Takashinga Kare Housing Pay Scheme v City of Harare & 2 Ors

### Preamble
Judgment No. SC 88/25
1
Civil Appeal No. SC 486/24
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REPORTABLE	(88)

TAKASHINGA     KARE     HOUSING     PAY     SCHEME

v

CITY     OF     HARARE     (2)     MINISTER     OF     LOCAL     GOVERNMENT     AND     PUBLIC     WORKS     (3)     YOUTH     IN    BUSINESS     TRUST

SUPREME COURT OF ZIMBABWE

UCHENA JA, CHITAKUNYE JA & MWAYERA JA

HARARE: 05 MAY 2025

Mrs R. Mabwe, for the appellant

C. Chibidi, for the second respondent

F. Nyangani with R.I. Musariri for the third respondent

No appearance for the first respondent

MWAYERA JA:

INTRODUCTION

This is an appeal against the whole judgment of the High Court (“court a quo”), which dismissed the appellant’s claim and ordered it to pay the first and third respondents’ costs on the legal practitioner and client scale.  After hearing submissions from counsel, the Court allowed the appeal in part and indicated that the reasons for judgment would be availed in due course. These are they:

FACTUAL BACKGROUND

The appellant is an unincorporated body or association of persons, capable of suing and being sued.  The first respondent is a local authority and body corporate, established in terms of the Urban Councils Act [Chapter 29:15] (“the Act”).  The second respondent, the Minister of Local Government and Public Works, is cited in his official capacity.  The third respondent is a duly registered trust in accordance with the laws of Zimbabwe, capable of suing and being sued in its own name.

The dispute in this case revolves around 100 stands allocated by the first respondent to the appellant. Sometime in 2014, the appellant identified a piece of land within Lot 2 of Subdivision B of Subdivision A of Willowvale, Mufakose, Harare (“the land”) and applied to the first respondent for authority to create stands for its members.  The application was granted in 2015, and one hundred stands measuring approximately 300 square meters each were created within the land as depicted on Plan Number TPX/WR/07/15 Mufakose Township, measuring 49 Hectares.

Through its members, the appellant proceeded to illegally occupy the stands, pending the finalisation of the requisite formalities with the first respondent.  In May 2017, and by a council resolution, the first respondent regularized the occupation of the stands, thereby formally allocating the said stands to the appellant, since the land was already zoned for residential purposes.  Upon request by the first respondent, the appellant paid US$120 000.00 as land intrinsic value and US$18 000.00 for Value Added Tax, thereby legally purchasing the said stands.

On 5 June 2020, the first respondent instructed the appellant to contract S. Mupedza Land Surveyors for survey work on the stands.  The land surveyor charged the appellant US                            $92 520.00.  However, the appellant only managed to pay US$45 000.00, leaving a balance of US$47 520.00.  In addition, the appellant acquired an Environmental Management Agency certificate for the said stands.

PROCEEDINGS BEFORE THE COURT A QUO

On 22 June 2022, the appellant issued out summons against the respondents under                            HC 4131/22 in the court a quo.  The appellant averred that the first respondent reneged on its obligations and instructed the land surveyor to stop the works which had already commenced.  Further, the third respondent made a claim regarding the stands, purporting that the second respondent had allocated the same to it. In respect of the claim made by the third respondent, the appellant alleged that it was the lawful owner of the said stands and that the allocation of the stands to the third respondent was null and void.  The appellant sought an order for specific performance against the first respondent, and if specific performance could not be granted, damages.

In response, the first respondent averred that it erroneously allocated the land which belonged to the Government of Zimbabwe; thus, the allocation was unlawful.  The first respondent took the position that the survey and servicing of the land was stopped due to the fact that the approval of the layout plan was erroneous.  The first respondent also averred that the land had been allocated to the third respondent by the State.

The case went to trial, where the appellant’s witness, Mr Ruzvidzo Chatima, testified that although the appellant initially occupied the land illegally, it was later legally allocated to it by the first respondent through a council resolution.  He conceded that the land is now state-owned, as there is a title deed for the land which indicates that the owner of the land is the Governor of the colony of Southern Rhodesia and his successors in office, who is now the President of Zimbabwe.  According to the witness, there was no council resolution revoking the allocation of the said stands.  He testified that it was the first respondent’s duty to allocate the land under its jurisdiction, whether State land or not.

The first respondent, through its witness, one Moreblessing Mudumo, testified that the land is registered under the Government of Zimbabwe; thus, it did not have the authority to dispose of or alienate State land without authority from the requisite Ministry.  He stated that in terms of s 205 of the Act, the first respondent has the power over State land to sell, and dispose of land that belongs to the State.  He further testified that he was not aware of any other plan used in the allocation of the stands to the third respondent.

The witness conceded that the defence given that the first respondent has the power to allocate State land contradicted its earlier defence that it has no power at all.  He further accepted that the piece of land falls under the jurisdiction of the first respondent. He also stated that the appellant was not formally allocated the stand as the regularisation process was not completed. The witness could not dispute that the Government has allocated the land in question to the third respondent.

The third respondent, through its witness N. Chasakara, led evidence that it was allocated the land by the State, which is the rightful owner of the property.  The witness testified that the third respondent in 2013 applied to the Ministry of Local Government Public Works and National Housing for residential stands on State land in Mufakose, but however was referred to another piece of land which belonged to the Council. The third respondent approached the first respondent, who accepted the application for residential stands, which led to permission being granted to carry out engineering designs in respect of water and sewer reticulation.

The third respondent proceeded to lead evidence to the effect that in June 2016, it received a Certificate of Compliance from the first respondent, but unfortunately, the appellant then occupied the piece of land, thereby forcing the third respondent to stop its developments. The witness further testified that, in 2017, after being advised that the land did not belong to the first respondent but to the State, they approached the Ministry of Local Government as the responsible authority for regularisation of the developments they had done.

The witness stated that they were given an offer letter in respect of the stands and paid the intrinsic value of the stands and fees for water. He further testified that the appellant’s allocation was rescinded by the first respondent, and the instruction for survey was also recalled. The third respondent then stated that it was impossible for the appellant to seek specific performance of the 100 stands as the land in question had already been surveyed and submitted to the Surveyor General’s Office for purposes of giving the third respondent a Title Deed.

At the end of the trial, judgment was then handed down in favour of the respondents. The court held that it was not in dispute that the piece of land in issue belonged to the State as evidenced by the Title Deed No 3034/60 dated 29 November 1960.  According to the court           a quo, it was not in dispute that the allocation of State Land is done by the second respondent, and the first respondent can only do the same upon approval from the second respondent in terms of s 205 of the Urban Councils Act.

According to the court a quo, the appellant was silent on the approval by the second respondent as required in subsection (3) of s 205 of the Urban Councils Act.  The court was of the view that, with no such authority or approval, the first respondent could not allocate, let alone regularize the occupation of the piece of land by the appellant.  The court a quo reasoned that the entire process was a nullity right from the beginning, and the whole process being a nullity, nothing could stand on it despite the legitimate expectation of the appellant.

Further, the court a quo held that the documents submitted before it showed that the piece of land was offered to the third respondent by the second respondent, the owner of the land. The court a quo found that, by a letter dated 23 April 2021 by the second respondent, the third respondent was offered 126 residential stands on the piece of land in question and by another letter dated 23 July 2021 addressed to the Regional Manager, ZESA, the second respondent confirmed the allocation of the stands to the third respondent.  The court held that the evidence before it proved that the third respondent and not the appellant was the rightful owner of the stands in issue. The court dismissed the appellant’s claim with costs of suit on the legal practitioner and client scale.

PROCEEDINGS BEFORE THIS COURT

Aggrieved by that finding, the appellant  noted the present appeal on the following grounds of appeal:

GROUNDS OF APPEAL

The court a quo misdirected itself both in law and fact by holding that the allocation to the appellant by the first respondent in May 2017, of One Hundred (100) stands within a certain piece of land called Lot 2 of Subdivision B of Subdivision A of Willowvale situate in the district of Salisbury as depicted on Plan Number TPX/WR/07/15 Mufakose Township measuring 49 hectares, was a nullity as it was not done in accordance with the law and was done without authority and approval from the second respondent.

The court a quo misdirected itself in ordering the appellant to pay the first and third respondent’s costs on the legal practitioner and client scale without providing any reasons for such a scale and, in any event, there was no basis for such an order of costs on the punitive scale.

RELIEF SOUGHT

WHEREFORE the appellant prays for an order that:

The appeal be and is hereby allowed with costs.

The judgement of the court a quo be and is hereby set aside and substituted with one

in the following terms;

The allocation to the appellant by the first respondent of One Hundred (100) stands within a certain piece of land called Lot 2 of Subdivision B of Subdivision A of Willowvale situate in the district of Salisbury as depicted on Plan Number TPX/WR/07/15 Mufakose Township measuring forty-nine (49) hectares be and is hereby declared valid.

The purported revocation of survey instructions to S. Mupedza Land Surveyors by the first respondent be and is hereby declared null and void and the appellant be and is hereby authorized to complete survey works on the One Hundred (100) stands within a certain piece of land called Lot 2 of Subdivision B of Subdivision A of Willowvale situate in the district of Salisbury as depicted on Plan Number TPX/WR/07/15 Mufakose Township measuring forty-nine (49) hectares.

The first respondent shall administer, control and manage the appellant’s survey works and developments on the One Hundred (100) stands within a certain piece of land called Lot 2 of Subdivision B of Subdivision A of Willowvale situate in the district of Salisbury as depicted on Plan Number TPX/WR/07/15 Mufakose Township measuring forty-nine (49) hectares.

Any purported allocation or sale of One Hundred (100) stands or any part thereof within a certain piece of land called Lot 2 of Subdivision B of Subdivision A of Willowvale situate in the district of Salisbury as depicted on Plan Number TPX/WR/07/15 Mufakose Township measuring forty-nine (49) hectares to the third respondent by either the first or second respondents or both be and is hereby declared null and void and of no force or effect.

The third respondent and all those claiming occupation through it shall vacate the One Hundred (100) stands within a certain piece of land called Lot 2 of Subdivision B of Subdivision A of Willowvale situate in the district of Salisbury as depicted on Plan Number TPX/WR/07/15 Mufakose Township measuring forty nine (49) hectares within ten (10) days from the date of service of this Order.

The first and second respondents shall pay costs of suits jointly and severally the one paying the other to be absolved.

SUBMISSIONS BEFORE THIS COURT

At the hearing of the appeal, Mrs Mabwe, counsel for the appellant, submitted that the main issue before the Court was whether or not the allocation of the land to the appellant was done in terms of the law. She submitted that the court a quo, in dismissing the claim, erred by relying on s 205 of the Act.  She submitted that s 205 (1) of the Act permits the first respondent to lease, sell, exchange or dispose of its own land or State land. Mrs. Mabwe relied on sections 205(1), 87, 88, 89 of the Act in arguing that the allocation of the land by the first respondent was valid.

According to counsel, under s 87 of the Act, the first respondent is permitted to make binding decisions which are effected through a resolution. Counsel submitted that where that resolution is to be set aside, the process is found under section 89 of the Act, that is, the resolution can be rescinded or altered and made known to the relevant Ministry. Mrs Mabwe argued that the second respondent could not allocate the land to the third respondent in light of the extant resolution.  She further argued that since the first respondent is permitted to make binding resolutions by the Act, for the land allocation to be revoked, the first respondent should have revoked the resolution first.

Further, counsel submitted that for the court a quo to have made a finding that there was failure to inform the second respondent, the respondents ought to have pleaded that due process had not been followed as provided under section 205 of the Act.  She contended that in their pleas, none of the respondents raised the issue. According to counsel, the failure to do so ought to have been taken as a concession to the relief sought on the basis of the pronouncement in Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 and provisions of r 37(9) of the High Court Rules, 2021.  She stated that with such an admission, the court a quo could not take the point that the allocation was invalid based on s 205 of the Act when there was no denial placed before the court.

On the issue of costs, Mrs Mabwe submitted that the court a quo erred by awarding punitive costs without any justification.  According to counsel, the court a quo ought to have stated the compelling factors which resulted in mulcting the appellant with punitive costs.  She submitted that the costs ought to have been on an ordinary scale.

Mr Chibanda for the second respondent submitted that the second respondent was going to abide by the judgement of the court.

Per contra, Mr Nyangani for the third respondent submitted that the court a quo, in determining the issue of validity of the land allocation, had to determine whether the actions by the first respondent were legal.  According to counsel, it was common cause that the land in question belongs to the State and that the appellant purports to derive its rights from an allocation by the first respondent, who is not the owner of the land.  Counsel submitted that the third respondent was allocated the land by the second respondent, who is the rightful owner.

Mr Nyangani, further, submitted that following the provisions under section 205 of the Act was the only basis upon which the first respondent could validly allocate State land to any person or entity. He also submitted that the court a quo correctly held that there was non-compliance with the law, thereby invalidating the allocation of the land to the appellant by the first respondent.  According to counsel, as long as the dictates under s 205 (3) of the Act were not complied with, the actions of the first respondent were a legal nullity. Counsel argued that there was no misdirection on the part of the court a quo.  He further argued that a resolution cannot override the law and cannot be lawful if it violates the law.

On the issue of costs, counsel conceded that the failure to give reasons for awarding punitive costs was an irregularity thus, the appeal ought to partly succeed with costs on an ordinary scale.

ISSUES FOR DETERMINATION

The issues for determination are as follows:

Whether or not the allocation of the stands by the first respondent to the appellant was a nullity.

Whether or not the award for punitive costs was justified.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the allocation of the stands by the first respondent to the appellant was a nullity?

The appellant’s contention is that the court a quo erred by finding that the allocation of the stands in question by the first respondent was a nullity as it was not done in accordance with the law.

It is pertinent to cite the provisions in contention. Section 205 (1) and (3) of the Act provides as follows:

“205 Estate development

(1) Subject to this section, a council shall have power and authority inside or outside the council area or in a local government area, the administration, control and management or which has been vested in the council, on its own land or on State land—

(a) to lay out and service any such land for residential, commercial or industrial purposes;

(b) to construct buildings on such land for residential, commercial or industrial purposes;

(c) in accordance with section one hundred and fifty-two, to sell, exchange, lease, donate or otherwise dispose of or permit the use of such land or buildings and improvements for residential, commercial or industrial purposes.

(2) Subject to this section, the council shall have power and authority to purchase or to hire land or building for the purposes of subsection (1).

(3) Before exercising any power or authority in terms of subsection (1) or (2), the council shall submit the proposal to exercise such power and authority to the Minister for his approval in terms of this section…” (Underlining for emphasis)

The import of the above provision is that the first respondent has the authority to alienate State land, which power can only be exercised with the approval of the Minister responsible.  It is an established principle that the use of the word “shall” in a statutory provision denotes the legislature’s intention of imposing a mandatory or peremptory obligation as opposed to the use of the word "may," which typically suggests a permissive or discretionary provision.

In Mukwaira v Minister of Lands, Agriculture, Fisheries, Water & Rural Resettlement                         SC 15/24, at p 15, the following pertinent sentiments were made:

“It is trite that where the word ‘shall’ is used it denotes a mandatory requirement.  Thus, the use of the word “shall” in s 3 (1) (c) is imperative – it denotes that the section is peremptory, and thus compliance with its provisions is mandatory.”

Similarly, in Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S) at 80 D-G, this Court held:

“It is the generally accepted rule of interpretation that the use of peremptory words such as “shall” as opposed to “may” is indicative of the legislature’s intention to make the provision peremptory. The use of the word “may” as opposed to “shall” is construed as indicative of the legislature’s intention to make a provision directory. In some instances, the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances no difficulty arises. The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.”

Further, in Sibanda & Anor v Ncube & Ors/ Khumalo & Anor v Mudimba & Ors SC 158-20 at p. 15, Patel JA (as he then was) held that:

“The broad test for ascertaining the true nature of a statutory duty was enunciated more than a century ago in the case of Howard v Bodington (1877) 2 PD 203, at 211: ‘… in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case on that aspect decide whether the enactment is what is called imperative or only directory…’”

In Chirosva Minerals (Pvt) Ltd v Minister of Mines and Ors 2011 (2) ZLR 274, the court held that the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings affected.  It can be deduced that the intention of the legislature was to limit the exercise of the first respondent’s power in alienating State land. The lack of a specific provision indicating the effects of the failure to comply does not take away the legislature’s intention to create a mandatory duty on the first and second respondents, which ought to be complied with.

It is not in contention that the appellant was allocated the land by the first respondent. The dispute is on the legality of such allocation. After examining the provision of s 205 of the Act, it becomes clear that the land allocation did not follow due process.  From a reading of section 205 of the Act, the first respondent’s powers in alienating State land are subject to approval by the second respondent. In the court a quo, the appellant made a concession that title deed No. 3034/60, dated 29 November 1960, indicated that the land belonged to the State. Nevertheless, the appellant maintained its position that the first respondent had the jurisdiction to alienate the said piece of land. This insistence that the first respondent had authority to allocate State land had no firm basis on which to stand as it is clear from the wording of the relevant statute, that authorization by the second respondent is a condition precedent to the first respondent’s allocation of State land.

In casu, it is clear that there was no approval from the second respondent as mandated by                        s 205 (3) of the Act, which absence vitiated the allocation of the land to the appellant. In Mcfoy v United Africa Co Ltd 1961 (3) ALL ER 1169 at 1172, Lord DENNING observed that:

“If an act is void, then, it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of court for it to be set aside. It is automatically null and void without more ado, although it is sometimes more convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

In that regard, the court a quo cannot be faulted for finding that the entire process was a nullity from the beginning.  This Court cannot interfere with this finding made by the court a quo.

The appellant’s argument that none of the respondents pleaded that its allocation was invalid on account of the fact that the first respondent did not follow the due process stated in s 205 of the Act does not change the complexion of the matter. In Silonda v Nkomo, SC 6-22, at p 19, it was stated :

“But, even if it had not been so pleaded, such a failure would, as was noted en passant by the court a quo, have been cured by the evidence led at the trial. This finding accords with both judicial precedent and the academic works of reputable legal writers.

In Mtuda v Ndudzo 2000 (1) ZLR 710 (H) at 719B- F, Garwe J, as he then was, held that where an issue is not raised in the pleadings but has been identified for determination at a pre-trial conference and fully canvased at the trial, even if an amendment is not moved, a court is entitled to adjudicate on it. This effectively means that a defective pleading will be cured by evidence.

To similar effect is Herbstein and Van Winsen’s Civil Practice of the High Courts of South Africa 5th ed by Cilliers et al at p 575-576 where it is stated that:

“Even where no amendments have been applied for, both trial and appeal courts have adjudicated on issues not raised on the pleadings but fully canvassed at the trial.”

Again du Plessis, supra, at p 3 footnote 10 writes that:

“A plaintiff who initially pleads the incorrect action may be allowed to amend his claim (see Hughes v Levy 1907 TS 276). But even if such a plaintiff did not amend his claim, the court can still award the action that he should have relied on, as long as its requirements were fully canvassed in evidence and the defendant would not be prejudiced by reliance on the incorrect action in the pleadings. …If the pleadings contain some of the customary allegations of a specific enrichment claim, and the defendant was alive to the basis of the claim, the defendant may not maintain a passive stance; he must raise an exception if he considers that the case has not been properly pleaded.” (My underlining for emphasis).”

The issue that due process was not followed as per s 205 of the Act was raised as a defence by the second and third respondents during trial.  The need for the first respondent to comply with the said section is a statutory requirement which is peremptory. In view of the above, the argument by the appellant lacks merit and ought to fail. The allocation of stands outside the statutory requirement as provided in the Act is a nullity.  To this extent therefore the court                    a quo correctly found that the second respondent was the owner of the land and had rights to allocate the stands whereas the first respondent could not validly allocate stands outside the provisions of s 205(3) of the Act.  The appellant’s appeal against the court a quo’s dismissal of its claim should be dismissed.

Whether or not the award for punitive costs was justified.

Regarding the second ground of appeal with the issue arising being whether or not an award of costs on a punitive scale was justified, this will not detain this court as both counsel conceded that the court a quo erred by awarding costs on a punitive scale without giving reasons.

It is common cause that the award of costs is at the discretion of the court.  However, where the court has awarded costs on a legal practitioner and client scale, it ought to justify the awarding of such costs.  AC Cilliers in The Law of Costs 2nd  ed p 66, classified the grounds upon which the court would be justified in awarding costs as between attorney and client, and they are as follows:

(a) Vexatious and frivolous proceedings

(b) Dishonesty or fraud of litigant

(c) Reckless or malicious proceedings

(d) Litigant’s deplorable attitude towards the court

(e) Other circumstances

In Dongo v Joytindra Natveral Naik & Ors SC 52-20 at p.11, the court held that:

“It is settled law that costs are at the discretion of the court. The award can only be set aside where the discretion was not exercised judiciously.  It is also settled that costs on a higher scale are granted in exceptional circumstances. The grounds upon which the court would be justified to make an award for costs on a legal practitioner and client scale include dishonest or malicious conduct, and vexatious, reckless or frivolous proceedings by and on the part of the litigant concerned.”

Punitive costs are awarded in circumstances where the court sees it fit to punish a party who has abused the court process.  In this case, there is no evidence that appellant was abusing court process. The appellant’s claim was not frivolous and vexatious as the appellant was merely trying to enforce its claim. The court a quo did not explain why it saw it fit to award costs on a punitive scale. There is also no evidence justifying the court a quo’s order of punitive costs.  This court agrees with both counsel that the court a quo erred in awarding costs on a punitive scale without giving reason.  The second ground of appeal therefore has merit and ought to succeed.

DISPOSITION

In view of the above considerations, it is apparent that the allocation of the stands to the appellant by the first respondent was a nullity.  The court a quo’s decision cannot be faulted in that regard. However, the court a quo erred in awarding costs on a punitive scale, in a situation where it was not proved that that award was warranted. Accordingly, we issued the following order:

The appeal succeeds in part.

The appeal against the court a quo’s dismissal of the appellant’s claim be and is hereby dismissed with costs.

By consent of the parties the judgment of the court a quo on costs on a legal practitioner and client scale be and is hereby set aside and substituted as follows:

“The plaintiff shall pay the first and third defendant’s costs of suit on the ordinary scale.”

UCHENA JA		:  		I agree

CHITAKUNYE JA	:		I agree

Chizengeya Maeresera & Partners, appellant’s legal practitioners

Gambe Law Group, 1st respondent’s legal practitioners

Nyangani Law Chambers, 3rd respondent’s legal practitioners