Nebart Gombera and Others v Mazowe Rural District Council and Another

In early 2021, the first respondent (Mazowe Rural District Council) commenced subdividing land housing Rossa Clinic, which land was earmarked for the expansion of the clinic. The community, through the applicants as their representatives, sent a delegation to the Council's Chief Executive Officer to enquire why the land meant for clinic expansion was being subdivided. The CEO referred them from one officer to another. On legal advice, the applicants wrote to the first respondent seeking to be furnished with the site plan, master plan and related documents. When these were not provided, the applicants brought an application seeking leave to bring a class action combined with an application to compel the respondents to furnish the requested information pursuant to the right of access to information, brought in terms of Rule 89 of the High Court Rules, 1971.

• Whether an application for leave to institute class action proceedings can be combined with an application for a mandamus (hybrid application)
• Whether the application was bad at law due to procedural defects
• Whether there was fatal misjoinder of the Department of Physical Planning
• Whether the applicants failed to exhaust domestic remedies
• Whether the court had jurisdiction

The application was dismissed with costs.

An application for leave to institute class action proceedings under section 3 of the Class Actions Act [Chapter 8:17] cannot be combined with an application for substantive relief (such as a mandamus). The proper procedure requires that leave to institute class action proceedings must first be obtained, and only thereafter, upon compliance with section 5 of the Act (appointment of representative), can the main suit be instituted. A hybrid application combining the application for leave with substantive relief is fatally defective and bad at law.

The court noted that the applicants had argued that the hybrid application falls within the judicial discretion of the court and that it would be convenient to deal with the combined application to afford the right of access to information which the first respondent had refused to avail. However, the court did not engage with this argument, finding the procedural defect to be fatal. The court also noted that three other points in limine had been raised (fatal misjoinder of the Department of Physical Planning, failure to exhaust domestic remedies, and lack of jurisdiction) but declined to address these or the merits, having found the application defective on the first preliminary point.

This case establishes important procedural requirements for class actions in Zimbabwe. It clarifies that applications for leave to institute class action proceedings under the Class Actions Act must follow a sequential process and cannot be combined with substantive relief in a hybrid application. The case emphasizes strict compliance with the statutory framework for class actions, requiring applicants to first obtain leave under section 3, then comply with section 5 regarding appointment of a representative, before proceeding with the substantive litigation. This has implications for access to justice through class actions and the proper procedure for enforcing rights to access to information.