BATSIRAI CHILDREN'S CARE v MINISTER LOCAL GOVERNMENT & ORS 2011 (2) ZLR 203 (H)

Flynote

Practice and procedure “ declaratory order “ application “ applicant one of many people affected by a police operation “ application to have whole operation declared unlawful “ not possible for such declaration to be made without evidence on how other people were affected

Practice and procedure “ interdict “ application “ purpose for which interdict sought “ interdict sought in relation to past event “ interdict not competent unless facts alleged justifying reasonable apprehension that harm likely to be repeated

Practice and procedure “ parties “ "clean hands" “ requirement to come to court with “ limits to such requirement “ party not in compliance with law but not challenging such law “ application in respect of unrelated matter “ party not barred

Headnote

The applicant was an unregistered private voluntary organization. It had applied twice for registration but remained unregistered when it brought its application. It ran a children's centre and its activities involved the provision of food, clothing, school and medical fees for orphans in an area of Harare. It had erected certain structures in which the children were housed. During an operation by the police called "Murambatsvina", the structures were demolished and the persons there were evicted. The applicant sought an order declaring the operation to have been unlawful and allowing it to return to the property and re-erect the structures. It also sought an interdict to prevent the authorities from ejecting the applicant or any of its beneficiaries from the premises, from destroying and/or ordering the applicant to destroy its property and from interfering with the peaceful and undisturbed possession by the applicant of its premises.

The application was opposed on the ground that, as the applicant was operating in breach of the Private Voluntary Organisations Act [Chapter 17:05], it was barred from approaching the court as it had "dirty hands". It was also argued that its activities at the centre were unlawful, because the applicant had no approved plans for the illegal structure which was demolished and that the illegal structure was constructed in a residential zone, although it was providing services of a commercial nature.

Held, that the applicant was not challenging the law pertaining to its registration. It merely sought to enforce certain of its rights, unrelated to registration, that it alleged had been violated. It was not opposed to registration. Indeed, it had applied, twice, and only happened not to have been registered yet. The "dirty hands" doctrine was not applicable in such a case, otherwise an absurd state would be reached where litigants would be required to prove that their affairs are regular in every minute detail before their matters are heard by the courts.

Held, further, that similarly, the applicant was not seeking, surreptitiously, to enforce approval of its plans or of its activities but merely to recover the property it alleged was despoiled. To uphold the contention of the respondents would amount to interpreting too broadly the principle of not coming to court with dirty hands.

Held, further, that while the applicant might have the necessary interest to obtain a declaratory order, a general declaration that "Operation Murambatsvina" was unlawful was too wide and would entail an enquiry not sufficiently canvassed on the papers. This operation appeared to be a broad programme that had affected, or was likely to affect, various people differently. It was not possible in a matter specifically dealing with the alleged despoliation of the applicants to make a general declaration on the whole operation when a myriad of circumstances and facts had not been brought to the attention of the court. Furthermore, even the narrow issue of the eviction of the applicants and the destruction of its property did not lend itself to an order by way of a declaration. By seeking a mandament van spolie, the applicant required the restoration of the status quo ante pending a full enquiry.

Held, further, with respect to the interdict, that the applicant had to prove a clear right, an injury actually committed or reasonably apprehended and absence of similar protection. As regards a clear right, it had not been shown that the applicant had a right to occupy the premises in question. The property did not belong to the applicant, and the land in question was zoned for residential purposes and could not be used for the applicant's commercial purposes. Finally, an interdict was no longer competent in respect of a past event. If the infringement was one that prima facie appears to have occurred once and for all, and it was finished and done with, the applicant should allege facts justifying a reasonable apprehension that the harm is likely to be repeated. This the applicant had not done.