New Life Covenant Church v Harare Wetlands Trust & 6 Ors

### Preamble
Judgment No. SC 147/20
1
Chamber Application No. SC 346/20
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DISTRIBUTABLE	(138)

NEW     LIFE     COVENANT     CHURCH

v

HARARE      WETLANDS     TRUST     (2)     NEWLANDS RESIDENTS     ASSOCIATION     (3)     CITY     OF     HARARE     (4)     MINISTER     OF     LOCAL GOVERNMENT,     PUBLIC     WORKS     AND     NATIONAL     HOUSING     (5)     ENVIRONMENTAL     MANAGEMENT    AGENCY     (6)     MINISTER     OF     ENVIRONMENT,     TOURISM     AND     HOSPITALITY     (7)     UPPER     MANYAME     CATCHMENT     COUNCIL

SUPREME COURT OF ZIMBABWE

HARARE: SEPTEMBER 16, 2020 & NOVEMBER 02, 2020

G. Girach, for the appellant

F. Mahere, for the first and second respondents

IN CHAMBERS

UCHENA JA:	This is an application for condonation of applicant’s failure to comply with r 37(2) as read with r 38 (1) (a) of the Supreme Court Rules 2018 and extension of time within which to appeal.

FACTUAL BACKGROUND

The first respondent is a trust whose objective is to advocate for the protection and preservation of wetlands in Harare. The second respondent is a residents’ association whose objective is generally to act in any matter which concerns Newlands and residents of that residential area.

The first and second respondents applied to the court a quo for a declaratory order declaring that the development the applicant was undertaking on stand 18962Boundary Road, Newlands, Harare was unlawful. They also sought a prohibitory interdict to stop the applicant from carrying on with the illegal development. They, in their founding affidavits, stated that the applicant who is the owner of stand 18962 Boundary Road, Newlands, Harare, was building a church on a wetland without the necessary development permits. They claimed that the development would result in detrimental and irreparable harm to the environment. They contended that the development was unlawful as the City of Harare, the third respondent, had not issued a development permit in terms of s 24 (1) (d) of the Regional, Town and Country Planning Act [Chapter 29:12] authorising the applicant’s development. The respondents also argued that as the development was on a wetland, the applicant’s failure to obtain a permit from the Upper Manyame Catchment Council (seventh respondent) was a violation of s 46 (2) of the Water Act [Chapter 20:24].

The applicant opposed the application asserting that it had obtained the necessary development permit and attached proof in the form of a letter dated 9 May 2016 written by the City of Harare’s Director of Works.

The court a quo held that the letter was not a development permit in terms of s 24 (1) (d) of the Regional Town and Country Planning Act. It held that the letter was merely authorising a proposed change of use and did not grant permission for the development. It found that the respondents were entitled to the relief sought and accordingly declared the development unlawful. It also interdicted the applicant from continuing with the construction of the church until all necessary permits had been obtained.

Aggrieved by the court a quo’s decision, it filed a notice of appeal in this Court under Case No. SC 01/20.  However, the notice of appeal though timeously filed was not timeously served on the Registrar of the High Court and other parties. In view of its failure to successfully note the appeal, the applicant eventually withdrew it on 23 July 2020 being the date that had been set down for the hearing of the appeal. It thereafter filed this application for condonation and extension of time within which to file a notice of appeal.

ISSUES FOR DETERMINATION

Whether or not the extent of the delay and the explanation given for it are reasonable?

Whether or not the applicant has prospects of success on appeal?

SUBMISSIONS BY THE PARTIES

Mr Girach for the applicant submitted that the judgment of the court a quo was handed down on 11 December 2019 and the applicant filed its notice of appeal on 7 January 2020. He further submitted that following the handing down of the judgment, a copy was made available to it. He stated that this, however, coincided with the applicant’s Christmas break which commenced on 13 December 2019. Its Board was not in a position to seek legal advice. Counsel for the applicant stated that the applicant opened its offices on 2 January 2020 whereupon the Board deliberated on the issue and on 5 January 2020 instructed their legal practitioners to file a notice of appeal.

Mr Girach submitted that when the applicant attempted to file its notice of appeal on 6 January 2020, it was told that its name on the notice of appeal was different from that on the judgment appealed against. He further averred that the applicant approached the court a quo to redress the issue and managed to get a corrected copy which enabled it to file a notice of appeal with this Court on 7 January 2020. It, however, did not serve the notice of appeal on the Registrar of the High Court and other parties timeously. Counsel submitted that the late service was purely an administrative error on the part of the applicant’s legal practitioners caused by the pressure of the opening of a new year.

Counsel for the applicant further submitted that its intended appeal has prospects of success. He submitted that it will be argued on appeal that the court a quo erred in not finding that the respondents had not exhausted domestic remedies available to them. He further submitted that it will be argued on appeal, that the court a quo, ought to have taken into account, that there was a matter pending before the Administrative Court ACC 19/19 between the same parties on the same subject matter.  He contended that the respondents had pursued a domestic remedy in the Administrative Court under Case No. ACC 87/19 filed on 20 December 2019 in which the respondents sought to challenge the development permit issued to the applicant. He further submitted that, the respondents ought to have waited for the outcome of the matter in the Administrative Court and that the court a quo had usurped the powers of the Administrative Court when it, presided over the matter placed before it by the first and second respondents.

Mr Girach submitted that the court a quo ought to have found that there were disputes of fact and that a clear right had not been established. He also submitted that the court a quo erred in finding that the applicant had not obtained a development permit as required by s 24 of the Regional, Town and Country Planning Act and that it was to comply with s 46 (2) of the Water Act. He argued that the respondents will not suffer any prejudice if the application is granted.

Ms Mahere for the first and second respondents submitted that the applicant confirmed that it received the corrected judgment within time to file the appeal timeously and that the explanation of “administrative errors and time constraints” was not reasonable in these circumstances. She submitted that this was aggravated by the fact that the legal practitioner who was handling the matter did not depose an affidavit to explain why he or she failed to monitor the clerk to ensure timeous service on the Registrar of the High Court and other parties.

She further argued that there was no explanation why the application for condonation for non-compliance was not made soon after the filing of the notice of appeal. She averred that the applicant waited from 7 January 2020 when the notice of appeal was filed till the hearing date on 23 July 2020, six months later, when it withdrew the appeal and a further period of three weeks till 13 August 2020, before lodging the present application.

Counsel for the first and second respondents argued that the applicant’s appeal has no prospects of success, as the applicant did not during the hearing of the matter before the court a quo, produce a development permit issued by the third respondent in terms of s 24 of the Regional Town and Country Planning Act. She submitted that it is unlawful for the applicant to commence developments on its stand without a development permit issued in terms of s 24 of the Regional Town Country and Planning Act. She argued that the applicant should also have obtained a water permit before building on the stand in question. Ms Mahere further submitted that the applicant only got a development permit on 5 December 2019 long after the matter had been argued before the court a quo on 25 November 2019 after which judgment was reserved. She submitted that the court a quo, therefore, correctly held that the applicant was developing on stand no 18962 without a development permit as the development permit had not yet been granted at the time the case was brought to court and was argued before it.

Counsel for the first and second respondents further argued that the argument that the first respondent did not exhaust domestic remedies is misplaced because the court a quo had jurisdiction to entertain the application in terms of its original and inherent jurisdiction.

Ms Mahere contended that there were no disputes of fact as the court a quo referred to a report by the applicant’s expert who accepted that the property in issue was a wetland. She further contended that the court a quo took a robust approach in determining the matter in light of the alleged material disputes of fact and could not be faulted in that regard. She submitted that the court a quo correctly held that what was issued in terms of s 49 of the Regional, Town and Country Planning Act was an authorisation for change of use of the land and not a development permit in terms of s 24 of the same Act. Thus, the argument that the court a quo refused to acknowledge the permit is not correct. She further submitted that the applicant had to obtain a water permit because the land in question is a wetland. In view of the above, she submitted that the applicant has no prospects of success on appeal and the application should be dismissed with costs.

In his reply Mr Girach for the applicant did not dispute that the applicant obtained a development permit on 5 December 2019.

THE LAW

An application for condonation must satisfy certain legal requirements before the court can grant the indulgence sought. In the case of Bessie Maheya v Independent Africa Church SC 58/07, Malaba JA (as he then was) said the following:

“In considering applications for condonation of non-compliance with its Rules, the Court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefore; the prospects of success on appeal; the importance of the case; the respondent’s interests in the finality of the judgment; the convenience to the Court and the avoidance of unnecessary delays in the administration of justice.” (emphasis added)

APPLICATION OF THE LAW

EXTENT OF THE DELAY AND REASONABLENESS OF THE EXPLANATION.

The judgment of the court a quo was handed down on 11 December 2019. The 15 day period within which to file the notice of appeal lapsed on 7 January 2020. The applicant filed the notice of appeal on 7 January 2020 but failed to serve it on the Registrar of the court a quo and other parties on time. The applicant submitted that this was due to administrative errors mainly that it had to ask the court a quo, to correct its judgment which had an error. A perusal of the record shows that this error was corrected whilst the applicant was still within time to note its appeal. The applicant knew that it had not served its notice of appeal on the Registrar of the High Court and other parties on time but did not take corrective action until 13 August 2020, almost 7 months later when it filed its application for condonation and extension of time within which to note an appeal.

The explanation given is not reasonable considering the time taken to redress the non-compliance and the fact that the legal practitioner in charge of the case did not depose to an affidavit to admit and explain the fault. In United Refineries Limited v The Mining Industry Pension Fund & Ors SC 63/14, Gowora JA (as she then was) quoted with approval the remarks made in Diocesan Trustees, Diocese of Harare v Church of the Province of Central Africa 2010 (1) ZLR 267 at 277F- 278B where Malaba DCJ (as he then was) stated that:

“Although in argument Mr Zhou suggested that the failure to comply with the relevant rules was wholly attributable to the respondent’s legal practitioners, there was no admission of negligence by the legal practitioner who deposed to the opposing affidavit on behalf of the respondent on 29 September. One cannot consider absolving the respondent from the consequences of lack of diligence committed by its legal practitioners when there is no suggestion in its papers that the “oversight” was that of the legal practitioner. It would have been after the responsible legal practitioner had filed an affidavit admitting fault and explaining in some detail what happened, that the judge would be in a position to decide whether the respondent should not be visited with the sins of its legal practitioners. Where no factual basis for making such a distinction of culpability has been provided, the judge would have no right to draw it. It must follow that without an affidavit from the person responsible for the “oversight” admitting fault and explaining the circumstances under which he or she overlooked the rules, one is at a loss for the reason why it found it necessary to state in the opposing affidavit that an “oversight” on the part of the respondent was the cause of the non-compliance.”

Further, in Meintjies v H.D Combrinck (Edms) Bpk 1961 (1) SA 262 at 264, it was held that whenever an appellant realises that he has not complied with a rule of the court, he must apply for condonation without delay. The applicant did not make its application without delay.

In the case of Ganda v First Mutual Life Assurance Society SC 01/05, the court held that it is not enough for one seeking condonation to simply explain the delay in its failure to comply with the rules in the main appeal but that the applicant should also explain the delay in seeking condonation. See also Saloojee and Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138H.

PROSPECTS OF SUCCESS.

The test of prospects of success on appeal is an assessment of whether or not a different court may arrive at a different finding than the court a quo as held in S v Smith 2012 (1) SACR 567 (SCA). Also see Essop v The State 2016 ZASCA 114 at 6.

The applicant argued that the High Court usurped the powers of the Administrative Court by determining issues which were before the latter. A perusal of the record shows that the first and second respondent’s application for a declaratur and a prohibitory interdict was filed way before the main matter in the Administrative Court under ACC 87/19 which was filed on 20 December 2019 had been filed. What is worth noting is that the respondents sought a declaratur as part of their relief which relief can only be granted by the High Court.  The Administrative Court is a creature of statute whose jurisdiction is provided for by the Administrative Court Act [Chapter 7:01]. As a creature of statute it can only act within the confines of its enabling Act. The Administrative Court Act does not give the Administrative Court jurisdiction to entertain an application for a declaratur. Section 4 of the Administrative Court Act which provides for its jurisdiction reads as follows:

“4 Jurisdiction, powers and authority of Court

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

The Court may, in relation to any matter referred to it in terms of this Act or any other enactment—

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

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

I am satisfied that the court a quo did not usurp the powers of the Administrative Court because the relief sought by the respondents exclusively fell under its jurisdiction. The court a quo has jurisdiction to issue a declaratur in terms of s 14 of the High Court Act [Chapter 7:06]. Therefore, this argument has no prospects of success.

The applicant raised other issues but in my view, the nub of the matter is whether or not the applicant was granted a development permit before it commenced development on its stand.

Section 24 of the Regional, Town and Country Planning Act provides for control of development as follows:

“24 Control of development

(1)Unless permitted in terms of a development order and subject to this Act and any such development order, no person shall carry out any development, other than development which—

…

(d)is carried out in accordance with the terms of a       permit.” (emphasis added)

This provision establishes that development on the applicant’s stand could only have lawfully started after the issuance of a development permit. The fact that the applicant obtained a development permit on 5 December 2019 long after it had started development on the stand which led to the first and second respondents seeking a declaratur in the court a quo is proof that it had unlawfully started developments on the stand. Any development which is commenced before obtaining a development permit is unlawful. The applicant insisted that it had obtained the permit in question through a letter dated 9 May 2016 written by the Director of Works. The court a quo held that, that letter was not a permit in terms of s 24 (1) (d) of the Regional, Town and Country Planning Act which authorises development. It is clear that the finding of the court a quo that the letter was authorising a proposed change of use of the land in terms of s 49 (3) and (4) of the Act is correct. The provisions of s 49 (3) and (4) read as follows:

“49 Use and disposal of land acquired

(3) Notwithstanding an operative master plan or local plan or an approved scheme or the terms of any permit or any approval issued in terms of Part III, IV or V of the repealed Act, the Minister may authorize the use of any reserved land for a purpose other than that for which it was so reserved…

(4) Notwithstanding an operative master plan or local plan or an approved scheme or the terms of any permit or any approval issued in terms of Part III, IV or V of the repealed Act, land which has been acquired by an authority for public purposes in terms of this Act or the repealed Act may, with the consent of the Minister, be transferred free from any restriction limiting the use of the land to public purposes…”

The letter itself was titled “Proposed change of reservation on Stand 18692 Harare Township from Primary School to School and Church/ Conference Centre”. It is clear that the applicant did not have a development permit authorising it to commence developments on stand 18962. It cannot therefore be said that the court a quo erred when it granted the declaratur and the prohibitory interdict.

In view of the illegality of the development the court a quo lawfully interdicted the applicant from continuing with development until all necessary permits for the development have been obtained. I, therefore, find that the applicant has no reasonable prospects of success on appeal.

The extent of the delay is inordinate and the explanation given by the applicant is unreasonable. The submissions of the applicant on its prospects of success in the intended appeal are devoid of merit. There is no reason why the costs should not follow the result.

The application is accordingly dismissed with costs.

Phillips Law, Applicant’s Legal Practitioners

Zimbabwe Lawyers for Human Rights, 1st and 2nd respondents’ legal practitioners

Kanokanga & Partners, 3rd respondent’s legal practitioners.