Metropolitan Development (Private) Limited v Minister of Transport and Infrastructure Development NO and Another (543 of 2022) [2022] ZWHHC 543 (11 August 2022)

METROPOLITAN DEVELOPMENT (PRIVATE) LIMITED versus MINISTER OF TRANSPORT AND INFRASTRUCTURAL DEVELOPMENT NO. and TEFOMA CONSTRUCTION P/L HH 543-22 HC 4703/22 HIGH COURT OF ZIMBABWE TAGU J HARARE, 21, 28, 29, JULY 1 & 11 AUGUST 2022 Urgent Chamber Application G R Sithole with Ms. Chinyangarara Kaseke, for applicant D Jaricha with L Mashayamombe, for respondents TAGU J: This is an urgent chamber application wherein the applicant seeks an interim order compelling the first respondent grant a compensation offer letter containing the amount to be paid to the applicant’ lawyers i.e. Hove Legal Practice to the Applicant, an interim order barring the first respondents from carrying out, without applicant’s consent, any road construction works and interfering with the applicant’s rights of use, occupation and possession of any portion of the applicant’s immovable property situate in the District of Salisbury, measuring 3 860 Hectares called SUBDIVISION A OF MARSHLANDS OF DELFT OF HOPLEY (the property). On the return day, the Applicant seeks an order which directs the first respondent to compensate the applicant fair value for loss or deprivation and or avail adequate compensation to the applicant in the form of alternative land, equal in measure, which is suitable for the applicant’s use. The facts are long. Briefly, the applicant is the legal owner of the property. The said land/property is situate in an area commonly referred to by the masses, public and private institutions as “MBUDZI ROUNDABOUT” area, which is in the Southern Suburbs of Harare, along the Harare – Masvingo Highway. Sometime in October 2021, through electronic print media and various other communication channels, the Government of Zimbabwe, through the first respondent made pronouncements at different times that it was his Ministry’s intention to upgrade the MBUDZI ROUNDABOUT JUNCTION along the Harare –Masvingo Highway to a state of HH 543-22 HC 4703/22 the art interchange intersection. The applicant welcomed the development as it is stakeholder by virtue of it owning the abovementioned property which is within the proximities or vicinity of the project site. Applicant expected the first respondent to personally advise it of Government intention but did not do so until a well -wisher advised it on 21 December 2021, that first respondent was on site. Applicant reacted by filing an urgent chamber application on 23 December 2021 under case HC 7370/21. The matter though set down was not heard as parties were negotiating an out of court settlement and applicant withdrew its case on condition that all construction works would be put on hold in order to enable the first respondent to avail an offer letter regarding the amount which applicant was to receive as payment. From 18 May 2022 the parties were involved in a series and protracted communications over the issue of compensation offer. The first respondent continuously promised to avail the compensation offer to the applicant but did not avail the same leading the applicant to filing the present application on 15 July 2022. The application is opposed by the first respondent. Attached to the first respondent’s Notice of Opposition is an offer letter by Engineer T. K. Chinyanga dated 19 July 2022 to applicant’s legal practitioners, Hove Legal Practice, wherein he said: “We acknowledge your urgent chamber application for an interdict filed as Case No. 4703/22 at the High Court of Zimbabwe. Please be advised that while we missed our own deadline it was not deliberate as we are obliged to follow government procedures and processes and we hope you bear with us. Please be advised that we hereby offer US$562,913.00 (five hundred and sixty two thousand nine hundred and thirteen United States dollars) as compensation for a piece of land constituting a portion of Subdivision A of Marshlands of Delft of Hopley being 8062 square metres.” At the hearing of this matter counsel for the applicant Mr GR Sithole submitted that the first respondent filed a notice of opposition and an offer for compensation. Accordingly, the first part of the relief applicant was seeking was overtaken by events. He however, submitted that the second part of the relief for interim interdict is still outstanding. To him the second part of the relief is a stand -alone issue in that the first respondent started construction without seeking applicant’s consent and without consulting it. He outlined the requirements for an application for an interim interdict to succeed as outlined in the famous case of Setlogelo v Setlogelo as: 1. A prima facie right though open to doubt; 2. Apprehension of irreparable harm; HH 543-22 HC 4703/22 3. Lack of alternative remedy; 4. Balance of convenience. Counsel for the first respondent D Jaricha submitted that para 2 of the Applicant’s relief has also been overtaken by events. He said para 2 arises from para 1 and both have to be read together and not in isolation. According to him the main complaint by the applicant was that they wanted an offer letter for compensation. He further submitted that in the founding affidavit applicant was complaining about compensation to land and not land degradation. So the issue complained about has been complied with and the whole case has been overtaken by events and must be dismissed. Coming to the issue that the applicant was not notified and did not consent before the actual construction took place. Mr D Jaricha disputed the allegations. He submitted that the property in question is a subdivision described as item No. (24), property I.d (A26) Stand Description (Lot 2 Hopley), area affected within 140m reserve in m2 (9050.179). He said all property owners affected by the Mbudzi project were notified, as per the list of affected property owners published in the Zimbabwe Government Gazette, General Notice 3363 of 2021. Initially all property owners were notified through the Preliminary Notice hand delivered by Ministry officials at the onset of the project sometime in October 2021. As required by law, a General Notice was published in the Zimbabwean Government Gazette of 19 November 2021 and further published in the local newspapers, namely The Herald and The Financial Gazette. In conclusion he said the General Notice 3363 of 2021 describes all the properties falling within seventy (70) metres from the road centre line of the existing road on either side of the roads constituting the four legs of roads into Mbudzi Traffic Circle, for a distance of one comma two five (1.25) kilometers long, from the centre of the traffic circle on all the four road legs as the affected properties. The property in question, that is Subdivision A of Marshlands of Delft of Hopley, Harare is a subdivision of Lot 2 Hopley and therefore appears in the General Notice 3363 of 2021. This is an application for an interim interdict. Two reliefs were sought. The first one was that the first respondent be ordered to avail to the applicant within 48 hours of the granting of this order, compensation offer letter containing the amount to be paid to the applicant’s lawyers i.e. Hove Legal Practice to the applicant. The second being that the first respondent, their lawful agents, contractors and anyone acting under their instruction, be and are hereby interdicted and or HH 543-22 HC 4703/22 barred from carrying out, without applicant’s consent, any road construction works on any portion of the Applicant’s immovable property situate in the District of Salisbury, measuring 3,863 Hectares called SUBDIVISION A OF MARSHLANDS OF DELFT OF HOPLEY and interfering with the applicant’s rights of use, occupation and possession on any portion of the applicant’s immovable property situate in the District of Salisbury, measuring 3,863 Hectares called Subdivision A of Marshlands of Delft of Hopley. Both parties have agreed that the first part of the relief sought has been overtaken by events as the 1st Respondent has submitted its offer of compensation. The only difference is whether or not the second part of the relief has also been overtaken by events or not. The applicant is of the view that the second part of the relief has not been overtaken by events as it is a stand- alone issue. On the other hand the first respondent is of the view that the second part of the relief has also been overtaken by events considering that the whole complaint of the applicant has been that the first respondent should make an offer of compensation, hence the two reliefs should not be read in isolation. The second part of the relief is born out of the first part. My reading of the papers filed by the Applicant reveals that sometime in October 2021 the applicant became aware of the Government of Zimbabwe, through the first respondent’s pronouncements at different times that it was its Ministry’s intention to upgrade the Mbudzi Roundabout junction along the Harare –Masvingo Highway to a state of the art interchange intersection. Having heard about this, and having noted that its property would be affected, the applicant filed an urgent chamber application under HC 7370/21 on 23 December 2021. The matter having been set down the hearing did not proceed because the parties agreed that they engage in negotiations for a possible compensation settlement. As negotiations for compensation were bearing fruit the applicant withdrew its case under HC 7370/21. As negotiations were taking long before an offer for compensation was made by the first respondent, series of letters were exchanged and series of meetings were held between the parties all centered on the issue of compensation. Having realized that the first respondent was not coming up with the offer of compensation, the applicant finally filed the present application. I tend to agree with the counsel for the first respondent that the reliefs prayed for by the applicant should not be read in isolation since the second part of the relief is born out of the first HH 543-22 HC 4703/22 relief. The complaint by the applicant has always been the delay by the first respondent in availing an offer for compensation. On para 1.5.iii of its founding affidavit the applicant said: “On the return day, Applicant seeks an order which directs the 1st Respondent to compensate the Applicant fair value for loss or deprivation and or avail adequate compensation to the Applicant in the form of alternative land, equal in measure, which is suitable for the Applicant’s use.” While this court is not dealing with the confirmation or discharge of a provisional order, it is clear that the relief being sought has been overtaken by events. Equally, if one looks at the terms of final order sought, it reads as follows: “1. The 1st Respondent is hereby ordered to compensate the Applicant fair value for loss or deprivation of any portion of land called SUDIVISION A OF MARSHLANDS OF DELFT OF HOPLEY. Alternatively 2. The 1st Respondent is hereby ordered to offer and avail to the Applicant adequate compensation for loss or deprivation of land, alternative land equal in measure and extent which suitable for the Applicant’s use and purpose. 3. 1st Respondent shall pay costs of this application on an attorney client scale.” What the Applicant intends to achieve on the return day has been fulfilled. There is therefore nothing to argue for on the return day. Even if the second part of the relief is granted, there is nothing to anticipate on the return day as the first respondent has already, though belatedly, offered the applicant US$562,913.00 (Five hundred and sixty two thousand nine hundred and thirteen United States dollars) as compensation for a piece of land constituting a portion of Subdivision A of Marshlands of Delft of Hopley being 8062 square meters. Had the first respondent not made the offer, then an interim interdict stopping the first respondent from continuing with construction would have been appropriate as a way of forcing the first respondent into making an offer for compensation. In my view the second part of the relief has also been overtaken by events. I will therefore dismiss the application. In dismissing the application the first respondent prayed for costs. Ordinarily costs follow the result. In this case the present application was filed on 15 July 2022. The first respondent was served on 18 July 2022. The first respondent drafted its offer letter on 19 July 2022. It is not in the interest of justice to penalize the applicant by an award of costs since it is the first respondent that delayed in availing an offer letter. Each party must bear its own costs. HH 543-22 HC 4703/22 IT IS ORDERED THAT 1. The application is dismissed. 2. Each party to bear its own costs. TAGU J:…………………………….. Hove Legal Practice, applicant’s legal practitioners Civil Division of the Attorney General’s Office, first respondent’s legal practitioners