On
30 September 2009, I confirmed a provisional order that was granted by this
court on 28 September 2008. I indicated that written reasons will follow in due
course. These are they.
The
salient facts of the matter are the following.
The
applicant is the City of Bulawayo, which is the owner of a certain piece of
land known as Umganin Township by virtue of Deed of Transfer Number 95/89 from
the then Southern Rhodesia to the City of Bulawayo. In terms of the operative
Master Plan of the City of Bulawayo, it is zoned for residential purposes. Two
layouts have been prepared but have not been approved.
The
applicant discovered that this piece of land was invaded by unlawful occupants,
and was being divided, and pieces thereof allegedly sold, or given away, by the
respondent. The occupants indicated that they had received “authority” to
construct houses, or residential structures, from the respondent. They had
embarked on cutting down trees on a large scale, and clearing land, causing
serious degradation to the land, and erecting illegal structures.
It
is common cause, that, prior to this development, the respondent had written to
the Director of Housing of the applicant in the following terms -
“I
hereby apply to buy land in high-density suburb such as Emganwini, Nkulumane,
or whichever is available. I have well-wishers who wish to build houses for the
less-privileged that were affected by Murambatswina and did not benefit from
the Garikai/Hlalani Kuhle. I have a list of 300 people who are still suffering
since the demolition of their background cottages.
I
will be grateful for any consideration that you will give to my application.
Yours
faithfully
Lilian
Kandemiri.”
The
respondent's letter was written on a Lizhaka (Private) Limited t/a As Ever
Forward letterhead. It was written on 1 March 2007.
A
follow-up letter was written on 11 June 2007.
The
applicant responded to the respondent, through its Acting Town Clerk, in the
following terns -
“With
reference to your letters, dated 2 May 2007 and 11 June 2007, regarding the
above-mentioned matter, please note the following:
In
terms of council procedure, virgin land for housing development is offered to
private developers through the tender system.
With
regard to serviced land, this is not readily available at the moment.
The
Hlalani Kuhle Project is a national programme, and council does not deal with
individuals. However, you may approach individual beneficiaries of Hlalani
Kuhle Stands with a view of assisting them as appropriate. In view of this,
your application cannot be acceded to...,.”
Thereafter,
the illegal occupations commenced – at the behest of the respondent, or her
abovementioned company. Although the respondent claims to be “homeless,
desperate” with nowhere to go, the true position is that she was allocated a
Stand, with a house thereon, by the applicant. Her house, in her own name, is
House Number 1703 Emganwini. The address for Lizhaka (Private) Limited..., is
given as House Number 1703 Emganwini. She is, therefore, operating her business
from her residential home.
She
is, in the circumstances, not homeless and desperate.
If
those who claim through the respondent want accommodation, or land, they should
follow the procedures set out by the applicant in correspondence with the
respondent, and refrain from illegal occupations which are inevitably associated
with health hazards, illegal structures, and land degradation.
The
courts cannot condone illegal actions.
In
any event, the applicant has no obligation to give land to the respondent
and/or those claiming through her.
The
applicant offers land to those people who would have applied to it, and, there
being land available, and all procedures having been complied with. That the
respondent does not appreciate this legal position is evinced by her assertion
in..., her opposing affidavit, where she says -
“There
was never a forceful occupation. The occupied land was vacant.”
This shows that she was party to the illegal
occupations, and she believed the occupants can grab the applicant's land as
long as it is vacant.
