MAKAYI and Others v MHISHI and Others (194 of 2025) [2025] ZWHHC 194 (21 March 2025)

7 HH 194 - 25 HC 4297/23 PARADZAI MAKAYI and PEPERTUA MAKAYI and PATRICIA CHIPATISO and TAFARA MAKAYI and PATRICIA CHIPATISO versus LLOYD MATIVENGA MHISHI N.O and ARNOLD AGGREY TENDAYI KHANDA and DARKEN CONSTRUCTION and MUFARO LOVEJOY CHIROMBO and SIMBARASHE CHIROMBO and KEITH MAPFUMO and ALOIS GARIKAI CHINGONZO and DOMINI TAKURA KODZWA and FARAI M MUSARA and CITY OF HARARE and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and FUNGAI MAKAYI and TAPIWA MAKAYI and TABETH RANGARIRAYI NYMADZAWO and REBECCA UNOPA MAKAYI HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 21 March 2025 Opposed Application T Mpofu, for the applicants C Mavhondo, for the 1st respondent N Chiota, for the 2nd and 3rd respondents R Nembo, for the 6th respondent B J Mandima, for the 10th respondent CHITAPI J: The parties are as listed in the heading to the application. The five (5) applicants seek against nine (9) respondents, a declaratur and consequential relief as set out in the draft order as follows: IT IS ORDERED THAT: The permit for the erection of thirty (3) flats unit on stand 539 Marlborough Township issued to Darken Construction for and on behalf of the late Simplicio Ecras Makayi by City of Harare dated 28 April, 2017 be and is hereby declared invalid and set aside for having been issued in contravention of the provisions of s 26(7) of the Regional Town and Country Planning Act, [Chapter 29:12].The late Simplicio Ecras Makayi having died on 22 of May 2016, the application for a permit filed, in terms of s 26(3) of the Regional Town and Country Planning Act be and is hereby declared invalid for having been issued in favour of a person who was already dead in violation of the provisions of s 26 of the Regional Town and Country Planning Act, as read together with the Administration of Estate Act. Consequent to the declaration above. The Cession and Transfer of Rights Memorandum of Agreement concluded by ana between Arnold Aggrey Tendai Khanda and Mufaro Lovejoy Chirombo and Simba Chirombo, for the sale and cession of rights, title and interests within a certain piece of land known as land share number measuring 130 square metres of stand 539 Marlborough, situated in the District of Salisbury measuring 4981 square metres held under Deed of Transfer No 5340/1979 for having been concluded in violation of the provisions of s 39 of the Regional Town and Country Planning Act, be and is hereby set aside.The Cession and Transfer of Rights Memorandum of Agreement concluded by and between Arnold Aggrey Tendayi Khanda and Keith Mapfumo for sale, cession and transfer of rights title and interests in a certain immovable commonly known as land share number 15 measuring 130 square metres with exclusive right of occupation and common arears to be defined in the Notarial Deed of stand 539 Marlborough Township Extension 3 of Marlborough situate on the District of Salisbury measuring 4981 square metres held under Deed of Transfer Number 5340/1979 dated 14 of September 2017 having been concluded in violation of the provision of s 39 of the Regional Town and Country Planning Act, and is hereby set aside.The Memorandum of Agreement Sale concluded by and between Arnold Aggrey Tendayi Khanda and Alois Garikai Chingozi for the sale of undivided share +/- 3.229% share, being land share number 8 in a certain piece of land 539 Marlborough Township Extension 3 of Marlborough situate in the District of Salisbury measuring 4981 square metres, dated the 10th day of March 2022, having been concluded in violation of the provisions of s 39 of the Regional Town and Country Planning Act, be and is hereby set aside.A Cession and Transfer of Rights Memorandum of Agreement by Arnold Aggrey Tendayi Khanda and Domic Takura Kodzwa for the sale and cession of rights, title and interests within an immovable property known as land share 6 measuring +/- 130 square metres of 539 Marlborough Township Extension 3 of Marlborough situate in the District of Salisbury measuring 4981 square metres, held under Deed of Transfer Number 5340/1979, dated the 7th of October 2017, having been concluded in violation of the provisions of s 39 of the Regional Town and Country Planning Act, be and is hereby set aside.A Cession and Transfer of rights, title and interests concluded by and between Arnold Aggrey Tendayi Khanda and Alias Garikayi Chingodzo within a stand with exclusive rights of occupation and common areas to be defined in the Notarial Deed of stand immovable property known as land share 16 measuring +/- 130 square metres of 539 Marlborough Township Extension 3 of Marlborough situate in the District of Salisbury measuring 4981 square metres, held under Deed of Transfer Number 5340/1979, dated the 12th of November 1979, having been concluded in violation of the provisions of s 39 of the Regional Town and Country Planning Act, be and is hereby set aside.Arnold Aggrey Khanda, be and is hereby declared not a Creditor of the Estate of the Late Simplicio Ecras Makayi and any payment made in him pursuant to his unlawful inclusion in the Estate’s Account as Creditor of the Estate be refunded by him to Estate.The Consent of Sale issued by the Master of the High Court of Zimbabwe in respect of share numbers 2,3,4,5,8,9,10,11,12,13 and 14 having issued in contravention of theAny development permit or order issued by City of Harare pursuant to the issuance of the permit for the erection of the Thirty (30) flats units on stand 539 Marlborough Township for having been issued in contravention of the provisions of s 26(7) of the Regional Town and Country Planning Act, in relation to any of the so flats units, be and is hereby set aside.The second respondent and any other respondents who oppose the application be and is hereby ordered to pay costs in suit on Attorney and client scale. The applicants as named in the heading to this application claim to be beneficiaries in the Estate of the Late Simplicio Ecras Makaya. The fifth respondent in particular that is Patricia Chipatiso is the executrix dative of the estate of the late Deliwe Leocadia Makaya. It was not immediately stated in the founding affidavit why the Estate Late Deliwe Leocadia Makaya is relevant to the application nor why the capacity of Patricia Chipatiso as executrix dative of that Estate is relevant. The first respondent Lloyd Mativenga Mhishi N.O is cited as the Executor Dative of the Estate Late Simplicio ECMS Makayi. The applicants averred that the reason for citing the first respondent was that he was unlawfully implementing a subdivision in relation to stand 539 Marlborough Township Extension held under deed of transfer No 5340/1979. It is common cause that deed of transfer No 5340/1979 is in the name of the late Simplicio Ecras Makayi. The applicants also cited the first applicant because he was party to the agreements and cession agreements concluded between one Arnold Aggrey Tendayi Khandu and 5th to 12th respondents. The applicants impugn those agreements and seek their setting aside as prayed in the draft order. The third respondent is Darken Construction. Its legal stating is to the applicants unknown. However, it was stated that it is entity in whose name a permit for the subdivision of the property subject of dispute was issued. The fourth, fifth, sixth, seventh, eighth and ninth respondents are individuals who purchased land off the property in dispute the tenth respondent is City of Harare which is the local planning authority for the area in which the property in dispute is situate. The eleventh respondent is the Master of the High Court sued in his official capacity of being responsible for the supervision and administration and winding up of deceased estates. The applicants averred that the eleventh respondent issued a consent to the sale of units which however were sold in terms of an invalid permit. The twelfth respondent, Registrar of Deeds is cited in terms of the law as the official that registers property titles in the Deeds Office. The thirteenth to the seventeenth respondents inclusive were cited as either a male or female adult of Harare and in particular of 5 Chinyiku Road, Malborough, Harare save for the seventeenth respondent whose address was given as that of her legal practitioners. The reasons for their citation of those respondents was not given in introducing or describing them. The second, third, fourth and fifth applicants filed affidavits in which they aligned with and verified and adopted the cause of action as set out by the first applicant. The fifth applicant explained that she was the daughter of the late Simplicio Ecras Makay and Deliwe Makayi who were married to each other. Deliwe Makayi was the surviving spouse of Simphlicio and a beneficiary of the estate of Simplicio who passed on before her. She died on 9 October, 2022 long before Simplicio whose estate was registered in 2016 had passed on either on 22 June or May 2016. I could not find the correct date. Different months are given in the founding affidavit. The confusion is not material since the date of death is not an issue. The gravamen of the application is that the applicants impugn the legality of the permit which was issued for change of use of the disputed property and which permit subsequently resulted in the sale of stands created thereby. The applicants averred that an application was made on 10 May 2016, under ref CWR/13/16 by or in the name Darken Construction cited as the third respondent herein in terms of s 26(3) of the Act for a permit to erect 30 garden flat unites on stand 539 Marlborough Township. The applicants averred that the application did not conform with s 26 of the Act in that the registered owner of the property the late Simphlicio Makayi did not sign the application. The applicants averred that although the application was acknowledged by City of Harare, the tenth respondent herein it was made by Darken Construction referred to therein as the applicant and that all correspondence referred to Darken Construction as opposed to the owner. They averred that there was nothing to indicate that the owner made the application. The permit was also not issued to the owner. The applicants further averred that there was nothing to indicate that Darken Construction was an agent for the registered owner. The applicants also impugned the process of issue of the permit as having been legally flawed as it contravened s 26(7) of the Act. The applicants averred that the application for the permit ought to have been determined within three (3) months of the date of its receipt by the tenth respondent unless the applicant had in writing applied for the extension of the three (3) months period such application being made within the three (3) month period for processing the permit and not after its lapse. The applicants averred that the permit was only issued on 28 April, 2017 and attached a copy. The permit reference PD/WR/539 Marlborough, permit No. C/WR/13/16 was issued in the name of Darken Construction. It was issued in terms of s 26(3) of the Act. The permit authorised the erection of 30 flat units on the property. The permit contained a clause that any person aggrieved by the decision to issue the permit was advised to appeal to the Administrative Court within thirty (30) days of the granting of the permit. The applicant averred that the permit was issued almost a year later from the date of receipt of the application and that there had been no application for extension of the three months period and further that records at City of Harare, the tenth respondent did not show that an extension of time for processing the permit had been made. The applicant also averred that the application for the permit was one which required that owners of adjacent properties be personally given individual notices of the application for their consideration and to consent or object to the issue of the permit. The applicants averred that their investigations had revealed that owners of adjacent properties were not served with individual notices and that the records at the tenth respondent’s offices did not contain the notices nor an indication that notices were issued and served by the applicant for the permit. The applicants averred that the issuing of the permit was unlawful for not being in compliance with lawful process for obtaining the permit and that the permit should be declared a legal nullity. The applicants averred that on the strength of and armed with the permit, the second respondent registered with the fourth respondent a creditor’s claim against the estate of Simphlicio Makayi which claim was accepted by the first respondent. It was averred that the first respondent withdrew the initial First and Final distribution account so that he would take into account of the second respondents’ claim. The applicants averred that the executor acting on the erroneous belief that a valid permit had been issued, caused a revaluation of the subdivided property and accepted a figure of USD 668 325. 00 in place of the value of USD 90 000. 00 which had been accepted by the Master before the second respondent came into the picture. In consequence of the new valuation, the first respondent applied to and was granted authority in terms of s 120 of the Administration of Estates Act to sell ten (10) units. It was averred that the second respondent then alienated or sold the stands to members of the public. The applicants noted that the second respondent when selling the stands was described and listed as the owner of the property yet it should have been the first respondent who should have executed the agreements on behalf of the estate. The applicants also impugned the subsequently executed agreements of sale of cession of the flat units or stands on the basis that the sales were in violation of s 39 of the Act. The first respondent filed an opposing affidavit in which he not only defended his impugned actions but openly supported the conduct of the second respondent. When the court asked the first respondent’s counsel Mr. Mavhondo whether the first respondent was not best advised to take a neutral position, counsel was advised, sought instructions and formally withdrew the opposing papers of the first respondent. Counsel advised that the first respondent would abide the decision of the court. It must however be made clear that the first respondent is not barred from participation in the application by reason of his being executor dative. Indeed, he would be welcome to set out facts which assist the court concerning the paper trail of how the estate administration had evolved. Unfortunately, in this affidavit, after the first respondent had been served, he decided that he would oppose the application and went on to take a point in limine that the application was not properly before the court as the applicants should have appealed to the Administrative Court or sought a review in the High Court. The first respondent then indicated that he was filing an opposing affidavit to assist the court. He then unfortunately adopted what appeared to be a partisan position to support his actions, those of the second respondent and those of the tenth respondent. He went about it wrongly. He needed to file a notice to abide the decision of the court and if he intended to be of assistance to the court, to then file and affidavits of facts pertaining to the development of the dispute to the extent of those facts which are within his knowledge and what he did. To express opinions on who between the applicants and respondents had a good case was not advisable considering that the executor datives main function is to administer the estate impartiality in the interests of the estate, beneficiaries and creditors. The decision to withdraw the opposition was eminently proper. The first respondent’s opposition and documents appertaining to this opposition were therefore expunged from the record. The second and third respondents opposed the application through an affidavit deposed to by the second respondent for himself and on behalf of the third respondent duly authorized by virtue of a resolution by the third respondents’ board. The third respondent is presented as a duly registered company with limited liability. Despite the averment by the applicant that the third respondent’s status and existence could not be established, the third respondent did not see it fit to provide details of its incorporation and that is very poor pleading on the part of counsel who settled the opposing papers. It still remains unclear whether or not the third respondent is a legal persona as no document of incorporation was produced nor referred to in any detail. The second and third respondents took two points in limine. I must record that parties at the commencement of hearing agreed that the court should adopt a rolled up approach in terms of which the parties address the points in limine and merits at the same time. The courts decides the matter starting with points in limine. If its judgment on the points in limine disposes of the matter, it ends these. If not then the judgment will deal with the merits. The second and third respondents averred that the applicant adopted a wrong procedure for seeking the relief sought. They averred that since the issue raised by the applicants concerned the lawfulness and propriety of issuing the permit by the tenth respondent, the applicants ought to have proceeded by way of review. It was averred that the applicants were simply trying to circumvent the review process because they were out of time and employed the wrong procedure of a declarator. The applicants also averred that since the applicants also challenged the acceptance of the Distribution account of the late Simplico Makayi they should have filed a review application or instituted action proceedings. They averred that since seven years down the line had passed since the conduct of the respondents complained took place, a declaration of rights was not a competent relief to seek. Thirdly, the second and third respondents averred that there were material disputes of fact arising from the founding affidavit which could not be resolved on the papers. The second and third respondents did not however state the details of the disputes of fact. They simply stated that the founding affidavit was replete with suppositions and conjecture. The second and third respondents then stated that they would deal with the “specific disputes of fact below”. The affidavit then proceeded to deal with the merits of the matter. It is clear that the second and third respondents envisaged that they would demonstrate the points of material dispute in dealing with the merits. This is wrong procedurally because a point in limine must not be conflated with the merits of the matter since points in limine are dilatory in nature and must be self contained. By raising them, the objector would be trying to move the court to dispose of the matter one way or the other on the points in limine without going into the substance of the dispute. Thus, in an objection that there are individual disputes of fact those disputed facts should not be left to be traversed in responding to the merits. In casu, the court must hold that the objection on this ground was not substantiated. The objection fails on this score. The sixth respondent also raised two points in the limine. He averred that the applicants should either have filed an appeal in the Administrative Court or a review application. The sixth respondent further averred that to the extent that the applicants challenged the acceptance of the distribution account by the Master and the consent to sell which the Master granted, the proper procedure should have been by review since the Masters conduct involved the exercise of statutory power. The sixth respondent also averred that there were material disputes of fact in the matter which could not be resolved on the papers. In this regard, the sixth respondent deposed as follows in paragraph 6 of his affidavit. “6 Further I submit that this matter has material disputes of fact which cannot be resolved on paper. The applicants were well aware of such issues because their application was hinged on a lot of assumptions and conjecture”. The sixth respondent ended there. The same comments made in relation to the inadequacy of pleading the objection that there are material disputes of fact when dealing with the second and third respondents points in limine apply with equal force to the sixth respondent. The objection is thus not substantiated and it resultantly fails. The tenth respondent, the City of Harare took points in limine as well. In the opposing affidavit sworn to by the Town Clerk, it was averred that since the applicants were challenging the issue of the permit they were supposed to seek relief by way of appeal to the Administrative Court within one month of the granting of the permit in accordance with the provisions of the Act in instances which a person seeks to challenges the issue of a permit. It was averred that the procedure for challenge is provided for in s 26(3) of the Act. The deponent averred that the making of this application six years after the event was intended to circumvent the provisions of the law. The tenth respondent further averred that since the applicants were challenging the decision of the Master to confirm the first and final distribution account as well as the issue of consent to the sale of the stands created by the subdivision, the correct procedure was for the applicants to register their concerns with the Master or to challenge the Masters decision in court in terms of the relevant Act which I take to be the Administration of Estates Act [Chapter 6:01]. The tenth respondent averred that the applicants had chosen the wrong procedure of seeking a declaratur to escape from the time line bars placed by the enactments under which the impugned conduct was done. In reply, with regards to the opposing affidavit of the second and third respondents, the applicants averred that their opposing affidavit was not dated. It was averred that for that reason, the affidavit was invalid and thus the court had to treat the second and third respondents as not having opposed the application. They did not traverse the substance of the points in limine. At the hearing, the issue of the defective affidavit was not pursued. Even assuming that one was to find that the second and third respondents opposing affidavit is defective, the tenth respondent raised the same issue of the impropriety of seeking a declaratur. The point in limine which detains the court is the attack on the application as not being procedurally sound. The respondents’ have taken the point that the applicants have disguised a review cum appeal as an application for a declaratur. The applicants aver that there is nothing wrong with the procedure which they adopted. The power of the court to issue a declaration has been traversed in many decisions of the superior courts. In the case of Newton Elliot Dongo v Joytindra Natverial Nack and 5 Ors SC 52/20, gwaunza DJC refreshed the law on the power of the court in relation to declaraturs as provided for in s 14 of the High Court Act as follows at p 11 of the cyclostyled judgment. “[11] The appellants’ application for a declaratur in the court a quo was made in terms of s 14 of the Act, which states as follows: ‘The High Court may, in its discretion at the instance of any interested person enquire with and determine any existing, future or contigent right or obligation notwithstanding that such person cannot claim any relief consequential upon such determination.” Implicit from a reading of the provision is that a declaration is sought by person with an interest in the subject matter of the dispute enquiring or seeking a determination of an existing future or contingent right. In Johnsen v Agricultural Finance Corp 1995(1) ZLR 65 (5) Gubbay CJ had occasion to consider when a declaratur should be granted. The learned Chief Justice remarked as follows at 72E-f “The condition precedent to the grant of a declaratory under s 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction”. See also Family Benefit friendly Society v Commissioner of Inland Revenue and Anor 1995 (4) SA 172 (1). In the case of Munn Publishing (RT) Ltd v ZBC 1994 (1) ZLR 337 (S)av 343 – 344, gubbay CJ stated as follows after noting that the applicant must be an interested person with a direct and substantial interest in the subject matter of the suit. “… The interest must relate to an existing, future or contingent right. The court will not decide abstract academic or hypothetical questions unrelated to such interest. See Anglo-Transvaal Collienes Ltd v SA Mutual Life Assurance Society 1977 (3) SA 631 (I) at 635 G – H, but the existence of an actual dispute between persons interested is not a statutory requirement to an exercise by the court of jurisdiction. Nor does the availability of another remedy render the grant of a declaratory order incompetent. See Gelcon Investments (Pvt) Ltd v Adair Properties (Rt) Lt 1969 (2) RLR 120 (G) at 128 A-B; 1969 (3) SA 142 (R)at 144 D-F” The applicants averred that they had rights which fall to be determined. They argued in the heads of argument that the High Court had unlimited jurisdiction to determine the declaration sought. For that reason, the applicants took the view that argument on whether the issue raised should be brought by way of appeal or review were of no substance. This court has been loath to entertain an application for a declaratory order which in all the circumstances is in fact a disguised review application. In the case of Liberty Muchena v Public Service Commission and Anor HB 207/23 KABASA J stated as follows at page 3 of the cyclostyled judgment: “In bringing an application for a declaratur is the applicant seeking to circumvent the time limits for a review.” A review is concerned with the regularity and validity of the proceedings. (Liberty Life Assurance of Africa v Kachelhoffer. 2001 (3) SA 1094. The decision making process is what a review looks at (Krumm v The Master 1989 (3) SA (944). In Jamaya v Commissioner – General of Police and 2 Anors HH 272/21 manzunzu J had this to say: “The cardinal principle in deciding whether an application is for a declaratory order or review is not so much of the relief sought but rather the grounds upon which the application is based. In Geddes Ltd v Taonezvi 2002 (1) ZLR 479 (S) malaba JA said: In deciding whether an application is for declaration or a review a court has to look at the grounds of the application and evidence produced in support of them. The fact that an application seeks a declaratory relief is not in itself proof that the application is not for review. In Zvomatsayi and Ors v Chitekwe and Anor 2019 (3) ZLR 990 (H) DUBE banda J articulated it thus: “A review is not concerned with the merits of the decision but whether it was arrived at in an accepted fashion. Instead of asking whether the decision was right or wrong a court on review concerns itself with the procedural irregularities. A declaration and review cover different jurisprudent terrains. The two cannot be deployed interchangeably. It is one or the other, but never both. A declaratory order should not be used to get around the requirements for review proceedings”. See also Econet (Pvt) Ltd v Minister of Information, Posts and Telecommunications 1977 (1) ZLR 342: Atalia Mukanganise and 4 Ors v Simangele Mwale and 2 Ors HB 131/21. In the case of Tendayi Govere and Anor v NMB Bank Ltd & 2 Ors HH 309/24. Zhou J stated: “A declaratur should not be used as a procedural device to rectify irregularities in proceedings of inferior courts, quasi judicial tribunals or administrative bodies. Instead irregularities should be addressed through a formal review process… Applicants call their application a declaratur. It is not what the applicants wish to call the application that matters but rather the substance of the relief claimed the is important. See Sibanda v Chinemhute N.O & Anor HH 131/14 …To buttress this is the case Ex Constable Kufa Stanley v The Commissioner General of Police & Anor where Maronese J enunciated that: “Whatever, name applicant chooses to give to an application, the court must unmask the nature of the application from its substance and the relief sought… The fact that an applicant seeks declaratory relief is not in itself proof that the application is not for review. In casu, the fact that in para 1 of the draft order, applicants ask this court to declare the decision of the Sheriff to attach, sell and transfer the contested property a nullity is not proof that this is an application for a declaratory order.” Upon a consideration of the applicants’ case for a declaration and following the quoted dictas, they have direct and substantial interest in the subject matter of the dispute. They are beneficiaries in the estate of their matter. Their father owned the property in dispute. The applicants however complain that the application for a permit to change the use of the property to sub-divided stands or fat units was unprocedurally dealt with for the several reasons which they pleaded. The details of the alleged unprocedural and irregular manner in which the permits were procured formed the basis of seeking a declaration. The permit is issued by City of Harare, the tenth respondent acting in terms of the Act. City of Harare is required to comply with provisions of the Act. I refrain from setting out the steps which must be followed in order not to infringe upon the merits of the matter. The issue is that the permit which the applicants seek to impugn was issued in terms of the Act. The permit provided that any aggrieved person with the issue of the permit may appeal to the Administrative Court within 30 days or such other time as may be granted an extension sought if granted. The procedure for challenging a permit is provided for in the Act. In such a case, the court must give effect to the requirements of the applicable statute. The appropriate court to approach for relief is given as the Administrative Court. Section 14 of the Act High Court should not be used to render nugatory express provisions of a standing statute on how particular matters, in case, the challenge to the issue of a permit should be handled and by who? The issue of the original jurisdiction of the High Court does not arise. The same position obtains in relation to the complaint that the Master unprocedurally agreed to an amended First and Final Distribution Account and further went on to issue a consent to the sale of stands created by the impugned permit. The Administration of Estates Act provides for a challenge against the Master’s decision or direction on the accounts of the estate to be brought to the High Court by application to set aside the decision or direction. Again, the court must not be seen to circumvent statutory provisions which provide for how a dispute must be dealt by issuing a declaration which effectively renders the set down other statutory procedures for specifically provided dealing with a dispute redundant. Clarity is needed on what I seek to convey. It is true that the fact that another remedy exists does not impede the issue of a declaratur. This pronouncement must be understood in its import. If the court were to say, a party should instead of seeking the declaration seek damages instead, that would amount to an alternative remedy. In casu, the issue arising is one of statutory procedure. A declaratur should not be resorted to in order to circumvent legislated procedure. To do so would constitute interference by the judiciary in the powers of the legislature. Where a set procedure is given in an Act of Parliament, the procedure must be given effect to. I am satisfied that the court should not exercise a discretion to deal with this matter by way of a declaratur. The circumstances of the case makes the procedure for the grant of a declaratur inappropriate as the application to all intents and purposes is one for review disguised as a one for a declaration. Where conduct complained of issues from the implementation of a statute and that statute provides for the process of remedying disputes, an aggrieved party must be guided accordingly and seek relief in terms therefore otherwise the procedure for a declaration to remedy a dispute in such instance would amount to the High Court becoming the big brother that controls and interferes with due process by using s 14 of the High Court without restraint or with reckless abandon. The court can only give consideration to invoking its original jurisdiction if there was for example no provision for obtaining a remedy for the aggrieved party in the legislations on which the causes for seeking a declaration are based. It is not the case in casu. I therefore refuse to entertain this application and withhold this my jurisdiction to determine the application on the merits. In relation to costs, the general rule is that costs follow the event unless special circumstances exist to warrant the denial of the successful party of its costs. No special circumstances exist to deny the respondents their costs. The applicants must have been aware of or must have been advised that their challenges to the regularity of the exercise of administrative power by the City Council and by the Master should be challenged in terms of the provisions of the laws which these bodies acted under to the extent that the laws under which they acted provide for how affected and disgruntled persons should air their grievances for determination. The applicants have caused the respondents to incur costs. The respondents are entitled to their costs. I will however grant costs on the ordinary scale. It will be so ordered. Accordingly, the following order is made: IT IS ORDERED THAT: Jurisdiction is deniedApplication is struck off the rollThe applicants jointly and severally the one paying the other to be absolved to pay the wasted costs of the second and third, sixth and tenth respondents. Chitapi J:…………………………….. Mafongoya and Matapura, applicants legal representative Nembo Attorneys, sixth respondents’ legal representative Gambe Law Group, tenth respondent’s legal representative 7 HH 194 - 25 HC 4297/23 7 HH 194 - 25 HC 4297/23 PARADZAI MAKAYI and PEPERTUA MAKAYI and PATRICIA CHIPATISO and TAFARA MAKAYI and PATRICIA CHIPATISO versus LLOYD MATIVENGA MHISHI N.O and ARNOLD AGGREY TENDAYI KHANDA and DARKEN CONSTRUCTION and MUFARO LOVEJOY CHIROMBO and SIMBARASHE CHIROMBO and KEITH MAPFUMO and ALOIS GARIKAI CHINGONZO and DOMINI TAKURA KODZWA and FARAI M MUSARA and CITY OF HARARE and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and FUNGAI MAKAYI and TAPIWA MAKAYI and TABETH RANGARIRAYI NYMADZAWO and REBECCA UNOPA MAKAYI HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 21 March 2025 Opposed Application T Mpofu, for the applicants C Mavhondo, for the 1st respondent N Chiota, for the 2nd and 3rd respondents R Nembo, for the 6th respondent B J Mandima, for the 10th respondent CHITAPI J: The parties are as listed in the heading to the application. The five (5) applicants seek against nine (9) respondents, a declaratur and consequential relief as set out in the draft order as follows: IT IS ORDERED THAT: The permit for the erection of thirty (3) flats unit on stand 539 Marlborough Township issued to Darken Construction for and on behalf of the late Simplicio Ecras Makayi by City of Harare dated 28 April, 2017 be and is hereby declared invalid and set aside for having been issued in contravention of the provisions of s 26(7) of the Regional Town and Country Planning Act, [Chapter 29:12]. The late Simplicio Ecras Makayi having died on 22 of May 2016, the application for a permit filed, in terms of s 26(3) of the Regional Town and Country Planning Act be and is hereby declared invalid for having been issued in favour of a person who was already dead in violation of the provisions of s 26 of the Regional Town and Country Planning Act, as read together with the Administration of Estate Act. Consequent to the declaration above. The Cession and Transfer of Rights Memorandum of Agreement concluded by ana between Arnold Aggrey Tendai Khanda and Mufaro Lovejoy Chirombo and Simba Chirombo, for the sale and cession of rights, title and interests within a certain piece of land known as land share number measuring 130 square metres of stand 539 Marlborough, situated in the District of Salisbury measuring 4981 square metres held under Deed of Transfer No 5340/1979 for having been concluded in violation of the provisions of s 39 of the Regional Town and Country Planning Act, be and is hereby set aside. The Cession and Transfer of Rights Memorandum of Agreement concluded by and between Arnold Aggrey Tendayi Khanda and Keith Mapfumo for sale, cession and transfer of rights title and interests in a certain immovable commonly known as land share number 15 measuring 130 square metres with exclusive right of occupation and common arears to be defined in the Notarial Deed of stand 539 Marlborough Township Extension 3 of Marlborough situate on the District of Salisbury measuring 4981 square metres held under Deed of Transfer Number 5340/1979 dated 14 of September 2017 having been concluded in violation of the provision of s 39 of the Regional Town and Country Planning Act, and is hereby set aside. The Memorandum of Agreement Sale concluded by and between Arnold Aggrey Tendayi Khanda and Alois Garikai Chingozi for the sale of undivided share +/- 3.229% share, being land share number 8 in a certain piece of land 539 Marlborough Township Extension 3 of Marlborough situate in the District of Salisbury measuring 4981 square metres, dated the 10th day of March 2022, having been concluded in violation of the provisions of s 39 of the Regional Town and Country Planning Act, be and is hereby set aside. A Cession and Transfer of Rights Memorandum of Agreement by Arnold Aggrey Tendayi Khanda and Domic Takura Kodzwa for the sale and cession of rights, title and interests within an immovable property known as land share 6 measuring +/- 130 square metres of 539 Marlborough Township Extension 3 of Marlborough situate in the District of Salisbury measuring 4981 square metres, held under Deed of Transfer Number 5340/1979, dated the 7th of October 2017, having been concluded in violation of the provisions of s 39 of the Regional Town and Country Planning Act, be and is hereby set aside. A Cession and Transfer of rights, title and interests concluded by and between Arnold Aggrey Tendayi Khanda and Alias Garikayi Chingodzo within a stand with exclusive rights of occupation and common areas to be defined in the Notarial Deed of stand immovable property known as land share 16 measuring +/- 130 square metres of 539 Marlborough Township Extension 3 of Marlborough situate in the District of Salisbury measuring 4981 square metres, held under Deed of Transfer Number 5340/1979, dated the 12th of November 1979, having been concluded in violation of the provisions of s 39 of the Regional Town and Country Planning Act, be and is hereby set aside. Arnold Aggrey Khanda, be and is hereby declared not a Creditor of the Estate of the Late Simplicio Ecras Makayi and any payment made in him pursuant to his unlawful inclusion in the Estate’s Account as Creditor of the Estate be refunded by him to Estate. The Consent of Sale issued by the Master of the High Court of Zimbabwe in respect of share numbers 2,3,4,5,8,9,10,11,12,13 and 14 having issued in contravention of the Any development permit or order issued by City of Harare pursuant to the issuance of the permit for the erection of the Thirty (30) flats units on stand 539 Marlborough Township for having been issued in contravention of the provisions of s 26(7) of the Regional Town and Country Planning Act, in relation to any of the so flats units, be and is hereby set aside. The second respondent and any other respondents who oppose the application be and is hereby ordered to pay costs in suit on Attorney and client scale. The applicants as named in the heading to this application claim to be beneficiaries in the Estate of the Late Simplicio Ecras Makaya. The fifth respondent in particular that is Patricia Chipatiso is the executrix dative of the estate of the late Deliwe Leocadia Makaya. It was not immediately stated in the founding affidavit why the Estate Late Deliwe Leocadia Makaya is relevant to the application nor why the capacity of Patricia Chipatiso as executrix dative of that Estate is relevant. The first respondent Lloyd Mativenga Mhishi N.O is cited as the Executor Dative of the Estate Late Simplicio ECMS Makayi. The applicants averred that the reason for citing the first respondent was that he was unlawfully implementing a subdivision in relation to stand 539 Marlborough Township Extension held under deed of transfer No 5340/1979. It is common cause that deed of transfer No 5340/1979 is in the name of the late Simplicio Ecras Makayi. The applicants also cited the first applicant because he was party to the agreements and cession agreements concluded between one Arnold Aggrey Tendayi Khandu and 5th to 12th respondents. The applicants impugn those agreements and seek their setting aside as prayed in the draft order. The third respondent is Darken Construction. Its legal stating is to the applicants unknown. However, it was stated that it is entity in whose name a permit for the subdivision of the property subject of dispute was issued. The fourth, fifth, sixth, seventh, eighth and ninth respondents are individuals who purchased land off the property in dispute the tenth respondent is City of Harare which is the local planning authority for the area in which the property in dispute is situate. The eleventh respondent is the Master of the High Court sued in his official capacity of being responsible for the supervision and administration and winding up of deceased estates. The applicants averred that the eleventh respondent issued a consent to the sale of units which however were sold in terms of an invalid permit. The twelfth respondent, Registrar of Deeds is cited in terms of the law as the official that registers property titles in the Deeds Office. The thirteenth to the seventeenth respondents inclusive were cited as either a male or female adult of Harare and in particular of 5 Chinyiku Road, Malborough, Harare save for the seventeenth respondent whose address was given as that of her legal practitioners. The reasons for their citation of those respondents was not given in introducing or describing them. The second, third, fourth and fifth applicants filed affidavits in which they aligned with and verified and adopted the cause of action as set out by the first applicant. The fifth applicant explained that she was the daughter of the late Simplicio Ecras Makay and Deliwe Makayi who were married to each other. Deliwe Makayi was the surviving spouse of Simphlicio and a beneficiary of the estate of Simplicio who passed on before her. She died on 9 October, 2022 long before Simplicio whose estate was registered in 2016 had passed on either on 22 June or May 2016. I could not find the correct date. Different months are given in the founding affidavit. The confusion is not material since the date of death is not an issue. The gravamen of the application is that the applicants impugn the legality of the permit which was issued for change of use of the disputed property and which permit subsequently resulted in the sale of stands created thereby. The applicants averred that an application was made on 10 May 2016, under ref CWR/13/16 by or in the name Darken Construction cited as the third respondent herein in terms of s 26(3) of the Act for a permit to erect 30 garden flat unites on stand 539 Marlborough Township. The applicants averred that the application did not conform with s 26 of the Act in that the registered owner of the property the late Simphlicio Makayi did not sign the application. The applicants averred that although the application was acknowledged by City of Harare, the tenth respondent herein it was made by Darken Construction referred to therein as the applicant and that all correspondence referred to Darken Construction as opposed to the owner. They averred that there was nothing to indicate that the owner made the application. The permit was also not issued to the owner. The applicants further averred that there was nothing to indicate that Darken Construction was an agent for the registered owner. The applicants also impugned the process of issue of the permit as having been legally flawed as it contravened s 26(7) of the Act. The applicants averred that the application for the permit ought to have been determined within three (3) months of the date of its receipt by the tenth respondent unless the applicant had in writing applied for the extension of the three (3) months period such application being made within the three (3) month period for processing the permit and not after its lapse. The applicants averred that the permit was only issued on 28 April, 2017 and attached a copy. The permit reference PD/WR/539 Marlborough, permit No. C/WR/13/16 was issued in the name of Darken Construction. It was issued in terms of s 26(3) of the Act. The permit authorised the erection of 30 flat units on the property. The permit contained a clause that any person aggrieved by the decision to issue the permit was advised to appeal to the Administrative Court within thirty (30) days of the granting of the permit. The applicant averred that the permit was issued almost a year later from the date of receipt of the application and that there had been no application for extension of the three months period and further that records at City of Harare, the tenth respondent did not show that an extension of time for processing the permit had been made. The applicant also averred that the application for the permit was one which required that owners of adjacent properties be personally given individual notices of the application for their consideration and to consent or object to the issue of the permit. The applicants averred that their investigations had revealed that owners of adjacent properties were not served with individual notices and that the records at the tenth respondent’s offices did not contain the notices nor an indication that notices were issued and served by the applicant for the permit. The applicants averred that the issuing of the permit was unlawful for not being in compliance with lawful process for obtaining the permit and that the permit should be declared a legal nullity. The applicants averred that on the strength of and armed with the permit, the second respondent registered with the fourth respondent a creditor’s claim against the estate of Simphlicio Makayi which claim was accepted by the first respondent. It was averred that the first respondent withdrew the initial First and Final distribution account so that he would take into account of the second respondents’ claim. The applicants averred that the executor acting on the erroneous belief that a valid permit had been issued, caused a revaluation of the subdivided property and accepted a figure of USD 668 325. 00 in place of the value of USD 90 000. 00 which had been accepted by the Master before the second respondent came into the picture. In consequence of the new valuation, the first respondent applied to and was granted authority in terms of s 120 of the Administration of Estates Act to sell ten (10) units. It was averred that the second respondent then alienated or sold the stands to members of the public. The applicants noted that the second respondent when selling the stands was described and listed as the owner of the property yet it should have been the first respondent who should have executed the agreements on behalf of the estate. The applicants also impugned the subsequently executed agreements of sale of cession of the flat units or stands on the basis that the sales were in violation of s 39 of the Act. The first respondent filed an opposing affidavit in which he not only defended his impugned actions but openly supported the conduct of the second respondent. When the court asked the first respondent’s counsel Mr. Mavhondo whether the first respondent was not best advised to take a neutral position, counsel was advised, sought instructions and formally withdrew the opposing papers of the first respondent. Counsel advised that the first respondent would abide the decision of the court. It must however be made clear that the first respondent is not barred from participation in the application by reason of his being executor dative. Indeed, he would be welcome to set out facts which assist the court concerning the paper trail of how the estate administration had evolved. Unfortunately, in this affidavit, after the first respondent had been served, he decided that he would oppose the application and went on to take a point in limine that the application was not properly before the court as the applicants should have appealed to the Administrative Court or sought a review in the High Court. The first respondent then indicated that he was filing an opposing affidavit to assist the court. He then unfortunately adopted what appeared to be a partisan position to support his actions, those of the second respondent and those of the tenth respondent. He went about it wrongly. He needed to file a notice to abide the decision of the court and if he intended to be of assistance to the court, to then file and affidavits of facts pertaining to the development of the dispute to the extent of those facts which are within his knowledge and what he did. To express opinions on who between the applicants and respondents had a good case was not advisable considering that the executor datives main function is to administer the estate impartiality in the interests of the estate, beneficiaries and creditors. The decision to withdraw the opposition was eminently proper. The first respondent’s opposition and documents appertaining to this opposition were therefore expunged from the record. The second and third respondents opposed the application through an affidavit deposed to by the second respondent for himself and on behalf of the third respondent duly authorized by virtue of a resolution by the third respondents’ board. The third respondent is presented as a duly registered company with limited liability. Despite the averment by the applicant that the third respondent’s status and existence could not be established, the third respondent did not see it fit to provide details of its incorporation and that is very poor pleading on the part of counsel who settled the opposing papers. It still remains unclear whether or not the third respondent is a legal persona as no document of incorporation was produced nor referred to in any detail. The second and third respondents took two points in limine. I must record that parties at the commencement of hearing agreed that the court should adopt a rolled up approach in terms of which the parties address the points in limine and merits at the same time. The courts decides the matter starting with points in limine. If its judgment on the points in limine disposes of the matter, it ends these. If not then the judgment will deal with the merits. The second and third respondents averred that the applicant adopted a wrong procedure for seeking the relief sought. They averred that since the issue raised by the applicants concerned the lawfulness and propriety of issuing the permit by the tenth respondent, the applicants ought to have proceeded by way of review. It was averred that the applicants were simply trying to circumvent the review process because they were out of time and employed the wrong procedure of a declarator. The applicants also averred that since the applicants also challenged the acceptance of the Distribution account of the late Simplico Makayi they should have filed a review application or instituted action proceedings. They averred that since seven years down the line had passed since the conduct of the respondents complained took place, a declaration of rights was not a competent relief to seek. Thirdly, the second and third respondents averred that there were material disputes of fact arising from the founding affidavit which could not be resolved on the papers. The second and third respondents did not however state the details of the disputes of fact. They simply stated that the founding affidavit was replete with suppositions and conjecture. The second and third respondents then stated that they would deal with the “specific disputes of fact below”. The affidavit then proceeded to deal with the merits of the matter. It is clear that the second and third respondents envisaged that they would demonstrate the points of material dispute in dealing with the merits. This is wrong procedurally because a point in limine must not be conflated with the merits of the matter since points in limine are dilatory in nature and must be self contained. By raising them, the objector would be trying to move the court to dispose of the matter one way or the other on the points in limine without going into the substance of the dispute. Thus, in an objection that there are individual disputes of fact those disputed facts should not be left to be traversed in responding to the merits. In casu, the court must hold that the objection on this ground was not substantiated. The objection fails on this score. The sixth respondent also raised two points in the limine. He averred that the applicants should either have filed an appeal in the Administrative Court or a review application. The sixth respondent further averred that to the extent that the applicants challenged the acceptance of the distribution account by the Master and the consent to sell which the Master granted, the proper procedure should have been by review since the Masters conduct involved the exercise of statutory power. The sixth respondent also averred that there were material disputes of fact in the matter which could not be resolved on the papers. In this regard, the sixth respondent deposed as follows in paragraph 6 of his affidavit. “6 Further I submit that this matter has material disputes of fact which cannot be resolved on paper. The applicants were well aware of such issues because their application was hinged on a lot of assumptions and conjecture”. The sixth respondent ended there. The same comments made in relation to the inadequacy of pleading the objection that there are material disputes of fact when dealing with the second and third respondents points in limine apply with equal force to the sixth respondent. The objection is thus not substantiated and it resultantly fails. The tenth respondent, the City of Harare took points in limine as well. In the opposing affidavit sworn to by the Town Clerk, it was averred that since the applicants were challenging the issue of the permit they were supposed to seek relief by way of appeal to the Administrative Court within one month of the granting of the permit in accordance with the provisions of the Act in instances which a person seeks to challenges the issue of a permit. It was averred that the procedure for challenge is provided for in s 26(3) of the Act. The deponent averred that the making of this application six years after the event was intended to circumvent the provisions of the law. The tenth respondent further averred that since the applicants were challenging the decision of the Master to confirm the first and final distribution account as well as the issue of consent to the sale of the stands created by the subdivision, the correct procedure was for the applicants to register their concerns with the Master or to challenge the Masters decision in court in terms of the relevant Act which I take to be the Administration of Estates Act [Chapter 6:01]. The tenth respondent averred that the applicants had chosen the wrong procedure of seeking a declaratur to escape from the time line bars placed by the enactments under which the impugned conduct was done. In reply, with regards to the opposing affidavit of the second and third respondents, the applicants averred that their opposing affidavit was not dated. It was averred that for that reason, the affidavit was invalid and thus the court had to treat the second and third respondents as not having opposed the application. They did not traverse the substance of the points in limine. At the hearing, the issue of the defective affidavit was not pursued. Even assuming that one was to find that the second and third respondents opposing affidavit is defective, the tenth respondent raised the same issue of the impropriety of seeking a declaratur. The point in limine which detains the court is the attack on the application as not being procedurally sound. The respondents’ have taken the point that the applicants have disguised a review cum appeal as an application for a declaratur. The applicants aver that there is nothing wrong with the procedure which they adopted. The power of the court to issue a declaration has been traversed in many decisions of the superior courts. In the case of Newton Elliot Dongo v Joytindra Natverial Nack and 5 Ors SC 52/20, gwaunza DJC refreshed the law on the power of the court in relation to declaraturs as provided for in s 14 of the High Court Act as follows at p 11 of the cyclostyled judgment. “[11] The appellants’ application for a declaratur in the court a quo was made in terms of s 14 of the Act, which states as follows: ‘The High Court may, in its discretion at the instance of any interested person enquire with and determine any existing, future or contigent right or obligation notwithstanding that such person cannot claim any relief consequential upon such determination.” Implicit from a reading of the provision is that a declaration is sought by person with an interest in the subject matter of the dispute enquiring or seeking a determination of an existing future or contingent right. In Johnsen v Agricultural Finance Corp 1995(1) ZLR 65 (5) Gubbay CJ had occasion to consider when a declaratur should be granted. The learned Chief Justice remarked as follows at 72E-f “The condition precedent to the grant of a declaratory under s 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction”. See also Family Benefit friendly Society v Commissioner of Inland Revenue and Anor 1995 (4) SA 172 (1). In the case of Munn Publishing (RT) Ltd v ZBC 1994 (1) ZLR 337 (S)av 343 – 344, gubbay CJ stated as follows after noting that the applicant must be an interested person with a direct and substantial interest in the subject matter of the suit. “… The interest must relate to an existing, future or contingent right. The court will not decide abstract academic or hypothetical questions unrelated to such interest. See Anglo-Transvaal Collienes Ltd v SA Mutual Life Assurance Society 1977 (3) SA 631 (I) at 635 G – H, but the existence of an actual dispute between persons interested is not a statutory requirement to an exercise by the court of jurisdiction. Nor does the availability of another remedy render the grant of a declaratory order incompetent. See Gelcon Investments (Pvt) Ltd v Adair Properties (Rt) Lt 1969 (2) RLR 120 (G) at 128 A-B; 1969 (3) SA 142 (R)at 144 D-F” The applicants averred that they had rights which fall to be determined. They argued in the heads of argument that the High Court had unlimited jurisdiction to determine the declaration sought. For that reason, the applicants took the view that argument on whether the issue raised should be brought by way of appeal or review were of no substance. This court has been loath to entertain an application for a declaratory order which in all the circumstances is in fact a disguised review application. In the case of Liberty Muchena v Public Service Commission and Anor HB 207/23 KABASA J stated as follows at page 3 of the cyclostyled judgment: “In bringing an application for a declaratur is the applicant seeking to circumvent the time limits for a review.” A review is concerned with the regularity and validity of the proceedings. (Liberty Life Assurance of Africa v Kachelhoffer. 2001 (3) SA 1094. The decision making process is what a review looks at (Krumm v The Master 1989 (3) SA (944). In Jamaya v Commissioner – General of Police and 2 Anors HH 272/21 manzunzu J had this to say: “The cardinal principle in deciding whether an application is for a declaratory order or review is not so much of the relief sought but rather the grounds upon which the application is based. In Geddes Ltd v Taonezvi 2002 (1) ZLR 479 (S) malaba JA said: In deciding whether an application is for declaration or a review a court has to look at the grounds of the application and evidence produced in support of them. The fact that an application seeks a declaratory relief is not in itself proof that the application is not for review. In Zvomatsayi and Ors v Chitekwe and Anor 2019 (3) ZLR 990 (H) DUBE banda J articulated it thus: “A review is not concerned with the merits of the decision but whether it was arrived at in an accepted fashion. Instead of asking whether the decision was right or wrong a court on review concerns itself with the procedural irregularities. A declaration and review cover different jurisprudent terrains. The two cannot be deployed interchangeably. It is one or the other, but never both. A declaratory order should not be used to get around the requirements for review proceedings”. See also Econet (Pvt) Ltd v Minister of Information, Posts and Telecommunications 1977 (1) ZLR 342: Atalia Mukanganise and 4 Ors v Simangele Mwale and 2 Ors HB 131/21. In the case of Tendayi Govere and Anor v NMB Bank Ltd & 2 Ors HH 309/24. Zhou J stated: “A declaratur should not be used as a procedural device to rectify irregularities in proceedings of inferior courts, quasi judicial tribunals or administrative bodies. Instead irregularities should be addressed through a formal review process… Applicants call their application a declaratur. It is not what the applicants wish to call the application that matters but rather the substance of the relief claimed the is important. See Sibanda v Chinemhute N.O & Anor HH 131/14 …To buttress this is the case Ex Constable Kufa Stanley v The Commissioner General of Police & Anor where Maronese J enunciated that: “Whatever, name applicant chooses to give to an application, the court must unmask the nature of the application from its substance and the relief sought… The fact that an applicant seeks declaratory relief is not in itself proof that the application is not for review. In casu, the fact that in para 1 of the draft order, applicants ask this court to declare the decision of the Sheriff to attach, sell and transfer the contested property a nullity is not proof that this is an application for a declaratory order.” Upon a consideration of the applicants’ case for a declaration and following the quoted dictas, they have direct and substantial interest in the subject matter of the dispute. They are beneficiaries in the estate of their matter. Their father owned the property in dispute. The applicants however complain that the application for a permit to change the use of the property to sub-divided stands or fat units was unprocedurally dealt with for the several reasons which they pleaded. The details of the alleged unprocedural and irregular manner in which the permits were procured formed the basis of seeking a declaration. The permit is issued by City of Harare, the tenth respondent acting in terms of the Act. City of Harare is required to comply with provisions of the Act. I refrain from setting out the steps which must be followed in order not to infringe upon the merits of the matter. The issue is that the permit which the applicants seek to impugn was issued in terms of the Act. The permit provided that any aggrieved person with the issue of the permit may appeal to the Administrative Court within 30 days or such other time as may be granted an extension sought if granted. The procedure for challenging a permit is provided for in the Act. In such a case, the court must give effect to the requirements of the applicable statute. The appropriate court to approach for relief is given as the Administrative Court. Section 14 of the Act High Court should not be used to render nugatory express provisions of a standing statute on how particular matters, in case, the challenge to the issue of a permit should be handled and by who? The issue of the original jurisdiction of the High Court does not arise. The same position obtains in relation to the complaint that the Master unprocedurally agreed to an amended First and Final Distribution Account and further went on to issue a consent to the sale of stands created by the impugned permit. The Administration of Estates Act provides for a challenge against the Master’s decision or direction on the accounts of the estate to be brought to the High Court by application to set aside the decision or direction. Again, the court must not be seen to circumvent statutory provisions which provide for how a dispute must be dealt by issuing a declaration which effectively renders the set down other statutory procedures for specifically provided dealing with a dispute redundant. Clarity is needed on what I seek to convey. It is true that the fact that another remedy exists does not impede the issue of a declaratur. This pronouncement must be understood in its import. If the court were to say, a party should instead of seeking the declaration seek damages instead, that would amount to an alternative remedy. In casu, the issue arising is one of statutory procedure. A declaratur should not be resorted to in order to circumvent legislated procedure. To do so would constitute interference by the judiciary in the powers of the legislature. Where a set procedure is given in an Act of Parliament, the procedure must be given effect to. I am satisfied that the court should not exercise a discretion to deal with this matter by way of a declaratur. The circumstances of the case makes the procedure for the grant of a declaratur inappropriate as the application to all intents and purposes is one for review disguised as a one for a declaration. Where conduct complained of issues from the implementation of a statute and that statute provides for the process of remedying disputes, an aggrieved party must be guided accordingly and seek relief in terms therefore otherwise the procedure for a declaration to remedy a dispute in such instance would amount to the High Court becoming the big brother that controls and interferes with due process by using s 14 of the High Court without restraint or with reckless abandon. The court can only give consideration to invoking its original jurisdiction if there was for example no provision for obtaining a remedy for the aggrieved party in the legislations on which the causes for seeking a declaration are based. It is not the case in casu. I therefore refuse to entertain this application and withhold this my jurisdiction to determine the application on the merits. In relation to costs, the general rule is that costs follow the event unless special circumstances exist to warrant the denial of the successful party of its costs. No special circumstances exist to deny the respondents their costs. The applicants must have been aware of or must have been advised that their challenges to the regularity of the exercise of administrative power by the City Council and by the Master should be challenged in terms of the provisions of the laws which these bodies acted under to the extent that the laws under which they acted provide for how affected and disgruntled persons should air their grievances for determination. The applicants have caused the respondents to incur costs. The respondents are entitled to their costs. I will however grant costs on the ordinary scale. It will be so ordered. Accordingly, the following order is made: IT IS ORDERED THAT: Jurisdiction is denied Application is struck off the roll The applicants jointly and severally the one paying the other to be absolved to pay the wasted costs of the second and third, sixth and tenth respondents. Chitapi J:…………………………….. Mafongoya and Matapura, applicants legal representative Nembo Attorneys, sixth respondents’ legal representative Gambe Law Group, tenth respondent’s legal representative