This matter was initially placed before me under a certificate of urgency. As the final and interim relief sought on the provisional order were the same, I wrote an endorsement on the face of the application querying the manner in which the relief had been framed.

The letter of explanation was not placed before me and it was not until after some months that the matter was then brought to my attention. In the event, it was set down before me in chambers to be argued as an urgent application.

The respondents indicated a desire to file affidavits in opposition and it was agreed between the parties that the best way was for the matter to be dealt with as an opposed application. The parties thereafter filed their documents, including heads of argument, and the matter was then argued in court.

On the date of hearing, counsel for the applicants made reference to a number of authorities to which I had no access. He promised to avail them to me shortly thereafter, but, it was not until 31 May 2007 that this request was complied with. It was, as a consequence, virtually impossible to render a judgment soon after the hearing as I then was heavily committed in other duties.

I turn now to the application before me.

The applicants are unions representing members in the employ of the second respondent. The first respondent is a medical aid society set up for the benefit of the employees of the second respondent and would appear to have been set up by virtue of a Collective Bargaining Agreement between the second respondent and its employees.

It is common cause that the first respondent was collecting subscriptions from the employees and the second respondent. Benefits which the employees received were not related to the level of payment by the beneficiary and it was, consequently, a fact that the second respondent was operating as a welfarist society with its members being afforded the same benefits.

In August 2006, the second respondent put into effect a three-tier system where benefits were structured according to the level of contributions paid by respective members.

Following representations made to the second respondent, the changes were not put into effect immediately as the parties attempted to find a common position. However, at the end of August 2006, the second respondent gave notice of its intention to put the changes into effect at the beginning of October 2006. The changes were put into effect and the system is now operational.

In view of the reasons I alluded to earlier, an attempt to have a temporary interdict stopping the implementation was still-born. It therefore only leaves the final relief for determination.

The terms of the final relief are in the following terms:

1. That the implementation and execution of the tiered system by the first respondent, effected on 1 October 2006, be and is hereby set aside.

2. That the first respondent be and is hereby ordered to cease/stop and be inducted from implementing the tiered system introduced on 1 October 2006.

3. That the first respondent pays the costs of suit.

Extensive heads of argument were filed on behalf of the parties. In addition, both counsel addressed the court orally.

Counsel for the applicants argued that there were three issues for determination:

(i) The first issue was whether or not the first respondent had powers, in terms of its Constitution, to alter the medical aid scheme in existence since its inception. Counsel invited me to look at the narrow positivist meaning of clause 11(2) as well as the context of the agreement.

(ii) The second issue was whether or not the Board of the third respondent had issued a directive to the first respondent following upon a meeting held on 20 October 2006; and

(iii) The last issue was whether or not the applicants had a legitimate interest to be heard before a decision was made to link benefits to subscriptions.

Counsel for the respondents argued almost on the same premise as counsel for the applicants viz whether the second respondent had the power to introduce the benefit structure that it did.

His argument was that the applicants had considered the structure of the third respondent in isolation of the statute. He submitted that the first respondent had the power to alter the benefits accorded to its members. In so far as the third respondent was concerned it was his contention that it had not issued a directive to the first respondent to stop implementing the alteration in the benefit structure. Lastly, it was argued, on behalf of the first respondent, that, the provision of medical services by the first respondent to members of the applicants was not a condition of service and that therefore there was no need for the applicants' members to be consulted prior to the implementation of the changes.

I think the logical place to start in this matter is the examination of the relationship between the applicants and the first respondent.

The first respondent was established by the National Industrial Council for the Railway Industry in 1970. One of its objects was to afford members the facility of obtaining medical and surgical treatment for themselves, and their dependants, including the provision of drugs and medicines.

According to the Constitution in terms of which the first respondent was set up, its members comprised of the following; employees of Railways, employees of National Railways of Zimbabwe, Railmed, National Railways of Zimbabwe Pension Fund, RAE, RAU, RAYOS, REC, RMS, and Z.A.R.W.U. who are entitled to membership in terms of their conditions of employment.

Also included in the list of people entitled to be members are pensioners of the various institutions described above and the widows or widowers of those persons who had been in employment in the same and were members of the first respondent.

The applicants, being unions, are representing the persons employed by the various bodies I have referred to. Except for those employed by the first respondent, none of the members of the applicants can say that they are employees of the same. The greater number of the applicants' members therefore are employed by the other bodies.

Going by the objects of the Constitution of the first respondent, the applicants' members have a relationship with the first respondent whereby the latter has undertaken to afford the members facility for the provision of medical and surgical treatment as well as drugs and medication. Nowhere in their papers have the applicants' alluded to any other contract with the first respondent except for the provision of the services I have described above.

Yet, in addressing the question of the first respondent's actions in altering the benefit structure being offered to their members, the applicants contend that the actions of the first respondent are in fact an alteration of their conditions of service.

In order to dispose of the issue of the relationship between the applicants and the first respondent, it then becomes necessary to arrive at a decision as to the meaning to be ascribed to the phrase “conditions of service.”

When one is in service, one is in employment, and, therefore, conditions of service are the same as conditions of employment. In the case of OK Bazaars (1929) Ltd v Madeley NO & Anor 1943 TPD392, conditions of employment were described as:

“Conditions of employment in the present context means simply the terms, either express or implied, contained in a contract of employment.”

The terms and conditions of the employment contracts of the applicants' members are not in the purview of the first respondent. In my view, conditions of service can only exist where services of a personal nature are rendered, the one being the employer the other the employee.

We do not have services of a personal nature being rendered by the applicants' members to and on behalf of the first respondent.

I presume that the contracts of employment provide for contributions by the employer for subscriptions to a medical aid society. Beyond that, I refuse to go as the contracts are not before me and any further comments on my part would be mere speculation.

The point is made by counsel for the applicants that the effect of the alteration put in place by the first respondent was to fundamentally alter the structure of the Medical Fund from one based upon the principle of equal contributions from the employer and employee and equal unlimited benefits to a new principle of a scheme based on full recovery.

I accept that the entitlement to the medical aid benefit, on the basis of the equal contribution with the employer and attendant benefits is a condition of service. I do not accept, as contended by counsel for the applicants, that receiving equal benefits with other members where the one pays less than another member is a condition of service.

However, the linking of the benefits to the level of subscriptions paid by the first respondent's members does not affect the terms on which the members of the applicant are afforded employment by their respective employers.

The level and extent of benefits afforded to members is within the discretion of the first respondent and the employer has no input in such assessment.

There is no suggestion that under the new scheme the employer will contribute less than it has been contributing, because if that were the case then the applicants' members would have been on very firm ground in arguing that their conditions of service had been altered.

All the scheme does is to ensure that a contributor obtains services according to the level to which they can contribute in terms of subscriptions. The employer's obligation is not lessened in any manner as he is still obliged to contribute in equal measure to the contributions made by the member.

The condition of service is the entitlement to membership in terms of the contract of employment coupled with the employer's obligation to contribute an equal measure as the employee.

Since the employer does not determine the level of benefits afforded by the first respondent, the fact the benefits are reduced does not alter the conditions of service which remain unchanged. I am unable to find, therefore, that, the scheme has the effect of altering the conditions of service of the first respondent's members.

I move on.

The next issue I have to determine is whether the first respondent has the power, under the Constitution, to alter the benefit scheme in the manner that it did.

The powers of the first respondent must, of necessity, be examined in the conjunction with the provisions of the Medical Services Act [Chapter 15:13] (“the Act”) which regulates the manner in which medical aid societies conduct their business as well as the manner in which they are managed.

Although the first respondent, as an entity, was set up in 1970, which was prior to the promulgation of the Medical Services Act, its registration was deemed in terms of section 17 of the Medical Services Act.

I start with the definition section which not only describes a medical aid society but also specifies its purposes. The definition in section 2 of the Medical Services Act is as follows:

“…, any association or organization which accepts subscriptions from members or other persons wholly or mainly for the purposes of -

(a) Paying any expenses incurred by such members or persons, and, additionally, or alternatively, their dependants or employees, in respect of medical or dental treatment; and

(b) Meeting the whole or part of any expenses incurred by such members or persons, and, additionally, or alternatively, their employees, in respect of medical or dental treatment.”

The registration of a medical aid society is provided for in section 9 of the Medical Services Act.

Section 9(5) of the Medical Services Act provides that the Secretary shall be satisfied in relation to the following before he can register a medical aid society:

(a) The minimum cover for medical services to be provided by the medical aid society is adequate for the purpose of meeting the costs of medical services at such level as may be prescribed; and

(b) Adequate financial provisions have been made for the proper maintenance of the medical aid society.

In terms of section 10 of the of the Medical Services Act, the Secretary is empowered to cancel the registration of any medical aid society which fails to comply with the provisions of section 9(5).

My view is that the powers granted to the first respondent, in terms of the Constitution, have, of necessity, to be considered in conjunction with the provisions of sections 9 and 10 of the Medical Services Act.

The Constitution provides for the creation of a Board to administer the affairs of the first respondent. Ten members are required to sit on the Board; five of whom shall be appointed by National Railways of Zimbabwe and the last five from the other entities mentioned earlier on in the judgment, from those institutions whose employees or members are entitled to membership of the first respondent.

Clause 11, from which the Board derives its powers, is phrased thus:

“Powers and Functions of the Board of Management

(1) Subject to the provisions of the Medical Services Act, the regulations made in terms thereof and any other law, it shall be the duty of the Board to administer the affairs of Railmed in a judicious manner at all times and always to act in the best interest of both Railmed and its individual members and to implement the directives of the Secretary responsible for the Health Ministry and REC as may be given from time to time.

(1) It shall have the power to:

(a) Formulate and issue Rules of Railmed to include the schedule of rates payable by different categories of members;

(b) Modify, amend, repeal, substitute or suspend any or all of such Rules where general or specific circumstances require such action;

(c) Determine the range and scope of benefits to be afforded by Railmed; and

(d) Refuse, terminate or restrict benefits in respect of any beneficiary who contravenes any Rule of Railmed.”

Although they have been placed before me, I have not been referred to the Rules of Railmed specifically and I cannot comment further on them other than to say that the first respondent does have the power in formulating such Rules to regulate the rates payable by the different categories of members which, of necessity, taking into account the different levels of employees in the undertakings must go with a medical aid society.

In real terms, the first respondent would have to set the level and range that each category of membership would have to pay as subscription for the services to be availed to such member.

It follows, therefore, that, the rates of contributions set by the first respondent would then have a bearing on the range of benefits that can be accorded for the categories of rates of contributions set in the Rules. It is only fitting, therefore, that consistent with the power to regulate the schedule of rates of contributions to be paid by the various categories of the members, the first respondent also be endowed with the power to regulate the range and scope of the benefits to be afforded by Railmed.

I cannot see the practical effect of a medical aid society having the power to set the schedule of rates of contributions to be paid by the different categories of members but not having the power to set the range and scope of the benefits to be afforded to the membership. It would, in my view, be only logical that the range and scope of benefits be set and then the contributions be calculated. The one cannot exist independently of the other.

I venture to suggest, that, in arriving at the benefits and contributions that are attendant thereon the Board of the first respondent has to bear in mind the provisions of the Medical Services Act, in particular that it act in the best interests of the members and the society itself.

I am fortified in this view by the intent of the first respondent as spelt out in its objects - that, primarily of providing members the facility of obtaining medical and surgical treatment for themselves and their dependants, including the provision of drugs and medicines.

The objects of the first respondent would not be met if the first respondent were curtailed in its power as to what benefits it can offer to its members. If that were a matter for the decision of the REC then the latter would have been specifically accorded those powers.

It has not.

It merely has the power to make decisions of a strategic nature.

This brings me to the next rung. Is the decision regarding the extent of benefits to be afforded to the members of the first respondent one that can be termed strategic in nature?

According to counsel for the applicants, even though the first respondent had the power, under its Constitution, to determine the range and scope of the benefits to be afforded to its members, it did not have the power to change the society from a welfarist one to one run on market principles with the aim of full cost recovery.

I find it hard to comprehend why the restriction on the power afforded to the first respondent, under the Constitution, was framed in such a vague manner.

If it was the intention that the REC gives directives of a long-term plan to the first respondent it was simpler, in my view, to have phrased it as such.

Counsel for the applicants went further and argued that the three tier system that was adopted by the first respondent was not a mere scheduling of the rates and contributions or the mere determination of the range of scope of benefits, but, was rather the essence and product of the first respondent's strategic recovery plan which was prepared in 2004 and commissioned in 2005. He premises his view on the argument that the entitlement to medical benefits is a condition of service.

I have already found that the medical benefit is not a condition of service, but that what was a condition of service was the entitlement to membership and the concomitant contribution by the employer on behalf of the employee.

It is pertinent to note that the contracts of employment where the conditions are spelt out were not displayed to the court as much of the argument is based on the alteration of the same.

The Constitution does not define what it means by strategic.

From the argument pursued by counsel for the applicants, it is clear that the meaning he ascribes to strategic is to do with an alleged alteration of conditions of service.

I have above already discussed on whether the introduction of the three-tier system of benefits, by the first respondent, constituted a change in the members conditions of service and my conclusion was that it did not constitute such.

I turn next to the question whether or not the REC issued a directive to the first respondent.

The REC wrote two letters to the first respondent subsequent to the adoption by it of the three tier system of benefits. The first letter to the first respondent was phrased as follows:

“RE: INTRODUCTION OF THE THREE-TIER SYSTEM EFFECTIVE 1 OCTOBER 2006

1. On 20 October 2006, the Railway Employment Council met and decided as follows:-

1.1 The introduction of the proposed Three-Tier Scheme is to be suspended with immediate effect, viz from the 20th instant and it shall remain so suspended until you are advised to the contrary in due course.

1.2 The suspension is intended to enable the Railway Employment Council to have the matter resolved and you are advised accordingly.

2. In the meantime, the deductions for the remission to you shall be as hitherto was the case before the purported introduction of the Three Tier System by yourselves.”

The letter was written by the chairman of the REC, and, on receipt of this letter, the chairman of Railmed sought clarification, as, in his view, it appeared that the four trade unions and NRZ had not resolved to direct the Board of Railmed to suspend the Three-Tier System.

A letter was dispatched from the office of the chairman of the REC in the following terms:

“I merely advised you that the feeling in Council was that the introduction of the proposed three-tier system be suspended with effect from the 20th instant. This was necessary in order to enable the members of the Council to reach an agreement.

However, you may choose to ignore my advice but you do not have any reason to misunderstand what I said.

I never pretended to say that the trade unions and NRZ resolved to direct the Railmed Board to suspend the three tier system. I have no power to direct any member or constituent member of the REC to do anything.”

What emerges from the last quoted letter is that the Board of the REC had not passed a resolution which would have issued a directive to the first respondent to suspend the introduction of the three-tier system.

It also emerges clearly from the chairman's letter that he was talking about a feeling in Council. There had been no agreement that the three tier system be suspended.

The letter from the chairman is very clear and it seems to me that if the applicants wish to contradict him and put forward a version that differs from his statement in the letter then they should have produced minutes of the meeting where the directive was given.

In the meeting of the Railway Employment Council (REC) Board, held on 20 October 2006, the chairman had noted that “the Council had no jurisdiction to instruct Railmed to cease the implementation of the scheme.”

In fact, the meeting could not agree on what action to take and the chairman indicated that he would write to Railmed and state that Council's position was that the status quo, as it was before the introduction of the three-tier system (for whatever merit), should prevail until Council wrote to Railmed on the position. This then led to the crafting of the letter initially sent to the first respondent, which letter was subsequently clarified.

When the two letters are read in conjunction with the minutes it becomes clear that the Railway Employment Council (REC) did not take a position on the implementation because of the divergence of views expressed by the Board members present.

Further, I did not understand, from my reading of the minutes, that the Railway Employment Council (REC) had resolved to give a directive to the first respondent to stop implementing the new system.

In the absence of that, I have to find that the Railway Employment Council (REC) did not issue a directive to the applicants to suspend the introduction of the three tier system of benefits.

The applicant and the first respondent were married to each other according to the laws of Zimbabwe in October 1992. The marriage was blessed with two children, and during the subsistence of the marriage, the parties acquired a sizeable number of assets.

The parties' marriage encountered some problems, which resulted in their separation.

The appellants, on 21 August 2013, brought an application in the High Court on a certificate of urgency seeking a provisional order in the following terms:

“1. It is hereby ordered and declared that the management of Eaglesvale School vests in the Management of the Board of Governors of Eaglesvale School and the School Development Committees of the High School and Junior School respectively.

2. The First and Second Respondents are not empowered to dissolve the Management Board of Governors and the School Development Committees of the High School and Junior School and any such acts are declared to be unlawful.

3. The unauthorised payment of any money from the school to the First and Second Respondents and or any of their officers is unlawful.

4. Consequently, the First, Second and Third Respondents be and are hereby restrained and interdicted from interfering unlawfully in the Applicants management of the administrative and financial affairs of Eaglesvale School.

5. The First, Second and Third Respondents are ordered to pay the costs of this application.

INTERIM RELIEF GRANTED

6. Pending the final determination of this matter, the First and Second Respondents be and are ordered forthwith not to interfere and or involve themselves in any manner in the administration and/or finances of Eaglesvale School.

7. The Board of Governors of Eaglesvale School and the School Development Committee shall continue to manage the school and its finances. 

8. Third Respondent is ordered to take instructions concerning the administration and finances of school from the Applicants and not from the First and Second Respondents.

9. The Applicant and/or its legal practitioners be and are hereby authorised to serve this provisional order on the Respondents.”

The learned Judge before whom the matter was placed dismissed the application with costs on the grounds that the appellants had no locus standi to bring the application, and, further, that the matter was not urgent.

Against this judgment, the appellants have appealed on grounds, inter alia, that the court erred on both grounds. It was prayed, on appeal, that the judgment of the court a quo be set aside and substituted with an order granting the provisional order sought with costs.

THE BACKGROUND FACTS  

In 1984, the Dutch Reformed Church formed and registered a non-profit making company under the name Daisyfield Trust. The company was established as a not-for-profit welfare company in terms of the Companies Act. The purpose of the Daisyfield Trust was to establish and to ensure oversight of a Christian ethos for the schools established or falling under the Trust according to Dutch Reformed Church values, and generally to maintain a Christian character. Eaglesvale School (previously Bothashof School) was brought under the oversight of the Trust for the aforesaid reason and purpose.

Sometime in 2010, a decision was taken by the Dutch Reformed Church to hand over the Trust to the Reformed Church of Zimbabwe. With the authorization of the Minister of Justice, the Articles of Association of the Daisyfield Trust were altered to accommodate the change of ownership, and, on 15 March 2013, by special resolution of the Daisyfield Trust, its name was changed to THE REFORMED CHURCH IN ZIMBABWE'S DAISYFIELD TRUST. 

I will refer to it hereinafter as “the Trust”.   

Following the above, the oversight of the school then moved to the Reformed Church of Zimbabwe who then became the trustees of the Trust.

Up to 12 July 2013, the first to the eighth appellants were members of the Board of Governors responsible for the management of Eaglesvale School. The ninth and the tenth appellants are members of the School Development Committees of the Junior and Senior schools, respectively. It appears from the opposing papers that on 12 July 2013 a letter was written by the Board of Trustees addressed to the third respondent as follows:

“Att: Mr N Tirivavi

Eaglesvale School Management Board

12 July 2013

RE: DISSOLUTION OF EAGLESVALE SCHOOL MANAGEMENT BOARD

The above matter refers.

You are hereby notified that the Reformed Church in Zimbabwe's Daisyfield Trust Board of which you have been a Board member, has been dissolved with immediate effect.

It has come to the attention of the Reformed Church in Zimbabwe's Daisyfield Trust that the School Management Board did not follow instructions from the Board of Trustees as written in the letter to you dated 21 June 2013. For avoidance of doubt, the letter instructed the School Management Board to:

1. Reinstate Mr. Tirivavi back to his work as the suspension was unlawful.

2. Give Mr. Tirivavi all his salary and benefits from the date of suspension.

The Reformed Church in Zimbabwe's Daisyfield Trust regrets that to this day, the Headmaster has not been given his dues and his office is still locked and blocked, thereby hindering the smooth running of the school. It would seem from the occurrences pertaining to various issues at the school that the school management Board is not willing to cooperate or work with the trustees.

Therefore, the Board of Trustees has been left with no option but to dissolve you as the school management board. This means your membership to this Board ceases forthwith. However, you are notified that if you are still interested to be part of the new Board to be set up, you should submit your application to the Board of Trustees by the end of the day of Monday 15 July 2013.”

It is not clear on the papers as to whether or not the letter was brought to the attention of the appellants but it is not disputed that the appellants at some stage thereafter came to know of the fact that an Interim Board of Governors had been appointed by the trustees. Thereafter, a situation then allegedly pertained where instructions were being given to the administrative staff by both Boards of Governors and the headmaster was taking instructions from the “Board of Trustees” and not from the appellants. 

The third respondent, Naison Tirivavi, is the headmaster….,.

THE ISSUES

At the hearing, a number of preliminary points were raised. The two which formed the basis of the decision were that;

(i) The matter was not urgent; and

(ii) That the appellants had no locus standi to make the application.

THE APPLICATION

The appellants averred that the urgent problem and reason for the application is that:

“The new trustees are running havoc and disrupting the management of the school. Unfortunately, they are also abusing school funds and resources for personal gain. Until recently, the reasons for the conduct of the RCZ and its appointed trustees, whilst still disruptive, were not clear. Sadly, it is now the clearer and urgent that the reason for this conduct is, inter alia, to take control of finances unlawfully and to plunder them.”

They averred that the trustees had lifted the suspension of the headmaster on charges of misconduct while the charges against him were still pending and attached vouchers to show that within one month, that is to say, during the period 19 June 2013 to 19 July 2013, the first to third respondents had looted some $80,000= from the school coffers for their own gain and without the knowledge of the appellants.

They claimed that it had never been the practice for trustees to draw money from the school as evidenced by the fact that one Mr Van Vuuren, the former trustee of the Trust under the management of the Dutch Reformed Church, had never drawn or demanded money from the school throughout his term of office. The role of the Trust, they stated, was to bring help, whether monetary or otherwise, to the school and not to plunder its resources. They had grave concerns that the respondents were trying to access the bank accounts which have always fallen under 'the guardianship of the Board and the School Development Committees.' They alleged that they wrote to the Trustees advising them that their attempt to dissolve the Board was void.

However, that letter does not form part of the record and details of the date or contents thereof cannot be ascertained.

They alleged, further, that the interim Board had taken control of the finances of the school and were making payments to the Trustees, for their services, in a manner which caused alarm to the appellants. They attached to their papers a number of vouchers which they say caused them to fear that the funds of the school were being mis-managed to the personal benefit of the Trustees. 

For the above reasons, they felt the need for an interdict to be granted as a matter of urgency.

The application was opposed by the respondents who contended that the matter was not urgent.

The Board, they said, had been dissolved on 12 July 2013, and the appellants knew, as at that date, that an interim Board had taken over the management of the school. It follows that the new administration would have access to the school's bank accounts and finances. Accordingly, the appellants had not made out a case for the matter to be given preference on the court roll by being accorded an urgent hearing.  

In the respondents' opinion the matter ought to have been referred to the ordinary roll….,.

In any event, as contended by the respondent, the appellants had no locus standi to make the application since they had not shown that they represented the Board.

No resolutions or other forms of authority were produced to the court which would satisfy it of the locus standi of the appellants to bring this application.

The plaintiffs are trustees of the Leonard Cheshire Homes Trust, a Trust established in terms of the trust laws of Zimbabwe. The Trust was established in 1981. The trustees, were appointed at different stages, as will be clarified in the judgment. The main objective of the Trust, as provided in clause 3(i)(a) of the Deed of Trust is -

Counsel for the defendants, relying on the cases of Osman v Jhavany 1939 Ad 351…., Exparte Kemp's Executor (1940) WLD 26 and Macfoy v United Africa Co. Ltd 1961 (3) ALL ER 1169…., raised the issue of the validity of the appointment of these trustees by persons who were no longer validly holding office as trustees. He argued that those who held office invalidly could not make valid decisions therefore the two were not validly appointed.

In Osman v Jhavany 1939 Ad 351, TINDALL JA…, said -

“The first ground on which the exception was supported by Mr Shaw, on behalf of the defendants, is that there is an implication in clause 11 of the Trust Deed that the rest of the trustees, though their authority in other respects has ceased, have the power to convene a general meeting to elect trustees afresh. The language of the Trust Deed is not capable of such a construction.”

In this case, the language of the Deed of Trust is clear on a trustee's term of office. It is limited to a period of five years. One cannot, therefore, continue to be a trustee when his term of office comes to an end. Counsel for the defendants therefore argued that the trustees whose terms of office had expired could not validly appoint new trustees.

In Exparte Kemp's Executor (1940) WLD 26 it was held that -

“For there can be no obligation where there is no person with a right to enforce it.”

In Macfoy v United Africa Co. Ltd 1961 (3) ALL ER 1169 it was held that -

“If an act is void then it is, in law, a nullity. It is not only bad but incurably bad..,. You cannot place something on nothing and expect it to stay there. It will collapse.”

Counsel for the defendants' submissions may be valid if all the trustees who sat at the meetings which appointed Messers Choto and Muzondo's terms of office had expired. It is common cause that Messers C Gomwe, B Chikwanha, G Mills, and A Hungwe's terms of office had exceeded the five year limit. They could not have validly appointed Mr Choto on 26 July 2004.

Section 5(b) of the Deed of Trust provides that a trustee shall “be nominated and appointed by a majority decision of The Leonard Cheshire Homes Zimbabwe.”

The trustees were therefore given the power of assumption referred to by HONORE & CAMEROON - Honores' South African Law of Trusts 1992…, where the learned authors said -

“It is common practice for the founder of a trust to give the trustees the power of assuming additional trustees to act with them. A power of this sort is called a power of assumption. Assumption is that species of appointment which results from nomination by one or more of the existing trustees together with the other requirements, including acceptance by the appointee.”

It is important to note that assumption can only be exercised by existing trustees of a Trust. It cannot be exercised by a former trustee whose term of office has expired.

The lawful quorum of the Trust is two trustees.

Mr Muzondo, sitting alone, could therefore not have validly appointed Mr Choto. One trustee cannot validly sit and make decisions on his own, because the minimum number of trustees required by the Deed of Trust is two. Similarly, Mr Muzondo could not, on his own, have authorised the institution of litigation to evict the defendants. Even in a case where one trustee of the two appoints a new trustee, or makes a decision, his decision cannot prevail as it can not constitute a majority decision required by section 5(b) of the Deed of Trust. The Deed provides that where there is equality of numbers the Chairman can exercise his casting vote. The Chairman at this meeting was Dr Hungwe whose term of office had expired.

The Trust's business was being conducted in contravention of the provisions of the Deed of Trust to an extent that it would be dangerous to assume that Mr Muzondo was properly appointed.

Counsel for the plaintiff submitted that the court should uphold the decision of the trustees in spite of the…., irregularities in their holding office as trustees, as a Trust must not fail for want of trustees. He urged the court to interpret the Deed of Trust purposively in order to give it meaning rather than defeating its objectives. He referred to the case of Holness v Petermaritsburg CC 1975 (2) SA 713…, where SHEARER J said -

“Clearly, one would expect the administrators to be given notice of expropriation as they are the persons who would decide whether to contest its validity to decide on the claim for compensation and generally to order the affairs of the Trust. If they die, the Trust does not fail for want of administrators or administrator. The court will appoint new administrators and thus recognise the continuation of the Trust and the endorsement remains unaltered. If no new administrators have been appointed the local authority may apply for the appointment of new administrators just as it may for the appointment of a curator of an “owner” of unsound mind.”

Counsel for the plaintiff thus submitted that the court, in furtherance of the continuation of a Trust, is, at common law, given a wide discretion to appoint a trustee or additional trustees.

I agree that the provisions of a Trust must be interpreted purposively to give effect to the objectives of the Trust. That, however, must be done without disregarding some provisions of the Trust instrument. The purpose for which the Trust was created is gleaned from the whole scheme of the Deed of Trust. Therefore, the purposive construction must be in agreement with all the provisions of the Deed of Trust. Counsel for the plaintiff sought to persuade the court not to strictly interpret the Deed of Trust's provisions on the trustees' terms of office, arguing that that is why the court has jurisdiction to appoint trustees. He referred to the cases of Exparte Mier 1940 SR 40, Bonsma NO v Meaker NO 1973 (4) SA 526 (R), Exparte Davenport & Mills 1962 SR 585, where the court appointed trustees. He also referred to HONOREe & CAMEROON - Honores' South African Law of Trusts 1992. The learned authors…, say –

“It is a fundamental principle of Trust Law that a Trust will not be allowed to fail for want of a trustee. Hence, the court has a wide jurisdiction, and, indeed, a duty to appoint trustees when there are none and when necessary to appoint additional and substitute trustees. The jurisdiction is given in order that the objects of the Trust may be fulfilled. The jurisdiction is derived from the common law, not from the terms of the Trust instrument. Hence, it may be exercised in a sense contrary to that of the Trust instrument, as when the court removes a trustee in whom the founder has confidence, or appoints more trustees than the founder prescribed.”

In our law, the common law position has been altered by section 7 of the Companies and Associations Trustees Act [Chapter 24:04] and section 9 of the Companies and Associations Trustees Act [Chapter 24:04]…, which provide for the appointment of trustees by the High Court on the application, by petition, of persons there-mentioned. Section 7 of the Companies and Associations Trustees Act [Chapter 24:04] and 9 of the Companies and Associations Trustees Act [Chapter 24:04] provide as follows -

“(7) As often as by death, unsoundness of mind, resignation, failure to elect, absence from Zimbabwe or other cause, the trustees or any of them of any such company or the office-bearers or other trustees of any association, or of any association which under section five is placed under this Act, become incapable of acting in the execution of the trusts for such company or association, it shall be lawful for any person who is a member of or interested in such company or association to apply, by petition, to the High Court for such order as he conceives himself entitled to, and he may, by affidavit, give such evidence in support of such petition as he thinks fit, and may serve notice of such petition upon such person or persons as he may think it needful or expedient to serve with such notice:

Provided that upon or before the hearing of such petition the court in which it is pending may order service of notice of such petition upon any person or persons whom the court thinks fit, and may order such notice to be published in the Gazette.

(9) If in any case it happens that any immovable property has been granted or transferred to any unincorporated society or body established for religious, charitable or educational purposes by the name borne by such society or body, and not through the instrumentality or intervention of office-bearers or other trustees acting for and representing such society or body, it shall be lawful for any person who is a member of, or interested in, such society or body, to apply, by petition, in manner and form as in section seven mentioned for the appointment of trustees for such society or body; and the court to which such petition is presented, proceeding in manner and form as in sections seven and eight mentioned, may, if satisfied that the appointment of trustees to act for and represent such society or body is expedient, appoint such trustees; and section eight shall in substance apply to the appointment of such trustees, and to the power of providing how new trustees shall be afterwards appointed, and to all other matters in section eight contained.”

Sections 7 and 9 of the Companies and Associations Trustees Act [Chapter 24:04] provide for the appointment of trustees by the High Court to ensure the continuation in existence of a Trust. It is the Trust that the law is interested in sustaining, and not decisions of trustees whose terms of office have expired or trustees appointed by persons who had no mandate to act for the Trust. Section 7 of the Companies and Associations Trustees Act [Chapter 24:04] covers the trustees' inability to act because of “death, unsoundness of mind, resignation, failure to elect, absence from Zimbabwe or other cause.”

In this case, other causes would cover the trustees' exceeding their terms of office, and, failure to elect, would cover the trustees who had exceeded their terms of offices' failure to validly appoint new trustees.

In this case, the objectives of the Trust and the manner in which trustees must hold office are clear. It is also clear that the trustees exceeded their terms of office. This court cannot therefore, in order to give effect to the objectives of the Trust, interpret the Deed of trust in a manner inconsistent with the limitation of the trustees' terms of office. The objective of the Trust is for it to be managed in favour of disabled people by people holding office in compliance with its provisions. That is consistent with the law which gives the court authority to appoint trustees to enable a Trust's existence to continue if there are no trustees or those holding office, are doing so contrary to the provisions of the Deed of trust. It is therefore my view that the court cannot disregard the trustees' failure to comply with the terms of their appointment in order to keep the Trust in existence.

The court would, if there are no lawfully appointed trustees, on application by interested parties, appoint new trustees who would continue to uphold the objectives of the Trust and decide the way forward on the eviction of the defendants.

I cannot uphold invalid decisions made by trustees who no longer had the mandate to manage the affairs of the Trust. Failure to uphold the trustees' decision of 26 July 2004 does not bring the existence of the Trust to an end. It merely invalidates a decision made by persons who were no longer the Trust's trustees, and those who had been improperly appointed by persons who were no longer the Trust's trustees.

In Ruzengwe & Anor v Zvinavashe HH356-14 the court said where a trustee of a trust purports to stay in office beyond the period for which he was appointed any decision made by him may be challenged and may indeed be invalid.

The late Vitalis Musungwa Gava Zvinavashe, in a bid to ensure that his estate, accumulated during his lifetime, was properly administered during the last part of his life and after his death, decided to form a trust, namely, Vitalis Musungwa Gava Zvinavashe Trust (hereinafter referred to as the Trust). The beneficiaries of the Trust included himself, his wife, his children, who included the respondent, his mother, and his late brother Francis Pachedu Zvinavashe's children.

On 25 February 2009 he executed a Notarial Deed of Donation and Trust (herein after referred to as the Deed of Trust) in which the above was captured. On the same date, the late Vitalis Musungwa Gava Zvinavashe executed his 'Last Will and Testament.' In that Last Will and Testament' (hereinafter referred to as the Will) he appointed four trustees who included the three applicants and the respondent. The respondent was nominated executor of the Will and administrator of the estate. After the demise of the testator, the respondent was duly appointed executor testamentary on 22 April 2009. In that capacity he duly performed his function and on 27 October 2009 the estate distribution account was confirmed by the Master of the High Court.

In that account, certain assets were transferred to the Trust in terms of clause 5.3 of the Will. The Trust is run and managed by a Board of Trustees. That Board had the first applicant as Chairman and the second applicant as Secretary.

On 30 April 2012, the Applicants filed this application.

They alleged that the respondent has usurped authority and administration of Trust assets from the direction and control of the Trust and is administering Trust assets without the direction and control of the Board of Trustees, and, in so doing, is prejudicing the Trust and Trust Beneficiaries of their interest in the Trust. The applicants thus seek an order that the respondent, and any person who draws authority from him, be interdicted from:-

1. Interfering with the day to day management of the Trust Schools, namely, Tynwald Primary School and Tynwald High School.

2. Prohibiting any auditor appointed by the applicants from accessing the Trust Schools' accounts and auditing such accounts.

3. Harassing and/or dismissing any employees of the Trust and Trust Schools without authority of the Board of Trustees.

4. Directly accessing any funds belonging to the Trust and Trust Schools without lawful authority of the Board.

In his opposition, the respondent raised some points in limine in which he challenged the locus standi in judicio of the applicants to bring this application.

The respondent contended that the first and second applicants lack the requisite locus standi in judicio to bring this application in that they were appointed to the office of trustee on 8 April 2009 for a period of three years. Three years have since lapsed and they have not been re-appointed. He also contended that the applicants lack the requisite locus standi in judicio to bring this application as they do not have a resolution authorising them to bring the application as they did.

The respondent further contended that the matter is lis pendens in that he has instituted proceedings in this court on 24 April 2012 for an order directing the second applicant to convene a meeting of the Trust to deal with the issues complained of in this application. Those proceedings are still pending.

On the above issues, the respondent contended that the application should be dismissed.

The applicants argued that their terms of office have not lapsed. The first and second applicants are trustees by virtue of their office and so are virtually there for their lifetime. If anything, the respondent is shooting himself in the foot as he is amongst those trustees whose terms are time-framed.

In determining the question of locus standi in judicio it is imperative to bear in mind the objectives of the Trust. These are:-

(a) To utilize the property of the Trust and the income of the Trust Fund for the maintenance and benefit of the beneficiaries;

(b) To invest the Trust Fund in such a manner as the Trustees for the time being shall deem fit;

(c) To do all such things which are incidental or conducive to the attainment of the above objects.

It was in an effort to realize the above objectives that the Donor executed the Notarial Deed of Donation and Trust on 25 February 2009. On the same day he executed his Last Will and Testament. Both documents contain a clause on the appointment of trustees. The Deed of Trust provides for the duration of the appointments whereas the Will is silent on that aspect. The Will contains no other provisions on the tenure and future appointments of trustees. It is only in the Deed of Trust where such provisions are found.

I am, however, of the view that the Testator was mindful of the fact that a Trust had been created in terms of the Deed of Trust and any aspects not contained in the Will were to be governed in terms of the Deed of Trust. I say so because in the Will he does not purport to be creating a second Trust but to be taking cognisance of the Vitalis Musungwa Gava Zvinavashe Trust. For instance, in Clause 5.3, he states that:-

“I leave all my worldly belongings, movable and immovable, corporeal and incorporeal, to the Vitalis Musungwa Gava Zvinavashe Trust, which is a Trust for the benefit of my wife, all my children, my mother and my late brother, Francis Pachedu Zvinavashe's children.”

I am of the view that in interpreting the intention of the donor sight must not be lost that he could not have been creating two distinct Trusts on the same day with the same objects but varying terms for the trustees - one to operate during his lifetime and the other after his demise. It can also not be said he intended the Trust created in terms of the Will not to outlive the lives of the trustees therein stated. Clearly, the issue of appointment and tenure of trustees was to be in terms of the Deed of Trust.

On the contentious issue, as to whether the applicants term of office as trustees had lapsed, it is pertinent to refer to the Deed of Trust document itself. Both sides seemed to contend that only their trusteeship had not lapsed but the other parties' had lapsed. In this regard, in paragraph 10 of the founding affidavit, the first applicant stated that:-

“The position that I hold, as Chairman and Trustee, as well as that of the Second applicant, are cast in stone in the Deed as the Deed specifically states that in my capacity as the accountant to the late General Zvinavashe and the Second Applicant in his capacity as the Senior Partner of the law firm Mutumbwa, Mugabe and Partners legal practitioners, we would be appointed as trustees for an indefinite period or, in any event, for the duration of our natural lives.”

The respondent, on the other hand, contended that:-

“The appointment of the 1^st and ^2nd Applicants is not cast in stone. The Will did not appoint the Applicant as Chairman. Clause 5.5(iv) of the Will provides for the appointment of any other firm of Chartered Accountants as may be decided by the other Trustees. Further, and in any event, the Trust Deed does not in any way state that the Applicant is the Chairman and neither does it state that he is a life Trustee.

In any event, the Trust Deed provides for the tenure of office of the Trustees appointed upon the death of the 'donor'.”

From the latter part of this statement, one gets the impression that the respondent believes that the tenure of office for 3 years was for those trustees appointed after the death of the donor and did not apply to trustees appointed during the donor's lifetime. Clause 4 of the Deed of Trust, titled 'Appointment of Trustees', provides that:-

“4.1 The first Trustees of the Trust shall be -

(a) Vitalis Musungwa Gava Zvinavashe (born 27/09/1943).

(b) Margaret Mutamba Zvinavashe (born 03/03/1962).

(c) Richard Musungwa Zvinavashe (born 29/03/1968).

4.2 The power of appointing the trustees shall vest in the trustees for the time being of the trust.

4.3 Upon the death of the Donor, the number of Trustees shall be increased to a minimum of 5 and a maximum of 7, two of whom shall be respectively a lawyer and an accountant.

4.4 The lawyer shall be the Senior Partner or nominee of Mutumbwa Mugabe and Partners or their successors in title, and likewise the Accountant shall be the Senior Partner or nominee of the Donor's Accountants.

4.5 In the event that the number of Trustees has fallen below 5, the remaining trustees shall have the right to appoint further Trustees.

4.6 Trustees shall hold office for a period of 3 years and they shall be eligible for re-appointment after the expiry of such term.”

As can be noted, the Board of Trustees, during the lifetime of the donor, comprised three persons, namely, the donor, his wife, and his son Richard. The increase in the number of trustees was to occur after the donor's death. Amongst the trustees to be appointed after the donor's death were:-

(a) The senior partner, or his nominee, of Mutumbwa Mugabe and Partners; and

(b) The Senior partner, or his nominee, of the Donor's Accountants.

In clause 5.5 of the Will, the late Vitalis M G Zvinavashe appointed four trustees in these terms:-

“I HEREBY appoint the under listed to be the Trustees of the Vitalis Musungwa Gava Zvinavashe Trust.

(i) My wife, Margaret Mutamba Zvinavashe;

(ii) My son, Richard Musungwa Zvinavashe;

(iii) The Senior Partner for the time being, or his or her nominee, of Messrs Mutumbwa Mugabe and Partners legal practitioners or their successors in title.

(iv) The Senior Partner for the time being or his or her nominee of Messrs Ruzengwe and Partners Chartered Accountants or their successors in title, or of any other firm of Chartered Accountants as may be decided by the other Trustees.”

As already stated, in the Will, no further details are provided save for the appointment. The differences in the clauses pertaining to the appointment of trustees must be interpreted in a manner that does not create conflict. It is my view that as the two documents were executed on the same date, albeit coming into operation at different dates, the executor thereof was alive to the anomaly. The clear intention of the testator was that whilst he was alive only three trustees would run the Trust and upon his demise two professional trustees would join the remaining trustees. In my view, these were to become the core trustees whose trusteeship he wished to always be present. It was in a bid to emphasize this that in the Will he specifically appointed the four trustees. The other trustees, to meet the minimum number of five (5) or maximum number of seven (7), as per clause 4.3 of the Deed of Trust, were to be appointed by the trustees for the time being of the Trust. It is clear from the submissions by the parties and documents filed of record that, apart from the four trustees appointed by the testator in his Will, two other trustees, namely, Dr. A. P. Zvinavashe and Mr. K. Zvinavashe, were appointed to make the number of trustees six (6). This was in accordance with the provisions of the Deed of Trust.

The issue that arises is whether the term limits stated in clause 4.6 of the Deed of Trust is applicable to all or to some of the trustees. Clause 4.6 states that:-

“Trustees shall hold office for a period of 3 years and they shall be eligible for a re-appointment after the expiry of the term.”

That sub-clause does not, in my view, place a distinction between the trustees. The donor did not wish for such a distinction. To confirm this he provided for a definition of Trustee for the purposes of the Deed of Trust. In this regard Clause 1 of the Deed of Trust states that:-

“Trustees shall mean the persons appointed as such under this Trust Deed, including the first Trustees and the Trustees thereafter appointed.”

The first Trustees are those appointed before his demise. See Clause 4 of the Deed of Trust.

The argument that some trustees are not subject to the term limits is thus ill-founded. Every trustee, in my view, was to serve for 3 years, and, thereafter, be eligible for re-appointment. The criteria for re-appointment would, of course, take cognisance of the professional trustees that the donor intended to always be part of the Board of Trustees. It is my view that had the donor intended that some of the trustees should be there for life, without being subjected to reappointment, he could easily have stated so without any difficulties. I thus conclude that no trustee had life tenure without being subjected to re-appointment. All the trustees, as defined by the donor, were subject to a 3-year term and eligible for re-appointment.

What this means is that unless a trustee has been re-appointed since their initial appointment, they have all overstayed.

The applicants argued that notwithstanding clause 4.6 of the Deed of Trust all trustees, the respondent included, continued in their positions after the expiry of the 3 year period and the respondent cannot rely on the said clause to claim that the applicants have no locus standi in judicio to bring the application. In that light they argued that the office of trustee is lost only by:-

(i) Vacation;

(ii) Resignation; and

(iii) Removal.

Fortunately, in this case, clause 13 of the Deed of Trust provides that:-

“A Trustee shall vacate office if:-

(a) He becomes of unsound mind or lunatic;

(b) He becomes insolvent;

(c) He is prohibited to be a director of a company in terms of the Companies Act [Chapter 24:03];

(d) He or she is a minor;

(e) There is any other reason which makes him or her unable to conduct duties as a trustee.”

Sub clause 13(e) may be taken to include a situation where one has overstayed in the office of trustee such that one's decisions are tainted with invalidity.

In Trustees, Leonard Cheshire Homes Zimbabwe Central Trust v Chite & Others 2010 (1) ZLR 631 UCHENA J had occasion to deal with the issue of trustees who had overstayed in the office and during their period of overstay had made appointments of other trustees and decision to evict occupants of the trust's property. At p645 B-D, the Hon Judge said that:-

“This court cannot, therefore, in order to give effect to the objectives of the Trust, interpret the Deed of Trust in a manner inconsistent with the limitations of the trustees' terms of office. The objective of the Trust is for it to be managed, in favour of disabled people, by people holding office in compliance with its provisions….,. It is therefore my view that the court cannot disregard the trustees' failure to comply with the terms of their appointment in order to keep the trust in existence. The court would, if there are no lawfully appointed trustees, on application by interested parties, appoint new trustees who would continue to uphold the objectives of the Trust and decide the way forward concerning the eviction of the defendants. I cannot uphold invalid decisions made by trustees who no longer had the mandate to manage the affairs of the Trust….,.”

The effect of over-staying is thus that the decisions made are susceptible to being challenged. They may in fact be invalid.

The next issue is whether the fact of overstaying deprives the applicants' locus standi in judico.

In 'The South African Law of Trusts' by T. HONORE, 2^nd edition 1976' the learned author…, states that:-

“The general principle is that a person who is de facto administering a Trust as trustee has locus standi in any matter relating to the trusts; so has a person who claims to be the rightful trustee and seeks confirmation of his status.”

In casu, the applicants' have clearly stated the capacity in which they brought this application - it is one whereby they are administering the Trust and the issues pertain to the Trust. They also claim to be trustees in terms of the Will. I am of the view that they have locus standi in that regard. Their capacity to make valid decisions is, however, limited by the fact that they have overstayed.

They ought to regularise their stay in terms of the Deed of Trust.

Section 7 and 9 of the Companies and Association Trustees Act [Chapter 24:04] provides for the appointment of trustees by the High Court on the application, by petition, of persons there-mentioned. Section 7 of the Companies and Association Trustees Act [Chapter 24:04] states that:-

“As often as by death, unsoundness of mind, resignation, failure to elect, absence from Zimbabwe or other cause, the trustees or any of them of any such company or the office-bearers or other trustees of any association, or of any association which, under section five, is placed under this Act, become incapable of acting in the execution of the trusts for such company or association, it shall be lawful for any person who is a member of or interested in such company or association to apply, by petition, to the High Court for such order as he conceives himself entitled to, and he may, by affidavit, give such evidence in support of such petition as he thinks fit, may serve notice of such petition on such person or persons as he may think it needful or expedient to serve with such notice.”…,.

Section 9 of the Companies and Association Trustees Act [Chapter 24:04] further states that:-

“If, in any case, it happens that any immovable property has been granted or transferred to any un-incorporated society or body established for religious, charitable or educational purposes by the name borne by such society or body and not through the instrumentality or intervention of office-bearers or other trustees acting for and representing such society or body, it shall be lawful for any person who is a member of, or interested in, such society or body, to apply by petition in manner and form as in section seven mentioned for the appointment of trustees for such society or body; and the court to which such petition is presented, proceeding in manner and form as in sections seven and eight mentioned, may, if satisfied that the appointment of trustees to act for and represent such society or body is expedient, appoint such trustees; and section eight shall, in substance, apply to the appointment of such trustees and to the power of providing how new trustees shall be afterwards appointed and to all other matters in section eight contained.”…,.

As aptly noted by UCHENA J in Trustees, Leonard Cheshire Homes Zimbabwe Central Trust v Chiite & Others 2010 (1) ZLR 631…,;

“Sections 7 and 9 provide for the appointment of trustees by the High Court to ensure the continuation in existence of a Trust. It is the Trust that the law is interested in sustaining and not decisions of trustees whose terms of office have expired or trustees appointed by persons who had no mandate to act for the Trust. Section 7 covers the trustees' inability to act because of death, unsoundness of mind, resignation, failure to elect, absence from Zimbabwe or other cause.”

The sections basically provide leeway for the appointment of trustees in the circumstances alluded to. In a case were all trustees have over-stayed, and legally cannot make legally valid decisions, the option is to have the trustees appointed or re-appointed by the High Court as the case may be.

I am of the view that from the manner in which the two professional trustees are provided for in the Deed of Trust and in the Will it is clear that they have a legitimate claim for re-appointment.

It was the desire of the donor that the Senior Partner, or his nominee, of Mutumbwa Mugabe and Partners or their successors in title will always be one of the trustees. Equally, it was his intention that the Senior Partner or his nominee of the donor's accountant, in this case Messrs Ruzengwe and Partners shall always be a trustee. The first applicant and second applicant happen to be the senior partners in the aforementioned professional firms. In respect of the Chartered Accountant, there is provision for trustees to decide on any other firm of chartered accountants but that is in the event that the trustees for the time being decide to appoint other chartered accountants in place of Ruzengwe and Partners.

I am of the view that by virtue of their apparent entrenched position, they have cause to seek to protect the Trust. Thus, whilst they may not make valid decisions they can nevertheless approach the court for relief that is for the sustenance of the Trust….,.

In this application, the applicants seek an order interdicting the respondent from doing acts which are prejudicial to the Trust. The basic requirements for an interdict are:-

(i) A clear right on the part of the applicant;

(ii) An injury committed or reasonably apprehended; and

(iii) The absence of any other satisfactory remedy available to the applicant.

As already alluded to, the applicants have an interest to protect the Trust. Their overstaying does not extinguish that interest. One would say their interest stems from the fact that the Trust was virtually left in their hands as professionals. Both the Will and the Deed of Trust made it clear they were to be trustees by virtue of their office. By virtue of that I am of the view that the first and second applicants have shown a clear right. Clearly, they were not expected to fold their hands as the Trust was burning just because their terms as trustees had not yet been renewed when, from the Deed of Trust and the Will, the renewal was almost guaranteed.

On the question of suffering irreparable harm, it is apparent from the documents filed of record that after the Donor's death the respondent duly administered the estate in terms of the Will. The first and second applicants' appointment as trustees was effected. Two other trustees were appointed to make a total of six (6) trustees. The six trustees are virtually split - three aside. Such a scenario cannot be said to be for the furtherance or advancement of the objectives for which the Trust was created. Clearly, such a split makes it difficulty to administer the Trust. In their founding affidavit, the applicants detailed a number of transgressions they said were committed by the respondent. Though the respondent denied some of the alleged transgression his explanations in denial saved to confirm that it may be a situation of one faction of the Board of Trustees doing their own thing without the unanimity of or even participation of everyone who believed they were still trustees. The respondent did not disclose in what capacity he did some of the acts he admitted to. Clearly, the danger of the respondent continuing to act as if he was still the administrator of an estate that had already been wound up and disregarding the Board of Trustees is real.

In any case, as noted above, all the trustees over-stayed and whatever decisions they make are likely to be invalid and not for the benefit of the Trust. A continuation of such conduct can only be detrimental to the objectives of the Trust.

The third requirement, of absence of a suitable remedy, is almost a forgone conclusion. There is no suitable remedy that would make good the prejudice to the Trust and beneficiaries as a result of the respondent continuing acting as alleged. It is only proper that he be interdicted and those interested in the Trust take appropriate steps to ensure trustees are re-appointed and proper structures are put in place for the realization of the objectives for which the Trust was created.

Accordingly, I find that the applicants have established a case for the grant of an interdict. It is hereby ordered that the application be and is hereby granted in the following terms:-

1. That the respondent and any person obtaining authority through him be and are hereby interdicted from interfering with the day to day management of the Trust Schools, namely, Tynwald Primary School and Tynwald High School.

2. That the Respondent and any person deriving authority through him be and are hereby interdicted from prohibiting any auditor appointed by the Board of Trustees from accessing the Trust Schools' accounts and auditing such accounts.

3. That the respondent refrain from harassing and/or dismissing any employees of the Trust and Trust Schools without authority of the Board of Trustees.

4. That the respondent and any person obtaining authority through him be and is hereby barred from directly accessing any funds belonging to the Trust and Trust Schools without lawful authority of the Board of Trustees.

While our legal system allows unrepresented litigants to approach the High Court in civil matters, this case brings into focus the need, in some cases which involve intricate issues of law, for such litigants to be legally represented.

My spirited attempts to advise the applicant to seek legal representation, even through the Registrar, were spurned by the applicant who insisted that he had the experience, knowledge, and confidence to argue his case.

My misgivings arose after I had, with the patience of the biblical Job, ploughed through the applicant's founding affidavit, answering affidavit, and heads of argument but still was unable to appreciate the applicant's case.

The relief sought by the applicant is couched in the following terms:

“IT IS ORDERED THAT;

1. The Resolutions signed on the 1^st of December 2011 by the 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th Respondents are null and void and have no effect at all.

2. The Resolution signed on 22^nd April 2012 by the 1^st and 8^th Respondents is null and void and has no effect at all.

3. The Constitution used to sit for the meeting of 2^nd November 2011 and 22 April 2012 is null and void and has no effect at all.

4. The 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th Respondents pay the costs of the proceedings.”

The application is opposed by all the respondents except the seventh respondent who apparently was not served.

The manner in which the relief sought is couched is so vague that one has to plough through numerous documents filed in order to find out what these Resolutions relate to. To compound the problem, the applicant does not state in what capacities all the nine respondents are being cited.

TOC H Zimbabwe, from the reading of the papers filed, is a non-governmental welfare organization. The applicant, as per his founding affidavit, is a member of TOC H Zimbabwe since 1994 although his membership is currently being disputed by the respondents (respondents hereinafter refer to all but the seventh respondent).

The respondents are members of TOC H Zimbabwe although the positions they hold in that organization are not specified by the applicant.

It is extremely difficult to summarise the facts giving rise to this application. This is so because the founding affidavit does not seek to identify each and every respondent and in what capacity each respondent is joined in this matter. Further, the founding affidavit is vague and embarrassing as it is long, winding, but still not clear in what the applicant's grievances are and what the applicant wants this court to do for him.

Put simply, the cause of action is unclear.

Let me briefly illustrate the point made above by referring to the founding affidavit. The founding affidavit comprises of 8 pages (page 4–11) or 30 paragraphs. Attached to the founding affidavit are Annexures A to V (page 13–55). The answering affidavit covers 10 pages (page 62–72) and further Annexures A to N (page 72–90) are attached. This is clearly improper for the applicant to attach new annexures to the answering affidavit.

In his founding affidavit, the applicant said he was co-opted as a member of TOC H Zimbabwe Executive Committee in July 2010 until he was barred on 2 November 2011 as per the minutes of the meeting held on that date. At this meeting it was resolved that the TOC H Zimbabwe motor vehicle which was registered in the applicant's name, after being purchased in South Africa, should, with immediate effect, be transferred to TOC H Zimbabwe and that the applicant should hand over the said motor vehicle. At the same meeting, it was also resolved that all extension work of TOC H Zimbabwe be suspended with immediate effect and that the applicant and others involved in this outreach and extension voluntary work should be advised accordingly.

As per Annexures C and D, the applicant, on 12 February 2011, attended, as a member, a meeting for TOC H Zimbabwe Management Committee, and, on 24 September 2011, as a member of the National Executive Committee. The applicant then refers to a meeting he said he was not invited on 25 September 2011 by the National Executive Committee but paragraphs 7 and 8 of the founding affidavit are difficult to comprehend just like paragraph 9. The applicant said he took issue with the cancellation of the Management Committee meeting scheduled for 29 October 2011 and that this was the genesis of his problems.

The applicant does not explain the nature of these problems, but, instead, refers to Annexure H in which TOC H Zimbabwe National Chairman, the seventh respondent, Rodreck Phiri, resigned due to personal commitments. On 16 November 2011, the applicant said he received a letter written by the second respondent terminating the applicant's and others' services as extension workers and for the applicant to surrender the motor vehicle registered in his name but belonging to TOC H Zimbabwe.

According to the applicant, this directive violated Article 5E(viii) (see Annexure E page 21 being a copy of TOC H Zimbabwe Constitution). The applicant does not explain how that provision infringes the Constitution or the applicant's rights.

As per Annexures L and M, the applicant protested as regards the directive in the letter dated 16 November 2011. According to the applicant this invited further harassment and psychological abuse. The applicant does not explain who harassed him and in what way. In May 2012 the applicant said he was arraigned before a Harare Magistrate on charges he did not specify but insists they were trumped up charges. Nonetheless, the applicant was convicted and he alleges he has appealed to this court.

The applicant said on 14 July 2012 the second respondent, in HC6417/12, filed an urgent chamber application seeking an order to compel the applicant to surrender the said motor vehicle to TOC H Zimbabwe. The applicant alleges the second respondent used forged documents in support of this application, being annexure A and the National Council Resolution (Annexure N). Apparently this matter was decided by my sister DUBE J against the applicant who was ordered to surrender the motor vehicle to TOC H Zimbabwe.

The applicant said he decided not to appeal against the order granted by DUBE J but to challenge it through this application.

I do not understand how he intends to do that.

As per the founding affidavit, the applicant refers to another TOC H Zimbabwe Constitution, Annexure U…,. It is not clear what issue the applicant raises in relation to this Constitution except to allege that TOC H Zimbabwe is a Private Voluntary Organisation and that it is a juristic person. The applicant further alleges that the first respondent is in contempt of the Constitution as he had breached section 21(i)(a) to (k) of the Private Voluntary Organisations Act [Chapter 17:05]. This provision however deals with the suspension of Executive Committee members by the Minister responsible for administering that Act.

The applicant alleges that the first respondent's term of office expired on 21 November 2011.

In the concluding paragraphs of the founding affidavit the applicant alleges, in a general way, that his rights have been violated (see paragraph 29). It is not clear in what specific manner his rights have been trampled upon. Instead, the applicant said this is the case because the respondents have used forged documents to persecute him and that they are not ascribing to the aims and objects of TOC H Zimbabwe.

As already explained, it is extremely difficult to appreciate the cause of action in this matter. The story narrated in the founding affidavit, while full of sound and fury, clearly signifies nothing which is legally discernable to found a cause of action. It is not therefore surprising that counsel for the respondents has taken a number of points in limine which she believed, if upheld, disposes of this matter.

I now turn to the points in limine raised. The respondents have raised the following points in limine;

(a) That there are material dispute of facts in the application.

(b) The non joinder of TOC H Zimbabwe in these proceedings.

(c) The applicant's locus standi in the matter.

(d) The incompetence of the relief sought in paragraph 2 of the draft order.

I turn to the issues;

Material Dispute of Facts

It is clear that there are indeed several material dispute of facts which cannot be resolved on the papers filed of record.

(i) The dispute relates to the correct Constitution of TOC H Zimbabwe. There are two Constitutions attached to the founding affidavit, Annexure E…, and Annexure U…,. The applicant contends that the Constitution relied upon by the respondents is a forgery and he tenders his own version of the Constitution, being Annexture E.

This position is vehemently disputed by the respondents in the opposing affidavits.

I have no doubt in my mind that the applicant, who attached the two Constitutions to his founding affidavit, was aware at the time of instituting these proceedings that the respondents would challenge the other version of the Constitution. There is therefore a dispute as to which is the applicable version of the Constitution.

(ii) The respondents stated that some of the documents used to support the applicant's case, and are attached to the applicant's founding affidavit, are not authentic documents for TOC H Zimbabwe.

Reference is made to Annexure G…, which relates to minutes of the meeting held by the National Executive Committee on 26 October 2011. The respondents submitted that the minutes are not confirmed or signed by the President of TOC H Zimbabwe. On the other hand, the applicant insists that the document is authentic.

(iii) The applicant has challenged the resolutions allegedly passed by TOC H Zimbabwe alleging that the resolutions were improperly passed and not in accordance with the Constitution of TOC H Zimbabwe.

This is vehemently disputed by the respondents who maintain the resolutions were duly passed in accordance to the applicable Constitution of TOC H Zimbabwe. As an example, the applicant alleges that the National Council Resolution, Annexure R…, is forged. The respondents allege that the resolution was duly passed.

(iv) The membership of the applicant in the National Executive Committee and Management Committee is put into the issue.

Similarly, the allegations of fraud and mismanagement made against the respondents are disputed.

The respondents stated that the applicant would be co-opted to attend the meetings by invitation as a member of TOC H Zimbabwe; see Annexure D…, in which it was stated that the applicant is not an Executive Committee member as provided for by the Constitution and that he had no voting right in the Executive Committee. While the applicant contended that he had no proof of such membership he still insists he is a member of the Executive Committee.

The disputed allegations of fraud and management are not supported by any evidence filed of record. There would be need to lead viva voce evidence in that regard.

The nature of the material dispute of facts is such that I am unable to adopt the approach enunciated in the case of Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 388…, where it was said;

“It is, I think, well established that in motion proceedings a court should endevour to resolve the dispute raised in affidavits without hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned.”

I am therefore satisfied that there are material dispute of facts in this matter which cannot be resolved on the papers filed of record. In the exercise of my discretion I have two options; which is to either dismiss this application or refer the matter to trial. See Mashingaidze v Mashingaidze 1995 (1) ZLR 219 (H); Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232…,.

I am unable to refer this matter to trial as the papers filed by the applicant cannot stand as summons and declaration. Consequently, the only available option is to dismiss the application.

The Non Joinder of TOC H Zimbabwe

In terms of Rule 87(1) of the High Court Rules, 1971 no cause of action or matter shall be defeated by reason of misjoinder on non-joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

It is common cause that TOC H Zimbabwe is not party to these proceedings. The applicant has sought to rely on Rule 87(1) of the High Court Rules, 1971. The inescapable conclusion however is that the non-joinder of TOC H Zimbabwe is clearly fatal to these proceedings.

I say so because of a number of reasons.

It is clear from the applicant's founding affidavit that TOC H Zimbabwe, which is a juristic person, is intricately involved and implicated in the actions done by both the applicant and the respondents. The Constitution of TOC H Zimbabwe is in issue as well as the propriety of its operations. The resolutions made by TOC H Zimbabwe are put in issue either as illegal or as nullity. I have no doubt that TOC H Zimbabwe has a direct and substantial interest in this application. See Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232…,. While the non-joinder of TOC H Zimbabwe, on its own, may not defeat this application, I am of the view that the cumulative effect of the non-joinder of TOC H Zimbabwe, coupled with the material dispute of facts, is fatal to this application.

Applicant's Locus Standi in Judicio in the dispute or matter

I find no merit in relation to this point in limine. While the applicant's membership in the National Executive Committee and Management Committee of TOC H Zimbabwe has been put in issue there is no evidence placed before the court to show that the applicant is no longer a member of TOC H Zimbabwe. Even if he had ceased or failed to pay subscription fees he would be entitled to challenge adverse decisions made against him by TOC H Zimbabwe.

The Incompetence of the Relief Sought in Paragraph 2 of the draft order

The National Council Resolution passed on 22 April 2012 (Annexure R…,.) authorizes Ponds Phiri, the Acting National Chair of TOC H Zimbabwe, to represent TOC H Zimbabwe in any litigation and to sign any documents on behalf of TOC H Zimbabwe relating to litigation issues or matters.

This is the resolution the applicant seeks, in paragraph 2 of the draft order, to be declared null and void and to be of no effect of law.

This relief sought is incompetent.

The applicant concedes that the said resolution was recognized by this court in a matter dealt with by DUBE J in HC7180/12 wherein the second respondent successfully represented TOC H Zimbabwe in an application against the applicant for transfer of a motor vehicle. The plea of res judicata is available to the respondents. See Wolfenden v Jackson 1985 (2) ZLR 313…,. It is therefore futile for the applicant to seek to challenge the same resolution in these proceedings when the applicant did not appeal against the judgment by my sister DUBE J.

The relief sought by the applicant, in paragraph 2 of the draft order, is incompetent.

In conclusion, I am satisfied that there are material dispute of facts in this matter. The non-joinder of TOC H Zimbabwe in this application adversely affects the applicant's case. The relief sought by the applicant, in paragraph 2 of the draft order, is incompetent. All these points in limine, taken cumulatively or together, are fatal to the application and dispose of the matter. The question of costs should follow the result.

Accordingly, it is ordered that:

1. The application be and is hereby dismissed.

2. The applicant shall pay the costs.