Morgan Havire v Arosume Property Development

The applicant applied for a residential stand through Sally Mugabe Housing Co-operative on 27 March 2007. On 8 December 2007, Sally allocated Stand number 254 of Carrick Creagh Township, Harare to the applicant, subject to conditions precedent. According to the memorandum of agreement (Annexure A) signed on 7 April 2006, the applicant applied for and was to be allocated a 4000 m² stand. The applicant commenced occupation and construction of a boundary wall on the stand. The respondent, a professional developer contracted by the Ministry of Local Government and Sally to develop Carrick Creagh Farm, allegedly disrupted the applicant's work in October 2020 and again on 29-30 November 2020, when it moved the stand's beacon further into the stand, allegedly encroaching onto it. The applicant sought an interdict and declaratur, claiming the stand measured 9175 m² and attaching a survey of Stand number 3 (not Stand number 254) measuring 9175 m² to support this claim. The applicant admitted to commencing construction subject to later regularization and without complying with conditions precedent.

• Whether the applicant had a prima facie right to the stand measuring 9175 m² as claimed
• Whether the applicant had complied with conditions precedent for construction
• Whether the applicant's occupation and construction were lawful
• Whether the applicant could rely on a survey of Stand number 3 to support claims regarding Stand number 254
• Whether an interdict could be granted to protect allegedly unlawful activity
• Whether there was a material dispute of fact that could not be resolved on the papers

The application was dismissed with costs on 7 December 2020 (ex tempore judgment delivered). Written reasons provided on 19 March 2021.

An interdict or declaratur cannot be granted where: (1) the applicant has not acted lawfully or is seeking to protect unlawful activity; (2) the applicant fails to prove a direct and substantial interest in the property claimed; (3) there are material inconsistencies between the applicant's contractual entitlements and the relief sought; and (4) the applicant has failed to comply with conditions precedent to their rights. An applicant cannot succeed in claiming rights to property (Stand number 3) that was never allocated to them while ignoring the actual property allocated (Stand number 254) and the contractual terms governing its size (4000 m²).

The court observed that the certificate of urgency prepared by Sandra Dizwani took a 'mechanical approach' and failed to properly inquire into the lawfulness of the applicant's occupation and construction, and the discrepancy between Stand numbers 3 and 254. The court noted this approach worked against the applicant's case. The court also observed that the applicant was 'not a serious litigant' given the circumstances of his unlawful conduct and request for the court to sanction it. The court commented that the application 'suffered fundamental flaws which could not be cured by evidence' and that it 'failed to make any head or tail of what he was driving home to.'

This case reinforces important principles in Zimbabwean property law and civil procedure: (1) courts will not grant interdicts to protect unlawful activities; (2) applicants for declaraturs and interdicts must demonstrate lawful conduct and compliance with contractual conditions precedent; (3) applicants must prove their case on a balance of probabilities with clear, consistent evidence; (4) fundamental discrepancies between contractual entitlements and claimed rights will be fatal to applications; and (5) certificates of urgency must properly inquire into the lawfulness of the applicant's conduct. The case demonstrates the court's unwillingness to sanction attempts to unlawfully expand property entitlements beyond contractual allocations.