The
property at the centre of the dispute is Stand No.396A Dzivarasekwa
Township.
A
Mr Mazuru, who is now late, entered into an agreement of lease with the
respondent with an option to purchase the property. He later sold his
rights, title and interest in the property to a Mr Mukadiro. In April
2008, Mr Mukadiro sold his rights title and interest in the property to the
applicant. He had not yet taken title to the property. The applicant
paid the purchase price in full to Mr Mukadiro. The applicant and Mr Mukadiro
were advised to pay certain amounts to the respondent before cession could be effected. They
both paid the demanded amounts to the respondent. On 6 May 2008, they both
attended the respondent's offices at Rememberance Drive and they signed the
Memorandum of Agreement of Assignment.
The
respondent, through its Director of Housing, signed the Memorandum of Agreement
of Assignment. On 2 July 2008, the Director wrote to the applicant
confirming the assignment in her favour and attaching the signed Memorandum of
Agreement of Assignment and directing the applicant to take the said document to
the Housing Office in Budiriro for purposes of change of ownership into her
name. On 14 November 2008, the applicant received a letter from the
Director advising her that the cession was cancelled and that the transaction
was deemed to be null and void. The basis for the cancellation was that
the agreement of lease between the respondent and the late Mr Maziva had been
cancelled.
The
applicant then approached this court seeking to have the Memorandum of
Agreement of Assignment declared valid and binding upon the respondent, that
the decision by the respondent to cancel the cession be declared of no force or
effect and that the applicant shall remain vested with all rights which flow
from the cession until such time as the cession is cancelled in terms of the
law.
The
applicant brings the application in terms of section 4 of the Administrative
Justice Act [Chapter 10:28].
The
applicant's basis is that the respondent was functus officio when
it wrote the letter of withdrawal. When an authority decides that, to
withdraw its decision, the decision cannot thereby affect or abolish the rights
which its previous act has already created. She further avers that she was
not afforded the right to be heard….,.
The
respondent challenges the application on the basis that the cession is tainted
with illegalities on the basis that at the time of the death of Mr Maziva, he
had not passed any rights to Mr Mukadiro. Mr Mukadiro therefore did not have
rights to pass to the applicant. Secondly, the cession papers before the
court are between Mr Maziva and the applicant and yet there was no obligatory
transfer between the applicant and Mr Maziva. It further avers that the
court should exercise its discretion to declare the cession a nullity as it is
bad in law.
The
respondent also further avers that the respondent was justified and had
reasonable cause to not abide by the provision of section 3(2) of the
Administrative Justice Act [Chapter 10:28].
Functus Officio
When
an administrative official has made a decision which bears directly on an
individual's interests, it is said the decision-maker has discharged his office
or is functus officio. See L. BAXTER, Administrative Law (1984)…,. The author
states that if a public authority has made a decision which it afterwards
discovered to be based upon an error, of fact or law, it will be nevertheless
still be functus officio whether the error was
within or beyond its discretionary powers. See also Chirambasukwa v Ministry of Justice
1998 (2) ZLR 567 (S)…, where he stated:
“The
issue to be determined is the stage which the decision maker becomes functus
officio. In my view, he or she becomes functus officio when
his or her decision has been officially communicated to the person
affected. In my view, until the decision has been officially communicated
to the person affected, the decision maker can vary, revoke or suspend
it. However, when it is officially communicated to the person affected,
the point of no return is reached.”
In
casu, the decision by the respondent to cede the property
to the applicant having been communicated to her by the respondent's Director
of Housing in the letter dated 2 July 2008, a point of no return was
reached. The time to vary, revoke or suspend the decision had lapsed. The
applicant had acquired rights. The respondent could not therefore
unilateraly cancel the cession.
Right to be heard
It
is common cause that the respondent is an administrative body and that its
actions, in respect of this matter, were administrative acts.
The
applicant seeks redress in terms of section 3(1) of the Administrative Justice
Act [Chapter 10:28]. Section 3(1) of the Administrative Justice Act [Chapter
10:28] provides:
“(1)
An administrative authority which has the responsibility or power to take any administrative
action which may affect the rights, interests or legitimate expectations of any
person shall –
(a) Act
lawfully, reasonably, and in a fair manner; and
(b)
Act within the relevant period specified by law or, if there is no such
specified period, within a reasonable period after being requested to take the
action by the person concerned; and
(c)
Where it has taken the action, supply written reasons therefor within the
relevant period specified by law, or, if there is no such period, within a
reasonable period after being requested to supply reasons by the person
concerned.”
It
is the applicant's contention that she was never afforded an opportunity to
make representations. The applicant had a legitimate expectation to be heard
before a decision adversely affecting her vested rights was made. She
relied on the authorities of Kanonhuwa v
Cotton Company of Zimbabwe 1998 (1) ZLR
68 (H) and Taylor v Ministry of Education & Anor
1996 (2) ZLR 772 (S).
In
Taylor v Ministry of Education & Anor 1996 (2) ZLR 772 (S) it was
stated that the audi principle applies both
where a person's existing rights are adversely affected and where he has
legitimate expectation that he will be heard before a decision is taken that
affects some substantive benefit, advantage of privilege that he expects to
acquire or retain and which it would be unfair to deprive him without first
consulting with him.
The
respondent's contention is that it was justified and had reasonable cause of
not abiding by section 3(2) of the Administrative Justice Act [Chapter 10:28].
Section
3(3) of the Administrative Justice Act [Chapter 10:28] provides exceptions
where an administrative authority did not have to comply with the provisions of
section 3(1) of the Administrative Justice Act [Chapter 10:28]. Section
3(3)(b) of the Administrative Justice Act [Chapter 10:28] provides the grounds
under which an administrative authority can depart from the provisions of section
3(1) of the Administrative Justice Act [Chapter 10:28].
Three
reasons were advanced by the respondent to justify its departure from the
provisions of section 3(2) of the Administrative Justice Act [Chapter 10:28].
The
first one was that the transaction, that is the cession, was a legal nullity as
the applicant and Mr Mukandiro had no authority to represent the estate of Mr Mazuva. Secondly,
Mr Mukandiro did not have any rights at the time of the cession. No
Agreement of Sale was provided. Thirdly, there is no proof that the merx
was paid by the applicant to the respondent. The respondent's offer was
therefore induced by a fraudlent misrepresentation. It is a nullity and
the court cannot perpetuate a fraudlent transaction.
Section
3(3)(b) of the Administrative Justice Act [Chapter 10:28] provides:
“An
administrative authority may depart from any of the requirements referred to in
subsection (1) or
(2)
If ….,. -
(a)…,.
(b) The
departure is, under the circumstances, reasonable and justifiable, in which
case the administrative authority shall take into account all relevant matters
including:-
(i) The
objects of the applicable enactment or rule of common law;
(ii) The
likely effect of its action;
(iii) The
urgency of the matter or the urgency of acting thereon;
(iv) The
need to promote efficient administration and good governance;
(v) The
need to promote the public interest.”
The
position adopted by the respondent appears to show that it is not disputing
that it did not comply with the provision of section 3(1) of the Administrative
Justice Act [Chapter 10:28]. It is its position that the departure was reasonable
and justifiable in the circumstances as outlined above….,.
The
position is that the respondent's letter, wherein they advised the applicant to
take ownership, refers to a three-pronged cession. The reference to the
letter reads:
“Stand
No.396/1 Dzvivarasekwa Township Estate late D. Maziva to C.T. Mukadiro to C.Z.
Mandewo.”
It
is clear from the above that the respondent was aware of the sequence of the
cession. From the papers, the respondent has not been able to establish
that there was any misrepresentation of facts from the applicant. The
applicant was accompanied by Mr Mukandiro. This is confirmed by Mr Mukadiro
in the supporting affidavit that he deposed to.
As
regards the issue of payment, Mr Mukadiro also confirmed that he paid the
purchase price to the respondent. The applicant was also made to make some
payments in order for the cession to be effected - which she did. She
misplaced the receipt.
My
view is that even if the applicant had not paid the purchase price, it does not
constitute circumstances warranting a departure from the provisions of section
3(1) of the Administrative Justice Act [Chapter 10:28].
Once
a court makes a finding that an administrative authority failed to comply with
the provisions of section 3(1) of the Administrative Justice Act [Chapter
10:28] it will grant relief in terms of section 4 of the Administrative Justice
Act [Chapter 10:28]. Section 4(2) of the Administrative Justice Act [Chapter
10:28] provides, inter alia, for the confirmation
or setting aside of the decision concerned. My view is that the decision
be set aside in view of the fact that by the time the decision was made, the
respondent was functus officio and that the
respondent, as an administrative authority, was supposed to comply with the
provisions of section 3(1) of the Administrative Justice Act [Chapter 10:28].
In
view of the above, I will make the following order:
1.
The Memorandum of Agreement of Assignment which was issued by the respondent in
favour of the applicant on the 7th July 2008 be and is hereby
declared to be valid and binding on the respondent.
2.
The decision by the respondent to cancel the cession of Stand 396A Dzivarasekwa
Township to the applicant be and is hereby declared to be of no force or
effect.
3.
The applicant shall remain vested with all the rights which flow from the
cession until such a time as the cession is cancelled in terms of the law.
4.
The respondent shall pay costs of suit.
