HAMANDISHE and Another v CHIRUMHANZU RURAL DISTRICT COUNCIL and Another (382 of 2025) [2025] ZWHHC 382 (1 July 2025)

4 HH 382-25 HCH 2076/24 ANDERSON HAMANDISHE and MATTHEW HAMANDISHE versus CHIRUMHANZU RURAL DISTRICT COUNCIL and THE SHERIFF FOR ZIMBABWE N.O. HIGH COURT OF ZIMBABWE MANYANGADZE J HARARE, 12 & 1 July 2025 **Opposed matter** _B Mudhau_ , for the applicants _T Mutasa_ , for the 1st respondent MANYANGADZE J: This is an application for a mandatory interdict wherein the applicants seek eviction of unspecified persons allocated residential stands by the first respondent in an area adjacent to or near Shayabvudzi Business Centre, located to the western side of Hamandishe business complex, within the Chirumhanzu District. For convenience, I shall refer to this area as “the premises” throughout this judgment. The applicants seek an order in the following terms: 1. The first respondent be and is hereby ordered/compelled to revoke the allocation of stands on the area designated as an open space at Shayabvudzi Business Centre which is located to the Western side of Hamandishe Complex (“the premises”) to whoever it allocated that piece of land within seven days of the date of service of this order. 2. The first respondent be and is hereby ordered/compelled to evict all the persons occupying the premises within seven days of the date of this order. 3. The first respondent be and is hereby ordered/compelled to demolish all the unlawful structures or developments erected on the premises within seven days of service of this order. 4. In the event that the first respondent does not comply with para(s) 2 and 3 of this order, the Sheriff of the High Court of Zimbabwe be and is hereby empowered in the first respondent’s stead to evict all persons occupying the premises and to demolish all structures erected or constructed thereat within fourteen days of receiving notification from applicants of first respondent’s non-compliance with para(s) 2 and 3 of this order. 5. The first respondent be and is hereby ordered to pay costs of suit at the legal practitioner and client scale. The applicants are brothers who are running a liquor supply business at the Hamandishe complex. The complex is adjacent to or near the premises in question. They use the premises, which are conveniently located close to the Hamandishe complex, for offloading their merchandise. Sometime in April 2023, the first respondent indicated it was planning to allocate residential stands on the premises. The applicants objected to the project, contending that it was _ultra vires_ the local development plan, the master plan and the regional plan. The area was a designated open and breathing space. There was a flurry of correspondence between the applicants and the first respondent, as the former maintained their objection to the housing project. The first respondent went on with its plans. Beneficiaries of the allocated stands started constructing some structures, which included dwelling houses. The stalemate between the parties culminated in the instant application, in which the relief set out above is sought. The first respondent has raised some points _in limine_ , which are that: 1. The applicants have not yet paid the legal costs emanating from the proceedings which were instituted in the Magistrates’ Court. The applicants had filed an application for an interdict which they later withdrew. The first respondent contends that the applicants have no right of audience with the court before they pay its costs, which were caused by the aborted proceedings. 2. The applicants have no _locus standi_ to institute the instant proceedings. 3. There is material non-joinder of the persons affected by the relief sought. During oral submissions, the first respondent did not ventilate the first two preliminary points. Argument by both parties focused on the third preliminary point, which was on non-joinder. It is therefore this point which I will proceed to consider, as the other points appear to have been abandoned. The first respondent contends that failure by the applicants to cite the persons affected by the order sought is fatal to the application. The first respondent points out that the applicants seek an order that will result in the eviction of certain persons from houses they had constructed, and the demolition of such houses. This drastic action cannot be executed without the affected persons being heard. In countering this submission, the applicants aver that non-joinder is not fatal to their application. In terms of the rules of court, an application or action shall not be defeated by failure by a party to join a third party to the proceedings. The court can determine the rights of the parties cited. It is not disabled from doing so by the non-citation of other parties. The applicants further contend that it is the first respondent who knows who these parties are, as it keeps a register of those allocated stands. The joinder or non-joinder of parties is governed by the rules of court. Rule 32(11) (12) of the High Court Rules,2021, is the applicable provision. It reads as follows: “(11) No cause or matter shall be defeated by reason of the misjoinder or non joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. (12) At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either on its own initiative or on application— 1. order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party; 2. order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party:” These provisions give the court wide discretion as to whether joinder of a party should be granted. Although the section refers to action proceedings, the principles are applicable to motion proceedings. It is noted that the provision does not elaborate on the criteria used to justify joinder. One must look to common law on this aspect. The fundamental consideration is that the party to be joined must have a direct and substantial interest in the matter. He or she must be seriously or materially affected by the outcome of the proceedings. See _Eunice Shumbairerwa_ v _Priscilla Chiraramiro & Ors_ HH 731/15,_Jeremiah Mutongi Bamu_ v _Douglas Togaraseyi Mwonzora_ CCZ 14/23, _Zimbabwe Teachers Association & Ors _v _Minister of Education and Culture_ 1990 (2) ZLR 48 (H), Maxwell _Matsvimbo Sibanda_ v _Gwyne Ann Stevenson_ _ & Ors_ SC 123/20. In _Matsvimbo Sibanda_ v _Stevenson, supra_ , at pp 9 – 10, Guvava JA referred to the definition of real and substantial interest provided in the book, “The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa”: “The scholars Cilliers AC, Loots C and Nel HC Herbstein and van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th Ed., Juta & Co. Ltd, Cape Town, 2009) vol. 1 at p 215 state as follows with regards to joinder: “A third party who has, or may have a direct and substantial interest in any order the court might make in proceedings or if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that such a person has waived the right to be joined… In fact, when such person is a necessary party in the sense that the court will not deal with the issues without a joinder being effected, and no question of discretion or convenience arises.” Direct and substantial interest is defined as follows at p 217: “A ‘direct and substantial interest’ has been held to be an ‘ interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation.’ It is ‘a legal interest in the subject matter of the litigation, excluding an indirect commercial interest only’. The possibility of such an interest is sufficient, and it is not necessary for the court to determine that it in fact exists. **For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter of the litigation, but also in the outcome of it**.” (emphasis added) .” In _casu,_ it seems to me that the applicants have taken a simplistic approach to the question. Their contention is that because r 32 (11) states that non-joinder shall not defeat a matter, it follows that a court can just proceed to determine the matter as between the parties present and not be hampered by the absence of third parties who have not been cited. The applicants further contend that they have complied with the constitutional imperative to seek a court order before evicting people from premises they are unlawfully occupying. In my view, the applicants are only telling half the story. Indeed, they are seeking a court order, without which eviction and demolition of structures cannot be carried out. However, they have not bothered to cite the persons affected by the intended eviction and demolitions. Before granting an order with such drastic consequences, the court must consider all facts and circumstances. This means that the party affected by such drastic consequences must be heard. This, in my view, is in line with s 74 of the Constitution, which reads as follows: “No person may be evicted from their home, or have their home demolished, without an order of court _made after considering all the relevant circumstances._ ” (underlining added for emphasis) In the case of _Raymond Mavenganise Svondo_ v _Kevin James Shadwell_ HB 142/18 “B”, the non-joinder of several other shareholders, in a matter where the value and disposal of the shares was a material issue, constituted a serious and fatal non-joinder. Mathonsi J (as he then was) cited, with approval, the remarks made by Robinson J in _Rose_ v _Arnold & Ors_ 1995 (2) ZLR at 19 E-G: “In the first place, because the applicant has not joined GL as a respondent to the proceedings, GL has not been given the opportunity of responding to the provisional order, which is of vital concern to him in that, if confirmed the effect of the final order will be to interdict him permanently from transferring his claims to the first or second respondent in pursuance of a contract which it appears GL entered into with the first respondent in all good faith. Indeed, there is not the vestige of a suggestion in the applicant’s papers that, in agreeing to let the first respondent acquire his claims, GL was guilty of any wrongdoing or of displaying any bad faith towards the applicant. That being so, this court cannot possibly consider confirming a provisional order the effect of which would be to impinge on or interfere with GL’s contractual relationship with the first respondent, the moreso when this could result in the breach of GL’s contract with the first respondent, let alone interdict GL from transferring his claims to any other person, without affording GL the chance of being heard on the subject. No court would countenance this.” Turning to the instant case, the structures sought to be demolished include dwelling houses. The occupants thereof have not been cited. It means that an order for their eviction, and demolition of the structures they have built, will be obtained without their participation in the proceedings leading to the eviction and demolition. The applicants see nothing irregular and unprocedural about that. It is my considered view that this is one of those cases where the non-joinder of persons whose rights and interests are affected by the order sought is fatal to the proceedings. Thus, the point _in limine_ on non-joinder has merit and is accordingly upheld. The proper course of action in the circumstances is to order that this matter be struck off the roll. **In the result, it is ordered that:** 1. The application be and is hereby struck off the roll. 2. The applicants bear the first respondent’s costs jointly and severally, the one paying the other to be absolved. **Manyangadze J:…………………………………………….** _Chatsama & Partners_, applicant’s legal practitioners _Gill, Godlonton & Gerrans_, first respondent’s legal practitioners