The applicant is a housing cooperative society registered under the Co-operative Societies Act. On 14 November 2014, it applied to the City of Harare (respondent) for residential stands (stand 2254 Budiriro Township, being the Remainder of Glen Eagles Farm, Harare, ranging from stand numbers 22509 to 22666). On 27 September 2016, the respondent directed the applicant to the Budiriro District council office for regularisation of the stands. The applicant paid for the land's intrinsic value and effected improvements, including water and sewer reticulation infrastructure totaling US$506,589.00. In September 2024, a dispute arose when the respondent's Director of Housing advised of an intention to re-regularise the same area despite the applicant having already paid and been regularised. The applicant's members faced threats of eviction and interference from third parties claiming entitlement to the land. On 19 March 2025, a consent order was granted by DUBE-BANDA J in Case No. HCH 1798/22 declaring the allocations to the applicant and its members lawful and valid. The applicant then sought a final interdict to prevent the respondent from regularising the land for other persons.
1. The respondent shall forthwith stop harmonising and regularising any persons other than the applicant or its members on the 144 sites for regularisation under stand number 2254, being the Remainder of Glen Eagles Farm, Harare, which ranges from stand number 22509 to stand number 22666. 2. There shall be no order as to costs.
An extant court order, including a consent order, is binding on all parties and must be obeyed until it has been lawfully altered or discharged by a court of competent jurisdiction. The mere filing of an application for rescission does not render an order invalid or unenforceable, nor does it suspend the order's effect unless a stay of execution has been specifically granted. A consent order declaring land allocations to be lawful and valid confers a 'clear right' for purposes of interdictory relief. Where a local authority has allocated land to a cooperative, received payment for land intrinsic value, and such allocation has been judicially confirmed by consent order, the local authority cannot conduct a further 'regularisation' process to allocate the same land to third parties. For a final interdict, the applicant must establish: (a) a clear right; (b) an injury actually committed or reasonably apprehended; and (c) the absence of similar protection by any other ordinary alternative remedy. Courts will only consider issues and questions arising from the pleadings and evidence actually adduced; new defenses raised for the first time in oral argument without supporting evidence will not be entertained.
The court made several important observations: (1) On postponement applications: When seeking removal of a matter from the roll, a party cannot make an oral application and then, when deficiencies become apparent, seek to convert it to a written application. A choice must be made and adhered to. (2) On Ministerial directives: Under s 313 of the Urban Councils Act, the Minister is only allowed to give directions of a general character (policy directions) and cannot meddle in day-to-day affairs of council. Councils have an opportunity to make representations to the Minister. An illegal Ministerial directive can and ought to be challenged, and obedience to it is not mandatory (citing Standard Chartered Bank v China Shougang International). (3) On legal representation: The court criticized counsel for the respondent for not properly advising her client regarding the requirements for postponement applications, particularly the need to tender wasted costs, and for attempting to argue a completely new case not pleaded in the opposing affidavit. (4) The court noted the inconsistency of the Town Clerk deposing to an opposing affidavit contending the occupation was unlawful on the same day he signed a Deed of Settlement consenting to an order declaring the allocations lawful and valid.
This case reinforces fundamental principles of Zimbabwean administrative and procedural law: (1) The binding nature of consent orders - parties cannot ignore or circumvent court orders merely because rescission proceedings are pending; (2) The enforceability of extant court orders until properly set aside through appeal, review or rescission; (3) The requirements for final interdicts, particularly that a declaratory order or consent order recognizing lawful allocation of land confers a 'clear right' sufficient for interdictory relief; (4) Courts will not permit local authorities to conduct multiple 'regularisation' processes over land already lawfully allocated; (5) The principle that courts determine matters based on pleadings and evidence actually presented, not arguments raised for the first time in oral submissions; (6) The strict requirements for postponement applications, including the need to show good cause, provide full explanation, and tender wasted costs. The case is significant for housing cooperatives and individuals dealing with local authorities regarding land allocation and regularisation processes.