The Ballantyne Park Conservancy Trust v Kilima Investments (Private) Limited and Phillip Chiyangwa and City of Harare and Registrar of Deeds

### Preamble
1
HH 187-2011
HC 6377/11
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THE BALLANTYNE PARK CONSERVANCY TRUST

versus

KILIMA INVESTMENTS (PRIVATE) LIMITED

and

PHILLIP CHIYANGWA

and

CITY OF HARARE

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

GOWORA J

HARARE, 7, 11, 20 and 27 July 2011 and 31 August 2011

Mrs J Wood, for the applicant

T Mpofu, for the respondents

GOWORA J:	This matter was initially set down for hearing before me on 7 July 2011. After perusing pleadings filed by the parties to the dispute I required the first and second respondents to lodge with my clerk a copy of an environmental assessment impact report alluded to in the opposing affidavit which had been omitted from the record. Consequently the matter was postponed for hearing after the filing of the report.

By the time that date arrived the parties had filed further documents and I postponed the matter to 20 July 2011 to enable the court and the parties to the dispute to descend upon the park and conduct an inspection in loco which was done. The parties then appeared before me on 27 July 2011 for the resumption of the application.

Mr Mpofu on behalf of the respondents then raised a number of points in limine.

The first related to urgency. It was contended that the matter was not urgent. He submitted that in terms of the record before the court, by 21 April 2011 the maintenance work being carried out by the first respondent had already been observed and the applicant had gathered the 1250 signatures it utilised in the petition submitted to the City of Harare in which the latter was being prevailed upon to recover the stand from the first respondent. Thus, so the argument went, by that time the need to act had arisen but the applicant did nothing and there was no explanation on the papers filed by the applicant on the failure to act, either in the founding affidavit or the certificate of urgency. He submitted that although the applicant had alleged that the first respondent was carrying out developments of a structural nature, the inspection in loco revealed nothing of the sort.

The contention by the applicant was that it had filed a supplementary affidavit deposed to by one Mugadza which is to the effect that what is being done by the first respondent on the disputed land does not amount to maintenance work. The applicant further contends that in the supplementary affidavit the point is made that what is being done has disturbed the eco-balance as mentioned in the environmental assessment report. It was contended further that the supplementary affidavit was not inconsistent with the founding affidavit and the court was urged to have regard to the affidavit from Mugadza in order to appreciate the damage being done to the wetland and supply of water.

The factors upon which urgency is based are to be found in paras 3.5 and 3.8 of the certificate of urgency which are in the following vein:

“3.5	Despite having been served with the said court application the first and second respondents continue to carry out developments on the said property without a development permit and authorised land use change. The second respondent has declared openly through the press that they will continue despite the attempt by the applicant to seek an order to interdict them.

3.8	The urgency of the matter therefore emanates from the fact that the court application will be rendered a brutem fulmen if the first and second respondents are not interdicted from carrying out developments.  The first and second respondents’ workers are on the ground on a daily basis and to date additional boreholes are being sighted digging is taking place, burning of grass as well as plans being afoot to reconstruct the police neighbourhood watch building.

3.9	In the event that the applicant succeeds in the court application, it stands to suffer irreparable harm if the interlocutory interdict is not granted to the extent that the land use of the property would have been changed and the entire ecosystem would have been destroyed due to the unlawful developments being carried on the property.”

I must comment that neither the certificate of urgency nor the founding affidavit point to any factor that emphasises the urgency of the matter. This aspect appears in the founding affidavit filed in support of the main application and which papers form part of the urgent chamber application placed before me.  The deponent of the two affidavits is the same, one Susan Margaret Burr. The alleged misdeeds of the first and second respondents are contained in paras 19 – 22 of her affidavit and state as follows:

“19	The applicant and its residents were shocked recently to see the respondents or one or more of them erecting a fence around the property. The applicant petitioned City of Harare over these developments on 21 April 2011. The applicant collected over 1250 signatures from members of the Trust residents and interested parties and submitted the petition to City of Harare. I attach a copy of the petition annexure “F”.

20.	The third respondent has given a rather unsatisfactory response to the petition aforesaid in a letter dated 13 May 2011, written by its Town Clerk. A copy of the same is attached hereto marked annexure F1.

21.	In addition to the fence and razor wire, the flatish land has been ploughed destroying the ecology of which residents are trying to protect. Most trees have been chopped down and the loosening of the top soil will inevitably result in the siltation of the dam in the park. Pet cemetery and football pitch have been dug out and ploughed over. Flood lights have been erected, an Econet base station has also been erected and we understand that Netone is also planning to erect one.

22.	All these developments are altering our environment as this wetland and greenbelt are replaced by physical structures that were not envisaged when the property was left in trust for the residents. Suffice to state that such developments are also illegal in so far as they are in contravention of Part V of the Regional, Town and Country Planning Act [Cap 29:12].

……………..

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26.	The residents are against these developments for the following reasons:

The property is part of City of Harare’s water system. It tops up diminishing underground water for boreholes and purifies the water;

The place is and should remain a green belt contributing  to a clean environment;

The park provides relief from the walls and tarmacs for residents passing on foot, or bike, something now impossible as the place is now fenced;

It provides opportunities for relaxation and recreation, picnic, football games, walking cycling and walk about for families and bird watching;

It provides opportunities for special gatherings for residents such as church groups, education programmes and pre-school visits”.

In opposing the urgent chamber application, the respondents have denied that there are any developments on the property. They aver that what the applicant seeks to halt are regular maintenance works being carried out on the stand. They contend that parks must be cleaned of rubbish, weeds must be removed, trees must be pruned and grass manicured.

It was the averment in the affidavit to the effect that the respondents were cutting down trees indiscriminately that convinced this court to treat the matter as urgent and set it down for hearing. As part of its papers the applicant annexed colour photographs in which workmen and women were depicted digging up grass. Some of the pictures showed an expanse of land that had been denuded of grass. Another picture showed an area where green grass had been dug up. In the other pictures the grass was not so green, implying that the process of digging had taken place over some period of time. The contention by the respondents seemed to suggest that there were no developments taking place and that what had taken place had been maintenance work. The court, in the light of these seeming disputes of facts, thought it prudent to conduct an inspection in loco.

At the entrance to the park is a building in which is housed either a section of the police or neighbourhood watch. It is guarded by members of the Zimbabwe Republic Police. The building housing the police post is dilapidated. It is constructed of wood panels and there are panels missing from some of the walls. Some panels have become loose leaving gaps that expose the occupants to the elements. An enquiry of the personnel found outside the building revealed that during the rainy season the roof leaked. It certainly looked like the entire building required renovation. Directly across the building are animal cages that are neglected. They are empty. The roof is falling apart. One can only say that the cages are in a sorry state.

A cursory look across the expanse of the park gives one the impression of neglect. Closer inspection reveals the extent to which the place seems to have deteriorated. The place appeared to have been long abandoned by whoever had charge of looking after it.  There are two public toilets, the windows of which are broken. I was advised there was no water to service the toilets. There is litter from opaque drink bottles scattered near the dam and a pile comprising of empty plastic bottles and carrier bags near the entrance. There are, however,  no signs that trees had been cut down as suggested in the papers.

There are places that have been dug up as evident from the pictures attached to the urgent chamber application and also from the inspection. It was suggested that the respondents wanted to plant lawn in the areas that had been dug up. This much is also evident on the papers filed by the respondents in opposing the application. There was no contradiction from the applicant. I also observed signs that grass had been burnt sometime in the past, particularly in the areas shown in the pictures as having been dug up. Whether the burning was after the grass had regenerated after the initial digging exercise is not clear.

There used to be a fence around a perimeter with lawn (or grass), the fence has since disappeared. All that is left are a few poles. The dam is empty and silted. It is overgrown. There are no signs that water ever flowed into the dam. The small river referred to in the papers was not flowing when the site was visited. I cannot say whether this was due to the winter season when it would be expected to be dry or whether it dried up some time ago.

Across the dam there is indeed a fence which was erected by the first respondent but I was advised that on the side where the fence was erected is a small gate which is left open for the public to gain access to the park. This was not contradicted and I saw no need to disbelieve the respondents.

In order to impress this court as to the urgency of the matter the applicant annexed a number of colour photo graphs which showed workmen digging up the land in the park. The top photograph has the caption “March 2011 Ploughed Field.” The only inference the court can arrive at is that the ploughing depicted in the picture took place in March 2011 which is when the photographs were taken. This then suggests that the activity depicted in those photographs was noticed in March and the event recorded through the photographs. There can be no other explanation for the date appearing on that picture, if there is the applicant has not found it necessary to advise the court. Indeed the visit to the site did not give one the impression that the digging had occurred recently. What was obviously recent was the burning grass. What was also obvious was that the pictures reflect a lot of greenery in the park. When the court and the representatives of the parties visited the park it was during the middle of winter and there was hardly any green patch visible in the park. It therefore stands to reason that there was quite a lapse of time in between the time the pictures were taken and their presentation to court in support of the urgent applicant. The difference in appearance between the pictures and the park itself is telling.

Urgent applications are provided for in terms of Order 32 r 244 of the High Court Rules. Such application must be accompanied by a certificate from a legal practitioner certifying the urgency of the matter. In point of fact the legal practitioner is required in the certificate to give reasons for the urgency of the matter. The certificate from the legal practitioner enjoins the registrar of this court to immediately place the record before a judge, which judge is required by the rules to consider the matter forthwith.

It has been said time and time again that the provision in the rules permitting litigants to file an urgent application accords such litigant a considerable advantage over other litigants who would have filed their lis in the ordinary course. It is therefore imperative that only matters requiring urgent relief be afforded this opportunity. The requirement that a legal practitioner certifies the urgency of the matter is meant to assist the court in reaching the conclusion that the matter is indeed urgent and is deserving of the opportunity to leapfrog all other matters that are waiting their turn in ordinary course. It is therefore necessary that before certifying a matter to be urgent, a legal practitioner seriously consider the facts and the circumstances surrounding the dispute in relation to the application and bring his mind to bear on all the factors and thereafter assess genuinely the urgency or otherwise of the matter. In this the legal practitioner is not being given an opportunity to make submissions as relates to his client’s case, but to give to the court genuine reasons why the matter should be treated as urgent. He should be able in the certificate to point to factors of urgency which when the matter is argued before a judge, would convince that judge that the matter warrants urgent treatment. In General Transport & Engineering Private Limited & Ors v Zimbank Corp Private Limited 2998 (2) ZLR 301 (H) GILLESPIE J had this to say at p 303A-B:

“It is therefore an abuse for a lawyer to put his name to a certificate of urgency where he does not genuinely hold the situation to be urgent. Moreover, as in any situation where the genuineness of a belief is postulated, that good faith can be tested by the reasonableness or otherwise of the purported view. Thus where a lawyer could not reasonably entertain the belief that he professes in the urgency of a matter he runs the risk of a judge concluding that he acted wrongfully if not dishonestly in giving his certificate of urgency.”

I feel confident to assume that before certifying the matter to be urgent the legal practitioner in this case had recourse to the papers filed in the main application. The founding affidavit to that application was deposed to on 27 May 2011. In that founding affidavit, in particular para(s) 21 and 22 thereto, the depredations being complained of and which the applicant wants stopped in the main application are set out in full. In the certificate of urgency the legal practitioner states that the respondents continue to carry out developments on the park. Those developments were not tabulated. I am also assuming that the legal practitioner concerned had recourse to the photographs exhibiting the digging that was being carried out and that such legal practitioner would have noticed the date on the topmost photograph, which shows that the photographs on which the urgent application was premised upon were shot in March 2011 or that the events depicted thereon were noticed in March 2011, or at least 21 April 2011. Despite these telling features the legal practitioner certified the matter as urgent.

A matter is urgent, if when the time to act comes, the aggrieved person acts. See Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H). In this instance the time to act was sometime in April 2011 when the applicant’s members observed activity which may have caused alarm. It took the applicant from 21st April to 4th July 2011 to approach this court on a certificate of urgency.  In addition in the founding affidavit an averment is made that further work was noticed at the site on 2 June 2011. There is no explanation why this application was not launched then. It took another month before the applicant sought the assistance of this court. In Dexprint Investments (Pvt) Ltd v Ace Property & Investment Co (Pvt) Ltd HH 120-02 this court stated:

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of aspects. This court has laid down the guidelines to be followed. If by its nature, the circumstances are such that if it is not dealt with immediately irreparable prejudice will result, the court will be inclined to deal with the matter on an urgent basis. Further it must be clear that if the applicant does not act immediately and waits for doomsday to arrive he cannot convince the court that the matter is indeed one that warrants to be dealt with on an urgent basis.”

Urgency cannot be based on an assumption that a failure to obtain relief at a certain point will render any subsequent judgment a brutum fulmen. The reason why this argument must be strictly adhered to is obvious. Invariably, all matters that are brought to court are to do with prejudice or potential prejudice to the litigant who brings the lis. It is therefore imperative that such litigant not over emphasise the issue of prejudice when asking that a matter be dealt with on an urgent basis one. What is most important to me is whether the applicant has established that the matter cannot wait and that in addition he has acted expeditiously in bring the matter to court for appropriate relief. If the matter can wait, or if the applicant has not acted with dispatch, there can be no justification in hearing that matter on an urgent basis. As Mr Mpofu submitted, since the applicant took it time to approach the court for relief, so too should the court wait to hear the matter. In my view, this court can wait. The applicant has apparently been content to sit on its perceived rights until the last minute. To treat this matter as urgent would result in the applicant leapfrogging other litigants whose matters are awaiting their turn. That would be unfair.

The applicant has placed emphasis on the alleged irreparable harm that would be occasioned to the eco-system if the respondents were allowed to ‘develop’ the park. Indeed any actions on the part of the citizenry that would result in harm being occasioned to the eco-system cannot be condoned. The citizenry is expected to be responsible where maters of the environment are concerned and it is expected that those that have control of places that have an effect on the environment act in such a manner that the environment is preserved and not destroyed. The allegation or fear that an act by an individual is likely to cause irreparable harm cannot however on its own constitute urgency. This is especially so when the acts sought to be stopped had already taken place. The first respondent has dug up the ground, sited and sunk a borehole, and fenced off the park. In the period from the first actions noticed by the residents in the area quite a lot has been done, all under the watchful eye of the applicant. There is no explanation on the papers as to what it is that finally galvanised it to action and seek redress from this court. It is only in argument that it is suggested that the applicant had engaged the City of Harare on the issue and it was presumed that it would act and put a stop to the offending actions. This submission is in fact proof of the lack of urgency attaching to this application. The letter to the City of Harare to which the petition was attached was written on 21 April 2010. In my view the applicant owed this court an explanation as to why no action was taken soon after the date of that letter or, at least soon after the letter of 13th May 2010 written by Town Clerk in answer to the petition when it had become evident that no action would be taken.

It is trite that the question of urgency is a matter of discretion on the part of the court. It is a discretion exercised in those cases that the court decides are deserving of the opportunity to be heard outside the normal course of the business of the court. A litigant approaching the court for such accommodation must display good faith. I do not see good faith exhibited in this matter. Effectively the applicant in the main matter wishes the respondents interdicted from “carrying out any developments” on the park. This is the same relief being sought in the urgent application. The certificate of urgency is proof of that. I decline to exercise the discretion bestowed on me in the applicant’s favour because of the clear lack of good faith evident in the manner in which this matter has been approached.

The applicant has alleged that the second respondent was cited in these proceedings

The respondents have in addition to urgency, raised a number of other points in limine. I am loath to deal with the matter on those other points in limine as the main matter is still to be determined. I have noted upon a cursory of the papers filed therein that the respondents have raised the same objections. It would be more appropriate in my view if those issues were dealt with in the main application.

The applicant has alleged in the founding affidavit that the first and second respondents have demonstrated that they are undeterred by the pending court application. Indeed there is attached to the application a newspaper clipping in which the second respondent appeared to have made some comments to a news reporter. He is alleged to have said that the property was his and he would proceed to have it developed. I think it is unfortunate for a prominent member of our society to be quoted in a newspaper in a manner that reflects, or may reflect that he does not respect court process. The matter was now before the courts and whether or not he disagreed with the action being taken by the applicant, it was no wise to speak in that manner. Such statements do not assist and may well have driven the applicant to embark upon this ill-conceived urgent application.

I find that the applicant has not established on the papers that the matter deserved to be dealt with urgently. In my view there was nothing urgent in this application.

The point in limine succeeds and the application is dismissed with costs.

Venturas & Samukange, applicant’s legal practitioners

Mutamagira & Associates, first and second respondents’ legal practitioners