1.
GARWE
JA:
This is an appeal against a decision of the Administrative Court of
Zimbabwe handed down on 8 March 2019 upholding two consolidated
appeals by the first to the fourth respondents challenging the
issuance of an environmental impact assessment certificate by the
sixth respondent and a development permit issued consequent thereto
by the City of Harare. The City of Harare, the fifth respondent
herein, has also filed a cross-appeal against the same judgment of
the Administrative Court. The gravamen of the grievance before the
court a
quo
was
that the issuance of the environmental impact assessment certificate
and development permit violated various procedural requisites as well
as environmental law.
2.
After due consideration of all the papers filed of record and
submissions made by counsel on behalf of the parties, I am not
persuaded that, save for the decision of the court a
quo
to
relate to the merits of the dispute inter
se,
the
court a
quo
was
wrong in upholding the appeal.
In
the circumstances, subject to that rider, both appeals stand to be
dismissed with costs.
FACTUAL
BACKGROUND
3.
The first appellant, Sharadkumar Patel is a director of Meadows (Pvt)
Ltd, a company incorporated in accordance with the laws of this
country. It was to him that the development permit for the Meadows of
Monavale was granted. The company, Meadows (Pvt) Ltd, owns a piece of
property called The Meadows of Monavale Extension of Mabelreign. It
was in respect of that piece of land that the development permit was
granted by the City of Harare.
4.
The first respondent, The Cosmo Trust, is a duly registered trust
whose powers and objectives include the protection of the environment
and natural resources of Monavale in the general interest of its
residents. The second to the fourth respondents occupy separate
pieces of land along Fennela Drive that are contiguous to the Meadows
of Monavale.
5.
The fifth respondent, the City of Harare, is a local authority which
issued the development permit for the construction of residential
units on the Meadows of Monavale. The sixth respondent, the
Environmental Management Agency, is a statutory body established in
terms of the Environmental Management Act [Chapter 20:27]. The
seventh respondent is the Minister of Environment, Tourism and
Hospitality Industry (“the Minister”), under whose aegis the
sixth respondent falls.
6.
It was also the Minister who dismissed the first to the fourth
respondents appeal against the issuance of an environmental impact
assessment certificate issued by the sixth respondent, which decision
is partly the subject of the present appeal.
7.
The piece of land that lies at the centre of the dispute between the
parties, namely, the Meadows of Monavale Extension of Mabelreign, was
transferred into the second appellant's name in June 1987. It is
16,2885 hectares in extent and borders Fennella Drive and Monavale
Road in Monavale. The property has remained largely undeveloped over
the years although the record shows that the first appellant has a
residence on a portion of that property. It is part of a much bigger
piece of land known as the Meadows of Monavale which is five hundred
and seven (507) hectares in extent and is a wetland known as the
Monavale Wetland.
8.
That wetland forms the headwaters of the Marimba River and its
tributary the Avondale stream and is part of a network of wetlands
within the City of Harare, providing a wide diversity of beneficial
ecosystems to the city. It is an important component of Harare's
water system, through water accumulation from direct rainfall, runoff
and groundwater influx; flood flow attenuation and slow release of
water to base flow in streams; groundwater recharge; protection
against flooding and the impact of storms; trapping excess sediment
from runoff reducing siltation of dams; and improvement of water
quality for household supply through filtration.
9.
Following a proposal by the first respondent and an organisation
called Birdlife Zimbabwe, surveys were carried out resulting in the
appellants obtaining authority from the Surveyor-General for the
Meadows of Monavale Extension of Mabelreign to be subdivided into two
plots, the first being a 9,35 hectare plot on the northern side of
the property which was to be known as Stand 201 and which was to be
sold to Birdlife Zimbabwe and the remainder, a six hectare plot, to
be retained by the appellants. The subdivision permit subsequently
lapsed and the subdivision was never effectuated.
10.
Zimbabwe acceded to the Convention on Wetlands of International
Importance Especially as Waterfowl Habitat known as the Ramsar
Convention on 3 January 2013. Upon accession, the country nominated
seven sites, including Monavale Wetland, to be included in country's
Ramsar list of Wetlands of International Importance. The other sites
were Cleveland Dam, Chinhoyi Caves, Driefontein Grasslands, Victoria
Falls National Park, Mana Pools and Lake Chivero.
11.
In 2014, the appellants submitted an application for an environmental
impact assessment certificate for a housing development on the land.
On 9 July 2014 the Director-General of the Environmental Management
Agency dismissed the application on the basis that the land was not
suitable for such a development as it was situated in an ecologically
sensitive area and ecosystem in need of protection under the Ramsar
Convention. The appellants were advised to adopt an alternative land
use that would ensure that the area was maintained and protected.
That decision was not thereafter challenged.
12.
In 2015, the appellants submitted an application for a development
permit with the City of Harare (“The City Council”). Despite
objections, a development permit was issued. The first respondent
lodged an appeal against the development permit in the Administrative
Court. The permit was set aside in November 2016 on the basis that
the appellants had not, before applying for the permit, secured an
environmental impact assessment certificate.
13.
That judgment remains extant although there was an attempt to appeal
against it, which was abandoned. Pursuant to the decision of the
Administrative Court, the appellants submitted another application
for an environmental impact assessment certificate to the
Environmental Management Agency. The application was made in respect
of Stand 201, Monavale. No stakeholder consultation was conducted
with interested parties, notwithstanding the peremptory provisions of
section 136 of the Environmental Management Act [Chapter 20:27] (“The
EMA”).
14.
An environmental impact assessment certificate was then issued by the
agency on 10 November 2017. The certificate stated that it had been
granted in respect of a housing development on Stand 201 Monavale
(6804), subject to eight conditions highlighted in an annexure to
that certificate.
15.
Armed with the environment impact assessment certificate, the
appellants wrote to the City Council requesting the Council to
re-issue the development permit previously granted in November 2015.
The request was treated by Council as a new application for a
development permit.
16.
The first respondent then appealed to the Minister against the
decision by the agency to issue the certificate. In the appeal, the
first respondent raised a number of complaints; that there was no
Stand known as 201 Monavale and that interested persons had not been
given the opportunity to make representations in the matter; that the
developer had failed to carry out wide consultations with
stakeholders before approaching the agency; that notwithstanding its
clear interest in the matter, it had not been notified of the
issuance of the certificate; that the decision to grant the
certificate violated its environmental rights and those of its
members and that the decision breached the country's international
obligations under the Ramsar Convention. Further, that the
certificate had not been issued by the agency's Director-General.
17.
In a response penned by the Ministry's Permanent Secretary, the
appeal was dismissed on various bases. That whilst the agency was not
in a position to confirm whether or not Stand 201 existed, the
Director-General of the Environmental Management Agency could
properly delegate the authority to issue the certificate to a junior;
that the documents submitted reflected that there had been public
consultation on the part of the developer and that reservations had
been taken into account.
18.
Whilst accepting that the agency may have erred in failing to notify
interested persons of the issuance
of the certificate,
he stated that no injustice had been occasioned by such failure; that
whilst the objectors had rights, the appellants also had rights to
their property, subject only to the need for any development on the
property to take into account the need for the wise use of the land.
Unhappy with that decision, the first respondent noted an appeal to
the Administrative Court in June 2018.
19.
In the meantime, the appellants had submitted an application for a
development permit
with the City Council in May 2018. On receipt of notification of the
application, the first to fourth respondents individually and
separately filed letters of objection. The Council's Director of
Works then advised the appellants of these objections. The appellants
responded to those objections and attached supporting documentation,
including an environmental impact assessment report prepared at their
instance in respect of Stand 201.
20.
The Director of Works did not cause the response to be forwarded to
the respondents. Instead he compiled a report recommending that the
City Council's Environmental Management Committee, a sub-committee
of Council, issue a development permit as requested. The land on
which the one hundred and twenty one cluster houses were to be
developed was reflected as “Meadows of Monavale Township.” The
Director also suggested a number of conditions, including,
ironically, the need to obtain an environmental impact assessment
certificate which had already been issued by the sixth respondent.
21.
On 23 July 2018 the City Council's Environmental Management
Committee held a meeting to consider a total of fourteen matters
including the building permit application submitted by the
appellants. The meeting commenced at 2:10pm and ended at 2:50pm. It
recommended the granting of a development permit authorising the
appellants to erect one hundred and twenty one cluster houses,
subject to the conditions stipulated in the report compiled by the
Director of Works.
22.
In September 2018, the first to fourth respondents then filed an
appeal with the Administrative Court against
the issuance of the development permit.
By agreement between the parties, the two appeals were consolidated
for purposes of the filing of the heads of argument and hearing.
PROCEEDINGS
BEFORE THE ADMINISTRATIVE COURT
23.
In their grounds of appeal and submissions in respect of the
development permit issued by the City Council, the first to fourth
respondents attacked the decision to issue the permit on a number of
bases:
(i)
First, that the Environmental Management Committee of the Council is
not a local planning authority and, consequently, had no power to
issue a development permit.
(ii)
Second, that no proper application for a development permit had been
filed with the Council.
(iii)
Third, that the permit had been issued in the absence of a valid
environmental impact assessment certificate, since the permit
imposed, as one of the conditions for the grant of the permit, the
need to secure an environmental impact assessment certificate.
(iv)
Fourth, that the proceedings of the committee were tantamount to a
kangaroo court as the committee had not adverted to the merits of the
matter and, in particular, the fact that this was a protected
wetland, before resolving to grant the permit.
(v)
Fifth, that the committee had resolved to grant the permit without
affording the respondents the right to be heard. They submitted that
the development permit had been improperly issued and that it should,
as a consequence, be set aside.
24.
In respect of the environmental impact assessment certificate, the
respondents submitted as follows:
1.
First that there had been no public participation and the audi
alteram partem
rule
had not been observed.
2.
Second, that the certificate was void for vagueness as it did not
identify the project, contrary to section 100(5) of the Environmental
Management Act.
3.
Third, that the certificate had been issued in respect of Stand 201,
which did not exist, rendering the certificate void for vagueness;
and
4.
Fourth, that there had been a failure, on the part of the Minister
and the Environmental Management Agency, to appreciate that
environmental rights take precedence over private rights to land.
25.
In its heads of argument filed in the Administrative Court, the City
Council submitted as follows:
(i)
First, that the mere failure to comply with one or other
administrative provision does not necessarily result in a nullity. It
depends on whether the statute envisages that the failure should
result in a nullity. It also depends on its materiality.
(ii)
Second, that a proper application for a development permit had been
filed.
(iii)
Third, the first to fourth respondents objections had been considered
in the Director of Works report and therefore the audi
alteram partem
principle
had not been violated.
(iv)
Fourth, that the Ramsar Convention had neither been approved by
Parliament nor had it been incorporated into domestic legislation.
Therefore it was not binding on Zimbabwe.
(v)
Fifth, that the social rights claimed by the respondents had to be
reviewed against the appellants competing right to develop a property
that belonged to them.
(vi)
Sixth, that the environmental management committee exercised a power
vested in it by Council itself.
26.
In their heads of argument, dealing with both appeals, the appellants
in this matter submitted as follows:
(a)
The decision made by the environmental management committee of the
City Council was a decision of the Council itself as a local town
planning authority.
(b)
Second, that there was a proper application before the Council which
cannot be impugned on the basis that, having been made by a committee
of Council, it had not been made by Council itself.
(c)
Third, that the committee was not bound to formally hear the first to
the fourth respondents as it was sufficient for written objections to
be considered.
(d)
Fourth, that the decision of the Administrative Court holding that
the environmental impact assessment certificate had to precede the
issuance of a development permit was wrong.
(e)
Fifth, that the Ramsar Convention itself does not prohibit
development on a wetland but instead encourages the wise-use of such
land.
THE
DETERMINATION OF THE ADMINISTRATIVE COURT
27.
In its determination, the court a
quo
found
as common cause that the property belonging to the appellants is part
of a wetland and that the piece of land on which the appellants
intended to erect one hundred and twenty-one cluster homes was virgin
and undeveloped. It found that the development was intended to take
place on the unregistered Stand 201 measuring 9.35 hectares which the
appellants had unsuccessfully attempted to shear off from the main
Meadows of Monavale Extension.
28.
It found, further, that the omission to particularise that portion of
the land on which the development was to take place was a serious
error which should not have been condoned by Council.
29.
The court further found that the failure to attach the signed consent
of NMB Bank, which had a mortgage bond registered over the property,
was a fatal irregularity. In doing so the court took into account the
provisions of section 26 of the Regional, Town Country Planning Act
[Chapter 29:12] (“the RTCP Act”) which provides that an
application for a permit shall be accompanied by the consent in
writing of the holder of any real right registered over the property.
The appellants, not having justified why the application had not been
accompanied by the consent in writing of NMB Bank, the court found
that the defect rendered the application invalid.
30.
Further, the court found that the development permit related to the
larger undivided piece of land owned by the appellants. The
environmental impact assessment certificate, to the contrary, related
to the unregistered Stand 201 measuring 9.35 hectares.
31.
It therefore found that the development permit, which related to the
entire 16,2885 hectares, could not be predicated on an environmental
impact assessment certificate issued in respect of 9.35 hectares of
land. Moreover, the development permit made it clear that it had been
issued to enable the erection of one hundred and twenty-one cluster
houses.
32.
The environmental impact assessment certificate, on the other hand,
stated that it had been granted to the appellants to enable a housing
development to take place on Stand 201 Monavale. The court found that
it was impossible to ascertain the nature of the developments
proposed by those two sets of documents.
33.
As regards the application for a development permit filed by the
appellants on 15 May 2018, the court a
quo
found
that it relied on documentation annexed to an earlier application
submitted in 2015. It concluded that since an application that is not
determined within three months is deemed to have been refused in
terms of section 26(7) of the RTCP Act, those documents could not
have been relied upon in the application submitted on 15 May 2018.
34.
The court accordingly found that the application for the development
permit was defective in that respect and that it should not have been
processed by the City Council. By necessary implication it further
found that the development permit issued pursuant to that application
was also a nullity.
35.
On the objections filed by the first to fourth respondents, the court
noted that although four letters of objection had been forwarded to
the City Council, the Director of Works had referred to only two
objections in his write-up to Council. He did not indicate which two
of the objections had been considered. The court also found that the
City Council had unlawfully shifted the onus of proof to the first to
fourth respondents when it determined that their objections were not
supported by evidence.
36.
As regards the contention that Council had failed to properly address
the implications of granting a development permit on an
internationally-protected wetland, the court determined that, whilst
the appellants have the right to deal with the property in a manner
they may choose, that right was attenuated by section 86 of the
Constitution 2013, which provides that the enjoyment of rights and
freedoms must be exercised reasonably and with due regard to the
rights and freedoms of others.
37.
It found that there was good reason for the view that the core of the
wetland be left wild, untouched and suitable for the diverse range of
migrant birds, including some that are endangered species that come
all the way from countries as far afield as Cameroon, Congo and
Kenya.
38.
The court found that the construction of cluster houses would involve
digging up foundations, clearing land and erection of houses. In
these circumstances, so the court concluded, there was need to rely
on the precautionary principle which is applicable where, due to
unavailable scientific knowledge, there is uncertainty as to the
future impact of the proposed development.
39.
On the environmental impact assessment certificate, the court
reiterated its earlier finding that this had been issued in respect
of Stand 201, which does not exist. The certificate was issued in
respect of the whole property measuring 16,2338 hectares. First to
fourth respondents had not been consulted during the preparation of
the report which preceded the issuance of the certificate.
40.
Consequently the court also upheld the appeal against the grant of
the certificate.
41.
In the result, having upheld both appeals, the court ordered that the
appellants, the City Council and the Minister pay the costs of suit
on the ordinary scale. It is against that order that the two appeals
were noted to this Court by the appellants and the City Council.
GROUNDS
OF APPEAL BEFORE THIS COURT
42.
In their notice of appeal, the appellants relied on a number of
grounds. I reproduce these hereunder:
“1.
The Administrative Court fundamentally erred in failing to find that
the first respondent being a trust did not have legal capacity to
have mounted the appeals that it mounted in the Administrative Court.
2.
The Administrative Court further grossly erred in interfering with
the discretion of the 5th
respondent in condoning the reference to an undivided portion of the
Meadows of Monavale known as Stand 201 of Monavale when such
condonation had been done in the exercise of the administrative
discretion by the 5th
respondent.
3.
The Administrative Court further erred in finding that the
application for a development permit submitted to the 5th
respondent was defective in that it had been accompanied by documents
from a previous application when such attachments did not have the
effect of invalidating the application.
4.
The Administrative Court grossly erred in finding that the appellants
failure to attach to their application for a development permit
submitted to the 5th
respondent the consent of NMB Bank was fatal to such application when
there was no evidence that the said Bank had an interest in the land
and was not argued by the parties.
5.
The Administrative Court further erred in finding that the 5th
respondent had violated the audi alteram partem rule and had
therefore not properly considered the objectives of the 1st
up to 4th
respondents objectives to the development permit.
6.
The Administrative Court further erred in its application of the
concept of restrictive measures in section 86(2)(f) of the
Constitution of Zimbabwe and finding therefore that the appellants
could not carry out the development on the property in issue as part
of the exercise of the right of ownership enshrined in section 71(2)
of the Constitution of Zimbabwe.
43.
7. The Administrative Court further erred in relying upon the
precautionary principle in prohibiting the development proposed on
the piece of land in issue by the appellants.
44.
8. The Administrative Court grossly erred in finding that the
environmental impact assessment certificate issued by the 6th
respondent was void for vagueness when it related to an identifiable
property and the correction of the certificate had been placed before
the Court.”
45.
The City of Harare, as appellant, also attacked the determination of
the court a
quo
on
a number of grounds which I quote verbatim
hereunder:
“1.
The court a quo erred in finding that the application for a
development permit was defective in that it was accompanied by
documents from a previous application when such deficiency, if any,
did not have the effect of invalidating the permit.
2.
The court a quo erred in finding that appellant had violated the audi
alteram partem rule by failing to properly consider the objectives
when there was clear evidence throughout the record of a
consideration of the objections.
3.
The court a quo erred in stopping a development on the bases of
unproven likelihood of harm to the environment.
4.
The Administrative Court erred by failing to arrive at the conclusion
that the permitted development was consistent with the 'wise use'
concept contained in the provisions of the Constitution,
the Environmental Management Act and the Ramsar Convention on the
protection of the environment.
5.
The court a quo erred in allowing immaterial and irrelevant
objections to the permit and the Environmental Impact Assessment
Certificate to guide it. It so erred to appreciate that this was a
town planning matter and one to be dealt with in the wide sense.
6.
At any rate the court a quo erred in failing to consider that any
deviation from the provision of the Regional Town and Country
Planning Act and the Environmental Management Act was not material
enough to warrant nullification of the permit. It so erred in that it
failed to consider the materiality principle.”
APPELLANTS
SUBMISSIONS BEFORE THIS COURT
46.
In their submissions, the appellants submitted as follows. The first
respondent, being a trust, cannot sue or be sued in its name but
rather in the name of the trustees. The appeal instituted by the
trust against the grant of the environmental impact assessment
certificate was therefore invalid. Although the High Court Rules,
1971,
define association to include a trust, and further allow any such
association the locus
standi
to sue or be sued in its own name, the Rules do not apply to the
Administrative Court. The Administrative Court (Miscellaneous
Appeals) Rules
1980
SI 122/1980, do not have a provision similar to the High Court Rules.
The first respondent (the trust) should not therefore have been a
party to the proceedings before the court a
quo.
47.
Further, the appellants submitted that the City Council, being a town
planning authority, could quite competently delegate its functions to
a committee of Council in terms of section 12(3) of the RTCP Act.
48.
They also submitted that the Environmental Management Committee of
the City Council was entitled to condone mis-references in the papers
that were placed before it. The complaint by the first to fourth
respondents on the incorrect description of the property was
therefore not a fundamental defect that warranted interference by the
court a
quo,
especially
because the court had accepted that the development was to take place
on the appellants property measuring 16,2885 hectares. There was no
requirement that the appellants identify the specific portion of that
land where the development was to take place, particularly in view of
the fact that the subdivision previously applied for had lapsed. The
error was not serious and the objectors had been able to lodge their
objections.
49.
As regards the finding by the court a
quo
that
the application was invalid on account of the fact that documents
from a previous application (that had lapsed) had been attached, the
appellants submitted that these were supporting documents and
constituted “such information as may be prescribed” as provided
for in the RTCP Act. The fact that an application is deemed dismissed
in terms of section
26(7) of that Act
does not mean documents from that application cannot be attached or
used in a subsequent application.
50.
On the finding by the court a
quo
that the failure to attach the consent of the NMB Bank was fatal, the
appellants submitted that the issue had only been very vaguely
referred to and that it had been assumed that it had been abandoned.
The parties had not addressed the court on this issue. Moreover,
being a question of fact, the four respondents had not shown whether
the bonds in issue were still current. It was therefore an
irregularity for the court to make a finding on an issue of fact not
traversed by the parties and which was not founded in the pleadings
by the parties.
51.
As regards the finding that the audi
alteram partem
principle
had been violated, the appellants submitted that the four respondents
objections contained in letters they had sent to the City Council had
been considered before the City Council came up with a decision on
the application for a developmental permit. Indeed the objections
were brought to the attention of the appellants who responded to each
of the issues raised in the objections.
52.
On the finding by the court a
quo
that
the appellants could have adopted less restrictive measures in the
usage of their land, they submitted that they were under no such
obligation to sell the property to an organisation called Birdlife
Zimbabwe. They have the right, in terms of section
72 of the Constitution,
to deal with the property as they see fit.
53.
On the further finding by the court a
quo
that
the precautionary principle applied in this case, they submitted that
the appellants had obtained an environmental impact assessment
certificate and had, in addition, undertaken a detailed impact
assessment which was placed before the Council to enable it to come
to a correct decision. That document set out the measures which were
to be taken to minimise any possible damage to the environment. The
fact that the property is situated on a wetland does not mean it
cannot be developed. Indeed, in terms of the Ramsar Convention, it is
the wise use of wetlands that is encouraged. In any event the
property had been removed from the list of sites that fell under that
Convention.
54.
As regards the environmental impact assessment certificate, they
submitted that the certificate had been issued in respect of a
cluster development on a Stand identified as being a portion of the
Meadows of Monavale. Having acknowledged the existence of the
property measuring 16,2338 hectares upon which an intended
subdivision to be called Stand 201 was to be created, the court a
quo
could
not then at the same time find that the certificate related to a
non-existent property.
55.
In his oral address, counsel made the following further submissions.
That the issue of the locus
standi of
the first respondent had been raised during oral submissions but was
not dealt with by the court a
quo.
The four respondents cannot come to court saying they do not know
where the development was to take place when they were involved in
the attempt to purchase Stand 201. Everyone knew where the cluster
houses were to be constructed and the fact that it was not formally
subdivided made no difference.
56.
As regards the issue of consent by the NMB Bank, he submitted that
the issue was neither raised nor argued before the court a
quo.
On the documents from a previous application that were attached to
the application for a development permit, he submitted that the judge
failed to distinguish between the application itself and the
supporting documents. There was no need to file the same documents
over and over again.
57.
As regards the letters of objection to the development permit
application, he submitted that all the letters raised the same issues
and were similarly worded. On the merits of the dispute, he submitted
that the court a
quo
did not address itself to the fact that Harare has a housing backlog.
There was nothing to suggest that if construction took place on an
area constituting 1.5% of the Monavale vlei, comprising less than ten
hectares, it would have the kind of harmful impact that the
respondents have attempted to portray. The court a
quo
was
selective and made no attempt to strike a balance between the need to
protect the environment on the one hand and the need to provide
accommodation on the other.
FIRST
TO FOURTH RESPONDENTS SUBMISSIONS
58.
In their heads of arguments, the first to the fourth respondents have
submitted that the Ramsar Convention is binding on Zimbabwe, the
country having acceded to the Convention and such accession having
been ratified by Parliament. The suggestion that the wetland may have
been delisted is incorrect as the Government of Zimbabwe, in order to
do so, would have to go through the process of delisting in line with
the Convention. That process has not even been initiated and the
country continues to have obligations under the Convention. In its
decisive meeting to consider whether or not to grant the development
permit, no consideration was given by the City Council to the
ecological status of the land on which the proposed development was
to take place, notwithstanding the fact that, in their objections,
the respondents had gone to great lengths to highlight the dire
situation faced by residents in accessing water.
59.
The issue before the City Council was of a highly technical nature
and therefore required specificity in terms of the size and location
of the land to be developed and the exact number of houses to be
constructed. This would have assisted the committee to properly
assess the possible harm to the environment.
60.
As regards the need to attach the written consent of NMB Bank, they
submitted that the issue had been fully ventilated in their statement
of appeal before the court a
quo
as
well as their heads of argument. Moreover evidence had been placed
before the court to confirm that there were current bonds registered
over the property. There was need for the appellants to attach the
consent of the Bank because its rights could be prejudiced. Having
failed to attach such consent, the appellants further failed to show
that any attempts had been made to advise the Bank as required by the
law.
61.
On the objections that they had raised in respect of the development
permit, they submitted that the letters raised different issues. The
chairperson of first respondent objected on the basis that this was
an ecologically sensitive and biologically diverse area which should
not be tampered with. The Sopers, on the other hand, objected on the
basis that there had been no prior consultation with the residents
who were likely to be affected.
62.
Moreover the City Council, having received a response from the
appellants including a report on soil tests done at their instance,
made no attempt to bring the response and new facts to the attention
of the respondents.
63.
In oral submissions before this Court they disputed the suggestion
that the first respondent, being a trust, has no locus
standi
to institute proceedings against anyone. The Administrative Court Act
[Chapter 7:01], in section
13,
provides that where there is a lacuna,
the procedure applicable in the High Court would apply. The High
Court Rules allow, in Rule
7
and 8,
a trust to sue. They further submitted that, whilst the development
permit refers to the entire piece of land and not Stand 201, no
environmental impact assessment certificate was issued for the entire
property but rather for Stand 201. Counsel for the respondents
further submitted that once the land was included as part of a Ramsar
site, the appellants, as owners, lost the right to do as they
pleased. He also submitted that the environmental management
committee of the City Council could not have properly considered
fourteen applications, including the appellants development permit
application, in forty minutes. Despite the land being part of a
wetland, they make no reference to this and all they did was
recommended that the permit be granted. Accordingly the respondents
prayed for the dismissal of both appeals with costs.
FIFTH
RESPONDENT SUBMISSIONS
64.
The fifth respondent's submissions mirrored its previous
submissions before the court a
quo.
In
addition, it also submitted that the issue of consent of the Bank had
not been raised in the court a
quo.
Further,
that although the minutes of the Council meeting refer to only two
objections, the objectors concerns had been taken into account.
65.
Lastly, it was submitted that the mere failure to comply with one or
other administrative provision does not mean that the whole procedure
necessarily becomes void. The absence of the consent of the Bank was
therefore not fatal.
ISSUES
ARISING FOR DETERMINATION
66.
On a consideration of the above submissions, it seems to me that the
issues that arise for determination fall into four broad categories:
(i)
The first is whether the first respondent, a trust, can in law sue or
be sued?
(ii)
The second is whether the environmental impact assessment
certificate, on which the City Council largely relied in coming to
the decision to grant a development permit, is valid?
(iii)
The third is whether the Council was correct in granting the
development permit?
Depending
on the determination of this Court on the above issues, the last
issue that may arise is:
(iv)
Whether the court a
quo
was
correct in relying on the precautionary principle in coming to the
conclusion that the land in question could not be developed without
endangering its status as a wetland?
WHETHER
THE FIRST RESPONDENT CAN SUE AND BE SUED?
67.
The position may now be taken as settled in our common law that a
trust is not a legal
persona
and that it does not have juristic personality. It represents nothing
more than an arrangement. As a rule, a trust can only institute
proceedings in the name of the trustees. Magnum
Financial Holdings (Pty) Ltd v Summerly NNO
1984
(1) SA 160.
As a corollary, a trust is incapable of holding assets, entering into
contracts or undertaking any other legal formalities in its own name.
In Crundall
Brothers (Pvt) Ltd v Lazarus N.O. & Anor
1991
(2) ZLR 125,
the court accepted that a trust is not a legal persona
and that the trustees are the persons to be considered as having the
locus
standi
to sue or be sued. In Musemwa
& Ors v Gwinyai Family Trust & Ors
16-HH-136,
the High Court of Zimbabwe aptly summarised the status of a trust in
the following words:
“The
concept of a Trust originated in English law over 900 years ago and
continues to evolve. A Trust is a legal relationship of parties which
usually involve the founder, Trustees and beneficiaries. The
relationship is created by the founder who places assets under the
control and administration of the Trust for the benefit of named
persons, the beneficiaries. It is created by a Trust Deed. A Trust
has no legal personality and the common law does not recognise a
Trust as having locus standi to sue in its own name. If a Trust is to
be clothed with juristic personality, it would be a persona made up
of assets and liabilities. In fact, the assets and liabilities in a
Trust vest with the Trustee. When it sues or is being sued, a Trust
should be represented by its Trustees in whom the Trust's assets
and liabilities vest.”
68.
That the above remarks correctly reflect our common law there can be
no doubt. However, Order 2A of the High Court Rules,
1971
(which Rules were applicable but have been repealed and replaced by
the High Court Rules,
2021,
S.I. 202/21 with effect from 23 July 2021) provided that an
associate, which includes a trustee, may sue or be sued in the name
of their association. That provision has been re-enacted in Rule 11
of the High Court Rules, 2021. The Rule defines “associate”
in relation to a trust, to mean a trustee. The Rules also provide
that associates may sue or be sued in the name of their association.
This means that a trustee can sue or be sued in the place of the
trust and, conversely, a trust can sue and be sued in its own name.
To this extent, therefore, the Rules have modified the common law in
order to create locus
standi
for a trust.
69.
The above observations apply to High Court proceedings, not
proceedings from the Administrative Court. The Administrative Court
Act [Chapter 7:01], however, has made provision for the High Court
Rules to apply in a casus
omissus.
In
section
13(3)
the Act provides as follows:
“(3)
In any proceedings not covered by rules in terms of subsection (1) or
any other enactment —
the
rules relating to practice and procedure in the High Court shall,
where appropriate, apply; and in any case not contemplated by rules
made in terms of subsection (1) or referred to in paragraph (a), the
Court shall act in such manner and on such principles as it deems
best fitted to do substantial justice and to effect and carry out the
objects and provisions of this Act, and may for that purpose give
instructions on the course to be pursued which shall be binding on
the parties to the proceedings.”
70.
The above provision is clear and unambiguous. In any proceedings
before the Administrative Court that are not covered by the Rules of
that court or any other enactment, the High Court Rules shall, where
appropriate, apply. The High Court Rules apply whenever a trust or
trustee is involved in proceedings before the court.
71.
This is not the only instance where the law has made provision for a
casus
omissus
in
the Rules. Rule 45 of the Constitutional Court Rules,
2016
provides that in any matter not dealt with by the Rules, the practice
and procedure of the Court shall, subject to any direction to the
contrary by the court or a judge, follow as near as may be the
practice and procedure of the Supreme Court or, where the Supreme
Court Rules are silent, of the High Court. Rule 73 of the Supreme
Court Rules,
2018
also provides for the application of the Rules of the High Court in
any matter not covered by the Rules.
In
the circumstances, a trust appearing before the Administrative Court
can sue or be sued in its own name, rather than in the name of its
trustees.
72.
In the present case the trust deed was amended to empower the trust
to sue or be sued. The first respondent therefore had the requisite
standing to institute proceedings in its trust name.
The
submission by the appellants in this regard therefore cannot succeed.
THE
VALIDITY OF THE ENVIRONMENTAL IMPACT ASSESSMENT CERTIFICATE?
73.
As noted earlier in this judgment, a development permit issued in
favour of the appellants in 2015 was set aside by the court a
quo
on
the sole basis that the appellants should have first sought an
environmental impact assessment certificate before submitting an
application for a development permit with the City Council. The
appellants then submitted a new application and such certificate was
then issued in November 2017. It was on the basis of that certificate
that the appellants then applied for a development permit to the City
Council in 2018.
74.
Perusal of the certificate reflects that the Environmental Management
Agency granted “acceptance” to the appellants to operate a
housing development on Stand 201 Monavale (6804). Attached to the
certificate were special conditions attaching to the issuance of the
certificate. Whilst the conditions were intended to mitigate against
adverse impact on the wetland, as Dr Cunliffe later reported in his
report dated 13 September 2018, little or no guidance was given on
how the conditions were to be implemented.
75.
The suggestion that a 50metre buffer zone be managed in an
“environmentally sustainable manner” was not defined. Nor were
details given as to the design and operating parameters of the
sub-surface flow constructed wetland. The same applied to the
retention ponds. No detail was given as to how many such ponds were
to be constructed, where they were to be located, their dimensions
and volume of water to be stored.
76.
The certificate also required the construction of special foundations
for the houses but gave no indication how such foundations were to be
constructed. There was also no indication as to who was to be
responsible for monitoring and overseeing compliance with the
conditions. More particularly the certificate did not indicate who
was to manage the buffer zone, monitor and enforce the prohibition
against sinking of boreholes and monitor the functioning of the
proposed subsurface flow constructed wetland.
77.
There can be little doubt that the certificate was very vague in
several important respects and that it authorised “a housing
development “ whatever that meant – on Stand 201 which, it is
common cause, never saw the light of day.
78.
It is also clear that whilst the parties had been involved in
litigation in respect of this piece of land in the past, before the
appellants sought an environmental impact assessment certificate in
2017 there had been no stakeholder consultation. This violated
section 136 of the Environmental Management Act. That section
provides that the Agency, amongst other requirements, shall ensure
that the rules of natural justice are duly observed and, in
particular, shall take all reasonable steps to ensure that every
person whose interests are likely to be affected by the exercise of
the function is given adequate opportunity to make representations in
the matter.
79.
Further section 26 of the Regional, Town and Country Planning Act
provides that an application for a permit shall be made to a local
planning authority and shall be accompanied by the consent in writing
of:
(a)
the owner of the land; and
(b)
where the application relates to development which involves an
alteration —
(i)
in the character of the use of any land or building; or
(ii)
in the conditions of title to the property;
the
holder of any real right registered over the property concerned:
Provided
that the local planning authority may dispense with any consent
required in terms of this subsection if it is satisfied that —
(a)
the applicant has made all reasonable attempts to ascertain the
address of the person whose consent is required and has been unable
to do so; or
(b)
the person whose consent is required has unreasonably failed or
refused to give his consent and that the permit, if granted, would
not prejudice the rights of such person.”
80.
That the appellant did not attach the consent of NMB Bank, the
mortgage holder, is common cause. It is also common cause that the
City Council was not requested at any stage to dispense with the
consent required in terms of paragraph (b) to the proviso. Nor did
the appellants themselves attempt to show that they had made
reasonable attempts to ascertain the address of NMB or that NMB had
unreasonably failed to give its consent and that it would not be
prejudiced by the grant of the permit. Instead, the appellants and
the City Council's argument before this Court is that the issue was
not raised or argued before the court a
quo
and
that, in any event, the failure to comply with section
26
is not fatal to the application.
81.
Although the record before this Court does not contain the verbatim
record of the proceedings on the day of the hearing, the record shows
that the issue of the consent of the NMB Bank was a live issue before
the court.
82.
A Deeds Office search form which forms part of the record shows that
as at 16 January 2018 i.e. about four months before the appellants
submitted their application for a development permit, three mortgage
bonds had been registered against the Meadows of Monavale Extension
of Mabelreign measuring 16,2885 hectares by NMB Bank Ltd. The
mortgage bonds had been registered against the property in March and
September 2013 to secure a total amount of almost US$246,000.00.
83.
The failure by the appellants to comply with section 26 of the
Regional, Town and Country Planning Act was raised on at least two
occasions before the court a
quo.
One
of the grounds of appeal to the Administrative Court against the
grant of the development permit by the first to fourth respondents
was that the City Council had failed to find that the application was
defective for failure to comply with section 26(1)(b) of the RTCP Act
in that it omitted to include, inter
alia
“the
person holding mortgage bonds over the property.”
84.
The same complaint was made in the respondents heads of argument that
“the application does not include the signed consent of NMB Bank
whom, according to a search at the Deeds Office, filed in the
appellants Bundle as Item 39, are persons holding mortgage bonds over
the property, contrary to section 26(1)(b) of the RTCP Act.”
85.
Contrary to submissions by counsel for the appellants and the City
Council, it is clear, therefore, that the issue was very much a live
one and was an issue that the court was under obligation to
determine. Its determination was that the failure to comply with
section
26(1)(b) of the Act
was fatal, rendering the application defective.
86.
The further argument by the appellants is that the failure to comply
with section 26(1)(b) of the RTCP Act does not invalidate the
application and the permit issued consequent thereto. On a correct
reading of section
26(1)(b) of the Act,
there can be little doubt that the failure to comply with its
peremptory requirements would inevitably invalidate any application
that does not comply with its provisions.
87.
The section provides that the application shall be accompanied by the
consent in writing of the holder of a registered real right. The
section does not stop there. It further gives the applicant the
opportunity to show either that, despite reasonable attempts to
ascertain the address of the holder of the real right, he has been
unable to do so or, alternatively, to prove that the person whose
consent is required has unreasonably failed to give his consent and
that he will not, in any event, be prejudiced in the event of the
permit being granted.
88.
The use of the word “shall” in a statutory provision does not
automatically render that provision peremptory. It all depends on the
intention of the lawmaker. In Sterling
Products International Ltd v Zulu
1988
(2) ZLR 293 (SC),
GUBBAY CJ remarked at p301B–F:
“The
categorisation of an enactment as 'peremptory' or 'directory'
with the consequent strict approach that if it be the former it must
be obeyed or fulfilled exactly, while if it be the latter substantial
obedience or fulfilment will suffice, no longer finds favour. As was
pertinently observed by Van Den Heever J (as he then was) in Lion
Match Co Ltd v Wessels 1946 OPD 376 at 380, the criterion is not the
quality of the command but the intention of the legislator, which can
only be derived from the words of the enactment, its general plan and
objects. The same sentiment was expressed by Milne J in JEM Motors
Ltd v Boutle & Anor 1961
(2) SA 320 (N) at 327 in
fine — 328B. This approach received the imprimatur of the South
African Appellate Division in Maharaj & Ors v Rampersad 1964
(4) SA 638 (A)
where, after concluding that the provision with which he was
concerned was imperative, VAN WINSEN AJA went on to enquire whether
the failure in strict compliance therewith was fatal. He propounded
the following test at 646C-E:
'The
enquiry, I suggest, is not so much whether there has been 'exact'
'adequate' or 'substantial' compliance with this injunction,
but rather whether there has been compliance therewith. This enquiry
postulates an application of the injunction to the facts and a
resultant comparison between what the position is and what, according
to the requirements of the injunction, it ought to be. It is quite
conceivable that a Court might hold that, even though the position as
it is not identical with what it ought to be, the injunction has
nevertheless been complied with. In deciding whether there has been a
compliance with the injunction the object sought to be achieved by
the injunction and the question of whether this object has been
achieved are of importance.'”
89.
However, in Jonathan
Nathaniel Moyo & Two Others v Austin Zvoma N.O. Clerk of
Parliament & Another
2011
(1) ZLR 345 (S),
CHIDYAUSIKU CJ qualified the approach to interpretation in these
circumstances and instead held that, at the end of the day, it is the
intention of Parliament that is the paramount consideration. At
pp360-362 the learned judge had this to say at para 38-47:
“This
Court recently had occasion to deal with the issue of interpreting a
statute that does not prescribe the consequences of non-compliance
with a statutory provision in the case of Doctor Daniel Shumba and
Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC 11
/08. In that case I cited with approval a passage from Bennion
Statutory Interpretation at pp21-22, which sets out how courts should
approach that issue. The learned author states that a court charged
with the enforcement of a Statute that does not state the
consequences of non-compliance needs to decide what consequence
Parliament intended should follow from such failure to comply. In
that case I had this to say at pp21-23 of the cyclostyled judgment:
'It
is the generally accepted rule of interpretation that the use of
peremptory words such as 'shall' as opposed to 'may' is indicative of
the legislature's intention to make the provision peremptory. The
use of the word 'may' as opposed to 'shall' is construed as
indicative of the legislature's intention to make a provision
directory. In some instances the legislature explicitly provides that
failure to comply with a statutory provision is fatal. In other
instances, the legislature specifically provides that failure to
comply is not fatal. In both of the above instances no difficulty
arises. The difficulty usually arises where the legislature has made
no specific indication as to whether failure to comply is fatal or
not.
In
the present case, the consequences of failure to comply with the
provisions of section 18 of the Zimbabwe Electoral Commission Act are
not explicitly spelt out. In those statutory provisions where the
legislature has not specifically provided for the consequences of
failure to comply, it has to be assumed that the legislature has left
it to the Courts to determine what the consequences of failure to
comply should be.
Francis
Bennion 'Statutory Interpretation' suggests that the courts have
to determine the intention of the legislature using certain
principles of interpretation as guidelines. He had this to say at
pp21-22:
'Where
a duty arises under a statute, the court, charged with the task of
enforcing the statute, needs to decide what consequence Parliament
intended should follow from breach of the duty.
This
is an area where legislative drafting has been markedly deficient.
Draftsmen find it easy to use the language of command. They say that
a thing "shall"
be done. Too often they fail to consider the consequence when it is
not done. What is not thought of by the draftsman is not expressed in
the statute. Yet the courts are forced to reach a decision.
It
would be draconian to hold that in every case failure to comply with
the relevant duty invalidates the thing done. So the courts answer
has been to devise a distinction between mandatory and directory
duties.
Terms
used instead of 'mandatory' include 'absolute' 'obligatory'
'imperative' and 'strict'.
In
place of 'directory' the term 'permissive' is sometimes used.
Use of the term 'directory' in the sense of permissive has been
justly criticised. See Craies 'Statute Law' (7th
edn, 1971) p61 n74. However it is now firmly rooted.
Where
the relevant duty is mandatory, failure to comply with it invalidates
the thing done. Where it is merely directory the thing done will be
unaffected (though there may be some sanction for disobedience
imposed on the person bound). (As to sanctions for breach of
statutory duty see section 13 of this Code (criminal sanctions) and
section
14
(civil sanctions).)'
Thereafter
the learned author sets out some guiding principles for the
determination of whether failure to comply with a statutory provision
is fatal or a mere irregularity.
One
of these guiding principles is the possible consequences of a
particular interpretation. If interpreting non-compliance with a
statutory provision leads to consequences totally disproportionate to
the mischief intended to be remedied, the presumption is that
Parliament did not intend such a consequence and therefore the
provision is directory.
Maxwell
on The Interpretation of Statutes 12 ed at 314 says much the same as
the above cited excerpt from Bennion.”
90.
At p21 of the judgment above, the learned judge acknowledged the
existence of other cases, including Sterling
Product International, supra,
that suggest that non-compliance with a mandatory provision in a
statute does not necessarily result in invalidity. He stated:
“Equally,
there are decisions of this Court wherein it has been held that
non-compliance with peremptory statutory provisions does not
necessarily lead to a nullity. See Sterling Products International
Ltd v Zulu 1988
(2) ZLR 293 (S)
and the cases referred to therein.
The
above authorities can be reconciled on the basis that the use of
peremptory language is one of a number of indicators of the
legislative intent where such intent is not explicitly stated. This
obviously is a departure from the principle of strict exaction of
compliance with the wording of the Statute that I referred to
earlier. In my view, the use of peremptory language, such as the
words 'shall' or 'must' in a Statute is no longer conclusive
evidence of the intention of Parliament, but remains cogent evidence
of such intention.”
91.
I am inclined to agree with CHIDYAUSIKU CJ that the use of the word
“shall”
is cogent evidence of such an intention.
92.
On the precise issue that falls for determination in
casu,
I am of the view that the intention of Parliament was to render null
and void any application that was not accompanied by the consent in
writing of the holder of a mortgage bond or that failing, proof by an
applicant that he had made reasonable effort to locate such person
but had failed to do so or that the person had unreasonably refused
to consent but would not be prejudiced by the grant of the permit.
The Legislature clearly intended a situation where the owner of land
or holder of real rights would be made aware of the filing of an
application for a development permit. Aware that it might not always
be possible to get such consent, the Legislature went out of its way
to allow the applicant to show that he had done all he could to get
such consent but could not, either because the person could not be
located or because he had unreasonably refused to consent and that
there would be no prejudice to him.
93.
Clearly the Legislature would not have gone to these lengths if the
intention was that non-compliance would make no difference. The
section captures the Legislature's concern that, in these
applications, there could be prejudice to the owner or holder of real
rights and that, for that purpose, it is necessary that he/she is
made aware of the application.
In
the result, therefore, I hold that the failure to get the consent of
NMB Bank or to prove that reasonable effort had been unsuccessfully
made to ascertain its address or that it had unreasonably refused to
cooperate despite there being no prejudice to it invalidated the
application.
The
court a
quo
was
therefore correct in finding that non-compliance with the provisions
of section 26(1)(b) of the Regional, Town and Country Planning Act
rendered the application invalid.
THE
DEVELOPMENT PERMIT
94.
The Environmental Management Committee of the City Council met on 23
July 2018 and it was at that meeting that the committee resolved that
a permit be granted authorising the development of one hundred and
twenty one cluster houses on Meadows of Monavale. The meeting
commenced at 14:10 hours and finished at 14:50 hours having, in forty
minutes, considered fourteen applications that sought various permits
from the City Council, including the application for a development
permit filed by the appellants.
95.
The record of deliberations of that committee reveal that there was
no proper inquiry undertaken by the committee. In all cases the
minutes show that the committee merely accepted the recommendation of
the Director of Works after which it proceeded to resolve that
permits be granted. No questions were asked. No clarification was
sought. Considering that this was the Council's environmental
management committee, a number of issues should have been debated.
96.
This was not done. The fact that the development was to take place on
a wetland was not discussed. That this particular wetland is the
largest in Harare and is protected under the Ramsar Convention was
also not even discussed.
97.
The minutes also referred to two letters of objection. In fact they
were four. Whilst counsel for the appellant argued that the letters
were all similar there is some difference in the content of those
letters. It is not clear which two letters of objections were being
referred to in the deliberations of the committee or what the fate of
the other two letters were. Further the letter written to the
appellants by the Director of Works advising of the grant of the
development permit had no relationship to the papers that had been
presented to the City Council. Whilst the environmental impact
assessment certificate referred to a housing development on Stand 201
Monavale, the letter advising of the grant of the permit refers to
121 cluster houses to be constructed on the Meadows of Monavale.
98.
Although an environmental impact assessment certificate had been
issued by the Environmental Management Agency, amongst the conditions
stipulated by the City Council in granting the permit was the need
for an environmental impact assessment report and soil tests to be
carried out before commencement of the project. The first to the
fourth respondents are correct that there was a disconnect between
the environmental impact assessment certificate and the development
permit issued by the Council. The conditions proposed on the
certificate were not incorporated in the permit. As the court a
quo
correctly
noted, there was no alignment between the two sets of documents. One
is specific whilst the other is vague.
DISCREPANCIES
BETWEEN THE ENVIRONMENTAL IMPACT ASSESSMENT CERTIFICATE AND THE
DEVELOPMENT PERMIT
99.
It is not in dispute in this matter that the City Council granted the
development permit on the basis of the environmental impact
assessment certificate issued by the Environmental Management Agency.
On a closer examination of the two sets of documents it becomes clear
that there were serious inconsistencies which, as the court a
quo
remarked,
could not have been condoned by the City Council. The development
permit refers to the land to be developed as the Meadows of Monavale
whilst the environmental impact assessment certificate refers to the
land as “Stand 201 Monavale.”
100.
That there is no such Stand is common cause. The suggestion by the
appellants that the anomaly was condoned later by the City Council
would suggest that this was done ex
post facto.
There can be no denying the fact that at the time the application
came up for a determination, no such condonation had been sought or
granted. The minutes reveal that the issue of condonation did not
arise at any stage of the proceedings before the environmental
management committee.
101.
At that stage there was a clear discrepancy in the papers which the
City Council should have queried. The subsequent condonation, if any
was granted, would not have had the effect of regularising papers
placed before the City Council previously. The environmental impact
assessment was issued in respect of the smaller portion of land
previously intended to constitute Stand 201 whilst the development
permit was issued in respect of the entire piece of land measuring
16,2885 hectares.
102.
The discrepancies did not end there. The certificate refers to the
nature of the development as a housing development whilst the permit
referred to “erection of 121 cluster houses.” Neither document
defined what it meant by a housing development or cluster houses.
Moreover, the conditions that the Environmental Management Agency
attached to the certificate were not incorporated as part of the
conditions attaching to the development permit.
103.
The certificate for example, made it obligatory for a buffer zone to
be maintained and further that there had to be subsurface flow
constructed wetlands to treat grey water as well as retention ponds.
It further directed the construction of houses on special foundation
and that all sewage be connected to an existing sewer line as septic
tanks and soakaways were not allowed. The sinking of boreholes was
also disallowed. The development permit basically ignored those
conditions and came up with its own list of requirements, including
the need to obtain another environmental impact assessment
certificate and conduct soil tests.
104.
There were material inconsistencies between two documents which were
supposed to speak to each other in order to protect this ecologically
sensitive piece of land.
The
conclusion by the court a
quo
that
the one did not support the other cannot be said to be erroneous.
ATTACHMENT
OF PAPERS FROM A PREVIOUS APPLICATION
105.
The application for a development permit was filed with the City
Council on 15 May 2018 and to that application was attached a set of
documents that previously constituted a similar application for a
development permit which had been filed with the City Council in
2015. The first to fourth respondents argue that the application
filed in 2018 was irregular in attaching these documents whilst the
appellants say there was nothing untoward in attaching documents from
a previous application as an addendum
to the new application. The court a
quo
found
that the application for the development permit was a nullity owing
to the attachment of documents from a previous application.
106.
I am not persuaded that the court a
quo
was
correct in reaching this conclusion. It accepted that a fresh
application had been filed in May 2018 and that, as part of that
application, documents that constituted a previous application were
attached. Whilst the previous application had indeed lapsed in terms
of the Act, this could not possibly have affected the application
filed in 2018. The deeming provision in section
26(7) of the Act
would have affected the old application but not the new application
filed in 2018. That new application remained valid until the lapse of
three months from the date of its receipt.
The
conclusion that the 2018 application was a nullity was therefore
erroneous.
THE
DETERMINATION OF THE COURT A
QUO
IN PROHIBITING THE DEVELOPMENT
107.
In its determination the court found that the piece of land in
question, being a wetland, could be irretrievably damaged and that,
in these circumstances, reliance should be placed on the
precautionary principle which postulates that where, due to available
scientific evidence, there is uncertainty as to the future impact of
a proposed development, authorities must err on the side of caution
and insist on adequate precautionary measures to safeguard against
contamination of underground water. Whilst accepting that the
appellants possessed rights of ownership in respect of the property,
the court found that such right could be attenuated in light of
section 86(2)(f) of the Protecting
wetlands
which provides that fundamental rights may be limited in terms of a
law of general application for the general good.
108.
I am of the view that the court a
quo should
not have proceeded to deal with the merits of the dispute between the
parties. It had found that, procedurally, the environmental impact
assessment certificate and the development permit had not been
properly issued. This was a determination based on procedure.
109.
That being the case, the matter should have ended there. This would
give any interested party the opportunity of correcting any
procedural abnormalities made so that the matter would then come up
before the two authorities for another determination once the
procedural prerequisites had been attended to.
110.
By proceeding to deal with the core of the dispute between the
parties on the merits, the court a
quo
imprudently
created a situation where its determination effectively resolved the
dispute between the parties even though the proceedings that preceded
the grant of the certificate and permit were themselves irregular.
111.
Put another way, having found that there was no proper application
before the Council, the court a
quo
should
not have proceeded to determine the matter on the merits.
112.
Where a court or any administrative authority finds that procedural
prerequisites have not been complied with in an application, it does
not dismiss the application. It should strike the matter of the roll.
This would enable the affected party to correct the procedure and
thereafter approach the court again for the ventilation of the real
dispute between the parties. See Edward
Tawanda Madza & Ors v The Reformed Church in Zimbabwe Daisyfield
Trust and Three Ors SC
71/14;
Portland Holdings Ltd v Tuperlostep Investment (Proprietary) Limited
and Another 15-SC-003; Air Zimbabwe (Private) Ltd & Another v
Stephen Nhuta & Two Others 14-SC-065.
The findings made by the court on the merits were irregular and
therefore stand to be set aside.
DISPOSITION
Both
the environmental impact assessment certificate and the development
permit were not properly issued. The court a
quo
was
correct in so determining.
Having
found the two documents to have been irregularly issued, the court a
quo
should
have allowed the appeal on that basis alone. Such an approach would
have permitted the appellants to take steps to correct these
documents. It was irregular, having found that the application before
the City Council was invalid for want of correct procedure, for the
court a
quo
to
delve into the merits of the main dispute between the parties and
proceed to dismiss the matter.
In
the exercise of our review powers under section 25 of the Supreme
Court Act [Chapter 7:13], the determination on the merits stands to
be set aside.
In
the result, this Court makes the following order:
1.
The determination of the court a
quo
on the merits, being irregular, is set aside.
2.
Both appeals before this Court are otherwise dismissed with costs.
GUVAVA
JA: I agree
MATHONSI
JA: I agree
Chimwamurombe
Legal Practice, appellant's legal practitioners
Zimbabwe
Lawyers for Human Rights, 1st–4th
respondents legal practitioners
Mbidzo,
Muchadehama & Makoni, 5th
respondent's legal practitioners
Civil
Division of the Attorney General's Office, 7th
respondent's legal practitioners
