Ngoni Dapira

MUTARE High Court Judge, Justice Jester Charewa on Tuesday dismissed the application by the Confederation of Manicaland Trust (CFMT) against the 2020 supplementary budget and 2021 budget increases by the City of Mutare.

Justice Charewa had reserved the judgment for the case that appeared before her court on March 10, 2022. In her disposition statement she dismissed the application by CFMT (the plaintiff) and ordered them to pay the City of Mutare (first respondent) legal costs on the scale of the legal practitioner and client.

CFMT, a Mutare based civic society organization that represents the interests of commercial and industrial rate payers, filed a High Court application last year on 15 September through its attorney Chipo Kanengoni of Matsika Legal Practitioners, in which the City of Mutare and Ministry of Local Government, Public Works and National Housing were first and second respondents respectively.

In its application submissions, CFMT demanded for a declaratory order from the City of Mutare that the budget processes adopted in the formulation of both the 2020 supplementary budget and 2021 annual budget were unprocedural and flouted the provisions of section 219 of the Urban Councils Act, [Chapter 29:15]. It also pleaded that the consequent increases from the budget processes and budgets were unaffordable to ratepayers given the covid-19 induced economic turmoil, thus requested for a court order to compel negotiations and consultations on revision of the increments by the respondents.

Kanengoni argued that City of Mutare effected a 350 percent increment in its 2020 Budget contravening section 219 (2) of the Urban Councils Act, in that prior the increment, the local authority never published in any advertisement, or even an abridged version, and as a result ratepayers were not given the opportunity to object before execution.

However, in its notice of opposition, the City of Mutare, through its lawyer Tinashe Mukwindidza from Bere Brothers Legal Practitioners opposed that when the court application was first made, the applicant was called the Manicaland Commercial Federation Trust and not CFMT. Mukwindidza therefore argued that the applicant (CFMT) had no locus standi to challenge the budget in issue and pleaded for the application to be dismissed.

The CFMT Deed of Trust presented to the court showed that it was officially registered as a trust on 29 March 2021 at a time when the 2021 budget had already been approved by the 2nd Respondent. Mukwindidzi thus argued that the Manicaland Commercial Federation Trust that was nonexistent.

CFMT on October 28. 2021 had however filed a notice of amendment to substitute the Manicaland Commercial Federation Trust and use the registered CFMT as the applicant, but this was again opposed.

As a result, Justice Charewa in her ruling said the case was been dismissed on the principle that a non-existent applicant cannot validly institute legal proceedings and the consequence is that the application filed on 15 September 2021 was not valid.

“It is trite that an application stands or falls by the papers filed of record.  Applicant conceded that an application consists of a notice of application, a founding affidavit and a draft order. If the founding affidavit is predicated on the wrong or non-existent authority and the draft order does not seek a relief which addresses the cause of action, such application cannot surely succeed. It is a nullity which is not subject of amendment,” read the ruling by Justice Charewa.

Adding, “The second principle is that if a party did not exist as at the time of commencement of litigation, such process is null and void. It is common cause that Manicaland Commercial Federation Trust does not exist. It did not exist on 15 September 2021 and could therefore not have commenced any litigation or passed any resolutions or granted anyone any authority to act on its behalf.”

On the notice of amendment made on October 28, Justice Charewa ruled that it would be overuled on the grounds that the final principal distilled from case law is that one cannot amend a nullity. “The follow on principle is that if a party does not exist, it cannot be substituted, ergo, the current application for leave to amend HC 183/21 to substitute the trustees Commercial Federation of Manicaland Trust for the trustees Manicaland Commercial Federation Trust, is not sustainable,” read her ruling.

“Consequently, I find that this application is without merit and should be dismissed. And in view of the finding the HC183/21 is a nullity which cannot be amended, I find it unnecessary to delve into its merits,” further read her judgment.