MATHONSI J: This matter involves a long standing dispute
over ownership and development of stands situated on a piece of land known as
Newark of Hilton of Subdivision A of Waterfalls, Harare measuring 25 0532
hectares. The matter has got a chequered history and numerous court processes
have been filed by various parties claiming an interest in the property.
Historically, the land in question is registered in the name of one Tecla
Mvembe who holds title by deed of transfer number 4573/2000 On 6 November 2000,
Mvembe penned an agreement of sale with Max Management (Pvt) Ltd in terms of
which she sold 76 of the approximately 103 stands making up the property, on
certain terms and conditions. Prior to that Mvembe had obtained a permit from
the municipality of Harare authorising her to subdivide the property in terms
of general plan No SD/670/98.
In due course a roads and storm water drains layout plan was approved by the
municipality in terms of which the servicing of stands on the property was
commenced. Max Management (Pvt) Ltd sold some of the stands on the
land to certain individuals including members of the first respondent. It is
common cause that in pursuance thereof the holders of those units commenced
construction of houses and some of those houses have been completed. Generally
they took occupation of the units. It is also common cause that in accordance
with the approved plans, roads, water drains and water reticulation systems
were constructed which enabled individual holders to construct houses. It also
appears common cause that some of the stands, not only have water supply but
also have individual water meters installed by the second respondent following
due compliance with its requirements.
Disputes emerged between the various players and interested parties which led
to a lot of litigation aforesaid. One such court action led to an order being
granted by consent in HC 7312/2006 on 11 March 2008, a case involving the first
respondent as the applicant, Max Management (Pvt) Ltd and Mvembe and 2
others as respondents. The present applicant was not a party.
In terms of clause 3 of that consent order the first respondent was to service
and develop the 76 stands that had been sold by Max Management (Pvt) Ltd in
accordance with subdivisional permit SD670, I have referred to. That order was
granted despite the fact that on 19 September 2007 ( a date hotly contested by
the first respondent), the same Mvembe had purported to sell the same property
to the present applicant.
The applicant later sued Mvembe the surveyor general and the Registrar of deeds
in HC 7398/2011 seeking to enforce the sale agreement it had entered into with
Mvembe. Unfortunately the first respondent and the municipality were not cited
in that application and, as it was unopposed, an order was granted in default
on 14 September 2011 by MUTEMA J in the following:-
“IT IS ORDERED THAT:
1.
The first respondent, Tecla Mvembe be and is hereby ordered to sign all
transfer papers and give effect to transfer of certain piece of land situate in
the District of Salisbury called Newark of Hilton of subdivision A of
Waterfalls held under deed of transfer No. 4573/2000 to the applicant within
ten (10) days of the date of service of this order on her.
2.
Should the first respondent fail to sign the papers within the said period,
then the Deputy Sheriff, Harare be and is hereby authorised to sign all papers
on behalf of the first respondent to give effect to the transfer.
3. An
order be and is hereby granted directing the second respondent (Surveyor
general) to cancel any subdivision plan registered with him by the first
respondent in respect of the property referred in paragraph 1 above of this
order and recognise only the original boundaries of the property as provided
for in deed of transfer No. 4573/2000 to the registered subdivision.
4.
The first respondent, to pay costs of suit.”
The applicant did not waste time promptly advising the
surveyor general, by letter of 19 October 2011 to cancel the general plan in
terms of the court order. The surveyor general duly complied advising of such
cancellation by letter of 20 October 2011. The first respondent then approached
this court by urgent application in HC 10716/2011 seeking to intervene against
the order issued by MUTEMA J on 14 September 2011. In its founding affidavit
sworn to by Michael Chari on 28 October 2011, the first respondent stated in
paragraph 15:-
“15. The
applicant has been mobilising resources from its members and other
individual
stand holders alike to ensure that servicing of the property
proceeds
in earnest and as we speak, it is about to complete the
installation of the water reticulation system. Attached hereto as
Annexure
Q” and “R” are various invoices,
receipts and quotation highlighting the progress that the applicant is
achieving. Sadly, on the 25th October 2011, the applicant through
one of its Committee members, Syril Mupanguri, during his routine visits to
Waterfalls District Office, which is delegated by the fifth respondent with the
administration of the affairs within the District of Waterfalls and surrounding
areas, discovered that the General Plan CG2836 relating to the property had
been cancelled and that a delegation had been assigned to carry out evaluation
of the property in giving effect to the cancellation.”
The first respondent went on to attach the consent order I have referred to
which authorised it to service the stands in question. That application was
served the present applicant who went on to oppose it. On 18 November 2011
MWAYERA J granted a provisional order in favour of the first respondent in HC
10716/2011 the interim relief of which reads:
“Pending the determination of this case the following interim relief is made:
1.
The second respondent (Mvembe) or the Deputy Sheriff or his lawful deputy as
the case might be, be and is hereby interdicted from signing such documents
and/ or papers passing transfer to the first respondent (the applicant in casu)
of certain immovable property namely Newark of Hilton of Subdivision A of
Waterfalls situate in the District of Salisbury measuring 25,0532 hectares.
2.
Consequently, the fourth respondent be and is hereby interdicted from
accepting, approving such documents and/or papers as may be presented to him to
effect such transfer of the aforesaid property into the first respondent's
name.
3.
The third respondent (Surveyor general) is interdicted from implementing a new
plan in place of Plan CG2836.
4.
The fifth respondent is interdicted from implementing any plan brought into
effect by the third respondents in place of plan CG2836.”
The confirmation or discharge of that provisional order is
still to come. Be that as it may, the applicant has approached this court on an
urgent basis seeking a provisional order in the following terms:-
“TERMS OF THE FINAL ORDER SOUGHT
That you cause to this Honourable court why a final order should not be made in
the
following terms:-
1.
It is declared that the first respondent has no right to carry out any
development works on the piece of land described as Newark of Hilton of
subdivision A of Waterfalls situate in the District of Salisbury measuring
250532 hectares and which works are founded upon the existence of general Plan
CG2838 unless and until the order granted by the Court under HC 10716/2011 has
been set aside.
2.
The second to fifth respondents are ordered not to approve, supervise or
authorise any development works being carried out by the first respondent on
Newark of Hilton of Subdivision A of Waterfalls situate in the District of
Salisbury measuring 250532 hectares unless and until the order granted by the
Court under HC 10716/2011 has been set aside..
3.
The first respondent to pay costs of suit.
INTERIM RELIEF SOUGHT (SIC)
Pending the determination of case
No. HC 10716/2011, the following interim relief is granted:
1.
The first respondent is interdicted from servicing or developing stands on
certain immovable property namely Newark of Hilton of subdivision A of
Waterfalls situate in the District of Salisbury measuring 25 0532 hectares.
2.
The first respondent is interdicted from selling or advertising for and
accepting payments towards contributions for service charges for the stands on
the property Newark of Hilton of subdivision A of Waterfalls situate in the
District of Salisbury measuring 25 0543.
3.
The second and fourth respondents are interdicted from supplying water and
other services to the first respondent until the issue of the cancelled permit
and ownership of Newark of Hilton of subdivision A situate in the District of
Salisbury measuring 25 0532 (sic) hectares is finalised.
4.
The second, third and fifth respondents are interdicted from authorising
supervising or approving construction of roads and storm water drainages being
constructed by the first respondent on the property Newark of Hilton of
subdivision A of Waterfalls situate in the District of Salisbury measuring 25
0532 hectares.”
Among other documents, the applicant annexed the
provisional order of MWAYERA J in HC 10716/2011; the consent order of MAVANGIRA
J in HC 7312/2006 and a press statement published by the first respondent in
the Herald Newspaper of 27 November 2012 which reads in relevant part thus:-
“MILTON GARDENS ASSOCIATION PRESS STATEMENT
We wish to advise that Milton
Gardens Association is the holder of a Deed of Cession entered into and signed
by Max Management (Pvt) Ltd basically ceding its rights and
obligations as the Developer of a certain piece of land known as Newark of
Hilton of Subdivision A of Waterfalls, Harare.
To enable the Association to comply
with the conditions of the Subdivision permit and to ensure substantial
servicing of the development, individuals who have interest, right or title in
the stands listed hereunder are being called to confirm their interest, right
and title and make payments towards contributions for service charges.”
At the hearing of the matter both counsel took points in limine. Mr
Chadambuka for the applicant objected to the opposing affidavit of Syril
Mupanguri, the current chairman of the first respondent, on the basis that it
is not apparent from the papers that he has authority to represent the first
respondent in terms of its constitution.
Mr Nyamasoka for the first respondent took 2 points in limine
namely that the chamber application is defective as it does not comply with
Rule 241 of the High Court rules in its form as it does not set out concisely
the grounds of the application. Secondly, he took the point that the matter is
not urgent.
I do not consider it necessary to determine all the
preliminary points as I am of the view that the matter is simply not urgent. I
have painstakingly set out the history of the matter in order to demonstrate
that this is a long standing dispute which has been allowed to perpetuate
mainly because the parties have not shown any serious commitment to bringing
finality to the dispute. Instead they have contented themselves with filing one
application after the other without the slightest desire to bring the matter to
a close.
The applicant has been aware for quite some time of the consent order issued by
MAVANGIRA J on 11 March 2008 (HC 7312/2006) in which the first respondent was
allowed to service or develop the land. That order remains extant and nothing
has been done to set it aside. The applicant was served with the urgent chamber
application in HC 10716/2011 in which the first respondent made it clear that
it was busy servicing the stands and had almost completed the water
reticulation system. It however did not do anything about that activity.
Indeed the applicant has produced a press statement published on 27 November
2012, almost 2 months before this application was made, in which the first
respondent literally nailed its colours on the mast about the servicing of the
land. It is my myopic to say the least to even suggest that the press statement
was only brought to the applicant's attention on 22 January 2013 when it was in
the public domain that far back.
What this means is that the applicant has created this urgency in order to jump
the queue. Urgency which stems from a deliberate abstention from action is not
the kind of urgency contemplated by the rules. Kuvarega v Registrar general
& another 1998 (1) ZLR 188 (H) 193G.
In any event, there is nothing which the respondents are doing now which they
were not doing in November 2011 when the provisional order in HC 10716/2011 was
granted. The applicant elected to bid its time and must live with that
election. If it had sought finality of that matter it would have long been put
to bed by now.
I refuse therefore to deal with this matter as urgent. It
is accordingly dismissed with costs.
Munangati & Associates, applicant's legal
practitioners
Atherstone & Cook, 1st
respondent's legal practitioner
