Margaret Mazani v Scholastic Matiyenga and Happymore Muchayi and Minister of National Housing and Social Amenities

The applicant was allocated Stand 9030 Raheen, Garikayi, Phase 2, Mutare by the third respondent (Minister of National Housing and Social Amenities) in 2010. She had joined the Access to Home Ownership Scheme in 2006 and contributed payments through FBC Building Society. In 2012, when she went to pay instalments, she was informed that the property had been re-allocated to someone else. A Ministerial Committee was established to investigate irregularities at Garikayi Phase 2 and recommended that all original beneficiaries be restored to their stands and that second allottees be evicted and refunded. The first respondent received an offer letter for the same property in 2017, making her a second allottee. On 14 August 2021, the applicant found the first and second respondents at the property attempting to carry out construction work. She filed an urgent application on 18 August 2021 seeking an interim interdict to prevent construction pending determination of her declaratur application.

• Whether the applicant established a prima facie right to the property sufficient to grant an interim interdict
• Whether the applicant satisfied the requirements for a temporary interdict as established in Setlogelo v Setlogelo
• Whether the applicant would suffer irreparable harm if the respondents were allowed to continue construction
• Whether the balance of convenience favoured the granting of the interdict
• Whether the application was properly brought on an urgent basis

The application was granted as prayed. The court granted the interim relief interdicting the first and second respondents and all their agents or representatives from carrying out construction on Stand 9030 Raheen, Garikayi, Phase 2, Mutare pending the return date of the provisional order. The court also rescinded the erroneously signed order and substituted it with the correct interim order.

For a temporary interdict to be granted, an applicant must establish: (1) a prima facie right (a right open to some doubt that may ripen into a clear right on the return date); (2) actual or reasonably apprehended injury or harm; (3) absence of any other remedy; and (4) balance of convenience favouring the applicant. Where administrative authorities have made recommendations to restore original beneficiaries to property and evict second allottees due to irregular re-allocations, this constitutes evidence supporting a prima facie right to the property. Facts not denied in opposing affidavits are deemed to have been admitted. An application filed four days after the cause of action arose demonstrates the requisite urgency. The court has power under Rule 29(1)(a) to rescind erroneous orders and substitute them with correct orders.

The court observed that the final determination of who is the lawful occupant of the property would occur in the declaratur application, and that such determination would resolve the dispute and bring finality for the convenience of both the court and the parties. The court commented critically on the third respondent's contradictory opposing affidavit, stating that the deponent either was misinformed, did not make diligent inquiry as claimed, or deliberately chose to support the first and second respondents dishonestly. The court noted that the deponent's statement about making diligent search and inquiry appeared not to be genuine given his contradictory statements and failure to acknowledge the contents of key annexures.

This case demonstrates the Zimbabwean High Court's application of the established Setlogelo test for interim interdicts in property disputes involving administrative allocations. It illustrates the court's willingness to grant interim relief where there is evidence of administrative irregularities in land allocation processes, particularly where a Ministerial Committee has made recommendations to rectify such irregularities. The case also demonstrates the court's inherent power under Rule 29(1)(a) to correct clerical errors in orders. It provides guidance on the standard of proof required (prima facie right rather than clear right) for temporary interdicts pending final determination of rights. The judgment emphasizes the importance of consistency in opposing affidavits and the principle that unchallenged facts in affidavits are deemed admitted.