IN
CHAMBERS
UCHENA
JA:
[1]
This is an opposed chamber application in terms of Rule 43 of the
Supreme Court Rules 2018, for condonation and extension of time
within which to note an appeal.
BACKGROUND
FACTS
[2]
The applicant and the first respondent entered into an agreement of
sale of land belonging to the first respondent. The land is held
under Deed of Transfer 1989/08. The first respondent proposed a
subdivision of the piece of land. The proposed subdivisions were
never taken out of the original land identified under deed of
transfer 1989/08. The proposed subdivisions were made the subject of
a sale agreement between the applicant and the first respondent.
[3] It
was a term of the agreement that in the event of a dispute, the
parties would refer the matter for arbitration. The merx of the sale
were the proposed subdivisions as depicted on the map. The said map
was later found to be invalid as it identified wrong portions of the
land. A new map was produced which identified land which is different
from the land identified in the agreement of sale itself. A dispute
arose concerning the number of stands or subdivisions bought by the
applicant. The dispute was brought before an arbitrator who is the
second respondent in this matter. The arbitrator's award held that
there was a binding agreement between the parties. The first
respondent was aggrieved by the arbitrator's award. It filed an
application for the setting aside of the arbitrators award before the
court a
quo,
on the basis that the arbitral award is contrary to public policy.
At the hearing of the matter, the first respondent raised a point in
limine
to the effect that the arbitrator failed to keep a complete record of
proceedings with regards to the matter. It also averred that the
applicant's counter application was incompetent as it was lodged
through an opposing affidavit. It averred that an application in the
High Court is made in the form of a founding affidavit and under Form
29. On the merits, the first respondent argued that the award given
by the arbitrator is a brutum
fulmen
in that the disposition of the award is incapable of enforcement as
it did not make an enforceable order. It argued that the arbitrator
did not give a formal order directing either party to do anything.
It further argued that the arbitrator failed to comply with the
provisions of Article 31 and 33 of the Arbitration Act. It further
argued that the arbitral award is contrary to public policy because
the order interfered with the sanctity of the parties agreement and
the agreement is contrary to mandatory provisions of the law.
[4] On
the contrary, the respondent who is the applicant in this case raised
a point in
limine
to the effect that the application for the setting aside of the
arbitral award could not be heard before its application for
dismissal for want of prosecution is heard and completed. On the
merits, it argued that there was no basis for the setting aside of
the arbitral award as the findings of the arbitrator were factually
and legally correct. It disputed that the first respondent bought
individual stands. It contended that it bought the whole subdivision
through an addendum to the Main Agreement.
[5] The
court a
quo
ruled that in the absence of the arbitrator's record, it would not
be possible for it to scrutinize the proceedings in terms of Article
34 and 36.
It held that at law, any tribunal whose proceedings may be
challenged before another tribunal ought to keep and maintain a
record of proceedings. Regarding the applicant's counter
application, the court struck it off on the basis that it was not
filed in the prescribed form. It found that the arbitral award was
contrary to public policy in that it made additions to the express
terms of the parties agreement which was itself made contrary to
mandatory provisions of the law. The court a
quo
therefore set aside the arbitrator's award. The applicant wishes
to appeal against the decision of the court a
quo
but it is out of time hence the application for condonation and leave
to note the appeal out of time.
[6] At
the hearing of this application on 14 November 2023, Mr Chinake
for the applicant submitted that the applicant failed to note an
appeal on time because he was not advised of the handing down of the
judgement which the applicant seeks to appeal against. He submitted
that in the circumstances a delay of a period of not more than 22
days is not inordinate. He further submitted that the fact that he
was not advised of the handing down of the judgment proves that the
applicant was not in willful defiance of the rules of this Court and
that the explanation for the delay is reasonable. Regarding the
issue of prospects of success, he submitted that the application has
good prospects of success.
[7] Mr
Tavengwa
for the first respondent agreed that the parties were not notified of
the handing down of the judgment which the applicant seeks to appeal
against and that it was handed down in the absence of the parties.
He submitted that the intended grounds of appeal enjoy no prospects
of success as real rights to land can only be sold after a
subdivision permit has been issued. He further submitted that there
was no approved diagram. He submitted that the contract entered into
by the parties is unenforceable because it does not comply with
mandatory provisions of the law. Counsel further averred that
without a record of proceedings by the arbitrator, it is impossible
for the court to make an informed decision.
[8] After
hearing submissions from both parties, I postponed the matter to 20
November 2023 and directed the parties to file supplementary heads on
the interpretation of section 39(1) and (2) of the Regional Town &
Planning Act [Chapter
29:12]
(hereinafter referred to as the RTP Act”) and section 152(1)-(4) of
the Urban Councils Act [Chapter
29:15]
(hereinafter referred to as the UC Act”).
[9] In
his supplementary heads Mr Chinake
for the applicant submitted that in terms of section 39(2), section
39(1) does not apply to the subdivision of land which is owned by an
urban council or town council. He averred that the first respondent
owned the piece of land in dispute and it could sell it before the
subdivision. He submitted that the first respondent took all
necessary steps to comply with the provisions of section 152(1)–(4)
of the UC Act.
[10] Mr
Tavengwa
for the first respondent submitted that the consideration of these
mandatory statutory provisions are for purposes of determining
whether or not the contract entered into by the parties was lawful
and enforceable. He submitted that the provisions of section
152(1)–(4) of the UC Act requires council to publish a Notice of
Intention to sell the land in a Newspaper and in terms of subs 4
Council cannot dispose of land without an approved Town planning
scheme. He further averred that non-compliance with the mandatory
provisions of section 152 of the UC Act renders the agreement a
nullity. In support of his argument, Counsel cited the cases of Bruce
v Econet Wireless (Pvt) Ltd & Anor
2009
(1) ZLR 284 (H); Ndemera
v The State
HH528/23 (HACC15/23); and Pinnacle
Property Holdings (Pvt) Ltd v Municipality of Redcliff & Another
SC 14/23.
[11] Counsel
for the first respondent further submitted that the Turquand Rule
which counsel for the applicant submitted was applicable does not
apply to the circumstances of this case. In addition, Mr Tavengwa
contended
that an arbitral award founded on an agreement that does not comply
with mandatory provisions of statute law is contrary to public
policy.
THE
LAW
[12] An
application for condonation and extension of time within which to
note an appeal must satisfy specified requirements before the court
can grant the indulgence sought. In the case of Bessie
Maheya v Independent Africa Church
SC58/07,
MALABA JA (as he then was) said:
“In
considering applications for condonation of non-compliance with its
Rules, the court has a discretion which it has to exercise judicially
in the sense that it has to consider all the facts and apply
established principles bearing in mind that it has to do justice.
Some of the relevant factors that may be considered and weighed one
against the other are: the degree of non-compliance; the explanation
therefore; the prospects of success on appeal; the importance of the
case; the 1st respondent's interests in the finality of the
judgment; the convenience to the court and the avoidance of
unnecessary delays in the administration of justice”.
APPLICATION
OF THE LAW TO THE FACTS
[13] Mr
Chinake's
argument is that the delay in noting the application is not
inordinate. Mr
Tavengwa
agreed that the judgment a
quo
was handed down in the absence of both parties. He does not deny that
it caused the delay in the noting of the appeal. I am satisfied that
the delay is not inordinate and that the explanation for the delay is
reasonable. In spite of the applicant's success on these
requirements it must prove that the application enjoys good prospects
of success.
[14] The
test of prospects of success on appeal is an assessment of whether or
not a different court can arrive at a different finding than the
court a
quo.
In
the case of Essop
v S
[2016]
ZASCA
114,
the court in defining prospects of success held that;
“What
the test for reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In
order to succeed, therefore, the appellant must convince this court
on proper grounds that he has prospects of success on appeal and that
those prospects are not remote, but have a realistic chance of
succeeding.
More is required to be established than that there is a mere
possibility of success, that the case is arguable on appeal or that
the case cannot be categorised as hopeless. There must, in other
words, be a sound, rational basis for the conclusion that there are
prospects of success on appeal.”
(emphasis
added)
[15] Prospects
of success on appeal are ascertained from the grounds of the intended
appeal.
[16] On
the issues covered by the parties filed supplementary
heads on the interpretation of section 39(1) and (2) of the RTP Act
and section 152(2)-(4) of the UC Act I make the following
observations:
Section
39(1) and (2) of the RTP Act reads as follows:
“(1)
Subject to subs (2), no person shall —
(a)
subdivide any property; or
(b)
enter into any agreement —
(i)
for the change of ownership of any portion of a property; or
(ii)
for the lease of any portion of a property for a period of ten years
or more or for the lifetime of the lessee; or
(iii)…
(iv)….
(a)
consolidate two or more properties into one property; except in
accordance with a permit granted in terms of section forty:
Provided
that an undivided share in any property, whether or not it is coupled
with an exclusive right of occupation, shall not be regarded for the
purposes of this subsection as a portion of that property.
(2)
Subsection (1) shall not apply to —
(a)
land within the area under the jurisdiction of a municipal council or
town council which is owned by the municipality or town concerned; or
(b)
land within a local government area administered and controlled by a
local authority which is owned by that local authority or by the
State; or” (Emphasis added)
[17] A
reading of section 39(2) establishes that the provisions of section
39(1) do not apply to the first respondent which is a Town Council.
The land in dispute belongs to the first respondent. It can therefore
be sold before it is subdivided. That supports the applicant's
intended ground of appeal No.5 which attacks the court a
quo's
finding that the entering of the parties into an agreement of sale of
land, in the absence of a sub-division permit renders the agreement a
nullity and the arbitrator's award contrary to public policy. That
part of the court a
quo's
decision is therefore not correct and gives the applicant prospects
of success.
[18]
Section
152(2)–(4) of the UC Act provides as follows:
“(2)
Before selling, exchanging, leasing, donating or otherwise disposing
of or permitting the use of any land owned by it the council shall,
by notice published in two issues of a newspaper and posted at the
office of the council, give notice —
(a)
of its intention to do so, describing the land concerned and stating
the object, terms and conditions of the proposed sale, exchange,
lease, donation, disposition or grant of permission of use; and
(b)
that a copy of the proposal is open for inspection during office
hours at the office of the council for a period of twenty-one days
from the date of the last publication of the notice in a newspaper;
and
(c)
that any person who objects to the proposal may lodge his objection
with the town clerk within the period of twenty-one days referred to
in para (b).
(3)
The council shall submit a copy of the notice referred to in
subsection (2) to the Minister not later than the date of the first
publication of that notice in a newspaper.
(4)
A council may not, subject to section one hundred and fifty-three,
sell, exchange, lease, donate or otherwise dispose of or permit the
use of any land owned by the council which lies within an area for
which —
(a)
there is no approved town planning scheme, unless —
(i)
a copy of the proposal and of the notice published in terms of subs
(2), together with any objections which have been lodged and the
comments of the council on such objections, have been transmitted to
the Minister; and
(ii)
the Minister has consented to the sale, exchange, lease, donation or
other disposition or permission to use, as the case may be:
Provided
that the Minister shall not consent unless he is satisfied that an
adequate area of land, suitable for the purpose, has, where
necessary, been reserved for State purposes or for postal and
telecommunication services; or there is an approved town planning
scheme, unless —
(i)
the period of twenty-one days referred to in subsection (2) has
expired; and
(ii)
if any objections have been lodged they have been considered by the
council.”
[19] In
terms of section 152(2), (3) and (4), land owned by a Town Council
cannot be sold or leased, before the requirements stated in
subsections (2) to (4) have been complied with. The requirements are
issuing two notices in a newspaper, submitting the notice to the
Minister, the Minister's approval and that there should be an
approved town planning scheme.
[20]
In this case there is no direct documental evidence to prove that
the notices were given and the Minister's consent obtained. There
is also no direct documental evidence that there is a town planning
scheme or a diagram which forms part of the record besides indirect
references in the first respondent's minutes and resolutions in
which it is recorded that these requirements were complied with and
that authority was granted.
[21]
Section 152 of the UC Act is couched in peremptory terms. The use
of the word “shall” as opposed to “may” proves that the
provisions are mandatory. The provisions have to be strictly
complied with. Failure to comply with mandatory provisions of the law
renders the agreement of sale a nullity.
[22] In
the case of Pinnacle
Property Holdings (Pvt) Ltd v The Municipality of Redcliff &
Another
SC 14-23 BHUNU JA commenting on the provision of section 152 of the
UC Act, said:
“Undoubtedly
the interpretation placed upon section 152 of the Urban Councils Act
in the Bruce
Case supra
is
correct. The section is couched in simple unambiguous language
admitting of no other meaning. It is axiomatic that the section in
fact constitutes a condition precedent which must be fulfilled before
a municipality can alienate its land. The object for the laid down
procedure is to give interested members of the public the right to
object as provided for under section 152(2)(c) of the Act.”
[23] Further,
in Bruce
v Econet Wireless (Pvt) Ltd and Another
2009
(1) ZLR 284 (H)
at
290C
OMERJEE
J, (as he then was), said:
“Before
dealing with the merits of the case, I wish to make the following
observation. A local authority, such as the City of Harare, is
empowered by section 152 of the Urban Councils Act to alienate any
land it owns through sale, lease, donation, or otherwise dispose of,
or permit the use of it. In doing so,
the
local authority is obliged to comply with the requirements stipulated
in that provision.”
(Emphasis
added)
[24] As
already indicated there are allegations in the minutes and
resolutions of the first respondent's minutes that authority to
sell was obtained. It cannot therefore be confidently held that there
was failure to comply with section 152(2) to (4) of the UC Act.
[25]
In the case of ZESA
v Maposa
1999 (2) ZLR 452 (S) at 466E-H GUBBAY CJ commenting on how to
determine issues of public policy said:
“An
award will not be contrary to public policy merely because the
reasoning or conclusions of the arbitrator are wrong in fact and or
in law. In such a situation the court would not be justified in
setting the award aside.
Under
article 34 or 36, the court does not exercise an appeal power and
either uphold or set aside or decline to recognise and enforce an
award by
having regard to what it considers should have been the correct
decision. Where however the reasoning or conclusion in an award goes
beyond mere faultiness or incorrectness and constitutes a palpable
inequity that is so far reaching and outrageous in its defiance of
logic or accepted moral standards that a sensible and fair minded
person would consider that the conception of justice in Zimbabwe
would be intolerably hurt by the award, then it would be contrary to
public policy to uphold it.”
(Emphasis
added)
[26]
The above calls for caution in a judge's gate keeping function.
The intolerable level of an award being contrary to public policy
should not be lightly assumed by a single judge in chambers,
especially when some proposed grounds of appeal point to the
applicant's prospects of success. I would therefore allow the
application to enable the full bench to determine proposed appeal.
[27]
It is accordingly ordered as follows:
1.
The application for condonation of the late noting of an appeal and
extension of time within which to note the appeal be, and is hereby
granted.
2.
The applicant shall file its notice of appeal within five (5) days
from the date of the granting of this order.
3.
The costs of this application shall be costs in the cause.
Kantor
& Immerman,
applicant's legal practitioners
Mutuso,
Taruvinga & Mhiribidi,
1st
respondent's legal practitioners
