SC 39 - 23 Linda Kopecky V City of Harare
SC 39 - 23 Linda Kopecky V City of Harare
SC 39 - 23 Linda Kopecky V City of Harare
SC 39/23
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Civil Appeal No. SC 233/22
REPORTABLE (39)
MAKONI JA:
1. This is an appeal against the whole judgment of the Administrative Court handed down
by Mandeya J on 13 May 2022. After hearing submissions from counsel for the parties the
court dismissed the appeal with costs indicating that reasons for the order would be given
THE FACTS
2. The second respondent is the owner of a certain property known as No 1 Petersham Road
Malborough Harare (the “property”). The appellants are residents of the neighbourhood
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within which the property is located. The first respondent is a Municipality, Local
Planning Authority and an administrative body tasked with the mandate of rendering
3. The second respondent, on 9 December 2021, made an application to the first respondent
for change of use of its property from residential to use as a church. The application was
opposed by the appellants who feared that the use of the property as a church would cause
noise pollution thereby disturbing the peace and tranquillity of the neighbourhood. They
4. After considering the objections from the appellants, the first respondent granted the
prohibition of the use of certain musical instruments in a way that would disturb the peace
of other neighbours. The permit stipulated that the second respondent would construct a
sound proof auditorium which was to be inspected by the first respondent’s Department
of Works.
5. Dissatisfied by the decision of the first respondent the appellants lodged an appeal in the
Administrative Court (“the court a quo”). They were challenging the decision of the first
respondent on the basis that the provisions of the Regional Town and Country Planning
Act [Chapter 29:12] (“the Act”) were not complied with before the application was
granted. They averred that the second respondent neglected to provide all the relevant
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neglected to provide information relating to the external area to be covered by the building,
the number of floors of the building, the extent and location of parking facilities for motor
vehicles.
6. Furthermore, they queried the citation of the name of the second respondent in the
application. They submitted that the Act requires that the owner of the property makes the
application or it be done with the consent of the owner. Their argument was that the owner
of the property in question is Spirit Life Church International yet the application before
the first respondent was launched by Spirit Life Church. It was their case that Spirit Life
7. The appellants further argued that all the interested parties were not notified of the
application for the change of use of the property. It was their case that the large number of
people who would attend church service would result in noise pollution despite the
stipulated precaution.
8. They contended that the permit did not make provision for the costs associated with
connection of a sewer system for the church. They also argued that the application was
granted after the time frame within which to consider it had lapsed.
9. In response to the appeal, the respondents argued that, due process of the law was followed
before the application was granted. They disputed the allegation that the notice was not
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given to all the interested parties and that the application was considered out of time. With
regards to the citation of the second respondent, it submitted that the omission of the word
‘International’ did not render the second respondent non-existent. They argued that there
was no confusion as to the identity of the second respondent. Further, it was argued that
the application form contained all the relevant information to enable the first respondent to
10. The court a quo dismissed the appeal. It found that the argument that the application was
considered outside the time frame provided for by the law was unmeritorious as the time
frame was extended by a letter written by the second respondent to the first respondent
dated 30 November 2021. It also dismissed the argument that the respondent did not
provide all relevant information. The court held that the application form was to be filled
to the extent appropriate. It found that all the interested parties were notified. The court
a quo dismissed the argument that the first respondent would incur additional costs
associated with constructing a sewer line for the church on the basis that the appellants
11. Aggrieved by the decision of the court a quo the appellants appealed to this Court on the
following grounds:
GROUNDS OF APPEAL
1. The court a quo misdirected itself when it determined the matter on the mistaken basis that
the party that had applied for the permit had granted an extension of the period during
which the first respondent herein was obliged to determine that application.
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2. The court a quo erred when it failed to determine that the second respondent's failure to
provide the information that was required under ss 10, 11 and 12 of the application form
invalidated the application on the basis that it violated the peremptory provisions of s 26 (1)
3. The court a quo erred when it failed to determine that the application for the development
permit was invalid for the reason that the purported applicant therein, Spirit Life Church
4. The court a quo erred when it failed to determine that the permit that was purportedly
granted to the second respondent was invalid for failing to make a provision for the cost of
5. The court a quo erred when it failed to nullify the permit on the basis that the same had
been granted on the basis of falsehoods which were contained in the application.
RELIEF SOUGHT
12. The appellants pray that the appeal be allowed with costs and the decision of the
court a quo be set aside and substituted with a decision setting aside the decision of the
first respondent to grant the permit, and that the first respondent dismisses the application
1) Whether or not the court a quo erred in failing to find that due process was not followed
before the first respondent granted the permit to the second respondent.
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2) Whether or not the incorrect citation of the name of the second respondent in the application
1) Whether or not the court a quo erred in failing to find that due process was not
followed before the first respondent granted the permit to the second respondent.
13. In motivating the appeal, counsel for the appellants, Mr Zhuwarara, argued that s 26(1) of
the Act was not complied with in that the second respondent omitted to fill in part 2 and 3
of the application form. His argument was that the permit was granted in the absence of
all the relevant information required. He further argued that the application was made by
a non-existent entity. His argument was that the Act makes it clear that the application
ought to be made by the registered owner of the property or with the consent of the owner.
He based his argument on the authority of John v Delta Beverages Ltd SC 40-17 wherein
it was held that the omission of the word “Pvt” was fatal as there was no party called Delta
Beverages Ltd. Further he submitted that the permit was a nullity as it did not make
14. In response, counsel for the first respondent Mr Moyo argued that s 26(1) does not
prescribe the information that ought to be contained in the application form. He submitted
that the form was filled to the satisfaction of the first respondent hence the argument that
s 26 was not complied with lacks merit. It was his argument that the application form was
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complemented by the justification report which contained the full information required
hence it cannot be said that insufficient information was supplied when the application for
15. Mr Moyo further argued that the decision by the first respondent involves an exercise of
discretion. He submitted that this Court should be slow to interfere with an exercise of
discretion. His case was that the appellants do not allege that the discretion was exercised
injudiciously warranting interference by this Court. With regards the citation of the second
respondent, he argued that the omission of the word “International” was not fatal. His case
was that unlike the omission of the words “Pvt Ltd” the omission of the word International
does not have legal connotations. He argued that the John v Delta case supra was
distinguishable from this case. In addition, he submitted that there was already a sewer
16. The appellants’ first ground of appeal attacks the decision of the court a quo on the basis
that it failed to find that the permit was granted after the time limit within which it ought
to have been granted had lapsed. Section 26(7) of the Act provides that:
“If the local planning authority has not determined in terms of subsection (6) an
application in terms of subsection (1) within three months of the date of
acknowledgement in terms of subsection (2) of the receipt of the application or any
extension of that period granted by the applicant in writing, the application shall
be deemed to have been refused by the local planning authority.” (my emphasis)
17. The above section makes it clear that if the application is not determined within three
months of the date of the receipt of the application or any extension of the period granted
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by the applicant it will lapse. In casu, the extension was granted by the second respondent,
by making the requisite application for extension, on the basis of the pervasive impact of
the Covid 19 pandemic. The extension was granted on 30 November 2021 and the permit
was granted on 21 December 2021 within a month from the date of extension.
Consequently, it cannot be said that the permit was granted outside the prescribed time
frame. The court a quo was therefore correct to find that the permit was granted within the
prescribed timeframe.
18. The second ground alleges that an alleged failure to provide certain information in ss 10,
11 and 12 of the application form amounts to a violation of s 26 (1) the Act. Firstly, s 26
does not contain any mandatory provision to provide any specific information in an
application form. As correctly argued by counsel for the second respondent, the same
form is used when one is making an application for conversion of use or when one is
making an application for regularization of buildings which would have been erected
without the approval of the first respondent. It follows, therefore, that all sections need not
be filled unless they are relevant. Section 27 of the Act provides that:
19. From the above it is clear that the argument that all the portions of the form must be filled
has no legal basis. More so, the Act gives the first respondent authority to reject the
“(2) On receipt of an application in terms of subsection (1) the local planning authority
shall examine it and shall:
a) within two weeks acknowledge receipt of the application unless the
application is incomplete in which case it shall acknowledge receipt thereof
as soon as the application is satisfactory; and …”
20. The acceptance of the application by the first respondent creates a presumption that the
information supplied was sufficient, within its discretion, to enable it to consider the
application. The appellants failed to successfully rebut the presumption. Suffice to note is
the point that the application form provides that it shall be completed to the extent
appropriate. This is clearly stated on the face of the application form. In addition, the
application form was accompanied by a detailed justification report which contained all
the relevant information that might be required by the first respondent. In any event, the
appellants do not allege any prejudice suffered by them as a result of the alleged missing
21. The court was inclined to agree with the argument advanced by the second respondent.
The case relied upon by counsel for the appellants is distinguishable from the present case.
In the Delta case the omission of the word “Pvt” was fatal because the word has legal
connotations unlike the omission of the word International. In any event there is no
confusion as to the identity of the second respondent. The appellants in their letter of
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objection, in the appeal before the court a quo and the present appeal, cites the second
respondent as Spirit Life Church without including the word International. They cannot
therefore turn around and claim that Spirit Life Church is a non-existent entity.
22. To add on, the appellants never raised the objection when the matter was still before the
first respondent. At that stage the second respondent would have been able to amend its
documents. In Marange Resources (Pvt) Ltd v Core Mining & Minerals (Pvt) Ltd & Ors
“As for the legal consequences of wrong citations, understandably very few situations
of ‘wrong defendants/respondents’ or ‘wrong plaintiffs/applicants’ have had to be
decided in our jurisdiction, as such errors, I believe, are routinely rectified in
consultation between the parties. See also, for comparison, Paterson TJM, Eckard’s
Principles of Civil Procedure, Juta and Company Ltd, 2005, 5th ed (2012) p.184 where
it is stated: “In the event of these pleas (non-joinder and mis-joinder) being successful,
the court will order a stay in the proceedings so that the pleadings can be amended so
as to bring the proper parties before the court.”
23. In any event the application for a change of use of a permit before the first respondent did
not constitute proceedings in litigation where the strict rules relating to citation of parties
apply.
24. Further the appellants contend that the court a quo failed to take into account the fact that
the permit was granted without making provision for the costs associated with connecting
a sewer line for the church. The court a quo found that the argument relating to the costs
of the sewer line was not motivated hence it ought to be treated as abandoned. The
consequence of not motivating all the grounds of appeal was enumerated in the case of
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Equity Properties (Pvt) Ltd v Alsham Global BVI Limited SC 101-21, in which this Court
held that:
25. In light of the above authority, it can be concluded that the court a quo was correct in
treating the ground as having been abandoned. The ground of appeal number 4 is therefore
not properly before the court. The appellants’ grief before this Court should have been that
they argued the issue before the court a quo and it erred by finding that they abandoned
the ground. Whilst still on this point, I must observe that ground of appeal number 5 was
not motivated before this Court. On the authority of Equity Properties supra, I take it that
26. Our law yields to a salutary principle that the discretion of a court a quo can only be
tampered with in limited circumstances. This Court has underscored this point in
& Anor SC 12 /14 at p 4 where it held that a decision by the Administrative Court made
in terms of s 38(1) of the Act involves a wide discretion which cannot be easily tampered
with. In casu, the appellants have merely regurgitated the case that was before the court
a quo, bereft of any meaningful challenge to that court’s discretion. The Appellants do
not even allege any of the factors required before a discretion can be interfered with. In
the absence of such allegations, the appeal cannot succeed. See also Barros & Anor v
COSTS
27. It was the second respondent’s prayer that costs be awarded on a punitive scale ‘for
the reason that the Supreme Court ought to remind appellants that it is not a forum for
view no basis was established to mulct the appellants with costs on a punitive scale as they
DISPOSITION
28. On the basis of the foregoing reasons, the court is satisfied that the appellants have failed
to establish that the court a quo misdirected itself in upholding the decision of the first
respondent wherein it granted the second respondent the permit to convert its property
from residential use to use as a church. The appeal has no merit and should fail.
29. It is for these reasons that we found that the appeal had no merit and dismissed it with
costs.