Rushesha v Magaya and Another (380 of 2023) [2022] ZWHHC 2026 (8 July 2022)

HH 380-23 HC 6580/19 CLEOPAS G RUSHESHA versus MHONDIWA MAGAYA and CITY OF HARARE HIGH COURT OF ZIMBABWE MUSITHU J HARARE, 22 & 23 June, 5, 6 & 8 July 2022 & 23 June 2023 Civil trial E Mangezi, for the plaintiff E Chatambudza, for the 1st defendant N B Nyati, for the 2nd defendant MUSITHU J: This matter involves the double allocation of a piece of land owned by the second defendant to both the plaintiff and the first defendant. The dispute spilled over to this court with the plaintiff instituting proceedings seeking the following relief: “(a) An order declaring Plaintiff to be the rightful and lawful allottee of Stand Number 2627 Crowborough North Phase 4 Pay Scheme Harare and that 1 st Defendant’s occupation of the mentioned property is unlawful. (b) Costs of suit against 1st Defendant only.” Both defendants pleaded to the plaintiff’s claim. Background to the plaintiff’s claim The plaintiff is a member of the Harare Municipal Workers Union (hereinafter referred to as the HMWU or the Union). The union is a trade union which represents the interests of employees of the second defendant. Its membership is therefore exclusive to employees of the second defendant. From around the late 90s, the Union lobbied the second defendant for residential stands to cater for its members. As a result of that request, the second defendant set aside residential stands at Crowborough North Phase 4, Harare for allocation to the membership of the Union. The project was administered by the HMWU’s Crowborough Housing Pay Scheme (the Housing Pay Scheme), a Committee tasked with overseeing the day to day management of the scheme.

HH 380-23 HC 6580/19 On 22 September 2006, the plaintiff was allocated stand 2627 Crowborough North Phase 4 Pay Scheme, Harare (hereinafter referred to as the property) by the second defendant through the Housing Pay Scheme. The plaintiff claims that the stands were exclusively for employees of the second defendant and were not for sale. The plaintiff was shown the pegs and beacons demarcating the property on 22 September 2006. Unbeknown to the plaintiff, the first defendant occupied the property and started building a structure on the property without his consent. The plaintiff confronted the first defendant who claimed to have purchased the same property from the second defendant. The parties failed to resolve the dispute amicably. The plaintiff claims that the second defendant recognises him as the lawful beneficiary of the property. He further claims that he paid the intrinsic value of the property and water bills from the second defendant bear his name. The plaintiff further contends that the first defendant was never an employee of the second defendant, and as such could not have been allocated the same property. In short, that was the basis of the plaintiff’s claim herein. The first defendant’s plea The first defendant averred that the property was lawfully allocated to him, and he took effective occupation in 2011. There were certain payments that the original beneficiaries in the Union were required to pay. They defaulted on those payments resulting in the stands being sold to members of the public. The plaintiff was one such defaulter. Advertisements were circulated in the media urging defaulters to comply. When the defaulters failed to comply, the stands were repossessed by the Executive Committee of the Housing Pay Scheme. The repossessed stands were sold to the public, and the first defendant acquired the property in 2011, after paying a sum of US$3, 000.00. He was shown the beacons and the pegs on the property. He had since completed a seven roomed house, and the property was walled and gated. The second defendant’s plea The second defendant averred that it recognised the plaintiff as the rightful allottee of the property. Its records confirmed that position. It further averred that the first defendant did not appear in any of its records and was therefore unknown to the second defendant. Having said that, the second defendant however stated that it was not opposed to the relief sought by the plaintiff and would abide by the court’s ruling. The agreed issue for trial The parties agreed on one issue for trial which was recorded as follows:

HH 380-23 HC 6580/19 ‘Who between the Plaintiff and 1 st Defendant is the lawful allottee to Stand Number 2627 Crowborough North, Phase 4 Harare’ The plaintiff’s case The plaintiff gave evidence first. He joined the second defendant in September 1982. Sometime in 1999, one Cosmos Bungu who was the executive chairperson of the Union proposed that they approach the second defendant for allocation of land for the benefit of employees of the second defendant. This was motivated by the need to secure residential stands for employees of the second defendant so that they had someplace to call a home in their retirement. The plaintiff claims that he was allocated the property on 22 September 2006. The allocations involved officials from the second defendant’s land survey office within the Department of Works. He was issued with what he called the beacon form by the second defendant’s Mufakose District office. In the beacon form the plaintiff confirmed that he had been shown the pegs or beacons demarcating the property. The beacon form was signed by the plaintiff and the Site Surveyor. He was also required to complete a form generated from the Land Survey Office in the second defendant’s Department of Works. The form was completed on 22 September 2006. In that form, the plaintiff acknowledged that he had been shown the pegs demarcating the property. The form was signed by the Chief Land Surveyor. The plaintiff told the court that when the allocations were made, the beneficiaries were moving in groups that were led by a chairperson. His group was led by a chairperson called Chikombingo. On 4 August 2014, Chikombingo wrote to the district officer in the second defendant’s Department of Housing and Community Services, Mufakose, forwarding a list of the beneficiaries of the Housing Pay Scheme. The witness also made reference to a letter dated 15 June 2015 from Bungu referenced ‘To Whom It May Concern’. That letter also confirmed that the plaintiff was a member of the Union who had been allocated the property under the Housing Pay Scheme. The second defendant’s Mufakose District Office also generated a similarly worded letter on 28 September 2017. Having been confirmed as the allottee of the property, the plaintiff claims that he was cleared by the Housing Pay Scheme to pay the intrinsic land value. The Housing Pay Scheme confirmed this position by way of a letter of 4 August 2016 addressed to the Mufakose District office. The plaintiff stated that the intrinsic land value was US$920.00. He produced

HH 380-23 HC 6580/19 a receipt confirming payment of an amount of US$720.00 on 14 October 2016. He claimed to have misplaced the receipt for the balance of US$200.00. Having made these payments, the plaintiff claims that in 2019, he was invited to the Mufakose District Office to sign an agreement of sale for the property. The plaintiff averred that the intended beneficiaries of the Housing Pay Scheme were employees of the second defendant. The stands were never intended for sale, and for that reason it was false for the first defendant to claim that the property was sold to him. The defendant denies that he defaulted in making any payment. He averred that the advertisement allegedly placed in the media by the second defendant and the Union calling upon defaulters to update their payments within 14 days, was meant to encourage them to contribute towards the servicing of the stands as the contractors needed payment for their services. He insisted that his payments were up to date. The plaintiff dismissed the beacon form allegedly issued to the first defendant on the basis that it was forged. The witness also dismissed copies of receipts that were submitted by the first defendant’s bundle to confirm that he made monthly payments to the Housing Pay Scheme towards the purchase of the property. He insisted that the stands were not meant for sale. In any case, those receipts did not reflect what the payments were for. The plaintiff stated that there was a time that the first defendant approached him and requested that they discuss about the expenses he had incurred in developing the property. The first defendant produced a sheet of paper showing that he had spent about US$4,000.00 on developments. He decided to take the litigation route since he felt that he could not compensate the first defendant for expenses incurred in developing a property that was not his. In any case he had asked the first defendant to leave the property, when he discovered his unlawful occupancy in 2012. He had asked the first defendant’s workers why they were building on his property, and they had told him that it belonged to the first defendant. He had instructed them to stop further developments, but they refused and gave him a mobile number for the first defendant’s wife. When he spoke to her she was uncooperative leaving him with no choice but to approach the courts. The plaintiff admitted under cross examination that the first defendant was in occupation of the property and had since put up structures. He admitted that he had never taken occupation of the property ever since it was allocated to him in 2006. The witness also admitted under cross examination that beneficiaries were required to pay monthly subscriptions towards the stands. The subscriptions were deducted directly from their

HH 380-23 HC 6580/19 salaries. His payslips were however not tendered in court as exhibits to confirm the monthly deductions. Asked to explain why his name appeared on the list of defaulters which had been published by the second defendant in the media if his payments were up to date, the witness stated that the notice was meant urge beneficiaries to pay funds for services and not to purchase stands. The witness admitted though that the stands could be repossessed and reallocated in the event that payments were not updated as directed in the notice. He insisted that he made the necessary payment within the 14 days as directed by the notice. The witness told the court that payments were being made via the bank. The servicing of the stands had started in 2012, and there was a committee which oversaw that process. He had however misplaced the receipts confirming that payment. He denied that the property was ever repossessed from him. Despite being allocated the stand in 2006, the plaintiff only discovered in 2012 that the property had been occupied by the first defendant. He admitted that he only issued summons in 2019, despite having made the discovery some seven years back, and some 13 years after the property was allocated to him. He had however approached the civil court in 2015. He could not explain why he did nothing to assert his rights between 2012 and 2015. He claimed to have approached the Union when he found the first defendant’s workers on the property. It was at that stage that he was given the letter of 15 June 2015 by Bungu. He explained the delay in taking action after having discovered the occupation of the property by the first defendant, by alleging that during that time he had also approached the Committee to look into the issue. At the time he made the discovery in 2012, the first defendant was in the process of building a cottage. The defendant then moved into the cottage between 2013 and 2014. The witness stated under cross examination that the confirmation letter was only issued to him after he complained that someone had occupied his property. At the time that the confirmation letter was issued, the first defendant had already started construction on the property. Further, at the time that the plaintiff paid for the intrinsic land value and signed the agreement of sale with second defendant, the first defendant was already in occupation. The plaintiff admitted that the agreement of sale that he signed with the second defendant misrepresented the correct position on the ground to the extent that it referred to the property as undeveloped, yet there was already a dwelling house. Further at the time of the signing of the agreement of sale, the plaintiff had already instituted proceedings at the

HH 380-23 HC 6580/19 Magistrates Court against the first defendant. That court did not settle the dispute, but urged the parties to approach the second defendant for resolution of their dispute, failing which they had to approach the High Court which had jurisdiction over the matter. At that stage, the plaintiff was only in possession of the beacon form and the acknowledgment form issued by the Chief Land Surveyor. At the time the property was allocated to the plaintiff, the late Cosmos Bungu was the chairperson of the Committee. Under cross examination, the witness could not deny that Peter Gosha who came in as the vice chairperson after the Bungu Committee left office, was the one who oversaw the repossession and reallocation of stands. The first defendant was allegedly allocated the same property by the Gosha led Committee. The plaintiff also admitted that while the land belonged to the second defendant, the administration of the land and the allocation of stands was delegated to a committee of the Union. It was the committee in office at the material time that also allocated the property to the plaintiff. Both the plaintiff and the first defendant acquired their rights through committees that were in the office at the material time. Under re-examination, the plaintiff however averred that the committee had no mandate to allocate stands. Its mandate was limited to overseeing the servicing of the land. The plaintiff also alleged under re-examination that although he was aware that the property now had structures at the time that he signed the agreement of sale, the second defendant had informed him that the structures were illegal. The second defendant therefore still considered the property to be an undeveloped residential stand. The evidence of Thomas Magwaza The plaintiff’s first witness was Thomas Magwaza. He is employed by the second defendant in the Water Department as an operator. His evidence corroborated that of the plaintiff to the extent to which he explained the circumstances under which the plaintiff acquired the property. That part of the evidence shall therefore not be restated herein. The witness told the court that in 2006, he was assigned to work with staff from the Department of Housing and Community services and the Surveyor General’s office which is under the Department of Works. He represented employees of the second defendant in the allocation of stands by the second defendant through the Union. The beneficiaries were identified from a list that was prepared by the Union. The witness was responsible for calling out names of the beneficiaries, and once a person’s name was called, they would proceed to

HH 380-23 HC 6580/19 the allocation officer and the surveyor general would issue a beacon form and a receipt. Thereafter, the beneficiary would be shown their stand. The witness confirmed that he called out the name of the plaintiff and he was shown his stand after all the processes were followed. The beneficiaries were employees of the second defendant who were members of the Union. The witness denied that the first defendant was allocated the stand by the second defendant through the Union. Under cross examination, the witness stated that he was no longer involved in the allocation of stands after September 2006 when the plaintiff was allocated his stand. The witness denied that the second defendant repossessed any stands from beneficiaries who failed to update their payments. When he was shown the list of defaulters who included the plaintiff that was flighted in the media by the Union, the witness conceded that stands could be repossessed but reallocated only to members of the Union. Asked if he was aware that they were non-employees of the second defendant who also benefitted from the reallocations, the witness stated that he heard about it later, but that was never the original plan. The evidence of Oguard Muchemedzi He is employed by the Union as an administrator. He told the court that the Union lobbied for stands from the second defendant in 1999. In 2005, the Union was allocated land to parcel out to its members who were employees of the second defendant. His role was to identify and provide a list of the employees of the second defendant who were affiliated to the Union and eligible for allocation of stands. The allocation was done by the second defendant. He confirmed that the plaintiff was allocated the property in dispute. He also confirmed that the first defendant was not an employee of the second defendant or a member of the Union. He was thus not eligible for allocation of a stand. The witness denied that the first defendant was allocated the stand by a committee insisting that the allocating authority remained the second defendant. The role of the committees was to monitor the development of the land. The witness further stated that the payment of subscriptions was done through a CBZ account. The executive chairperson of the Union had the controlling signature. The witness denied that cash payments were made at the Housing Pay Scheme site. Anything of that sort would be illegal. The witness further stated that the Union never received any cash payments. He denied that committees had the mandate to repossess or reallocate stands.