Section
3 of the Class Actions Act [Chapter 8:17] provides as follows:-
“Application
for leave to institute class action
(1)
Subject to this section, the High Court may, on application, grant leave for
the institution of a class action on behalf of any class of persons.
(2)
An application for the institution of a class action -
(a)
May be made by any person, whether or not he is a member of the class of
persons concerned; and
(b)
Shall be made in the form and manner prescribed in rules of court.
(3)
The High Court shall grant leave in terms of subs (1) if it considers that in
all the circumstances of the case a class action is appropriate, and in
determining whether or not this is so the court shall take into account -
(a)
Whether or not a prima facie cause of action
exists; and
(b)
The issues of fact or law which are likely to be common to the claims of
individual members of the class of persons concerned; and
(c)
The existence and nature of the class of persons concerned, having regard to -
(i)
Its potential size; and
(ii)
The general level of education and financial standing of its members; and
(iii)
The difficulties likely to be encountered by the members enforcing their claims
individually: and
(d)
The extent to which the members of the class of persons concerned may be
prejudiced by being bound by any judgment given in the class action; and
(e)
The nature of the relief claimed in the class action, including the amount or
type of relief that each member of the class of persons concerned might claim
individually: and
(f)
The availability of a suitable person to represent the class of persons concerned;
and
(g)
Any other relevant factor.
(4)
The High Court may grant leave of sub (1) notwithstanding that -
(a)
The claims of individual members of the class of persons concerned involve
different issues of fact or law; or
(b)
The relief sought by individual members of the class of persons concerned may
require individual determination; or
(c)
Members of the class of persons concerned seek different forms of relief.”
On
7 March 2011, and in terms of the above provision of the law, the applicant
filed this application. The draft order filed with the application reads
as follows:-
“1.
THAT, leave be and is hereby granted to the applicant, in terms of the Class
Actions Act [Cap 8:17], to bring a class action
against the respondent;
2.
THAT, the applicant be and is hereby appointed to be the representative of the
persons concerned in the class actions;
3.
THAT, in terms of s7(1)(a) of the Class Actions Act [Cap 8:17], the applicant shall by
the day of 2011 -
(a)
Cause to be published in The Herald and The Independent, on five different dates, a notice in the
form attached hereto; and
(b)
Cause the said notice to be read in Shona, Ndebele and English during prime
time on Radio Zimbabwe and Zimbabwe Television of the Zimbabwe Broadcasting
Corporation on five different dates;
4.
THAT, the costs of this application shall form part of the costs of the class
action to be instituted by the applicant on behalf of the persons concerned,
unless there is opposition thereto by the respondent.”
The
respondent opposed the granting of the above relief.
In
its founding affidavit, the applicant refers to:
(a)
A list of its members who are tobacco growers.
(b)
A scheme allegedly 'produced' by the respondent for the benefit of the
applicants; and
(c)
A schedule showing amounts allegedly owed to each of its members by the
respondent.
The
applicant then proceeds to aver, in paragraphs 8-13 of its founding affidavit,
as follows:-
“(8)
The tobacco growers represented by the applicant were obliged to participate in
the scheme and did, in fact, participate therein, with the result that they are
owed certain sums of money by the respondent, as will more fully appear from
the schedule hereunto annexed marked “C”.
(9)
Despite demand, the respondent has failed to pay the monies due to the tobacco
growers represented by the applicant, whilst acknowledging its liability to
them.
(10)
The cause of action of each of the tobacco growers represented by the applicant
is the same, although the amounts payable to each of them are different, and it
would, therefore, be convenient, less expensive and in the interests of justice
for the tobacco growers, represented by the applicant, to bring their claims
against the respondent as a class action.
(11)
The applicant, since it represents only tobacco growers and they are the ones
affected by the Scheme (even those who have not yet given the applicant
authority to assert their claims), is the appropriate person to bring the class
action contemplated against the respondent.
(12)
The applicant has made sufficient provision, through contributions from its
members, to pay for the class action and to pay any Order of costs that may be
made.
(13)
If the present application were to be granted, the applicant would give notice
to other potential claimants by way of a notice in The Herald
and other newspapers enjoying a wide readership and may also cause notice of
the class action to be given to other potential claimants by means of
broadcasts on the radio and on television in the three official languages. It is
also open to the above Honourable Court to give directions as to any other
manner in which notice may be given to potential claimants, as contemplated by
the Class Actions Act [Cap 8:17].”
As
already indicated, the respondent is opposed to the relief sought and in its
opposing affidavit it states, in part, as follows:-
“1.
Ad para 1 and 4
The
respondent denies that the deponent to the affidavit is authorised to act for
and by the various would be applicants as listed in annexure 'A' to the
founding affidavit. In fact, annexure 'A' can hardly qualify to be a power of
attorney. Further, one of the intended applicants, Dr Kereke, whose name
appears in annexure 'C' to the founding affidavit, has dissociated himself from
this application as more fully shown in annexure 'D' annexed hereto.
2.
Ad para 2 and 3
The
contents are admitted.
3.
Ad para 5-8
The
respondent denies that the allegations made by the applicant in these
paragraphs suffice to raise a prima facie cause of
action entitling the court to grant leave for the institution of the class
action for the following reasons;
(a)
Annexure 'A' to the founding affidavit, as already indicated, purports to be a
power of attorney by the persons listed therein authorising applicant to act
for them. There is nothing in the document to suggest that any one of the
listed persons has authorised the applicant or the deponent to the founding
affidavit to act for them.
(b)
Annexure 'B' to the founding affidavit purportedly constitutes the “mechanics”
of the scheme. However, the applicant does not lay down in its papers with any
degree of clarity, the nature of the claim or the legal basis upon which the
respondent should be liable to the farmers. In particular, it is not clear as
to whether the claim is founded in contract or delict. For the avoidance of
doubt, the respondent denies being liable to the applicant or intended
applicants in either contract or delict.
(c)
It is also to be noted that the applicant makes a blanket reference to annexure
'B'. Annexure 'B', however, is an extract from the Reserve Bank of Zimbabwe
Monetary Budget Statement of 26 April 2007. The extract refers to “top up
bonus” and “top up support price”. The applicant does not state whether its
intended class action arises from which of the two. This makes the claim vague
and embarrassing.
(d)
Even assuming that a valid prima facie claim
exists, which is denied, the respondent avers that any relationship which could
be said to have been created between it and the intended applicants was created
by the Monetary Statement of 26 April 2007. Any action based thereon has
obviously prescribed.
(e)
The applicant purports that the respondent owes the intended applicants the
amounts set out in annexure 'C' to the founding affidavit. Annexure 'C', when
analysed, is a statement produced by the respondent. It is clearly headed in
bold lettering “Schedule
B – List of Tobacco Farmers owed by Government” (my own
underlining). A consideration of annexure 'C' thereof does not raise a case of
liability by the respondent to the person listed thereon but a liability by
Government.
(f)
The respondent further notes that the applicant avers that the applicants were
obliged to participate, and, in fact, participated in the scheme. It is,
however, not stated or clear from the papers how the alleged obligation to
participate arose or how participation was carried out. This demonstrates,
further, the failure by applicant to proffer a prima facie
cause of action.
4. Ad para 9
Respondent
denies that it has acknowledged its liability to the applicants and puts the
applicant to the proof thereof. In fact, the applicant has annexed annexure 'C'
which clearly shows that the liability to the persons listed is by the
Government of Zimbabwe and not by the respondent”…,.
In
its heads of argument, the applicant argues for the grant of leave to file a
class action mainly because:-
“2.
…., a prima facie cause of action exists; and
the issues of fact or law are common to the claims of the individual members of
the class of persons concerned. The existence and size of the class; their
general level of education and financial standing and the difficulties likely
to be encountered by the members enforcing their claims individually, are
factors in their favour. In addition, the applicant is available as a suitable
person to represent the class concerned.”
There
is, however, nothing in this application that reveals the “general level of
education and financial standing and the difficulties likely to be encountered
by the members enforcing their claims individually.” In all honesty, the above
submission does not satisfy that requirement.
The
applicant goes on to allege unjust enrichment. It submits:-
“6.
This constitutes unjust enrichment and is an alternative cause of action
available to the applicant and its growers. The general action against unjust
enrichment has been recognized in Zimbabwe law since 1996 when it was accepted
in the leading watershed case of Industrial
Equity Limited v Walker 1996 1 ZLR 269 (H).
7. As held in that case at
p298 and 300B – 302G, “The principle prerequisites for a general action on
enrichment are:-
(a)
The defendant must be enriched;
(b)
The enrichment must be at the expense of another (i.e. the plaintiff must be
impoverished and there must be a casual connection between enrichment and
impoverishment);
(c)
The case should not come under the scope of one of the classical enrichment
actions;
(d)
There should be no positive rule of law which refuses an action to the
impoverished person.”
8.
In the instant matter, the facts reveal that the respondent has been enriched;
the enrichment was at the expense of the tobacco growers, namely, they have
been impoverished and the causal connection between the enrichment and
impoverishment was the nexus of the Tobacco Retention Scheme imposed by the
respondent.”
The
applicant also makes the following submission on the issue of prescription:
“1.
The other vain attempt to avoid liability is the respondent's purported
assertion of prescription. This cannot avail the respondent as liability for
the debt was acknowledged in the respondent's public notice dated 27th
April 2009. Acknowledgement of debt interrupts the running of prescription.
(Prescription Act [Cap 8:11 s18], and it is not a factor that need
detain the Honourable Court for the purpose of the present enquiry.”
On
the issue of who should be sued for the debt, the applicant submits as
follows:-
“1.
As stated in para 4(e) of the answering affidavit, the scheme was devised by
the respondent, which, according to statute is a body corporate, capable of
suing and being sued in its own name. Ineluctably, since the respondent devised
this scheme, and promised to pay the amounts in question, the liability
attaches to the respondent. Over and above this, when each sale took place during
the 2008 tobacco selling season, 25% of the amount due to each grower was
deducted and paid over the respondent….,. The vinculum
iuris pertains
between the applicant and the respondent.
2.
This purported assertion is merely a chimera or mirage, and is answered by
joining the party whom the respondent points to. The Honourable Court, has the
power in terms of High Court Rule 87(1) which stipulates that: “No cause or
matter shall be defeated by reason of the mis-joinder or 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 interest of the
persons who are parties to the cause or matter.”
3.
In addition, by Rule 87(2)(a), a court has the power at any stage of the
proceedings to order any person who has been improperly or unnecessarily made a
party to or who has for any reason ceased to be a proper or necessary party, to
cease to be a party.
4.
High Court Rule 87(2)(b) puts the matter beyond doubt. It stipulates: “At any
stage of the proceedings, in any cause or matter the Court may, on such terms
as it thinks just, and either on its own motion or on application, order any
person who ought to have been joined as a party or whose presence before the
Court is necessary to ensure that all matters in dispute in the cause or matter
maybe effectually and completely determined and adjudicated upon, to be added
as a party”:
5.
This has been the approach where, for instance, a person sued intimates that a
company ought to have been sued.”
On
its part, the respondent submitted that the applicant had failed to present a prima facie case before the court and that the purported
cause of action had prescribed. In the main, the respondent submitted that:-
“3.
The applicant simply avers in para 8 of its founding affidavit that its members
were obliged to participate in the scheme but does not mention with any degree
of clarity as to how the obligation arose or the nature of the same. In other
words, the applicant does not show whether it sues in contact or delict, and,
indeed, if in contract or delict, it does not give the details of how the cause
of action arose.
4.
The monetary policy referred to in the applicant's founding affidavit and
annexed thereto as annexure 'B' does not raise a cause of action against the
respondent. In clause 5.32 of the said annexure, it is clearly stated that the
respondent's role is to assist the Government to raise the necessary funding.
The rendering of such assistance would not amount to the creation of a legal
obligation between the applicant's members and the respondent.
5.
There is nowhere in annexure 'B' where the respondent has promised or
undertaken to make a payment. At best, there is reference in clause 5.33 of
annexure 'B' to the Minister of Agriculture as having made a pronouncement. A
clear reading within context would simply lead to a conclusion that the
respondent simply stated a policy which would be implemented by Government and
never took upon itself the responsibility to implement the policy.
6.
Annexure 'C' to the applicant's founding affidavit, is a list of farmers
compiled by the respondent as being owed money by the Government. It is naïve,
with respect, for applicants to say that it cannot draw a distinction between
Government and the respondent. The respondent, as a creature of statute and a
body corporate, cannot be and is not Government. Annexure 'C' does not amount
to an admission of liability by respondent and if the applicant's members did
not understand the context within which the word Government was used, the
logical thing was to seek clarification from the publisher of the article.
7.
There are no credible facts alleged such as would support the applicant's
assertion, in para 9 of the founding affidavit, that the respondent has
acknowledged liability to the tobacco growers. The cause of action cannot,
therefore, be based upon an acknowledgment of liability as there is no such acknowledgment
shown by applicant.”
In
determining this application, I take note that Annexure 'A' is the list of
tobacco growers who intend to bring a class action against the respondent. In
respect of that list a total 114 signed powers of attorney authorizing Rodney
Ambrose to file this application. Nine of the powers of attorney were defective
in that they were either not signed or properly dated. That means a total of
105 tobacco growers authorized the filing of this application.
I
also notice that when it comes to the total 'debt', Annexure 'C' lists the
number of tobacco growers and indicates the sums of money they are owed by
“Government”. That list, (Annexure C), has a total of 1,095 tobacco growers as
opposed to the 105 tobacco growers who have formally authorized the filing of
this application.
Given
the fact that the sum of US$18,000,000= attaches to a total of 1,095 tobacco
growers owed money by 'Government', I do not think the application provides
enough information to be taken into account by this court in terms of section
3(3)(c) of the Class Actions Act [Chapter 8:17], namely:-
“(c)
The existence and nature of the class of persons concerned having regard to –
(i)
Potential size; and
(ii)
The general level of education and financial standing of its members; and
(iii) The
difficulties likely to be encountered by the members enforcing their claims
individually.”
Furthermore,
in its founding affidavit, the applicant makes reference to “even those who
have not yet given the applicant authority to assert their claims…, potential
claimants.”
There
is, therefore, a lot that remains unknown.
This
application…, does not give the court adequate information relating to the
aspects referred to above. Notwithstanding the actual number of the would-be
plaintiffs in casu, there is nowhere in this
application where one would find useful information relating to 'the general
level of education and financial standing of each member' to be included in the
class action.
The
above observation, however, can only become relevant upon this court having
found that:-
“(a)…,
a prima facie cause of action exists; and
(b)
The issues of fact or law which are likely to be common to the claims of
individual members of the class of persons concerned."
In
my view, everything else should be anchored on whether or not the applicant
has, in terms of section 3(3)(a) of the Class Actions Act [Chapter 8:17],
established a prima facie case. If that fails,
then there is no merit in the application.
I
do not find that to be the case in this application.
In
casu, the respondent has, in
the main, argued that in administering the Tobacco Retention Scheme it was
acting as an agent of Government. That position, it argued, never changed, even
when it issued the public notice on 27 April 2009.
I
find it extremely difficult to reject the position taken by the respondent. The
applicant makes no secret that it relies on Annexure C, which is attached as a
supporting document to its founding affidavit. That Annexure, whose details are
not before the court, confirms that the tobacco farmers listed therein are owed
by “Government” (i.e the moneys listed against their names). That confirmation,
in my view, removes any doubt as to who the would-be “plaintiffs” should
proceed against. The papers before me do not disclose any contractual
relationship between the applicant and the respondent. The respondent was a
mere a vehicle through which Government carried out the Tobacco Retention
Scheme. I therefore believe that whatever proceeds the respondent retained,
such proceeds were intended for the principal i.e Government. There can, therefore,
be no issue of unjust enrichment attaching to the respondent.
The
finding that there is no prima facie case
disposes of the application without the need to go into the detailed
submissions made by both parties on other aspects of the application. This
includes the issue of prescription which would only arise if there was a
contractual relationship between the applicant and the respondent….,.
In view of the foregoing, this application
cannot succeed. The application is dismissed with costs.
