Civil
Appeal
CHITAKUNYE
J:
This
is an appeal against the judgment of the magistrate sitting at Harare
in which he granted an order for the eviction of the appellants from
certain premises owned by the Government.
The
appellants are retrenched or retired civil servants who occupied
houses situate in the Messengers' Camp in Highfields, Harare.
The
respondent is the Minister responsible for the Ministry that leased
houses in question to the appellants.
During
the early years of the appellants' occupation of the houses, the
respondent caused them to sign lease agreements. As time progressed
the appellants continued occupying the houses without signed lease
agreements. They were now statutory tenants.
As
the appellants were no longer civil servants, the respondent later
wrote letters demanding that the appellants vacate the houses they
were occupying. The appellants resisted the eviction and did not
comply with notices of eviction that were subsequently issued out by
the respondent.
In
2006, the respondent issued summons for the eviction of each of the
appellants and whoever was claiming occupation of the houses through
them.
The
appellants' plea was to the effect that they had been promised that
the houses would be sold to them and that they were thus willing to
purchase the houses. In the alternative, the defendants contended
that they had been promised alternative suitable accommodation in the
event of being evicted from their current houses. They thus demanded
to either be sold the houses or to be provided with alternative
suitable accommodation.
The
appellants' defence in the court a
quo
was basically that they had a legitimate expectation that the houses
will be sold to them as sitting tenants or suitable alternative
accommodation will be provided by the Government in terms of what
they said was Government policy.
The
respondent disputed that hence the matter was referred to trial.
At
the time of trial in 2007 the appellants had lived in the houses for
periods ranging from 10 to 19 years.
The
issues for determination were basically on the respondent's right
to evict the appellants and whether the appellants had any legitimate
expectation that the houses will be sold to them or alternatively
that they should be provided with other suitable accommodation.
The
trial magistrate ruled that the defence of legitimate expectation
could not avail the appellants as such a defence only applied to
procedural rights such as the right to be heard and not on
substantive rights such as that the respondent be ordered to sell the
houses to the appellants or to provide them with suitable alternative
accommodation.
The
magistrate's decision was premised on the fact that the appellants
had been insisting that respondent should sell the houses to them or
provide them with alternative accommodation to buy failure of which
they would not vacate the houses.
In
as far as the trial magistrate understood the appellants to be
resisting eviction on substantive rights and not procedural rights,
he cannot be faulted. Besides the pleadings that have already been
referred to, the appellants' witness, Nyasha Masawi, confirmed as
much. Under cross examination the witness confirmed that upon
receiving letters to vacate they went and saw the Minister seeking to
be provided alternative accommodation. Upon the Minister's verbal
promise to organise alternative accommodation for them, they left. He
concluded by saying that: “we expect to be given stands to move
to.”
In
his closing submissions, in the court a quo, appellants' counsel
reiterated the appellants' stance that the legitimate expectation
the appellants were expecting was for these houses or alternative
accommodation to be sold to the appellants. He thus asked court to
order the disposal of the houses to the appellants.
In
written submissions made at the court a quo's request, counsel
repeated the same when he said that: “the delay in evicting the
defendants after the expiry of the leases and the promises of
disposal cemented defendants' legitimate expectation of disposal of
the houses to them as sitting tenants.”
Counsel
further argued that: “it is the duty of the Ministry of local
government, public works and national housing to house the citizens
of Zimbabwe rather than evict them like what they want to do in this
case. if they are not prepared to dispose of these houses to the
defendants it is only just and equitable to have plaintiff hear the
side of defendants story in a hearing and map the way forward rather
than evict them. They should then afford the defendants the
procedural right of legitimate expectation that is available in our
law.” p26
It
was clear that the rights the appellants were craving for pertained
to substantive and not to procedural rights. They wanted to be sold
the houses. The trial magistrate having found that the defence of
legitimate expectation is available only in instances of procedural
rights concluded that since the appellants were seeking substantive
rights, their defence was untenable.
The
appellants' grounds of appeal were couched as follows:
1.
The learned magistrate in the court a quo erred by holding that
courts cannot interfere in policy matters holding that they are
solely for the Government, failing to take into account the basic and
rational for Administrative Law is to exert legal control over the
way in which administrative authorities exercise their functions in
order to ensure that these authorities do not exceed or abuse their
powers. The law promotes effective use of administrative power at the
same time providing protection against misuse of power.
2.
The learned magistrate in the court a
quo
erred by holding that long stay in Government house does not impute
ownership failing to take into account the circumstances that led to
the long stay. Due consideration was not given to the undisputed fact
that the long stay was caused by the respondent's assurances. The
appellants have been staying in the houses for a period ranging
between 10 - 20 years, was a result of Ministerial and political
promises that they were in the process of disposing the houses to the
appellants.
3.
The learned magistrate in the court a
quo
erred by overlooking the extent to which respondents had gone in
promising appellants that they were going to buy the houses they were
occupying. Respondents had up to present day registered the
appellants' names with City of Harare for the payment of rates,
water and electricity bills. According to appellants such actions
legitimatized their expectations that the houses were going to be
sold to them.
4.
The learned magistrate in the court a
quo
erred clearly misdirected himself, thus his analysis of the matter
can successfully be challenged.
Before
determining whether the magistrate in the court a
quo
erred or not, it is pertinent to appreciate the doctrine of
legitimate expectation.
In
Metsola
v
Chairman, Public Service Commission & Another
1989 (3) ZLR 147 (SC) at 155F-H, Gubbay
JA (as he then was) had this to say on legitimate expectation:
“Mr.
Gillespie laid much emphasis on the legitimate expectation test
introduced by Lord DENNING MR in Schmidt
& Anor v
Secretary
of State for Home Affairs
[1969] 1 ALL ER 904 (CA) at 909C and upheld by the Privy Council in
Attorney
General of Hong Kong v
N g Yen Shiu
[1983] 2 ALL ER 346(PC) at 350 a-j. Yet this catch-phrase is no more
than a manifestation of the duty to act fairly. It is clearly
connected with the “right to be heard”. It does not constitute an
additional ground for the application of the audi
alteram partem
principle. In essence it means no more than that the decision-maker
must act fairly and apply the principles of natural justice before
reaching any decision that will adversely affect the
legitimate expectations of the aggrieved party.”
In
Matake
& 17 Others v
Ministry of Local Government and National Housing & 2 Others
2007 (2) ZLR 96, the basic requirements of this defence were
summarised as including the following:
1.
The expectation underlying the expectation must be clear, unambiguous
and devoid of relevant qualification.
2.
The expectation must be reasonable.
3.
The representation must have been induced by the decision-maker.
4.
The representation must be one which it was competent and lawful for
the decision maker to make, without which reliance cannot be
legitimate.
The
doctrine of legitimate expectation is really a call for fairness and
for the right to be heard before a decision adverse to the
expectation of an affected party is made.
In
applying the above exposition to the case at hand it is apparent that
in raising legitimate expectation the appellants were not seeking a
procedural right to be heard but that the houses be sold to them as
per their expectation. The pleadings and evidence in court confirm as
much. It is in that light that the trial magistrate alluded to the
fact that legitimate expectation is for procedural and not
substantive rights.
In
his heads of arguments counsel for the appellants made the following
concessions:
1.
That the appellants cannot argue that respondent be ordered by this
court to sell the houses to them, and seek to defend their eviction
on that basis.
2.
That the respondent never sold the houses in question to the
appellants.
3.
That the respondent did not offer the houses to the appellants for
sale with the result that all the appellants had to do was to accept
such offer for contracts of sale to be concluded.
The
above concessions show a change in stance by the appellants. It is
this change that counsel now introduced as the basis for the appeal.
In paragraph 8 of the heads of argument counsel stated that:
“The
argument is not that respondent must either have sold the houses to
appellants, or provided them with alternative accommodation before
instituting eviction proceedings. Instead, the contention is this:
that having raised their legitimate expectations to purchase the
houses and alternatively, to provide them with alternative
accommodation in the form of Stands to purchase, respondent is bound
by the principle of legitimate expectation to hear the appellants
before instituting eviction proceedings against them.”
This
argument is not in tandem with what transpired in the court a
quo.
In
the court a quo the appellants defence was not on the procedural
right to be heard before summons were issued, but to have the
respondent ordered to sell the houses or to provide them alternative
accommodation.
As
already alluded to above the defence of legitimate expectations
applies to procedural right, such as the right to be heard before an
adverse decision is made against a party. It is not available in a
situation such as this where the appellants were in fact contending
that court should order respondent to sell the houses to them.
Counsel
having appreciated the limits of the defence of legitimate
expectation correctly made the above concessions.
In
respect of the right to be heard, it was clear that the policy that
the appellants were relying on was a general policy that the
Government had adopted.
The
net effect of the concession is that the question to be ascertained
is whether there was a change in the alleged Government policy, if so
were the appellants entitled to be heard before being asked to vacate
the houses.
As
already alluded to the policy to sell to sitting tenants was a
general policy. That general policy was addressed to the respondent's
provincial administrators. Part of the letter dated 18 December 2000
addressed to the provincial administrators on the subject read as
follows:
“RE:
DISPOSAL OF POOL AND RESERVED HOUSES STILL ON RENTAL
This
Ministry is, in terms of the Millenium Economic Recovery Programme
required to among other things:
(a)
Review rentals for houses to market levels; and
(b)
Dispose of some of the pool and reserved houses.
You
are required to consult with the other heads of Government Ministries
in your respective provinces to determine the number of pool and
reserved houses to be disposed of without disrupting Government
operations. The age of the houses should be used as one of the
criteria of selecting the houses to be disposed of.
You
are also required to give preference to houses in Messengers' Camps
situated in urban centres as these were left out in the 1994
disposal.”
The
above was a request for assessment of houses to be disposed of. It
was not an offer to sell all the houses to sitting tenants.
Even
after the appellants had expressed desire to buy the houses, they
were not personally offered the houses for sale.
The
general policy was changed before the appellants had been offered the
houses.
When
the general policy was changed the appellants were made aware of this
by letters addressed to them and advising them to vacate. It is these
letters that prompted them to seek audience with the Minister of
Local Government. The appellants confirmed holding such a meeting in
which it was made clear to them that the houses would not be sold to
them as Government policy had changed. It was then that they asked
for alternative accommodation and the Minister made a verbal promise
to organise alternative accommodation.
Clearly
as at that stage they had been given a hearing and had accepted that
the policy had changed and they were no longer going to be offered
the houses for sale.
What
they remained with at the most was the verbal promise by the Minister
to organize alternative accommodation for them. The general Policy
had not provided for alternative accommodation.
The
issue of the change of general policy by Government is something that
court cannot easily interfere with. It is in this light that the
courts have said that questions of economic and social policy are
matters within the domain of the executive discretion and the courts
should exercise great restrain in delving into the details of policy
instruments of directing the precise manner of their implementation
unless court is convinced that the assessment in question is
manifestly without merit. (See Minister
of Lands and Others v
Commercial
Farmers Union
2001 (2) ZLR 457at 475).
The
same could be said regarding changes to general policies by
Government.
What
court will require is that those affected by changes in general
policy be afforded a hearing before such is implemented.
In
casu,
the appellants upon receiving letters indicating a change of the
general policy approached the responsible Minister and other officers
within the Ministry. They were afforded a hearing.
The
suggestion that they should have been heard before the general policy
was changed would not be realistic. This having been a general
policy, to expect the Ministry to have invited each and every person
to be affected to input before the change would be unrealistic. What
was crucial in my view is that the change was communicated and those
affected were given audience.
In
casu,
the court a
quo
alluded to the change in policy that had occurred such that whilst at
one time the appellants were made to expect that the houses will be
sold to them, such a policy was changed before the houses had been
offered to the appellants.
The
appellants' right in the circumstances was to be afforded a hearing
before they were evicted. They were indeed heard. It was only after
the meetings with the Ministers and other Ministry officials in the
period 2002 to 2005 that summons for their eviction were issued out
in 2006.
In
the circumstances of this case I am of the view that the decision by
the court a quo cannot be faulted given the appellants' defence
before that court. Even on the procedural right to be heard it cannot
be said the appellant were not heard before summons for eviction were
issued. The appeal cannot thus succeed.
Accordingly
it is hereby ordered that the appeal be and is hereby dismissed with
costs.
NDEWERE
J: I concur ………………
Gutu
& Chikowero,
appellants' legal practitioners
Civil
Division of the Attorney General's office,
respondent's legal practitioners
