The High Court has thrown out an application by the Upper Crowhill Residents Association seeking to invalidate Mount Breezes Borrowdale Brooke Estate's gated community status and to reclaim access to a contested road cutting through the estate.
Justice Joel Mambara ruled that the application was "fatally defective" and an abuse of court process, finding that the residents' association had "no locus standi to approach this Court" and had acted with "dirty hands" by continuing to occupy stands and use an illegal road without compliance certificates.
"The applicant's illegal actions are not merely incidental to its claim - they are central to it," Mambara said in a damning judgment. "One cannot build an unlawful road through someone else's land and then ask a court to declare that road to be lawful."
At the heart of the dispute was Crowhill Road, a route Crowhill residents claimed had historically provided them access to Borrowdale Road.
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The City of Harare, however, in 2015 issued a letter stating it had "no objection" to Mount Breezes establishing a gated community, paving the way for the installation of gates that effectively blocked Crowhill residents from using the road.
The residents argued that the City's decision was unlawful and that the servitudes establishing the road had been extinguished when the area was subdivided in 1999. But the court dismissed their claim, stressing that the association was improperly constituted, came into existence only in 2024, and was trying to reopen issues already settled by earlier rulings.
"A child born in 2024 cannot retrospectively challenge decisions that its parents made in 2015," the judge said, echoing the respondents' argument.
Mambara also condemned the association for ignoring a binding 2014 consent order that gave Crowhill Farm (Pvt) Ltd exclusive authority to represent residents in legal matters until the development is fully regularised.
The court further held that the application was in substance a review of administrative action, disguised as a declaratory application, and was therefore "grossly out of time" since it sought to overturn a City of Harare decision made nine years ago.
Dismissing the application with punitive costs, the judge warned: "The courts cannot connive at or condone the applicant's open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards."
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The ruling cements earlier judgments affirming Mount Breezes residents' right to enjoy their gated community "free from trespass" and effectively ends Crowhill residents' long-running bid to force open access through the estate.
