THE widow of the liberation war hero, James Chikerema, is under siege after Mount Breezes Home Owners Association in Borrowdale, which was formed from her land permit, sought to close a public road that benefits thousands of people without approval from the City of Harare.
Philda Molly Chikerema once sought an interdict from the High Court after some individuals within City of Harare gave the association the greenlight to erect a precast wall to form a gated community.
The widow successfully challenged the amendment made by City of Harare on her Permit number SD/381, which they issued without her knowledge.
According to her founding affidavit, Chikerema was a duly registered owner of certain piece of land situated in the District of Salisbury called Subdivision E of Lot H of Borrowdale Estate measuring 42.5250 hectares registered under Deed of Transfer 7544/85(the property).
On September 24, 1997, she applied to the City of Harare for a subdivision permit for the property and the application was granted on April 7, 1999 under a permit to subdivide property No. SD/381.
The property was subdivided into 62 stands pursuant to Permit No SD/381and she became an owner of Stand 19 among the 62 stands under Certificate of Registered Title registration number 6963/2007.
Keep Reading
- Putting gender equality first
- Top Zim triathlete makes history in the US
- Senior cops jailed over smuggling
- ‘Paltry salaries aching Zim workers’
The permit came with a number of conditions, including the material conditions of the subdivision permit which was to upgrade the road which would be used on the property.
This road was supposed to be upgraded and function as a public road and she upgraded the road in terms of the requirements set by City of Harare.
On January 27, 2007, she was granted a certificate of compliance from the City of Harare which indicated that all the requirements set out in the permit had been met.
In 2015, Mount Breezes Home Owners Association applied for part of that property to become a gated community and on November 18, 2015, the City of Harare granted this application without Chikerema’s knowledge or consent as a permit holder.
This resulted in the upgraded road becoming closed off within the gated community and in effect, turning the road from being a public road into a private one.
Chikerema argued that this amounted to the amendment of conditions set out on the permit issued in 1999 without her being consulted.
She wrote to the City of Harare and expressed that there was no basis for them to act in this manner as their approval of the Mount Breezes application altered the 1999 subdivision permit.
On April 21, 2021, the City of Harare confirmed in a letter that it granted the amendment on the assumption that she, by virtue of owning stand 19 in the property, was aware and consented to the application for amendments to the subdivision permit SD/381.
Several correspondences were exchanged and in its latest letter dated June 30, 2021, the City of Harare shut the door on her and indicated that she should escalate her issues further.
Following the amendments, Mount Breezes erected boom gates at the intersection of Luna Road and Crowhill Road, thereby cordoning off the road that links Subdivision E of Lot H of Borrowdale Estate, commonly known as Mt Breezes, up to Lot J of Borrowdale Estate, commonly called Crowhill.
As a result of the erection of the boom gates, she was sued by the residents of Crowhill under case HC 7052/21.
She argued that the decision made by the City of Harare is illegal in nature as it infringes on her right, guaranteed by s40(10) of the Regional, Town and Country Planning Act [Chapter 29:12], to be consulted in the event of an amendment to her subdivision permit.
She also contended that the unlawful amendment materially alters the effect of the original permit, as the privatisation of the road is contrary to the original intention set out on the subdivision permit.
She sought that the Amendment by the City of Harare be declared null and void.
She argued that the City of Harare never sought her consent as the subdivision permit holder to amend the subdivision permit and also never sought her attitude towards the contents of the letter which was sent to it by the said Mount Breezes Owners Association.
Chikerema disputed that she registered and transferred control of her development to Mount Breezes Home Owners Association and that she is bound by the decision of the association.
However, the late Judge Owen Tagu ruled in favour of Chikerema saying she had established that as a permit holder of the subdivision permit granted to her by City of Harare, she had direct and substantial interest in all the alterations to that subdivision permit.
Justice Tagu ruled that she further established that City of Harare infringed on her enshrined rights to grant or decline consent to any amendments proposed to the subdivision permit in her name.
“The import of that provision is that when the planning authority (in this case the City of Harare) wants to amend a permit granted to the permit holder, the permit holder’s permission must be sought for first.
“In casu (in this case), the applicant (Chikerema) never agreed to her subdivision permit being amended by the City of Harare. She was never consulted.
“In its letter dated April 21, 2021, the respondent confirmed that they granted the amendments on the assumption that applicant, by virtue of owning stand 19 in the property, was aware and consented to the application for amendments to the subdivision permit SD/381. These facts are not disputed,” Justice Tagu said.
The judge said the City of Harare knew all along that the holder of the permit for subdivision E of Lot H of Borrowdale Estate was Chikerema and not the Mount Breezes Home Owners Association.
The judge ended by stating that Chikerema, as a subdivision permit holder, had a right to grant consent or otherwise to amendments to her permit enshrined in s40(10) of the Regional, Town and Country Planning Act [Chapter 29:12].
Justice Tagu then declared the amendment of the permit null and void.
However, the developments did not stop as the association is proceeding to erect the precast wall.