Chiratidzo Lorraine Jeyacheya (In her capacity as the Executrix Dative of the Estate Late Eunice Jeyacheya) v City of Kwekwe and Others

Eunice Jeyacheya was employed by the City of Kwekwe from January 1981 and was allocated a council house at 15 Westminster Avenue, Fitchlea, Kwekwe. She retired in 2016 and continued residing at the premises. In 2018, she became aware of Local Authorities Circular Minute No. 1 of 2015 issued by the Minister of Local Government, Public Works and National Housing, which directed local authorities to facilitate issuance of title deeds to genuine and deserving tenants who had rented council accommodation for more than 20 years. Eunice filed this application on 1 September 2020 seeking transfer of the property into her name. She subsequently died on 1 August 2021, and Chiratidzo Lorraine Jeyacheya was appointed Executrix Dative and substituted as the applicant. The City of Kwekwe opposed the application, arguing that the house was allocated as an employment benefit and fell within the percentage of houses Council retained as institutional or rental houses as permitted by the ministerial directive.

• Whether the ministerial directive issued under section 313 of the Urban Councils Act (Chapter 29:15) was binding on the 1st respondent
• Whether the 1st respondent had complied with the ministerial directive
• Whether the 1st respondent had discretion to determine who qualified as a 'genuine and deserving tenant' and to retain a percentage of houses as institutional or rental properties
• Whether the applicant had established the requirements for a mandamus order compelling transfer of the property
• Whether the court could compel the 1st respondent to transfer property when there was no underlying contract of sale

1. The application is dismissed. 2. The applicant shall pay costs at the ordinary scale.

The binding legal principles established are: (1) Section 313 of the Urban Councils Act must be read as a whole, not disjunctively, and the opportunity for councils to make representations under s313(2) is embedded in the statute itself, not dependent on a separate invitation from the Minister; (2) Where a ministerial directive expressly grants local authorities discretion to retain a percentage of properties as institutional or rental housing, the exercise of that discretion by a council is not subject to judicial interference absent a showing that the decision was unlawful, unreasonable or unfair; (3) The determination of who qualifies as a 'genuine and deserving tenant' under such a directive falls within the discretion of the local authority where not specifically defined by the Minister; (4) Courts will apply the doctrine of judicial deference to administrative decisions made within the scope of discretion granted by statute or ministerial directive; (5) Courts cannot compel the transfer of property or impose contractual obligations on parties where no underlying agreement exists, even where government policy favors property ownership.

The court made several non-binding observations: (1) It agreed with and applied the reasoning from the earlier decision in Maguma v City of Kwekwe and 2 Ors HB-11-22, which dealt with similar issues arising from the same ministerial circular; (2) The court noted that the position might have been different if the Minister's directive had specifically defined who qualified as a 'genuine and deserving tenant' beyond years of tenancy, or had specified which houses were to be retained with specific criteria; (3) The court observed that while other council employees may have benefited from the directive, there was no evidence their circumstances mirrored the applicant's situation; (4) The court noted that one mentioned beneficiary, a former Town Clerk, had purchased his house as part of a retirement package rather than pursuant to the ministerial directive; (5) The court rejected the argument that paragraph 1 of the circular (providing historical context) should be read in isolation from the operative directive in paragraph 3.

This case is significant in Zimbabwean administrative and local government law as it clarifies the interpretation and application of section 313 of the Urban Councils Act regarding ministerial directives to local authorities. It establishes important principles regarding: (1) the scope of discretion retained by local authorities when implementing ministerial policy directives; (2) the limits of judicial intervention in administrative decisions through the doctrine of judicial deference; (3) the interpretation of ministerial circulars as conferring discretion rather than imposing absolute mandatory obligations; and (4) the inability of courts to create contractual relationships where none exist, even in furtherance of government housing policy. The case demonstrates the balance between ministerial oversight of local government and the retention of administrative discretion by councils in implementing policy directives.