CHEDA AJ: This is an application for review of the decision made by the City
of Bulawayo (the respondent) against the applicant.
The applicant applied for, and was allocated an industrial stand by the
respondent on 27 January 2011. The stand was number 15357, Kelvin North,
Bulawayo.
The respondent spelt out the terms and conditions attaching to the allocation
of the stand. The relevant conditions can be summarized as follows.
1. The purchase price was $85
000,00 (eighty five thousand dollars).
2. The deposit of $21 250,00
had been paid.
3. The balance and interest
was to be paid in three equal instalments payable, four, eight and twelve
months from the date of the agreement.
4. The purchaser was to
comply with the building conditions, that is building in the value of $425 000
to be commenced within 6 months and completed within 24 months of the date of
sale.
5. Plans were to be submitted
to the respondent prior to any work being commenced.
6. The building was to be
used solely for the warehousing of building materials.
7. During the period of the
lease, or five year period, leasing or selling any part of the property was
prohibited.
8. No persons whatsoever were
allowed to reside on the premises without the written consent of the
respondent.
The agreement also provided that
if the purchaser breached any conditions the respondent could demand the full
balance of the purchase price if it elected to compel performance, or cancel
the sale.
In his founding affidavit the applicant says he entered into the agreement with
the respondent on 27 April 1998. He carried out certain developments,
that is, constructed a durawall, in 2002, connected water in 2005, cleared land
while building plans were processed. He said at some stage it appeared
the respondent repossessed the stand from him without advising him. In
2011 he noticed that there were people on the stand. They claimed to have
bought the stand from a Mr Khumalo for $45 000,00. He was told that a
resolution of the respondent would be made on the stand and a letter would be
sent to him. He kept on enquiring when the respondent's council would
sit, and in November 2011 the respondent resolved that the repossession of the
stand was irregular and was set aside. He was advised by letter dated 9th
January 2012 that it was allocated back to him.
He said he was now approaching the court because the respondent has rescinded
its resolution and repossessed the stand for the second time.
The applicant gave the following as his grounds for review of the respondent's
decision;
(1) That he should have been given an
opportunity to defend his title to the stand;
(2) That he would persuade the respondent that
he had complied with the agreement; and
(3) That he had a right to be heard before the
drastic decision was made.
The respondent opposed the application on the basis that
the applicant had not complied with the building clause of the agreement, that
is, building the structures within the stipulated period and that applicant has
not shown that any plans were approved. Respondent contends that a letter
was sent to the applicant at the address he provided but he took no heed of the
notice letter. Applicant had previously been given an extension of 12
months from June 2006 to 31 May 2007.
A report was submitted to the respondent in July 2009
showing that there was no development on the property. Applicant was
advised by yet another letter to the same address. Respondent says after
the cancellation of 7th June 1998 the stand was allocated to another
person. This other person started developments on the stand. The
respondent says the applicant has failed to develop the stand for a period of
14 years.
Respondent says the resolution of 2nd November
2011 to cancel the repossession of the stand was erroneous. A point was
raised, that once the repossession was cancelled, the allocation was validated.
The respondent met and rescinded its resolution to cancel repossession in
January 2012. This it said, was done in terms of section 89(1)(b) of the
Urban Councils Act Chapter 29:15 which empowers it to make such a decision
where necessary. The respondent submitted that what was not proper was
the respondent's resolution of 2nd November cancelling the
repossession, hence its correction.
It persisted in the submission that its decision was proper
as the applicant failed to comply with the provisions of the agreement.
The applicant's failure to comply with the above agreement is not
disputed. The applicant, having failed to comply, the stand was allocated
to someone who started construction on the property. The applicant's
argument that he was not afforded an opportunity to defend his entitlement to
the stand cannot succeed because there is proof of correspondence sent to him
as notices to the address provided by himself at the time of signing the
agreement. He admits seeing the letters about the resolutions sent to the
same address. Nowhere in his papers or submissions does he even suggest
that he complied with the agreement. If he had tried to comply he does
not say how someone else purchased the stand and started developments on it in
his absence and without seeing that someone else was developing the stand.
It is not disputed that for the 14 year period referred to
by the respondent the applicant failed to develop the stand, although he had
been given only 24 months. There was nothing wrong with the respondent
reversing its decision as this is permitted by section 89(1)(b) of the urban
Councils Act. The applicant, having failed to comply for so long has no
good reason to complain about the cancellation.
He was the author of his problems and cannot now blame the
respondent for the loss of the stand. The respondent's decision was in
terms of the conditions set in the agreement and there is no basis for alleging
any irregularity that would justify setting the decision aside on review.
The application for review is dismissed with costs at
attorney and client scale.
Messrs Dube-Banda Nzarayapenga, applicant's
legal practitioners
Messrs
Coghlan & Welsh, 1st
respondent's legal practitioners
