The appeal,
filed following a July 2024 judgment by Justice Emilia Muchawa, has temporarily
halted evictions from the property, which spans parts of Msasa Park and
Chadcombe, according to court papers seen by the Zimbabwe Independent.
In judgment HH
286-24, dated July 10, 2024, Justice Muchawa ruled that the settlers had no
legal basis to claim ownership of Stand 560 Chadcombe Township, held by Msasa
Park (Pvt) Ltd.
“The defendants
filed an application for condonation for late filing of an appeal and extension
of time within which to file an appeal in the Supreme Court after the evictions
started,” the law firm representing Msasa Park (Pvt) Ltd said this week.
“They also
filed an Urgent Chamber Application for stay of the evictions in the High
Court. The application for condonation was set down and granted ahead of the
High Court application.
“This means the
defendants now have an opportunity to file a fresh appeal...which should be
done by Wednesday the 12th of November.
“This fresh
appeal means evictions are now suspended until the hearing of the new appeal.
In the meantime, the urgent chamber application filed in the High Court is now
academic since condonation has now been granted,” it added.
Represented by
lawyer Talent Madzvamuse, the residents argued that Msasa Park (Pvt) Ltd had
donated the land in 2012 to Zanu PF’s Mukuvisi Tashinga District through one
Charles Mike, who they claimed was a director of the company at the time.
They sought a
declaratory order recognising their ownership and compelling Msasa Park to
transfer the stands to them “at subdivision and transfer cost only”.
Msasa Park,
represented by Bruce Tokwe Commercial Law Chambers, denied the donation claim,
saying it had only offered one stand to Zanu PF Harare Province for use as a
party office.
The company
described Mike as a former employee, not a director, according to court
records.
Justice Muchawa
found that the applicants lacked locus standi as their claim was based on an
alleged donation to a Zanu PF district that was not a party to the
proceedings.
She said the
residents had failed to prove any personal ownership rights or direct legal
interest in the land.
“It is my
considered view that the applicants (residents) have no direct and substantial
interest to launch this application which they are basing on a donation to a
party which is not before the court,” the judge ruled.
“In the face of
the eviction orders granted in favour of the respondent in 2013, the applicants
are in illegal occupation of the respondent’s (Msasa Park) land.
“They clearly
do not have a direct and substantial interest in this matter,” she added.
The judgment
also recorded Msasa Park’s assertion that while it had indeed offered a single
undeveloped stand to Zanu PF, this was “merely meant for the construction of a
district office” and never intended for residential settlement.
The company
told the court it had refrained from enforcing eviction orders “on humanitarian
grounds” and instead sought to regularise occupation retrospectively in 2019 by
applying for a subdivision permit, which was later granted.
“The fact that
the applicants refer to the regularisation process as ‘disturbing developments’
is seen to show they are ingrates who do not appreciate how the respondent has
saved them from eviction,” it said in its papers.
That particular
application was later withdrawn after Zanu PF Harare Province distanced itself
from the proceedings.
Justice Muchawa
further held that the residents’ claim had prescribed, as it arose from events
dating back to 2012 and should have been filed within three years under the
Prescription Act. Even declaratory actions, she said, are subject to
prescription.
She also noted
the case was fraught with “material disputes of fact”, including whether Msasa
Park existed at the time of the alleged donation, whether Mike was indeed a
director, and whether the 854 applicants could identify specific stands,
disputes that could not be resolved on paper.
The judge
dismissed the application rather than referring it to trial.
Msasa Park
obtained eviction orders against some housing co-operatives as far back as 2013
but delayed enforcement, citing humanitarian reasons.
In December
2023, the company secured Subdivision Permit No. SD/ER/117/2023, later amended
in 2024, to enable formal allocation of stands.
It said it had
agreed with stakeholders, including Zanu PF Harare Province, to sell the land
at a subsidised rate of US$15 per square metre, compared to the market range of
US$45 to US$60.
Eviction
efforts two weeks ago were suspended after the settlers filed an urgent chamber
application and sought condonation to file a late Supreme Court appeal.
Zimbabwe Independent
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