Zimbabwe: Court Halts Borrowdale Housing Project Over Disputed Permit, Missing Environmental Certificate

The High Court has stopped construction of 23 double-storey cluster houses in Borrowdale, Harare, after ruling that continued building at the centre of a pending legal challenge risked rendering the court proceedings meaningless.

Justice Nevile Wamambo barred Jane Faith Makoni, her successors in title, agents and employees from carrying out further construction at No. 8 Hedsor Drive pending the final determination of a review application challenging the development permit issued in her name.

The ruling follows allegations that construction repeatedly resumed despite the dispute over the permit, with work at the property reportedly proceeding around the clock, including night shifts under floodlights.

The court found that the applicants had established grounds for an interim interdict, particularly because completing the development before the review was decided could leave them with a hollow legal victory.

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“A court whose reserved judgment can be outrun by a cement mixer has ceased to regulate anything,” Wamambo said.

The judge added: “Parties to a pending dispute must hold their positions. They may not improve them by demolition, and no more may they improve them by construction.”

The dispute was brought by Glenbeach Investments (Private) Limited and Leigh Ann Patricia Rudland, who challenged the approval of the housing project on grounds that the municipal committee which issued the permit lacked jurisdiction and that the development proceeded without the required environmental clearance.

The review proceedings are pending under case number HCH 2294/26 after the applicants were granted condonation and an extension of time to bring the challenge.

The court noted that the development permit remained in Makoni’s name even though she had transferred the property to Kudwis Investments (Private) Limited on September 24, 2024.

Makoni opposed the interdict, arguing that she had sold the property, lived in the United Kingdom and had no involvement in the construction. She also challenged the urgency of the application and argued that the applicants had failed to establish the requirements for an interim interdict.

But Wamambo found that the transfer of the property did not establish that the development permit had also been transferred.

“A development permit is not a bearer instrument which passes from hand to hand with the title deeds,” the judge said.

“The deed of transfer proves that the first respondent parted with the land. It does not prove that she parted with the permit, and it is the permit, not the land, which is the fount of the construction and the subject of the pending challenge.”

The judge also questioned Makoni’s claim that she had severed all ties with the project, noting that she had attached an environmental impact assessment certificate for the development to her opposing papers.

The certificate, dated October 30, 2024, was issued in the name of Kingswood Agro (Private) Limited, whose relationship with Makoni, Kudwis Investments or the project was not explained in the papers.

Wamambo said Makoni had failed to explain how the certificate came into her possession if she was entirely disconnected from the development.

“People who are truly divorced from a project do not ordinarily arrive in court carrying its environmental documents,” the judge said.

The court further found that Makoni’s position was inconsistent because, while denying involvement in the construction, she also defended the project’s legality and sought dismissal of the application.

“Our law does not permit a litigant to approbate and reprobate, to blow hot and cold from the same set of lungs,” Justice Wamambo said.

The applicants had initially approached the court in July 2025 seeking permission to bring a review application challenging the development permit.

They argued that the City of Harare’s Works and Town Planning Committee lacked jurisdiction to grant the permit and that the project could not lawfully proceed without an environmental impact assessment certificate as required by the Environmental Management Act.

Under section 97(1) of the Act, read with its First Schedule, prescribed projects such as housing developments require an environmental impact assessment certificate before implementation.

The court stressed that it was not making a final determination on the validity of the permit or the environmental certificate, leaving those questions for the review proceedings.

However, it found that the applicants had established a prima facie right to relief and a well-founded fear of irreparable harm if construction continued.

The judge noted that building work had stopped after the initial proceedings were served, resumed in November 2025, paused again following correspondence between the parties’ lawyers and restarted in earnest in March 2026.

The applicants approached the court on March 17, 2026, after reporting that construction had resumed on a 24-hour basis.

Makoni argued that the application was not urgent because construction had started long before the applicants sought relief.

The court rejected that argument, finding that the applicants had acted promptly after the latest resumption and had previously been given assurances that no construction was taking place.

“Urgency induced by an opponent’s own stop-and-start conduct is not self-created urgency,” Justice Wamambo said. “If a label is needed, it is respondent-created urgency.”

The judge also dismissed the argument that the applicants should have waited for the outcome of the pending proceedings, warning that the court process could be defeated if the development was completed before the review was determined.

“If the remaining units are completed pendente lite, a successful review will present the applicants with a paper victory and the neighbourhood with twenty-three double-storey reasons to doubt the utility of litigation,” he said.

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Wamambo added that the balance of convenience favoured suspending construction because the developer could resume if the review failed, while allowing the project to continue risked creating an irreversible situation if the permit was ultimately set aside.

“Postponement, it must be remembered, is not demolition,” the judge said.

The court also rejected Makoni’s reliance on a Supreme Court ruling concerning the presumption of validity of statutory instruments, distinguishing that case from the present dispute, which involved an administrative decision by a municipal committee and an existing challenge to the permit.

It held that the interim interdict was intended to preserve the subject matter of the litigation rather than replace the review process.

“The presumption of validity is a shield for the permit. It is not a starter’s pistol,” Justice Wamambo said.

The City of Harare’s Works and Town Planning Committee, the director of works and the local authority did not oppose the application, while the Environmental Management Agency neither appeared nor filed papers.

The first respondent was ordered to pay the applicants’ legal costs on the ordinary scale.

The interdict will remain in force until the final determination of the review application under case number HCH 2294/26.

Read the original article on New Zimbabwe.

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