Title to Land, Rights to Minerals, Powers of Repossession, Imposition of Taxes and Impounding

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

In 1995, the applicant (Agro Chem) purchased an undeveloped Stand (the Stand) from the second respondent (City of Harare). The full purchase price was paid. In terms of the agreement, Agro Chem was enjoined to undertake certain minimum developments on the Stand within a stipulated period after the purchase. It is common cause that no development has ...

It is common cause that no development has been undertaken on the Stand by Agro Chem. Sometime in June 2008 it came to the attention of officials in Agro Chem that developments were being undertaken on the Stand in question….,.

It is contended, on behalf of both respondents…, that not only had the City of Harare cancelled the Agreement of Sale, it had commenced the process of re-transfer in terms of clause 12 of the agreement of sale. Both make reference to two letters allegedly sent to Agro Chem by the City of Harare, the letters are dated 26 February and 20 June 2008 respectively.

The view of the City of Harare is that Agro Chem failed to undertake developments within the period set in the agreement, and that, as a result it, City of Harare had cancelled the agreement and repossessed the Stand.

It is pertinent to note, at this juncture, that although the City of Harare wrote letters to Agro Chem there is no other action that has been taken by it to repossess the Stand in question….,.

The two respondents have, however, sought to oppose the application on the basis that the contract of sale has been cancelled and that not only does the City of Harare have the right to sell it; it (City of Harare) can deal with the property in any manner it deems appropriate….,.

Counsel for the second respondent, the City of Harare, has referred me to section 154 of the Urban Councils Act [Chapter 29:15] which provides as follows:

“Conditions of title to land transferred by municipal council

In the case of land granted to a municipality in trust for the inhabitants of the municipality, such area being known as municipal township land, which was granted subject to the conditions that -

(a) The British South Africa Company or the Governor of Southern Rhodesia shall have the right to resume ownership of and to retake possession of the said land or any portion thereof on payment of such compensation as may be mutually agreed upon, or, failing such agreement, as may be determined by arbitration; and

(b) The right to all minerals in or the power to make grants of the right to prospect for minerals on that land was reserved, either to the British South Africa Company or the Governor of Southern Rhodesia;

any such land which is or has been transferred whether before or after the date of commencement of this Act, by the municipality or by any successor in title to the municipality shall be deemed to have been transferred and shall be held, notwithstanding anything to the contrary in any other law, subject to the conditions referred to in paragraphs (a) and (b) which were applicable to the municipal township land concerned, save that any reference to the British South Africa Company or the Government shall be construed as reference to the President, and subject to any other conditions that may be imposed by the municipality or any subsequent owner of the land.”

It is correct, as contended on behalf of the City of Harare, that, in terms of the section, local authorities have been accorded the right to impose conditions on the transfer of such land in the transfer of lands falling under municipal township lands which would have devolved upon such local authorities by way of grants from central Government.

The Deed of Transfer exhibited to me does not contain conditions apart from a servitude registered in favour of the municipality and the further requirement that any transfer from the title holder will require its prior written consent….,.

I will assume that the reservation for resumption of title and the right to prospect for minerals provided for in the section…, are also applicable. Other than these remarks, I find no relevance in the section referred to the current dispute. The title deed did not impose any conditions other than those that are stated on the same and we are not in this dispute dealing with a resumption of ownership by the State or a dispute relating to mineral rights.

Counsel for the second respondent makes the submission that the conditions referred to in clause 12 of the agreement did not have to be mentioned in the Deed of Transfer. The Agreement…, is as follows:

“12 (a) THE PURCHASER shall effect or cause to be effected on the Stand principal buildings designed for industrial, manufacturing, factory, or other purposes permitted by the Municipality to the minimum value of $750,000=.

(b) Such buildings shall be commenced on the Stand within six months from the date of sale and shall be duly completed within twelve months from such date. If such buildings have not been commenced or completed as aforesaid then in either case the Municipality shall ipso facto be entitled to cancel the sale of the Stand or claim re-transfer as the case may be. If the sale of the Stand is cancelled or the Stand is claimed in terms of this clause for default in the payment of the balance of the purchase price or any interest thereon or by mutual consent then the Municipality shall refund to the purchaser the amount paid in respect of the purchase price of the Stand plus compensation for any buildings or other permanent improvements.”

I am not sure, by that submission, if he means that the section he quoted gives his client the right to summarily expropriate any municipal land.

To begin with, his client is a local authority and cannot be equated, under any circumstances, to the President as provided for in the quoted section. In any event, his client has not set in motion any legal process to reclaim the Stand apart for the alleged letters that I have made reference to above. The view I take is that the attempt to rely on section 154 of the Urban Councils Act does not assist his client's position at all….,.

It is trite that where cancellation is lawful and justified on account of breach it takes effect from the time that the innocent party communicates the breach to the defaulting party. For this proposition, see Bako & Anor v Bulawayo City Council 1996 (1) ZLR 232…, wherein GUBBAY CJ stated the following dicta:

“Thus, it is those actions and events which occurred after 23 March 1992 to which regard must be had in determining whether the resistance to the cancellation was justified in law; for cancellation takes effect from the time it is communicated to the other party. See Swart v Vosloo 1965 (1) SA 100 (A) at 105 (G); Phone-A-Copy World-wide (Pty) Ltd v Orkin & Anor 1986 (1) SA 729 at 752A-C.”

It is common cause that the letter in which the local authority sought to cancel the Agreement of Sale was written on 26 February 2008 - which was a period well in excess of twelve years after the contract was concluded.

I do not think that it can be argued that Agro Chem did not breach the agreement. It did not perform part of the obligations imposed on it in the agreement, in that it failed to construct buildings of a minimum standard and value as demanded by the agreement.

It is not in dispute that prior to the letter of 26 February 2008, there was no intimation, on the part of the local authority, that it was cancelling the agreement due to the breach. The local authority therefore was within its rights to elect to cancel the agreement due to the breach. It is common cause that instead of acting on the breach the local authority went on to have transfer of the Stand registered in the name of Agro Chem….,.

The agreement was concluded on 29 March 1995. When regard is had to clause 12(a) and (b) therefore, the building of improvements with a minimum value of $750,000= should have commenced within six months of the date of conclusion of the agreement. Transfer to Agro Chem was effected on 20 November 1995, which is a period just short of seven months after the agreement was concluded. It was obvious, at that date, that no improvements had been effected on the Stand and that the purchaser might be in mora in the performance of its obligations. There is no suggestion, on the papers, that it sought an extension of time within which to comply with that particular obligation; yet, notwithstanding this failure to abide by the conditions set in the contract, the property was transferred to the purchaser. This failure to build on the Stand is the reason that the local authority seeks to rely on in alleging cancellation of the contract. In my view, an event entitling the local authority to seek cancellation occurred before the transfer was effected yet the local authority elected to discharge the last of its obligations in terms of the contract….,.

From the facts established on the papers, it is my view that the local authority never reserved its rights in the contract, and that if it did those reservations were never communicated to the purchaser. It is my finding that it elected to abide by the agreement notwithstanding the default by Agro Chem to construct improvements as required by the agreement. I find, therefore, that there was waiver on the part of the local authority and it cannot now rely on cancellation to seek to prop up the defence proffered by Gomo to defend the claim mounted for his eviction from the Stand.

HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL
Ruled By: CHITAKUNYE J

In Hundah v Murauro 1993 (2) ZLR 403 (S)…, the court alluded to the fact that:“Land in the high density suburbs belonged to the local authorities, or, occasionally, to central government. Occupants of the houses built in these suburbs fall into three categories (ignoring the 4th category of lodgers or ...

HH37-11 : STANSILOUS K MTIZIRA vs EPWORTH LOCAL BOARD and MAPANZURE and ELPHAS UTETE and ZACHARIOUS GODI
Ruled By: CHATUKUTA J

The applicant filed an urgent chamber application and sought the following relief:“TERMS OF FINAL ORDER SOUGHT1. That the reallocation of Stand number 32, Muguta Shopping Centre, Epworth to the second, third, fourth respondent or any other person be and is hereby reversed.2. That the first respondent is ordered to expedite the process of approving the applicant's ...

The applicant filed an urgent chamber application and sought the following relief:

“TERMS OF FINAL ORDER SOUGHT

1. That the reallocation of Stand number 32, Muguta Shopping Centre, Epworth to the second, third, fourth respondent or any other person be and is hereby reversed.

2. That the first respondent is ordered to expedite the process of approving the applicant's building plans.

3. Alternatively, that first respondent allocates the applicant another commercial Stand of the same size.

4. That first applicant to pay costs of this application on the legal practitioner - client scale.

INTERIM RELIEF GRANTED

Pending the determination of this matter the, Applicant is granted the following relief:

That all respondents are ordered to stop any further developments at Number 32 Muguta, Shopping Centre, Epworth and first respondent is ordered to ensure that no other person will do any work at the Stand.”

The background to the application is that in September 2006, the applicant entered into an Agreement with the first respondent for the lease of a certain property known as Stand Number 32, Muguta Shopping Centre, Epworth. The lease agreement was valid for four years, from August 2006 up to September 2010. The applicant was required, under clause 5 of the Agreement, to commence constructing a building not later than twelve months after the commencement of the Agreement. Clause 20 of the lease agreement provided for an option to purchase the property upon completion of the building. However, in terms of clause 17, the applicant could exercise the option before the completion of the building - if he satisfied the first respondent that he had been granted a loan secured by a mortgage bond over the property, had entered a contract for the construction of the building and had paid the full purchase price of the property.

The applicant contended that on 12 December 2007, he submitted, in compliance with the lease agreement, building plans for the development of the property. The plans had not been approved at the time of hearing this application despite numerous inquiries with the first respondent. He had also paid the full purchase price of the property.

On 18 April 2008, he was surprised to learn that someone, whom he later discovered to be the third respondent, had commenced developing the property.

The third respondent was in the process of digging a foundation on the property.

Upon inquiry with the first respondent's offices, he was advised that the first responded had summarily terminated the lease agreement and had repossessed the property because he had failed to commence developing it within the time specified in the Agreement. The property had then been subdivided and allocated to the second, third and fourth respondents. On 30 April 2009, the applicant obtained an interim order restraining the third respondent from continuing with his developments pending the determination of this matter.

Only the third respondent opposed the application.

He submitted that the first respondent had properly terminated the lease agreement with the applicant because the applicant was in breach of the lease agreement by not commencing construction within the time stipulated in the lease agreement. He further contended that at the time he entered into the lease agreement and purchased his subdivision of the property he was not aware of the applicant's lease agreement. He was therefore an innocent purchaser and therefore the applicant was not entitled to the relief he sought. He had commenced constructing a building in terms of his lease agreement. The granting of the order sought by the applicant would therefore prejudice him.

It appears to me that there are three issues for determination.

HH140-11 : 59 BENEFICIARIES OF VALLEY LANE HOUSING SCHEME vs HARARE MUNICIPAL WORKERS UNION and CITY OF HARARE and OTHERS
Ruled By: MTSHIYA J

On 8 March 2011, I dismissed this application on the ground that it was not properly before the court. The legal practitioners for the second to fifth respondents has since written requesting for reasons for my ruling. These are they: On 8 September 2010, the applicants (i.e. 59 Beneficiaries of Valley Lane Housing Scheme) filed an ...

On 8 March 2011, I dismissed this application on the ground that it was not properly before the court.

The legal practitioners for the second to fifth respondents has since written requesting for reasons for my ruling. These are they:

On 8 September 2010, the applicants (i.e. 59 Beneficiaries of Valley Lane Housing Scheme) filed an application seeking the following relief:

“IT IS ORDERED THAT:

1. The first respondent shall forthwith, that is to say, within two hours of service of this order upon him or his agents, employees or invitees restore possession and control of the fifty nine (59) Stands as marked by the Stand Numbers of Corowborough “B” Township Housing Project (hereinafter called the Stands) through the Deputy Sheriff of Harare, failure which the Deputy Sheriff for Harare, with the assistance of a sufficient number of police officers from the Zimbabwe Republic police, Harare to forcibly evict the first respondent and all those claiming occupation through him from the said Stands.

2. The first respondent shall pay the applicant's cost of suit on the scale of legal practitioner client.”

The facts of the case, as given by Garanewako Mfema, who swore to the founding affidavit, are briefly that in 1997 a company called Valley Lane Investments (Pvt) Ltd entered into an agreement with the City of Harare (the second respondent) to develop and service housing Stands in Crowborough B Township, Harare. The said company was to retain 40 Stands for allocation to its employees who were on the second respondent's waiting list. The applicants herein were on the second respondent's waiting list. Acting through Paragon and Keystone Real Estates, Valley Lane Investments (Pvt) Ltd allocated Stands to the applicants. The applicants signed agreements of sale for the Stands and paid for the Stands.

The second respondent alleged that, in breach of agreement, Valley Lane Investments (Pvt) Ltd had exceeded the agreed allocation of Stands by allocating to its employees 59 Stands instead of 40 Stands….,.

In August 2009, the first and second respondents commenced the takeover of the Stands from the applicants. The applicants moved out of the Stands and now seek the relief indicated….,.

On 22 September 2010, the second to fifth respondents filed notices of opposition to this application.

HB61-13 : TIMOTHY NKOMO vs CITY OF BULAWAYO and FRONT HUNK MARKETING (PVT) LTD
Ruled By: CHEDA AJ

The applicant applied for, and was allocated, an industrial Stand by the respondent on 27 January 2011. The Stand was Number 15357, Kelvin North, Bulawayo. The respondent spelt out the terms and conditions attaching to the allocation of the Stand. The relevant conditions can be summarized as follows: 1. The purchase price was $85,000= (eighty five thousand ...

The applicant applied for, and was allocated, an industrial Stand by the respondent on 27 January 2011. The Stand was Number 15357, Kelvin North, Bulawayo.

The respondent spelt out the terms and conditions attaching to the allocation of the Stand. The relevant conditions can be summarized as follows:

1. The purchase price was $85,000= (eighty five thousand dollars).

2. The deposit of $21,250= had been paid.

3. The balance and interest was to be paid in three equal instalments payable, four, eight and twelve months from the date of the agreement.

4. The purchaser was to comply with the building conditions, that is building in the value of $425,000= to be commenced within 6 months and completed within 24 months of the date of sale.

5. Plans were to be submitted to the respondent prior to any work being commenced.

6. The building was to be used solely for the warehousing of building materials.

7. During the period of the lease, or five year period, leasing or selling any part of the property was prohibited.

8. No persons, whatsoever, were allowed to reside on the premises without the written consent of the respondent.

The agreement also provided that if the purchaser breached any conditions the respondent could demand the full balance of the purchase price if it elected to compel performance, or cancel the sale.

In his founding affidavit, the applicant says he entered into the Agreement with the respondent on 27 April 1998. He carried out certain developments, that is, constructed a durawall, in 2002; connected water in 2005; cleared land while building plans were processed. He said at some stage it appeared the respondent repossessed the Stand from him without advising him. In 2011, he noticed that there were people on the Stand. They claimed to have bought the Stand from a Mr Khumalo for $45,000=. He was told that a resolution of the respondent would be made on the Stand and a letter would be sent to him. He kept on enquiring when the respondent's council would sit, and in November 2011 the respondent resolved that the repossession of the Stand was irregular and was set aside. He was advised by letter dated 9^th January 2012 that it was allocated back to him.

He said he was now approaching the court because the respondent has rescinded its resolution and repossessed the Stand for the second time.

The applicant gave the following as his grounds for review of the respondent's decision;

(1) That he should have been given an opportunity to defend his title to the stand;

(2) That he would persuade the respondent that he had complied with the agreement; and

(3) That he had a right to be heard before the drastic decision was made.

The respondent opposed the application on the basis that the applicant had not complied with the building clause of the Agreement, that is, building the structures within the stipulated period and that the applicant has not shown that any plans were approved. The respondent contends that a letter was sent to the applicant at the address he provided but he took no heed of the notice letter. The applicant had previously been given an extension of 12 months from June 2006 to 31 May 2007. A report was submitted to the respondent in July 2009 showing that there was no development on the property. The applicant was advised by yet another letter to the same address. The respondent says after the cancellation of 7^th June 1998 the Stand was allocated to another person. This other person started developments on the Stand. The respondent says the applicant has failed to develop the Stand for a period of 14 years.

The respondent says the resolution of 2^nd November 2011 to cancel the repossession of the Stand was erroneous. A point was raised that once the repossession was cancelled the allocation was validated. The respondent met and rescinded its resolution to cancel repossession in January 2012. This, it said, was done in terms of section 89(1)(b) of the Urban Councils Act [Chapter 29:15] which empowers it to make such a decision where necessary. The respondent submitted that what was not proper was the respondent's resolution of 2^nd November cancelling the repossession hence its correction.

It persisted in the submission that its decision was proper as the applicant failed to comply with the provisions of the Agreement. The applicant's failure to comply with the above Agreement is not disputed. The applicant, having failed to comply, the Stand was allocated to someone who started construction on the property. The applicant's argument that he was not afforded an opportunity to defend his entitlement to the Stand cannot succeed because there is proof of correspondence sent to him as notices to the address provided by himself at the time of signing the Agreement. He admits seeing the letters about the resolutions sent to the same address. Nowhere in his papers or submissions does he even suggest that he complied with the Agreement. If he had tried to comply, he does not say how someone else purchased the Stand and started developments on it in his absence and without seeing that someone else was developing the Stand.

It is not disputed that for the 14 year period referred to by the respondent the applicant failed to develop the Stand - although he had been given only 24 months. There was nothing wrong with the respondent reversing its decision as this is permitted by section 89(1)(b) of the of the Urban Councils Act [Chapter 29:15]. The applicant, having failed to comply for so long, has no good reason to complain about the cancellation. He was the author of his problems and cannot now blame the respondent for the loss of the Stand. The respondent's decision was in terms of the conditions set in the Agreement and there is no basis for alleging any irregularity that would justify setting the decision aside on review.

The application for review is dismissed with costs at attorney and client scale.

HH102-15 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD vs BINDURA RURAL DISTRICT COUNCIL and FIFTY NINE OTHERS
Ruled By: DUBE J

This is an application for a declaratory order. The applicant is ZETDC Company (Pvt) Ltd, a corporate body whose mandate is the transmission of electricity in Zimbabwe. The respondents are the sixty (60) Rural District Councils dotted across Zimbabwe. The applicant is in the business of transmission and distribution of electricity services. The applicant has various transmission lines that cut across ...

This is an application for a declaratory order.

The applicant is ZETDC Company (Pvt) Ltd, a corporate body whose mandate is the transmission of electricity in Zimbabwe. The respondents are the sixty (60) Rural District Councils dotted across Zimbabwe.

The applicant is in the business of transmission and distribution of electricity services. The applicant has various transmission lines that cut across the length and breadth of the country. It also has various substations located across the country. Some of these lines and substations are located in the areas that fall under the jurisdiction of the respondent rural district councils. The rural district councils charge the applicant a 'unit tax' or 'way leave tax' and a 'development levy' in consequence of the applicant's transmission lines and sub-stations that pass through or are in the various areas of the district councils concerned. The charges range from $20,000= to $50,000=. The applicant avers that the charges levied against it are unsustainable and constitute a threat to the applicant's ability to service the country and are arbitrary and have no lawful foundation….,.

It maintains that the declaration will assist the parties in the future and settle a cogent and topical issue.

At the hearing of this matter, counsel for the applicant raised concern over the taxes being levied against the applicant which include unit taxes, and way leave charges, and a land development levy. He submitted that the taxes cannot be competently charged as they do not apply to the applicant. He contended that if the taxes are being charged, the question of their legality arises. He urged the court, if it finds that the charging is unlawful, to grant the declaratur.

Counsel for the applicant then proceeded to demonstrate that the taxes are actually being charged. He drew the court's attention to paragraph 6(e) of the thirteenth respondent's affidavit where it accepts that way leave charges are being levied by the respondent council. In paragraph 6(a) and 7(a), the thirteenth respondent also accepts that it charges a development levy.

The eleventh respondent, in paragraph 8 of its opposing affidavit, concedes charging unit taxes for each unit of land. The forty-second respondent, in paragraph 14, accepts that it charges unit tax. In paragraph 15 it accepts that it charges way leave charges.

The thirty-fourth respondent, in paragraph 14 of its opposing affidavit, concedes that the respondent charges a specified business levy which is a land development levy. In paragraph 15 it concedes that it charges way leave charges.

The fifty-sixth respondent, in paragraph 11.2, admits to charging way leave charges.

Counsel for the applicant submitted that all these charges are not lawful. He submitted that unit tax can only be charged on A1 and A2 farmers as set out in section 97A of the Rural District Councils Act [Chapter 29:13] (hereinafter referred to as the Act). The applicant contended that unit tax cannot be charged on the applicant. He also submitted that way leave charges are not supported. That the Rural District Councils Act does not give the respondent the power to charge way leave charges.

Counsel for the applicant conceded that the land development tax is charged on a person carrying on a specified business or owners of rural land. He contended, however, that the term specified business, as set out under section 95 of the of the Rural District Councils Act [Chapter 29:13] excludes the applicant's business; that the land development levy is unlawful and cannot be levied on the applicant.

The applicant contends that the levying of the taxes is unlawful and must be declared so. The terms of the order sought are as follows:-

TERMS OF THE ORDER SOUGHT

“IT IS DECLARED THAT:

1.1 The levying by the respondents on applicant of “Unit Tax” and “Way Leave charges” is outside the provisions of the Rural District Councils Act or any other law and is therefore unlawful.

FURTHER THAT:

1.2 Respondents can only lawfully charge such tax or levies as is set out under the provisions of the Rural District Councils Act or any other law for the time being in force in the republic and have no power to raise any charges which are not supported by any statutory provision.

IT IS CONSEQUENTLY ORDERED THAT:

(a) Any tax or levies charged by respondent and which have not been the subject of a judicial determination are unlawful and cannot be enforced in any court of law.

(b) Respondents shall jointly and severally, the one paying the others to be absolved meet the costs of this application.”

The following respondents defended the application; the first, eighth, ninth, eleventh, twenty-eighth, thirty-first, thirty-eighth, fortieth, forty-fifth, forty-seventh, thirteenth and thirty-forth….,.

Counsel for the first, eighth, ninth, eleventh, twenty-eighth, thirty-first, thirty-eighth, fortieth, forty-fifth and forty-seventh respondents acknowledged that his client charges way leave charges. He submitted that way leave charges are not a tax and that not every charge raised by the respondent is a tax. He referred the court to section 76 of the Rural and Urban Planning Act for the proposition. He argued that section 76 of the Rural and Urban Planning Act is wide and does not restrict charges to taxes; that councils can impose once-off charges. He contended that way leave charges are raised after a service has been rendered and that it cannot be a tax and that way leave charges are a once off charge. He further submitted that the land development levy charged is a tax which is charged on any allottee of rural land for a specified business in terms of section 95. That the charge is raised for a permit. He submitted that the permit charge for a power station is a once-off payment. He conceded that a unit tax is a charge for a specific piece of agricultural land and is reserved for farmers. He contended that the applicant is not being charged unit tax by his clients and that the applicant has not shown that it is paying unit tax.

Counsel for the thirteenth respondent stood by his heads and adopted the submissions of counsel for the first, eighth, ninth, eleventh, twenty-eighth, thirty-first, thirty-eighth, fortieth, forty-fifth and forty-seventh respondents.

He briefly submitted that the hardship related to the excessiveness of the charges and taxes allegedly charged, that the applicant complains about, has no place in Tax Law. He conceded that his client charges way leave charges as a once off payment.

Counsel for the fifty-sixth respondent did not make any oral submissions and elected to associate himself with the arguments of counsel for the thirteenth respondent and counsel for the first, eighth, ninth, eleventh, twenty-eighth, thirty-first, thirty-eighth, fortieth, forty-fifth and forty-seventh respondents….,.

Counsel for the thirty-fourth respondent contented that the draft order which deals with unit charges and a development charge cannot be granted without the court being satisfied that every respondent council is charging those taxes. That as some of the respondents are not charging those taxes, the court can have an order dismissing the claim against a council not charging the particular tax. That it was inappropriate to lump together councils with different offences and seek a blanket order against them. She gave an example of the thirty-fourth respondent which denies charging unit tax and the first, eighth, ninth, eleventh, twenty-eighth, thirty-first, thirty-eighth, fortieth, forty-fifth and forty-seventh respondents which denied charging unit tax.

She submitted that paragraph 1 of the draft order deals with unit charges and way leave charges. Development charges come in another paragraph. She urged the court not to grant the order sought without being satisfied that every other council is charging these taxes. She urged the court to dismiss the claim against a council if it is shown that it is not charging a particular tax.

Counsel for the thirty-fourth respondent also submitted that the applicant's allegation that the councils' charges are unlawful and excessive is misplaced as this is not a review. She submitted that there is no point of seeking a declaratory order when some cases that have already resolved the dispute. She contended that this application won't overturn the orders already granted against the applicant. That is not an appeal. She insisted that the preliminary points raised dispose of the application and urged the court to dismiss the application.

On the merits, the thirty-fourth respondent denies charging unreasonable sums and contends that it is not doing what is alleged. It contends that it is levying the land development levy because council owns the land on which the substation is. Counsel criticised the applicant for failure to specify the type of land it is referring to. She contended that the respondent is entitled to charge a land development levy on land owned by the applicant. She submitted that council can charge for permits in terms of section 59 of the Communal Lands Act, and, by resolution, in terms of section 8 of the Rural District Councils Act. She contended, further, that way leave charges are not taxes as the applicant is given use of the land and is given a permit. She contended that the application has no merit and she urged the court to dismiss the application…..,.

THE MERITS

The dispute is over rural land where the applicant's substations are located and that which its power lines traverse. The papers disclose that the various councils charge the following charges; way leave charges, unit tax on land, business development levy or land development levies. The issue that this court is being called upon to determine is whether the applicant is required, in terms of the law, to pay the taxes or levies or charges in issue. Whether the applicants pay these amounts annually or periodically is not the issue.

WAY LEAVE CHARGES

A number of rural district councils concerned stated that they charge way leave charges. This charge is usually charged as a once off payment. They averred that these charges are in respect of power lines in the rural district area and sub-stations erected in their respective areas. They contended that this is a practice that has been in existence over time and has been accepted by both the councils and the applicant. Other councils argued that councils are entitled to charge a land levy in respect of its land occupied by the applicant and for services rendered and do so by charging this levy or charge. They contended that councils are entitled to grant authority for the establishment of the electricity transmission lines and that this constitutes a service as contemplated by section 76(1) of the Rural District Councils Act [Chapter 29:13]. That the issue is not about the name or label attached to a particular levy or charge but rather whether the respondent councils are entitled to levy the applicant in a particular instance. Section 76(1) of the Rural District Councils Act [Chapter 29:13] only permits the fixing of charges, levies or taxes by resolution where it is empowered in terms of the Act to do so. Section 76(1) of the Rural District Councils Act [Chapter 29:13] reads as follows;

“Charges, rents and deposits by resolution

(1) A council may, by resolution passed by a majority of the total membership of the council -

(a) Fix charges and tariffs of charges payable in respect of certificates, licences or permits issued, inspections carried out, services rendered or any act, matter or thing done by the council in terms of this Act;

(b) Fix rents and other charges payable in respect of property let by the council;

Provided that, in any specified area or in such other part of the council area as may be prescribed or as may be notified to the council by the Minister -

(d) No charges, rents or deposits of any kind, other than those in connection with the supply of electricity, may be fixed by a council in respect of residential accommodation or services provided specifically to or in connection with such accommodation, otherwise than by by-laws made or in force in terms of this Act;

(e) A council may, subject to the approval of the Minister, fix in any lease or agreement entered into by it the charges, rents or deposits which shall be payable by the lessee in respect of the occupation of any premises.”

Where a rural district council has issued a certificate, licence, permit, carried out inspections, rendered services, or let out a property, it is entitled to raise a charge or tariff in respect thereof in terms of section 76 of the Rural District Councils Act [Chapter 29:13]. This section empowers council, by way of resolutions, to fix charges or tariffs of charges payable in terms of the Rural District Councils Act.

It is common cause that the applicant is in occupation of parts of rural land in the different district councils through occupation of its substations and transmission lines that cut across the different council areas. There were suggestions that the applicant had entered into agreements or been given permits by the various councils for the erection of the power lines and sub-stations. In any case, where a rural district council has let its property, fixed a rental on it, issued a licence, certificate, permit or inspected or rendered any services on such land, it is entitled to levy or charge the holder of such rights in terms of section 76 of the Rural District Councils Act [Chapter 29:13].The respondents are entitled to do so as long as there is a contract to use or pass through their areas.

The respondents have been levying the applicant for services rendered and where they have granted the applicant a permit to use its land. The charge which they levy under section 76 of the Rural District Councils Act is understood as a way leave charge. The English Collins Dictionary defines “way leave” as 'access to property granted by a landowner for payment'.

There is no mystery over this charge.

What the respondents are charging for is the right of way over their land or property. They do so by charging way leave charges. The fact remains that they are entitled to charge for such rights or access in terms of the Rural District Councils Act. They are charging for a right of way over their property in respect of the power lines. In the case of substations, the respondents are entitled to charge if they can show that the landowner has been granted access to their property. The fact that they have labelled charges they levy in terms of section 76 of the Rural District Councils Act [Chapter 29:13] as way leave charges, does not defeat the charge.

I find that the respondents are entitled to charge way leave charges in terms of section 76 of the Rural District Councils Act [Chapter 29:13].

THE UNIT TAX

This tax is levied in terms of section 97A of the Rural District Councils Act [Chapter 29:13]. The section reads as follows;

“97A (2) Every council shall impose a special unit tax which all persons who on or after the 1^st of January 2011 are or become owners of farms or leases or holders of offer letters or land settlement permits.”

This tax is capable of being levied in respect of owners of farms or leases or holders of offer letters or land settlement permits. The applicant is not a farmer nor does it hold an offer letter, lease agreement or settlement permit.

A unit tax cannot be levied against the applicant in the circumstances of this case.

LAND DEVELOPMENT LEVY

This levy is provided for in section 96 of the Rural District Councils Act. It is a levy that is levied on persons who are owners of rural land within council area or licensed dealers who carry on a specified business on rural land within council area in terms of section 96(e). Section 96 of the Rural District Councils Act [Chapter 29:13] reads as follows;

“96 Levies in rural areas

(1) Subject to this Part, a council may impose a land development levy upon all persons who, on the fixed date, are or who, at any time during the period of twelve months next following the fixed date, become -

(a) Owners of rural land within the council area:

Provided that -

(i)…,.

(ii)…,.; or

(b)…,.; or

(c) Licensed dealers who carry on the business in respect of which their licences are issued on rural land within the council area; or

(d) Owners of land which is deemed to be rural land by virtue of a resolution of the council in terms of section one hundred and two; or

(e) Either persons who carry on a specified business on rural land within the council area or the owners of rural land within the council area on which a specified business is carried on:

Provided that a land development levy may be imposed in respect of any particular specified business upon either the owner of the rural land concerned or upon the person who carries on the specified business but not upon both such owner and such person; or

(f) Holders of permits issued in terms of section 9 of the Communal Land Act [Chapter 20:04] authorising the occupation and use of any portion of rural land within a communal ward of the council.”

This section permits the levying of charges on operators of specified businesses or owners of rural land. The applicant is not an owner of rural land within council area as envisaged by section 96 but may only be required to pay the levy if it carries on a ''specified business'' in terms of section 96(1)(e). 'Specified business' is defined, in section 95 of the Rural District Councils Act, as follows;

“'Specified business' means the business of -

(a) Extracting sand; or

(b) Extracting gravel; or

(d) Extracting and additionally, or alternatively, crushing stone; or

(e) Operating a saw-mill;

whether carried on as a principal business or incidentally to or in connection with any other business:

Provided that the carrying on of any such business by -

(a) The owner of a mining location for the purpose of using all of the products of such business on his mining location; or

(b) A farmer, for the purpose of using all of the products of such business on any farm on which he conducts farming operations;

shall not be regarded as the carrying on of a specified business;”

The applicant does not carry out any of the specified activities falling under the definition of 'specified business'.It business is not specified in terms of the Rural District Councils Act.

It is not competent to levy, on the applicant, a land development levy.

The fact that council may have passed a resolution authorising the levying of charges does not imply that the applicant is required to pay such levy because it is not empowered to do so in terms of the Rural District Councils Act [Chapter 29:13].

The applicant is partly entitled to the declaratur sought. I am unable to accede to the request to bar the respondents from levying any other charge or levy which was not the subject of this judicial determination. Paragraph 1.2 of the draft is superfluous. I do not consider it necessary to deal with the applicant's argument that the charges are too excessive as not sufficient detail was made available for me to make an informed decision….,.

In the result, it is declared as follows;

1. The levying by the respondents on the applicant of “Unit Tax” is outside the provisions of the Rural District Councils Act [Chapter 29:13] or any other law and is therefore unlawful.

2. The levying by the respondents on the applicant of “Way leave charges”, under section 76 of the Rural District Councils Act [Chapter 29:13] is intra vires the Act and is lawful.

HH141-15 : GOODWELL CHIPURIRO vs CITY OF HARARE
Ruled By: UCHENA J

The applicant filed an urgent application seeking an order to compel the City of Harare to release his motor vehicle it impounded on 12 January 2015. The applicant filed his application on 28 January 2015….,. The respondent disputes the applicant's allegation that his motor vehicle was impounded by Epah Muguti an alleged bogus police officer.

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

The brief background facts to this matter are largely common cause. I set them out as follows:

In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).

The lease agreement was constantly renewed over the years with the last renewal being agreed upon on 20 June 2007 for a further three years. Thus, the lease agreement between the parties is due to expire by effluxion of time on 31 March 2010.

It was a specific term of the agreement between the applicant and the first respondent that the applicant would not sublet the premises without the written consent of the lessor.

In 2008, the applicant and the second respondent reached an understanding in terms of which the second respondent moved onto and took occupation of part of the premises….,.

In January 2009, the first respondent wrote to the applicant, summarily terminating the lease agreement and seeking the ejectment of the applicant from the premises. This was on the allegation that the applicant was subletting the premises to the second respondent without the prior written consent of the lessor and in breach of the specific term of the lease agreement against sub-letting.

When the applicant tendered rentals for the month of February 2009, these were rejected on the basis that the lease agreement had been cancelled.

This, in turn, prompted the applicant to approach this court seeking;

(i) Firstly, an order holding the first respondent to the lease agreement on the basis that it was not sub letting to the second respondent as alleged; and

(ii) Secondly, an order ejecting the second respondent from the premises.

The application was opposed by both respondents.

In opposing the application, the first respondent contended that it had proceeded in terms of the lease agreement to summarily cancel the lease agreement as the applicant was in breach. It justified its action by relying on clause 21 of the lease agreement which provides that:

“If the lessees shall fail to pay the rent on the due date or at the latest within ten days thereafter or if the lessees shall commit any other breach of the terms or conditions of this lease then the Municipality shall have the right, in its discretion, summarily to terminate this lease and retake possession of the Stand without payment of any compensation whatsoever and without prejudice to any claim which it may have against the lessees for rent already due or for any damages which it may suffer by reason of such breach or termination.”

The second respondent's opposition to the application is, in my view, somewhat curious.

The second respondent is the alleged sub-lessee and it objects to the continuation of the lease agreement between the applicant and the first respondent. While admitting, as contended by the applicant, that it took occupation of the premises in anticipation of a joint venture between itself and the applicant, the second respondent does not proffer any defence as to why it should not be evicted from the premises at the instance of the applicant.

Instead, and curiously so as I have observed above, it adopts and pleads the case of the first respondent that the applicant was in breach of the lease agreement, indeed, epitomizing the proverbial stranger who mourns louder than the bereaved.

It further avers, that, in February 2009, when the applicant's rentals were turned down, this was because it had paid these in respect of the property. It however falls short of alleging that it is now the tenant in respect of the property.

In its opposing affidavit, the first respondent does not admit any formal relationship with the second respondent. It simply maintains that the applicant's rentals for February 2009 were not accepted as its lease had been cancelled.

I believe it is pertinent, at this stage, that I dispose of the issue between the applicant and the second respondent.

As observed above, the applicant is seeking the eviction of the second defendant from the premises on the basis that the proposed joint venture between the parties has failed.

This is not disputed by the second respondent which then proceeds to aver, that, after the joint venture had failed to materialize, the applicant demanded rentals from it, thereby creating the sublease.

The totality of the averments made by the second respondent, even if proved, do not constitute a defence to an order for eviction at the instance of the applicant. Thus, in the event that I find for the applicant and hold the first respondent to the agreement, I must perforce order the eviction of the second respondent from the premises on the basis that the second respondent has failed to proffer a defence to the applicant's claim.

The issue that remains for my determination is between the applicant and the first respondent: it is whether the first respondent was justified in summarily cancelling the lease agreement without first affording the applicant a chance to respond to the allegations that it was sub-letting the premises to the second respondent.

It is trite that even where a lease agreement grants the lessor the right to cancel the lease on account of breach and to re-take possession of the leased premises, as was the position between the applicant and the first respondent, such cancellation is always subject to the control of and confirmation by the court.

The lessor has to approach court for the confirmation of its cancellation of the agreement and for the eviction of the tenant. The right to summary termination of the lease agreement, no matter how clearly worded, does not oust the jurisdiction of the court to grant the eviction order.

The existence of the grounds for and the validity of the cancellation of the lease agreement are always subject to validation and confirmation by the court which alone can order the eviction of the defaulting tenant.

The lessor cannot exercise self-help and retake possession of the property without a court order - even where the agreement specifically provides so: see Livingstone v Solomon 1924 SR 117; Joubert v Bester 1977 (2) SA 641 (T); Towers v Chipata 1996 (2) ZLR 261 (HC): and Bater and Another v Muchengeti 1995 (1) ZLR 80 (SC)…,.

In casu, the first respondent did not independently approach the court for the eviction of the applicant after it became aware of the alleged breach in the form of subletting.

After being served by this application, it did not seek to counter apply for the confirmation of its cancellation of the lease agreement and the eviction of the applicant.

The validity of its actions, in cancelling the lease agreement and its threat to re-take possession of the premises, have been brought before the court by the applicant, not for its confirmation but for it to be set aside on the basis that the first respondent did not give the applicant an opportunity to respond to the allegations before it acted summarily.

Thus, it appears to me that even if I were to find that the purported cancellation of the lease agreement by the first respondent was justified in the circumstances, that finding would not automatically translate into an order evicting the applicant from the premises as there is no prayer before me for the eviction of the applicant from the property.

In my view, such a finding, if I were to make it, would simply lay the foundation for the issuance of an eviction order against the applicant at the instance of the first respondent whenever it is moved to seek such an order.

It is on the basis of the above, that, in my view, it is not necessary that I make a finding as to whether or not the applicant was subletting to the second respondent and was therefore in breach of the lease agreement.

In my view, to do so would be to tie down the court that may be approached by the first respondent for an order evicting the applicant from the property.

In my view, the legal issue that must be resolved in this matter is whether, in light of the promulgation of the Administrative Justice Act [Chapter 10.28] (“the Act”), the powers of the first respondent, as a local authority, to act summarily as it did, has been modified.

Hence, at the hearing of the matter, I directed the parties to make reference to the provisions of the Administrative Justice Act which came into operation on 3 September 2004.

My anxiety not to overlook the provisions of the Administrative Justice Act was prompted by the admitted fact that the first respondent acted strictly in terms of the lease agreement between the parties and did not afford the applicant a chance to be heard before it summarily cancelled the lease agreement on the allegation that the applicant was sub-letting the premises to the second respondent.

I have now received extensive heads of argument from both counsel in this matter and I appreciate the assistance rendered me in this regard.

Counsel for the first respondent, ingeniously in my view, put the issues that arise from a consideration of the provisions of the Administrative Justice Act as follows:

“1. Whether or not the applicant, by entering into a lease agreement which entitles first respondent to summarily terminate the lease agreement, can be held to have waived its right to be heard as provided (for) in the Administrative Justice Act.

2. Whether or not first respondent cannot validly enter into a contract with the applicant which varies or excludes some provisions of the Administrative Justice Act.”

I view the settling of the issues by counsel for the first respondent as ingenious as the Administrative Justice Act came into operation on 3 September 2004 when the parties were already in the landlord and tenant relationship. The applicant could thus not have waived rights under the Administrative Justice Act when it contracted with the first respondent as such rights were not in existence and had not accrued to it.

By the same token, the parties could not have expressly excluded the provisions of the Administrative Justice Act in their agreement as the lease agreement preceded the coming into operation of the Administrative Justice Act.

All in all, I gain the impression that counsel for the first respondent, in settling the issues in the manner that he did, was at pains to show that the provisions of the Administrative Justice Act are not binding on the parties before me.

Whether the first respondent is bound by the provisions of the Administrative Justice Act is the issue that I address in this judgment.

Counsel for the applicant, on the other hand, perceived the issue arising from the provisions of the Administrative Justice Act as simply whether these have introduced the application of rules of natural justice into the filed of Contract Law where one of the parties is a local authority as is the first respondent before me.

I tend to agree with his definition of the issue that falls for my determination in this suit.

The rule at common law is that tenets of natural justice have no application in the law of contract unless the aggrieved party can prove that the contract impliedly imported and incorporated such into the contract: see Machaya v BP Shell Marketing (Pvt) Ltd 1997 (2) ZLR 473 (H).

With the promulgation of the Administrative Justice Act, it appears to me that this common law was varied in some instances as it applies to administrative authorities to which the Act applies.

I first have to determine whether the Administrative Justice Act applies to the first respondent.

In section 2, the Administrative Justice Act defines administrative authority to include any person, committee, or council of a local authority.

In casu, it is common cause that the decision to summarily terminate the lease agreement between the applicant and the first respondent was taken on behalf of the first respondent by a duly authorised employee or committee of the first respondent, who or which, by virtue of the provisions of the Administrative Justice Act, becomes the administrative authority for the purposes of the Act.

This is not in dispute.

In the same section, an administrative action is defined to include any action or decision taken by an administrative authority.

The definition given in the section appears to me to be immensely wide. I would venture to suggest that the definition of “administrative action” in the Administrative Justice Act is wider than that given in section 1 of the South African Promotion of Justice Act as reported in decisions such as Sikutshwa v MEC for Social Development, Eastern Cape, and Others 2009 (3) SA 47 (TkH) and Nedbank Ltd v Master of the High Court, Witwatersrand Local Division and Others 2009 (3) SA 403 (W) where it is stated that “administrative action” in terms of section 1 of the Act means any decision taken, or any failure to take a decision by an organ of State when such organ of State is exercising a public power or performing a public function in terms of legislation which adversely affects the rights of any person and which has a direct, external legal effect.

In my view, the definition of 'administrative action' as given in section 1 of the South African equivalent of the Administrative Justice Act, as compared to the definition given in the Administrative Justice Act, marks the point of departure in the laws of our two countries.

Thus, in South Africa, if action is taken on the basis of a contract between the parties, such has been held not to constitute 'administrative action' that is subject to the provisions of the Promotion of Justice Act: see Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) 2008 (3) BCLR 251 and De Villiers v Minister of Education, Western Cape and Another 2009 (2) SA 619 (C).

In excluding contractual relations from the application of the Promotion of Justice Act (PAJA), the South African courts have been guided by the definition of “administrative action” that I have referred to above and is captured in the following remarks by NQCOBO J…, in Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) 2008 (3) BCLR 251:

“The subject-matter of the power involved here is the termination of a contract of employment for poor work performance. The source of the power is the employment contract between the applicant and Transnet. The nature of the power involved here is therefore contractual. The fact that Transnet is a creature of statute does not detract from the fact, that, in terminating the applicant's contract of employment, it was exercising its contractual power. It does not involve the implementation of legislation which constitutes administrative action. The conduct of Transnet, in terminating the employment contract, does not, in my view, constitute administration. It is more concerned with labour and employment relations. The mere fact that Transnet is an organ of State which exercises public power does not transform its conduct, in terminating the applicant's employment contract, into administrative action.”

With much commendable foresight (or hindsight), the legislature, in enacting the Administrative Justice Act [Chapter 10.28] specifically included acts by all public authorities, even where the power to carry out the act is derived from a contract, thereby obviating the need for our courts to debate the issue that fell for determination in the South African courts in matters involving the termination of employment contracts.

Section 2 of the Administrative Justice Act defines “administrative action” as follows:

“(1) In this Act —

'administrative action' means any action taken or decision made by an administrative authority and the words 'act', 'acting' and 'actions' shall be construed and applied accordingly;”

In the same section, 'empowering provision' is defined as follows:

“(1) In this Act —

'empowering provision' means a written law or rule of common law, or an agreement, instrument or other document in terms of which any administrative action is taken;”

My reading of the two definitions put together makes me arrive at the conclusion, that, for the purposes of the Administrative Justice Act, any decision made by an administrative authority under the empowering provisions of any enactment, in pursuance of any rule of common law, in terms of an agreement between itself and another party, or in terms of any legal instrument, shall be made fairly and in accordance with the provisions of the Administrative Justice Act.

In my view, one can say the statutory provisions protecting the public's rights to fair administrative decisions, as given under the Administrative Justice Act, are considerably wider than those conferred under the South African equivalent, and, to construe them restrictively would be to take away from the public, by judicial interpretation, that which the legislature has given.

That the promulgation of the Administrative Justice Act [Chapter 10.28] brings in a new era in Administrative Law in this jurisdiction cannot be disputed.

It can no longer be business as usual for all administrative authorities as there has been a seismic shift in this branch of the law. The shift that has occurred is, in my view, profound as it brings under the judicial microscope all decisions of administrative authorities save where the provisions of section 3(3) of the Administrative Justice Act applies.

On the basis of the foregoing, I find that the decision by the first respondent to summarily terminate the lease agreement between itself and the applicant was an administrative action carried out by an administrative authority, empowered to do so by the lease agreement between the parties.

The Administrative Justice Act applies fully to such a decision.

The Administrative Justice Act provides, in the main, that, an administrative authority which has the responsibility or power to take any administrative action which may adversely affect the rights, interest, or legitimate expectation of any person shall, inter alia, act reasonably and in fair manner.

The Administrative Justice Act proceeds to define what a fair manner, for the purposes of the Act, shall entail and this includes the adequate notice of the nature and purpose of the proposed action and a reasonable opportunity to make adequate representations - in my view, an embodiment of the audi alteram partem rule.

In my further view, the Administrative Justice Act is simply a codification of the position that was gaining general acceptance at common law to the effect that rules of natural justice have to be observed before any administrative decision is taken where such may adversely affect the rights or property of an individual: see Grundling v Beyers and Others 1967 (2) SA 131 (W).

Thus, even prior to the enactment and promulgation of the Administrative Justice Act, courts in this jurisdiction were generally alive to the need to import fairness into administrative decisions even those that were founded primarily on contract, especially the employment contract: see Machaya v BP Shell Marketing (Pvt) Ltd 1997 (2) ZLR 473 (H).

On the basis of the above, it is therefore my finding that the first respondent was bound to act fairly in terminating the lease agreement between itself and the applicant.

It failed to do so.

By failing to act fairly in the circumstances, it breached the obligations placed upon it by the law. Its consequent decision, arrived at in circumstances where it had failed to act fairly, cannot therefore stand.

I make this decision in the full knowledge of the fact that the first respondent genuinely believed it had a case against the applicant and that the lease agreement between itself and the applicant allowed it to act as it did.

Notwithstanding all that, because the law imposes a duty on the first respondent to act fairly in the matter, its decision has to be set aside as it was arrived at unfairly. The decision is set aside even without an examination of whether or not the applicant was subletting the premises in promotion of the need to advance fairness in public administration as embodied in the Administrative Justice Act.

Before I dispose of this matter, I need to deal with a point in limine taken by the first respondent in this matter and arising out of adjectival law.

The first respondent contends that the applicant did not approach this court for relief under the Administrative Justice Act and thus I cannot apply the provisions of the Administrative Justice Act to its advantage.

Section 4 of the Administrative Justice Act provides that any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

It is common cause that the applicant filed this application challenging the decision of the first respondent to summarily cancel the lease agreement. It filed a court application in terms of the Rules.

While the application does not make any reference to the provisions of the Administrative Justice Act, in my view it makes allegations that fall squarely within the provisions of the Act.

I was satisfied, before I referred the question to the parties for further argument, that the allegations and contentions made by the applicant in its court application fell within the purview of the Administrative Justice Act even if the Act was not specifically invoked.

In my view, generally, it is not necessary for an applicant to specifically plead the law that it seeks to rely on as long as the necessary averments are made therein to sustain a cause of action under the applicable law unless the law under which he or she is proceeding requires that certain averments be specifically pleaded.

The court is not a slave to the form of the law. It is always a slave to justice whom it must always serve.

For the avoidance of doubt, if I have erred in allowing the applicant to bring a deformed application before the court and the correct position is that it was necessary for the applicant to specifically invoke the provisions of the Administrative Justice Act, I will condone that oversight in terms of section 4(c) of High Court Rules, 1971.

As correctly pointed out by the first respondent, this is not an application for review. It is an application for the setting aside of an administrative decision on the basis that it was not arrived at fairly and thus, at law, contravenes the Administrative Justice Act.

In view of the fact that the applicant succeeds on a matter that it did not specifically raise in its initial heads of argument, I will not punish the first respondent with an award of costs. The same does not apply to the second respondent.

In the result, I make the following order:

1. The decision by the first respondent to summarily cancel the applicant's lease agreement is hereby set aside.

2. The second respondent and all those occupying through it are to vacate the premises at Number 9 Market Street within 7 days of this order failing which the Deputy Sheriff is hereby authorised to evict the second respondent and all those occupying through it from the premises.

3. The second respondent shall bear the applicant's costs of suit.

SC17-18 : CBZ BANK LIMITED vs DAVID MOYO and DEPUTY SHERIFF HARARE
Ruled By: PATEL JA, MAVANGIRA JA and UCHENA JA

I must note the distinction between the sale of property and the cession of rights to property from one person to another.McNALLY JA in Gomba v Makwarimba 1992 (2) ZLR 26 (S)..., said:“As so often happens, the parties have used the word 'sale' to describe what is in reality a ...

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

This is a constitutional application.

The applicants want section 4 and section 6(1)(b) of the Communal Land Act [Chapter 20:04] declared ultra vires the Constitution of Zimbabwe.

The draft order does not identify which particular sections of the Constitution the impugned provisions allegedly conflict with; but, according to the founding affidavit, the impugned provisions are an infringement of the applicants right to life; their right to human dignity; their right to property; their right to equal protection and benefit of the law; and their right to culture and language, allegedly as protected by section 48; section 51; section 72; section 63; section 56(1) and section 68 of the Constitution.

Section 4 of the Communal Land Act vests all communal land in the President, the third respondent herein. The provision reads:

“4 Vesting of Communal Land

Communal Land shall be vested in the President, who shall permit it to be occupied and used in accordance with this Act.”

Section 6 of the Communal Land Act empowers the President to make additions to or make subtractions from communal land. The impugned provision reads:

“6 Additions to and subtractions from Communal Land

(1) Subject to this Act…, the President may, by statutory instrument —

(a)…,.;

(b) After consultation with any rural district council established for the area concerned, declare that any land within Communal Land shall cease to form part of Communal land.”

The Communal Land Act defines 'Communal Land' as consisting of land, which, immediately before the 1st of February 1983 was Tribal Trust Land in terms of the Tribal Trust Land Act 1979 (No.6 of 1979), subject to any additions thereto or subtractions therefrom made in terms of section 6.

In terms of the Tribal Trust Land Act, tribal trust land consisted of land which, immediately before the appointed day (the day the Act would come into operation), was Tribal Trust Land in terms of the Land Tenure Act [Chapter 148], subject to any additions thereto and subtractions therefrom made in terms of that Act.

Tribal trust land, according to the Tribal Trust Land Act, vested in the President.

According to the uncontroverted facts presented by the applicants, they are all members of an ethnic community in Zimbabwe called the Hlengwe Shangaani.

This community occupies the south eastern Lowveld of Zimbabwe: mainly areas bordering, or falling within Chikombedzi, Chiredzi, Gonarezhou, Hippo Valley, Malilangwe, Mwenezi and Triangle, along rivers such as Save, Runde and Limpopo. This ethnic group is also found in parts of Mozambique and South Africa. It traces its history to more than 500 years ago in the parts that they are settled in.

It claims occupation of the lands in question well before the advent of colonialism in the 1890s. It even claims occupation before the seismic Mfecane migration that happened in Southern Africa in the 19th century when large swathes of ethnic groupings escaped with their leaders from Tshaka, the ruthless military ruler from Zululand. The migrants moved to occupy lands north of rivers Limpopo and Zambezi in parts of present day Zimbabwe, Mozambique, Malawi and Zambia.

What has triggered this constitutional onslaught by the applicants are a series of legal instruments passed by central Government, through the respondents (Minister of Lands, Agriculture, Water, Climate and Rural Resettlement, Minister of Local Government and Public Works, the President of the Republic of Zimbabwe and the Attorney General of Zimbabwe) in February and March 2021.

First, was Statutory Instrument 50 of 2021, S.I.50 of 2021, on 26 February 2021 (Communal Land [Setting Aside of Land] [Chiredzi] Notice, 2021).

In terms of it, an improperly described Minister of Local Government, Urban and Rural Development purportedly gave notice of the setting aside of 12,940 hectares in the administration district of Chiredzi for the purpose of 'lucerne production'. The notice went on to order, that, any person occupying or using the affected land otherwise than by virtue of a right held in terms of the Mines and Minerals Act [Chapter 21:05] should depart permanently with all his or her property from the land by the date of the publication of the notice, unless he or she acquired rights of use or occupation in terms of section 9(1) of the Communal Land Act.

Then, there was Statutory Instrument 51 of 2021, S.I.51 of 2021, on the same date, (Communal Land [Excision of Land] Notice, 2021).

In terms of it, the President, acting in terms of section 6(1)(b) of the Communal Land Act, excised the same land and declared that it had ceased to be part of Chiredzi Communal Land. The obnoxious order directing occupiers and users of the affected land to depart immediately with their property was left out.

Then, on 9 March 2021 was Statutory Instrument 63A of 2021,S.I.63A of 2021, (Communal Land [Setting Aside of Land] [Chiredzi] Notice, 2021: Correction of Errors). It corrected the mistake in SI50 of 2021. Where the latter had referred to the Minister of Local Government, Urban and Rural Development, and to its purpose as being lucerne production, the correcting instrument now referred to the Minister of Local Government and Public Works, the second respondent herein. The 'purpose' was changed from 'lucerne production' to 'establishment of an irrigation scheme'. Again, the order to users and occupiers to depart immediately was left out.

Finally, on 16 March 2021, was Statutory Instrument 72A of 2021,S.I.72A of 2021, (Communal Land [Setting Aside of Land] [Chiredzi] Notice, 2021).

In terms of it, the second respondent (Minister of Local Government and Public Works) gave notice, in terms of section 10 of the Communal Land Act, for the setting aside of the same piece of land for the purpose of establishing an irrigation scheme. It went on to repeal SI50 of 2021. Again, no mention was made of the order for users and occupiers to depart immediately.

The applicants grounds for the constitutional challenge are multiple....,.

Distilled, the applicants case, as I have understood it, and in my own words, is this:

(i) Given the history and manner of occupation of the lands in question by their ancestors, it is wrong to classify their territories as communal land within the meaning of the Communal Land Act. Their ancestors were not placed in those areas by colonialism. Their lands are not tribal trust land as is the case with the majority of the other ethnic groups in Zimbabwe. Their land was not artificially created and carved out by the Land Apportionment Act. They have owned it in their own right as indigenous people.

(ii) For the respondents to strip them of their land, or to displace them in the manner, and for the purposes intended, is to virtually pass the death sentence upon the entire community. The community occupies the land of their ancestors. It ekes out a living from pieces of lands ranging in sizes from about 12 hectares to about 16 hectares. The community comprises peasant farmers. They practise mixed farming. This consists of, among other things, crop and livestock production. Some members of the community are contract farmers for Delta Beverages for the production of sorghum. They rely on their land for virtually everything in life: food; medicines; culture; education; dignity; marriage, you name it.

(iii) The intended move by the respondents is an unlawful deprivation of their right to property as enshrined in section 71 and section 72 of the Constitution. In terms of the Constitution, no person may be compulsorily deprived of their property except in terms of a law of general application and for the public good, and on reasonable notice. Whilst the Land Acquisition Act [Chapter 20:10] may be such a law of general application, the Communal Land Act is not. However, the Communal Land Act is exempt from the Land Acquisition Act.

(iv) The Communal Land Act has a violent, obnoxious, and racist origin. It is a racist colonial relic. It is most shocking and inexplicable that a black government, born out of a bloody and protracted war of liberation against the white settler regime over the land question, has decided to retain this racist construct in its statute books. The vesting of communal land in persons other than the original owners stemmed from the racist philosophy that the aboriginal owners of that land, the indigenous black Africans, were barbarians with no grain of civilisation. Their backward state of development prevented them from treating land as a commercially tradable commodity that was capable of individual ownership.

(v) The racist colonial notion, that natives had no concept of private ownership of land, found expression in various racist pieces of agrarian legislation, writings, and judicial pronouncement. It all started with the Berlin Conference in 1884–1885. European powers carved out for themselves swathes of the African continent on the notion that blacks were barbaric, backward, and not capable of owning land. The British colonised what is present day Zimbabwe. They allowed the imperialist and adventurist Cecil John Rhodes and his British South Africa Company to cheat, rob, steal and plunder the African of his land. Blacks were driven and penned into unproductive 'native reserves'.

(vi) Regarding legislation and/or legal instruments, it all started with the Morris Carter Commission of 1925. It was a Commission set up to debate the issue whether blacks and whites could live side by side. From the premise that the black man, even under the veneers of civilisation, always reverted to his congenital barbarism, the African was pushed into unfertile tribal lands that were held in trust for him to minimise contact with the civilised white settlors. The fertile lands were reserved for the white settlors. Then, followed a series of racist legislation which condemned the indigenous black population to those wretched lands. Among others, there was the Land Apportionment Act of 1930. Then, the Land Husbandry Act of 1951; the Land Tenure Act, and then the Tribal Trust Land Act. All these were designed to segregate land into, among others, white and native areas. The whites took the lion's share of all the fertile lands. The blacks were condemned to eke out a living in overcrowded, dry, and extremely unfertile territories.

(vii) The decision of the Privy Council in England, in the case of In re Southern Rhodesia (1919) AC 211, gave judicial pronouncement to the racist construct that separate ownership of land was an alien concept to the native who was at the lower end of the scale of social organisation and civilisation.

(viii) With the attainment of independence in Zimbabwe in 1980, the new black Government merely renamed the Tribal Trust Land Act the Communal Land Act. But, it retained completely intact the racist provision depriving indigenous people occupying communal lands the right to have titled deeds. It is irrational and in defiance of logic that white settlors who forcibly took away black owned farms or built towns and townships in black areas could own that land privately, yet, indigenous owners settled in so-called reserves just across those farms or townships could not, and still cannot, obtain the right to private title. There is no logic in a situation where an African can acquire title to a small piece of land that he or she buys, or is allocated to him or her, in a township like Tshovani in Chiredzi, or Borrowdale in Harare, or Makokoba in Bulawayo, but with the same African, a stone throw away in Chilonga Communal Land, being unable to acquire similar title to the land of his or her birth.

(ix) Internationally, the various conventions and charters on human and people's rights have guaranteed the rights of access to, and the use of land and other natural resources held under communal ownership. Several other countries have grappled with agrarian reforms but in a rational and thoughtful manner. The applicants are entitled to the right to self-worth and human dignity in terms of the Constitution. The intended move by the respondents deprives the applicants, and their community, of the right to live on their lands. They will be moved without compensation. They have not been properly consulted. Government functionaries have merely appeared on the scene to inform them of the intended development. Lucerne production, or the purported irrigation scheme, are intended to benefit rich foreigners, not the local community.

(x) The agrarian reform undertaken by the Government from 2000 is an unfinished business. Government must issue title deeds or tradable certificates of occupation which can be hypothecated. There can be established a controlled land market for communal lands. Such a controlled market will ensure that foreign land barons do not buy out communal land. In countries, such as Ghana and Kenya, the land tenure systems are such that indigenous communities own their land which they can parcel out and sell subject to control by the community leaders.

The respondents contest none of the above narrative.

Through the Attorney-General, the fourth respondent herein, who has deposed to an affidavit on behalf of all of them, the substantive case for the respondents, again as I have understood it, and in my own words, is this:

(i) Section 4 and section 6(1)(b) of the Communal Land Act are not ultra vires the Constitution. There is nothing wrong in vesting communal land in the State President. Residents of communal lands have the right to use and occupy that land subject to the administrative oversight imposed by the Act. This is designed to ensure orderly development of communal lands. Residents of properly established townships in urban areas are governed by a different legal regime altogether. They cannot be compared to residents of communal lands. Communal lands are inhabited by ethnic communities with common customs and traditions. To allow private ownership of those territories poses grave danger to the customary practices, traditions, and livelihoods of those people. Vesting of such lands in the President is done to ensure orderly development. The President does not own the lands in his personal capacity, but by virtue of the powers vested in him as the State President.

(ii) No development of any significant proportion occurs in communal lands without prior and proper planning and consultations with the community leaders and the local authorities. This is what has happened in the case of Chilonga. The initial reference to 'lucerne production' was a mistake. What is intended to be done is to develop a vast irrigation scheme for the benefit of the local community.

No one will be displaced as the land that has been identified is largely un-inhabited. Those that may be affected will be relocated and compensated adequately in accordance with the provisions of the Act.

Such kind of development is not uncommon.

Sometimes, it is necessary to bring vast tracts of land that may be lying idle into production for the benefit of the affected communities and the country as a whole. It has happened with the Kanyemba area, the Bulawayo Kraal, and the Batoka in Hwange. The intended irrigation project in Chilonga will be an extension of the Tugwi-Mukosi project.

To the extent that it overlooks the obvious benefits of the intended project, namely, the generation of foreign currency, overall rural development, the provision of basic amenities like clinics, schools, and better housing, and the establishment of an economic hub in Chilonga, the application is myopic. It is frivolous and vexatious.

(iii) The Communal Land Act ensures, that, there is proper management of resources in the communal areas. Communal land encompasses a whole lot of other key natural resources such as wildlife and natural forests which require protection. Traditional leaders in the communal areas interface with rural district councils to ensure that there is proper use of the land. The Act is a self-contained model for rural development and transformation.

The application is a compelling dissertation on the history of the occupation of the territory that is now present day Zimbabwe; the savagery and ruthlessness that was associated with the forced dispossession of the local population of their resources, including land and cattle, and their virtual enslavement in the land of their births - all this by the incoming foreign white settlers.

There can be no question, that, the Communal Land Act, particularly the vesting of title of such lands in any person other than the occupiers and users of that land, has its origins in the pathological hatred of the aboriginal races by the invading forces and the retrograde, self-serving conceptions and philosophies concerning the indigenous African.

He was viewed as a congenital barbarian, a sub-human being and an uncivilised savage, who, among other despicable traits, did not recognise land as being capable of private ownership, and, therefore, a commercially tradable commodity.

The history presented by the applicants in this application rings true for virtually every piece of the African continent that was under colonialism. It is virtually impossible to narrate it with dispassionate detachment without getting emotionally entangled.

However, when it comes to the nuts and bolts of the case, and the remedy the applicants seek, it becomes a different ball game altogether.

There are simply some things or problems that the law and the courts alone may not accomplish or resolve.

There are simply some issues that a court alone may be ill-equipped to provide a solution to. There could be some questions that the law and the courts are perfectly poised and empowered to resolve. Then, there are others that require a political solution. Sometimes politics has to speak first, and, only then, may the law take over. Where politics has not yet spoken, or where it has spoken something else, there may well be a lacuna in the law. The courts may be ill-equipped to fill up the gap.

Where a matter is not capable of judicial resolution, the court may decline jurisdiction.

I must explain what I mean.

The Constitution, in Chapter 8, vests judicial function in the courts. Courts exist to exercise judicial power of the State. But, in a constitutional democracy, the doctrine of the separation of powers confines the courts to their lane of operation. This was underscored in Doctors for Life International v Speaker of the National Assembly & Ors 2006 (6) SA 416 (CC)…, as follows:

“Courts must be conscious of the vital limits on judicial authority and the Constitution's design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means, that, the judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution.”

This principle was also clearly articulated in International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC)…,:

“Where the Constitution or valid legislation has entrusted specific powers and functions to a particular branch of government, courts may not usurp that power or function by making a decision of their preference. That would frustrate the balance of power implied in the principle of separation of powers. The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of government, but, rather, to ensure that the concerned branches of government exercise their authority within the bounds of the Constitution. This would especially be so where the decision in issue is policy-laden as well as polycentric.”

Courts do recognise the political question doctrine.

There are certain decisions that are better left to Parliament or the Executive to resolve.

In Nyambirai v National Social Security Authority & Anor 1995 (2) ZLR 1 (S) the Supreme Court…, put it as follows:

“I do not doubt, that, because of their superior knowledge and experience of society and its needs, and a familiarity with local conditions, national authorities are, in principle, better placed than the Judiciary to appreciate what is to the public benefit. In implementing social and economic policies, a government's assessment as to whether a particular service or programme it intends to establish will promote the interest of the public, is to be respected by the courts. They will not intrude but will allow a wide margin of appreciation unless convinced, that, the assessment is manifestly without reasonable foundation.”

In the case of Commercial Farmers Union v Minister of Lands & Ors 2000 (2) ZLR 469 (S) it was recognised, that, the land issue lies in the political domain to resolve. It was categorically accepted as fundamentally true, that, the land issue was a political question. It was said, that, the political method of resolving that question was by enacting laws. To this extent, it was recognised, that, the Government had just done that. It had enacted and amended the Land Acquisition Act.

The only problem was that the Government was not obeying its own laws.

When a Government does not obey its own laws there can be no question of the courts keeping mute in their lane. They will speak out. They will call the Government to account. It is their constitutional mandate.

In the present case, I am not convinced that the impugned sections in the Communal Land Act are ultra vires the Constitution.

The Act may have an obnoxious and racist parentage: but, at independence, in 1980, and beyond, up to the present day, the Government, in its infinite wisdom, decided to retain the Tribal Trust Land Act intact, albeit under a new title. It decided to leave the concept of vesting of communal lands in the State President intact.

That was a political decision.

The respondents have argued why that was so. The applicants dismiss that argument. But, I would think that without some sort of commission of enquiry on the whole agrarian reform, especially as it applies to communal lands, this court may not be sufficiently qualified to provide a wholesome solution to the question of private ownership of communal lands.

It is not an unreasonable fear, that, the granting of title carte blanche to users and occupiers of communal lands may result in undesirable consequences.

For example, foreign land barons may end up owning vast tracts of communal land. This may disrupt the orderly customary way of life in those territories.

If there are safeguards that may be put in place, like what the applicants say happened in Kenya and Uganda. I just do not have sufficient information and knowledge of what they are.

A holistic approach to the question is required instead of providing some random remedy under some constitutional fiat.

The history of the occupation of the territories the applicants and their community hail from may be unique. The respondents have not contradicted it. But, in my view, this does not distinguish such territories from being communal lands within the meaning of the Communal Land Act.

They remain communal land. They are classified as communal land. It is the same with territories in other areas.

The State President does not own them in his own personal capacity.

There are parameters within that Act governing such vesting of ownership. There are measures within the Act governing the excision of any communal land, the addition to or subtraction from it.

Where there are developments intended to be carried out in communal lands, such as have been touted in this application, there are administrative procedures that have to be followed. These may, or may not be adequate.

The applicants insist that none of such procedures has been followed.

But this is a question of fact. It does not determine the constitutionality or otherwise of the impugned provisions.

I see no discrimination as against the applicants and their community as communal land dwellers.

The Executive and the Legislature are better placed than the courts to consider, on the basis of the material, information, the expertise, the resources, and so on, available to them whether, in spite of the regrettable origins of the Communal Land Act, it is time that private ownership of communal territories is recognised so that individual title deeds can now be granted to the occupiers of such territories. It is not for the courts to decide or provide a solution under the guise of constitutionalism.

It is a political question.

The application cannot succeed.

However, I disagree with the respondent's contention that it was frivolous and vexatious. It was not. It was public interest litigation.

Such kinds of challenges may actually dog the courts in the future.

Therefore, in dismissing the application, it is only fair that each party bears their own costs. The following order is hereby made:

The application is hereby dismissed but with no order as to costs.

HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O.
Ruled By: MAFUSIRE J

The property situate, Stand 2468 Mkoba 7 Township in Gweru (“the property”) was at all relevant times owned by the fifth respondent, Gweru City Council.

However, one Honest Pepolo was apparently buying it from Gweru City Council in terms of one of those standard term lease to buy agreements.

Apparently, in June 2004, Honest Pepolo sold his rights and interest to one Claudio Chakanetsa, now deceased (“the deceased”). In these proceedings his estate was cited as the first respondent, duly represented by the executor.

I say “apparently” because although none of these specific issues were in contention by themselves, a great deal of the factual background was seriously disputed. And the applicant's case, with all due respect, was badly pleaded. I shall elaborate on this later on.

First, the facts that were common cause or uncontentious.

At all relevant times the deceased (Claudio Chakanetsa), or his estate, owed a sum of money to the first respondent (Chamisa Mawere). Chamisa sued, got judgment, and executed through the fourth respondent (the Messenger of Court). The property was duly advertised for a public auction. On 23 September 2016 it was sold. The buyer was the third respondent (Misheck Mizeke). On 21 October 2016 the Magistrate's Court confirmed the sale.

On 5 July 2017, Gweru City Council and Misheck Mizeke executed what was on the face of it an agreement of sale of the property. But, in reality, it was a cession. Transfer was conditional upon, among other things, Misheck erecting on the property a building, or buildings, of a certain value within a stipulated time-frame.

However, it was common cause, that, at the time of the agreement, there was already a fully developed dwelling house which had a number of occupants.

In January 2018, Misheck Mizeke sued for vacant possession and holding over damages. He succeeded. In the application before me, it was hotly contested who occupied the property at the time.

Misheck Mizeke's summons for eviction cited one Monica Maboke (Monica) and all those claiming occupation through her. Monica was one of the deceased's (Claudio Chakanetsa) surviving spouses - but she did not stay at the property.

In these proceedings, the applicant claimed it was his tenants occupying the property at the time. Both Chamisa Mawere and Misheck Mizeke disputed that.

In November 2018, the applicant instituted these proceedings.

Apart from costs, he sought an order declaring him the rightful owner of the property. He also sought an order setting aside the auction sale and a cancellation of the cession of the property from Gweru City Council to Misheck Mizeke.

At the end of argument I dismissed the application for lack of merit.

The applicant's cause of action, in paraphrase, was that prior to the attachment of the property by the Messenger of Court, at the instance of the judgment creditor, Chamisa Mawere, he had since bought it from the deceased during his lifetime in terms of a written agreement of sale dated 6 January 2013.

He attached the document.

The applicant said he had duly taken occupation of the property through his tenants. He said efforts to get transfer had been frustrated by the second respondent, the executor, who continued to duck and dive each time he made a follow-up.

The one misconception about the applicant's case was in relation to the true nature of the rights and obligations that are created by these so-called lease-to-buy agreements in respect of these types of township houses. Terms such as 'sale/purchase of rights, title and interest in' 'transfer' etc. are manifestly misguided. Yet, as long ago as 1992 the Supreme Court voiced concern over such use of wrong terminology in such situations.

In Gomba v Makwarimba 1992 (2) ZLR 26 (SC) McNALLY JA said…,:

“As so often happens, the parties have used the word 'sale' to describe what was in reality a cession of rights, since the house actually belongs to the Chitungwiza Town Council…,. It is unfortunate that legal practitioners persist in ignoring the distinctions between sale and cession of rights in these cases, both because there are many such cases and because there are many such distinctions.

In this case, the respondent was not the owner of the disputed immovable property but merely a 'lessee-to-buy'. The contract, in terms of which the respondent acquired and held her rights in the property, and which defined her rights in the property, was not before the Court. Nor was the owner cited as a party.”

Consistent with such misconception, the agreement of sale between the deceased and the applicant referred to the deceased as the owner of the property. But he was not. It was Gweru City Council that was.

The agreement went on to allege, that, the seller (the deceased) was selling and the purchaser (the applicant) was buying the property. But there could have been no such sale of such property. All that the deceased was purporting to do was to cede his rights and interest in the property. And, conversely, all that the applicant wished to do was to accept the cession.

Of course, it is perfectly normal for the cession price to equate to the market value of the property.

Significantly, the agreement said nothing about transfer. Obviously, there could be no transfer of real rights in such circumstances. Only personal rights were involved. The agreement simply said:

“The parties have been advised at the Ministry of Housing and Local Government that the house will be registered upon inspection and being given a certificate of occupation (sic).”

If the above misconception was more technical, the next one was not. It was more profound and fatal. It was the bedrock of the applicant's purported cause of action.

His suit was a rei vindicatio.

He boldly stated he was already the owner of the property by the time the Messenger of Court attached and sold it in execution. So, all he now wanted was for the court to confirm, by way of a declaratory order, that he was the owner and that Misheck Mizeke's agreement with Gweru City Council was void.

But, unfortunately for the applicant, he could not vindicate. He was not, and had never been the owner of the property.

The rei vindicatio is only available to an owner of a thing whose possession of it was taken away against his or her will. He or she is entitled to claim the thing wherever he or she finds it, and from whomsoever has got it: Chetty v Naidoo 1974 (3) 13 (A)…,. All that the owner has to prove is that he or she is the owner; that his or her thing is in the defendant's possession; and that it is still in existence and clearly identifiable: see SILBERBERG and SCHOEMAN's The Law of Property, 5th ed…, and the cases cited thereon.

Rei vindicatio is a common law remedy.

The applicant pleaded in the alternative a double sale situation. That was another misconception.

He said even if the circumstances portrayed a double sale situation in respect of the property (i.e. his and the deceased as the first one, and Misheck Mizeke's at the auction as the second one), he was entitled to regain the property on the basis that his purchase was the first in time.

The applicant further alleged that Misheck Mizeke was not an innocent purchaser.

He alleged, that, when Misheck had come to view the house, in preparation of the auction, he had been advised by one of his (applicant's) sisters, allegedly one of his tenants at the property, that the house was not on sale and that it belonged to the applicant. Misheck had allegedly been advised to go to the City Council for verification. At the City Council Misheck had been informed that he could not buy the property as the deceased had sold it off to multiple buyers. But Misheck had allegedly ignored all that.

The law on double sales, as per McNALLY JA in Guga v Moyo & Ors 2000 (2) ZLR 458 (SC)…, is as follows:

“The basic rule in double sales, where transfer has not been passed to either party, is that the first purchaser should succeed. The first in time is the stronger in law. The second purchaser is left with a claim for damages against the seller, which is usually small comfort. But, that rule applies only 'in the absence of special circumstances affecting the balance of equities': see McKerron (1935) 4 SA Law Times 178; Burchell (1974) 91 SALJ 40…,.; and in BP Southern Africa (Pty) Ltd v Desden Properties (Pvt) Ltd 1964 RLR 7 (G), MACDONALD J (as he then was) said:

'In my view, the policy of the law will best be served in the ordinary run of cases by giving effect to the first contract and leaving the second purchaser to pursue his claim for damages for breach of contract. I do not suggest that this should be the invariable rule, but, I agree with the view expressed by Professor McKerron that save in 'exceptional circumstances' the first purchaser is to be preferred.'

…,. The broad principle as set out above was acknowledged to be our law in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…,. Similarly, in Charuma Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (S).”

In the present case, my major reason for dismissing the applicant's case was that, apart from the above misconceptions, no attempt was made at all to show any special circumstances as would warrant favouring him ahead of Misheck Mizeke.

Not only had Misheck openly purchased the property at a public auction, but also he had gone on to obtain transfer of rights, through a cession, from the real owner, Gweru City Council.

If the applicant's purchase was first in time, the onus was on him to explain why so many years after the alleged purchase, his right to title had remained hidden from the world leaving the property exposed to attachment at the instance of the creditors of the deceased or his estate.

There is a long line of cases that have dealt with the situation where a party buys a property but makes no effort to obtain title or to protect their rights and interest, invariably losing it to the second time buyer: see, for example, De Villiers v Cohn 1906 TH 12; Van Niekerk v Fortuin 1913 CPD 457; Maphosa & Anor v Cook & Ors 1997 (2) ZLR 314 (H); and Sheriff for Zimbabwe v Hersel (Pvt) Ltd & Ors HH856-15.

The legal position is that a judgment creditor is entitled to attach and sell in execution the property of his debtor notwithstanding that a third party has a personal right against such debtor to the ownership or possession of such property which right may have arisen prior to the attachment or even to the judgment creditor's cause of action and of which the judgment creditor had notice when the attachment was made: see HERBSTEIN and VAN WINSEN: Civil Practice of the High Courts of South Africa, 5th ed. Vol. 2…,.

If the third parry had bought that property, but was still to take transfer, his rights were merely personal as against the judgment debtor. They were subservient to those of the judgment creditor after the attachment.

In Maphosa & Anor v Cook & Ors 1997 (2) ZLR 314 (H), the applicants had bought the half share in the property prior to its attachment by the Deputy Sheriff in pursuance of a judgment and a writ in favour of a third party, a Bank, which was owed a sum of money by one of the respondents, the owner and seller of the half share.

The applicants sought the upliftment of the caveat that had been registered on the property on attachment so that they could take transfer.

The application was dismissed.

MALABA J…, held that even though the applicants had paid the purchase price, they did not become the owners until transfer had been registered. All they had obtained had been personal rights claimable against the landowner. The judgment creditor was held entitled to have the property sold even in the face of the third party's personal rights against the judgment debtor.

The right of a judgment creditor to insist on the property being attached and sold in execution is of course, not an absolute one. The existence of special circumstances in any given situation may persuade the court to set aside the attachment to enable transfer to be registered in favour of the third party claimant.

At pp458–459 of his judgment in Van Niekerk v Fortuin 1913 CPD 457, KOTZE J said:

“It seems to me, that, the plaintiff, being a judgment creditor, and the property being still registered in the name of the defendant, prima facie the plaintiff has the right to ask that the property shall be seized in execution, unless the party interested can show that there are special circumstances why such an order should not be granted.”…,.

In casu, the applicant said he “bought” the property way back in January 2013. But, it was not until September 2016, almost three years later, that Misheck Mizeke bought it at the auction. The applicant said his efforts to get transfer from the deceased's estate were frustrated by the executor who was non-committal.

That was hardly a special circumstance. The courts were always there. There was nothing stopping the applicant from enforcing his rights.

Furthermore, and at any rate, the auction had been duly advertised in the press. That was notice to the whole world. The applicant took no action.

The law says, property sold at a properly conducted and valid judicial sale cannot, after delivery in the case of movables, or registration in the case of immovables, be vindicated from a bona fide purchaser: see SILBERBERG and SCHOEMAN's The Law of Property, 5th ed…,.

It was for the above reasons that I dismissed the application with costs.

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

The dispute between the parties centred on a property described as Stand 238 Phase 1 Checheche (“the property”). It is one of those council-owned township properties that local authorities sell on a rent-to-buy basis. It is under the Chipinge Rural District Council.

In the court a quo, the respondent (“Chengetai”) sued the appellant (“Mbozvi”) for eviction and holding over damages. The court granted the orders.

Mbozvi appealed. We heard argument on 27 March 2019 and reserved judgment.

This now is the appeal judgment.

In her claim, Chengetai alleged that Mbozvi “…, unilaterally entered…,” her property in January 2017 without her authority. She alleged she had acquired the property in November 2007; that she had partially developed it to window level but that the defendant was staying there illegally and without paying rentals.

The claim was poorly presented. The drafting was sloppy. For example, there was no reason why Mbozvi's name was not cited in full when all his particulars were available.

But, that is besides the point.

In his defence, Mbozvi took an objection in limine. He said Chengetai had no locus standi in judicio to evict him or to seek holding over damages because the property was his.

But, it seems this objection went nowhere. It seemed abandoned or forgotten somewhere along the way. It was not even on the list of issues at the pre-trial conference.

The objection was ill-conceived anyway, especially if regard is had to the nature of the claim and the nature of the defence.

On the merits, Mbozvi denied that he had “…, unilaterally entered…,” the property. He alleged he had lawfully acquired it from one Tafirenyika Maturo (“Tafirenyika”), to whom Chengetai had transferred her right, title, and interest.

In its judgment, the court a quo ruled, that, there had never been a transfer from Chengetai to Tafirenyika but that what had happened had all been a fraudulent scheme to strip Chengetai of her ownership. As such, since no thief or fraudster can in law transfer rights in a thing, Mbozvi's claim to the property was held to be defective. The court also ruled that Chengetai was entitled to holding over damages.

The case went like this.

Chengetai opened and shut her case with only the evidence from herself. She said the property was allocated to her by the Chipinge Rural District Council in 2007. She produced the offer letter from Council dated 29 November 2007. All this was common cause.

But, there was a subtle detail on the letter that was at war with her case.

The letter had two parallel lines drawn in long hand running diagonally across it and between which the words “Stand No.238 PHASE 1” were inscribed, also in long hand. Mbozvi said that was the evidence of the cession of the property from Chengetai, or of the original allocation to her having been cancelled. She denied it. But, she proffered no other explanation for that endorsement.

In a boxing match, that would be a point for Mbozvi.

Chengetai said she had submitted some developmental plans to the Council for the construction of a 3-roomed cottage on the property. As proof, she produced some drawings endorsed with a date stamp from the Chipinge Rural District Council in 2012.

But, again, a subtle detail on the drawings contradicted the flow of her evidence.

Mbozvi said the plans were for a different property, not Stand 238. Indeed, the drawings cited a different property. They were titled “PROPOSED COTTAGE ON STAND No.120 INFILL CHECHECHE GROWTH POINT”. Chengetai said the reference to Stand 120 was a mistake which the Council had promised to rectify but had never done.

But, again, in a boxing match, this would be another point for Mbozvi.

Beyond this evidence and these two documents, Chengetai's evidence proved nothing further. Everything else she said was a bare denial of the cogent and overwhelming evidence by Mbozvi through himself and his very relevant witnesses, namely, Tafirenyika, his wife Leona or Loren Chiona (“Leona”) and Mbozvi's friend, Collen Gapara (“Collen”) who had facilitated the sale deal between Tafirenyika and Mbozvi.

Mbozvi's case was this.

He heard the property was on sale. He went to inspect it. He liked it. Together with a sister and his wife, they went to inspect Council records. These reflected Tafirenyika as the “owner”. Tafirenyika worked and stayed in South Africa. Mbozvi called him. They agreed on a purchase price of fifty thousand Rand (R50,000).

Tafirenyika referred them to his wife, Leona, whom he said had all the authority to represent him.

The sale deal was concluded. The purchase price was paid. They went to Council offices for the usual cession. This was done.

He took occupation in 2015 and started building the partially constructed house. He completed the structure; tiled the floors; installed water and electricity; planted some trees and flowers around the yard; put up a security wall along the perimeter and started staying there from January 2016.

Until he received her summons, in March 2018, he had never heard of Chengetai and her claim to the property.

To all that, Chengetai denied ever selling the property to anyone.

She denied ever dealing with Tafirenyika or his wife, Leona. She was adamant none of them was known to her.

Mbozvi set to demolish her case. He called Collen.

Collen's evidence corroborated Mbozvi's in relation to the sale by Tafirenyika. One important aspect of that corroboration was that it was his advice to Mbozvi to clear the property first with the Council before committing himself to Tafirenyika. He was present at the Council offices when the records were pulled out and inspected. They all reflected Tafirenyika as the “owner”. Another important aspect of the corroboration was that when Mbozvi took occupation there was a partially built structure which Mbozvi completed in 2016.

Even the court a quo accepted Collen gave his evidence very well and that he remained unshaken under cross-examination.

But, the sale and transfer from Tafirenyika to Mbozvi was less contentious. Fireworks were in respect of the sale and transfer from Chengetai to Tafirenyika.

Chengetai swore she knew nothing about it or that Tafirenyika and his wife, Leona, were ever known to her.

So, Mbozvi called Leona.

She stayed at Checheche Growth Point. She said it was Chengetai herself that had come to her house, personally, on 4 February 2015, to inform her that she had sold the property to her husband, Tafirenyika. Tafirenyika had already telephoned her (Leona) about the deal. Before coming to Leona's house, Chengetai had first telephoned her for directions. The purpose of Chengetai's visit was to arrange transfer of cession at the Council offices. They agreed on a date, 6 February, i.e. two days later.

Leona's evidence, on the cession transfer at the Council's office, was quite elaborate. In brief, it was this:

She had her husband's national registration particulars. Chengetai had hers. Together, they were moving from office to office signing documents. Chengetai would sign first. She would sign in place of Tafirenyika.

After completion of the sale and transfer she and Chengetai actually became friends.

Next, Mbozvi called Tafirenyika.

His formal evidence was that he worked and lived in South Africa. He was married to Leona under customary law. They had three children together. He was the one who sold the property to Mbozvi. Everything was done through Leona, his wife, whom he had granted all the authority.

Critical aspects of Tafirenyika's evidence were these:

He met Chengetai for the first time in South Africa. He did not know her before. She had been in the company of two people, one of them Zviedzo Chipfunde (“Zviedzo”), an old school mate of his. Zviedzo was then married to Chengetai. He told him Chengetai was selling a Stand for thirty thousand Rand (R30,000). He reached an agreement with her. He paid her a deposit of twenty thousand Rand (R20,000). The balance of ten thousand Rand (R10,000) would be paid on the transfer of cession.

Tafirenyika's critical evidence continued:

Towards December, Chengetai was demanding the balance of the purchase price. He told her they needed to change ownership first. They agreed that since he was busy he would give her his wife's contact details through whom the transactions would be carried out.

Back in Zimbabwe, Chengetai did contact Leona and went to see her at home. Together, they arranged and facilitated the change of ownership. Chengetai subsequently returned to South Africa and collected the balance of R10,000 after both she and Leona had confirmed the cession at Council offices.

To all that testimony, Chengetai's position was just a bare denial.

She denied she knew Tafirenyika or his wife, Leona. She denied she had sold her property to them. She denied she had been to South Africa during the period mentioned by Tafirenyika. She denied she had received that kind of money from Tafirenyika or anyone else in connection with the property. She denied the cession at the Council offices and alleged that all the documents suggesting a cession of rights by her were forgeries or fraudulent.

Mbozvi's witnesses were forthright, straightforward, and unshaken. Cross-examination was lame.

For example, counsel for Chengetai, put it to Tafirenyika, that, Leona was a mere concubine of his since there was no registered marriage between them. He pestered Tafirenyika why he did not apply to be joined to the proceedings if ever he wanted to defend his sale of the property to Mbozvi and protect him!

This was absolutely ironic.

It was the process issued by counsel for Chengetai himself, on behalf of Chengetai, and his presentation of the case that were patently incompetent.

For example, the summons excluded very relevant parties like Tafirenyika and the Chipinge Rural District Council, the true owner of the property, and the records for which reflected Tafirenyika as the owner. Not only that, but Chengetai's case was closed with no evidence from any of the Council officials testifying on what had really transpired regarding the property and whether there had really been a fraud.

There was an aspect of Mbozvi's evidence and that of his witnesses that left Chengetai rather exposed.

They asked how on earth they could have ever guessed Chengetai's national registration particulars which were inserted on the cession documents. At first, she denied they were hers. But, she subsequently admitted them. She gave no explanation how Mbozvi and his witnesses could have got them.

Mbozvi's documentary evidence should have won him the case. In a boxing match, it would be the technical knock-out punch. It was completely in consonant with his testimony and that of his witnesses.

Firstly, he relied on Chengetai's own original offer letter from Council and highlighted the cancellation endorsed on it. Next, he discredited the drawings or building plans as belonging to a different property altogether.

The critical cession document from Chengetai to Tafirenyika was produced through Leona.

It was one of those standard cession forms used by rural district councils which are printed on council stationery. Blank spaces were completed in long hand. It had four sections: the first for completion and signing by the cedent; the second for completion and signing by the cessionary; the third for official use, and the fourth, and last, for approval by the Minister of Local Government.

Completed, the relevant portions of the cession document read as follows:

“The undersigned…,___CHENGETAI SIDHUNA___, National Reg. No: ___13–174976 A 13___ do hereby cede, assign and transfer to…,___MATORO (sic) TAFIRENYIKA___ Nat Reg No: ___13 – 200661 T 13___ All my rights and title to and interest in lease number ___238___ at ___CHECHECHE___ Business centre in Chipinge Rural District from ___6___ day of ___FEBRUARY 2015___.”

Above the word “CEDENT” was a signature, in very clear print: “C h e n g e t a i” with the letter “e” quite distinct and somewhat stylish. There were also signatures by two witnesses.

The section for the cessionary read as follows:

“I … ___MATORO (sic) TAFIRENYIKA___ Nat Reg No ___13–200661 T 13___ Address ___1107 Phase 2 CHECHECHE___ Do hereby accept transfer of the Agreement of number _____(blank)____ Business Centre in Chipinge Rural District, as from the ___6___ day of ___February 2015___”

As with the cedent, the cessionary's signature was a distinct name in print “LOREEN CHIONA”. There were also signatures by two witnesses.

The last two sections of the cession document, which were for official use and approval, were left blank.

Counsel for Chengetai latched onto this.

He said the alleged cession was incomplete and unapproved.

He said it was defective and fraudulent because Leona purported to be Tafirenyika and to sign as him. He said she had no power of attorney.

The court a quo accepted the argument. It fell into error.

There is nothing magical about a cession of rights. In Chauke & Anor v Mangena HMA09-19 in which a similar argument arose, I said there is wise Shona saying: “kupedzera miseve pamakunguwo idzo hanga dziripo!” meaning, wasting all the arrows on worthless crows when more treasured guinea fowls abound: in other words, to major in minors.

Simply put, a cession is the transfer or giving up of rights and interest by one party which the other party accepts or receives. The cession is pivoted on an agreement that is legitimate. The transferor or giver of the right is the cedent. The receiver is the cessionary.

No formalities are required for a valid cession: see R.H. CHRISTIE: Business Law in Zimbabwe, Juta & Co Ltd, 1998…,.

In Mberi v Mbewe & Anor HH420-15, after reviewing a number of cases on the point such as Gomba v Makwarimba 1992 (2) ZLR 26 (SC); Hundah v Murauro 1993 (2) ZLR 401 (SC); Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC) and Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S), I said, in a great number of cases of this nature, the local authority, which is the true owner of the property, is little concerned with what the tenant-to-buy does with his rights and interest in the property.

The local authority normally consents in advance of the alienation or disposal of such rights, or it subsequently ratifies. The consent can be tacit or express.

In the present case it was both.

That, when Mbozvi and his team went to inspect the Council records, before he committed himself to Tafirenyika, they found the property reflecting Tafirenyika as the owner was not challenged.

Thus, unless the Council had given tacit approval to the sale from Chengetai to Tafirenyika, there could be no explanation why the records were in Tafirenyika's name.

But, there was more.

Produced in evidence was a very detailed rent-to-buy agreement between the Chipinge Rural District Council and Tafirenyika in respect of the property. It was signed by Leona as lessee and by Chengetai as a witness.

Nothing could be better evidence of the express consent by the local authority and of the transfer of rights from Chengetai to Tafirenyika.

The court a quo said all these documents were a fraud to strip Chengetai of her ownership of the property.

It said Leona had no power of attorney to sign the documents as Tafirenyika.

It went on to quote from some authority defining a power of attorney as generally being a physical document under seal, and concluding, that, the purported power of attorney relied upon by Leona, not having been a document under a seal, all that she had done in the name of Tafirenyika had been a “farce”.

With all due respect, the court seriously misdirected itself on this aspect.

Mbozvi and his witnesses never said Leona had a power of attorney. The term 'power of attorney' was introduced into the matrix by counsel for Chengetai in cross-examination. All Mbozvi and his witnesses said was that Leona had authority from her husband to transact on his behalf, and that that authority had been given over the telephone.

Whilst a power of attorney gives authority - not all authority is given by a power of attorney.

All that the court a quo had to be satisfied with was whether Leona had her husband's authority to transact on his behalf.

These were unsophisticated people. The court had to be satisfied, by the substance of the arrangements, and not be concerned with fancy legal niceties, or with form over substance.

But, whatever might have been lacking in form was given substance by the Chipinge Rural District Council itself. It gave its badge of authority to the two cessions: the first and crucial one from Chengetai to Tafirenyika, and the second and uncontentious one from Tafirenyika to Mbozvi.

The triangle was complete.

That Council itself and the Ministry of Local Government might not have signed their sections on the cession document seemed to be mere carelessness or plain inadvertence that did not in the least detract from the fact that the parties had agreed and that the Council had granted both tacit and express approval.

Everything else was subterfuge.

Counsel for Chengetai successfully persuaded the court a quo to find meaning and substance in a letter from the Chipinge Rural District Council, written to himself by the Growth Point Manager on 10 April 2018 and which he had solicited for.

Relevant portions of that letter read as follows:

“Your letter dated 25 March, 2018 refers. Ms Chengetai's Sidhuna's letter on same subject dated 18 September, 2017 also refers.

Please note that the Stand cession process is a long and arduous process which takes place at five different levels, namely, the sub-office at Checheche, then Heads of Departments have to consent to it before submitting to ZIMRA. After ZIMRA's concurrence, the matter will finally come back to the Lands and Assets Office at the Main Office before being finally presented to the Chief Executive Officer to complete the signing of a lease agreement thereto.

As you observed, there is no complete cession yet and there is no lease agreement yet between Council and the incumbent, Tawanda Mbozvi. The forms are still at the Checheche sub-office, held back because of an incomplete process. Implicitly, the first level has therefore not yet been satisfied by the parties to warrant it to move up to the second stage where the Heads of Departments will peruse the documents before they can be passed on to ZIMRA.

The Stand is therefore not yet formally…, in the buyer's or cessionary's ownership, albeit the nominated cessionary already having been clearly cited for practical functional purposes – and this we always do as instructed and agreed between the seller and the buyer. In the case of any objection by the parties, we always delay or defer process until we are granted a green light by the parties…,.

In the matter at hand, there is agreement between the incumbent, Tawanda Mbozvi, and Tafirenyika Matoro who claims to have bought the property from Chengetai Sidhuna…,. The dispute, therefore, lies between Chengetai Sidhuna and Tafirenyika Matoro who passed ownership of Sidhuna's property to Mbozvi.

Essentially, therefore, Council fully recognises Sidhuna's objection to processes that were transacted in our offices. She is the holder of the more critical Council stand documents and her consent to the process is therefore paramount.

To that effect, Council has deferred the cession process of Stand 238, given the apparent validity of Chengetai Sidhuna's formal complaint since September 2017.

By copy of this letter, we advise the three parties on our records (being Mbozvi, Matoro and Sidhuna) to convene or otherwise resolve matters and instruct us accordingly….,.”

The letter is an example of double-speak.

But, the highlighted portions are a fabulous give-away. There is an acknowledgement of the double cession.

The cession from Chengetai to Tafirenyika was complete as signified by the lease-to-buy agreement between the Council and Tafirenyika. The cession between Tafirenyika and Mbozvi was complete as signified by, firstly, a handwritten agreement between Tafirenyika and Mbozvi, and, secondly, the cession addendum from Tafirenyika to Mbozvi, both in December 2015.

All these documents were part of the Council records.

And yet neither counsel for Chengetai, nor the court, saw it fit to have Council officials called to give evidence.

Chengetai proved no fraud or any form of unlawful misrepresentation.

On the contrary, the evidence established, that, she had sold her rights and interest in the property to Tafirenyika, who, in turn, had sold his rights and interest to Mbozvi.

The court a quo failed to appreciate that the conclusion in Council's letter above, to the effect that the rights, title, and interest in the property still lay with Chengetai, was the very aspect it was being asked to adjudicate upon.

Apart from the foregoing, the court a quo failed to appreciate that there was also evidence that was not only common cause, but also aliunde to that given viva voce.

That evidence supported Mbozvi's case and contradicted Chengetai's claim. It was this.

Not only had Mbozvi been in occupation of the property for more than two years before Chengetai's summons, but, also, he had openly completed the partially built house on it from window level right up to completion and to a habitable state with not a whimper of protest from Chengetai. Chengetai conceded she saw the building going up but failed to confront Mbozvi or his builders. She claimed she feared violence. She said she went to complain to Council.

That is implausible. It is unbelievable.

Mbozvi took effective occupation in December 2015. Council's letter above suggests she only complained in September 2017 – thus, almost two years later. Her summons was in March 2018 - more than two years later. At the very least, she should have sought an interdict to bar Mbozvi from carrying out any construction.

Justice is often depicted as a lady blindfolded, holding a sword in one hand and a set of balancing scales in another. The scales are said to be for measuring the strength of a case. They represent the weighing of evidence. Before the case starts, the scales are evenly balanced. They are in a state of equilibrium. The weight of the evidence, as the case progresses, upsets the balance. As the case concludes, the court checks the way the scales are tilted.

Judgment is granted for the party in whose favour the scales are tilted.

Thus, a trial, in a civil case, involves the making of findings or inferences of facts by balancing probabilities and selecting a conclusion which seems to be the more natural or plausible one from several other conceivable ones, even though that conclusion may not be the only reasonable one: see Joel Melamed and Hurwitz v Cleverland Estates (Pty) Ltd; Joel Melamed and Hurwitz v Vorner Investments (Pty) Ltd 1984 (3) SA 155.

In this case, the scales of justice were undoubtedly tilted in favour of Mbozvi. Chengetai proved nothing. Mbozvi proved everything - even though the onus had not been on him.

The judgment in the court a quo was a travesty of justice.

Regarding holding over damages, if Chengetai had no case for eviction, concomitantly she had no case for holding over damages. Yet the court granted it. And demonstrably, even the amounts were plucked from the air. There was no basis for the rate of damages or for the quantum.

In the result, the appeal is allowed with costs. The following order is issued:

(i) The judgment of the court a quo is hereby set aside in its entirety and substituted with the following:

“The plaintiff's claim be and is hereby dismissed with costs.”

(ii) The costs of this appeal shall be borne by the respondent.

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL
Ruled By: MAFUSIRE J

In his application, the applicant said his claim was for “specific performance” against the second respondent. This was in respect of an immovable property, a house in one of the high density suburbs administered by the second respondent.

At the end of the hearing I dismissed the application with costs and promised to deliver the reasons later.

These are they.

The applicant said he had “bought” the house from the first respondent. The first respondent was the son to his late father (“the deceased”) and the heir to the estate.

The deceased had been buying the property from the second respondent under the usual rent-to-buy agreement common among the local authorities.

The applicant's case was that the respondent was refusing to “transfer” the property to him for the most unreasonable of reasons.

The second respondent was saying it could not consent to the “transfer” because it was aware that the deceased's widow, one Mlingo Mbewe, had certain rights over the house which the son, the first respondent, was trying to override or trample upon by surreptitiously “selling” it to a third party, the applicant.

The second respondent did not exactly use such words; but, that was clearly the import of its opposition.

It said until the widow was joined to the application, and until it was satisfied that the dispute between her and the son had been resolved, it was not going to consent.

It seems that previously the son had instituted an action to evict the widow from the house. However, the action had not been proceeded with. The matter had been resolved on the basis, that, the son would have entitlement to one of the rooms at the house and another room in the outbuilding, with both of them sharing the rentals from the remainder of the rooms.

To that, the applicant said the second respondent was not raising any defence valid at law but was merely trying to protect the widow out of sympathy for her. That was corruption and an abuse of office, he said.

The first respondent, the son, supported the applicant's case.

He filed a “Consent to Judgment” in terms of which he was consenting to be ordered by this court to “…, take all the necessary steps to transfer [the] right, title, and interest in [the] property…,.), failing which the Sheriff should be authorised to do that on his behalf.

What was remarkable in this case was the misconception exhibited by all the parties in relation to the true nature of their rights and obligations.

Terms such as “sale/purchase of rights, title and interest in” 'transfer' etc. were manifestly misguided.

Only somewhere in the second respondent's heads of argument was there a fleeting reference to the true legal position. In paragraph 21 it was said:

“21 The record must be correctly set. Ownership of the property in dispute vests in the 2nd Respondent. The 1st respondent, on his own, as asserted by Application (sic) or jointly with Mlingo Mbewe, in 2nd Respondent's view, only hold personal rights in the property.”

As long ago as 1992, the Supreme Court voiced concern over the use of such wrong terminology in such situations. That was in the case of Gomba v Makwarimba 1992 (2) ZLR 26 (SC). At pp27-28 McNALLY JA said:

“As so often happens, the parties have used the word 'sale' to describe what was in reality a cession of rights, since the house actually belongs to the Chitungwiza Town Council….,. It is unfortunate that legal practitioners persist in ignoring the distinctions between sale and cession of rights in these cases, both because there are many such cases and because there are many such distinctions.

In this case, the respondent was not the owner of the disputed immovable property but merely a 'lessee-to-buy'. The contract in terms of which the respondent acquired and held her rights in the property, and which defined her rights in the property, was not before the Court. Nor was the owner cited as a party.”

In the present case, although the owner, the second respondent, was cited as a party (undoubtedly because it was the one refusing to consent), the rent to buy agreement was not produced by any of the parties.

But, it was common cause that any rights in the property had devolved to the deceased, and subsequently to the first respondent, in terms of that agreement.

None of the parties gave any coherent answer why that agreement was not produced.

The applicant was content to start and end with his own agreement with the first respondent. But, that agreement was irrelevant, particularly given that the first respondent was actually supporting his cause.

The applicant's true grievance lay with the second respondent.

If he claimed that the second respondent's refusal to consent to the cession (not transfer) was unreasonable, then, he ought to have produced that agreement and pointed out those terms that showed that such refusal was unreasonable.

That was so because, among other things, the usual rent-to-buy agreement contains clauses expressly prohibiting the cession or assignment of rights under them, or the parting of rights of occupation of the property, or the alienation or disposal of the property without the prior written consent of the local authority.

In the case of Hundah v Murauro 1993 (2) ZLR 401 (SC) McNALLY JA said…,:

“It is surely a matter of general common knowledge, at least among lawyers, that land in the high density suburbs belonged to the local authority, or, occasionally, to central government. Occupants of the houses built in these suburbs fall into three categories (ignoring the fourth category of lodgers or dependants).
They were:

1. Simple tenants under a lease agreement with the local authority or central government;

2. Tenants-to-buy under an agreement which permitted them to take title once the property was surveyed and the full price paid;

3. Owners, who graduated from category two, in the fullness of time.

It is astonishing that no one thought to ask [the appellant] into which of these categories he fell. Even more astonishing when one remembers that he actually alleged 'it is still property of the City of Harare'.

[The appellant] was not the owner of the property. [He] is not now the owner of the property. At the time the estate agent drew up the agreement…, he was not even a tenant-to-buy. He was just a simple tenant….,.

In this situation we regularly hear the submission: 'But Roman-Dutch law does not require a seller to own the property he sells. He can enter into a valid agreement of sale as long as he realises he may face an action for damages if he is unable to give good title to the purchaser when the time comes to hand over vacant possession, and, in the case of immovable property, give transfer.'

This answer may score well in an examination, but, it overlooks the fact, which should be common knowledge among practitioners, that, the standard agreement of lease or lease to buy used by the Harare and Chitungwiza Municipalities (and many others) contains a clause designed to prevent such agreements.”

The pronouncement by the Supreme Court, in Hundah v Murauro 1993 (2) ZLR 401 (SC), all but sums up the applicant's insurmountable problems in this case.

In a great number of cases of this nature, the local authority is little concerned with what the tenant to buy does with his rights and interest in the property. The local authorities normally consent in advance of the alienation or disposal of such rights, or they subsequently ratify. When litigation ensues, often against the double-dealing or recalcitrant lessee-to-buy, the local authorities simply indicate their willingness to abide by the order of the court.

Unfortunately for the applicant in this matter, this was not the case.

In the present matter, not only had the local authority not given its consent to the intended cession, but, it was expressly refusing to grant it.

The applicant's situation was actually worse off than any of those in similar situations, for example, in Hundah v Murauro 1993 (2) ZLR 401 (SC) and Gomba v Makwarimba 1992 (2) ZLR 26 (SC).

There were others.

In Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC) GUBBAY CJ had this to say…,:

“It is trite that where a contract of lease contains prohibitions against sub-letting, cession or assignment, either absolutely or without the lessor's consent, a sub-lease, cession or assignment, entered into without title to do so, is valueless and confers no rights on the third party; for he can acquire no greater rights in the property than the lessee has….,. A further obvious consequence of the prohibition is that the court will refuse to enforce the sub-lease, cession or assignment, at the instance of the lessee. To do otherwise would be to confer a right upon the lessee not given by the lessor….,.

Plainly enough, in the present case, the content of the lease-to-buy agreement was…, invalid because of a failure of the parties to it to request and obtain the written consent of the Council – a failure that related to a contractual formality….,.”

In Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S), a case only marginally different from the present one in that the tenant-to-buy had since obtained title to the property even though at the time that he had purported to sell it to the third party he had not, EBRAHIM JA said this at pp335-336:

“Once the first defendant had taken transfer of the property, he was entitled to sell it. The first defendant had agreed to sell at a time when he was not the registered owner. All the time that the City of Harare remained the owner, the agreement to sell was unenforceable, because the first defendant could not transfer ownership without the consent of the Municipality. Once the Municipality's consent was not required, however, the contract became enforceable….,.

The agreement in Pedzisa's case supra was described as 'invalid' because it had failed to comply with a contractual formality….,.”

In Jangara v Nyakuyamba & Ors 1998 (2) ZLR 475 (HC) GILLESPIE J reviewed a number of decisions of both this court and the Supreme Court on the issue of “township houses” administered by local authorities under the lease-to-buy agreements and which are disposed of in breach of the terms of such agreements.

Some of those cases that the learned judge reviewed included Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC); Hundah v Murauro 1993 (2) ZLR 401 (SC); Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S); Guta v Chimbunde & Anor HH194-94; and Nkomo v Mujuru 1997 (1) ZLR 155 (H).

At p481 the learned judge said:

“I am therefore of the respectful view, that, the following statement of principle is to be gleaned from the Supreme Court decisions.

A cession of a right, originally acquired subject to a pactum de non cedendo, but in breach of that reservation, creates rights as between the parties to that subsequent cession, which rights, however, cannot bind the original holder of those rights.

The court may, at the instance of the third party, enforce that contract as against the lessee-purchaser; no order, however, may be given which can bind the original holder of those rights. Thus, no order of transfer can be given against that original holder.

An order of specific performance of transfer may, at the court's discretion, be given against the lessee-purchaser; such an order has the effect of obliging that party to effect transfer if he is in a position to do so, or to take transfer of the property in order to give it, if such be necessary.

Depending on the circumstances, however, the court may confine a third party to an alternative claim against the lessee-purchaser in damages.

This statement of principle explains completely the results in all the other judgments, and was the principle expressly applied by SMITH J and ROBINSON J in Guta and Magwenzi.”…,.

In the present case, whether the second respondent withheld its consent to the cession because the widow had not been cited, and whether or not such a reason was unreasonable under the circumstances, are issues that are immaterial, especially in the absence of the rent-to-buy agreement.

If the first respondent required the prior written consent of the second respondent before he could in any way alienate or dispose of his rights in the property to somebody else, and, if the first respondent had not obtained that consent prior to selling his rights to the applicant, then, that was the end of the road for the applicant in his claim against the second respondent.

Whether or not the applicant does have a remedy against the first respondent is an issue of no concern in the present application.

As stated in Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC), the agreement between him and the first respondent was invalid or unenforceable against the second respondent for want of compliance with a contractual formality.

It was for that reason, that, at the end of the hearing, I dismissed the application with costs.

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SC17-18 : CBZ BANK LIMITED vs DAVID MOYO and DEPUTY SHERIFF HARARE
Ruled By: PATEL JA, MAVANGIRA JA and UCHENA JA

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O.
Ruled By: MAFUSIRE J

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL
Ruled By: MAFUSIRE J

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Law Portal Zimbabwe

Title to Land, Rights to Minerals, Powers of Repossession, Imposition of Taxes and Impounding

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS Ruled By: GOWORA J

HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL Ruled By: CHITAKUNYE J

HH37-11 : STANSILOUS K MTIZIRA vs EPWORTH LOCAL BOARD and MAPANZURE and ELPHAS UTETE and ZACHARIOUS GODI Ruled By: CHATUKUTA J

HH140-11 : 59 BENEFICIARIES OF VALLEY LANE HOUSING SCHEME vs HARARE MUNICIPAL WORKERS UNION and CITY OF HARARE and OTHERS Ruled By: MTSHIYA J

HB61-13 : TIMOTHY NKOMO vs CITY OF BULAWAYO and FRONT HUNK MARKETING (PVT) LTD Ruled By: CHEDA AJ

HH102-15 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD vs BINDURA RURAL DISTRICT COUNCIL and FIFTY NINE OTHERS Ruled By: DUBE J

HH141-15 : GOODWELL CHIPURIRO vs CITY OF HARARE Ruled By: UCHENA J

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED Ruled By: MAKARAU JP

SC17-18 : CBZ BANK LIMITED vs DAVID MOYO and DEPUTY SHERIFF HARARE Ruled By: PATEL JA, MAVANGIRA JA and UCHENA JA

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS Ruled By: MAFUSIRE J

HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O. Ruled By: MAFUSIRE J

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA Ruled By: MAWADZE J and MAFUSIRE J

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL Ruled By: MAFUSIRE J

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Law Portal
Zimbabwe

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL
Ruled By: CHITAKUNYE J

HH37-11 : STANSILOUS K MTIZIRA vs EPWORTH LOCAL BOARD and MAPANZURE and ELPHAS UTETE and ZACHARIOUS GODI
Ruled By: CHATUKUTA J

HH140-11 : 59 BENEFICIARIES OF VALLEY LANE HOUSING SCHEME vs HARARE MUNICIPAL WORKERS UNION and CITY OF HARARE and OTHERS
Ruled By: MTSHIYA J

HB61-13 : TIMOTHY NKOMO vs CITY OF BULAWAYO and FRONT HUNK MARKETING (PVT) LTD
Ruled By: CHEDA AJ

HH102-15 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD vs BINDURA RURAL DISTRICT COUNCIL and FIFTY NINE OTHERS
Ruled By: DUBE J

HH141-15 : GOODWELL CHIPURIRO vs CITY OF HARARE
Ruled By: UCHENA J

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

SC17-18 : CBZ BANK LIMITED vs DAVID MOYO and DEPUTY SHERIFF HARARE
Ruled By: PATEL JA, MAVANGIRA JA and UCHENA JA

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O.
Ruled By: MAFUSIRE J

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL
Ruled By: MAFUSIRE J