MATANDA-MOYO J:
Applicant seeks the following order
from this court;
“(1) That first
respondent shall approve the layout plan for applicant within ten (10) days of
service of this order, failure of which the Sheriff for Zimbabwe shall sign the
layout plan in approval for subdivision E of Arlington Estate, Harare
(2)
1ST respondent shall pay the costs of this application if he opposes
same.
(3)
2nd respondent, the administrative authority for the municipal area
of Harare, shall be bound by the provisions of this court order.
ALTERNATIVELY
(4)
1ST respondent shall allocate applicant, Co-operative Society,
another piece of land similar to the remainder of subdivision E of Arlington
Estate measuring 530,25 hectares, both in distance from Central Business
District and same value of location.
(5)
if first respondent fails to comply with paragraph 4 above, the first order
prayed for in paragraphs 1 to 3 shall become effective and operative.”
The brief facts are that applicant is a housing
co-operative duly registered under s 17 of the Co-operative Societies Act [Cap
24:05]. Such co-operative was registered on 26 January
2011. On 15 January 2006 applicant was allocated
certain piece of land, namely, subdivision E of Arlington Estate, measuring
530,25 hectares. Applicant produced layout plans for a housing project and
submitted the plans to first respondent's department of Physical Planning for
approval. The Department of Physical Planning refused to approve the layout
plans because applicant did not have a valid offer letter for that piece of
land. Applicant failed to produce documentation to the effect that it is the
lawful owner of that piece of land.
For applicant to succeed in its claim it has to show that
it is the lawful owner of the piece of land. Applicant has to provide proof of
such entitlement. Applicant has annexed to its application a letter dated 15
January 2006 titled “OFFER TO DEVELOP THE REMAINDER OF SUBDIVISION E OF
ARLINGTON ESTATE (530, 25 HECTARES)”. In that letter applicant was offered the
said piece of land on various conditions. Applicant is silent on whether it satisfied
the said conditions in that offer letter.
The land in question was acquired by the State in 2012.
When the above offer letter was made to the applicant it was not made by a
competent authority. The offer of 15 January 2006 is therefore invalid. Again
the offer was made to a non-existent co-operative. From the certificate of
registration annexed to applicant's founding affidavit, applicant was
registered as a co-operative on 26 January 2011. Applicant was not in existence
on 15 January 2006 and had no capacity to accept any piece of land. The
purported offer and acceptance of the piece of land can therefore not stand.
I agree with respondent's submission that the offer letter
that applicant was given was void and anything flowing from such an offer letter
is a nullity see McFoy v United Africa Company (1961)
3 ALL ER 1169 at 1172 where LORD DENNING said;
“every proceeding which is
founded on it is also bad and incurably bad. You cannot put something on
nothing and expect it to stay there. It will collapse.”
As applicant's claim is based on a nullity, it cannot
stand.
Applicant's argument on legitimate expectation cannot
succeed as it is trite that the law only protects those expectations which are
legitimate. See National Director of Public Prosecutions v Phillips 2002 (4) SA
60 (W).
I will not grant respondent costs as he is responsible also
for this confusion.
Accordingly the application fails and is dismissed with no
order as to costs.
Hungwe & Partners,
applicant's legal practitioners
Civil
Division of the Attorney General's Office,
respondents' legal practitioners
