The applicant entered into a lease agreement with the City of Harare on 16 August 1995 for stand 18142 Salisbury Township on which she constructed a kiosk. The lease was extended for ten years from 1 September 1998, expiring on 31 August 2008. After the lease expired, the applicant refused to vacate and her kiosk was demolished by the respondent on 10 February 2010 without complying with the procedural requirements of sections 32 and 34 of the Regional, Town and Country Planning Act. The respondent conceded the demolition was unlawful. Following negotiations, the applicant claimed an agreement was reached whereby the respondent would compensate her by transferring stand 19247 Harare Township Lands. The applicant alternatively claimed damages of US$18,862 comprising US$9,862 for the demolished kiosk, US$5,000 for loss of business, and US$4,000 for goodwill. The respondent denied that any binding agreement was concluded, stating that officials only made recommendations to Council which were ultimately rejected.
The application was dismissed with costs.
A binding contract requires clear and unequivocal offer and acceptance by persons with authority to bind the parties. Municipal officials who merely recommend actions to council do not have authority to bind the municipality; only council resolutions create binding obligations. Application procedure is inappropriate where serious disputes of fact exist, particularly regarding disputed oral agreements and unliquidated damages. Where a respondent objects to application procedure and may suffer prejudice, the court should refuse the use of application procedure where action procedure would be appropriate. An applicant's case stands or falls on the founding affidavit. Claims for damages require proper proof through evidence, including documentation of business takings, expenses, and valuations, which cannot be adequately resolved on affidavit evidence alone.
The court endorsed the remarks of Makarau J (as she then was) in Ex-Combatants Security Co v Midlands State University that a claim based on an alleged oral agreement whose terms are disputed cannot be resolved on affidavits without doing an injustice to one of the parties, as such agreements can only be established by comparing the credibility of witnesses at trial. The court also observed that legal practitioners should not resort to application procedure for matters which should proceed by way of trial. The court noted that while contemporary practice allows any dispute except matrimonial causes and claims for damages to be decided by application procedure in appropriate cases, the court retains discretion to deny the use of this procedure where prejudice may result.
This case reinforces important principles in Zimbabwean civil procedure regarding when application procedure is appropriate versus action procedure. It emphasizes that disputes involving alleged oral or disputed agreements, and claims for unliquidated damages, should generally proceed by way of trial rather than application. The case also clarifies principles of contract formation, particularly that municipal officials making recommendations to council do not have authority to bind the municipality absent actual council resolution. It serves as a cautionary example to legal practitioners about the inappropriate use of application procedure when disputes of fact are foreseeable, with cost consequences for doing so.