59 BENEFICIARIES OF VALLEY LANE HOUSING SCHEME
HARARE MUNICIPAL WORKERS UNION
CITY OF HARARE
DIRECTOR OF HOUSING AND SOCIAL SERVICES
CITY VALUER AND ESTATES MANAGER
MINISTER OF LOCAL GOVERNMENT
HIGH COURT OF ZIMBABWE
HARARE, 5 January, 8 March and 13 July 2011
K Musonifor the applicants
Mrs F L Mageza, for the first respondent
D Kanokanga, for the second to fifth respondents
MTSHIYA J: On 8 March 2011 I dismissed this application on the ground that it was not properly before the court.
The legal practitioners for the second to fifth respondents has since written requesting for reasons for my ruling. These are they:
On 8 September 2010 the applicants (i.e. 59 Beneficiaries of Valley Lane Housing Scheme) filed an application seeking the following relief:
“IT IS ORDERED THAT:
- The first respondent shall forthwith, that is to say, within two hours of service of this order upon him or his agents, employees or invitees restore possession and control of the fifty nine (59) stands as marked by the stand numbers of Corowborough “B” Township Housing Project (hereinafter called the stands) through the Deputy Sheriff of Harare, failure which the Deputy Sheriff for Harare with the assistance of a sufficient number of police officers from the Zimbabwe Republic police, Harare to forcibly evict the first respondent and all those claiming occupation through him from the said stands.
- The first respondent shall pay the applicant’s cost of suit on the scale of legal practitioner client”.
The facts of the case, as given by Garanewako Mfema (Mfema) who swore to the founding affidavit, are briefly that in 1997 a company called Valley Lane Investments (Pvt) Ltd (“the company”) entered into an agreement with the City of Harare (the second respondent) to develop and service housing stands in Crowborough B Township, Harare. The said company was to retain 40 stands for allocation to its employees who were on the second respondent’s waiting list. The applicants herein were on the second respondent’s waiting list. Acting through Paragon and Keystone Real Estates, the company allocated stands to applicants. The applicants signed agreements of sale for the stands and paid for the stands.
The second respondent alleged that, in breach of agreement, the company had exceeded the agreed allocation of stands by allocating to its employees 59 stands instead of 40 stands. The applicants allege that following negotiations between the company and the second respondent, the second respondent waived its right to cancel the agreement. The applicants then proceeded to start developments on the stands.
In August 2009 the first and second respondents commenced the take over of the stands from the applicants. The applicants moved out of the stands and now seek the relief indicated on the first page of this judgment.
On 22 September 2010 the second to fifth respondents filed notices of opposition to this application. In the notice filed by the second to fifth respondents the following points in limine were raised:
“POINTS IN LIMINE
- The 59 beneficiaries of Valley Lane Housing Scheme are not a legal entity. There is nothing to show that there is a legal entity by this name. This makes the application fatally defective.
- There is no resolution which authorizes Garanewako Mfema to depose to the applicants founding affidavit. He therefore is not duly authorized to depose to the affidavit.
- There are no affidavits from the other applicants to confirm that they associate themselves with the deponent’s averments.
- I am advised that if the applicants were allegedly despoiled in 2009 then this application is way out of time.
- The application is not properly before this honourable court”.
The above observations by the second to fifth respondents gained favour in my examination of the papers before me. Furthermore, the fact that there is nothing in the papers to show that Mfema had authority from the purported 59 beneficiaries to swear to the founding affidavit, meant the application could not stand without a founding affidavit. Had the so called 59 beneficiaries associated themselves in some way with Mfema, I would not have found the citation of the applicant defective. That would have clearly indicated that the application was by 59 named applicants. That is not the case in casu and worse still, Mfema did not provide proof that he had authority to represent the other 58 applicants.
I therefore found merit in the preliminary issue that was raised. I upheld same and dismissed the application with costs on a legal practitioner and client scale.
Nyikadzino, Kaworera & Associates, applicants’ legal practitioners
Kanokanga & Partners2nd – 5th respondents’ legal practitioners