Upper Crowhill Residents Association v Mount Breeze Borrowdale Brooke Owners Association & 4 Others

### Preamble
1
HH 511 - 25
HCH 5694/24
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UPPER CROWHILL RESIDENTS ASSOCIATION

versus

MOUNT BREEZE BORROWDALE BROOKE OWNERS ASSOCIATION

and
CITY OF HARARE

and
CROWHILL PROPERTY OWNERS ASSOCIATION

and
PILDAH MOLLY CHIKEREMA

and
REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE 30 July 2025 & 8 September 2025

Opposed Court Application

C. Tafireyi, for the applicant

Z.W. Makwanya, for 1st respondent

A. Moyo, for 2nd respondent

C. W. Gumiro, for 3rd respondent

MAMBARA J:

This is an opposed court application in which the applicant, a residents’ association for the Crowhill area, seeks a declaratory order together with ancillary relief in terms of s 14 of the High Court Act [Chapter 7:06]. In essence, the applicant asks the Court to invalidate the establishment of a gated community by the first respondent (Mount Breeze Borrowdale Brooke Estate Owners Association) and to affirm the applicant’s members’ right to use a road (commonly known as Crowhill Road) traversing the first respondent’s property. The draft order prays for a declaration that the letter issued by the second respondent (City of Harare) on 18 November 2015 – wherein the City indicated no objection to the first respondent’s gated community – “be and is hereby declared a nullity”. It also seeks the cancellation of two registered roadway servitudes (numbers MA13/52 and MA114/73), an interdict barring the first respondent from erecting gates or otherwise impeding free passage along Crowhill Road, and costs on a higher scale.

The application is strongly opposed. The first and second respondents filed notices of opposition and opposing affidavits, taking several points in limine which they contend are dispositive of the matter. These preliminary objections include: lack of locus standi on the part of the applicant; mischaracterisation of what is essentially a review or appeal as a mere declaratory application (in an attempt to evade procedural time limits); lis pendens (another matter concerning the same subject was already before the courts); and allegedly defective service and non-joinder of certain interested parties. The third respondent – Crowhill Property Owners Association, which is another association of landowners in the Crowhill area – notably did not join forces with the applicant. On the contrary, the third respondent has dissociated itself from this application, indicating that it neither authorised nor supports the applicant’s lawsuit. The fourth respondent (Ms. Chikerema, cited as owner of a stand in the Mt Breeze estate) and the fifth respondent (Registrar of Deeds) have not actively participated in these proceedings. The matter therefore fell to be determined on the papers filed and the submissions made on behalf of the applicant and the opposing respondents.

The dispute arises from the intersection of two neighbouring developments on the outskirts of Harare. On one side is the Crowhill area (also referred to as “Lot J of Borrowdale Estate” in some documents, where the applicant’s members reside. On the other side is the Mt Breezes Borrowdale Brooke Estate (Subdivision E of Lot H of Borrowdale Estate), a gated residential development represented by the 1st respondent. The applicant avers that in 1999 the fourth respondent, Ms. Pildah Molly Chikerema, obtained a subdivision permit (No. SD/381) from the City of Harare to cut her farm into 62 residential stands. As a condition of that permit, the fourth respondent was required to develop an existing road along the route of certain old servitudes – namely servitude MA13/52 of 1952 and MA114/73 of 1973 – which historically provided a passageway between the farms. In compliance, the fourth respondent allegedly “abandoned” those servitudes upon subdivision, instead constructing new roads dedicated to the City of Harare as public roads under the permit. The road in question, commonly known as Crowhill Road, runs through what became the Mt Breezes Estate and connects the Crowhill/Charlotte Brook/Cleverhill settlements to the main Borrowdale/Domboshava Road. It is this road (or segment of road) through Mt Breezes that lies at the heart of the present conflict.

In November 2015, the first respondent sought official approval to formalise Mt Breezes as a gated community. Rather than issuing a full development permit, the City of Harare (second respondent) responded with a letter dated 18 November 2015 stating it had “no objection to the establishment of a gated community in Mount Breezes”. Armed with this tacit approval, the first respondent proceeded to install gates and security infrastructure, effectively privatizing the roads within Mt Breezes. The applicant’s position is that the City’s “no objection” letter was procedurally and substantively improper – it was not a lawful permit under the Regional, Town and Country Planning Act, and the City failed to consider several critical factors. In particular, the applicant contends the City ought to have considered that “there was a development and residence upstream” of Mt Breezes (namely Crowhill and surrounding communities) who had long been using Crowhill Road through the servitudes MA114/73 and MA13/52. The closure of this road by the Mt Breezes gate would land lock those communities, including a local primary school, which rely on that access route. The applicant further alleges that the 2015 gating approval was granted irregularly: no formal change of land-use permit was obtained to supersede the existing Subdivision Permit SD/381, and affected neighbours (such as the Crowhill residents) were not notified or consulted as required by law.

The first respondent, for its part, rejects the notion that Crowhill Road inside Mt Breezes is a public thoroughfare. It maintains that any road beyond a certain point (the roundabout abutting the Crowhill development) was never proclaimed as public and exists only as a private servitude road within Mt Breezes. According to the first respondent, the 1999 permit SD/381 provided for an internal road network essentially for the benefit of the Mt Breezes subdivision, and did not confer on the Crowhill residents a perpetual right of way through the estate. Indeed, the first respondent avers that “from the roundabout into the first respondent’s development there is no public road” at all. What the Crowhill residents have been using is characterised as an “improvised path” or “illegal road” cut across private property (specifically across stand 32 in Mt Breezes) without approval. This unlawful road was apparently created by the applicant’s members as a shortcut to reach the tarred Borrowdale Road, rather than using the longer official route available to Crowhill (which may be underdeveloped or inconvenient).

The friction between the two communities escalated into prior litigation. Notably, on 9 September 2020, the first respondent obtained a High Court order (Case HC 4174/20) interdicting the Crowhill developers and all those claiming occupation through them from encroaching upon or trespassing into Mt Breezes. That order was aimed at stopping the construction or use of the rogue road through stand 32. The applicant’s members, however, did not relent. They continued to use the route in defiance of the court order – conduct which the 1st respondent characterises as blatant “dirty hands” and contempt of court. By the time this application was launched (December 2024), a separate proceeding was also underway in this Court involving many of the same issues. In Mt Breezes Borrowdale Estate Owners Assn v Crowhill Farm (Pvt) Ltd & Others (HCH 5399/24), the developers of Mt Breezes sought declaratory and injunctive relief against Crowhill interests to vindicate Mt Breezes’ right to exclude the would-be road. That matter has since been determined: on 18 November 2024, Musithu J issued a judgment declaring, inter alia, that the road being forged through stand 32 (and along the Mt Breezes boundary) “does not legally exist” on any survey plans, and that the Crowhill respondents’ construction of that road constituted an “illegal and unlawful interference” with the Mt Breezes owners’ property rights. The court in that case further confirmed that Mt Breezes residents are entitled to the full enjoyment of their gated community, free from trespass. In short, the Crowhill side lost on those issues. Undeterred (or perhaps spurred by that outcome), the applicant in casu presses on with the present application, seeking to undo the legal underpinnings of Mt Breezes’ gated status.

Procedural History: The applicant filed this application on 13 December 2024. It was accompanied by a founding affidavit deposed by Mr. Sidney Chikandiwa, who is the Secretary General of the applicant association. In that affidavit, Mr. Chikandiwa averred that the applicant is a universitas of Crowhill residents formed in terms of a constitution adopted by its members. A copy of the association’s constitution and a resolution authorising this court action were attached to the application (Annexures “B” and “A” respectively). After outlining the background summarized above, the applicant’s founding papers prayed for a declaratur and ancillary relief in the terms of the draft order already described.

The first respondent opposed the application, filing an opposing affidavit by Mr. Philani Ndlovu-Mathiya, its chairman. The second respondent, City of Harare, likewise opposed, filing an opposing affidavit by Mr. Addmore Nhekairo, the Acting Town Clerk. The third respondent, Crowhill Property Owners Association, did not file a substantive opposing affidavit in the ordinary sense; however, correspondence on record and the stance taken at the hearing make it clear that the third respondent does not support the applicant’s cause. If anything, the third respondent aligns itself with the view that this application is ill-conceived. It is noteworthy that in an earlier related case, HC 7674/14, an order was granted designating Crowhill Farm (Pvt) Ltd – the developer of Crowhill – as the representative of all Crowhill stand owners and associations until completion of the development. The third respondent would presumably abide by that arrangement, casting further doubt on the applicant’s mandate. The fourth and fifth respondents were served with the application but did not file opposing papers; the fourth respondent’s interests as landowner in Mt Breezes are effectively represented by the first respondent, while the fifth respondent, Registrar, indicated it would abide by the Court’s decision.

Points in Limine

(a) Locus Standi and Dirty Hands

The locus standi of the applicant to bring this action is vigorously contested. The first respondent submits that the applicant association and its members lack the requisite legal interest or capacity to seek the relief in question. Four facets to this objection were identified: (i) the applicant and its members are approaching the Court with “dirty hands” due to their own unlawful conduct (thereby undermining any right they purport to assert); (ii) an extant court order (HC 7674/14) designates another entity – Crowhill Farm (Pvt) Ltd – as the representative of Crowhill stakeholders, meaning the applicant has no standing contrary to that order; (iii) the applicant is not party to the servitude agreements it seeks to cancel (raising issues of privity of contract); and (iv) the applicant did not even exist at the time of the decisions it now challenges (making its retrospective claims untenable). I will examine each in turn, but in truth these points are interrelated and all go to whether the applicant has a direct and substantial interest in this matter sufficient to be heard.

It is trite that locus standi in judicio requires a litigant to demonstrate a real and substantial interest in the subject matter and the outcome of the case. The interest must be direct and not too remote or academic. Our courts have emphasized that locus standi is determined by the relationship between the cause of action and the relief sought. In other words, one asks: does this applicant have a legal or factual interest that would be affected by the grant or refusal of the remedy? If not, the applicant is not the proper party to seek that remedy. The issue of standing is distinct from the merits; even a meritorious claim cannot be pursued by a person with no standing.

The first ground advanced by the respondents is that the applicant’s cause of action is founded on illegality, such that the applicant cannot approach this Court with “clean hands.” The respondents aver – and it has not been seriously disputed – that the applicant’s members illegally occupied and developed their Crowhill stands without the necessary approvals or compliance certificates from the planning authorities. As a result, the Crowhill settlement upstream of Mt Breezes is, at present, an unregularised development. The roads and infrastructure there (including any intended access road for Crowhill) were never officially completed or handed over to the local authority. It was this very circumstance that led the applicant’s members to force a shortcut through Mt Breezes. The respondents argue that one cannot build an unlawful road through someone else’s land and then ask a court to declare that road to be lawful. Put bluntly, ex turpi causa non oritur actio – no valid cause of action can arise from the applicant’s own wrongdoing.

There is considerable force in this contention. A litigant who comes to court while wilfully in violation of the law is said to have “dirty hands.” The courts in this jurisdiction have consistently refused to entertain claims by such litigants until they purge their illegality or contempt. In the oft-cited case of Mushoriwa v City of Harare HH 195-14, Bhunu J explained the rationale as follows:

“No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found a claim upon his own inequity… A court of law, as such, cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards.”

In the present case, the applicant’s membership is, by its own admission, in open defiance of both the law and an extant court order. They occupied Crowhill stands and built homes without official sanction; they carved out a road through Mt Breezes in defiance of planning laws and an interdict expressly prohibiting such trespass. The applicant’s illegal actions are not merely incidental to its claim – they are central to it. The “right” which the applicant asserts (a right of access through Mt Breezes) is predicated on an unlawful state of affairs. In such circumstances, this Court cannot proceed to determine the dispute on the merits without first insisting that the applicant purges its contempt and complies with the law. As Musakwa J (as he then was) remarked when upholding a similar objection in litigation between these very development parties in 2020:

“If the [Crowhill parties] are developing the settlement without a certificate of compliance from the local authority, it means they are in breach of the law… Therefore, the applicants are tainted on account of making developments without a certificate of compliance whose expiration they did not seek to renew.”

Those words ring true here. The applicant cannot approach the Court to endorse what is effectively an unlawful encroachment. To grant the relief sought would reverse a lawful court order and perpetuate an illegality, something no court inclined to uphold the rule of law should do. I therefore find that the applicant’s dirty hands present a formidable bar to its case. On this ground alone, the application ought not to be entertained until the applicant and its members have purged their breaches (for example, by ceasing the illegal road use and complying with the 2020 interdict).

The second aspect of locus standi concerns the extant order in case HC 7674/14. That order, granted by consent in 2014, arose out of disputes over Crowhill’s development. It appointed Crowhill Farm (Pvt) Ltd – the registered owner and developer of the Crowhill estate – as the representative of all stand owners and associations in Crowhill until the full completion of the Crowhill development’s infrastructure (roads, water, sewer, etc.). The order essentially centralized the authority to act for the Crowhill community in the developer, at least until Crowhill is regularized through a compliance certificate. It has been argued that this order precludes any splinter group or parallel association (such as the applicant) from suing third parties over development issues. Only the developer (Crowhill Farm (Pvt) Ltd) has locus standi to litigate on behalf of Crowhill stakeholders during the interim development phase. The applicant did not deny the existence of HC 7674/14, but it attempted to downplay its effect. This Court, however, cannot ignore the plain import of that consent order. It is binding until set aside. As long as Crowhill remains without a certificate of compliance (and indeed none has been produced – because “it does not exist”), the Crowhill developer retains legal control over matters affecting the subdivision. The applicant association was formed by residents of Crowhill before the development’s formal completion, effectively usurping the developer’s role. That is precisely what the 2014 order forbids. The applicant is thus in breach of the terms of the extant court order by attempting to act independently. In the eyes of the law, the applicant has no standing to approach this Court against third parties like the 1st respondent in respect of development-related rights; such action can “only [be taken] through the owner of Crowhill,” i.e. Crowhill Farm (Pvt) Ltd. This point reinforces the lack of locus standi. The applicant’s authority to sue is ousted by court order until Crowhill’s development is signed off. The applicant has not joined Crowhill Farm (Pvt) Ltd in these proceedings, nor did it obtain any waiver or variation of the 2014 order. The implications of an extant court order are clear: it must be obeyed unless and until rescinded. The applicant’s disregard of that order is yet another aspect of its dirty hands, and it also means the applicant lacks the legal capacity to sue on these issues in its own name.

The third facet of locus standi pertains to privity of contract vis-à-vis the servitudes. The applicant asks this Court to cancel Notarial Servitudes MA13/52 and MA114/73 which are registered against the title of certain Mt Breezes stands. However, the applicant is indisputably not a party to those servitude agreements. A servitude by its nature is a contract or grant between a servient tenement (the land burdened) and a dominant tenement (the land benefitting). Here, the servitudes in question date back decades – presumably created between previous landowners to allow passage across each other’s land. The first respondent points out, correctly, that the applicant was not a signatory or successor to any party in those servitudes. Thus, under the doctrine of privity of contract, the applicant cannot seek relief to enforce or extinguish rights arising from a contract to which it is a stranger. In TBIC (Pvt) Ltd & Anor v Mangenje & Ors SC 13-18, Bhunu JA explained that privity “restricts the enforcement of contractual rights and remedies to the contracting parties, to the exclusion of third parties.” Even if the applicant’s members derive some indirect benefit from the servitudes (insofar as a road exists), that does not confer a jus in personam or jus in rem upon the applicant to demand the servitudes be cancelled or converted into public rights. Such relief could only be sought by one of the contracting parties to the servitude (for example, the owner of the servient land, or the holder of the servitude right). The applicant is neither. It follows that the applicant has no direct and substantial interest in the servitudes themselves, beyond a hope that nullifying them might advantage its members’ access. That is not enough for locus standi. On this score as well, the applicant’s standing is lacking.

The fourth and final locus issue is a temporal one: the applicant entity simply did not exist at the time the key decisions and agreements were made. The record shows the applicant association was formed and its constitution adopted on 15 November 2024 – mere weeks before this application was filed. Conversely, the decisions and acts it seeks to impeach occurred years earlier: the City of Harare’s confirmation of the gated community was in November 2015; the subdivision permit SD/381 was granted in 1999; the servitude deeds date from 1952 and 1973. A newly formed association in 2024 can hardly claim a retrospective cause of action against things done in 2015 (or earlier) when it was not in existence. The applicant argues that its members have an ongoing interest, and that the association can represent those interests now. However, the law generally does not permit one to challenge a decision nine years later on the basis that you have since come into being and are affected by it. As a colourful analogy, the respondents submit that “a child born in 2024 cannot retrospectively challenge decisions that its parents made in 2015”. There is much truth in that illustration. To allow a party to do so would open the floodgates to interminable challenges long after matters appeared settled. In the specific context here, if Crowhill residents felt aggrieved by the City’s no-objection letter in 2015, the proper protagonists would have been the Crowhill developers or whatever residents’ entity existed at that time (if any). Indeed, as mentioned, the Crowhill developer and others did mount legal challenges around 2020 (cases HC 6042/20, HC 6054/20, HC 6086/20) against Mt Breezes’ developments – and those challenges did not succeed. The applicant cannot now resurrect issues from 2015 under the guise of a fresh declaratory application. I conclude that the applicant’s recent formation and its lack of any historical role render it bereft of standing to question decisions made long before its birth.

In sum, the applicant fails the test of locus standi on multiple levels. Its hands are unclean due to continuing illegality; it is acting in violation of a court order that governs who may represent Crowhill interests; it is a stranger to the servitudes it seeks to cancel; and it is a Johnny-come-lately attempting to undo transactions of yesteryear. Any one of these would be a serious impediment; taken together, they convincingly demonstrate that the applicant “has no locus standi to approach this Court”. On this basis alone, the application is fatally defective. However, for completeness, I will proceed to consider the other points in limine as they bolster the conclusion that the matter should not be entertained.

(b) Declaratory Relief vs Review

The next objection is that the applicant has chosen the wrong procedure. The relief sought – particularly the nullification of the City’s 2015 authorisation – is in substance an attempt to challenge an administrative decision of a public authority. Under our law, such a challenge should be brought by way of review (or possibly appeal if a statute so provides), not as a free-standing application for a declaration. The second respondent, City of Harare, submits that the applicant is effectively asking the Court to set aside the City’s decision not to object to Mt Breezes’ gated community. That is a classic review of administrative action, which implicates procedural requirements and time limits. By styling the application as one for a “declaratory order” under the High Court Act, the applicant has mischaracterised the proceedings in an attempt to evade the strictures that would apply to a review.

I agree with the respondents that the applicant’s case, stripped to its core, is indeed a review disguised as a declaratur. The applicant itself pleads that the City “erred” and “did not consider” relevant factors when it gave the 2015 no-objection letter. These allegations – of procedural irregularity, failure to consider objections, lack of proper notice, etc. – are typical grounds of review under administrative law. The applicant essentially wants this Court to scrutinise the lawfulness of the City’s decision-making process in 2015 and to nullify that decision. No matter how the applicant labels its application, the substance determines its nature. As Malaba JA (as he then was) cautioned in Geddes Ltd v Tawonezvi 2002 (1) ZLR 479 (S):

“In deciding whether an application is for a declaration or for review, a court has to look at the grounds of the application and the evidence produced in support of them. The fact that an application seeks declaratory relief is not in itself proof that the application is not for review.”

Here, the grounds advanced by the applicant are textbook review grounds – illegality, unreasonableness, failure to comply with statutory procedures (notice to neighbours, etc.). The applicant cannot circumvent the requirements for a review simply by asking for a declaratory order as the relief. Our superior courts have frowned on such procedural sleight of hand. In Attorney-General v Makamba 2005 (2) ZLR 54 (S), for example, Malaba JA noted that a litigant cannot avoid a time-bar by choosing a different form of action when the essence of the relief is to challenge a decision. In Kwete v Africa publishing Trus and Ors, HH 216/98 the court observed that “it seems…anomalous that one should be permitted to file an application for review well out of time, without seeking condonation as long as a declaratory is sought. A declaratory order is, after all, merely one species of relief available on review”. In other words a litigant cannot evade the 8 - week deadline for reviews by simply framing the challenge as a declarator. The court will look beyond the label and treat it as an out-of-time review if it seeks to nullify or set aside an administrative decision.

Treating this application as a review, it is glaringly out of time. Rule 259 of the High Court Rules 1971 (then in force, now essentially reflected in r.64 of the 2021 Rules) required any proceedings by way of review to be instituted within 8 weeks of the termination of the decision or proceeding in question, unless leave for late filing is granted. The decision not being objected to (the City’s letter) occurred in November 2015. The applicant came to court in December 2024 – a full nine years later. No application for condonation of late filing was made. In fact, the applicant steadfastly refused to characterise its case as a review at all, insisting it was a “proper application for a declarator” and that the 8-week rule did not apply. This stance is without legal foundation. One cannot do by indirection that which the law forbids to be done directly. To allow litigants to simply rebrand a review as a declaratory application would “open floodgates” and render the review time-limits nugatory. As was trenchantly observed in the heads of argument for the first respondent, “Declaratory relief cannot be weaponized as a backdoor to bypass the statutory timelines of review proceedings.” The applicant offers no explanation for why it waited so long to challenge the City’s 2015 decision. Indeed, many of its members were not even around or interested in 2015. The only reason this challenge is raised now is because the applicant wants to use the road now – but that is precisely why the law imposes time-bars, to prevent prejudice to settled decisions and to avoid stale claims.

In a similar vein, part of the relief sought (cancellation of servitudes) could be viewed as an attack on the subdivision permit SD/381 itself or its implementation. If the applicant’s theory is that the servitudes were extinguished by the permit, then effectively the applicant is alleging non-compliance or misapplication of that permit by the fourth respondent or City. Again, that would be a matter of administrative or perhaps civil review (of how the permit conditions were carried out). Such a claim would also be grossly delayed (the permit is from 1999). However, one slices it, the appropriate procedure to challenge the second respondent’s actions (or inactions) was a timely review under the court’s review jurisdiction, not a late-breaking declarator. The Supreme Court has expressly warned against the notion that a litigant can simply choose a declarator when a review is time-barred: “One cannot be allowed to do indirectly that which one is prohibited from doing directly… A declaratory order is merely one species of relief available on review”. Permitting the applicant to proceed in this form would set a dangerous precedent enabling any party who missed a deadline for review to relabel their application and revive it at will. See: Geddes Ltd v Tawonezvi 2002 (1) ZLR 479 (S); City of Mutare v Mudzime & Ors 1999(2) ZLR 140 (S)

In light of the above, I uphold the preliminary point that this application is procedurally improper. It is, in truth, a review application instituted out of time and without leave. This court therefore has no jurisdiction to entertain it. The applicant was required to follow the review route and to seek condonation for lateness; having failed to do so, its application is a nullity. On this ground too, the matter ought to be dismissed without delving into the merits.

(c) Lis Pendens

The respondents also raised the plea of lis pendens, arguing that at the time this application was filed there was another case pending in this Court involving the same parties (at least in substance) and the same cause. The case in question is HCH 5399/24, in which (as noted earlier) the Mt Breezes Association was suing Crowhill entities over the very road and access dispute. Lis pendens requires that there be pending litigation between the same parties, based on the same cause of action and seeking the same relief. Its rationale is to avoid duplicative proceedings and the possibility of conflicting judgments. In the present matter, there is not a complete identity of parties – here the Crowhill residents association is applicant, whereas in the other case Crowhill Farm (Pvt) Ltd, Crowhill (Pvt) Ltd, Crowhill Property Owners Association, and Goromonzi Rural District Council were cited as respondents by Mt Breezes. However, there is a clear overlap in interests: the Crowhill side (broadly defined) and the Mt Breezes side were litigating over the legality of connecting Crowhill to Mt Breezes. The relief in the other case (as evidenced by Musithu J’s judgment of Nov 2024) was a declaratory and interdict to bar the Crowhill parties from continuing to create or use the road through Mt Breezes. In this case, the relief sought is conversely to declare that road lawful (by nullifying Mt Breezes’ gates and servitudes). The causes of action are effectively mirror images.

When this application was launched in December 2024, the Mt Breezes v Crowhill case had been argued but judgment was still pending (it came out later in Nov 2024, though the record is not clear if it was 18 Nov 2024 or 18 Nov 2025 – but presumably 2024 given the timeline). The 1st respondent argues the applicant should have awaited the outcome in that case rather than filing a separate application, and that pursuing both simultaneously was abusive. The applicant’s rejoinder is that HCH 5399/24 dealt with a different cause of action – it says that case was about an interdict against road construction, whereas this one is about declaratory rights. This is a distinction without a meaningful difference. Both cases centrally concern whether or not there is a right for Crowhill residents to pass through Mt Breezes. That issue cannot be decided inconsistently in two different matters. Indeed, now that Musithu J has given judgment in HCH 5399/24 (and to this Court’s knowledge, that judgment stands unappealed), the principle of res judicata may even come into play. While the applicant here was not a cited party in the prior case, its interests were clearly represented by the Crowhill developer and association (third respondent) who were parties. The order granted in that case – that there is no lawful road linking Crowhill to Mt Breezes and interdicting any use of stand 32 for that purpose– is obviously at odds with the declaratory order the applicant now seeks. In effect, the relief sought here has been overtaken by the prior judgment.

To the extent lis pendens needed to be decided, I would find that the requirement of same parties is satisfied in substance if not in name (the Crowhill community versus Mt Breezes community in both), the cause is the same (legality of road access), and the relief is essentially opposite sides of the same coin. By filing this application before the earlier case was finalized, the applicant acted prematurely. This put the Court at risk of giving a contradictory ruling. The doctrine of lis pendens exists precisely to prevent such a scenario. Now that the earlier case has been resolved, one might say lis pendens has morphed into res judicata or issue estoppel on the core questions. Either way, the applicant’s case cannot succeed in the face of an existing judgment that has settled the matter against the position it advocates. The applicant cannot relitigate what has effectively been decided, by trying to bring in “new” parties (it’s association) or framing the issue as a declaratur. Such conduct is an abuse of process.

Accordingly, I uphold the objection that the matter was improperly instituted in parallel to an ongoing case concerning the same dispute. Whether viewed as lis pendens at the time of filing, or as an attempt to undo the outcome of that other case afterwards, the application is vexatious. The High Court cannot countenance forum shopping or repetitive litigation where one bite at the cherry has already been had.

(d) Non-Joinder of Interested Parties

A further preliminary concern is that the applicant failed to cite or join certain necessary parties to the proceedings. The respondents point out two glaring omissions: Crowhill Farm (Pvt) Ltd (the developer and registered owner of Crowhill) and Goromonzi Rural District Council (“Goromonzi RDC” or” RDC”) (the local authority with jurisdiction over Crowhill). These entities have a direct and substantial interest in any order affecting the Crowhill development and its access arrangements. Indeed, Crowhill Farm (Pvt) Ltd, as noted, is the party legally charged with representing Crowhill stand owners per the 2014 consent order. If the applicant truly sought to establish rights for Crowhill residents, one would expect the developer to be at the forefront of such litigation or at least cited for its input. Likewise, the Goromonzi RDC is the planning authority for Crowhill (since Crowhill falls outside Harare City’s boundary). It would presumably have knowledge of the status (or lack thereof) of roads within Crowhill and whether alternative access exists. Any declaration by this Court that impacts the infrastructure and planning of Crowhill necessarily concerns the RDC. Yet the applicant inexplicably did not cite the RDC or the developer. This is a classic case of non-joinder of interested parties. The general rule is that a failure to join a party with a direct and substantial interest in the outcome is fatal, because the court ought not to make an order affecting such a party’s rights or interests in their absence. The first respondent correctly observes that an order declaring a public right of way through Mt Breezes would, by necessary implication, impose obligations or loss of rights upon the Crowhill developer (who would then presumably have to connect Crowhill’s internal roads to that route) and upon the RDC (which might have to assume responsibility for the road’s maintenance or deal with its planning implications). Additionally, the servitudes in question involve specific landowners (the servient tenement owners). For example, stand 32 of Mt Breezes is owned by the fourth respondent, but there may be another stand over which MA13/52 runs – it is not entirely clear if that servitude runs through a different property. If so, was that other property’s owner cited? The papers suggest servitude MA13/52 might relate to a right of way connecting to other farms. If any other servient landowner exists, they too have not been cited. This is yet another oversight.

The applicant’s heads tried to brush this aside by arguing that Crowhill Farm (Pvt) Ltd and Goromonzi RDC were not necessary because the relief sought was against City of Harare and Mt Breezes only. That is a superficial view. Given the 2014 order and the Crowhill developer’s central role, it was disingenuous not to involve it. Tellingly, annexures to the first respondent’s affidavit include letters and affidavits from Goromonzi RDC officials (from prior cases) stating unequivocally that Crowhill is not compliant and has no approved road connection to Harare. The applicant was surely aware that the RDC’s stance undermines its case – indeed annexure “E” to the first respondent’s papers was a statement from Goromonzi RDC confirming Crowhill’s illegal status. One suspects the applicant did not cite the RDC to avoid an adverse affidavit, which is strategic but not permissible if it leaves out a necessary party.

I find that the non-joinder of Crowhill’s developer and the Goromonzi RDC is fatal in its own right. The application cannot properly be determined in their absence. This point in limine is thus upheld.

Analysis and Disposition

Having considered all the points in limine, I am satisfied that the application cannot succeed. The cumulative effect of the findings above is that this Court should not entertain the matter on the merits at all. The applicant lacks standing, the application is an abuse of process (essentially a time-barred review dressed up as a declarator), and there were material procedural lapses including non-joinder and improper service. Any one of these issues would justify dismissal; collectively, they compel it.

I am mindful that courts are generally reluctant to throw out cases without a hearing on the merits, especially where public interest issues might be at stake. However, there is a strong public interest in upholding the rule of law and proper procedure. The applicant and its members have, by their conduct, put themselves outside the lawful path. To overlook that would send the wrong message – that one can ignore planning laws, violate court orders, and then come to court seeking equitable relief as of right. That cannot be allowed. Furthermore, the merits (to the extent one can glean them) were largely decided by the High Court in the prior case. There is no prejudice in refusing to delve into them again here; if anything, it preserves consistency.

In the result, the application must be dismissed. The first respondent urged that such dismissal be with punitive costs due to the frivolous and vexatious nature of the application. I concur that the applicant’s conduct warrants censure. This lawsuit was ill-founded from the start – a fact which the applicant (or at least its advisors) ought to have known. Important material facts (like the 2014 consent order and the pending 2024 case) were not candidly disclosed in the founding papers, only to emerge in the respondents’ opposition. The applicant persisted even after those issues came to light, showing a dogged determination to “have a go” regardless of clear legal obstacles. Such use of court process borders on abuse. It has put the respondents – particularly the 1st respondent – to considerable expense defending what is essentially a self-created problem by the applicant. In my view, an award of costs on the ordinary scale would not adequately mark the Court’s disapproval of this conduct. The applicant’s attitude, as evidenced by defiance of existing orders and resort to improper procedure, justifies an order of attorney-client costs to indemnify the innocent party and as a deterrent against future abuse.

For clarity, even if I am wrong on punitive costs, the applicant would certainly at least bear costs on the usual scale as a result of its application failing. However, I believe this is an appropriate case to depart from the norm. The first respondent in particular has had to fight multiple fronts to protect its lawful property rights – including this misconceived application. The Court should express its displeasure by an award of costs on a higher scale.

General Reference to Authorities: Before concluding, I note that the principles underpinning this judgment find support in numerous decided cases. I have already cited some in context. By way of summary: Musakwa J (as he then was) in the Crowhill/Mt Breezes interlocutory rulings of 2020 upheld preliminary objections virtually identical to those raised here, notably on the basis of the dirty hands doctrine (due to lack of a compliance certificate). Bhunu J (as he then was) has pronounced on the impropriety of seeking to overturn lawful orders or to benefit from one’s own wrong – see Nkomo v Masunda HH-38-2009 where the court refused to reverse a lawful action to “enable [the litigant] to perpetuate an illegality”, and Mushoriwa (supra) on not profiting from one’s wrongdoing. Our superior courts (e.g. Geddes v Tawonezvi SC-2002 and Dongo v Naik SC 52-2020) have consistently warned against procedural abuse, emphasizing that the correct procedure (review vs appeal vs declaratur) must be followed and that courts will not tolerate attempts to dodge procedural requirements. The present case is a textbook example of what those dicta forbid. In short, the applicant’s approach was wrong at law, and the outcome it seeks would also undermine settled legal principles such as finality of judgments and sanctity of lawful servitudes. This judgment has been framed in line with those long-standing principles.

Having weighed all the circumstances, I find no reason to prolong this matter. The points in limine are upheld. The application is therefore dismissed in its entirety.

For the reasons above, it is ordered that:

The application be and is hereby dismissed.

The applicant shall pay the first, second and third respondents’ costs of suit on the scale of legal practitioner and client.

Mambara J: ……………………………………………….

Tafirei & Company, applicant’s legal practitioners

Makwanya Legal Practice, 1st respondent’ legal practitioners

Gambe Law Group, 2nd respondenr’ legal practitioners

Moyo Chikono & Gumiro, 3rd respondent’s legal practitioners