Hayes Construction (Private) Limited v City of Harare

On 17 October 2019, the City of Harare provisionally allocated stand 19376 Southerton Township to Hayes Construction (Private) Limited for flats development. The terms required the applicant to pay: (i) ZWL$10,000 application fee; (ii) ZWL$8,000 administration fee within 7 days; and (iii) a deposit towards land intrinsic price at ZWL$250 per square metre within 14 days. The provisional letter stated that once full payment was made, a memorandum of agreement would be entered into between the parties. The applicant complied with all payment requirements. On 25 September 2020, the respondent's acting Director of Housing confirmed compliance and advised the applicant to approach the Chamber Secretary Department for detailed conditions of sale. However, no memorandum of agreement was executed. On 9 November 2021, respondent's lawyers requested further indulgence until 12 November 2021. Despite this, respondent failed to execute the agreement, prompting the applicant to issue summons on 2 September 2021 seeking an order compelling execution of the agreement of sale.

• Whether the applicant was entitled to summary judgment under Rule 30 of the High Court Rules SI 202/2021
• Whether the respondent had a bona fide defence to the claim
• Whether appearance to defend was entered solely for purposes of delay
• Whether the relief sought was premature pending completion of survey, valuation and advertisement processes
• Whether there was a binding obligation on the respondent to execute an agreement of sale following full payment by the applicant

1. Summary judgment was granted. 2. Respondent was ordered to execute an agreement of sale in favour of applicant in respect of stand 19376 Southerton Township, Harare within 45 (forty-five) days of the date of the order. 3. Respondent was ordered to pay costs of suit.

Where a local authority provisionally allocates land subject to certain payment conditions and expressly undertakes to enter into a memorandum of agreement once full payment is made, and the applicant complies with all such payment conditions which the local authority acknowledges, the local authority is bound to execute the agreement of sale and cannot rely on internal administrative processes (such as survey, valuation, and advertisement) to delay performance of its contractual obligation. A defence that does not meet the claim squarely or that relies on facts which, even if proven, would not amount to a defence at law, will not prevent the granting of summary judgment. Summary judgment will be granted where the applicant establishes an unanswerable claim and the respondent has no bona fide defence and entered appearance to defend solely for purposes of delay.

The court noted that applicant sought to amend the draft order to substitute paragraph 3 to align with paragraph 2 of the summons, which stated that the plaintiff shall be deemed the owner of the stand rather than having the sheriff execute the agreement. However, in the final order, the court did not grant deemed ownership but simply ordered execution of the agreement within 45 days. The court observed that the test for summary judgment is "amongst the lightest that the rules of procedure cast on the litigants" and emphasized that summary judgment is a "drastic" remedy reserved for cases where the defendant truly has no genuine defence. The court also implicitly commented on the conduct of local authorities in property transactions, suggesting that proper administration requires timely execution of agreements once conditions precedent are satisfied.

This case reinforces the application of summary judgment principles in Zimbabwean law, particularly in the context of property transactions with local authorities. It clarifies that once a party has complied with all conditions precedent set out in a provisional allocation letter and the local authority has acknowledged such compliance, the local authority cannot delay execution of the agreement by relying on internal administrative processes. The case emphasizes that summary judgment is available where the defendant's defence, while possibly raising procedural points, does not amount to a defence at law when the terms of the agreement are clear. It also demonstrates the courts' willingness to hold local authorities to their contractual obligations and prevent them from using administrative processes as a shield against performance of binding commitments.