City of Harare v Charles Matsika and 21 Others

The City of Harare brought an urgent application against 22 respondents for unlawful occupation of Lot 2 of Parkridge Estate (also known as Paddock 27 of Crowborough Farm) in Harare. The respondents comprised various housing cooperatives and their chairpersons. The second respondent (Onward Chinhengo) purported to file opposition on behalf of 14 cooperatives (Crowborough North Housing Project consortium), none of which were cited as respondents. The third respondent (Tauya Mauka) filed an opposing affidavit claiming to represent himself and the 4th to 22nd respondents, alleging they followed due process and were entitled to occupation pending regularization. The matter was initially filed as an urgent chamber application but was referred to the opposed roll. After arguments were heard, the court identified procedural irregularities regarding proper representation and authorization, and invited further submissions. Settlement negotiations subsequently failed.

• Whether the respondents (4th to 22nd) were properly before the court given the lack of individual opposing affidavits or proper authorization
• Whether a person claiming to represent others in litigation must prove their authority through a power of attorney or affidavit of collegiality
• Whether the respondents unlawfully occupied the applicant's land
• Whether the applicant was entitled to an eviction order and demolition of structures

The court ordered: (1) The respondents and all those claiming through them to restore possession of Lot 2 of Parkridge Estate (Paddock 27 of Crowborough Farm) to the applicant, failing which they would be evicted by the Sheriff; (2) The respondents to demolish their structures, failing which the Sheriff would demolish them; (3) The respondents to pay costs of suit jointly and severally, the one paying the others to be absolved.

A person who purports to represent others in litigation must have their authority properly proven through either a special power of attorney or an affidavit of collegiality. In the absence of such proof of authority, or where parties fail to verify or identify with depositions made purportedly on their behalf, those parties cannot be considered to have properly opposed an application and will be found in default. The court will not accept mere averments of authorization without supporting evidence, as this protects parties from unauthorized representation and prevents prejudice to adversaries.

The court made observations about the importance of proper proof of authority in litigation, listing reasons why courts insist on evidence of authority: (i) the alleged representative may not actually be authorized; (ii) unauthorized depositions may be made; (iii) it becomes difficult to hold parties accountable who have not personally sworn to depositions; (iv) innocent adversaries may be wrongfully prejudiced in costs and outcome; and (v) not all persons who take oaths tell the truth. The court also observed that a claim that "due process" was followed while simultaneously seeking "regularization" of occupation is contradictory and suggests irregular occupation from the outset.

This case is significant for establishing important procedural requirements in Zimbabwean civil litigation regarding representation and standing. It reinforces the principle that parties claiming to represent others (whether natural persons or legal entities like cooperatives) must properly prove their authority through formal documentation such as powers of attorney or affidavits of collegiality. The judgment emphasizes the court's duty to scrutinize purported representation even where not raised by the parties, protecting litigants from unauthorized representation and potential prejudice. The case also illustrates the consequences of procedural defects in opposition - parties failing to properly file opposition or prove authority to represent others will be found in default regardless of the substantive merits.