Diamond Bird Services (Pvt) Ltd and The Trustees of Zimnat Value Preservation Professional Fund v City of Harare and Massbreed Investments (Pvt) Ltd

The applicants owned properties adjacent to land designated for recreational purposes in Alexandra Park known as Stand 3189 Harare Township, which belonged to the first respondent (City of Harare). In mid-December 2020, the applicants noticed the area was fenced off with temporary site offices constructed. Upon enquiry, they discovered that the first respondent had sold the land to the second respondent (Massbreed Investments). The applicants investigated the sale process and discovered that the first respondent failed to comply with the peremptory requirements of section 152 of the Urban Councils Act. Specifically: (1) only one publication was made instead of two as required; (2) the property was misdescribed as "Stand 3189 Harare Township" when it should have been "Stand 3189 Salisbury Township"; and (3) the proposal documents were not made available for inspection at the council offices as required.

• Whether the applicants had locus standi to bring the application
• Whether the authorization of the second applicant's deponent was defective when the affidavit was signed before the board resolution
• Whether the first respondent complied with the mandatory requirements of section 152 of the Urban Councils Act in alienating council land
• Whether the misdescription of the property was fatal to the sale process
• Whether the applicants were required to exhaust domestic remedies under sections 311, 314 and 316 of the Act before approaching the court
• Whether the sale agreement should be declared null and void

1. The process leading to the agreement of sale in terms of which the first respondent purported to sell Stand 3189 Salisbury Township was declared unlawful. 2. The agreement of sale between the first and second respondents was declared null and void. 3. Respondents were ordered to pay costs on an ordinary scale.

Section 152 of the Urban Councils Act is mandatory, not directory, and requires strict compliance by local authorities when alienating council land. The use of "shall" denotes mandatory application. A local authority must: (1) publish notice in two issues of a newspaper; (2) properly describe the property so it can be identified; and (3) make the full proposal available for inspection. Failure to comply with these requirements, particularly where such non-compliance prejudices the administrative and constitutional rights of residents to object, renders the alienation unlawful and unenforceable. Ratepayers and residents of a city have locus standi to challenge council decisions regarding alienation of council land as they have a direct and substantial interest in the affairs of the city. Misdescription of property in notices under section 152 is fatal where it prevents interested parties from identifying the property and exercising their right to object within the prescribed period.

The court noted that a previous judge's observation in HH413/21 that the misdescription "may not be found to be off the mark" was obiter and based on different material before that court. The court observed that the real purpose of a board resolution is to confirm that it is the company litigating and the deponent is not on a frolic of his own. Where a board resolution is signed shortly after an affidavit, this technical defect per se cannot render the affidavit invalid if it is clear the company is litigating. The court commented that where a domestic remedy does not provide sufficient protection (such as ministerial powers that do not extend to declaratory orders), a party is at large to approach the court directly.

This case reinforces the mandatory nature of procedural requirements in section 152 of the Urban Councils Act governing the alienation of council land. It establishes that local authorities must strictly comply with statutory notice requirements, including proper description of property and dual publication in newspapers. The judgment affirms that ratepayers and residents have locus standi to challenge council decisions relating to alienation of public land, recognizing this as both a statutory and constitutional right under section 68 of the Constitution. It clarifies that technical defects in administrative processes that prejudice the public's right to object cannot be overlooked, even where a purchaser has invested in the property. The case demonstrates that administrative bodies must act lawfully, reasonably and fairly, and that failure to comply with mandatory procedural requirements may render their actions a nullity.