Chhaganbhai Vithal RAMA V Minister OF Local Government, Public Works AND National Housing AND Gloryboost Investments (Private)

### Preamble
1
HH 503-25
HCH 6555/21
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CHHAGANBHAI VITHAL RAMA

versus

MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING

and

GLORYBOOST INVESTMENTS (PRIVATE)

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE; 04 September 2025

E Mubiyiwa, for applicant

L T Muvakukwa, for the first respondent

TST Dzvetero for the second respondent

Opposed Application

CHITAPI J: 	The parties are as detailed in the citations above. The applicant is a male adult. The first respondent is the Minister who made the decision which the applicant seeks to contest. The third respondent is a duly registered company in terms of the laws of Zimbabwe. It was cited as an interested and affected party should the relief sought by the applicant be granted.

This is an application for condonation of the late noting of review. The applicant is out of time to file a review application as completed in rule 62 (4) of the High Court Rules which provides that:

“67 (4) Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceedings in which the irregularity or illegality complained of is alleged to have occurred

Provided that the court may for good cause shown extended time.”

This application is made in terms of the proviso in rule 62 (4) as quoted. The applicant did not file its intended review timeously and hence seeks condonation.

The factual background to the application is that on or about 18 June 2001 the applicant was granted by the first respondent a sixty (60) lease over a piece of land called stand  554(547) Chirundu Township. The effective date of the lease was 1 April 2001 albeit the lease agreement was signed by the first respondent on 18 June 2001. The applicant took possession and occupied the premises. He claims to be still in occupation of the property.

It is common cause that in or about October, 2016 the first respondent cancelled the lease agreement aforesaid. The applicant intends to seek a review of the first respondent’s decision to cancel the lease agreement. The applicant contends in the review application as shown in the draft of the proposed application which he attached to his founding affidavit, that the first respondent summarily  cancelled the lease agreement without following due process and in particular without regard to the requirements of the Administrative Justice Act, [Chapter 10:28].

To briefly contextualize the allegedly unfollowed due process, the applicant contends that in 2009, the first respondent wrote a letter to the applicant in which he indicated that there were no activities being carried out on the property in issue. The letter did not allege the breach of the lease agreement nor did it place the applicant on terms to remedy a perceived breach. The applicant responded to the first respondent’s letter by his written response dated 30 November 2009. Therein, the applicant denied the first respondents contention that the property had been “neglected and abandoned with no significant activity taking place.” The applicant averred that the property was being maintained by staff residing on it and that substantial developments and commercial activities in the form of fish breeding was taking place with fish stocks being increased on an ongoing basis. The applicant asked the first respondent to reconsider its position in relation to its letter. On 16 January 2011, the applicant wrote to the first respondent as follows:

“We refer to our various letters, the latest on (sic) dated 30th November 2009 we still await your response.

Please be advised that your lack of response or direction in the matter is hampering production and creating delays in the full implementation of the prospect.

Your urgent response will be appreciated in this matter.”

The applicant averred that without further ado the first respondent cancelled the lease agreement and subsequently released the property to the second respondent. It is the applicant’s contention on review if condonation is granted, that the summary cancellation of the lease agreement was unlawful and invalid. A toritiori the applicant then contends that the lease agreement between the first and second respondent is invalid and ought to be vacated.

It is to be noted that the first respondent contends in the opposing affidavit that there was no need for notice to be given to the applicant because the terms of the lease agreement had been breached. The first respondent materially averred as follows in paragraph 7 of the opposing affidavit.

“Breach entails termination of the lease agreement between the two parties. In any case the property has since been allocated to the second respondent who has been in occupation since 2017.”

The issue of the legality or otherwise of the cancellation of the agreement is in my view engaged and would require resolution so much about the brief background to the dispute.

Addressing squarely the issue of condonation, it is significant that at the commencement of the hearing counsel for the first respondent who has filed a notice of opposition and opposing papers withdrew the first respondent who has filed a notice of opposition and opposing papers withdrew the first respondents opposition to the application. Counsel indicated that it had dawned on the first respondent that the interest of justice and the need to have the court give a final determination of the application commended itself to be proper in the circumstances of the case.

With the first respondent having capitulated on its opposition it left the second respondent alone in opposing the application. The second respondents opposition in the circumstances because shaky. It is doubtful whether the second respondent was properly advised to continue with its opposition. This is so because the rights which the second respondent seeks to have protected arise from a lease agreement granted by the first respondent to the second respondent. The lease agreement relates to the same property previously leased to the applicant by the same first respondent who no longer opposes the condonation application. In so doing, the first respondent whose decision is by consequence of his non opposition to be reviewed therefore accepts that the applicant has reasonable cause for and prospects of success on review. What is to be reviewed is the decision of the first respondent from whom both the applicant and the second respondent purport to derive the rights which they seek to protect. Neither of the parties can substitute the first respondent. In particular once the first respondent from whom the second respondent derives the argument and rights arising therefrom consented to the application, it is axiomatic that the second respondent has no strong leg to stand on. To oppose the condonation application is akin to saying to the first respondent, you do not know what you are doing, I will show the court that you were right and should not consent to a review application being filed against your decision. In logic and common sense therefore the second respondent’s opposition to condonation and the filing of a review application against the decision of an administrative authority, viz the first respondent while the authority concerned consents to its decision being reviewed is illogical, in illegal irrational and absurd. The filing of a review application should be used by the second respondent to vindicate its claimed position of being the legitimate lessor.

Speaking to the requirements for condonation, the second respondents’ difficulties are many. Since the second respondent was not privy to the making and cancellation of the lease agreement between the applicant and the second respondent, it is an outsider and foreigner who cannot swear positively to facts surrounding the lessor/lease relationship between the applicant and the first respondent. It is therefore clear that its alleged rights can only be valid upon the outcome of the review. It cannot stop the review. Even in relation to the explanations for delay whilst it is true that it engaged in same litigation regarding the property those cases involved the applicant as well hence evidencing that there has remained unresolved issues amongst the parties herein concerning the rights to use and occupation of the property in dispute.

I have considered the applicant’s explanation for the delay and also noted that the delay is moderate, a fact accepted as common cause by all the parties. I have despite this and whilst again noting that the first respondent consents to the application reached the decision that condonation should be granted. The issue of the disputed rights to the property has always been a live one for the parties. They have filed litigations on it. The applicant has taken advices from legal practitioners and been given conflicting positions on whether he should seek a declaration of nullity of cancellation of his lease agreement or leave a nullity be since it’s a nothing. Indeed, the celebrated case of Macfoy v United Africa Company Limited (1961) All ER 1169 contains the following except by Lord Deming

“If an act is void, then it is a nullity. Its not only bad but incurably bad. There is no need for order of Court to set it aside. It is automatically void without more ado, although it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It well collapse.”

There was therefore arguably justification for the advice which the applicant got to consider the purported cancellation of the lease agreement a nothing not requiring the applicant to act. It seems to me in any event that what is critical to consider is not the soundness of the advice which the practitioners gave to the applicant but the fact that the applicant did not resign to the fate of the cancellation. He consulted legal practitioners hence showing serious intent to challenge his fate

In relation to the reasonable prospects of success on the merits of the rescission, little need be said. I have noted that there is contest on procedural issues and their nature is not fanciful. The first respondent in any event consents to the granting of the application. I have to be careful to pronounce on prospects of success in order not to compromise decisions on matters which the review court needs to make. The facts and circumstances of this case compare to the situation which the court had to deal with in the case Tshova Mubayiwa Transport Cooperative Limited and six others v Mpofu and others HB 167/04 when the court after noting that the dispute between the parties had been ongoing for a long time with court battles galore stated that

“where there has been an ongoing dispute which remains unresolved, to allow one party to find a way out of the problem through a technical fault will be a failure by these courts to do justice between man and matter in dispute centers on a commercial interest of both parties which makes it more important for it to be finalised once and for all.”

In casu the first respondent desires exactly that is for the court to determine the dispute once and for all.

Un the circumstances of this case and on the exercise of the courts discretion after considering the guidelines in the case NSSA v Denford Chipunza SC 116/14 I grant condonation with costs to be in the cause in the rescission application and make the following order

IT IS ORDERED THAT

The applicant is granted condonation of late filing of a review application and an extension of time to tile his review against the first respondents’ decision to cancel the lease agreement between them in 2016 in relation to stand 554 Chirundu Township.

The applicant shall file the intended review application within five days of the date of this order.

The costs are in the cause in the application for review.

Zimudzi and Associates, applicant’s legal practitioners.

Civil Division, first respondent’s legal practitioners.

Antonio & Dzvetero, second respondent’s legal practitioners