Borrowdale Ratepayers and Residents Association v City of Harare and Leonard Mukumba

### Preamble
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HH 383 - 25
R-HCH 2647/24
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BORROWDALE RATEPAYERS AND RESIDENTS ASSOCIATION

versus

CITY OF HARARE

and

LEONARD MUKUMBA

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE 26 June & 2 July 2025

Opposed Application

G. Madzoka, for the applicant

N. M. Chitiyo, for the 1st respondent

L. Uriri with N. Mushangwe, for the 2nd respondent

MAMBARA J:    This is the return day of a provisional order initially granted by Kwenda J on 28 March 2025. The Borrowdale Ratepayers’ and Residents’ Association (“the applicant”) seeks confirmation of that provisional order, which interdicted the second respondent’s building project pending determination of the legality of the first respondent’s approvals. The City of Harare (“the first respondent”) and Leonard Mukumba (“the second respondent”) oppose the confirmation of the order. They raise, inter alia, preliminary issues of this court’s jurisdiction (contending that the applicant failed to exhaust domestic remedies), the propriety of the relief being pursued (arguing that an interim interdict cannot metamorphose into a declaratory final order), and substantive objections that a court cannot interdict lawful administrative conduct. They further dispute any breach of the applicant’s constitutional rights, noting that such rights are subject to lawful limitations. I address these issues in turn, but first set out the provisional order granted by Kwenda J, which forms the subject of these proceedings:

TERMS OF FINAL ORDER SOUGHT

The approval by the first respondent of the subdivision and construction by the 2nd respondent of the proposed residences at Stand 949 Glen Lorne Township of 25 of Plot 30 of Glen Lorne (Stand 949 Sugar Loaf Hill, Harare) be and is hereby declared unlawful for non-compliance with ss 40(3) and 40(4) of the Regional, Town and Country Planning Act [Chapter 29:12].

The respondents shall consult concerned neighbours/residents in Glen Lorne and demonstrate full compliance with all relevant provisions of the Regional, Town and Country Planning Act [Chapter 29:12] before subdividing, constructing or approving the intended construction at the above-mentioned property.

The second respondent shall pay costs of suit. INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief – The second respondent is directed to suspend all construction at Stand 949 Glen Lorne Township of 25 of Plot 30 of Glen Lorne (Stand 949 Sugar Loaf Hill, Harare).

It is common cause that, pursuant to the above order, the second respondent halted construction on the property. The dispute now revolves around whether the provisional order should be confirmed (thereby granting the declaratory and ancillary relief sought) or discharged. The respondents have raised several substantive objections which I will examine in detail.

Proceedings under Section 85 of the Constitution

At the outset, the second respondent through its counsel Mr. Uriri, raised a constitutional preliminary point regarding the manner in which this application was instituted. The applicant commenced this proceeding expressly under Section 85(1) of the Constitution of Zimbabwe, alleging that its members’ fundamental rights had been infringed. For example, in the founding papers the Association stated that it was acting “in terms of section 85(1)(e) of the Constitution of Zimbabwe 2013” on behalf of its members. The applicant averred that the actions of the respondents “infringe the residents’ constitutional rights to just administrative conduct, [the] right to privacy and [the] right to [a healthy] environment” guaranteed by the Constitution. However, despite couching the case as one of constitutional rights violations, the relief sought in the provisional order is merely an interdict and ancillary declaratory order grounded in statutory law – notably a declaration that the City’s approval of the subdivision was unlawful under the Regional, Town and Country Planning Act – with no specific constitutional remedy or declaration of any fundamental rights breach being prayed for in the final order. The respondents argue that where a litigant invokes Section 85 (the vehicle for direct enforcement of constitutional rights) but does not seek any substantive relief on a constitutional cause of action, the application is fatally defective. In Mr. Uriri’s submission, a party who proceeds under s 85 alleging infringement of Chapter 4 rights must make the vindication of those constitutional rights the primary purpose of the application – typically by seeking a declaration of the rights violation or other direct constitutional relief – rather than simply tagging a constitutional label onto what is, in substance, an ordinary dispute. By failing to seek any constitutional remedy here, the applicant’s use of s 85 is said to be improper, rendering the application invalid.

This contention is well-supported by authority. Section 85(1) itself makes clear that it is a mechanism for enforcing the “fundamental rights and freedoms” protected in Chapter 4 of the Constitution. The Supreme Court has emphatically underscored that an application in terms of s 85 must allege the infringement of a fundamental right enshrined in the Declaration of Rights and seek relief directed at remedying that infringement. In Zimbabwe Homeless People’s Federation & Anor v Minister of Local Government & Ors (SC 78/21), for example, the Court stressed that rights which are not found in Chapter 4 cannot be pursued via s 85, and that such claims should instead be brought under the appropriate statutes or common law. Moreover, even where a fundamental right is implicated, the relief sought under s 85 must be aimed at protecting or enforcing that constitutional right. As the Supreme Court cautioned (quoting the Constitutional Court) in the Homeless People’s Federation case, “the relief sought and to be granted by the court in terms of this section must relate to fundamental rights and freedoms enshrined in the relevant Chapter, and nothing else.” In a similar vein, the Constitutional Court in Stone & Bitty v CABS & Ors (CCZ 5/24) reiterated that when a court is seized with a matter under s 85(1), it cannot entertain non-constitutional issues; its jurisdiction is confined to redressing actual or threatened infringements of fundamental rights. Gwaunza DCJ aptly observed in a related case that “an application under s 85 of the Constitution should not be raised as an alternative cause of action… Section 85(1) is a fundamental provision of the Constitution and an application under it, being sui generis, should ideally be made specifically and separately as such.”

In the present case, the applicant’s papers invoke various constitutional rights, yet the actual remedy it pursues is an ordinary interim interdict (and an eventual declaratory order of statutory invalidity) without any prayer for a declaration that a constitutional provision has been breached or for any other direct constitutional relief. This disconnect is fatal in light of the above principles. Simply put, one cannot cloak a standard grievance in constitutional garb via s 85 and then fail to seek a remedy for the supposed constitutional breach. Since the applicant proceeded by way of s 85 but did not seek to have any fundamental right declared infringed nor any law or conduct declared unconstitutional, the application is not properly before the court. Accordingly, the point in limine raised by the respondents is well taken: the application, lacking any primary constitutional relief, is invalid under s 85 and liable to be struck off on that basis.

Having made this finding, I note that it would ordinarily dispose of the matter. However, for completeness, I will proceed to consider the remaining preliminary points that were argued, namely those concerning jurisdiction, the form of the relief sought, and the lawfulness of the respondents’ conduct (including the question of any limitations on the rights invoked).

Jurisdiction and Exhaustion of Domestic Remedies

The respondents contend that this Court lacks jurisdiction or should decline to exercise it, because the applicant did not first exhaust domestic remedies available under the relevant statutory frameworks. In particular, they point to section 38 of the Regional, Town and Country Planning Act [Chapter 29:12] (“RTCP Act”) and section 130 of the Environmental Management Act [Chapter 20:27] (“EMA”). Section 38 of the RTCP Act provides that “any person who is aggrieved by any decision made… by a local planning authority in terms of [the] Act may, within one month after being notified of the decision… appeal to the Administrative Court.” The first respondent argues that this was the most appropriate remedy for the applicant, given that the Association is essentially aggrieved by the City’s decision to grant the second respondent a permit to subdivide and develop the land. Likewise, section 130 of the EMA stipulates that “any person who is aggrieved by any decision of any authority in terms of [the EMA], may… appeal in writing to the Minister.” The respondents submit that, to the extent the applicant’s case rests on environmental concerns, the proper course was to approach the Minister of Environment (after involving the Environmental Management Agency (EMA) itself), rather than coming directly to court. By forgoing these statutory remedies, the applicant is said to have jumped the gun. The first respondent thus implores the Court to decline jurisdiction, characterizing the application as “premature… and improperly before this Honourable Court”.

In response, the applicant argues that the exhaustion of remedies rule is not inflexible. It points out that neither the RTCP Act nor the EMA expressly ousts the High Court’s jurisdiction in the presence of those internal remedies. Indeed, law confirms that the requirement to exhaust domestic remedies, though important, is “not an absolute rule”; a court retains the discretion to hear a matter even if alternative remedies exist, depending on the circumstances. In Zikiti v United Bottlers (Pvt) Ltd 1998 (1) ZLR 389 (S) and Mudakureva v Grain Marketing Board S-15-98, for example, it was held that where domestic avenues have not been pursued, the court must still consider whether, in the interests of justice, the matter should be entertained. Similarly, in Stalap Investments (Pvt) Ltd & Ors v Willoughby Investments (Pvt) Ltd HH-459-19, the High Court noted that “there is no statutory ouster of the High Court’s jurisdiction pending exhaustion of domestic remedies”, and that the court should “consider the circumstances of the case and judiciously exercise its discretion” on whether to hear the matter. Nhema v Barclays Bank 1996 (1) ZLR 711 (S) and Nhidza v Unifreight Ltd S-27-99 are to similar effect. Put simply, the existence of an internal remedy does not per se deprive this Court of jurisdiction, absent a clear legislative intent to that effect.

The applicant further submits that the wording of the Acts signals that these remedies are permissive, not mandatory. Notably, both section 38(1)(c) of the RTCP Act and section 130(1) of the EMA provide that an aggrieved person “may” appeal. The use of “may” as opposed to “shall” indicates a discretion or option, not an obligatory pre-condition. This, the applicant contends, implies that an aggrieved party is entitled to approach the High Court directly, especially in urgent cases, without first invoking those alternatives. The applicant emphasizes that it is not itself a party to the permitting process under the RTCP Act. It did not apply for the subdivision permit, nor was it directly notified of the proceedings before the City. As a third party affected by the development, the Association’s position is that it had no adequate or timely remedy within the statutory scheme, since the appeal provisions largely contemplate the applicant for a permit or other directly involved persons such as the developer lodging appeals. Consequently, faced with what it perceived as an unlawful approval and an imminent construction threatening its members’ rights, the applicant chose the High Court as the most suitable avenue for relief, by seeking an interdict rather than a formal review or statutory appeal.

The issue of jurisdiction thus reduces to whether this Court should insist on the applicant having utilized the RTCP Act appeal to the Administrative Court or the EMA Ministerial appeal before granting relief. In the circumstances of this case, I am not persuaded that the applicant’s failure to appeal under section 38 of the RTCP Act or section 130 of the EMA should be fatal. There is no explicit statutory bar preventing this Court from hearing the matter, and the nature of the allegations, that the first respondent approved the subdivision without adhering to mandatory legal requirements, falls squarely within this Court’s review and supervisory powers. Our superior courts have cautioned that while internal remedies should ordinarily be respected, the High Court’s inherent jurisdiction to prevent irreparable harm or illegal action remains available in appropriate cases.

I accept that the word “may” in the governing statutes confers a choice. It does not compel an aggrieved resident to appeal rather than seek urgent interdictory relief, especially where the effectiveness of the internal remedy is in doubt or the harm is imminent. Here, construction was already underway when the applicant acted, raising legitimate concerns that a protracted appeal to the Administrative Court or Minister might not prevent irreversible developments on the ground. In any event, even had the applicant appealed, that would not necessarily preclude parallel relief from this Court, given the High Court’s concurrent jurisdiction absent an ouster clause (see Stalap Investments, supra). I therefore find no absolute bar to our jurisdiction. That said, the availability of those remedies is not irrelevant – it is a factor to be weighed in assessing the propriety of granting an interdict, particularly on the question of alternative remedies and the balance of convenience. I will return to that aspect in the analysis of the interdict’s merits. For jurisdictional purposes, however, the point in limine is resolved in favour of the applicant. This Court is competent to determine the dispute.

Nature of Relief Sought

A further issue is the apparent inconsistency between the interim relief and the final relief pursued. The provisional order granted an interim interdict, stopping construction, while the draft final order seeks a declaratur that the City’s approval of the subdivision and development was unlawful along with an order for proper consultation and compliance in the event of further development. The respondents argue that the applicant’s pleadings are procedurally flawed in this regard. They contend that the applicant has, in effect, “thrown the kitchen sink” at the Court, obtaining an urgent interdict, but now attempting to transform the proceedings into a declaratory and review-like remedy without having followed the normal requirements for such relief. In the first respondent’s view, “this is an application for review disguised as an interdict, thereby mutating into an application for a declaratur and review only in the final relief.” Put bluntly, the complaint is that the applicant is trying to nullify the City’s decision by having it declared unlawful and of no force via a procedure (urgent chamber application) that was not designed for that purpose.

It is trite that an order declaring rights, a declaratory order is a specific relief granted in terms of statute, section 14 of the High Court Act [Chapter 7:06]  which requires the applicant to establish a tangible or real interest in an existing, future or contingent right or obligation, and that the case is a proper one for the exercise of the court’s discretion (see Madzimbamuto v Lardner-Burke NO 1968 (2) SA 284 (RA) at 287; Johnsen v AFC 1995 (1) ZLR 65 (H) at 72). The first respondent avers that “the requirements for a declaratur have neither been pleaded nor satisfied” by the applicant. The founding papers were geared toward an interdict – alleging the traditional requirements of a clear right, injury and lack of alternative remedy – but, notably, “nothing regarding a declaratur was sought” in explicit terms at the outset. The relief clause in the chamber application did include the declaratory order as part of the draft final order, but the supporting affidavit did not squarely address why a declaratory remedy is appropriate and necessary, nor did it articulate the specific right to be declared beyond pointing to non-compliance with the statute. Furthermore, the first respondent correctly observes that the applicant did not engage with the Section 14 criteria or justify its standing to seek a declarator. For instance, the applicant ought to have demonstrated a direct and substantial interest in the legal status of the City’s approval and the development in question, essentially showing how a declaratory order would definitively affect its rights or obligations. Instead, the applicant’s case was presented primarily as one for an interdict to stop unlawful conduct. By failing to plead or prove the requisites for declaratory relief, the applicant has put the Court in a difficult position. The Court cannot even begin to make an enquiry into the existing, future or contingent rights at stake, without them being mentioned with particularity.

Moreover, the essence of the final relief sought by the applicant, a declaration of unlawfulness, is to invalidate the first respondent’s decision to grant the subdivision permit. 	In substance, that is a review of an administrative decision, which typically would be brought by way of a court application for review under the rules with observance of the time limits in the Administrative Justice Act [Chapter 10:28] or under the High Court Rules. The first respondent submits that an application for review should not be disguised as a declaratur, and that allowing the applicant to proceed in this manner would undermine the established procedures for reviewing administrative actions. Indeed, the first respondent goes so far as to argue that this Court has no jurisdiction to review proceedings of an administrative authority] as a declaratur, and that the applicant’s stratagem vitiates the entire process as it is incurable. In support of this position, counsel for the first respondent cited the oft-cited principle that form should not be allowed to trump substance in litigation if a litigant seeks to nullify an administrative act, the matter should be treated as a review, regardless of the label attached. Thus, failure to follow the review route including its procedural safeguards is said to render the application fatally defective. The respondents point out that the sole relief truly being sought is “nullification and setting aside as null and void the decisions of the first respondent”, and they maintain that this Court cannot grant such relief on the basis of the present papers.

Having considered these arguments, I agree that the applicant’s approach is procedurally unconventional and poorly framed. The urgent application procedure was invoked to secure a temporary interdict, yet the ultimate relief demanded is a definitive pronouncement on the lawfulness of the City’s permit. In principle, there is nothing that outright prohibits seeking a declaratory order by way of a provisional order. Our courts have, on occasion, confirmed provisional orders by issuing final declaratory relief or mandamus where the situation so merited especially in public law disputes. However, in doing so, the courts must be satisfied that the requirements for such final relief are met. Here, the applicant’s founding affidavit did allege that the City’s approval was illegal for want of compliance with the RTCP Act, and it identified the rights said to be violated by the development. That laid a factual basis for relief, but it did not neatly fit the doctrinal framework for a declaratory order. Ideally, the applicant should have clearly pleaded its interest in having the City’s decision declared void, and perhaps concurrently sought an order setting aside that decision which is the typical outcome of a successful review). The failure to do so is troubling.

Nevertheless, given that the draft final order in the provisional order explicitly prayed for a declarator, and this was the order issued by Kwenda J, the question before me is whether that final relief can properly be granted on the merits. I do not read the first respondent’s objection as a literal ouster of jurisdiction. This Court can grant a declaratory order in appropriate circumstances even if the procedure was initiated by chamber application. The real issue is one of propriety and prejudice. Has the applicant’s procedural shortcut prejudiced the respondents or undermined the court’s ability to fairly adjudicate the matter? The respondents were fully alerted to the fact that a declaratory order was sought. They addressed it head-on in their notices of opposition and heads of argument, marshalling substantive arguments why the approval should not be nullified. In my view, aside from matters of form, the substance of the dispute, whether the City’s decision was lawful, has been fairly and squarely joined. The respondents cannot credibly claim ambush or an inability to answer the case. They have done so thoroughly. Thus, while I find the applicant’s pleadings wanting, I would be reluctant to dismiss the application solely on that basis if the merits otherwise call for relief. However, the hybrid nature of the proceedings will be kept in mind in exercising discretion, especially since a declaratory remedy is discretionary. The applicant bears the onus to satisfy the Court that confirming the provisional order and thereby effectively voiding the City’s permit unless and until proper procedures are followed is justified. With that clarified, I turn to the substantive merits of the case.

Whether a Court may Interdict Lawful Administrative Conduct

The respondents submit that the applicant’s case fails on the merits because it seeks to interdict what is lawful. They argue that the City’s approval of the subdivision and the second respondent’s development activities were done in full compliance with the law, and that an interdict, whether interim or final cannot be granted in the absence of unlawful conduct. It is a fundamental principle of our law that the extraordinary remedy of an interdict will not issue to restrain the exercise of a lawful power or the performance of a lawful act. The first respondent’s papers put this point emphatically: “It is trite that a Court cannot interdict a lawful process in terms of the law.” Where an administrative authority or public body acts within the four corners of its statutory mandate, a court of law generally “has no power to stop the lawful and diligent performance of a constitutional or statutory obligation… absent a clear showing of unlawfulness.” To do otherwise would not only contravene established interdict principles, but would also risk violating the separation of powers by unduly interfering in the domain of the executive or administrative branch. The High Court cannot simply substitute its judgment for that of the duly empowered administrative authorities in matters within their lawful discretion. Thus, the respondents argue, unless the applicant demonstrates that the City’s decision was invalid or illegal in some respect, this Court must refrain from interdicting or undoing that decision. In the first respondent’s words, “the second respondent’s permit was granted [by the City] and its developments… were sanctioned by the relevant authorities, and no court of law can interdict that.” Any other approach would, it is said, “frustrate the balance of power inherent in the principle of separation of powers” by encroaching on the lawful decisions of the City Council.

There can be no quarrel with the abstract principle advanced by the respondents. An interdict is by nature a remedy to prevent unlawful harm. Tts purpose is to prohibit unlawful conduct, to compel the doing of a particular act, or to remedy the effects of unlawful conduct. If the conduct in question is entirely lawful, an interdict has no foundation. However, the critical question is precisely whether the conduct challenged here was lawful. The applicant’s whole case is that the first respondent’s approval of the subdivision was not lawfully arrived at, because it failed to comply with mandatory procedures in the RTCP Act, specifically ss 40(3) and (4)), and that the development as approved will violate various laws and rights (environmental, health, etc.). Thus, the applicant is asserting unlawfulness, while the respondents assert lawfulness. The court cannot avoid determining that issue by simply accepting the respondents’ characterization. If the applicant is correct that the City breached a peremptory provision of the law in granting the permit, for example, by not notifying or considering objections of affected neighbours as required, then the decision would indeed be unlawful and in that event, an interdict or other relief could properly lie to restrain the consequences of that unlawful decision. Conversely, if the respondents are correct that the City fully complied with the law, then they are also correct that the applicant has no basis for relief. The outcome thus hinges on an examination of the legal requirements of the RTCP Act and whether they were observed, as well as on the factual question of compliance with any environmental regulations.

The evidence before me indicates a sharp dispute on this point. The applicant alleges that section 40(3) of the RTCP Act obligated the City of Harare to notify or consult the owners of adjoining properties, or the local residents, before approving the subdivision, and that section 40(4) required consideration of objections or certain impact assessments. The applicant maintains that these steps were not taken, essentially accusing the City of a procedurally improper approval done secretly without community input. On the other hand, the City of Harare’s position as gleaned from the papers and its correspondence is that under the applicable Local Plan (No. 60) and zoning regulations, the property in question lies in an area zoned “Residential 2A (i) – Detached Single Dwelling Houses,” where cluster housing or a subdivision of the size proposed is a permitted use not requiring special consent. The City asserts that because this was “freely permitted land” under the operative local plan, there was “no requirement for neighbour notifications,” unlike a scenario where special consent or rezoning is sought (which would mandate public advertisement and objections). In support of this, the record includes letters from the City’s Director of Works and the Town Planner explaining that the subdivision met the city’s policy guidelines and was duly approved in terms of s 40 of the RTCP Act. In other words, the respondents argue that all statutory conditions were met, and therefore the approval was lawful. They further highlight that the City’s decision was guided by its urban planning policies, notably a densification policy aimed at increasing housing stock in Harare’s low-density suburbs in a controlled manner. Unless that local plan or policy is itself set aside or challenged, the respondents contend, no challenge lies against the issuance of this permit on such free land. They point out that similar cluster developments have been approved in the Glen Lorne area and other upscale suburbs without incident, and that the applicant’s area cannot be immune from the city-wide need for housing development.

In resolving this dispute, the Court must interpret the requirements of ss 40(3) and 40(4) of the Act. Those provisions, as read with related sections essentially outline the procedure for a local authority considering an application to subdivide land. Without reproducing them in full, they generally require that if a proposed subdivision might prejudice owners of adjacent properties or the public interest, for example, by altering road access, infrastructure load or environmental impact, the local authority should take steps to notify and hear objections from affected persons and to ensure compliance with any conditions such as obtaining an Environmental Impact Assessment if needed. Section 44 of the Act then provides that certain decisions under s 40 can be appealed to the Administrative Court by any aggrieved party.

The applicant’s contention is that the City failed to adhere to these consultative steps, thus prejudicing the local residents’ rights and rendering the permit approval null and void. The respondents dispute this, effectively saying that no such steps were legally required in this instance due to the zoning permissibility. Unfortunately, neither party placed before me the full text of the local plan or the precise size and density details that might trigger or obviate the need for public notification. However, the onus is on the applicant to prove illegality. On the evidence presented, the applicant has not proven, on a balance of probabilities, that the first respondent was obliged to notify it or its members prior to approving this subdivision. The City’s explanation that the land use fell within existing parameters (and thus did not require special notice) stands unrebutted by any concrete statutory or regulatory provision from the applicant.

The applicant’s case on unlawfulness was largely asserted in general terms. By contrast, the first respondent has shown documentation, including the subdivision permit itself (which is on record),  indicating that the approval was granted after assessment by the City’s experts and imposition of various conditions such as engineering requirements, access road provisions, and service upgrades. In sum, I find that the applicant has not established any clear illegality in the process by which the subdivision permit was issued. Absent such a showing, this Court must refrain from intervening. The permit issued by the City remains a lawful act of a competent authority. As Pitman J observed in an analogous town planning case, once a local authority exercising statutory powers has granted a permit under the proper procedures, that decision “stands unless and until set aside by a competent court,” and interim relief should not be granted lightly to stymie its implementation (see Amalgamated Sales (Pvt) Ltd v City of Salisbury (1971) (unreported) TPD 1280, per Pitman J). The applicant here has effectively sought such interim relief and now final relief without meeting the necessary threshold of demonstrating an unlawful act or decision on the part of the City.

Accordingly, applying the principle that courts do not interdict lawful conduct, I conclude that this ground of opposition holds merit. Since the City’s actions have not been shown to be ultra vires or procedurally improper, there is no basis to invalidate its decision or to perpetuate the halt on the second respondent’s building project. I would add that even if there were minor procedural missteps, which is not evident on the papers, the balance of convenience and public interest considerations would still militate against confirming the interdict in the circumstances of this case.

Alleged Infringement of Constitutional Rights and Their Limitations

The applicant has anchored its case in part on alleged violations of certain constitutional rights of its members – principally the right to privacy (Section 57 of the Constitution), the right to property (Section 71), the right to a safe and healthy environment (Section 73), the right to health care (Section 76, interpreted broadly), and the right to administrative justice (Section 68). The applicant avers that the construction of multiple cluster homes on Stand 949 will invade their privacy, overload shared amenities (water, sewage, roads) thus affecting their health and safety, degrade the environment (through possible pollution or deforestation), and that the City’s failure to consult them was unfair administrative conduct. These concerns are not trivial. Every citizen indeed has the right to a healthy environment and to fair administrative action. However, the respondents correctly observe that constitutional rights are not absolute entitlements to a status quo free from any change or development. Section 86 of the Constitution explicitly provides that fundamental rights and freedoms must be exercised reasonably and with due regard to the rights of others, and that they “may be limited only in terms of a law of general application to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society”, taking into account factors such as the nature of the right, the purpose of the limitation, and “the need to ensure that the enjoyment of rights… by any person does not prejudice the rights and freedoms of others.” Among the legitimate grounds for limiting rights, the Constitution expressly includes “public health” and “regional or town planning” as objectives that may necessitate restricting individual rights.

In the context of this case, the rights of the applicant’s members – to enjoy their properties in peace, to an unpolluted environment, etc., must be balanced against the rights and lawful interests of the second respondent as a property owner and developer, as well as the broader public interest in urban development and housing. The second respondent has a constitutional right to property and to its lawful use, just as the residents have a right to theirs. He is undertaking development on his own land, with the approval of the municipal authorities. The first respondent, for its part, has a constitutional and statutory mandate to manage land use in the city for the benefit of the community. As the City’s papers outline, Harare faces an ongoing shortage of available housing land, and densification in appropriate measure is a policy aimed at ensuring equitable access to shelter and infrastructure for the population. The first respondent persuasively notes that the applicant cannot expect that their neighbourhood remain frozen in time, impervious to the city’s developmental needs: “the applicant appears to have had an unrealistic expectation that the specific standards and conditions previously existing in the area would be maintained indefinitely, without any prospect of change or development.” Such an expectation, while understandable from a homeowner’s perspective, finds no absolute protection in law. Progress and change, if carried out lawfully, are inevitable and indeed necessary. In this vein, the respondents submit, and I agree, that while the applicant’s members may wish to assert and enjoy certain rights they believe to be inviolable, those rights are not absolute and are subject to reasonable limitations. The second respondent is utilizing his resources in a lawful manner to build much-needed shelter for the broader community, with the City’s sanction, and this is accompanied by public benefits such as the City obtaining development fees, levies and upgraded utilities that improve municipal coffers and services. In short, this is not a case of an outlaw private actor ravaging the environment or encroaching on others’ property. It is a formally approved development endeavour which, by its nature, will have some impact on the surroundings, but impact that the law deems permissible.

Crucially, the applicant’s affidavits lack specific evidence demonstrating any concrete violation of the cited rights. The fears raised, of groundwater contamination from septic tanks, traffic congestion on local roads, strain on water supplies, or increased security risks, were largely speculative and not backed by expert testimony or data. The second respondent addressed each of these concerns, for instance, noting that any new houses will use the existing council water infrastructure or boreholes just as all other residents do, and that the council’s engineering department had approved the plans with conditions to mitigate runoff and other environmental impacts. On the issue of privacy, the applicant simply asserted that having more homes nearby would intrude upon their privacy, but as the second respondent countered, no one is interfering with or intruding on their properties at all. The development is happening on the second respondent’s own land; it does not encroach into the yards of the neighbours.

While additional houses might overlook existing ones to some degree, that is a commonplace incident of urban living and not per se a breach of the right to privacy, which typically guards against unlawful searches or invasions by the state or other persons. The right to property is not violated either. The applicant’s members are not being deprived of their properties, nor of any legally enforceable amenity or servitude. At most, they face the discomfort of construction activity and the prospect of a denser occupation next door. These are inevitable incidents of development, and unless the development is unlawful, such inconveniences do not rise to the level of constitutional infringements.

As for the environmental right in Section 73, it entitles every person to an environment that is not harmful to their health and to have the environment protected for present and future generations. The evidence does not show that this development poses any serious environmental threat. The land in question is private residential land, not a public wetland or conservancy. The City’s permit itself, as well as EMA regulations, require the developer to manage waste and sewage properly (for example, through approved septic systems) and to adhere to building standards. The second respondent has affirmed his commitment to take care of the environment, as well as the health of the neighbouring residents, under the watch of the City and in line with mitigatory measures imposed. The applicant has not demonstrated that those measures are insufficient or that any environmental law is being violated. Indeed, the applicant did not even cite the Environmental Management Agency as a party, which underscores that this aspect of the case was not pursued in a concrete way.

Finally, on the right to administrative justice section 68 of the Constitution, the applicant complains that the City of Harare made its decision without consulting them, thereby acting in a manner that was procedurally unfair. While the right to administrative justice does confer, in appropriate cases, a right to be heard before decisions that affect one’s rights are taken, it is not every administrative act that triggers a duty to consult the public. Here, the question loops back to whether the residents had a legal right to be notified under the RTCP Act. I have already found that the applicant has not established such a legal requirement in this scenario. In the absence of a statutory or common-law duty to consult the neighbours for this type of permitted development, the failure to hear them does not amount to a breach of Section 68. The City’s officials considered the subdivision application on its merits according to planning laws and policy. That process is what Section 68 would scrutinize and nothing suggests that the City’s internal process was irrational or abusive. The applicant’s real gripe is that they were left out of the process, but if the law did not entitle them to be part of it, that cannot be converted into a constitutional violation. Moreover, the applicant has now had its grievances aired fully before this Court, which is an avenue of recourse that cures any perception of being unheard. In sum, I am satisfied that no substantive constitutional rights infringement has been proven. Even if some slight infringement were conceivable, it would be one sanctioned by law (the planning law) in pursuit of legitimate objectives, thus falling squarely within the permissible limitations of rights under Section 86(2) of the Constitution. The applicant’s members cannot insist on their area remaining low-density “forever” when the lawful exercise of another’s property rights and the City’s planning policy dictate otherwise.

Disposition 
	In the final analysis, the applicant has failed to establish a case for the confirmation of the provisional order. The preliminary points raised by the respondents have merit. This Court’s jurisdiction was permissibly invoked, but the applicant’s avoidance of the provided statutory remedies and its procedural missteps in seeking a declaratory outcome reinforce the view that this application was not the proper method to ventilate its grievances. On the merits, the applicant did not prove any illegality in the first respondent’s conduct. Absent unlawfulness, there is no basis to interdict or interfere with the respondents’ lawful activities. The alleged infringement of rights by the development is either unfounded or falls within lawful limitations. 	Consequently, the provisional order cannot be confirmed.

Disposition:

The provisional order granted on 28 March 2025 is accordingly discharged.

Mambara J: …………………………………………………………..

Mangwana & Partners, applicant’ legal practitioners

Gambe Law Group, 1st respondent’s legal practitioners

Mushangwe and Company, 2nd respondent’s legal practitioners