Mereki (Warren Park) Community Trust v City of Harare

The appellant, a community trust, sued the respondent municipality (City of Harare) for specific performance, seeking transfer of Stand 5153 of Warren Park Township. The appellant claimed that on 22 June 2016, the respondent offered to sell the property, which the appellant accepted on 23 June 2016, and that the purchase price of ZWG$862,500.00 was fully paid. The respondent disputed the existence of a valid contract, arguing that: (1) the price was USD$862,500.00, not ZWG$; (2) the appellant failed to pay the requisite one-third deposit within 30 days as required by the offer conditions; and (3) there was no compliance with section 152 of the Urban Councils Act. The parties agreed to proceed by way of a statement of agreed facts under Rule 52 of the High Court Rules, 2021, but also agreed to lead viva voce evidence that did not contradict the agreed facts. The respondent called one witness, Ms Mutero.

• Whether the court a quo erred in accepting and relying on viva voce evidence when the case was brought as a special case under Rule 52 of the High Court Rules, 2021
• Whether there was valid acceptance of the appellant's offer by the respondent, thereby creating a binding contract
• Whether section 152 of the Urban Councils Act was complied with in relation to the purported sale of municipal land
• Whether a point of law (non-compliance with section 152) could be raised for the first time on appeal

The appeal was dismissed with costs. The judgment of the High Court dismissing the appellant's claim for specific performance was upheld.

The binding legal principles established are: (1) Rule 52(9) of the High Court Rules gives the court discretion to direct the hearing of additional evidence in special case proceedings where necessary for final disposal of the matter, and where parties consent to such procedure without objection, the court acts within its powers in receiving such evidence. (2) Section 152 of the Urban Councils Act imposes mandatory procedural requirements on municipal councils before they may lawfully dispose of municipal land, including publication of notices and submission of notice to the Minister. (3) Non-compliance with the mandatory provisions of section 152 of the Urban Councils Act renders any purported agreement for the sale of municipal land null and void. (4) Municipal authorities are creatures of statute and cannot dispose of land like private individuals; they are strictly regulated by their enabling legislation. (5) A point of law that goes to the root of the matter and involves public policy may be raised at any stage of proceedings, even for the first time on appeal, provided it causes no unfairness to the party against whom it is raised. (6) Courts will not enforce illegal contracts under the principle ex turpi causa non oritur actio.

The Court made obiter observations regarding the nature of stated cases under Rule 52, reiterating the principles from Kunonga v The Church of The Province of Central Africa SC 25/17 that a stated case is brought on agreed facts with adversarial positions on legal ramifications, and parties cannot contradict the agreed factual position. However, the Court distinguished the present case on the basis that the parties had expressly agreed to supplementary evidence and Rule 52(9) provided the legal basis for this. The Court also commented on the conduct of the court a quo, noting the appellant's submission that the lower court's conduct showed bias, but did not make a definitive finding on this allegation as the appeal could be disposed of on other grounds. The Court noted that even assuming a valid offer and acceptance existed, the transaction would still fail for non-compliance with section 152.

This case is significant in Zimbabwean law (note: this is a Zimbabwean case, not South African) for several reasons: (1) it clarifies the scope and flexibility of Rule 52 special case proceedings, confirming that courts retain discretion under Rule 52(9) to direct the hearing of additional evidence where necessary for final disposal of a matter; (2) it reinforces the principle that municipal authorities are creatures of statute and must strictly comply with enabling legislation when disposing of municipal land; (3) it confirms that non-compliance with mandatory statutory procedures (such as section 152 of the Urban Councils Act) renders purported contracts for the sale of municipal land null and void; (4) it reaffirms that points of law can be raised at any stage of proceedings, including for the first time on appeal, particularly where they go to the root of the matter and involve public policy considerations; and (5) it applies the maxim ex turpi causa non oritur actio, confirming that courts will not enforce illegal contracts contrary to law or public policy.