Tongoona v Muzambi and Another (195 of 2024) [2024] ZWHHC 195 (20 May 2024)

1 HH 195 -24 HC 3871/22 VIRGINIA TONGOONA versus TRANOS MUZAMBI and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING N. O. HIGH COURT OF ZIMBABWE CHINAMORA J HARARE, 20 May 2024 Opposed application for declarater Mr E Dondo, for the applicant Mr T G Mukwindidza,.for the 2nd respondent 1st respondent in person CHINAMORA J: Background facts This is an application for a declaratory order in which the applicant seeks to be declared the bona fide holder of rights and interests in stand number No. 6341 Retreat Waterfalls, Harare. The application is being made in terms of section 14 of the High Court Act [Chapter 7:06]. In this respect, the applicant argues that sometime in 2009, he joined Chimoyo Housing Co- operative in order to be allocated a stand. Prior to that in 2008, Chimoyo Housing Co-operative was allocated a block of stands namely stand number 6380 – 6391 Retreat Waterfalls by Harare Metropolitan Province’s then Resident Minister. A year later, the applicant joined the Chimoyo Housing Co-operative. The Chimoyo Housing Co-operative was supposed to allocate the said stands to its various paid-up members, which it did. Sometime in 2014, Chimoyo Housing Co- operative allocated stand number 6391 to the applicant to which applicant claims derives rights over the stand from. After being allocated, the applicant alleges entered into a lease agreement with the 2nd respondent over stand number 6391 Retreat Waterfalls. HH 195 -24 HC 3871/22 It is applicant’s case that in 2014, the 1st respondent invaded the property in question and constructed a temporary structure. According to the applicant, the 1st respondent claimed to have competing rights and interests since he was allocated the same property by his housing co- operative. He further alleges that the 1st respondent is relying on the fact that 1st respondent would claim that his housing co-operative (Samora Machel) was allocated the block of stands that encompasses stand No. 6391 by Harare South Housing Co-operative Association (Apex Board) sometime in October 2012. The applicant argues that the purported allocation is a nullity for three reasons being that the allocation was done after 7 August 2012 by the Apex Board led by one Tonderai Nkomo whose acts were nullified by this court under HH 344/16. Further, the applicant submits that the Apex Board could not have allocated the stands in question since there was no entity called Samora Machel Housing Co-operative. To this end, the applicant states that Samora Machel Housing Co-operative only came into the existence in January 2016. In addition, the applicant argues that the Apex Board had no right to allocate the stands. He concludes that the 2nd respondent did not give the Apex Board such rights. The applicant maintains that, in order for 1st respondent to prove competing rights, it must show that he was allocated the said stand by the 2nd respondent or a co-operative. It is on the above that the applicant’s claim is premised and prays for the following order: “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 6391 Retreat Waterfalls. b. 1st respondent and all those in occupation through him at property known as No. 6391 Retreat waterfalls be and hereby are ordered to forthwith vacate the property and give vacant possession to the applicant within 10 days from this order. c. The 1st respondent be and is hereby ordered to bear costs of this suit on a higher scale.” The case for the respondents The 1st respondent opposed the application, while the 2nd respondent did not take part in the proceedings and chose to abide by the decision of the court. I must hasten to note that, the 2nd respondent ought to have filed an affidavit clarifying the issues that are before this court for the court to make a value based and informed decision. HH 195 -24 HC 3871/22 In essence, the 1st respondent raised a preliminary point to the effect that there are material disputes of fact which could not be resolved on the papers filed of record. The 1st respondent argues that the block of stands allocated to Chimoyo Housing Co-operative in 2008 did not include the stand in dispute. It is 1st respondent’s case that the allocation was based on Plan number SL746 as appears on the first page of the Memorandum attached to applicant’s papers as Annexure C. Plan SL 746 does not include the stand in issue. The purported allocation by City of Harare appearing on page 14 of the application makes reference to Plan Number SL746 Harare South, which as indicated above does not include the stand in question. The 1st respondent argues that the Stand in question is part of the Layout Plan number HOPU 29 which was approved on August 12, 2011. The said plan was not referred to in the allocation done in 2008. It is also the 1st respondent’s claim that under HC 4436/21 issued out by Chimoyo Housing Co-operative against Samora Machel Housing Co-operative, the Chimoyo Housing Co-operative alleged in paragraph 4 of the declaration that they were allocated by the 2nd respondent and not by the Resident Minister of Harare Metropolitan Province. According to the 1st respondent this statement creates a dispute that cannot be explained away especially in the absence of a clear allocation showing the actual allocation in 2008. Furthermore, the 1st respondent alleges that District Administrator’s (DA)office recommended five more co- operatives which co-operatives included Samora Machel Housing Co-operative. The DA’s office allocated the stand upon which the 1st respondent co-operative derives right to allocate the stand to 1st respondent. The applicant disputes the contention that there are material disputes of fact which cannot be resolved on the papers. According the applicant, the Retreat Farm is State land and it is managed through the office of the 2nd respondent. It is the applicant’s argument that the 2nd respondent could not be mistaken about the person or cooperative to whom it allocated the land. The 2nd respondent also argues that the 2nd respondent issued a lease in his favour consequently there can never be an issue on the question of rights and interests on the disputed stand. Onn the other hand, the 1st respondent argues that there are double allocations of stands in Retreat Farm, and that the 2nd respondent has undertaken a process to verify such double allocations. It is further contented that the verification process resulted in the 2nd respondent stopping any renewal of lease agreements of issuance of new lease agreements. Thus, the 1st respondent submits that HH 195 -24 HC 3871/22 this exercise affects the applicant’s expired lease, and that a material dispute of fact exists vis-à- vis whether or not the expired lease would be renewed. By contrast, the 1st respondent produced an allocation which has the 2nd respondent’s official stamp despite not being on the 2nd respondent’s letterhead. It is for this reason that the 1st respondent argues that there is a material dispute of fact which cannot be resolved on the papers without hearing viva voce evidence. My view is that there is merit in this preliminary point. Analysis of the case The law on the issue of material dispute of facts is settled in this jurisdiction. In Grain Marketing Boarding v Mandizha HH 16-14 CHIGUMBA J stated that: “…put differently, it is my view that, the phrase material dispute of facts, in the application procedure, refers to the untenable position where averments are made in an affidavit, which averments have direct bearing on the outcome of the matter, yet the papers which will be before the court from the founding affidavit, the opposing affidavit, the answering affidavit, the annexures attached, the heads of argument, the parties oral address at the hearing of the matter, leave the court riddled with doubt and uncertainty as to the veracity of the averments, to the veracity of the averments, to the extent that it ought to have been clear to the applicant at the outset that the court would be unable to come to a conclusive decision, on the merits of the application.” Furthermore, MAKARAU JP (as she then was) in Super Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) at 136F-G, held that: “…For the respondents to allege that there was a material dispute of facts he must establish a real issue of fact which cannot be satisfactorily determined without the aid of oral evidence. He must not make a bare denial or allege a dispute.” Turning to the facts of this matter, I observe that the material allegations made by the applicant especially regarding to the allocation of the stand were disputed and traversed by the 1 st respondent in such a manner as to leave this court as indicated above with no ready answer. The 1st respondent argued that the block of stands allocated to Chimoyo Housing Co-operative in 2008 did not include the stand in dispute. There is need for clarity on the issue of whether or not the allocation was based on Plan number SL746 as appears on the first page of the Memorandum attached to applicant’s papers as Annexure C. Especially, if regard is had to the fact that Plan SL 746 does not include the stand in issue. The purported allocation by City of Harare appearing on HH 195 -24 HC 3871/22 page 14 of the application makes reference to Plan Number SL746 Harare South, which as indicated above does not include the stand in question. Bearing in mind the law on the subject, I am of the view (and agree with the 1st respondent) that this case raises a material dispute of facts that leaves me with no ready answer to the dispute between the parties in the absence of further evidence. It is noteworthy that the 1 st respondent raised critical issues which were not adequately answered by the applicant. I need only mention that the applicant did not produce any document showing a changed position by the 2nd respondent from its stance that no renewal of lease agreements would be made, or that it was going to issue new leases. I inclined to uphold the point in limine raised on the question of a material dispute of fact. Since I have resolved the matter on the basis of this preliminary point, I find it unnecessary to deal with the other points in limine raised in this matter. In the result, I make the following order: 1. The preliminary point on material dispute of facts raised by the 1st respondent be and is hereby upheld. 2. The matter be and is hereby referred to trial on the following directions: a. The summons and declarations by the applicant shall form the applicant’s summons and declarations. b. The 1st respondent’s notice of opposition together with the opposing affidavit shall be treated as the 1st respondent’s appearance to defend and plea. c. The applicant’s answering affidavit shall be regarded as the plaintiff’s replication. 3. There shall be no order as to costs. Messrs Saunyama Dondo, applicant’s legal practitioners Civil Division of Attorney General’s Office, 2nd respondent’s legal practitioners