Kenias Chivuzhe and 29 Others v City of Harare

The applicants are 30 employees of the City of Harare (respondent). On 6 December 2005, Council resolved to allocate 120 residential stands at Crowborough North Housing Project (Valley Lane Plan TPX 1290) to its employees. The applicants were among the 120 successful employees. Of the 120 employees, 87 were allocated stands and had beacons relocated after paying beacon relocation fees of US$115. The remaining 33 employees, including the applicants, also paid the beacon relocation fee and were allocated stand numbers on paper, but their beacons were not relocated. Subsequently, the Director of Housing and Community Services sought to rescind the allocations and re-allocate the same stands to 59 Valley Lane beneficiaries (who were not Council employees). The applicants' legal practitioners objected, arguing that the Director could not reverse a Council resolution. The respondent proceeded to show the 59 Valley Lane beneficiaries the stands on 3 August 2013, prompting the applicants to file an application for an interdict on 27 August 2013 to prevent the respondent from interfering with their allocated stands and to compel beacon relocation.

• Whether the applicants had a clear right to the stands allocated to them under the Council resolution
• Whether the applicants were required to pay servicing fees of US$3,200 before beacon relocation could occur
• Whether the stands allocated to the 59 Valley Lane beneficiaries were the same stands allocated to the applicants
• Whether there were material disputes of fact that could not be resolved on affidavit evidence
• Whether new matters were improperly raised in answering affidavits

The matter was referred to trial. The application was ordered to stand as the summons, the notice of opposition as the appearance to defend, and the applicants were directed to file their declaration within 10 days, after which the matter would proceed in terms of the rules of court.

Where there are material disputes of fact in motion proceedings that cannot be resolved by examining the probabilities on the papers alone, and where the determination of the true facts requires an assessment of witness credibility through viva voce evidence, the matter must be referred to trial. A court cannot rank affidavits in terms of veracity or credibility. Answering affidavits may properly respond to new defenses raised in opposing affidavits without constituting impermissible new matters, provided they do not introduce an entirely new cause of action.

The court noted that both parties presented arguable points regarding whether servicing fees were a precondition to beacon relocation. The court observed that the meeting minutes suggested the applicants (referred to as "aggrieved former allottees") were refusing to pay contributions for development, and that correspondence from the respondent's Chamber Secretary did not mention non-payment of servicing fees as a reason for non-allocation. The court declined to express a view on whether the 59 Valley Lane beneficiaries received the same land as allocated to the applicants, noting this would be determined at trial and it would not pre-empt that decision.

This case illustrates the limits of motion proceedings in resolving disputes involving material factual controversies in South African and Zimbabwean law. It demonstrates that where parties present conflicting versions on affidavit and credibility cannot be assessed without viva voce evidence, the court should refer the matter to trial rather than attempt to resolve disputes on the papers. The case also clarifies the proper use of answering affidavits—they may respond to new defenses raised in opposing affidavits without constituting impermissible new matters. The judgment reinforces the principle that motion proceedings are unsuitable for determining complex factual disputes concerning credibility and competing probabilities, particularly where the resolution turns on assessing witness testimony.