Cleopas Maguma v City of Kwekwe and Others

In January 1991, the applicant was employed by the City of Kwekwe (council) as a Chief Fire Officer. On 11 January 1991, he signed a lease agreement with the council for stand 1563 Que Que (31 Josiah Tongogara Avenue, Newtown Kwekwe). He retired on 28 April 2018 but continued residing at the property as a tenant. In September 2018, the applicant became aware of Local Authorities Circular No. 1 of 2015, issued by the Minister of Local Government on 13 April 2015, which directed local authorities to facilitate issuance of title deeds to tenants who had rented council accommodation for more than 20 years. The applicant, having been a tenant for 24 years when the Circular was issued, demanded that the property be transferred to him. The council declined, contending he did not qualify as he was leasing the property as an employment benefit, not as a general sitting tenant.

• Whether the applicant's claim had prescribed under the Prescription Act
• Whether the application was properly brought as a declaratur or should have been a review application
• Whether the Ministerial Circular No. 1 of 2015 issued under section 313 of the Urban Councils Act had the force of law
• Whether the applicant, as a third party to the Circular, could ground a cause of action on it
• Whether the council had discretion to determine who qualified as 'genuine and deserving tenants' under the Circular
• Whether the court could compel the council to make an offer to sell the property to the applicant

The application was dismissed with costs on a party-and-party scale against the applicant.

1. A ministerial circular issued under section 313 of the Urban Councils Act is not binding and has no force of law unless the Minister has given the council an opportunity to make counter-proposals which must be considered before the directive is finalized. 2. A third party to a ministerial circular directed at local authorities cannot anchor a cause of action on such circular due to the doctrine of privity of contract. 3. Where a ministerial circular grants local authorities discretion to determine eligibility criteria (such as identifying 'genuine and deserving tenants'), courts will apply judicial deference and will not interfere with the exercise of that discretion absent a well-founded case showing illegality, irrationality or procedural impropriety. 4. Courts cannot compel a party to make an offer to enter into a contract, as this would violate the requirement of mutual assent, an essential element of contract formation. 5. In prescription matters, the onus is on the defendant to prove by evidence that the claim has prescribed; bold assertions in heads of argument do not constitute evidence.

The court noted that even if it disagreed with the council's decision regarding the applicant's eligibility, it could not merely interfere with the council's exercise of discretion, as this would amount to usurping the function of council. The court emphasized the importance of judicial deference in administrative matters. The court also observed that the lease agreement itself made no mention of the applicant's employment with the council, though this observation did not affect the ultimate outcome. The judge noted that for completeness, even the alternative relief sought (compelling council to value and offer to sell the property) was incompetent as courts cannot order parties to enter into contracts, as such 'contracts' would lack the essential element of mutual assent.

This case clarifies the legal status of ministerial circulars issued under section 313 of the Urban Councils Act in Zimbabwe, establishing that such circulars are not automatically binding and only acquire force of law after proper consultation with affected councils. The judgment reinforces the doctrine of privity of contract in administrative law contexts, demonstrating that third parties cannot generally enforce policy directives issued between government ministers and local authorities. It also illustrates the principle of judicial deference to administrative discretion, showing courts will not interfere with local authority decision-making except on well-founded grounds of illegality, irrationality or procedural impropriety. The case is significant for understanding the limits of ministerial policy directives in local government administration and the procedural requirements for such directives to become legally enforceable.