JOHANE MASOWE CHISHANU NYENYEDZI NOMWE HOUSING COOPERATIVE SOCIETY v CITY OF HARARE (40 of 2026) [2026] ZWHHC 25 (14 January 2026)

6 HH 40-26 HCH 733/25 JOHANE MASOWE CHISHANU NYENYEDZI NOMWE HOUSING COOPERATIVE SOCIETY versus CITY OF HARARE HIGH COURT OF ZIMBABWE DEMBURE J HARARE; 19 November 2025 & 14 January 2025 Urgent Chamber Application B Maunze, for the applicant N R Masamvi, for the respondent DEMBURE J: [1] This matter was filed as an urgent chamber application for an interdict. On 10 March 2025, before MAWADZE DJP, the matter was removed from the roll of urgent chamber applications for the reason that it was not urgent. It was accordingly enrolled on the ordinary opposed roll, and the applicant sought a final interdict against the respondent. On 19 November 2025, the court, after hearing submissions from the parties’ legal practitioners, handed down an ex tempore judgment with the operative order thereof, subsequently corrected, stating as follows: “1. The respondent shall forthwith stop harmonising and regularising any persons other than the applicant or its members on the 144 sites for regularisation under a certain piece of land called stand number 2254, being the Remainder of Glen Eagles Farm, Harare, which ranges from stand number 22509 to stand number 22666. 2. There shall be no order as to costs.” What follows are the full written reasons for the court’s decision. FACTUAL BACKGROUND [2] The applicant is a housing cooperative society duly registered in terms of s 17 of the Co-operative Societies Act [Chapter 24:05]. The respondent is a local authority established in terms of the Urban Councils Act [Chapter 29:15] (“the Act”). [3] The dispute concerns a certain piece of land, stand 2254 Budiriro Township, being the Remainder of Glen Eagles Farm, Harare, which ranges from stand number 22509 to 22666 (“the property”). It is common cause that the applicant, through its members, occupied the property and thereafter sought regularisation of their occupation. On 14 November 2014, the applicant applied to the respondent for the residential stands referred to herein as the property for housing development. [4] The applicant averred that on 27 September 2016, the respondent directed it to the Budiriro District council office for the regularisation of the stands occupied by its members. It was further pleaded that the applicant was given instructions for the regularisation thereof and directed to make payments for the land's intrinsic value, which payments were effected. It was further stated that the occupation of the said land by the applicant and its members was regularised and that this was confirmed by a letter from the respondent’s Director of Housing and Community Services. [5] It was averred that the applicant’s members have faced challenges as several entities and individuals have been coming to the piece of land, disturbing their occupation and activities, claiming entitlement to the same land. It was the applicant’s case that the respondent had not actively assisted the applicant despite the council having allocated the land to the applicant and approved the subdivision of the land into 157 stands for allocation to its members. It was also stated that a dispute arose in September 2024 when the respondent’s Director of Housing and principal housing officer advised the applicant of an intention to regularise the same area despite the applicant having already paid the land's intrinsic value and having the land regularised. [6] It was thus argued that the regularisation which the respondent intended to do would financially prejudice the applicant’s members, as the requests for payment of certain unannounced fees by the respondent’s workers and demands for additional documents are a fraudulent act, given that the regularisation processes have already been completed. The applicant also argued that there was a pending application for a declaratory order under Case No. HC 1798/22 over the same property. As will be noted, the said declaratory order was granted with the consent of the parties after this application was lodged but before it was set down for determination. [7] It was further averred that the applicant and its members were on the verge of suffering significant financial loss as they invested US$282,089.00 to acquire the land and US$224,500.00 for the water and sewer reticulation installed by the applicant. The actions of the respondent’s workers have threatened the applicant’s members with eviction if they do not pay certain regularisation fees. The contention was further that the regulation process was motivated by one individual, known as “Madzibaba Enock”, who has interests in their stands. It was contended that the regularisation process was meant to dispossess the applicant’s members of their stands, as the respondent intended to regularise other people, not the applicant and its members. It was also stated that two of the applicant’s members visited the site, and one of them, Maxwell Musara, was denied entry to his stand by unidentified agents of the respondent. The applicant also averred that its members would be rendered homeless if the relief sought was not granted. [8] The application was strenuously opposed by the respondent. In its notice of opposition, the respondent raised two points in limine, namely: (a) that the applicant lacks locus standi on the basis that it does not have an offer letter or authority from the respondent over the land in question, and (b) that there were material disputes of fact incapable of resolution on the papers. [9] On the merits, the respondent contended that the applicant’s members had not been denied access to the stands as alleged. It was averred that the visit was done by the regularisation task force team for data collection and to assess the sites that were illegally invaded in Harare. The task force would then prepare a report to be presented before the steering committee for deliberations and recommendations. [10] It was further pleaded that the applicant illegally occupied the respondent’s land without lawful authority. That its members remain in unlawful occupation thereof. The respondent contended that the applicant applied for regularisation and that the regularisation exercise was still ongoing and had not been completed. The respondent stated that it had not issued any offer letters to the applicant for the land. It also argued that there is a leadership dispute within the applicant, which it must sort out through the appropriate channels. It averred that the payments for land intrinsic value made by the applicant were not authorised by the Director of Housing and Community Services. The payments were made without the respondent’s authority. It was reiterated that the land belongs to the respondent, and the applicant has no right to that property. Accordingly, it cannot stop the respondent from conducting the regularisation exercise. The regularisation taskforce, it was also stated, did not evict anyone from the stands or bar anyone from accessing the stands. The respondent argued that there were no valid grounds which had been raised for the court to grant the interdict, and the application must be dismissed with punitive costs. [11] On 18 March 2025, the same day the deponent to the opposing affidavit, Phakamile Mabhena Moyo, the respondent’s Town Clerk, deposed to the opposing affidavit in this matter, he duly signed a Deed of Settlement (“DOS”) in the matter in Case No. HCH 1798/22. In that matter, which is a court application for a declaratory order, the respondent agreed that the property in question was allocated to the applicant’s members. It was further agreed that the applicant undertook to complete the necessary developments on the allocated land and that any illegal invaders must be evicted through the court. The parties further agreed for a consent order to be issued granting the declaratory order sought by the applicant in that matter. [12] On 19 March 2025, the court, per dube-banda J, issued an order by consent in Case No. HCH 1798/22, which embodies the terms of the parties’ DOS. The said consent order stated as follows: “1. The application be and is hereby granted. 2. It is declared that the allocations made to the applicant and its members by the respondent for Eagles Farm, Budiriro, ranging from stand No. 22509 to stand No. 22666 are unlawful and valid. 3. There is no order as to costs.” THE INTERLOCUTORY APPLICATION [13] At the hearing, Ms Masamvi, counsel for the respondent, made an oral application for the matter to be removed from the roll pending the determination of an application for the rescission of the consent order granted in Case No. HCH 1798/22. The application is indeed one for a postponement of a hearing of the matter. It is trite that such an application is an indulgence which is sought from the court, and the court has a discretion to either grant or refuse the application depending on the circumstances of each case. The application was made on the basis that there are pending proceedings before this court for the setting aside of the DOS and the consent order. As noted earlier, the consent order was issued before dube-banda J on 19 March 2025 in Case No. HCH 1798/22. The said application for rescission of judgment has not been finalised. This position was not disputed by Mr Maunze in his submissions. He indeed confirmed that those proceedings are pending and that the matter was filed under Case No. HCH 4931/25. He also confirmed that a notice of opposition has been filed in that matter, but the respondent has not prosecuted that application further. It is also common cause that the order in question was granted about eight (8) months ago on 19 March 2025. ORAL SUBMISSIONS BY COUNSELS [14] Ms Masamvi submitted that it would be in the interest of justice that this matter be removed from the roll to allow the proceedings for the rescission of the judgment to be completed. It was further argued that the said pending proceedings are common cause, and considering the circumstances, it would be prudent that the court grant the indulgence and remove the matter from the roll. With regards to costs, Ms Masamvi was emphatic that despite the authority in Stonewell Searches (Pvt) Ltd v Stone Holdings (Pvt) Ltd & Ors SC 22/21 that the party seeking the indulgence must tender wasted costs, she had no instructions from the respondent to make any tender of costs and would, therefore, in the circumstances pray that the costs be in the cause. In her view, that would be the appropriate order for costs in the circumstances. [15] Counsel, at one stage, when questioned by the court as to whether she had placed sufficient information and evidence to buttress the application or whether she had satisfied the requirements of an application of this nature, she attempted to request to make the application in writing. When further probed by the court whether she was now turning to a written application, she then turned back and insisted that she would now stand with the oral application which had already been submitted before me. I hasten to indicate that once the application has been made orally, the applicant (the respondent herein) cannot, in the same breath, seek to file a written application. It is a choice a litigant has to make, either to make an oral application or a written one. If there are pitfalls which befall a party or challenges which befall a party by adopting either option, one cannot then, in the process of seeking to rectify any issue that arises, resort to asking the court to be granted an indulgence to make another application in writing. The respondent, having opted to make the oral application, must accordingly stand by that application. Whether or not its explanation is sufficient is an issue the court will determine. The respondent no longer had the option in the circumstances to consider filing a written application. It was an option that it could have initially thought about and should have made its intention clear and known to the court on whether it was proceeding orally or in writing. It could not, therefore, turn to the written application in an attempt to address any deficiencies in the oral application. [16] Mr Maunze, on behalf of the applicant, strongly opposed the application. He submitted that once the respondent elected to make an oral application, it must accordingly lie on that application. The application would, therefore, stand and fall on that oral application or whatever has been submitted before the court by counsel. It was argued that it was no longer available for Ms Masamvi to make a written application. [17] It was further argued that the application before me does not address the requirements of an application of this nature, which is that of a postponement and these, it was submitted, were settled in Stonewell Searches (supra). The first requirement, it was argued, was not met in that there was no good and sufficient cause shown for the indulgence. It was argued that the application before me stands on its founding affidavit. He argued that the order in question was only attached to the answering affidavit to rebut the allegations made by the respondent in the opposing affidavit. The court, when sitting to determine a matter, disposes of it on the basis of the founding affidavit, and it had not been shown that there was any good cause for the indulgence sought. [18] It was submitted that if one considers p 82 of the record, the impugned order is a consent order consented to when the respondent was legally represented. It is the same Town Clerk who deposed to the opposing affidavit, who is the one who also signed the DOS, which led to the consent order in question. He was one of the most senior officials of the council and could not, therefore, denounce a DOS he duly signed before his lawyers. It was submitted that it was not in the interests of justice to remove the matter from the roll as the respondent was abusing the court process. The order in question, it was further submitted, was granted on 19 March 2025, and it was only on the eve of the hearing that counsel for the respondent made a phone call to Mr Maunze’s instructing attorney for the matter to be removed from the roll. It was, therefore, his view that the respondent was acting in bad faith and was not seeking to have this matter finalised. [19] Counsel also submitted that the applicant is a holder of a consent order, which order was extant. The respondent had not sought to have the order stayed pending the determination of the application for the rescission of the judgment. To that extent, it was argued that the respondent had accepted that there is an order and also that there are consequences of that court order. In the circumstances, it must deal with those consequences. [20] Mr Maunze argued that it was not in the interests of justice to grant the indulgence. That it would be prejudicial to the applicant, who deserves that the matter be finalised. In the circumstances, it was argued that the application had no merit and must be dismissed. He also submitted that he did not hear from the respondent tendering wasted costs in the case. If the court is to grant the application, it was submitted that the applicant would insist that the respondent should pay the wasted costs for the day. THE APPLICABLE LAW [21] It is trite that an application of this nature is for an indulgence. The application for the removal of a matter from the roll, which is set down for a hearing, is one for a postponement of the matter. The requirements for the grant of an application for a postponement would apply. Such an indulgence is not there for the mere asking. The indulgence is not a right which is obtainable on demand. It is a matter within the discretion of the court. When the court seeks to determine such an application, it must exercise its discretion judiciously, considering well-established factors. These factors have already been set out in the Stonewall Searches case (supra) cited by the applicant’s counsel. See also the earlier case of Apex Holdings (Pvt) Ltd v Venetian Blinds Specialists Ltd SC 33/15, where the court said: “An application for the postponement of a matter which has been set down for hearing is in the nature of an indulgence sought, the grant of which is in the discretion of the judge or court before which it is made. The applicant must therefore show that there is good cause for the postponement or that there is a likelihood of prejudice if the court refuses the indulgence being sought. In McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA), SCHULTZ JA remarked: “A party opposing an application to postpone has a procedural right that the appeal should proceed on the appointed day. It is also in the public interest that there should be an end to litigation. Accordingly, in order for an application for a postponement to succeed, he must show a 'good and strong reason' for the grant of such relief: Centirugo AG v Firestone SA (Pty) Ltd 1969 (3) SA 318 (T) at 320C-321B. The more detailed principles governing the grant and refusal of postponements have recently been summarised by the Constitutional Court in National Police Service Union v Minister of Safety and Security 2000 (4) SA 1110 (CC) at 1112C-F as follows: “The postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the court. Such postponement will not be granted unless this court is satisfied that it is in the interests of justice to do so. In this respect the applicant must show that there is good cause for the postponement. In order to satisfy the court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that gave rise to the application. Whether a postponement will be granted is therefore in the discretion of the court and cannot be secured by mere agreement between the parties. In exercising that discretion, this court will take into account a number of factors, including (but not limited to) whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed.” (my emphasis) [22] The above principles fully apply to an application for the removal of a matter from the roll, which is by its nature an application for a postponement of a matter. The applicant must, therefore, show that there is good cause for the postponement and that there is a likelihood of prejudice if the court refuses the indulgence sought. The law applicable in an application was further restated in Stonewall Searches (supra), where the Supreme Court emphasised that the court exercises a discretion considering several factors cumulatively. The Supreme Court cited, with approval, the South African case of Persadh v General Motors SA (Pty) Ltd 2006 (1) SA 455 (SE) para 13, where the court set out the legal principles applicable when a party applies for a postponement, as follows: “First, as that party seeks an indulgence he or she must show good cause for the interference with his or her opponent's procedural right to proceed and with the general interest of justice in having the matter finalised; secondly, the court is entrusted with a discretion as to whether to grant or refuse the indulgence; thirdly, a court should be slow to refuse a postponement where the reasons for the applicant's inability to proceed has been fully explained, where it is not a delaying tactic and where justice demands that a party should have further time for presenting his or her case; fourthly, the prejudice that the parties may or may not suffer must be considered; and, fifthly, the usual rule is that the party who is responsible for the postponement must pay the wasted costs.” (my emphasis) APPLICATION OF THE LAW TO THE FACTS [23] The applicant sought an indulgence that the matter be removed from the roll. It would appear, in my view, that the respondent’s counsel had taken a position that this application is there for the mere asking. By adopting that stance, she had done a disservice to her client. There must be a full and satisfactory explanation for the indulgence sought. In other words, the court must be satisfied that there is good cause for the indulgence for it to exercise its discretion in favour of the applicant. [24] In this case, while it is common cause that indeed there is a pending application for rescission of the consent order, it was not explained why the respondent had to wait until the last day, that is the eve of the hearing, to then seek to engage the other party on its request or to advise the other party of its intention to make an application of this nature. I also do not understand why an appropriate written application was not made, attaching to it the relevant documents, speaking on the issues arising in that matter, the basis of that application pending before the court, as well as enlightening the court with the full and satisfactory reasons why this matter in the present instance cannot proceed. The respondent’s counsel did not take that into account. She simply moved, on the day of the hearing, to make the application when the impugned order in question, which the court must take judicial notice of, was issued on 19 March 2025. [25] I fail to appreciate why the application could not be made in writing earlier, before the hearing, if Ms Masamvi intended to make it in writing. It was known to council that there is a pending matter. It was also known to council, which is legally represented, that the fact that there is an application for a rescission of a judgment does not per se automatically suspend the decision and the consequences of the court order in question. It was, therefore, incumbent on the respondent to have taken the necessary steps to seek that the effects and consequences of that order should not be felt or effected pending the determination of the application for rescission of the consent order. [26] The respondent ought to have approached the court with an application for stay of execution of the order and these proceedings pending the determination of the application for rescission of the consent order. The respondent did not do the needful. It had to wait for the hearing before me to make the application. In my view, the belated attempt to do so without giving full and satisfactory reasons in the circumstances cannot be acceptable. It can only be a delaying tactic by the respondent as it seeks to gauge its chances on another matter which is pending before the court. An appropriate application, in my view, ought to have been made prior to the hearing, in which case the full details of the pending matter would have been disclosed to the court. Even in her address to the court, Ms Masamvi did not give the court the full details of the pending matter, including the case number. It was the court that had to ask Mr Maunze in his response for the case number to be disclosed. In my view, the failure even to disclose the case number involved means that the respondent was not candid with the court. The full disclosure was required for the court to consider whether there was good cause for the court to interfere with the opponent's procedural right to proceed and the general interest of justice of having the matter finalised. In my view, the respondent's application fell short of the threshold required in an application of this nature. [27] The application, therefore, was not made with a genuine intention of seeking justice, but rather to seek to delay the effect or consequences of an extant court order. Further, I have also taken into account that when a matter has been set down for a hearing, it ought to be determined and finalised unless there are good reasons for delaying the settlement or resolution of the dispute. In that respect, I agree with Mr Maunze that indeed there would be prejudice to the applicant if the matter is not finalised or determined, taking into account also that there has been no full and satisfactory application for this application to be removed from the roll. [28] I also considered that the respondent had effectively refused to tender wasted costs. It is a requirement that, in an application of this nature, as confirmed in the Stonewell Searches case (supra), the party who is responsible for the postponement must pay the wasted costs. It was, therefore, incumbent on the respondent to tender the wasted costs. The relief it was seeking is one for an indulgence, as alluded to above, and is not a right which is obtainable on demand. As such, it should have been apparent to Ms Masamvi that there would be obvious costs which would have been incurred up to the date of hearing by the other party in preparation for the hearing. It ought to have dawned on the respondent that when moving to make this application or seeking the indulgence, it must have tendered the wasted costs. The refusal to do so would, in my view, make this application one made in bad faith. While I appreciate that counsel had no instructions, she must have known that, in an application of this nature, it is one of the requirements the court must take into account. In the circumstances, she ought to have sought those instructions before the hearing. I agree that the respondent is clearly acting in bad faith. The impugned order was granted on 19 March 2025, and the respondent had been aware of these proceedings. The application was a half-hearted attempt to seek an indulgence. It fell short of the requirements of an application of this nature. The application is clearly frivolous and cannot succeed. It is, therefore, dismissed, and the matter shall proceed accordingly. THE APPLICATION FOR A FINAL INTERDICT [29] Ms Masamvi advised the court that she was not insisting on the points in limine. She submitted that the respondent had abandoned those points in limine, given the court order and the DOS. The matter proceeded on the merits. SUBMISSIONS FOR THE PARTIES [30] Mr Maunze, for the applicant, submitted that the starting point was the respondent's own opposing affidavit, where the respondent confirmed a factual dilemma. That factual dilemma appears on pp 59-62. At p 60, in particular para 29, the respondent places a factual dilemma that there is no proof of allocation to other people. But in para 29.4, the respondent then makes a positive allegation that the respondent's housing policy gives preference to the occupier who is on the ground. It was argued that the respondent accepted that the land was allocated to the applicant. Having accepted that the land was allocated to the applicant, the respondent then acknowledged that there are other people, other than the applicant, who may have been allocated the same piece of land. That gave rise to interdictory relief as the applicant sought. Once the respondent has accepted the allocation, it cannot then give the same piece of land to third parties because the respondent had received the applicant's money for the land intrinsic value and the same respondent had even directed the applicant to develop the land. [31] Counsel submitted that there could not be any serious opposition to the present interdict, firstly, on the basis of the respondent's own affidavit, but most importantly, in terms of a consent order that was issued by this court. See p 82 of the record. It was argued that if the respondent before dube-banda J agreed that the allocations by the respondent to the applicant are lawful and valid, there would be no basis it can reject the applicant's rights to seek the order at p 51. That became issue estoppel. It was not only issue estoppel by judicial determination, but it was issue estoppel by voluntary consent of the parties, which was then sealed by judicial pronouncement. Unless that order has been set aside, the law was clear, therefore, that the order remains valid and binding. It has the force of law. He further argued that clearly, the applicant's rights were well grounded in law; even if we do not look at the affidavit itself, the order itself would settle that. The court must take judicial notice of that order anyway. Counsel moved for the relief that is sought at p 51 of the record to be granted with costs on an ordinary scale. [32] Ms Masamvi, on the other hand, submitted that even though the applicant was in possession of an order by consent that allocated to it the land in question, that did not confer upon the applicant a clear right as contemplated by the law. She argued that it is trite that in an application for a final interdict, the applicant must prove to the court that it has a clear right that is not open to any dispute whatsoever. In this case, the court order does not confer upon it a clear right. The reason is that there are conditions that attach to the allocation of council land. If such conditions are not met, it is open to council to revoke the allocation and the offer of the land in question. Her argument was further that as long as the applicant has not obtained title to the land in question, it does not have a clear right and that its right was open to dispute. The applicant, it was argued, had not established a clear right. [33] On the second requirement of irreparable harm, counsel submitted that irreparable harm cannot be quantified in monetary terms. It is harm that cannot be cured. Counsel argued that in this case, the applicant had not established any evidential material that points to the harm that he had suffered being irreparable. Even after the regularisation process, it is the occupiers and the allottees of the land that will be given first preference over the land. They will still be the ones who will be given precedence over the land. It cannot be said that they will suffer irreparable harm when the process of regularisation does not entail them being displaced from this land. Ms Masamvi argued that regularisation does not mean that they are going to be evicted. It is simply an administrative procedure to formalise the property or the land in question. If we are to then conclude that regularisation will occasion the applicant with irreparable harm, then that would simply be inaccurate. [34] Counsel submitted that the regularisation in question came as a directive from the Ministry of Local Government. She argued that when the respondent is confronted with a directive from the Ministry, its hands are bound in terms of s 313(3) of the Act. The respondent was now coming in to exercise its administrative authority in regularising and formalising the settlement to reduce the number of disputes that are emanating from the piece of land. This directive was not set aside or challenged by the applicants. So as long as this directive remains, the respondent is bound by it, and the respondent must comply with it. Counsel argued that it was not open for the applicant to come to court and try to circumvent that directive by way of an interdict when the directive itself remains extant. Ms Masamvi, however, conceded that the said Ministerial directive was not placed before the court. [35] When the court queried what this regularisation entails, when the court order stated that the allocation of the land to the applicant was lawful and valid, counsel submitted that there have been a lot of disputes in relation to members or people claiming to be members of the applicant, and that is the council’s concern. She argued that the court order itself does not fall away even in light of the regularisation. [36] Counsel also submitted that, on alternative remedies, it was available to the applicant to set aside the directive. The applicant had not challenged the ministerial directive. The applicant cannot, therefore, argue that it has no other satisfactory remedies available to it. When the court raised a query whether Ms Masamvi was now arguing a new case related to a Ministerial directive as in the opposing affidavit the position adopted was that the applicants’ members were illegal occupants, she admitted that in light of the order by consent and the DOS, it would be rather absurd for the respondent to maintain that position when the order by consent has not been set aside. She submitted that while the issue of the Ministerial directive was not properly articulated in the opposing affidavit, it was touched upon in the heads of argument. Counsel denied that she was remaking the respondent’s case. Ms Masamvi, however, conceded that there was an inadequacy in the defence taken by the respondent in its opposing affidavit, and that it did not properly articulate the position of the Ministerial directive. [37] Mr Maunze, in reply, submitted that counsel for the respondent was arguing a completely new case. The lawyers in the letter at p 38 were responding to a letter from the City of Harare dated 11 November 2024. They were not responding to a Ministerial directive. In fact, they could not respond to a Ministerial directive because the Minister directs council. The Minister cannot direct members of a cooperative. [38] Counsel further argued that in terms of s 313 of the Act, the Minister is only allowed to give directions of a general character, that is, policy directions. The Minister cannot meddle in the day-to-day affairs of council. The council’s hands are not tied. By operation of law, council has an opportunity to make representations to the Minister to say this land has already been regularised and has people who have rights on that land. And further, the Supreme Court has settled that an illegal Ministerial directive can and ought to be challenged, and obedience to it is not mandatory. Counsel made reference to the case of Standard Chartered Bank v China Shougang International SC 49/13 at p 5. He argued that there cannot be an alternative remedy because the directive was not to the applicant but to the respondent. [39] Mr Maunze further submitted that the applicant accepted that the respondent has title to the land. What the applicant has is right, title and interest in the land. That right, title and interest was confirmed by dube-banda J. It cannot be argued that a litigant who has paid the council intrinsic land value and who has gone on to develop the land at the direction of the City Council does not have a clear right. It was argued that once it is accepted that the City of Harare received money and there is a live dispute that other people can be allocated the same land City of Harare received money for, that was irreparable harm. The applicant cannot develop stands for the benefit of third parties. He argued that the application had merit and ought to be granted. EXAMINATION [40] I must first state that in the opposing affidavit, the respondent’s pleaded case was that the applicant and its members are in unlawful occupation or possession of council land. It contended further that council was, therefore, entitled to regularise the land, and it was council housing policy that the regularisation would take place with priority being given to those in occupation of the stands in question. The position adopted by Ms Masamvi at the hearing was to abandon the pleaded case. She was now arguing a completely different case from what the respondent had pleaded. The new case was that the respondent was undertaking the regularisation in compliance with a Ministerial directive. The law is clear that the court determines a matter based on the pleadings and the evidence which has been placed before it. It would constitute a gross irregularity for the court to consider issues which have not been pleaded unless there are points of law going to the root of the matter which can be raised at any stage of the proceedings. See Nzara & Ors v Kashumba & Ors SC 18/18. I must, therefore, determine the issue that arises from the pleadings before me. ISSUE FOR DETERMINATION WHETHER THE REQUIREMENTS FOR A FINAL INTERDICT HAVE BEEN SATISFIED [41] The applicant, in his draft final order at p 51 of the record, is seeking a final interdict. The requirements the applicant must establish to succeed in an application for a final interdict are that: (a) a clear right; (b) an injury actually committed or reasonably apprehended; and (c) the absence of similar protection by any other ordinary alternative remedy. See Econet Wireless Holdings & Ors v Minister of Finance & Ors 2001 (1) ZLR 373 (S) at 374 and Setlogelo v Setlogelo 1914 AD 221 at 227. A CLEAR RIGHT [42] According to Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa, 5th ed, at p 1457, whether the applicant has a right is a matter of substantive law. The applicant must prove a clear and definite right in terms of substantive law, a right which can be protected, a right existing at common law or statutory law. There is no doubt that the applicant was allocated the land in question, and the court order issued on 19 March 2025, with the consent of the parties, declared the allocations to the applicant’s members lawful and valid. The applicant has a clear right to seek the protection of the court, in respect of its right to the land, which had also been affirmed by an order of this court. [43] The law is settled that an extant order of court is binding and must be obeyed by a party to it unless it has been reversed or set aside, either on appeal or review or through a rescission which is done through the appropriate application in terms of the court rules. This position was set out in the Mauritius & Anor v Versapark Holdings (Pvt) Ltd & Anor SC 2/20 at p 9, where bhunu JA said: “It is trite that once a court has made an order it binds all and sundry concerned. Everyone bound by the court order has a duty to obey the order as it is until it has been lawfully altered or discharged by a court of competent jurisdiction or statute. In Hadkinson v Hadkinson [[1952] 2 All ER 567 (CA) at 569C] ROMER LJ recited the duty to obey court orders with remarkable clarity when he said: “It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of the obligation is shown by the fact that it even extends to where the person affected believes it to be irregular or even void.” This position had also been set out in Chiwenga v Chiwenga SC 2/14, where it was stated that: “The law is clear that an extant order of this Court must be obeyed or given effect to unless it has been varied or set aside by this Court and not even by consent can parties vary or depart therefrom. See CFU v Muriro & Ors 2000 (1) ZLR at p 405 (S).” [44] It is common cause that there is a judgment of the court which was issued by consent on 19 March 2025 before dube-banda J. The said consent order is still extant. The order being effective must accordingly be given effect. It is binding on the parties as both the applicant and the respondent were parties to it. They remain bound unless and until that order has been discharged or set aside by an order of a competent court. The court must take judicial notice of the existence of the consent court order and, in its determination, must then give effect to it. In my view, the effect of the court order declaring the allocations of the land or stands in question to the applicant’s members to be lawful and valid establishes the applicant’s clear right, which entitles it to seek the court’s protection. [45] The applicant’s allocation of the land being lawful, it would be inconsistent with the law, in particular s 155 of the Urban Council Act, for the respondent to purport to be carrying out another process of regularisation. The regularisation of an illegal encroachment onto council land does not arise in the circumstances where the applicant’s members are the lawful holders of right, title and interest in the property. The fact that council is still the registered title holder of the land does not detract from the right, title and interest which the applicant’s members have acquired in the land and which were confirmed by the agreement between the parties, superadded with the authority of the court. In that respect, the applicant's position in the founding affidavit that their occupation had already been regularised and that they had also paid the land intrinsic value is clearly affirmed by the court order in question. The order has not been set aside. The mere filing of the application for rescission does not render the order invalid or cause it to cease to be enforceable. It has not been stayed pending the determination of the application for rescission of the consent order. The court having declared these allocations to be valid and lawful, the alleged illegality in their occupation of the land does not arise. [46] What is also interesting is that the respondent's most senior official, the Town Clerk, is the one who signed the DOS. He is also the same person who deposed to the opposing affidavit on 18 March 2025 and contended that the respondent’s possession of the land was unlawful when, at the same time, he was signing a DOS consenting to an order that the allocations were lawful and valid. The respondent’s pleaded grounds of opposition were, therefore, clearly unsustainable given that there were a DOS and the subsequent consent order, which are both binding on them unless they have been set aside. The applicant has a legal right to the land, which is beyond doubt, and is entitled to prohibit the respondent. The first requirement of a clear right has been established. AN INJURY ACTUALLY COMMITTED OR REASONABLY APPREHENDED [47] The second requirement for a final interdict, as stated above, is that the injury must actually have been committed or reasonably apprehended. This requirement was well explained in Chironga & Anor v Minister of Justice, Legal and Parliamentary Affairs & Ors CCZ 14/20 at p 16, where the apex Court aptly stated as follows: “The authors Herbstein &Van Winsen at p 1464 state that injury must be understood in the wide sense. According to them, the harm must be caused by the respondent; alternatively, the prevention of the harm must be within the respondent’s power.” It is also my view that the second requirement has been satisfied, as there was indeed a reasonable apprehension of harm arising from the respondent’s purported regularisation process. In para(s) 29.2 and 29.4 of the respondent’s own opposing affidavit, the respondent admitted that, in terms of its policy, it would simply proceed to regularise the land by giving possession to those actually on the ground, and there is no doubt these may not be the applicant’s own members. There was no dispute that there are some people who have been invading the piece of land, claiming entitlement to it, and that they have been interfering with the applicant's members’ occupation of these stands. With such interferences and the position from the respondent that in whatever they are doing they will simply give effect to whoever is in physical possession or in actual occupation notwithstanding that the person is not one of the applicant's members it would, in my view create a reasonable apprehension of harm or prejudice on the applicant and its members who are the legitimate holders of right, title and interest in the land. [48] There was no dispute that the applicant had effected improvements on the land by hiring a developer who constructed water and sewer reticulation infrastructure at the applicant’s own cost. The respondent only disputed the legal right of the applicant to proceed with those developments. The applicant also expended money by paying for the land intrinsic value. There was no dispute that these payments were made, save for the respondent to allege that the payments were not authorised. That position was absurd as the payments were made to the respondent itself, and if they were not authorised, then they should not have been accepted. Having made those improvements, they will suffer irreparable harm if the relief sought is not granted and the respondent is allowed to proceed with its unlawful conduct through the so-called regularisation process. ABSENCE OF OTHER ORDINARY ALTERNATIVE REMEDY [49] As stated above, the other requisite for the grant of a final interdict is proof that there is no other satisfactory remedy available to the applicant. The applicant must, therefore, establish that there is no other alternative remedy available. It is trite that the alternative remedy referred to must be adequate in the circumstances, be ordinary and reasonable, be a legal remedy and grant similar protection. [50] In my view, it was also established that there is no ordinary satisfactory remedy which can provide similar relief to the applicant in the circumstances of this case. While arguing on this point, Ms Masamvi threw in an argument that there was a Ministerial directive. She argued that the respondent's hands were tied as it had to comply with the directive in terms of s 313 of the Urban Councils Act. She accordingly argued that, in the circumstances, there was an alternative remedy for the applicant to challenge the Ministerial directive. There was, however, nothing which was pleaded and placed on record as evidence to establish any Ministerial directive which was issued to the respondent to carry out the alleged regularisation process. The alleged fact that there was a Ministerial directive was within the knowledge of the respondent, as it is the one to whom the Ministerial directive could have been directed at law. It would be a directive to the respondent, not to the applicant. The onus was, therefore, on the respondent to establish that there was such a directive in the first place. It is trite that when a litigant makes a positive assertion, whether it is the applicant or respondent, it has the onus to prove that assertion. This position was enunciated in Book v Davidson 1988 (1) ZLR 365 at 384, where DUMBUTSHENA CJ (as he then was) said: “That that is the general principle running throughout our law can be seen from a number of judgments mentioned above by the learned Chief Justice. In Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706 (AD) at 711E-G potgieter AJA, as he then was, said: ‘The general principle governing the determination of the incidence of the onus is the one stated in the Corpus Iuris semper necessitas probandi incumbit illi qui agit (D 22.3.21). In other words, he who seeks a remedy must prove the grounds therefore. There is, however, also another rule, namely, ei incumbit probatio qui dicit non qui negat (D 22.3.2.) That is to say the party who alleges or, as it is sometimes stated, the party who makes the positive allegation, must prove (cf Kriegler v Minitzer and Anor 1949 (4) SA 821 (AD) at 828). Together with these two rules must be read the following principle, namely: agere etiam is videtur, qui exceptione utitur nam reus in exceptione actor est (D 44.1.1.)’ This principle is stated thus by DAVIS AJA in Pillay v Krishna and Anor 1946 AD 946 at 952: “Where the person against whom the claim is made is not content with a mere denial of that claim, but sets up a special defence, then he is regarded, quoad that defence, as being the claimant; for his defence to be upheld he must satisfy the Court that he is entitled to succeed on it.” (my emphasis) [51] It is clear from the record that the allegation that there was a Ministerial directive for council to carry out the said regularisation process was not pleaded. In any case, there was no evidence to establish it. The letter at p 38 of the record referred to by Ms Masamvi does not speak of any contents of a Ministerial directive which was allegedly issued to the respondent. It was not a Ministerial directive itself. There was nothing for me to even consider whether the directive was lawful, as there was no evidence of any such Ministerial directive placed before me. The court can only consider issues or questions which arise from the pleadings before it and the evidence which has been adduced. As such, it cannot be said that there was an alternative ordinary relief available for the applicant to pursue and which makes the relief of an interdict unavailable to the applicant in this case. The applicant cannot challenge the alleged Ministerial directive, assuming it could competently do so, which had not been shown to exist. DISPOSITION [52] I am satisfied that all the requirements for a final interdict have been duly satisfied and, accordingly, the application ought to be granted. In the draft order, there was no prayer for costs. I have also considered that in the applicant’s founding affidavit, there are no averments on any prayer for the costs of suit. It was only in the draft provisional order that there was a prayer for the interim relief to be granted with costs on a higher scale. I was not sitting to deal with the proceedings for a provisional order. Those proceedings could not be held as the court found the urgent chamber application not urgent and referred it to the ordinary opposed roll. As alluded to above, there was no prayer for costs on the terms of the final order sought. [53] The matter of costs is within the discretion of the court. The general rule is that costs follow the cause. Given that in the pleadings before me there was no specific prayer for costs sought by the applicant against the respondent for the grant of the final relief, I must be mindful of the law, as stated in Nzara & Ors v Kashumba & Ors (supra), that the court must only accord the relief which has been sought by the parties. I will, therefore, depart from the general rule and order that there shall be no order to costs. [54] Accordingly, the court granted the application in terms of the draft final relief sought by the applicant with no order as to costs. DEMBURE J: ……………………………………………… Jiti Law Chambers, applicant’s legal practitioners Gambe Law Group, respondent’s legal practitioners 6 HH 40-26 HCH 733/25 6 HH 40-26 HCH 733/25 JOHANE MASOWE CHISHANU NYENYEDZI NOMWE HOUSING COOPERATIVE SOCIETY versus CITY OF HARARE HIGH COURT OF ZIMBABWE DEMBURE J HARARE; 19 November 2025 & 14 January 2025 Urgent Chamber Application B Maunze, for the applicant N R Masamvi, for the respondent DEMBURE J: [1] This matter was filed as an urgent chamber application for an interdict. On 10 March 2025, before MAWADZE DJP, the matter was removed from the roll of urgent chamber applications for the reason that it was not urgent. It was accordingly enrolled on the ordinary opposed roll, and the applicant sought a final interdict against the respondent. On 19 November 2025, the court, after hearing submissions from the parties’ legal practitioners, handed down an ex tempore judgment with the operative order thereof, subsequently corrected, stating as follows: “1. The respondent shall forthwith stop harmonising and regularising any persons other than the applicant or its members on the 144 sites for regularisation under a certain piece of land called stand number 2254, being the Remainder of Glen Eagles Farm, Harare, which ranges from stand number 22509 to stand number 22666. 2. There shall be no order as to costs.” What follows are the full written reasons for the court’s decision. FACTUAL BACKGROUND [2] The applicant is a housing cooperative society duly registered in terms of s 17 of the Co-operative Societies Act [Chapter 24:05]. The respondent is a local authority established in terms of the Urban Councils Act [Chapter 29:15] (“the Act”). [3] The dispute concerns a certain piece of land, stand 2254 Budiriro Township, being the Remainder of Glen Eagles Farm, Harare, which ranges from stand number 22509 to 22666 (“the property”). It is common cause that the applicant, through its members, occupied the property and thereafter sought regularisation of their occupation. On 14 November 2014, the applicant applied to the respondent for the residential stands referred to herein as the property for housing development. [4] The applicant averred that on 27 September 2016, the respondent directed it to the Budiriro District council office for the regularisation of the stands occupied by its members. It was further pleaded that the applicant was given instructions for the regularisation thereof and directed to make payments for the land's intrinsic value, which payments were effected. It was further stated that the occupation of the said land by the applicant and its members was regularised and that this was confirmed by a letter from the respondent’s Director of Housing and Community Services. [5] It was averred that the applicant’s members have faced challenges as several entities and individuals have been coming to the piece of land, disturbing their occupation and activities, claiming entitlement to the same land. It was the applicant’s case that the respondent had not actively assisted the applicant despite the council having allocated the land to the applicant and approved the subdivision of the land into 157 stands for allocation to its members. It was also stated that a dispute arose in September 2024 when the respondent’s Director of Housing and principal housing officer advised the applicant of an intention to regularise the same area despite the applicant having already paid the land's intrinsic value and having the land regularised. [6] It was thus argued that the regularisation which the respondent intended to do would financially prejudice the applicant’s members, as the requests for payment of certain unannounced fees by the respondent’s workers and demands for additional documents are a fraudulent act, given that the regularisation processes have already been completed. The applicant also argued that there was a pending application for a declaratory order under Case No. HC 1798/22 over the same property. As will be noted, the said declaratory order was granted with the consent of the parties after this application was lodged but before it was set down for determination. [7] It was further averred that the applicant and its members were on the verge of suffering significant financial loss as they invested US$282,089.00 to acquire the land and US$224,500.00 for the water and sewer reticulation installed by the applicant. The actions of the respondent’s workers have threatened the applicant’s members with eviction if they do not pay certain regularisation fees. The contention was further that the regulation process was motivated by one individual, known as “Madzibaba Enock”, who has interests in their stands. It was contended that the regularisation process was meant to dispossess the applicant’s members of their stands, as the respondent intended to regularise other people, not the applicant and its members. It was also stated that two of the applicant’s members visited the site, and one of them, Maxwell Musara, was denied entry to his stand by unidentified agents of the respondent. The applicant also averred that its members would be rendered homeless if the relief sought was not granted. [8] The application was strenuously opposed by the respondent. In its notice of opposition, the respondent raised two points in limine, namely: (a) that the applicant lacks locus standi on the basis that it does not have an offer letter or authority from the respondent over the land in question, and (b) that there were material disputes of fact incapable of resolution on the papers. [9] On the merits, the respondent contended that the applicant’s members had not been denied access to the stands as alleged. It was averred that the visit was done by the regularisation task force team for data collection and to assess the sites that were illegally invaded in Harare. The task force would then prepare a report to be presented before the steering committee for deliberations and recommendations. [10] It was further pleaded that the applicant illegally occupied the respondent’s land without lawful authority. That its members remain in unlawful occupation thereof. The respondent contended that the applicant applied for regularisation and that the regularisation exercise was still ongoing and had not been completed. The respondent stated that it had not issued any offer letters to the applicant for the land. It also argued that there is a leadership dispute within the applicant, which it must sort out through the appropriate channels. It averred that the payments for land intrinsic value made by the applicant were not authorised by the Director of Housing and Community Services. The payments were made without the respondent’s authority. It was reiterated that the land belongs to the respondent, and the applicant has no right to that property. Accordingly, it cannot stop the respondent from conducting the regularisation exercise. The regularisation taskforce, it was also stated, did not evict anyone from the stands or bar anyone from accessing the stands. The respondent argued that there were no valid grounds which had been raised for the court to grant the interdict, and the application must be dismissed with punitive costs. [11] On 18 March 2025, the same day the deponent to the opposing affidavit, Phakamile Mabhena Moyo, the respondent’s Town Clerk, deposed to the opposing affidavit in this matter, he duly signed a Deed of Settlement (“DOS”) in the matter in Case No. HCH 1798/22. In that matter, which is a court application for a declaratory order, the respondent agreed that the property in question was allocated to the applicant’s members. It was further agreed that the applicant undertook to complete the necessary developments on the allocated land and that any illegal invaders must be evicted through the court. The parties further agreed for a consent order to be issued granting the declaratory order sought by the applicant in that matter. [12] On 19 March 2025, the court, per dube-banda J, issued an order by consent in Case No. HCH 1798/22, which embodies the terms of the parties’ DOS. The said consent order stated as follows: “1. The application be and is hereby granted. 2. It is declared that the allocations made to the applicant and its members by the respondent for Eagles Farm, Budiriro, ranging from stand No. 22509 to stand No. 22666 are unlawful and valid. 3. There is no order as to costs.” THE INTERLOCUTORY APPLICATION [13] At the hearing, Ms Masamvi, counsel for the respondent, made an oral application for the matter to be removed from the roll pending the determination of an application for the rescission of the consent order granted in Case No. HCH 1798/22. The application is indeed one for a postponement of a hearing of the matter. It is trite that such an application is an indulgence which is sought from the court, and the court has a discretion to either grant or refuse the application depending on the circumstances of each case. The application was made on the basis that there are pending proceedings before this court for the setting aside of the DOS and the consent order. As noted earlier, the consent order was issued before dube-banda J on 19 March 2025 in Case No. HCH 1798/22. The said application for rescission of judgment has not been finalised. This position was not disputed by Mr Maunze in his submissions. He indeed confirmed that those proceedings are pending and that the matter was filed under Case No. HCH 4931/25. He also confirmed that a notice of opposition has been filed in that matter, but the respondent has not prosecuted that application further. It is also common cause that the order in question was granted about eight (8) months ago on 19 March 2025. ORAL SUBMISSIONS BY COUNSELS [14] Ms Masamvi submitted that it would be in the interest of justice that this matter be removed from the roll to allow the proceedings for the rescission of the judgment to be completed. It was further argued that the said pending proceedings are common cause, and considering the circumstances, it would be prudent that the court grant the indulgence and remove the matter from the roll. With regards to costs, Ms Masamvi was emphatic that despite the authority in Stonewell Searches (Pvt) Ltd v Stone Holdings (Pvt) Ltd & Ors SC 22/21 that the party seeking the indulgence must tender wasted costs, she had no instructions from the respondent to make any tender of costs and would, therefore, in the circumstances pray that the costs be in the cause. In her view, that would be the appropriate order for costs in the circumstances. [15] Counsel, at one stage, when questioned by the court as to whether she had placed sufficient information and evidence to buttress the application or whether she had satisfied the requirements of an application of this nature, she attempted to request to make the application in writing. When further probed by the court whether she was now turning to a written application, she then turned back and insisted that she would now stand with the oral application which had already been submitted before me. I hasten to indicate that once the application has been made orally, the applicant (the respondent herein) cannot, in the same breath, seek to file a written application. It is a choice a litigant has to make, either to make an oral application or a written one. If there are pitfalls which befall a party or challenges which befall a party by adopting either option, one cannot then, in the process of seeking to rectify any issue that arises, resort to asking the court to be granted an indulgence to make another application in writing. The respondent, having opted to make the oral application, must accordingly stand by that application. Whether or not its explanation is sufficient is an issue the court will determine. The respondent no longer had the option in the circumstances to consider filing a written application. It was an option that it could have initially thought about and should have made its intention clear and known to the court on whether it was proceeding orally or in writing. It could not, therefore, turn to the written application in an attempt to address any deficiencies in the oral application. [16] Mr Maunze, on behalf of the applicant, strongly opposed the application. He submitted that once the respondent elected to make an oral application, it must accordingly lie on that application. The application would, therefore, stand and fall on that oral application or whatever has been submitted before the court by counsel. It was argued that it was no longer available for Ms Masamvi to make a written application. [17] It was further argued that the application before me does not address the requirements of an application of this nature, which is that of a postponement and these, it was submitted, were settled in Stonewell Searches (supra). The first requirement, it was argued, was not met in that there was no good and sufficient cause shown for the indulgence. It was argued that the application before me stands on its founding affidavit. He argued that the order in question was only attached to the answering affidavit to rebut the allegations made by the respondent in the opposing affidavit. The court, when sitting to determine a matter, disposes of it on the basis of the founding affidavit, and it had not been shown that there was any good cause for the indulgence sought. [18] It was submitted that if one considers p 82 of the record, the impugned order is a consent order consented to when the respondent was legally represented. It is the same Town Clerk who deposed to the opposing affidavit, who is the one who also signed the DOS, which led to the consent order in question. He was one of the most senior officials of the council and could not, therefore, denounce a DOS he duly signed before his lawyers. It was submitted that it was not in the interests of justice to remove the matter from the roll as the respondent was abusing the court process. The order in question, it was further submitted, was granted on 19 March 2025, and it was only on the eve of the hearing that counsel for the respondent made a phone call to Mr Maunze’s instructing attorney for the matter to be removed from the roll. It was, therefore, his view that the respondent was acting in bad faith and was not seeking to have this matter finalised. [19] Counsel also submitted that the applicant is a holder of a consent order, which order was extant. The respondent had not sought to have the order stayed pending the determination of the application for the rescission of the judgment. To that extent, it was argued that the respondent had accepted that there is an order and also that there are consequences of that court order. In the circumstances, it must deal with those consequences. [20] Mr Maunze argued that it was not in the interests of justice to grant the indulgence. That it would be prejudicial to the applicant, who deserves that the matter be finalised. In the circumstances, it was argued that the application had no merit and must be dismissed. He also submitted that he did not hear from the respondent tendering wasted costs in the case. If the court is to grant the application, it was submitted that the applicant would insist that the respondent should pay the wasted costs for the day. THE APPLICABLE LAW [21] It is trite that an application of this nature is for an indulgence. The application for the removal of a matter from the roll, which is set down for a hearing, is one for a postponement of the matter. The requirements for the grant of an application for a postponement would apply. Such an indulgence is not there for the mere asking. The indulgence is not a right which is obtainable on demand. It is a matter within the discretion of the court. When the court seeks to determine such an application, it must exercise its discretion judiciously, considering well-established factors. These factors have already been set out in the Stonewall Searches case (supra) cited by the applicant’s counsel. See also the earlier case of Apex Holdings (Pvt) Ltd v Venetian Blinds Specialists Ltd SC 33/15, where the court said: “An application for the postponement of a matter which has been set down for hearing is in the nature of an indulgence sought, the grant of which is in the discretion of the judge or court before which it is made. The applicant must therefore show that there is good cause for the postponement or that there is a likelihood of prejudice if the court refuses the indulgence being sought. In McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA), SCHULTZ JA remarked: “A party opposing an application to postpone has a procedural right that the appeal should proceed on the appointed day. It is also in the public interest that there should be an end to litigation. Accordingly, in order for an application for a postponement to succeed, he must show a 'good and strong reason' for the grant of such relief: Centirugo AG v Firestone SA (Pty) Ltd 1969 (3) SA 318 (T) at 320C-321B. The more detailed principles governing the grant and refusal of postponements have recently been summarised by the Constitutional Court in National Police Service Union v Minister of Safety and Security 2000 (4) SA 1110 (CC) at 1112C-F as follows: “The postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the court. Such postponement will not be granted unless this court is satisfied that it is in the interests of justice to do so. In this respect the applicant must show that there is good cause for the postponement. In order to satisfy the court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that gave rise to the application. Whether a postponement will be granted is therefore in the discretion of the court and cannot be secured by mere agreement between the parties. In exercising that discretion, this court will take into account a number of factors, including (but not limited to) whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed.” (my emphasis) [22] The above principles fully apply to an application for the removal of a matter from the roll, which is by its nature an application for a postponement of a matter. The applicant must, therefore, show that there is good cause for the postponement and that there is a likelihood of prejudice if the court refuses the indulgence sought. The law applicable in an application was further restated in Stonewall Searches (supra), where the Supreme Court emphasised that the court exercises a discretion considering several factors cumulatively. The Supreme Court cited, with approval, the South African case of Persadh v General Motors SA (Pty) Ltd 2006 (1) SA 455 (SE) para 13, where the court set out the legal principles applicable when a party applies for a postponement, as follows: “First, as that party seeks an indulgence he or she must show good cause for the interference with his or her opponent's procedural right to proceed and with the general interest of justice in having the matter finalised; secondly, the court is entrusted with a discretion as to whether to grant or refuse the indulgence; thirdly, a court should be slow to refuse a postponement where the reasons for the applicant's inability to proceed has been fully explained, where it is not a delaying tactic and where justice demands that a party should have further time for presenting his or her case; fourthly, the prejudice that the parties may or may not suffer must be considered; and, fifthly, the usual rule is that the party who is responsible for the postponement must pay the wasted costs.” (my emphasis) APPLICATION OF THE LAW TO THE FACTS [23] The applicant sought an indulgence that the matter be removed from the roll. It would appear, in my view, that the respondent’s counsel had taken a position that this application is there for the mere asking. By adopting that stance, she had done a disservice to her client. There must be a full and satisfactory explanation for the indulgence sought. In other words, the court must be satisfied that there is good cause for the indulgence for it to exercise its discretion in favour of the applicant. [24] In this case, while it is common cause that indeed there is a pending application for rescission of the consent order, it was not explained why the respondent had to wait until the last day, that is the eve of the hearing, to then seek to engage the other party on its request or to advise the other party of its intention to make an application of this nature. I also do not understand why an appropriate written application was not made, attaching to it the relevant documents, speaking on the issues arising in that matter, the basis of that application pending before the court, as well as enlightening the court with the full and satisfactory reasons why this matter in the present instance cannot proceed. The respondent’s counsel did not take that into account. She simply moved, on the day of the hearing, to make the application when the impugned order in question, which the court must take judicial notice of, was issued on 19 March 2025. [25] I fail to appreciate why the application could not be made in writing earlier, before the hearing, if Ms Masamvi intended to make it in writing. It was known to council that there is a pending matter. It was also known to council, which is legally represented, that the fact that there is an application for a rescission of a judgment does not per se automatically suspend the decision and the consequences of the court order in question. It was, therefore, incumbent on the respondent to have taken the necessary steps to seek that the effects and consequences of that order should not be felt or effected pending the determination of the application for rescission of the consent order. [26] The respondent ought to have approached the court with an application for stay of execution of the order and these proceedings pending the determination of the application for rescission of the consent order. The respondent did not do the needful. It had to wait for the hearing before me to make the application. In my view, the belated attempt to do so without giving full and satisfactory reasons in the circumstances cannot be acceptable. It can only be a delaying tactic by the respondent as it seeks to gauge its chances on another matter which is pending before the court. An appropriate application, in my view, ought to have been made prior to the hearing, in which case the full details of the pending matter would have been disclosed to the court. Even in her address to the court, Ms Masamvi did not give the court the full details of the pending matter, including the case number. It was the court that had to ask Mr Maunze in his response for the case number to be disclosed. In my view, the failure even to disclose the case number involved means that the respondent was not candid with the court. The full disclosure was required for the court to consider whether there was good cause for the court to interfere with the opponent's procedural right to proceed and the general interest of justice of having the matter finalised. In my view, the respondent's application fell short of the threshold required in an application of this nature. [27] The application, therefore, was not made with a genuine intention of seeking justice, but rather to seek to delay the effect or consequences of an extant court order. Further, I have also taken into account that when a matter has been set down for a hearing, it ought to be determined and finalised unless there are good reasons for delaying the settlement or resolution of the dispute. In that respect, I agree with Mr Maunze that indeed there would be prejudice to the applicant if the matter is not finalised or determined, taking into account also that there has been no full and satisfactory application for this application to be removed from the roll. [28] I also considered that the respondent had effectively refused to tender wasted costs. It is a requirement that, in an application of this nature, as confirmed in the Stonewell Searches case (supra), the party who is responsible for the postponement must pay the wasted costs. It was, therefore, incumbent on the respondent to tender the wasted costs. The relief it was seeking is one for an indulgence, as alluded to above, and is not a right which is obtainable on demand. As such, it should have been apparent to Ms Masamvi that there would be obvious costs which would have been incurred up to the date of hearing by the other party in preparation for the hearing. It ought to have dawned on the respondent that when moving to make this application or seeking the indulgence, it must have tendered the wasted costs. The refusal to do so would, in my view, make this application one made in bad faith. While I appreciate that counsel had no instructions, she must have known that, in an application of this nature, it is one of the requirements the court must take into account. In the circumstances, she ought to have sought those instructions before the hearing. I agree that the respondent is clearly acting in bad faith. The impugned order was granted on 19 March 2025, and the respondent had been aware of these proceedings. The application was a half-hearted attempt to seek an indulgence. It fell short of the requirements of an application of this nature. The application is clearly frivolous and cannot succeed. It is, therefore, dismissed, and the matter shall proceed accordingly. THE APPLICATION FOR A FINAL INTERDICT [29] Ms Masamvi advised the court that she was not insisting on the points in limine. She submitted that the respondent had abandoned those points in limine, given the court order and the DOS. The matter proceeded on the merits. SUBMISSIONS FOR THE PARTIES [30] Mr Maunze, for the applicant, submitted that the starting point was the respondent's own opposing affidavit, where the respondent confirmed a factual dilemma. That factual dilemma appears on pp 59-62. At p 60, in particular para 29, the respondent places a factual dilemma that there is no proof of allocation to other people. But in para 29.4, the respondent then makes a positive allegation that the respondent's housing policy gives preference to the occupier who is on the ground. It was argued that the respondent accepted that the land was allocated to the applicant. Having accepted that the land was allocated to the applicant, the respondent then acknowledged that there are other people, other than the applicant, who may have been allocated the same piece of land. That gave rise to interdictory relief as the applicant sought. Once the respondent has accepted the allocation, it cannot then give the same piece of land to third parties because the respondent had received the applicant's money for the land intrinsic value and the same respondent had even directed the applicant to develop the land. [31] Counsel submitted that there could not be any serious opposition to the present interdict, firstly, on the basis of the respondent's own affidavit, but most importantly, in terms of a consent order that was issued by this court. See p 82 of the record. It was argued that if the respondent before dube-banda J agreed that the allocations by the respondent to the applicant are lawful and valid, there would be no basis it can reject the applicant's rights to seek the order at p 51. That became issue estoppel. It was not only issue estoppel by judicial determination, but it was issue estoppel by voluntary consent of the parties, which was then sealed by judicial pronouncement. Unless that order has been set aside, the law was clear, therefore, that the order remains valid and binding. It has the force of law. He further argued that clearly, the applicant's rights were well grounded in law; even if we do not look at the affidavit itself, the order itself would settle that. The court must take judicial notice of that order anyway. Counsel moved for the relief that is sought at p 51 of the record to be granted with costs on an ordinary scale. [32] Ms Masamvi, on the other hand, submitted that even though the applicant was in possession of an order by consent that allocated to it the land in question, that did not confer upon the applicant a clear right as contemplated by the law. She argued that it is trite that in an application for a final interdict, the applicant must prove to the court that it has a clear right that is not open to any dispute whatsoever. In this case, the court order does not confer upon it a clear right. The reason is that there are conditions that attach to the allocation of council land. If such conditions are not met, it is open to council to revoke the allocation and the offer of the land in question. Her argument was further that as long as the applicant has not obtained title to the land in question, it does not have a clear right and that its right was open to dispute. The applicant, it was argued, had not established a clear right. [33] On the second requirement of irreparable harm, counsel submitted that irreparable harm cannot be quantified in monetary terms. It is harm that cannot be cured. Counsel argued that in this case, the applicant had not established any evidential material that points to the harm that he had suffered being irreparable. Even after the regularisation process, it is the occupiers and the allottees of the land that will be given first preference over the land. They will still be the ones who will be given precedence over the land. It cannot be said that they will suffer irreparable harm when the process of regularisation does not entail them being displaced from this land. Ms Masamvi argued that regularisation does not mean that they are going to be evicted. It is simply an administrative procedure to formalise the property or the land in question. If we are to then conclude that regularisation will occasion the applicant with irreparable harm, then that would simply be inaccurate. [34] Counsel submitted that the regularisation in question came as a directive from the Ministry of Local Government. She argued that when the respondent is confronted with a directive from the Ministry, its hands are bound in terms of s 313(3) of the Act. The respondent was now coming in to exercise its administrative authority in regularising and formalising the settlement to reduce the number of disputes that are emanating from the piece of land. This directive was not set aside or challenged by the applicants. So as long as this directive remains, the respondent is bound by it, and the respondent must comply with it. Counsel argued that it was not open for the applicant to come to court and try to circumvent that directive by way of an interdict when the directive itself remains extant. Ms Masamvi, however, conceded that the said Ministerial directive was not placed before the court. [35] When the court queried what this regularisation entails, when the court order stated that the allocation of the land to the applicant was lawful and valid, counsel submitted that there have been a lot of disputes in relation to members or people claiming to be members of the applicant, and that is the council’s concern. She argued that the court order itself does not fall away even in light of the regularisation. [36] Counsel also submitted that, on alternative remedies, it was available to the applicant to set aside the directive. The applicant had not challenged the ministerial directive. The applicant cannot, therefore, argue that it has no other satisfactory remedies available to it. When the court raised a query whether Ms Masamvi was now arguing a new case related to a Ministerial directive as in the opposing affidavit the position adopted was that the applicants’ members were illegal occupants, she admitted that in light of the order by consent and the DOS, it would be rather absurd for the respondent to maintain that position when the order by consent has not been set aside. She submitted that while the issue of the Ministerial directive was not properly articulated in the opposing affidavit, it was touched upon in the heads of argument. Counsel denied that she was remaking the respondent’s case. Ms Masamvi, however, conceded that there was an inadequacy in the defence taken by the respondent in its opposing affidavit, and that it did not properly articulate the position of the Ministerial directive. [37] Mr Maunze, in reply, submitted that counsel for the respondent was arguing a completely new case. The lawyers in the letter at p 38 were responding to a letter from the City of Harare dated 11 November 2024. They were not responding to a Ministerial directive. In fact, they could not respond to a Ministerial directive because the Minister directs council. The Minister cannot direct members of a cooperative. [38] Counsel further argued that in terms of s 313 of the Act, the Minister is only allowed to give directions of a general character, that is, policy directions. The Minister cannot meddle in the day-to-day affairs of council. The council’s hands are not tied. By operation of law, council has an opportunity to make representations to the Minister to say this land has already been regularised and has people who have rights on that land. And further, the Supreme Court has settled that an illegal Ministerial directive can and ought to be challenged, and obedience to it is not mandatory. Counsel made reference to the case of Standard Chartered Bank v China Shougang International SC 49/13 at p 5. He argued that there cannot be an alternative remedy because the directive was not to the applicant but to the respondent. [39] Mr Maunze further submitted that the applicant accepted that the respondent has title to the land. What the applicant has is right, title and interest in the land. That right, title and interest was confirmed by dube-banda J. It cannot be argued that a litigant who has paid the council intrinsic land value and who has gone on to develop the land at the direction of the City Council does not have a clear right. It was argued that once it is accepted that the City of Harare received money and there is a live dispute that other people can be allocated the same land City of Harare received money for, that was irreparable harm. The applicant cannot develop stands for the benefit of third parties. He argued that the application had merit and ought to be granted. EXAMINATION [40] I must first state that in the opposing affidavit, the respondent’s pleaded case was that the applicant and its members are in unlawful occupation or possession of council land. It contended further that council was, therefore, entitled to regularise the land, and it was council housing policy that the regularisation would take place with priority being given to those in occupation of the stands in question. The position adopted by Ms Masamvi at the hearing was to abandon the pleaded case. She was now arguing a completely different case from what the respondent had pleaded. The new case was that the respondent was undertaking the regularisation in compliance with a Ministerial directive. The law is clear that the court determines a matter based on the pleadings and the evidence which has been placed before it. It would constitute a gross irregularity for the court to consider issues which have not been pleaded unless there are points of law going to the root of the matter which can be raised at any stage of the proceedings. See Nzara & Ors v Kashumba & Ors SC 18/18. I must, therefore, determine the issue that arises from the pleadings before me. ISSUE FOR DETERMINATION WHETHER THE REQUIREMENTS FOR A FINAL INTERDICT HAVE BEEN SATISFIED [41] The applicant, in his draft final order at p 51 of the record, is seeking a final interdict. The requirements the applicant must establish to succeed in an application for a final interdict are that: (a) a clear right; (b) an injury actually committed or reasonably apprehended; and (c) the absence of similar protection by any other ordinary alternative remedy. See Econet Wireless Holdings & Ors v Minister of Finance & Ors 2001 (1) ZLR 373 (S) at 374 and Setlogelo v Setlogelo 1914 AD 221 at 227. A CLEAR RIGHT [42] According to Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa, 5th ed, at p 1457, whether the applicant has a right is a matter of substantive law. The applicant must prove a clear and definite right in terms of substantive law, a right which can be protected, a right existing at common law or statutory law. There is no doubt that the applicant was allocated the land in question, and the court order issued on 19 March 2025, with the consent of the parties, declared the allocations to the applicant’s members lawful and valid. The applicant has a clear right to seek the protection of the court, in respect of its right to the land, which had also been affirmed by an order of this court. [43] The law is settled that an extant order of court is binding and must be obeyed by a party to it unless it has been reversed or set aside, either on appeal or review or through a rescission which is done through the appropriate application in terms of the court rules. This position was set out in the Mauritius & Anor v Versapark Holdings (Pvt) Ltd & Anor SC 2/20 at p 9, where bhunu JA said: “It is trite that once a court has made an order it binds all and sundry concerned. Everyone bound by the court order has a duty to obey the order as it is until it has been lawfully altered or discharged by a court of competent jurisdiction or statute. In Hadkinson v Hadkinson [[1952] 2 All ER 567 (CA) at 569C] ROMER LJ recited the duty to obey court orders with remarkable clarity when he said: “It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of the obligation is shown by the fact that it even extends to where the person affected believes it to be irregular or even void.” This position had also been set out in Chiwenga v Chiwenga SC 2/14, where it was stated that: “The law is clear that an extant order of this Court must be obeyed or given effect to unless it has been varied or set aside by this Court and not even by consent can parties vary or depart therefrom. See CFU v Muriro & Ors 2000 (1) ZLR at p 405 (S).” [44] It is common cause that there is a judgment of the court which was issued by consent on 19 March 2025 before dube-banda J. The said consent order is still extant. The order being effective must accordingly be given effect. It is binding on the parties as both the applicant and the respondent were parties to it. They remain bound unless and until that order has been discharged or set aside by an order of a competent court. The court must take judicial notice of the existence of the consent court order and, in its determination, must then give effect to it. In my view, the effect of the court order declaring the allocations of the land or stands in question to the applicant’s members to be lawful and valid establishes the applicant’s clear right, which entitles it to seek the court’s protection. [45] The applicant’s allocation of the land being lawful, it would be inconsistent with the law, in particular s 155 of the Urban Council Act, for the respondent to purport to be carrying out another process of regularisation. The regularisation of an illegal encroachment onto council land does not arise in the circumstances where the applicant’s members are the lawful holders of right, title and interest in the property. The fact that council is still the registered title holder of the land does not detract from the right, title and interest which the applicant’s members have acquired in the land and which were confirmed by the agreement between the parties, superadded with the authority of the court. In that respect, the applicant's position in the founding affidavit that their occupation had already been regularised and that they had also paid the land intrinsic value is clearly affirmed by the court order in question. The order has not been set aside. The mere filing of the application for rescission does not render the order invalid or cause it to cease to be enforceable. It has not been stayed pending the determination of the application for rescission of the consent order. The court having declared these allocations to be valid and lawful, the alleged illegality in their occupation of the land does not arise. [46] What is also interesting is that the respondent's most senior official, the Town Clerk, is the one who signed the DOS. He is also the same person who deposed to the opposing affidavit on 18 March 2025 and contended that the respondent’s possession of the land was unlawful when, at the same time, he was signing a DOS consenting to an order that the allocations were lawful and valid. The respondent’s pleaded grounds of opposition were, therefore, clearly unsustainable given that there were a DOS and the subsequent consent order, which are both binding on them unless they have been set aside. The applicant has a legal right to the land, which is beyond doubt, and is entitled to prohibit the respondent. The first requirement of a clear right has been established. AN INJURY ACTUALLY COMMITTED OR REASONABLY APPREHENDED [47] The second requirement for a final interdict, as stated above, is that the injury must actually have been committed or reasonably apprehended. This requirement was well explained in Chironga & Anor v Minister of Justice, Legal and Parliamentary Affairs & Ors CCZ 14/20 at p 16, where the apex Court aptly stated as follows: “The authors Herbstein &Van Winsen at p 1464 state that injury must be understood in the wide sense. According to them, the harm must be caused by the respondent; alternatively, the prevention of the harm must be within the respondent’s power.” It is also my view that the second requirement has been satisfied, as there was indeed a reasonable apprehension of harm arising from the respondent’s purported regularisation process. In para(s) 29.2 and 29.4 of the respondent’s own opposing affidavit, the respondent admitted that, in terms of its policy, it would simply proceed to regularise the land by giving possession to those actually on the ground, and there is no doubt these may not be the applicant’s own members. There was no dispute that there are some people who have been invading the piece of land, claiming entitlement to it, and that they have been interfering with the applicant's members’ occupation of these stands. With such interferences and the position from the respondent that in whatever they are doing they will simply give effect to whoever is in physical possession or in actual occupation notwithstanding that the person is not one of the applicant's members it would, in my view create a reasonable apprehension of harm or prejudice on the applicant and its members who are the legitimate holders of right, title and interest in the land. [48] There was no dispute that the applicant had effected improvements on the land by hiring a developer who constructed water and sewer reticulation infrastructure at the applicant’s own cost. The respondent only disputed the legal right of the applicant to proceed with those developments. The applicant also expended money by paying for the land intrinsic value. There was no dispute that these payments were made, save for the respondent to allege that the payments were not authorised. That position was absurd as the payments were made to the respondent itself, and if they were not authorised, then they should not have been accepted. Having made those improvements, they will suffer irreparable harm if the relief sought is not granted and the respondent is allowed to proceed with its unlawful conduct through the so-called regularisation process. ABSENCE OF OTHER ORDINARY ALTERNATIVE REMEDY [49] As stated above, the other requisite for the grant of a final interdict is proof that there is no other satisfactory remedy available to the applicant. The applicant must, therefore, establish that there is no other alternative remedy available. It is trite that the alternative remedy referred to must be adequate in the circumstances, be ordinary and reasonable, be a legal remedy and grant similar protection. [50] In my view, it was also established that there is no ordinary satisfactory remedy which can provide similar relief to the applicant in the circumstances of this case. While arguing on this point, Ms Masamvi threw in an argument that there was a Ministerial directive. She argued that the respondent's hands were tied as it had to comply with the directive in terms of s 313 of the Urban Councils Act. She accordingly argued that, in the circumstances, there was an alternative remedy for the applicant to challenge the Ministerial directive. There was, however, nothing which was pleaded and placed on record as evidence to establish any Ministerial directive which was issued to the respondent to carry out the alleged regularisation process. The alleged fact that there was a Ministerial directive was within the knowledge of the respondent, as it is the one to whom the Ministerial directive could have been directed at law. It would be a directive to the respondent, not to the applicant. The onus was, therefore, on the respondent to establish that there was such a directive in the first place. It is trite that when a litigant makes a positive assertion, whether it is the applicant or respondent, it has the onus to prove that assertion. This position was enunciated in Book v Davidson 1988 (1) ZLR 365 at 384, where DUMBUTSHENA CJ (as he then was) said: “That that is the general principle running throughout our law can be seen from a number of judgments mentioned above by the learned Chief Justice. In Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706 (AD) at 711E-G potgieter AJA, as he then was, said: ‘The general principle governing the determination of the incidence of the onus is the one stated in the Corpus Iuris semper necessitas probandi incumbit illi qui agit (D 22.3.21). In other words, he who seeks a remedy must prove the grounds therefore. There is, however, also another rule, namely, ei incumbit probatio qui dicit non qui negat (D 22.3.2.) That is to say the party who alleges or, as it is sometimes stated, the party who makes the positive allegation, must prove (cf Kriegler v Minitzer and Anor 1949 (4) SA 821 (AD) at 828). Together with these two rules must be read the following principle, namely: agere etiam is videtur, qui exceptione utitur nam reus in exceptione actor est (D 44.1.1.)’ This principle is stated thus by DAVIS AJA in Pillay v Krishna and Anor 1946 AD 946 at 952: “Where the person against whom the claim is made is not content with a mere denial of that claim, but sets up a special defence, then he is regarded, quoad that defence, as being the claimant; for his defence to be upheld he must satisfy the Court that he is entitled to succeed on it.” (my emphasis) [51] It is clear from the record that the allegation that there was a Ministerial directive for council to carry out the said regularisation process was not pleaded. In any case, there was no evidence to establish it. The letter at p 38 of the record referred to by Ms Masamvi does not speak of any contents of a Ministerial directive which was allegedly issued to the respondent. It was not a Ministerial directive itself. There was nothing for me to even consider whether the directive was lawful, as there was no evidence of any such Ministerial directive placed before me. The court can only consider issues or questions which arise from the pleadings before it and the evidence which has been adduced. As such, it cannot be said that there was an alternative ordinary relief available for the applicant to pursue and which makes the relief of an interdict unavailable to the applicant in this case. The applicant cannot challenge the alleged Ministerial directive, assuming it could competently do so, which had not been shown to exist. DISPOSITION [52] I am satisfied that all the requirements for a final interdict have been duly satisfied and, accordingly, the application ought to be granted. In the draft order, there was no prayer for costs. I have also considered that in the applicant’s founding affidavit, there are no averments on any prayer for the costs of suit. It was only in the draft provisional order that there was a prayer for the interim relief to be granted with costs on a higher scale. I was not sitting to deal with the proceedings for a provisional order. Those proceedings could not be held as the court found the urgent chamber application not urgent and referred it to the ordinary opposed roll. As alluded to above, there was no prayer for costs on the terms of the final order sought. [53] The matter of costs is within the discretion of the court. The general rule is that costs follow the cause. Given that in the pleadings before me there was no specific prayer for costs sought by the applicant against the respondent for the grant of the final relief, I must be mindful of the law, as stated in Nzara & Ors v Kashumba & Ors (supra), that the court must only accord the relief which has been sought by the parties. I will, therefore, depart from the general rule and order that there shall be no order to costs. [54] Accordingly, the court granted the application in terms of the draft final relief sought by the applicant with no order as to costs. DEMBURE J: ……………………………………………… Jiti Law Chambers, applicant’s legal practitioners Gambe Law Group, respondent’s legal practitioners