Urgent
Chamber Application
TAGU
J:
The
applicant seeks a spoliation order against all the 18 respondents on
the following terms:
“A.
TERMS OF THE FINAL ORDER SOUGHT
It
is ordered that:
(1)
The Respondents are interdicted from interfering with the Applicant's
project and business in whatever manner.
(2)
The Respondents' behaviour and conduct is hereby declared wrongful
and unlawful.
(3)
The Respondents are ordered to pay costs of suit on a client –
attorney scale.
B.
PROVISIONAL ORDER GRANTED
Pending
the confirmation of the provisional order;
IT
IS ORDERED THAT;
(1)
The Respondents be and are hereby ordered to release and return all
documents, and office keys to the Applicant forthwith or at least not
later than 48 hours from the date of this order.
(2)
The Respondents are ordered to vacate the Applicant's offices at
No. 6 Kataza Road, Zvishavane and allow the Applicant to take
occupation of its offices forthwith.
(3)
The Respondents are barred from interfering with the Applicant's
affairs, business or/and project in whatsoever manner unless with the
Applicant's consent.
(4)
The Respondents are barred from going to Izayi Park project site
unless with the consent of the Applicant.
(5)
The Respondents are interdicted from harassing and threatening the
Applicant's executive members or the Applicant's general members
in whatever manner.
C.
SERVICE OF THIS ORDER
Service
of this order shall be effected by the Applicant's legal
practitioners.”
The
respondents raised three points in
limine.
(i)
Firstly, the respondents took issue with the application filed by the
applicant. It is the respondents' submission that the application
does not comply with Rule 241(1) of the High Court Rules 1971. It was
contented that the applicant ought to have stated briefly the grounds
upon which the application is being made.
Rule
241 provides;
“241.
Form of chamber applications
(1)
A chamber application shall be made by means of an entry in the
chamber book and shall be accompanied by Form 29B duly completed and
except as is provided in subrule (2) shall be supported by one or
more affidavits setting out the facts upon which the applicant
relies. Provided that, where a chamber application is to be served on
an interested party, it shall be in Form No. 29 with appropriate
modifications.
(2)………..”
After
perusing the applicant's answering affidavit, Mr Shava,
on behalf of the respondents wisely abandoned that argument and
admitted that indeed the applicant's application complied in all
material respects with the provisions of Rule 241.
To
that extent, the first point in
limine
is dismissed.
(ii)
Secondly, the respondents took issue with the Certificate of Urgency.
Their
argument was that the certificate of urgency, though signed by the
deponent, a Mr Phillip Mbano, of Mbano Legal Practitioners, was not
dated. Further, that the certificate does not give a chronology of
dates and events leading to the alleged unlawful conduct of the
respondents.
Indeed
I had sight of the certificate of urgency. It was signed by the
deponent. It alleges all the unlawfulness on the part of the
respondents. It was date stamped by the Registrar on the same date
when all the other papers filed of record were date stamped. The
deponent started by stating in his affidavit that:
“Having
read the founding Affidavit of the Applicant in this matter, I
confirm that this case merits urgent attention of this Honourable
Court in that; …..”
He
then proceeded to give a chronology of all the unlawfulness on the
conduct of the respondents without stating the dates. The dates and
events are fully chronicled in the applicant's founding affidavit.
In my view, it would have been proper to state dates as well, but
since the deponent made reference to the applicant's affidavit, and
went on to sign his own affidavit this is sufficient compliance with
the Rules.
In
the circumstances the second point in
limine
is dismissed.
(iii)
Thirdly, the respondents took issue with Elinas Gumbo's locus
standi in judicio
to represent Izayi Park Housing Scheme before any court of law.
Their
argument being that there was a general meeting on 3 January 2015
where elections were held and a new executive committee was ushered
in and Elinas Gumbo lost the right to occupy office or any positions
within Izayi Park Housing Scheme Organisation.
The
applicant challenged this point in
limine
on the ground that there is a resolution which authorised him to
depose an affidavit on behalf of the applicant. He argued that the
respondents are raising the issue of the purported new executive
which is the basis of this present application. He therefore denied
that he was trying to challenge the election of the new executive
through the back door.
The
resolution which Elinas Gumbo referred to says -
“RESOLUTION
OF IZAYI PARK HOUSING SCHEME EXECUTIVE COMMITTEE MADE AT A MEETING
WHICH WAS HELD ON THE 11TH
DAY OF FEBRUARY 2012
The
executive committee of Izayi Park Housing Scheme unanimously passed a
resolution that ELINAS
GUMBO
shall represent the cooperative in all legal proceedings instituted
by the cooperative or against the co-operative.
Dated
at 11th
February 2012
M.
Mubaiwa
……………………………….
MAXWELL
MUBAIWA
SECRETARY”
In
casu,
up to about 7th
February 2015 there was a legitimate committee in charge of Izayi
Park Housing Scheme headed by Elinas Gumbo.
Currently
there is a new executive committee in charge of the same Izayi Park
Housing Scheme purportedly headed by one Stephen Chipembere,
comprising the rest of the respondents.
It
is the alleged conduct of the respondents towards Elinas Gumbo and
his committee members that is the subject of this application.
In
my view, any aggrieved party has a right to take the offending party
to court for redress.
In
this situation any committee member has locus
standi in judicio
to sue any committee member. It is apparent that there is a split
among the members and each group is claiming to be the legitimate
one. Under such a scenario the courts could be approached by either
side to make a determination. The party deciding to approach a court
for arbitration cannot be said to lack locus
standi in judicio.
In
the case of Elinas Gumbo he has locus
standi
to sue any member of the committee. Equally still, unless it has been
decided otherwise, he has full locus
standi
to sue on behalf of Izayi Park Housing Scheme in terms of the
resolution of the 11th
February 2012.
In
the result, I dismiss the last point in
limine.
I
will now deal with the merits of the application.
Mr
Elinas Gumbo stated in his founding affidavit that the applicant
operates as a housing cooperative, a scheme established in 2007 and
managed by the Ministry of Local Government and Housing Development,
doing business in Zvishavane in conjunction with Zvishavane Town
Council. It has been operating smoothly to date and run by an
executive committee of six members who are himself Elinos Gumbo,
Engineer Chiraya, Ngara Phiri, Benson Farai, Rufaro Nyoni and Maxwell
Mubaiwa.
He
said recently, and on 7 February 2015, the respondents, most of whom
are defaulters ganged and decided to oust the executive committee in
a coup style.
What
happened was that the applicant called for a meeting on 7 February
2015 at Izayi Park for all its members so that they could appraise
them on the state of progress and the respondents planned their
meeting on the same day and time with the applicant. When the meeting
started at 09:00am, the respondents chased the applicant away
claiming that they were war veterans and the 14th
respondent claimed he was a police officer who could arrest the
applicant's executives if they refuse to leave the meeting.
The
applicant's executive members complied and left the meeting, but
after dissolving the meeting. The respondents proceeded with an
illegal meeting when most of the members had left with the
applicant's executive members. The applicant then reported the
matter to the relevant Ministry which is currently seized with the
matter.
Whilst
waiting for the Ministry to finalise the matter and resolve the
dispute, the respondents teamed up and on 16 February 2015 besieged
the applicant's offices at No.6 Kataza Road, Zvishavane. They
forcibly entered the offices and took the office keys and books and
proceeded to unlawfully evict all office bearers and threw their
belongings outside.
The
applicant reported the matter to the Zimbabwe Republic Police
Zvishavane, but the fourth respondent who is a police officer
influenced the police who then told the applicant that the matter was
a civil matter.
This
prompted the applicant to approach this court on an urgent basis as
there is no alternative relief in the circumstances.
The
applicant felt that it will suffer irreparable harm as the
respondents' conduct was unlawful and a cash box with US$23,500.00
was taken away. Furthermore, he said the respondents threatened to
kill the applicant's executive members should they dare challenge
them hence the members are now living in fear of the respondents'
barbaric behaviour.
The
respondents through an affidavit deposed to by one Shadreck Gwena,
the first respondent denied the allegations.
They
admitted that the project was established in 2007, but claimed that
it has not been functioning smoothly to date. They submitted that the
project was terminated in May 2013 and the beneficiaries held a
meeting on 3 January 2015 and voted out the old committee. A new
committee comprising of the following members was voted into office.
These are Stephen Chipembere, Noel Muremba, Munashe Chikwekwe,
Tendayi Sibanda, Erina Chipungu, Kennedy Shumba, Captain Chipwanyira,
Panyika Ndlovu and Virginia Sithole.
The
respondents further, claimed that at the meeting of the 7th
February 2015 they did not chase away the old committee members, but
rather challenged them on why they were calling the meeting when they
had been ousted, and at a time they were being investigated.
They
confirmed that the 14th
respondent is a member of the Zimbabwe Republic Police and is also
the investigating officer in the case involving the old committee
members.
It
is their contention that they did not besiege the office or acted in
the manner described. They claimed that the receipt books and all
documentations pertaining to the scheme were taken by the police
pending investigations.
They
denied taking a cash box containing US$23,500.00. They said by
involving the police they did not take the law into their hands. On
the contrary they accused the applicant of taking the law into his
hands by approaching this court thereby hampering investigations.
From
the submissions it is apparent that Elinas Gumbo was all along the
authorised representative of Izayi Park Housing Scheme. He was a
member of the old executive running the offices and affairs of the
housing scheme. It is clear that some items were taken out of the
offices of Izayi Park Housing Scheme following a meeting held by the
beneficiaries on 7 February 2015. The taking was done without the
consent of the old executive members. It was also taken without an
order of the court.
The
respondents managed to file two relevant documents in their opposing
papers to support the existence of a new executive committee. They
did not file anything to prove that the purported new executive
committee was voted into office on 3 January 2015. This they could
have done by way of filing the minutes of the 3rd
January 2015 or at least a copy of the agenda of the 3rd
January 2015.
What
is attached are minutes of the meeting of the 7th
February 2015. In that minute it is clear that the old executive
members had been given the police clearance by the Dispol to hold the
meeting at the same venue. Further, the minutes showed in clear terms
that the old executive was asked to leave and when some members of
the old committee refused to leave a group of male beneficiaries told
a Mr Chireya that if he did not leave they could push him to leave.
Some ladies who had umbrellas threatened to use them to force one Mr
Mukura to leave.
This
gives credence to Mr Elinas Gumbo's claim that they were threatened
with assault and they left the meeting.
The
other document is a letter of confirmation of the new executive
written by one Arch. P S. Mukura, a Provincial Public Works Director-
Midlands dated 9th
February 2015 which is addressed “TO WHOM IT MAY CONCERN”.
It
is not clear why and at whose instance the letter was written after
the meeting of the 7th
February 2015. Assuming that a new committee was elected into office
on 3 January 2015, that is neither here nor there. The issue is
whether or not the new executive despoiled the old executive.
In
my view, the issue to be decided is whether or not the applicant has
made a case for spoliation orders. In order to obtain a mandament
van spolie
the applicant must show that:
(a)
he was in peaceful and undisturbed possession of the things; and
(b)
he was unlawfully deprived of such possession.
Nino
Bonino
v De
lange
1906 TS 120 at 122; Burger
v van
Rooyen
1961 (1) SA 159 (O); and Scholtz
v Faifer
1910 TPD 243 at 246.
In
casu,
the applicant had factual control of the project, the offices, office
keys, books and all other belongings with the intention to derive
some benefit from them. He was deprived of his possession. The
deprivation was done without a court order or other lawful means.
It
is trite law that the person who has been deprived of his possession
must first be restored to his former position before the merits of
the case can be considered. The main purpose of the mandament
is to preserve public order by restraining persons from taking the
law into their own hands and by inducing them to submit the matter to
the jurisdiction of the courts. Peace in a community could not be
maintained if every person who asserted that he had a claim to a
particular thing were entitled to resort to self-help to gain
possession of the thing.
C.G.
Vander Merwe and M. J. de Wall – 'The Law of Things and
Servitudes' p 68; Curatoren van “Pioneer Lodge NO.1” v C
Champion 1879 OFS 51 at 54; Muller
v Muller
1915
TPD 28 at 31.
In
this case the respondents argued that the things were taken by the
police for purposes of investigations and that Izayi Park offices
have not been taken over.
I
do not agree with that submission.
The
mere fact that a police officer “unofficially” sanctions
dispossession is not sufficient to legalise an otherwise unlawful
act. The police can only search and seize property on the strength of
a Warrant of Seizure, or other lawful instructions. In this case it
has not been submitted that the police officer or officers who took
away the items from the offices did so on the strength of such
warrant or court order. Their actions were illegal on the authorities
of Potgieter
v Du
Plessis
1978 (1) SA 751 (NC) at 754B – D; Coetzee
v Coetzee
1982 (1) SA 933.
As
regards both requirements I am satisfied that the applicant has
satisfied them.
The
respondents dispossessed the applicant forcibly and wrongfully
against his consent. The court in such a case will summarily restore
the status quo ante, and will do that as a preliminary to any inquiry
or investigation into the merits of the dispute.
In
acting as they did, whether as principles or agents, all respondents
took the law into their own hands. They are guilty of what is called
self-help. This court must insist on observance of the principle that
a person in possession of property, however unlawful his possession
may be and however exposed he may be, to ejectment proceedings,
cannot be interfered with in his possession except by due process of
law. If interfered with unlawfully the court will not condone such
interference. It will redress the situation pending the taking of
lawful action for ejectment.
In
the result, the provisional order is granted in terms of the draft.
Mugiya
and Macharaga Law Chambers,
applicant's legal practitioners
Chidawanyika,
Chitere & Partners,
respondents' legal practitioners
