An attempt to set up a funeral parlour in Pomona, northern Harare, remains a non-starter after Development Studios Africa Private Limited lost its appeal against a High Court judgment overturning City of Harare's approval for a funeral parlour, following objections from other businesses in the area.
The development company successfully applied to Harare City Council for a special permit for change of use of land to establish a funeral parlour on its two adjoining stands in Pomona.
The normal newspaper notices followed inviting objections in terms of the Regional Town and Country Planning Act.
Several companies, including Paza Buster Commodity Brokers, Valley Seeds (Pvt) Ltd, FPG Capital (Pvt) Ltd and Luscious Foods, objected to the establishment of the parlour, arguing that the change of use of land from industrial to a funeral parlour would have a detrimental effect to the neighbouring properties and that since a funeral parlour was a high traffic business, that would negatively affect their business and clients.
Council then furnished Development Studios Africa Private Limited with a list of objections received from the petulant businesses for it to respond.
In its response, Development Studios Africa Private Limited argued that the City's environmental management committee had authority to grant the permit since the council had delegated powers to it.
This was found later on in the courts to be incorrect as only the city council, as the local planning authority, can grant the permit.
And on March 8, 2022, the environmental committee overrode the objections, as it was entitled to do, and granted the permit in favour of Development Studios Africa Private Limited.
Objector Paza Busters then approached the High Court for a review of the council's decision.
Paza Busters won its case after it proved on a balance of probabilities that the environmental committee of City of Harare had no authority to grant the permit and that the council failed to produce evidence of a resolution granting the permit to Development Studios Africa Private Limited.
In addition, it was also proved that the permit to Development Studios Africa Private Limited was improperly granted as Paza Busters were not given an opportunity to be heard.
The council committee was found to be unreasonable, biased and procedurally unfair, considering that it ignored the objections raised in relation to the establishment of a funeral parlour.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
Unhappy with the lower court's decision, Development Studios Africa Private Limited appealed to the Supreme Court.
A three-judge panel of Justice Chinembiri Bhunu, Justice Samuel Kudya and Justice Hlekani Mwayera upheld the lower court's decision and tossed out the appeal by Development Studios Africa Private Limited for lack of merit.
In her ruling, Justice Mawayera found that the council committee, not being a local planning authority and not being empowered by any law, had no jurisdiction to issue out a permit in the circumstances.
"The courts are ordinarily loath to interfere with decisions of the administrative authority unless the decision is unlawful, grossly unreasonable or procedurally irregular and unfair," she said, noting that "this patently unlawful process" had been detected by the High Court.
Advocate Tawanda Zhuwarara instructed by Gwaunza & Mapota Legal Practitioners, argued the matter for Development Studios Africa Private Limited while Advocate Thabani Mpofu instructed by Rubaya & Chatambudza Legal Practitioners acted for Paza Busters.
Mr Njabulo Nyathi of Gambe Law Group Legal Practitioners represented the City of Harare.
