Luke Danzvara and Others v City of Harare and Others

The applicants were owners of immovable properties in Bannockburn, Mount Pleasant Heights, Harare. The third respondent, Zimbabwe Assemblies of God Africa, owned Stand 946 Bannockburn and obtained a permit from the first respondent (City of Harare) on 7 December 2021 to construct a church building on its stand. The third respondent's stand adjoined the applicants' properties. The applicants objected to the construction of the church, claiming they were not properly notified of the application for the permit and were not given an opportunity to object. They alleged the permit was issued irregularly and sought to have the decision set aside. The applicants filed an application combining review grounds under sections 26 and 27 of the High Court Act, declaratory relief, and constitutional relief under section 85(1) and 175(6) of the Constitution. The applicants did not object to the permit when it was issued nor did they file an appeal to the Administrative Court.

• Whether it was competent to combine or conflate an ordinary review application under sections 26 and 27 of the High Court Act with a constitutional application under section 85(1) of the Constitution in a single application
• Whether the application complied with Rule 257 of the High Court Rules 1971 by stating the exact relief sought
• Whether the second respondent (Director of Department of Works) was properly cited as a legal persona
• Whether the founding affidavit was argumentative and contained irrelevant matter
• Whether the principle of subsidiarity applied given that dominant legislation existed outside the Constitution to address the dispute

The application was struck off the roll. The applicants were ordered to pay costs jointly and severally, the one paying the others to be absolved.

It is incompetent and fatally defective to combine or conflate an ordinary review application brought under sections 26 and 27 of the High Court Act with a constitutional application brought under section 85(1) of the Constitution in a single hybrid application. A section 85(1) constitutional application is sui generis and should be brought separately. Where adequate legislation exists outside the Constitution to address a dispute and protect rights, the principle of subsidiarity requires that the Constitution not be invoked. An application based on procedural irregularity in administrative decision-making can be adequately addressed through the High Court's review jurisdiction without invoking constitutional provisions. Heads of argument cannot amend pleadings - formal amendment procedures must be followed.

The court indicated that it refrained from ruling on whether the application complied with Rule 257 of the High Court Rules 1971 (regarding stating exact relief sought) and whether the founding affidavit should be struck out for being argumentative and containing irrelevant matter, in order to avoid prejudicing the applicants should they decide to bring a properly framed application in future. The court noted that it would have been minded to consider penalizing the legal practitioner with costs de bonis propriis had such a prayer been made, as there was no reason to persist in an obviously defective application despite opposing counsel pointing out the defect, but no such prayer was made by the respondents.

This case is significant in Zimbabwean civil procedure for establishing clear guidance on the impermissibility of conflating or combining ordinary review applications with constitutional applications under section 85(1) of the Constitution. It reinforces the principle of subsidiarity in constitutional litigation - that constitutional provisions should not be invoked where adequate non-constitutional legislation exists to address the dispute. The judgment clarifies procedural requirements for properly framing applications and emphasizes that constitutional relief applications are sui generis and should be brought separately from ordinary applications. It serves as a warning to legal practitioners about the consequences of persisting with obviously defective applications despite opposing counsel pointing out irregularities.