This
is an application in which the applicant, Samuel Mugano, seeks
joinder to case number
HC14134/12 of the first respondent, a registered Trust called
Fintrac.
It
is a matter in which the applicant (as defendant) is being sued by
the second respondent ZFC (as plaintiff) for a debt of US$58,034=45
for inputs received from it in the form of seed potato, fertilisers,
and chemicals some time on December 2011.
The
applicant is one of a group of 234 farmers called Bende Farmers, in
Nyanga, who received these inputs from the second respondent.
The
applicant is being sued on the strength of a surety document which he
purportedly signed on behalf of the group of farmers in which he is
described as lead farmer. He denies binding himself as surety on
behalf of Bende group of farmers. He disputes ever signing the surety
document and disagrees that the signature on the document is his. He
further states that each farmer was to repay, on an individual basis,
an agreed amount into the second respondent's bank account
depending on how much had been received in terms of supplied inputs.
He attached receipts showing the payment which he made for his share
which he says amounted to US$738=16. He has two primary reasons for
seeking the joinder of the first respondent in this matter;
(i)
The first is founded on his assertion that the matter in which he is
being sued cannot be resolved without hearing the evidence of the
first respondent. He alleges that it is the first respondent who
initiated the relationship of all the parties involved in this
matter. The applicant avers that the inputs were in fact received
through the first respondent. His argument is that at all materials
times, the farmers engaged with the first respondent through their
employees, Innocent Masiiwa and Moses Mutetwa.
(ii)
The second reason for seeking joinder is stated to be that the surety
document that the applicant is alleged to have signed bears the
signatures of the first respondent's above-named two employees as
witnesses. As such, the applicant argues, that the matter cannot be
heard without hearing their evidence as to when and where they
witnessed his signature.
The
applicant argues that he will suffer prejudice if the first
respondent is not joined as he will be forced to pay a debt which he
does not owe. Furthermore, he maintains, through attached receipts,
that he has paid his portion of the debt.
The
third respondent, Royal Bank, comes into the picture in that it
guaranteed, as co-principal debtor with Seed Potato Co-op, in
collaboration with Bende Farmers, the debt to the second respondent.
The debt guaranteed was then stated as $73,625=16.
The
first respondent objects to the joinder on the basis that it has no
direct and substantial interest in the matter and neither does it
have a legal interest.
It
concedes that it indeed approached farmers in the Bende area of
Inyanga, but describes its role as having been strictly limited to
offering assistance with technical support and identification of
formal market linkages for their produce. This, it says, is in line
with its organisational mandate, and it quotes one of its main
objectives as being to: “assist the development of the agricultural
sector in Zimbabwe through increased productivity, incomes and market
linkages of small holder farmers through access to new technologies
and technical services.”
The
first respondent also admits to organising a Bankers Day in the Bende
community where it invited various Bankers to explain the services
they offer to farmers. Amongst the Banks was the third respondent,
Royal Bank. The first respondent further avers that the applicants
chose to deal with the third respondent and that it was the latter
that contracted the second respondent to avail the inputs. It
maintains that it is not privy to the nature of agreements entered
into by and between the farmers and the second and third respondents.
Regarding
the signatures of its employees, the first respondent is of the view
that any explanation, whatever it may be, can be obtained by having
them subpoenaed as witnesses. It also states that the relief sought
can be carried into effect without joining it to the action.
In
making the application for joinder, the applicant places reliance on
Rule 85 of the High Court Rules 1971 which permits two or more
persons to be joined together in one action as plaintiff or defendant
whether in convention or reconvention. This is where, if separate
actions were brought by or against each of them, as the case may be,
the same common question of law or fact would arise in all the
actions.
Both
counsel for the applicant and counsel for the first respondent relied
on overlapping cases in support of their contentions in their heads
of argument.
The
case of Amalgamated Engineering v Minister of Labour 1949 (3) SA 637
was cited by the counsel for the applicant in support of its argument
that the first respondent has an interest in the matter and should
thus be afforded an opportunity to be heard as a result of that
interest. Counsel for the first respondent drew strength from this
case to put forward two tests from the case;
(i)
Firstly, whether a third party would have locus standi to claim
relief concerning the same matter.
(ii)
Secondly, where, as a result of non-joinder, any order of court would
be res judicata against the third party entitling him to approach the
court again, concerning the same subject matter, and,
possibly, obtaining an order irreconcilable with the order made in
the first instance.
Counsel
argued that the first respondent passed none of these tests.
The
case of Total Zimbabwe (Private) Limited v Power Coach Express 2010
(2) ZLR 1 (H) was drawn on by the applicant to argue that joinder is
necessary where there is a contractual bond between the applicant and
third party.
Counsel
for the first respondent relied on the case to argue that there were
no such rights or obligations in its relationship with the applicant.
Both
counsel also cited the case of Rodgers & Others v Miller &
Others 2010 (1) ZLR 49 to argue that though non-joinder is not fatal
to the continuance of any matter, it does not absolve a litigant to
cite relevant parties.
Counsel
for the first respondent put the emphasis on the fact that the
parties so cited would have to be relevant.
In
the case of United Watch & Diamond Co & Others v Disa Hotels
Ltd & Anor 1972 (4) SA 409 (C) CORBETT J summarized the position
on joinder emerging from various case law as follows:
“It
is settled law that the right of a defendant to demand the joinder of
another party and the duty of the court to order such joinder or
ensure that there is a waiver of the right to be joined (and this
right and this duty appear to be co-extensive) are limited to cases
of joint owners, joint contractors and partners and where the other
party has a direct and substantial interest in the issues involved
and the order which the court may make.”
In
Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O)
HORWITZ AJP analysed the concept of “direct and substantial
interest”, and, after an exhaustive view of the authorities,
concluded that it connoted…,;
“An
interest in the right which is the subject matter of the litigation
and not merely a financial interest which is only an indirect
interest in such litigation.”
He
also reiterated the emphasis, in such cases where joinder is being
sought, on the need for a legal interest in the subject matter of the
action which stood to be affected by the judgement of the court.
I
now examine the facts before me in light of the law and legal
authorities commencing with the aplicant's first set of reasons for
seeking joinder.
Essentially,
these reasons touch on the direct and substantial interest of the
first respondent as a consequence of its role in setting in motion
the events that led to the contractual relationship between the
applicant and the second and third respondents. It is said that it is
the first respondent who approached Royal Bank, the third respondent.
It is also said that it is the first respondent who advised the
farmers that they would repay by depositing the money in the second
respondent's account. It is also said that it is the first
respondent who played a crucial role in distributing the inputs -
although this aspect was challenged together with the rest of the
averments by the first respondent.
There
is no evidence at all from the facts and documents presented of a
contractual link between the first respondent and the second or third
respondents.
The
first respondent is not being sued at all by the second respondent in
the matter.
In
our context, NGOs and charitable Trusts, such as the first
respondent, have come to play various types of developmental roles in
their work with rural communities. The facts alleged by the
applicant, in my view, can be said to exemplify difficulties that
arise when such developmental initiatives and projects are seen by
the recipient communities as being initiated, influenced and driven
by outsiders - albeit with them as beneficiaries. There appears to
have been some misunderstanding, at least on the part of the
applicant, and, possibly the rest of the other farmers, regarding
transactional and negotiating roles and ultimate responsibility for
risks. The first respondent does concede to having played what it
terms as a “facilitative role,? which the applicant views as
having been more akin to “a major driving force? behind the whole
initiative. To the extent that there appears to have been such
misunderstanding the first respondent cannot entirely plead “Teflon?
like qualities in the sense that nothing must stick to it because of
its mere facilitative role.
As
communicator and facilitator, it shoulders some responsibility for
poor communication flows regarding implications of its initiative.
However,
the facilitative role of the first respondent cannot be said to
amount to a legal interest in the matter nor to having a direct and
substantial interest in the contract that was subsequently entered
into by the farmers with the second and third respondents in a manner
that would require its joinder.
I
think in this regard there is a need to distinguish between the type
of legal interest that is required under the law to justify joinder
and the type of mutual interest on the part of the applicant, the
rest of the farmers, and the first respondent that stems from each of
their activities.
The
kind of interest involved here is symbiotic in nature as opposed to
being one stemming from a contractual relationship, joint ownership,
or legal partnership of those involved. No doubt, if the project had
been a success the first respondent would have capitalised on its
facilitative involvement in the development sense of “partnership.?
The joinder sought here by the applicant is premised on a contractual
nature to an agreement to which the first respondent was not an
actual party. The effect of joinder would be to bind the first
respondent to the outcome of the litigation. From a legal
perspective, I do not see anything in the facts that suggests that
they were actual parties to the contract in the sense that requires
them to be bound. Any pronouncement by the court in the main matter
would, in my view, have no bearing on the first respondent.
The
legal reality is that the first respondent is not party to the
contract.
The
applicant also sought to join the first respondent on the grounds
that its two employees would be able to explain the disputed document
as to when it was signed since they are said to be signatories
thereto in their capacity as witnesses.
The
first respondent has indicated its willingness to avail its two
employees as witnesses as it is unable to deny whether or not they
witnessed the document in question. It rightly asserts, in my view,
that this can be done without the necessity of joinder. Furthermore,
since the applicant says he never signed the surety document in
question and says the signature is not his, I would imagine that the
case calls the need to have the expert opinion of an experienced
document examiner. Again, since all the personalities that have
signatures on that document are available, including the applicant,
samples of their signatures using documents from before, during, or
after the alleged signing of the disputed document can presumably be
obtained by such expert for comparative purposes. Such a procedure
would not rest on joinder.
For
the reasons I have analysed above, I come to the conclusion that the
application for joinder cannot succeed….,.
The
application for joinder is accordingly dismissed and each party to
bear its own costs.
