Online Reporter
Fidelis Munyoro
Chief Court Reporter
A long-running land dispute involving a cancelled subdivision, a contested property sale and allegations that a court order was deliberately undermined has been revived after the Supreme Court ruled that the High Court should never have struck the case off the roll.
The Supreme Court has ordered a fresh hearing in a case pitting Ms Nobuhle Dube, both personally and as executrix of her late husband’s estate, against Ms Constance Dlamini, the Surveyor-General and the Master of the High Court.
At the centre of the dispute is Lot 9 of Lot 6a Riverside Estates Agricultural Lots of Subdivision A, Willsgrove, Bulawayo, which Ms Dube says she bought from Ms Dlamini after the original proposed sale of Lots 3 and 4 proved impractical.
Ms Dube paid the purchase price but transfer of the property never took place.
That prompted her to approach the High Court, which in March 2019 granted her a default judgment ordering Ms Dlamini to transfer the property within seven days.
The legal battle, however, did not end there.
Ms Dlamini applied for rescission of the default judgment. While that dispute was awaiting a fresh hearing after an earlier Supreme Court intervention, the survey diagrams covering Lots 1 to 9 were cancelled at Ms Dlamini’s instance.
Ms Dube subsequently approached the High Court seeking a declarator to undo the cancellation.
Her case was that the cancellation had been obtained without notice to her and effectively destroyed the property arrangement she had been fighting to enforce.
She alleged that the existence of the earlier court order had been concealed from the Surveyor-General.
Ms Dlamini disputed the allegations, maintaining that the subdivision had become problematic because of issues involving the City of Bulawayo and the difficult terrain.
She said the city’s engineering department had advised that constructing a road to service the proposed residential lots would not be economically feasible.
The High Court never reached the heart of that dispute.
Instead, it accepted Ms Dlamini’s argument that the matter concerned an administrative decision which should have been challenged before the Administrative Court under section 47(4) of the Land Survey Act.
The matter was consequently struck off the roll. The Supreme Court has now said that approach was wrong.
Writing the unanimous judgment, Justice Alfas Chitakunye held that the High Court had failed to properly distinguish between the statutory mechanisms governing cancellation of an approved diagram and those governing cancellation of a general plan.
That distinction was crucial. Section 46(1) allows the Surveyor-General to cancel or amend an approved diagram on the application of the owner of the land represented by it. Section 46(2), by contrast, deals with general plans and expressly brings section 47 into play.
Section 47 provides a procedure involving notice, objections and ministerial consent, with an appeal to the Administrative Court available in specified circumstances.
The Supreme Court found that Ms Dube was not someone entitled to invoke that appeal procedure. “It is axiomatic that the remedy provided by that section was simply not available to her,” Justice Chitakunye said.
The judges found that the High Court had effectively treated the dispute as a purely administrative one because the Surveyor-General had carried out the cancellation.
But, according to the Supreme Court, that missed the bigger picture.
Ms Dube’s case was also directed at the conduct of Ms Dlamini, whom she accused of procuring the cancellation in circumstances that allegedly undermined the earlier court proceedings.
“The court a quo focused on the administrative actor who executed the cancellation rather than the first respondent who procured it through alleged fraudulent and contemptuous conduct,” the judgment states.
The Supreme Court stressed that the mere fact that survey diagrams were involved did not automatically strip the High Court of jurisdiction.
The judges also rejected an argument that the appeal had become academic because the original default judgment had subsequently been rescinded.
The Supreme Court said the live issue was not whether Ms Dube was ultimately entitled to the property, but whether the High Court had been correct to decline jurisdiction in the first place.
That question, the court held, remained alive. The judgment also dealt with a procedural wrinkle in the appeal.
Ms Dube had asked for the case to be reheard before a different High Court judge. Although the Supreme Court accepted that the relief she sought was legally competent, it found that she had not established a sufficient basis for excluding the judge who had originally dealt with the matter.
The Supreme Court, therefore, declined to impose that restriction. It also refused to award Ms Dube costs on the punitive attorney-and-client scale, finding that no justification had been provided for such an order.
The High Court’s decision to strike the matter off the roll was set aside and the case was sent back for a hearing de novo.
The Supreme Court ordered simply: “The appeal succeeds with costs.” The underlying fight over Lot 9 therefore remains unresolved.
The dispute will now return to the High Court, where the parties must once again confront the substance of the controversy surrounding the property, the cancelled survey diagrams and the circumstances in which that cancellation was obtained.
