Beata Emely Chigwedere and Wadzanai Collective Farming Cooperative Society Ltd v Minister of Local Government Public Works and National Housing and Others

The first applicant is the chairperson of the second applicant, a duly registered cooperative. In June 2004, the first respondent (Minister of Local Government) allocated stands to the first applicant personally and to the second applicant as a legal entity to develop and sell to its members. In March 2018, the first respondent advised the applicants of its decision to withdraw the authority to develop the stands, stating that the land had not been successfully acquired by the acquiring authority as it was privately owned and therefore not available for state allocation. The applicants sought clarifications through their legal representatives but received no response. They then filed an application seeking a declaration that the decision was null and void, arguing that the manner in which the decision was made offended principles of administrative justice - they were not heard before the decision was made and no reasons were given.

• Whether the application was properly before the court as an application for a declaratory order or should have been filed as a review application in terms of Order 33 of the High Court Rules
• Whether statutory relief under section 4 of the Administrative Justice Act [Chapter 10:28] can be sought by way of ordinary court application rather than review proceedings
• Whether the first respondent complied with section 3 of the Administrative Justice Act in making the decision to withdraw the offer letters
• Whether the applicants were afforded their right to be heard before the prejudicial decision was made

The application was granted. The court declared the decision by the first respondent contained in the letter dated 5 March 2018 cancelling or withdrawing the right of the second applicant to develop an urban housing scheme on stand 48 Aspindale Park Township to be null and void and of no force and effect. The first respondent was ordered to pay costs of suit on the ordinary scale (the court declined to award costs on the higher legal practitioner-client scale requested by the applicants).

An application for statutory relief under section 4(1) of the Administrative Justice Act [Chapter 10:28] may be brought by way of an ordinary court application and need not take the form of a review application in terms of Order 33 of the High Court Rules. Section 3 of the Administrative Justice Act imposes mandatory obligations on administrative authorities to act lawfully, reasonably and in a fair manner, which includes giving affected persons adequate notice of proposed action and a reasonable opportunity to make adequate representations before making decisions that affect their rights, interests or legitimate expectations. Failure to afford a hearing before making a prejudicial administrative decision constitutes a violation of section 3(2) of the Administrative Justice Act and renders the decision liable to be set aside.

The court observed that the applicants had done their research and attached documentary proof that the land was actually acquired by the State, and it would only be fair for the first respondent to hear the applicants on this matter. The court noted that whether the reason given for the withdrawal was correct or not was not for the court to determine in these proceedings. The court also commented that generally courts award costs on an ordinary scale unless there is something peculiar in the case or conduct of the other party that requires censure, and found nothing to justify the elevated legal practitioner-client scale of costs claimed by the applicants.

This case is significant in Zimbabwean administrative law for clarifying that statutory relief under section 4 of the Administrative Justice Act [Chapter 10:28] can be sought by way of an ordinary court application and does not require the applicant to proceed by way of review in terms of Order 33 of the High Court Rules. The case reinforces the fundamental principle of administrative justice that administrative authorities must afford persons a hearing before making decisions that affect their rights, interests or legitimate expectations. It confirms that the right to be heard is an elementary notion of fairness and justice, now entrenched in section 68 of the Constitution, and that section 3 of the Administrative Justice Act is mandatory in its requirements for administrative bodies.