High Court Orders Trial for Property Developer Ove...

High Court Orders Trial for Property Developer Over "Bogus Agent" Allegations

Nyashadzashe Ndoro- Chief Reporter

A property development company, Radar Properties (Pvt) Ltd, has been ordered to proceed to trial in a legal dispute with the Estate Agents Council of Zimbabwe following a High Court ruling that identified material disputes of fact.

Justice Maxwell Takuva, presiding over the case, determined that the contradictory affidavits presented by Radar Properties and the EACZ could not be resolved without further evidence. The dispute arose from a public notice issued by the EACZ in July 2023, which listed Radar Properties as a “bogus agent” operating without registration.

Radar Properties subsequently filed a court application seeking a declaratory order, arguing that the EACZ’s allegations were false and defamatory.

The company maintained that it is a property developer, not an estate agent, and claimed that the public notice had damaged its reputation. It sought an order compelling the EACZ to retract the notice and issue an apology.

The EACZ, however, insisted that Radar Properties was advertising itself as a registered real estate agent, citing evidence in its opposing affidavit. The council argued that its public notice was issued in the public interest to protect both the profession and consumers from unregistered practitioners.

Justice Takuva highlighted the conflicting positions of the parties, particularly regarding whether Radar Properties was acting as an estate agent. The company attributed the issue to errors by Property Book, a third-party advertising platform that is not part of the current legal proceedings.

“Clearly, the parties have two contrasting positions that are material and significant. Contrasting affidavits cannot assist the court in resolving such a dispute,” Justice Takuva stated in his ruling.

The judge emphasized the need for viva voce evidence—oral testimony from witnesses—to clarify the disputed facts. This would allow both parties to present their evidence and undergo cross-examination, ensuring a more comprehensive understanding of the situation.

“The court cannot take a robust approach and resolve the dispute on the papers. The applicant must lead viva voce evidence through its witnesses to prove that it is not an estate agent and is simply a land developer.

“The respondent should have an opportunity to rebut this evidence and present its own. The absence of evidence from Property Book hampers the court’s ability to reach a conclusion based on the available facts,” the judge stated.

Consequently, Justice Takuva ordered Radar Properties to proceed by way of action, with its founding affidavit serving as the summons and the EACZ’s notice of opposition serving as the plea.

The matter will now proceed to trial in accordance with High Court rules. The judge also ruled that whether the applicant was defamed constitutes a material dispute of fact that cannot be resolved solely based on the affidavits before the court.