in his affidavit. The alleged lies were firstly the allegation that the first respondent offered to buy the property from the applicant in 2011 and secondly in not disclosing that the first respondent was already in possession of the property in 2011 when the property as allocated to the applicant. Thirdly was that the applicant lied that he became aware of the first respondent claim to the property after being served with court application case No. HC 6306/23 yet the dispute was always there since 2011. The applicant averred that deliberate falsehoods unsuit an applicant to seek relief and that the applicant’s claim should be dismissed on that basis.

On the merits the first respondent averred that he was the first allottee of the property since his allocation of the property in 2000 by the second respondent pre – dated that of the applicant and that he occupied the property by 2002 after constructing an incomplete house thereat. He also averred that the letter produced by the applicant written by the housing officer as quoted supra was not an allocation letter.

For his part the first respondent produced as annexure C to his opposing affidavit, a letter confirming the allocation of the property to him to which was attached an application form signed by the applicant on 22 April 2000 which outlined conditions of allocation of the property. Notably para 3 of the letter provided that:-

“3. If the Ministry has started building on your stand you will be advised of the value of the improvements once valuation exercise is completed. You should therefore not proceed to complete the structure before you are informed of the cost of improvements and sign the agreement with the Ministry.”

It is clear therefore that it was envisaged that there would be executed a sale agreement of the property between the first respondent and The Ministry concerned. Neither the applicant nor the first respondents have produced a sale agreement. The respondents did not file any papers in opposition of the application. Their non-participation is not helpful.

The conditions of the allocation are set out in para 3 of the Start Paying For Your House Scheme which is the scheme under which the first respondent purports to have been allocated the stand in dispute. Notably the allocation referred to by the first respondent was a pre – allocation and payments made were pre – allocation payments to be held in the Housing Committee Funds. Houses were to be built with allocation of completed houses being based on priority informed by who would have made large deposits and were up to date with monthly installments. The houses to be allocated on completion were to be constructed by the Ministry concerned. The first respondent attached a receipt for payment of $100.00 made on 28 April 2000 to the Ministry. No further evidence of any other payment was provided by the applicant.

The applicant and the first respondent claims to the property are adverse to each other. At the hearing the parties legal practitioners indicated that they stood by their heads of argument. Both legal practitioners addressed the issue of prescription in the main. The first respondent maintained the position that the applicant’s cause of action as pleaded by him arose in 2011 when he became aware of the first respondent’s occupancy and possession of the stand. It was submitted that the claim prescribed in 2014. The first respondent’s counsel submitted that the applicant’s claim was a debt which prescribed after three years. Reliance was placed upon s 15(d) of the Prescription Act [Chapter 8:11].

It is noted that s 2 of the Prescription Act reads as follows in defining a debt:

“In this Act –

“debt”, without limiting the meaning of the term includes anything which may sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”

S 15(d) provides as follows:

“The period of prescription of a debt shall be

(d) except where any enactment provides otherwise, three years in the case of any other debt.”

The first respondent submitted that the applicant sat on his laurels since 2011 and should have his claim declared prescribed and not suited to be heard by the court. The first respondent submitted that the maxim “vigilantilous non dormientibus jura subvenium” (the law asserts the vigilant and not the sluggard) as noted by the Supreme Court in the case of Chimunda v Zimuto & Anor SC 76/2014 was applicable in the case. See also Ndebele v Ncube 1992(1) ZLR 288.

The applicant’s counsel took the position that a claim which seeks a declaratory order does not prescribe. Reliance was placed on the judgment of Ndou J in Ndlovu v Ndlovu & Anor 2013 (1) ZLR 11 (4) wherein it is stated by the learned judge:

“_ _ It is clear from the pleadings that the plaintiff’s claim is for a declaratory order premised on the fact that the general power of attorney used in selling his house was forged and therefore a nullity. In s 2 of the Act a debt is defined as follows:

“debt without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute contract, delict or otherwise;

The point worth noting in this definition of “debt” is that the suit or claim must be by reason of obligation on the part of the debtor arising from one of the stated basis. In my view a declaratory order is a remedy to secure the public interest of certainty or correct legal position. Such a remedy cannot prescribe Oerfel and Others NNO v Director of Local Government 1981 (2) SA 477 (E) at 492.”

In view of the parties’ opposed positions on the issue of whether a declaratur as envisaged in s 14 of the High Court Act, prescribes, the court invited counsel to consider the dicta in the cause of John Conradie Trust v The Education of Kushanda Pre – School Trust & 3 Ors SC 12/17 wherein Bhunu JA had this to say on prescription on page 5 – 6 of the cyclostyled judgment. The case concerned an application for condonation of late noting of appeal and extension of time of appeal against a judgment of the High Court in which that court dismissed the applicant’s claim to vindicate a property on the basis that the claim had prescribed;

“The phrase anything which may be sued for gives the term debt a very wide meaning synonymous with cause of action as observed by Greenland J in Denton v Director of Customs & Excise 1989 (3) ZLR 41 at 48. In that case the learned judge had occasion to remark that:-

“Note that the word ‘debt’ used in this Act (Prescription Act) and the words “cause thereof” used in s 178(4) of the Customs and Excise Act mean the same thing. This is because of the wide meaning of ‘debt’ as set out in the former”

Since the applicant is suing the third respondent for vindication, its suit falls squarely within the ambit of anything which may be sued for. What this means is that a claim for vindication of property amounts to a claim for a debt in terms of the Prescription Act. It therefore follows as a matter of common sense that the applicant’s suit being a claim for vindication in legal parlance is a debt which is subject to prescription in terms of the Act.

Once prescription has run its course it deprives the aggrieved party of the remedy or relief sought regardless of whether or not one has a valid claim on the merits. Thus an owner forfeits his right to vindicate his property once prescription has run its full course as happened in this case. The nature of the defence is that it even allows a litigant at fault to keep his ill-gotten gains.” (own emphasis)

The first respondent’s counsel contended that the remedy of a declaratur as sought in this case fell within the ambit of the dicta in the Conradie case as quoted. Counsel submitted that the applicant ought to have indicated his rights within three years from 2011.

The applicant’s counsel countered that a distinction should be drawn between vindicatory relief and a declaratory order. It was submitted that a vindicatory order related to ownership claims whilst a declaration sets out a correct legal position in relation to disputed rights.

A reading of s 14 of the High Court gives an insight into the purpose of a declaratur as envisaged there. It reads:

“The High Court may in its discretion at the instance of any interested person enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

In my view prescription as a defence cannot bar the court from enquiring upon a correct legal position or status upon a given set of facts. Whether or not consequential relief is available is a related but distinct enquiry. It is the issue of consequential relief which is subject to prescription. The consequential relief is the one which involves the determination enforcement of rights and obligations. For example the court can issue a declaratur that a sale agreement is fraudulent but despite such declaration the party who has sought the declaration may still fail to then be granted a vindicatory order of the basis of prescription where the occupier of the premises successfully pleads prescription. Thus, whilst as noted in the Conradie case that the defence allows a litigant at fault to keep ill-gotten gains is arguably correct, it must be noted that other branches of the law like the criminal law may still be invoked to ensure as a matter of public policy and good will that the conduct to which prescription applies may still be subject to prosecution and the criminal law provides sanctions which ensure that in cases where the ill-gotten gains arise from conduct which is criminal the law provides for recovery of the ill-gotten gains which are then given to the person who may lawfully possess them or be forfeited to the state.

The position I take therefore is that the Conradie case is authority that a vindicatory claim is subject to prescription. The case is not a blanket authority that a claim for a declaratur sought in terms of s 14 of the High Court Act is subject to prescription. There are several judgements of this court which hold opposite positions on the issue of whether a declaratur prescribes. The Supreme Court will need to put the matter to rest and answer the simple question “Is the relief of a declaratur as provided for in s 14 of the High Court Act lapse.”

In the case of Dliwayo & Others v Bere N.O and Others HH 164/24 Tsanga J traversed some of the conflicting authorities and like Maxwell J in the case of Nguluwe & Anor v Dewa (nee Nguluwe) & 4 Ors HH 387/2023 held that a claim for a declaratur prescribes. Both judges noted that later authorities of this court favoured the finding that a declaratur claim prescribes. Tsanga J noted that whether or not a declaratur prescribes depended upon the factual conspectus giving rise to the relief of the declaratur. This approach is understandable because the court in terms of s 14 of the High Court Act is required to enquire into and determine existing, future or contingent rights or obligations. The court may therefore in the enquiry  find that the facts giving rise to the claim for the declaratur occurred at a time which if the claim is subject of a valid claim at law, such claim would have prescribed. The learned judge opined that where the consequential relief would have prescribed, then where a declaratur sought is based on those facts, the claim for the declaratur should in such events be equally prescribed.

The judgment aforesaid do not however deal with the qualification or order in the same section to the effect that the court has a discretion to grant the declaratur notwithstanding that no consequential relief may arise therefrom. I must acknowledge that I may have held a different view in some cases that I have dealt with and not necessarily reported that a declaratory order prescribed. Where I did so, I must note that I did so without having appreciated the qualification in s 14 aforesaid which makes it inconsequential that the person seeking the declaratur may not be entitled to consequential relief which if sought would be subject to any available defences including prescription. It follows that the court is not time barred to declare a given Act of circumstances to be illegal or a nullity. It is however prescription barred from making a further declaration that for example the litigant is entitled to enforce the rights arising or consequent upon the declaratur granted. For example, the court may find that an illegality occurred but regrettably refuse to grant relief to the party which has been prejudiced because of prescription.

Leaning to the facts before the court there was no argument between the parties that as at 2011 the applicant was aware of the first respondent’s claim to the property. The argument at the end of the day was whether or not a declaratur prescribes my respectful view is that a declaratory order envisaged in s 14 of the High Court Act does not prescribe. However, what prescribes are claims which may be made consequent upon the declaratur made. I am to this extent not in conflict with the dicta of Georges Ja in the case Synfin Holdings Limited v Pickering 1982 (1) ZLR 10(SC) also quoted by Tsanga J in the Dliwayo case (supra) where the learned Georgies Ja stated in relation to the definition of “anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise” as follows:

“The definition is clearly broad enough to include claims for specific performance or for declarations of rights in relation to any given Act of circumstances.”

The question of whether rights or obligations arising consequent upon the declaration are subject to prescription. The question whether a declaratory order is prescribed is answered by holding that the making of the declaration does not prescribe.

The applicant sought declaration that he is declared to be the lawful allottee of the disputed is not possible to answer with exactitude yet it is not difficult to make if all facts relevant to the devolution of the property is placed before the court in a paper trail format. The second and third respondents did not file any opposing papers yet they are the authors of the dispute. For the second respondent to simple state that records show the applicant as the allottee is not sufficient. No agreement was produced to evidence the nature of the devolution of the rights in the property to the applicant nor the terms thereof. The first respondent also produced a deposit slip as done by the applicant for the same amount of $100.00. He also produced a form which showed that he was an allottee who however would be required to execute an agreement later on but no agreement was produced. Whether or not rights or obligations which are by law subject to prescription arise is a factual consideration. The court must enquire into and resolve the facts. The facts surrounding the property are seriously disputed and not capable of resolution on the papers. The declaration sought relating to the legal status of the property which is in my view not subject to prescription cannot be made on the papers. The matter can only be resolved holistically if evidence is led at trial. The authors of the impasse being the Ministries concerned can be compelled to give evidence clear the issues arising. It is a proper case to refer to trial so that an informed declaration may be made on the legal status of the property. Whether or not the applicant may vindicate the property is a separate enquiry.

I therefore dispose of this application as follows:

IT IS ORDERED

The application is referred for trial.

The applicant’s founding affidavit shall stand as the summons

The opposing affidavit of the first respondent shall stand as the appearance to defend.

The first respondent shall within ten (10) days of the date of this order file his pleas or other answer to the claim as the rules may provide.

The matter shall proceed hereafter in terms of the rules.

Costs shall remain in the cause.

Chitapi J: …………………………………………

Muvhami Attorneys, applicant’s legal practitioners

Tagwireyi & Associates, first respondent’s legal practitioners