Ndlovu v Phiri and Another (119 of 2024) [2024] ZWHHC 119 (21 March 2024)

1 HH 119 – 24 HC 3865/22 SITHOKOZILE NDLOVU versus ESTERI PHIRI and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING HIGH COURT OF ZIMBABWE CHINAMORA J HARARE, 21 March 2024 Opposed application Mr E Dondo, for the applicant Mr T G Mukwindidza, for the respondent CHINAMORA J: This is an application in terms of section 14 of the High Court Act [Chapter 7:06], in which declaratory relief is sought. The order which the applicant desires is couched as follows: “IT IS ORDERED THAT 1. An application for a declaratory order be and is hereby granted in favour of the applicant in the following terms: (a) Applicant be and is hereby declared the lawful holder of rights, and interests in property known as stand number 6382 Retreat, Waterfalls. (b) First respondent and all those in occupation through him at property known as No. 6382 Retreat waterfalls be and hereby are ordered to forthwith vacate the property and give vacant possession to the applicant within 10 days from the date of this order. (c) First respondent be and is hereby ordered to bear costs of this suit on a higher scale.” Before examining the facts which gave rise to this application, I would like to point out the sloppy manner in which the applicant’s founding affidavit was drafted. Let us look at the beginning of the affidavit and its end to demonstrate that the affidavit was indeed clumsily drafted. I will quote below what the affidavit says in its introduction and how it ends: “I, CLINTON CHIDUKU, do hereby make oath and swear that: HH 119 – 24 HC 3865/22 1. I am the applicant in this matter. The facts I depose to herein are true and correct to the best of my knowledge, information and belief… 2. … … 3. … … DATED AT HARARE THIS 27th DAY OF MAY 2022 SIGNED BY: ___________________ SITHOKOZILE NDLOVU BEFORE ME: ________________________ COMMISSIONER OF OATHS” It is apparent that the person who purported to depose to the affidavit and the person who signed it are different. I will come back to this point later. The applicant's case is that, sometime in 2009, the applicant joined Chimoyo Housing Co-operative Society in order to secure a residential stand. Following membership of the cooperative, the applicant made monthly contributions to as subscriptions. The housing cooperative was allocated a number of stands ranging from Stand No 6380 to Stand No 6391 Retreat, Waterfalls by Harare Metropolitan Province’s then Resident Minister, before the applicant joined the cooperative. The stands were supposed to be assigned to paid-up members of the co-operative. According to the applicant, Chimoyo Housing Cooperative assigned to her stand number 6382 Retreat, Waterfalls. Pursuant to that, the applicant entered into a lease agreement with the second respondent in respect of that stand. The applicant avers that her rights and interest in the stand are derived from the lease agreement. For that reason, she contends that in order for the first respondent to assert any rights or interest in the same (namely, stand number 6382), the first respondent must demonstrate that the second respondent lawfully allocated the stand to the housing co-operative. Alternatively, the first respondent should show that she directly got the property from the second respondent. The applicant’s additional averment is that, sometime in 2014, the first respondent invaded her property and built a temporary structure on the stand. On her part, the first respondent claims that her housing cooperative (Samora Machel Housing Co-operative) assigned her the same stand in 2012. As a result, her argument is that she has competing rights with the applicant. However, the applicant claims that the allocation to Samora Machel Housing Co- HH 119 – 24 HC 3865/22 operative in October 2012 was null and void for three reasons. The first is that the allocation was nullified by a judgment of this court (per MUREMBA J) under HH 344-16. Secondly, that the Harare South Housing Co-operative Association (the Apex Board) was unable to allocate the said stand as it did not have authority to allocate stands. Her argument continues to assert that in October 2012, a co-operative known as Samora Machel Housing Co-operative did not exist, since it was only established in January 2016. Put differently, the contention is that the Apex Board could not make any allocation of lad to a non-existent entity. Finally, the applicant submitted that the Apex Board did not have the right to allocate the stands since the second respondent had not given it that authority. The applicant’s contention was that the Apex Board had only been allowed to be a developer, but had not been empowered to alienate land. The first respondent raised some preliminary points. The first objection was that the applicant had not properly cited the second respondent. She argued that the second respondent was incorrectly cited as the Minister of Local Government, Public Works, and National Housing. Instead, the first respondent states that applicant should have cited the second respondent as the Minister of Local Government and Public Works. On the merits, the first respondent’s contention is that applicant was not a member of Chimoyo Housing Co-operative in 2009. Therefore, the 1st respondent claims that applicant is unqualified to testify about events that occurred before he joined the cooperative because it would be hearsay evidence. The first respondent further asserts that the allocation by the City of Harare (Reference Plan number SL 746 Harare South) clearly shows that the stand in question is not included in that plan. I notice that the applicant avoided attaching the second page of the City of Harare's allocation confirmation, which clearly shows the allocated stands. The first respondent argues that the stand in question is included in Layout Plan Number HOPU 29, which was approved on August 12, 2011. This Plan was not mentioned in the allocation done in 2008 and, as such, the then Resident Minister could not have allocated a non-existent stand in 2008. The first respondent refers this court to the case under HC 4436/21 filed by Chimoyo Housing Cooperative against Samora Machel Housing Cooperative, in which it alleges (in paragraph 4) that the stands in issue were allocated by the second respondent and not by the then Resident Minister of Harare Metropolitan Province. Thus, the first respondent says that the lease agreement is invalid since it was not based on the alleged initial allocation. In addition, the first HH 119 – 24 HC 3865/22 respondent submits that the lease agreement relied on by the applicant has since expired and was not renewed. On this basis, the first respondent seeks dismissal of the application with costs on an attorney and attorney scale. In the answering affidavit, the applicant maintained his case and denied that the lease agreement had expired, as claimed by the first respondent. The second respondent did not oppose the application and elected to abide by the court's decision. I must lament the second respondent's attitude, as I believe that its views on the matter would have assisted the court in making a decision one way or the other. In my view, the preliminary point that the second respondent was incorrectly cited was not pursued by the first respondent. It seems that she dropped that point in limine. She also did not object to the fact that the deponent to the founding affidavit is different from the person who signed the affidavit. While such an objection was not raised by the first respondent, this does not absolve this court from considering whether there is before me a valid affidavit founding the applicant’s case. This is a court is a court of law, and I cannot turn a blind eye to a point of law simply because a party has failed to raise it. In my view, the ambiguity surrounding the deponent to the founding affidavit (or any affidavit) makes that affidavit defective and, consequently, renders the application fatally flawed. In this respect, I observe that in Mandishayika v Sithole HH 798-15, CHITAKUNYE J (as he then was) held that: “An affidavit is a written statement made on oath before a commissioner of oaths or other person authorized to administer oaths. The deponent to the statement must take oath in the presence of the commissioner. Equally, the commissioner must administer the oath in accordance with the law and thereafter must append his or her signature onto the statement in the presence of the deponent. The commissioner must also endorse the date on which the oath was so administered. These acts must occur contemporaneously.” Similarly, in S v Hurle & Others (2) 1998 (2) ZLR 42, GILLESPIE J had this to say on what is expected when an oath is commissioned: “A justice of the peace, or a commissioner of oaths, called upon to attest a document, has a duty, exemplified by the solemnity of the oath he is permitted to administer. He is obliged, without fail, to have the deponent appear before him. He has no excuse for not administering the oath, for not calling upon the deponent to swear that the deposition is, to the best of his knowledge true in every respect. A deponent’s signature has to be affixed in the presence of the commissioner. The commissioner’s own signature is an assurance that all these procedures have been complied with.” [My own emphasis] HH 119 – 24 HC 3865/22 In this case, the person who deposed to the affidavit is not the same as the one who signed the affidavit. It is not clear who appeared before the commissioner of oaths between the applicant (Sithokozile Ndlovu) and Clinton Chiduku. Because of this, there is no guarantee that the applicant is the one who appeared to take the oath and signed the affidavit in front of the commissioner. In fact, a reasonable suspicion or doubt is created that the applicant did not take the requisite oath. The defect on the affidavit is so elementary that, if the applicant had appeared before a commissioner of oaths, the commissioner would have noticed the error. For this reason, I come to the conclusion that the affidavit was not properly attested or commissioned. I have arrived at this conclusion in the judicious exercise of my powers as a judge who has a duty to correctly interpret and apply the law. Thus, I find that there is no affidavit before the court which founds the applicant’s case. As I have concluded that the applicant’s affidavit is not properly before the court, I am now left to decide the issue of costs. Traditionally, costs follow the cause and are in the discretion of the court. The point which has disposed of the matter has not been raised by the first respondent, but has emanated from the court. Consequently, I do not believe that she is entitled to costs. In the result, I make the following order: 1. The point in limine on improper citation of the second respondent is hereby dismissed. 2. The application is hereby struck off the roll for want of a valid founding affidavit. 3. Each party shall bear its own costs. CHINAMORA J:…………………………. Saunyama Dondo Legal Practitioners, applicant’s legal practitioners Civil Division of the Attorney-General’s Office, second respondent’s legal practitioners