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 1st
of December 2011 by the 1st,
2nd,
3rd,
4th,
5th
and 6th
Respondents are null and void and have no effect at all.
2.
The Resolution signed on 22nd
April 2012 by the 1st
and 8th
Respondents is null and void and has no effect at all.
3.
The Constitution used to sit for the meeting of 2nd
November 2011 and 22 April 2012 is null and void and has no effect at
all.
4.
The 1st,
2nd,
3rd,
4th,
5th,
6th,
7th,
8th
and 9th
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.
