SIBANDA & ORS v NKAYI RURAL DISTRICT COUNCIL 1999 (1) ZLR 32 (S)

Flynote

Appeal ” against default judgment ” not an appeal on the merits ” application should be made for rescission of judgment

Land ” communal land ” right to occupy ” wild life sanctuary situated within communal land ” not part of communal land ” no right of dwellers of surrounding communal land to occupy sanctuary

Local authority ” legal proceedings ” authority to institute ” rural district council ” resolution of council to institute legal proceedings ” whether required

Headnote

The appellants, who were dwellers in a communal area, had moved into and occupied a wild life sanctuary situated within the communal area. The wild life sanctuary was not, however, part of the communal land. A rural district council, which was responsible for the administration of the sanctuary, had applied successfully to the High Court for an order for the eviction of the appellants. The High Court had given judgment by default. The appellants appealed against this decision.

Held, that as this was an appeal against a default judgment, it was not an appeal on the merits. The proper course for the appellants would have been to apply for the rescission of the judgment.

Held, further, that under the communal land legislation a wild life sanctuary is not part of the communal land. It is land which is vested in the State and which is managed by a rural district council as an agent of the State. The appellants, being dwellers in the surrounding communal land, had no right to occupy the sanctuary.

Held, further, that there was no merit in the argument that the rural district council was not authorised to institute the legal proceedings because no resolution of the council to this effect had been produced. It is not necessary in every case for a body corporate to produce a formal resolution before it can institute legal proceedings. The fact that the council's chief executive officer had authorised the proceedings was sufficient.