Elizabeth Chisina & 10 Ors v Minister of National Housing and Social Amenities

### Preamble
1
HH443-12
HC 13052/12
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ELIZABETH CHISINA

And

TRYMORE CHIFAMBA

And

STELLA MAPOSA

And

MACDONALD CHIFAMBA

And

PROUD KARIMA

And

CHRISTOPHER NYAHUYE

And

MOREEN CHIFAMBA

And

PHILLIP DINHIZHI

And

MRS MAKARIMAYI

And

MRS MUSAFARE

And

MIRIAM SIMBANEGAVI

versus

MINISTER OF NATIONAL HOUSING AND SOCIAL AMENITIES

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 14, 21 and 28 November 2012

Ms R. Chibaya, for the applicants

Ms K.L. Murefu, for the respondent

URGENT CHAMBER APPLICATION

MATHONSI J:	The respondent filed a court application on 13 August 2012 against 113 respondents including the 11 applicants in this matter, in case No. HC 9587/12.  That application was served on the same date with the respondents or their representatives signing a copy of the court application in acknowledgment of service.  As the application was unopposed the respondents obtained an order in default on 24 October 2012 in the following terms:

“IT IS ORDERED THAT:

All construction activities by 1st, 4th ,6th , - 18th ,20th – 23rd , 26th – 29th , 35th – 76th , 78th – 107th , 109th – 112th respondents and also by other persons possessing or occupying stands whether lawfully or unlawfully, in Dzivaresekwa Extension Phase Two be stayed pending the completion of the servicing of the area and the issuance of a certificate of compliance by the City of Harare and the verification exercise to identify legitimate and illegal occupants of the stands is completed by the applicant.

1st, 4th ,6th , - 18th ,20th – 23rd , 26th – 29th , 35th – 76th , 78th – 107th , 109th – 112th respondents be and are hereby interdicted and prohibited from continuing to carry out construction activities on the stands they possess or occupy whether lawfully or unlawfully, within the area of the Dzivaresekwa Extension Scheme Phase 2 in Harare.

1st, 4th ,6th , - 18th ,20th – 23rd , 26th – 29th , 35th – 76th , 78th – 107th , 109th – 112th respondents and any other person who is lawfully or unlawfully occupying stands in Dzivaresekwa Extension Scheme and has undertaken without the requisite approvals to demolish such structures within 7 days of this order failure of which the deputy sheriff with the aid of the Zimbabwe Republic Police is hereby instructed to execute such order.

1st, 4th ,6th , - 18th ,20th – 23rd , 26th – 29th , 35th – 76th , 78th – 107th , 109th – 112th      respondents will pay costs of suit.”

The 11 applicants then filed this urgent application on 9 November 2012 seeking the following provisional relief:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

The execution of the order and writ of this court in HC 9587/12 is hereby stayed pending finalisation of the application for rescission of judgment under Case No. HC 12985/12.

Each party shall bear its own costs.

INTERIM RELIEF GRANTED

Pending the finalisation of this matter applicant is granted the following relief:

The execution of the order and writ of this court in HC 9587/12 is hereby stayed pending finalisation of the application for rescission of judgment under Case No. HC 12965/12

Each party shall bear its own costs.”

Clearly the applicants seek exactly the same interim relief as the substantive relief that they crave.  This court has stated, on times without number, that it is undesirable and indeed unacceptable, for an applicant to seek interim relief which is final in nature.  The reason being simply that by doing so, the applicant would obtain final relief, without having proved his or her case.  This is so because, interim relief is granted merely upon proof of a prima facie case.  I am in total agreement with the pronouncement of CHATIKOBO J in Kuvarega v Registrar General and Anor 1998 (I) ZLR 188 (H) 192G – H and 193A – B where the learned judge said.

“The practice of seeking interim relief which is exactly the same as the substantive relief sued for and which has the same effect, defeats the whole object of interim protection.  In effect, a litigant who seeks relief in this manner obtains final relief without proving his case.  That is so because interim relief is normally granted on the mere showing of a prima facie case.  If the interim relief is identical to the main relief and has the same substantive effect, it means that the applicant is granted the main relief on proof merely of a prima facie case.  This, to my mind, is undesirable especially where, as here, the applicant will have no interest in the outcome of the case on the return day.”

See also Qalisa (Pvt) Ltd v Zimra & Anor HB 106/11.

The applicants therefore have a very difficult task justifying the relief that they seek in light of the authorities.

In their founding affidavits they alleged that they were not properly served with the court application in case No. HC 9587/12.  They did not elaborate.  They have since made an application for rescission of judgment in case No. HC 12985/12 which application has prospects of success given that they are the legitimate owners of the respective stands that they occupy having been allocated the stands by the respondent.

As shall be seen shortly these allegations are not entirely correct.

The application has been strongly opposed by the respondent.  In his opposing affidavit, David Munyoro, the Permanent Secretary, states that the applicants were properly served with the main application and chose not to do anything about it.  They waited for 3 months before taking action and only approached the court when they received the court order which is self-created urgency.

Munyoro stated further that the applicants were approached by the Ministry as far back as 2011 and advised to stop  construction activities and demolish their structures as the construction was illegal in light of the fact that most of the occupants of the stands illegally occupied them, the whole area has not been serviced in accordance with municipal by laws there being no sewer system and no road network and the City of Harare has not issued a certificate of compliance which would entitle stand owners to commence construction lawfully.

It is stated on behalf of the respondent that a contractor has been secured to service the land.  The contractor has to construct a road network and lay sewer pipes which is a pre-requisite for the construction of houses to commence and for lawful settlement on the land.  The contractors work is being hampered by the applicants and other occupants who have resorted to self-help by setting up illegal structures on that land some of which are in the way of road and sewer construction according to the development plan for the area.  As a result, the government continues to suffer prejudice because the contractor is charging by the day, days which are spent on nothing as the applicants continue holding over.

Ms Murefu for the respondent submitted very strongly that the application should fail on the basis that it is simply not urgent.  The applicants were aware from 2011 that their structures would be demolished to allow for the land to be serviced in compliance with municipal by laws.  They were all served with the main court application on 23 August 2012, and there is proof of such service on record, but they chose not to oppose the application.  Judgment was then entered in default, as it was wont to be.  It is only after that order was served that the applicants sprung into action.

There is merit in the argument that urgency which stems from a deliberate failure to act until the deadline is nigh is not the urgency envisaged by the rules.  Kuvarega v Registrar General & Anor (supra) at 193G; I agreed to hear the matter on the merits because I am of the view that it is not necessary to decide the matter on the technically of urgency.  In my view this matter resolves itself on the facts which are common cause.

It is common cause that Dzivaresekwa Extension, Phase 2 where the stands in dispute are located is Municipal area falling under the jurisdiction of City of Harare.  For one to be allocated, construct and occupy municipal area, there must be compliance with basic provisions in the municipal by-laws requiring land to be serviced e.g by the laying of sewer lines and road networks.  Once a land developer has complied with the requirement for the servicing of land the municipality must inspect the land and be satisfied that by-laws have been complied with.  If so satisfied, it will issue a certificate of compliance.  It is only when a certificate of compliance has been issued that stand holders are allowed to draw up plans for construction which plans still have to be approved by the local authority. All that has not happened.

It is common cause that most of those who occupy Dzivaresekwa Extension do so illegally.  In fact even in the application for rescission of judgment, which, although not before me, has been drawn to my attention, only 3 of the applicants produced proof of allocation of the stands to them by the respondent.  It turns out that the remainder of the applicants were not even allocated the stands at all.

It is also common cause that the entire area has not been serviced and no construction work should have been undertaken because doing so is illegally.  Only now has the respondent engaged a contractor to service the stands.  It is accepted that all the structures that have been put up are illegal structures.  They are also preventing the proper development of the area as some stand in the way of sewer lines and road according to the development plan.

Ms Chibaya for the applicants conceded all these facts.  She submitted that she was seeking a stay of execution merely on humanitarian grounds because a demolition of the structures will leave some of the applicants home less.  There is no merit in that submission.

What the applicants are asking the court to do is to clothe lawlessness with legality.  That is not possible as this is a court of law which is there to uphold the law.  The respondent is trying hard to develop the land for the benefit of citizens of this country including some of the applicants, but we have a few misguided elements who have elected to live outside the law by grabbing tracts of land, constructing illegal structures and then rushing to court to seek legitimacy where it does not exist.

There is no way such people can seek shelter under the courts because none exists.  That land has to be developed according to the laws of this country before anyone can be allowed to build houses on it.  Doing otherwise would be perpetuating a wrong and would lead to anarchy.

I therefore come to the in escapable conclusion that this application is devoid of merit and I am of the view that even the application for rescission of judgment that has been filed is unlikely to succeed for the same reasons I have alluded to above.

Accordingly the application is dismissed with costs.

Muunganirwa & Company, applicants’ legal practitioners

Civil Division of the Attorney General’s office, respondent’s legal practitioners