News / National
Court gives green light to councils to repossess stands
08 Oct 2015 at 06:41hrs | Views
People who fail to develop stands they bought from councils within stipulated timeframes risk losing them as the High Court has given the green light to local authorities to repossess such properties.
Justice Nicholas Mathonsi ruled that as long as the lease agreement or agreement of sale stipulates the timeframes within which to develop, they must be adhered to.
The court made the finding while dismissing an application by Mr Kingdom Kamangira, who was contesting the repossession of his commercial stand in Zengeza by Chitungwiza Municipal- ity.
When Mr Kamangira failed to develop the stand, council repossessed it after notifying him in writing and offered it to someone else who quickly constructed some structures.
Mr Kamangira had approached the High Court seeking to nullify the repossession or alternatively to be allocated another stand as compensation.
The judgment came at a time Chitungwiza Municipality had just identified close to 100 other undeveloped residential stands ready for repossession.
Justice Mathonsi ruled that an attempt by Mr Kamangira to approach the courts knowing that he had breached some clauses of the lease agreement was a waste of time and an abuse of the court process.
"Kingdom Kamangira desires to benefit from his own breach of a contract entered into with the Municipality of Chitungwiza in July 2006 involving the development of a vacant stand being number 17036 Zengeza Township.
"He was required by clause 5 of the written agreement to commence the erection of buildings on the stand within nine months of the date of commencement of what was termed a lease agreement�?
"In terms of clause 5 of that agreement, in the event of his failure to commence or complete the erection of the buildings, the municipality was entitled to 'forthwith declare this agreement terminated and to take possession of the said stand'," said the judge.
Justice Mathonsi said the application was ill-conceived and it lacked merit.
He also threw out a request by Mr Kamangira to be compensated with another stand, saying it was not part of the lease agreement.
"I have shown how this application was ill-conceived from the very start by an applicant who hoped to benefit from his own default, how it lacked merit in the sense that it does not even identify any cause of action upon which it was made and indeed how the applicant hoped to enforce a clearly non-existent clause in a contract that long ceased to exist as a result of his own fault.
"For that reason, the applicant must still suffer the consequences of his tardiness. An award of admonitory costs is clearly the appropriate dose he badly needs.
"In the result, the application is hereby dismissed with costs on a legal practitioner and client scale," ruled Justice Mathonsi.
In an interview, Chitungwiza Town Clerk Mr George Makunde said council had identified at least 68 vacant residential stands now ready for repos- session.
The stands, according to Mr Makunde, were allocated to various people as far back as 2004 but no development had taken place.
"There could be many of them, but so far we have identified some 68 undeveloped residential stands in Chitungwiza that are due for repossession.
"Next week we will be advertising the stand numbers in the newspaper inviting the owners to come and explain their cases before we exercise our right to repossess," said Mr Makunde.
Meanwhile, 46 illegal settlers arrested at Caledonia on Tuesday morning after defying a High Court order evicting them from the farm yesterday appeared in court facing contempt of court charges, writes Fungai Jachi.
Appearing before Harare magistrate Mr Elijah Makomo, the 46 were not asked to plead to the charges.
Mr Makomo remanded them to October 14 on $50 bail each.
Of the 46, twenty-five are women.
Prosecutor Ms Idah Maromo alleged that on September 12, the Deputy Sheriff proceeded to Lot 1 Caledonia and lawfully evicted the illegal settlers under court order number HC 4187/15.
The court heard that they failed to comply with the court order and continued living on the farm.
Agriculture, Mechanisation and Irrigation Development deputy Minister for Livestock Paddy Zhanda, who owns the farm, reported the invaders to the police leading to their arrest.
The eviction order issued by the High Court saw the first prosecution of the illegal settlers on September 12 this year.
Justice Nicholas Mathonsi ruled that as long as the lease agreement or agreement of sale stipulates the timeframes within which to develop, they must be adhered to.
The court made the finding while dismissing an application by Mr Kingdom Kamangira, who was contesting the repossession of his commercial stand in Zengeza by Chitungwiza Municipal- ity.
When Mr Kamangira failed to develop the stand, council repossessed it after notifying him in writing and offered it to someone else who quickly constructed some structures.
Mr Kamangira had approached the High Court seeking to nullify the repossession or alternatively to be allocated another stand as compensation.
The judgment came at a time Chitungwiza Municipality had just identified close to 100 other undeveloped residential stands ready for repossession.
Justice Mathonsi ruled that an attempt by Mr Kamangira to approach the courts knowing that he had breached some clauses of the lease agreement was a waste of time and an abuse of the court process.
"Kingdom Kamangira desires to benefit from his own breach of a contract entered into with the Municipality of Chitungwiza in July 2006 involving the development of a vacant stand being number 17036 Zengeza Township.
"He was required by clause 5 of the written agreement to commence the erection of buildings on the stand within nine months of the date of commencement of what was termed a lease agreement�?
"In terms of clause 5 of that agreement, in the event of his failure to commence or complete the erection of the buildings, the municipality was entitled to 'forthwith declare this agreement terminated and to take possession of the said stand'," said the judge.
Justice Mathonsi said the application was ill-conceived and it lacked merit.
He also threw out a request by Mr Kamangira to be compensated with another stand, saying it was not part of the lease agreement.
"I have shown how this application was ill-conceived from the very start by an applicant who hoped to benefit from his own default, how it lacked merit in the sense that it does not even identify any cause of action upon which it was made and indeed how the applicant hoped to enforce a clearly non-existent clause in a contract that long ceased to exist as a result of his own fault.
"For that reason, the applicant must still suffer the consequences of his tardiness. An award of admonitory costs is clearly the appropriate dose he badly needs.
"In the result, the application is hereby dismissed with costs on a legal practitioner and client scale," ruled Justice Mathonsi.
In an interview, Chitungwiza Town Clerk Mr George Makunde said council had identified at least 68 vacant residential stands now ready for repos- session.
The stands, according to Mr Makunde, were allocated to various people as far back as 2004 but no development had taken place.
"There could be many of them, but so far we have identified some 68 undeveloped residential stands in Chitungwiza that are due for repossession.
"Next week we will be advertising the stand numbers in the newspaper inviting the owners to come and explain their cases before we exercise our right to repossess," said Mr Makunde.
Meanwhile, 46 illegal settlers arrested at Caledonia on Tuesday morning after defying a High Court order evicting them from the farm yesterday appeared in court facing contempt of court charges, writes Fungai Jachi.
Appearing before Harare magistrate Mr Elijah Makomo, the 46 were not asked to plead to the charges.
Mr Makomo remanded them to October 14 on $50 bail each.
Of the 46, twenty-five are women.
Prosecutor Ms Idah Maromo alleged that on September 12, the Deputy Sheriff proceeded to Lot 1 Caledonia and lawfully evicted the illegal settlers under court order number HC 4187/15.
The court heard that they failed to comply with the court order and continued living on the farm.
Agriculture, Mechanisation and Irrigation Development deputy Minister for Livestock Paddy Zhanda, who owns the farm, reported the invaders to the police leading to their arrest.
The eviction order issued by the High Court saw the first prosecution of the illegal settlers on September 12 this year.
Source - the herald
