By Judith Nyuke
The Supreme Court of Zimbabwe has dismissed the City of Harare’s appeal, while upholding a High Court ruling that criticized the City Council for its “irrational, unfair, biased and unlawful” resolution.
The High Court application for review arose from a dispute over a piece of land in Kuwadzana Extension that was subdivided into residential stands. This land was identified by BK Housing Cooperative Society Limited in 2017, after which it applied to the City of Harare.
The cooperative’s members were subsequently advised to pay the intrinsic value of the land, followed by administrative fees.
In 2019 City of Harare (CoH) instructed A. Derembwe Land Surveyors to survey the piece of land for title registration purposes, for which the costs in the sum of US$30,420.00 was borne by the members of Bk housing Cooperative Society Limited.
CoH, however, later resolved that the land in question should be allocated to a cooperative by the name Hebert Chitepo Housing Cooperative Society, whose members had invaded and illegally taken occupation of the stands in question.
On 29 August 2024, the CoH made a resolution to look for alternative land to accommodate members of BK Housing Cooperative Limited.
At the same time, it reserved the land for the members of Herbert Chitepo Cooperative Society, even though the latter were illegal occupants and did not have any papers to prove they were lawful, unlike the members of BK Housing Cooperative Society Limited.
The resolution by the City of Harare was challenged by Muvhami Attorneys, on behalf of BK Housing Cooperative Society, through a High Court application for review.
The application argued that the decision was irrational, unfair, and motivated by malice and bias. The firm sought an order to set aside the CoH’s decision and have the land allocated to BK Housing Cooperative Society Limited.
CoH and Herbert Chitepo Housing Cooperative opposed the application. CoH in particular contended that there was no gross irregularity in its decision, which it argued had been fairly reached without malice of any bias at all.
Following a hearing, a judgement was handed down by Justice Regis Dembure on 2 May 2025 in Case Number HCH 4573/24 who ruled “that it was grossly unreasonable and irrational for the CoH to make the resolution it did.”
The court further stated that the decision of the CoH was so outrageous in its defiance of logic by letting illegal occupiers to remain on the land while BK Housing Cooperative Society members who it had asked to follow due process are made to wait for a non-existent alternative land.
As such the High Court overturned the City of Harare’s decision, calling it unfair. Justice Dembure, further ruled that, allowing Herbert Chitepo members to stay would reward illegal actions and unfairly penalize the law-abiding BK Housing Cooperative, which had followed all proper procedures.
He then ordered the CoH to complete the allocation process for residential stands to members of BK Housing Cooperative and has further ruled that the CoH shall bear the costs of the application.
On 22 May 2025, the CoH appealed Justice Dembure’s judgment to the Supreme Court of Appeal arguing that it had exercised its discretion reasonably under the circumstances.
CoH petitioned the Supreme Court to uphold their appeal with costs, “that the whole judgment of the court a quo be set aside and substituted with the with an order that BK Housing Cooperative Society Limited’s application for review in the High Court be dismissed with costs on an ordinary scale,” read part of the appeal.
A full bench of the Supreme Court comprising of Honorable Justice Mathonsi, Honorable Justice Chiweshe and Honorable Justice Chitakunye, in a unanimous judgment dismissed the appeal as lacking merit.
The court held that to allow the CoH’s resolution to stand would be to sanction an illegal act.
As an allocating authority, the CoH is subject to the law in the exercise of that power and is not above the law.
A court can, therefore, interfere with the exercise of such power by an administrative body in appropriate cases.
