Developer can stay on land: High Court

The Bulawayo High Court has set aside the default judgment which nullified a land development deal between N&S Properties (PVT) Limited and Umguza Rural District Council (RDC).

BY SILAS NKALA

N&S Properties took Umguza RDC to court after the local authority cancelled a stands development deal when the firm allegedly failed to fulfil its contractual obligation.

The RDC had previously secured a default judgment in the matter.

In granting the developer’s application, Bulawayo High Court judge Justice Maxwell Takuva said: “Consequently, I find that the applicant has raised a defence. Therefore, the applicant has shown good and sufficiency to set aside default judgment. Accordingly, it is ordered that the order granted on May 23 2017 and June 22 2017 be and is set aside.”

The court heard that sometime in 2008, the parties entered into an agreement, where the RDC offered its land for development by applicant. Some of the material terms of the parties’ agreement were that the applicant was obliged to service the designated areas and provide sewer and water reticulation infrastructure, storm water drains and culverts in addition to developing roads according to certain specifications.

Court documents state that N&S Properties was expected to commence servicing the land within six months of the date of signing the agreement. Either party could terminate the agreement upon a fundamental breach of contract.

“The applicant failed to complete the work within a period of six months (stated) by the parties in their agreement. The respondent, angered by this breach, cancelled the agreement, but the applicant remained in occupation,” the court documents read.

The council then sought a court order to evict the developer from its area which the developer did not challenge, prompting the court to pass a default judgment ordering N&S Properties to stop operating on council land.

Following the court order, N&S Properties applied for the nullification of the court order submitting that it became aware of the set down date when the RDC lawyer met its official at the magistrates’ court and advised him that the matter was set on the unopposed roll because the developer had failed to appear for a pretrial conference.

“Applicant was, therefore, not in wilful default as there was a mix-up with the notice of set down and had it been known by applicant, it was going to attend the pre-trial…” read the submissions.

Date of hearing on the matter in which the RDC seeks to terminate contract with the developer is yet to be decided.

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