MTSHIYA J: On 8 March 2011 I dismissed this application
on the ground that it was not properly before the court.
The legal
practitioners for the second to fifth respondents has since written requesting
for reasons for my ruling. These are they:
On 8 September
2010 the applicants (i.e. 59 Beneficiaries of Valley Lane Housing Scheme) filed
an application seeking the following relief:
“IT IS ORDERED
THAT:
- The
first respondent shall forthwith, that is to say, within two hours of
service of this order upon him or his agents, employees or invitees restore
possession and control of the fifty nine (59) stands as marked by the
stand numbers of Corowborough “B” Township Housing Project (hereinafter
called the stands) through the Deputy Sheriff of Harare, failure which the
Deputy Sheriff for Harare with the assistance of a sufficient number of
police officers from the Zimbabwe Republic police, Harare to forcibly
evict the first respondent and all those claiming occupation through him
from the said stands.
- The
first respondent shall pay the applicant's cost of suit on the scale of
legal practitioner client”.
The facts of the
case, as given by Garanewako Mfema (Mfema) who swore to the founding affidavit,
are briefly that in 1997 a company called Valley Lane Investments (Pvt) Ltd
(“the company”) entered into an agreement with the City of Harare (the second
respondent) to develop and service housing stands in Crowborough B Township,
Harare. The said company was to retain 40 stands for allocation to its
employees who were on the second respondent's waiting list. The applicants
herein were on the second respondent's waiting list. Acting through Paragon and
Keystone Real Estates, the company allocated stands to applicants. The
applicants signed agreements of sale for the stands and paid for the stands.
The second
respondent alleged that, in breach of agreement, the company had exceeded the
agreed allocation of stands by allocating to its employees 59 stands instead of
40 stands. The applicants allege that following negotiations between the
company and the second respondent, the second respondent waived its right to
cancel the agreement. The applicants
then proceeded to start developments on the stands.
In August 2009
the first and second respondents commenced the take over of the stands from the
applicants. The applicants moved out of the stands and now seek the relief
indicated on the first page of this judgment.
On 22 September
2010 the second to fifth respondents filed notices of opposition to this
application. In the notice filed by the second to fifth respondents the
following points in limine were
raised:
“POINTS IN LIMINE
- The
59 beneficiaries of Valley Lane Housing Scheme are not a legal entity.
There is nothing to show that there is a legal entity by this name. This
makes the application fatally defective.
- There
is no resolution which authorizes Garanewako Mfema to depose to the
applicants founding affidavit. He therefore is not duly authorized to
depose to the affidavit.
- There
are no affidavits from the other applicants to confirm that they associate
themselves with the deponent's averments.
- I
am advised that if the applicants were allegedly despoiled in 2009 then
this application is way out of time.
- The
application is not properly before this honourable court”.
The
above observations by the second to fifth respondents gained favour in my
examination of the papers before me. Furthermore, the fact that there is
nothing in the papers to show that Mfema had authority from the purported 59
beneficiaries to swear to the founding affidavit, meant the application could not
stand without a founding affidavit. Had the so called 59 beneficiaries
associated themselves in some way with Mfema, I would not have found the
citation of the applicant defective. That would have clearly indicated that the
application was by 59 named applicants.
That is not the case in casu
and worse still, Mfema did not provide proof that he had authority to represent
the other 58 applicants.
I
therefore found merit in the preliminary issue that was raised. I upheld same
and dismissed the application with costs on a legal practitioner and client
scale.
Nyikadzino, Kaworera & Associates, applicants'
legal practitioners
Kanokanga & Partners 2nd – 5th respondents' legal practitioners
