Wealthbird Investments (Private) Limited V TOWN Clerk – CITY OF Mutare AND CITY OF Mutare

### Preamble
1
HMT 100-20
HC 216/20
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WEALTHBIRD INVESTMENTS (PRIVATE) LIMITED

versus

TOWN CLERK – CITY OF MUTARE

and

CITY OF MUTARE

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 21 November 2020 and 31 December 2020

Opposed Application

C Ndlovu, for the applicant

J. Zviuya, for the respondents

MWAYERA J: On 23 September 2020 the applicant private company (applicant) filed a court application for mandament van spolie praying for the following order:

“(a)	Respondents be and are hereby directed to and return to the applicant its property that was seized on 15 September 2020 consisting of eighty five bags of cement, damp course, reinforcement bars, two (2) wheel barrows, roofing timber, tent, sixteen (16) iron sheets, pick and shovels.

(b) 	The respondents are further ordered not to interfere with the applicant’s ownership possession and control of stand 5221 Mutare Township in Christmas Pass area except through legitimate legal process.

(c)	Respondents to pay the costs of this application.”

The application is opposed by both respondents herein.

Background

On 15 September 2020 the respondents municipal police went to Stand 5221 Mutare Township and destroyed applicant’s temporary structure on the pretext that applicant had no authority to construct any structures at the site. Applicant had no approved building plans to build and the structure was thus illegal. The land development at the stand was not sanctioned by the local authority. Respondents officials went on to destroy the structure and took the materials specified in the draft order as detailed in the prayer spelt out above. The applicant contends in its papers that such an action constitutes spoliation and then approached this court for relief. I will for convenience proceed to deal with the points in limine raised first.

Points in limine

Both respondents raised two preliminary points:

Fatal joinder

It was not necessary to cite first respondent because the acts complained of were not personally done by first respondent in his personal capacity. On that basis alone first respondent prayed for the dismissal of the application with costs on Attorney-client scale.

Jurisdiction

Respondents also contend that this court lacks jurisdiction in this matter given that the local authority, second respondent acted in terms of the Regional Town and Country Planning Act, [Chapter 29:12] in demolishing the illegal structure. Only the Administrative Court has exclusive jurisdiction in matters of this nature. Respondents also pray for the dismissal of the application with costs on a higher scale.

Parties’ submission on the points in limine

Mr Zviuya, for the respondents submitted that this application is a typical case of misjoinder where applicant cited a party unnecessarily. The joinder of first respondent by the applicant was driven by malice. First respondent did not personally carry out the acts complained of, it was reiterated by the respondents. Respondents cited the matter of Triangle Limited & Ors v Zimbabwe Sugar Milling Industry Workers Union and Others HH 74/16 and submitted that the joinder of first respondent inconvenienced him moreso where he had no personal interest.

On the aspect of jurisdiction, respondents’ counsel submitted that the relief sought by the applicant does not have jurisdiction in the High Court but in the Administrative Court. Respondents cited s 35 (2) of the Regional Town and County Planning Act and s 38 of the same Act providing for appeals against decisions made by local authorities. It was further submitted on behalf of the respondents that if the High Court deals with the application it would be tantamount to usurping the powers of the Administrative Court which is a specialist court. Respondents referred the court to the matter of Kabichi v Minerals Marketing Corporation of Zimbabwe. HH 38/18.  Applicant, it was vehemently added, was obliged to exhaust domestic remedies by appealing to the Administrative Court. Nyanzara v Mbada Diamonds (Pvt) (Ltd) HH 63/16 was cited by respondents. Alternatively applicant should have made an application for review to the High Court seeking review of the second respondent’s decision and cited the matter of Achipelago (Pvt) Ltd v Lugmer Liceneng Board 1986 (1) ZLR 146 Respondents urged this court to decline to entertain the application relying on the Administrative Justice Act [Chapter 10:28].

The applicant’s counsel, Mr Ndlovu, on the other hand submitted that the aspect of a misjoinder or non-joinder is not fatal to the cause. He cited the case of Wakatama and Others v Mudamombe SC 10/12 and Tel-One (Pvt) Ltd v Capitol Insurance Brokers (Pvt) Ltd HH 26/16. Applicant also cited r 87 of this court’s rules and contended that the citation of the first respondent is not fatal and does not warrant dismissal of the application. Applicant cited the matter of Moyo v Ncube & Ors 2008 (2) ZLR 333 (H).

On the aspect of jurisdiction, the applicant submitted that this court is a court of original jurisdiction with inherent power to deal with any matter throughout Zimbabwe. This court does not exercise jurisdiction in instances where its jurisdiction is specifically ousted. The applicant urged the court to deal with the application and proceed to settle the dispute between the parties herein. Applicants further moved the court to dismiss the two points in limine as both being misplaced.

Disposal of the points in limine

First respondent is cited as “Town Clerk-City of Mutare” and Mr Rueben Gumi in his opposing affidavit avers that he is the Acting Town Clerk and by virtue of that he is the Acting Chief Executive Officer of second respondent and because of the position, he represents the City of Mutare. It is common cause that what is cited in the papers is the office not an individual and whatever the Chief Executive does, he would be doing that on behalf of the City Council. He cannot be personally liable for anything he does for the office. Citing council and the chief executive in his official capacity might appear overzealous but it is certainly not fatal. To this extent therefore the citation is proper and there is no fatal joinder to talk about.

On the second point in limine on jurisdiction, the crisp point is that this application is for spoliation. The issue before the court is to adjudge the conduct of the respondents in taking the applicant’s materials without a court order. The respondents did not repossess the applicant’s stand, but they destroyed a structure and took away the applicant’s goods. In their opposing papers, respondents admit that what is to be decided by this court is the legality or otherwise of the action by the local authority. In that perspective this court has jurisdiction and that jurisdiction is original and unlimited unless it is specifically ousted. This equally applies concurrently with the exercise which other courts may have on those matters. It is my considered view that a court of inherent jurisdiction has default powers which it can exercise in the absence of express power and can deal with all areas of the law and all procedural matters involving the administration of justice. The paramount objective is to ensure that justice is done between the parties by ensuring further that due process of law is observed, proceedings are  (even in administration matters) conducted in accordance with real and substantial justice and this entails access to justice, than unnecessarily, placing boulders in the path of litigants in the name of specialisation of an arbiter. In this case the respondents failed to convince me that this court is specifically excluded or ousted by a statute or other law from hearing an application for spoliation order. Consequently the second point in limine is equally baseless and it is dismissed.

I will proceed to deal with the matter on the merits.

THE LAW

In the matter of Augustine Banga and 20 Others v Solomon Zawe Sc 54/14. Gwaunza JA (as he then was) spelt out the requirements of a spoliation as:

That the applicant was in peaceful and undisturbed possession of the thing and

That he was unlawfully deprived of such possession. The corollary of these

requirements constitutes valid defences, that is.

That application was not in peaceful and undisturbed possession of the things in question at the time of possession and

The dispossession was not unlawful and therefore did not constitute spoliation. See Botha and Another v Barret 1996 (2) ZLR 73 (S) 79E. See also Kama Construction (Pvt) Ltd v Cold Comfort Cooperative and Others 1999 (2) ZLR 10 (SC).

What the applicant has to only prove is that he was in possession of something and that there was a forcible or wrongful interference with his possession of that thing.  Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve the law and order and to discourage persons from taking the law into their own hands. See Chesveto v Minister of Local Government and Farm Planning 1984 (1) ZLR 248 (H) 250.

DISPOSITION

Most facts are common cause in this application. The respondents admit that they destroyed the applicant’s structure and took away the materials itemised by the applicant in its papers although respondents contend that the items are exaggerated. The uncontroverted patent fact is that the respondents took applicant’s materials and they did so because applicant had not sought the permission of the local authority to construct the structures nor did applicant have an approved building plan. It is also not strongly contested by the respondents that applicant was in peaceful and undisturbed possession of the materials at the time of their taking by the respondents, whether the applicant was in lawful occupation of the stand or not is not an issue in this matter and is reserved for another day. Why would the respondents serve the applicant with a notice if the applicant was not in possession of the stand and materials in question? The respondents were under the impression that statute, the Regional, Town and Country Planning Act, empowered them to destroy the structure of the applicant once a notice had been served on a party that the local authority perceives to be in breach of its by-laws and statutes.

Indeed section 35 and 38 of the Regional, Town and Country Planning Act, deals with powers reposed on the local authority to demolish or alter existing buildings and then whoever is affected by such execution to appeal to the Administrative Court. In casu the respondents did not repossess stand 5221 of Mutare Township Lands, it merely proceeded to serve a notice upon the applicant and proceeded to demolish the structure before hearing the applicant’s side. The respondents are the complainants, the arbitrator and the executioners of their own judgment. Section 35 of the Regional, Town and Country Planning Act, gives the local authority powers to demolish illegal structures, provided the local authority first and foremost follows due process of the law before an independent and impartial arbiter and get a demolition order which is executed by a designated authority, in this case, the Sheriff. To allow a local authority to use a notice as a legal process to interfere with an occupier of urban land would result in an absolute disregard of the rule of law and indelible right of a party to be heard before a decision which affects it or him or her is passed. The local authority being a local creature of statute must be the first one among the rest to magnify and respect due process than to take the law in its hands and dispossess a developer. See Dusabe and Another v City of Harare and Others HH 114/16. Sentiment by Dube J are pertinent and apply with equal force in this case, she stated as follows:

“…..Under no circumstances are government departments at liberty to unilaterally and arbitrarily demolish any structures in the absence of a court order authorising them to do so, whether the structures were built with approval of building plans, or layout plans or without complying with any other legal requirement.”

For these courts to allow that type of behaviour would result in total anarchy and disrespect of the law. It is trite that a municipal authority is obliged to go to court and lay its facts as to why a demolition order is being sought. All the allegations of found, impropriety of acquisition of the stand or want payment of purchase price as well as the notice would be among the evidence at the local authority’s disposal in taking a demolition order against an occupier. The occupier will be afforded an opportunity to respond and a court will determine the appropriate dispossession. I am satisfied that respondents failed to prove that they followed due process before collecting the materials from the applicant.

It is clearly apparent that the respondents were not armed with a court order when they demolished applicant’s structure, then collection of applicant’s property was thus palpably illegal. The court cannot bless such arbitrary conduct by the respondents. I am thus satisfied that the applicant has met all the requirements of a spoliation order and they ought to succeed.

COSTS

The respondents admit in their papers filed of record that they took applicant’s property and are still in possession of that material. The respondents clearly knew that they had no valid court order but nevertheless persisted with the notice of opposition. The applicant prayed for costs on an ordinary scale, I see no basis of not awarding such costs, the costs follow the outcome of the application.

The following order is granted.

Respondents be and are hereby directed to return to the applicant its property that was seized on 15 September 2020 constituting of:

Eighty five (85) bags of cement

Damp course

Reinforcement bars

Two wheel barrows

Roofing timber

Tent

Sixteen (16) iron sheets

Pick and shovel

The respondents are further ordered not to interfere with the applicant’s    ownership, possession and control of stand 5221 Mutare Township in Christmas Pass Area except through legitimate process.

Respondents to pay costs.

Gonese and Ndlovu, Applicant’s Legal Practitioners

Bere Brothers, Respondent’s Legal Practitioners