MUSAKWA
JA: This
is an appeal against the whole judgment of the Administrative Court
(the court a
quo)
in which it dismissed the appellant's application for review.
FACTUAL
BACKGROUND
The
appellant is the executrix
dative
of the late Judith Matewa's estate (the deceased). The respondent
is responsible for urban planning and development.
In
1987 the late Stephen Matewa, who was the deceased's husband
acquired stand number 431 Mandara Township of subdivision A of Lot 2
of Mandara of The Grange. He was granted a subdivision permit SD/241A
by the respondent. The subdivision resulted in the creation of stand
numbers 730, 731, 732 and 733.
Stand
number 733 was to be used for a road servitude.
The
subdivision was done under ten conditions with clause 7 thereof
providing that stand 733 should be transferred to the City of Harare
for road purposes.
Clause
5 of the conditions of permit SD/421A provided that Stephen Matewa
was to construct an asphalt road on stand 733 at his own cost which
would eventually be handed over to the respondent.
On
7 October 1987 the late Stephen Matewa wrote a letter to the
respondent in which he stated that the construction of the road on
stand 733 was beyond his financial capability. When Stephen Matewa
passed on in 1993 part of his estate was distributed except stand 733
which was reserved for road construction.
Stephen
Matewa was survived by his wife Judith Matewa, who inherited his
estate excluding stand 733.
Later,
Judith Matewa passed on.
Upon
Judith Matewa's death the appellant was appointed the executrix
dative
to Judith's estate hence her interest in this matter.
It
is alleged by the appellant that the issue of the road construction
was silent from 1987 until June 2021 when the respondent, without
notice and consent of the appellant, began preparations to construct
a road on stand number 733.
The
appellant felt that the respondent's action was prejudicial to the
estate of the late Judith Matewa as the land was private property. In
her view, before any developments could be carried out on the land,
she ought to have been consulted and her consent should have been
secured.
The
appellant's allegations are contrary to a letter dated 7 October
1987 written by Stephen Matewa.
In
that letter, Stephen Matewa wrote to the respondent admitting that he
was aware that he was expected to construct two roads as part of the
respondent's condition for the subdivision permit and that the cost
of constructing the roads was beyond his means. In addition, Stephen
Matewa suggested to the respondent that the respondent construct the
roads itself for the benefit of the community. Further to that, he
offered to sell two of his plots and to give 12 and a half per cent
of the proceeds thereof to the respondent.
In
response to Stephen Matewa's letter, the respondent's Director of
Works (the Director) wrote that the respondent was unable to assist
because the roads were on private property. Further to that, the
Director stated that Stephen Matewa had to meet the costs of
construction. Upon completion he was to hand over the roads to Harare
City Council.
The
Director concluded by stating that any future development of the land
had to comply with the requirements of the permit.
In
June 2021, the respondent began preparations for the construction of
the road on stand number 733.
The
appellant made an application in the court a
quo
seeking a review of the respondent's decision to construct the road
as she believed that this constituted a gross irregularity. She
vehemently contested the decision by the respondent as she was of the
view that the respondent had encroached onto private property. The
appellant argued that the respondent's conduct in acquiring the
property without communicating or reaching a settlement with the
owner was improper.
Per
contra
the respondent submitted that stand 733 was a road servitude and
belonged to it through Deed of Transfer 5994/87.
In
dismissing the application, the court a
quo
found that the appellant laboured under the misapprehension that
stand 733 was part of Judith Matewa's estate. Aggrieved by this
decision, the appellant lodged the current appeal on the following
grounds:
GROUNDS
OF APPEAL
1.
The court a
quo
erred
in holding that the issue for determination was ownership of stand
733, Mandara Township, Harare.
2.
The court a
quo
grossly erred in not dealing with any of the grounds of review raised
by the appellant.
Before
this Court, the relief sought was as follows:
RELIEF
SOUGHT
WHEREFORE,
the appellant prays that:
1.
The appeal be allowed with costs.
2.
The judgment of the court a
quo
in case number ACC18/21, be and is hereby set aside.
3.
The matter under ACC18/21 be and is hereby remitted to the court a
quo
for determination before a different judge.
APPELLANT'S
SUBMISSIONS
The
appellant submitted that stand
733 constitutes private property. She submitted that her late father
had approached the respondent in 1987 requesting it to help in the
construction of the road and the respondent declined stating it was
private property. She further submitted that the construction of the
road will compromise developments that have been made on the
property.
RESPONDENT'S
SUBMISSIONS
Mr
Nyati,
for the respondent argued that
the property in question was duly transferred to the respondent's
in terms of the law. He further argued that the respondent, as the
administrative authority, acted in terms of the Regional, Town and
Country Planning Act [Chapter
29:12].
According to Mr Nyati,
as long as the subdivision permit remains extant there is no way the
land in question can revert to the appellant.
ISSUES
FOR DETERMINATION
1.
Whether or not the court a quo erred in resolving the matter on the
basis of ownership of stand 733 Mandara Township, Harare.
2.
Whether or not the court a
quo
did not deal with the grounds for review that were raised by the
appellant.
APPLICATION
OF THE LAW TO THE FACTS
1.
Whether or not the court erred in resolving the matter on the basis
of ownership of stand 733 Mandara Township, Harare
It
was Ms Matewa's argument that the construction of the road on the
stand remains the obligation of the appellant hence the respondent
cannot rescind the obligation without negotiating with the appellant
and compensating for investments done on the property. She is of the
view that the stand or property in question is private property.
It
is apparent from the permit that stand 733 is no longer private
property.
This
development came about when the deceased applied for a subdivision of
stand 431 Mandara Township, Harare. Clause
7 of the permit that created the stand provides as follows:
“Stand
733 shall be transferred to the City of Harare for road purposes.”
The
permit is quite clear that stand 733 belongs to Harare City Council.
The permit does not provide for any compensation to the appellant
upon the completion of the road.
It
is inconceivable that the appellant could aver that the respondent
began preparations for the construction of the road without
negotiating with the appellant and compensating for investments done
on the property.
Road
construction was part of the permit agreement and was done with no
provision that the late Stephen Matewa would be compensated. To
suggest that compensation should be made would be improper.
The
court a
quo
cannot be faulted for finding that stand number 733 is not private
land, regard being had to clause 7 of the permit that created the
stand. Stand 733 is not part of the late Stephen Matewa's
estate as it is a road servitude in favour of the respondent.
The
plan and diagram on p20 of the appeal record stipulates that the land
which is described as a road shall be transferred to the City of
Harare for road purposes. The road reservation is still extant as it
was never set aside. Hence, the respondent as the owner of the
property in question was not obliged to consult the appellant first
before making preparations for constructing a road.
The
late Stephen Matewa even wrote a letter dated 7 October 1987 in which
he pleaded with Harare City Council to construct the road as he was
financially incapacitated to do so. The part pertinent to the
resolution of this matter reads as follows:
“The
plot now was surveyed and subdivided. We are building on one of the
plots. There are two uncompleted roads on two sides of this property.
According
to your
conditions
these are to be constructed by me as the developer. I am not
developing
this
area for financial gain. I only bought the land in order to build a
house. The cost
of
building these two roads are beyond my means.” [My
emphasis]
The
above correspondence shows that the appellant could not reasonably
have been surprised by the respondent's preparatory measures to
construct a road, which in any case was the late Stephen Matewa's
responsibility as he was supposed to meet the costs. It is
unbelievable why the appellant feels aggrieved yet the liability to
construct the road has been taken off her shoulders.
One
of the conditions on the basis of which the permit was granted was
that provided in clause 7 supra.
Thus, a conclusion can be drawn that stand 733 is not a standalone
property but a road. In light of the foregoing section 156 of the
Urban Councils Act [Chapter
29:15]
(the Act) comes into play. The provision reads as follows:
“156
vesting of land, roads and sanitary lanes
The
property of and in all lands, roads and sanitary lanes or any part
thereof within a council area to which the inhabitants of the
municipality or town have or acquire a common right shall be vested
in the municipality or town, and sections 56 and 57 of the Regional,
Town and Country Planning Act [Chapter
29:12]
shall apply, mutatis mutandis, in relation to any such road or
sanitary lane.”
There
is also no requirement for consent in the presence of the clear and
precise permit.
Title
to stand 733 was given to Harare City Council through Deed number
5994/87 which provided that stand 733 was set aside as a road in
terms of section 42(1)(a) of Act 22 of 1976.
It
is trite law that an owner of property has exclusive rights to the
property.
Moreover,
the title deed signed and sealed at Harare on 27 August 1987 by the
Registrar of Deeds reads:
“NOW
THEREFORE, I the Registrar of Deeds, do hereby issue Title Deed unto
the CITY
OF HARARE In respect of CERTAIN
piece
of land situate in the District of Salisbury
CALLED
STAND
733 MANDARA TOWNSHIP OF STAND 431 MANDARA.”
The
title deed of the property bears the name of the respondent, which ex
facie
is evidence of ownership.
It
is also important to take note that the case that is before this
Court is that the respondent constructed a road on land that was
confirmed by the Registrar of Deeds to belong to it.
The
law of property gives the owner of land the right to freely enjoy his
or her property without the interference of third parties. The owner
of a property has exclusive rights to deal with it as he or she
wishes.
In
casu,
Harare City Council cannot be faulted for not consulting the
appellant's before beginning the construction of a road on the
stand in question.
Further,
the respondent holds the authority to construct roads in Harare.
The
respondent did not interfere with the appellant's right to freely
enjoy the property. Ownership
is the mother of all real rights. Having real rights over the
property, the respondent acquired exclusive rights over the property.
Under
property law, the registration of a real right protects its holder
against the public at large. In other words, once a real right has
been registered, it becomes enforceable against the whole world.
The
respondent in this case registered its title to the property in good
faith. It has real rights over the property and it has the
prerogative to enforce that right over the appellant. There was no
need to consult or compensate the appellant.
It
is the duty of the courts to protect the rightful owners of property.
This principle of law was clearly articulated in the case of Alspite
Investments (Pvt) Ltd v Westerhoff 2009 (2) ZLR 226
(H) at 237D-F where MAKARAU JP, as she then was, said:
“It
is a rule or principle of law that admits no discretion on the part
of the court. It is
a
legal principle heavily weighted in favour of property owners against
the world at
large
and is used to ruthlessly protect ownership. The application of the
principle
conjures
up in my mind the most uncomfortable image of a stern mother standing
over
two
children fighting over a lollipop.
If the child holding and licking the lollipop is not the rightful
owner of the prized possession and the rightful owner cries to the
mother for intervention, the mother must pluck the lollipop from the
holder and restore it forthwith to the other child notwithstanding
the age and size of the other child or the number of lollipops that
the owner child may be clutching at the time. It matters not that the
possessor child may not have had a lollipop in a long time or is
unlikely to have one in the foreseeable future.
If
the lollipop is not his or hers, he or
she
cannot have it.”
[My emphasis]
In
the case of Oakland
Nominees (Pty) Ltd v Gelria Mining & Investment Co. (Pty) Ltd
1976 (1) SA 441 (A)
at
p452 the court said:
“Our
law jealously protects the right of ownership and the correlative
right of the owner in regard to his property, unless, of course, the
possessor has some enforceable right against the owner.”
Based
on the foregoing, the decision of the court a
quo
cannot be faulted.
The
respondent had no obligation to consult and inform the appellant
about the road construction on stand number 733.
There
is no basis to interfere with the decision of the court a
quo
on the basis that it should not have been determined on the basis of
ownership. It can be observed that it is the ownership of stand 733
which gives the respondent the right to construct the road. On this
basis, the application for review by the appellant in the court a
quo
was unfounded.
2.
Whether or not the court a quo did not deal with the grounds for
review that had been raised by the appellant
In
the court a
quo,
the appellant was challenging the construction of a road on stand 733
by the respondent without her consent. In the appellant's view,
this constituted an illegality and a breach of her proprietary
rights.
In
the determination of the review proceedings before it, the court a
quo
was of the view that the issue of ownership was pertinent to
resolving the matter placed before it.
It
is proper for a court to decide only one of the issues raised by a
party when such issue is dispositive of the entire dispute between
the parties. This position was held in the case of Longman
Zimbabwe (Pvt) Ltd v Midzi & Ors 2008 (1) ZL 198 (S).
Having
looked at the grounds that had been raised, the court a
quo
correctly found that the issue of ownership was key to the
determination of the matter. Once the court a
quo
made that finding the other grounds fell away.
It
is my considered view that all the grounds of review that the
appellant had raised in the court a
quo
speak to the issue of ownership.
By deciding on the question of who the owner is, it was the court a
quo's
way of dealing with the issue of breach of proprietary rights raised
by the appellant which in my view was correct. The issue of ownership
was pertinent to the resolution of this matter. The issue of
proprietary rights could only be answered by making a determination
on ownership. The question of ownership answered all the grounds of
review that had been raised.
DISPOSITION
In
view of the foregoing, I find that there was no misdirection on the
part of the court a
quo.
The facts of the matter are such that the appellant cannot be granted
the relief which she seeks. The appeal lacks merit.
Since
the appellant was acting on behalf of an estate, there is no need to
burden the estate with the costs of suit. It is accordingly ordered
as follows:
The
appeal be and is hereby is dismissed with each party to bear its own
costs.
BHUNU
JA: I
agree
MWAYERA
JA: I
agree
Gambe
Law Group,
respondent's
legal practitioners
