Tiniel Albert Mafirakureva Tapfuma v City of Harare

The applicant was issued a permit by the City of Harare on 6 February 2014 to operate a hotel on lot 103 of Greendale (103 Cecil Road/Valley Road, Greendale) in terms of s 26(3) of the Regional, Town and Country Planning Act [Chapter 29:12]. The respondent later cancelled the permit on 6 December 2017 on the basis that the applicant had violated the conditions of the permit. The grounds cited for cancellation included: (a) the venue had degenerated into a public nuisance in the form of noise as manifested by repeated public complaints; (b) the use of loud speakers, microphones, radios/disco equipment interfering with the rest, peace and tranquillity of the neighbourhood; and (c) the property being used for functions venue as opposed to the hotel use provided by the permit. Prior to cancellation, the respondent had sent a warning letter dated 24 March 2017 regarding unauthorized use of freight containers and noise complaints, but did not indicate the permit would be cancelled or invite representations on that issue. The applicant was only notified of the cancellation on 21 March 2018.

• Whether the applicant should have appealed to the Administrative Court instead of seeking review in the High Court
• Whether the respondent had legal power to revoke/cancel a permit under the Regional, Town and Country Planning Act
• Whether the respondent violated the principles of natural justice by failing to give the applicant notice and an opportunity to be heard before cancelling the permit
• Whether the respondent complied with s 3 of the Administrative Justice Act regarding procedural fairness

The application to set aside the purported cancellation of the applicant's permit was granted. The court set aside the respondent's decision to cancel the permit dated 6 December 2017.

The binding legal principles established are: (1) An administrative authority must have express statutory power to revoke or cancel a permit - the power to issue a permit does not implicitly include the power to cancel it; (2) Before taking administrative action that affects a person's rights, interests or legitimate expectations, the administrative authority must give adequate notice of the nature and purpose of the proposed action and a reasonable opportunity to make representations, in accordance with principles of natural justice and the Administrative Justice Act; (3) A warning letter about compliance with permit conditions does not constitute adequate notice of intended cancellation of the permit itself; (4) Failure to comply with the audi alteram partem principle (right to be heard) constitutes a gross procedural irregularity that renders the administrative decision a nullity; (5) An administrative authority cannot rely on reasons for a decision in litigation that were not communicated to the affected party in the decision itself.

The court observed that even if the Regional, Town and Country Planning Act were interpreted as granting power to cancel permits, the respondent could only depart from the requirements of notice and hearing in exceptional circumstances as provided in s 3(3) of the Administrative Justice Act, such as where the enabling statute expressly provides otherwise, or where the departure is reasonable and justifiable considering factors like urgency, public interest, and efficient administration. The respondent proffered no such justification. The court also noted that s 26(12) of the Regional, Town and Country Planning Act provides a mechanism for amending permits (with the holder's agreement and where the amendment is minor), suggesting this is the appropriate statutory avenue for modifying permit conditions rather than outright cancellation.

This case is significant in Zimbabwean administrative law (though this is a Zimbabwean case, the principles mirror South African administrative law) as it reinforces the fundamental requirements of procedural fairness and natural justice in administrative decision-making. It establishes that administrative authorities must strictly comply with statutory requirements for notice and hearing before taking actions that affect rights, even when those rights derive from permits or licenses. The case demonstrates that warning letters about compliance issues do not constitute adequate notice of intended cancellation of permits. It also emphasizes that administrative authorities cannot rely on post-hoc justifications for decisions that were not communicated to affected parties at the time. The judgment underscores the principle that failure to afford audi alteram partem renders administrative decisions null and void, and that courts will carefully scrutinize whether administrative bodies have acted within their statutory powers.