N.H. Franco and Company v City of Harare

### Preamble
HH 71-2005
HC 3244/05
N.H. FRANCO AND COMPANY
versus
CITY OF HARARE
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N.H. FRANCO AND COMPANY
versus
CITY OF HARARE

HIGH COURT OF ZIMBABWE
HUNGWE J
HARARE, 14 September 2005

HUNGWE J: The applicant, a firm of legal practitioners seeks the following order:

"Interim Relief Sought
2. Pending the discharge or confirmation of the provisional order:
   2.1 The respondent shall cause Robin House, situated in George Silundika Avenue, Harare, to be reopened forthwith.
   2.2 The respondent shall ensure that the applicant and its lawful visitors have unrestricted access to Robin House."

The applicant is a tenant of Robin House and has been in such occupation of Robin House for more than 48 years. After the expiration of its lease applicant became a statutory tenant.

On 22 June 2005 a party of no less than 12 police officers arrived at Robin House on the company of an employee of the respondent. They ordered all occupants of the offices at Robin House to vacate their offices by 13.00 hours on that day. They did not have any written warrant for this order nor were they able to exhibit an eviction order as authority for the order. Respondent's employee had no document to support her actions.

The tenants obeyed the order to leave by 13.00 hours, as did Mr Fitzpatrick of the applicant. He however took it upon himself to establish the basis of the order. He made enquiries with the officer in charge of this team of officers, one Detective Inspector Rangwani. Rangwani explained that the Police were merely assisting respondent. The respondent's officer did not dispute this. Mr Fitzpatrick approached the directors in the Health services Department of the respondent. No one in these offices was able to point to the legal basis of the order. When he pointed to the illegality of the closure, no definitive response was tendered by those in respondents' offices whose duty it was to do so. His frantic efforts wererewarded when police, for undisclosed reasons granted applicant and another business entity limited rights of access to their offices. Robin House, at that time of this application remains guarded by Police and a private guard who limit access to it.

Applicant seeks an order that the building be opened to its lawful tenants forthwith. It states that neither the Public Health Act [Chapter 15:09] nor any other law has been complied with prior to the forced closure of Robin House. It points out that it has lost business and other tenants have been adversely affected by this apparently unlawful closure of Robin House.

For the respondent Mr Kanokanga contended that Mr Fitzpatrick had no locus standi bring this application as he was only an employee of the applicant and therefore was neither a tenant nor the owner of the building in issue.

This was the strongest attack in the application. The rest of the attack was feebly made displaying lack of conviction in the argument respondent was putting forward. I say this because it could not be seriously contended by anyone that without following the laid down procedure in terms of the Public health Act, the respondent actions are legal. Whilst the role of respondent set out in Part IX of the Public Health act [Chapter 15:09] is recognized it has to be carried out within the restricted confines of the law. If the city is of the view that the conditions of any building within its jurisdiction, for any of the reasons set out in section 85 of the Act, then it shall serve a notice on the author of the nuisance requiring him to remove it within a time framework to be stated in the notice. If the person against whom the notice has been issued fails to comply with the notice, there is a procedure set out in section 87 of the Act. That procedure requires the respondent to file a complaint with the magistrate who then makes an order requiring the person against whom the complaint had been made to comply with the notice. The Act provides the various steps to be taken before a property can be lawfully demolished at the instance of the respondent.

Fortunately this case has not degenerated to that level. However, one of the steps set out in the Act appear to have been followed prior to the closure of the office block. Such closure is prima facie unlawful. The consequences for the tenants and the general public are quite far reaching. Workers have been denied their right to work by an apparently arbitrary act of the respondent.
 Employers' businesses have been summarily disrupted without notice. Means of livelihood have been disrupted unlawfully. It can be argued that the arbitrary acts of the respondent have denied the affected tenants and workers their constitutional right to be heard before a decision adverse to their interests has been made or action prejudicial to their rights or interest taken.

The sheer absence of legality, in my view entitles the applicant to the order it seeks.

The objection as to *locus standi* cannot be sustained when regard is had to what interest Mr *Fitzpatrick* seeks to protect. In any event respondent is has fallen far off the mark of illegality so as to enable this court to recognise that, as partner in the applicant, he has an inherent *locus standi* to sue on behalf of the partnership. As I see it, to put it negatively, there is nothing to disqualify Mr *Fitzpatrick* from bringing this application. In the event there will be a provisional order granted in terms of the draft interim relief.

N.H. Franco & Company, applicant's legal practitioners
Kanokanga and Partners, respondent's legal practitioners

N.H. Franco & Co, applicant's legal practitioners
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