Opposed
Application
MUZENDA
J:
On
the 23rd
March 2015 Mr Sebastian Bakare, Mr Terrance Moody, Ms Natsai
Nyamuwanza, Mr Cephas Sagwete, Ms Poshier Magada, Ms Maraidza
Elizabeth Mutambara joined together to form United Mutare Residents
And Ratepayers Trust.
Mr
Passmore
Nyakureba
the legal practitioner for the applicant appears on the copy of the
Resolution dated 3rd
July 2018 which was prepared just a day before the current
application was filed at Court was added to the list of Trustees.
Clause
6 of the Deed of Trust specifies the applicant's Core Business
thus:
“The
provision of a comprehensive platform for residents participation in
local governance, service delivery, local democracy and policy
formulation, accountability and transparency.”
Article
2, captioned “LEGAL STATUS” provides inter
alia:
“The
Trust shall be a body corporate and as such…..”
It
is not clear as whether it can sue or be sued in its name, however it
can acquire, own and is
limited
to its property in as far as liability is concerned.
On
the 4th
July 2018, the applicant filed an application seeking the following
relief:
“It
is declared that 1st
Respondent has failed to comply with its Constitutional mandate to
'ensure good governance by being effective, transparent,
accountable and institutionally coherent' in exercising its right
to govern the local affairs of the Community of Mutare by not
carrying out an external audit of books, balance sheet and accounts
for the financial years ending 30 June 2014, 30 June 2015, 30 June
2016 and 30 June 2017.
2.
And it is ordered that:
(a)
1st
Respondent appoints a reputable firm of registered public auditors
within 30 days of the granting of this order to carry out an audit of
its books, balance sheets and accounts referred in section 286 of the
Urban Councils Act (Chapter 29:15) for the financial years ending
30th
June 2014-2017.
(b)
Further that, 1st
Respondent produce to the auditors for the purpose of audit,
accounts, balance sheets, all relevant books, papers, writings and
minutes books in its possession for the financial years ending 30
June 2014-2017 within 30 days of the granting of this order.
(c)
Further that, 1st
Respondent prepare and present before this court a comprehensive
report within the first 90 days of the granting of this order,
detailing how it has complied with this order and at 180 days mark,
an audit report for the financial years ending 30th
June 2014-2017 as provided under section 306(3) of the Urban Councils
Act (Chapter 29:15) failure which 1st
Respondent shall be in contempt of court.
3.
1st
Respondent will pay costs of suit on a legal practitioner-client
scale.”
Facts
From
10 to 19 December 2015 the 2nd
respondent embarked on an institutional special investigative audit
report at the 1st
respondent's institution following complaints that 1st
respondent's, the City Council employees were being owed salary
arrears of eighteen months.
Obviously
the report by the Ministry was adverse and revealed anomalies
committed by Mutare City Council.
The
applicant accessed the investigative report and offered to assist the
City Council.
The
City Council refused and the applicant wrote threatening letters to
1st
respondent and indicated to Municipality of Mutare that it was going
to advise residents to boycott payment of utility bills until the
City Council met their demands.
The
City Council responded encouraging dialogue and further letters were
exchanged and the letter of 16 April 2018 written by the applicant's
legal practitioners proposed a tripartite meeting between the
applicants, the City Council officials and the residents and
ratepayers on the other side.
No
meeting was held.
The
City Council supplied some information in June 2018 availing to the
applicant schedules of Zinara funds, education levy and outstanding
debts due to the Council per ward. The applicant was not amused by
the conduct of the City Council and on the 4th
July 2018 this application was filed at the court.
The
1st
respondent, the City Council is opposing the application.
The
1st
respondent raised three points in
limine;
(i)
the first one being that of locus
standi in judicio;
(ii)
the second one is that the relief sought is vague, imprecise and
unusual; and
(iii)
the third and final one is that the applicant did not exhaust
domestic remedies.
On
the other hand after receiving the 1st
respondent's opposing papers, applicant in its replying affidavit
also introduced the fourth point in
limine
before this court, challenging the authority of Mr Joshua Maligwa in
preparing the opposing affidavit without a resolution of the City
Council. On that note the applicant proposed to the court that there
is no valid opposition and the application has to be granted.
On
the date of hearing of the application I granted the 1st
respondent an opportunity to address the court first focusing on all
the points in
limine
including that raised by the applicant.
After
the 1st
respondent had addressed the court, applicant was given the
opportunity to reply and address the court on the question of Mr
Maligwa's lack of authority.
I
will start with the issue of the 1st
respondent's opposing affidavit.
Joshua
Maligwa's Opposing Affidavit
The
applicant submitted that the deponent of 1st
respondent's opposing affidavit, has no authority from the City
Council to depose to the affidavit. Joshua Maligwa is only but an
employee and can only respond to the application on behalf of the 1st
respondent through specific authorisation acquired through a
resolution of the Council. The absence of a resolution by the 1st
respondent's councillors means the notice of opposition is but a
nullity.
The
1st
respondent on the other hand contends that the applicant cited the
1st
respondent as a party to the proceedings and having done that the
applicant then chases away such a party from the proceedings.
According
to the 1st
respondent the mere mentioning of the authorised agent of the 1st
respondent in his affidavit that he is authorised to state facts on
behalf of the City Council is adequate unless the contrary is proved.
The mere absence of a resolution by the City Council does not show
that the deponent had no authority.
The
1st
respondent cited the case of Tianze
Tobacco Co. (Pvt) Ltd v Muntuyedwa
HH626/15, where His Lordship MATHONSI J remarked as follows:
“It
is how fashionable for the respondents who have nothing to say in
opposition to question the authority of the deponent of a founding
affidavit in order to appear to have a defence/stand by what I stated
in African
Banking Corporation of Zimbabwe Ltd t/a Banc ABC v PWC Motors (Pvt)
Ltd and Others
HH123/13 that the production of a company resolution as proof that
the deponent has authority is not necessary in every case as each
case must be considered on its merits; Mall
(Cape) (Pty) Ltd v Merumo Ko-opraise
BPK 1957 (2) SA 345 (C).
All
the court is required to do is satisfy itself that enough evidence
has been placed before it to show that it is indeed the applicant
which is litigating and not an authorised person.
Indeed
where the deponent of an affidavit has said that she has the
authority of the company to represent it there is no reason for the
court to disbelieve her unless it is shown evidence to the contrary
and where no such contrary evidence is produced, the omission of a
company resolution cannot be fatal to the application. That is as it
should be because an affidavit is evidence acceptable in court as it
is a statement sworn before a Commissioner of Oaths. Where it states
that the deponent has authority, it can only be disbelieved where
there exists evidence to the contrary. It is not enough for one to
just challenge the existence of authority without more as the
respondent has done.
I
conclude therefore that there is no merit in the respondent's first
line of defence relating to lack of authority.”
The
same approach and conclusion was made in the matter of Trustees
of the Makomo E Chimanimani v Minister of Lands and Anor
2016 (2) ZLR 324 (H) where Her Ladyship MUNANGATI MANONGWA J stated
the following on page 328C-E:
“On
whether the deponent had authority to aver to the affidavit,
Mr
Uriri
submitted that the deposition to the statement that 'I am a trustee
of Makomo E Chimanimani Share Ownership Community Trust and am duly
authorised by the applicant to depose to this affidavit on behalf of
the applicants' is sufficient.
There
is no legal requirement to attach resolutions to prove authority.
I
agree with Mr
Uriri,
that statement in itself established the deponent's authority.
It
is worth noting that in Willoughby's Investments (Pvt) Ltd v Peruke
Investments (Pvt) Ltd & Anor 2014 (1) ZLR 501 (H)
ZHOU J
in dealing with the issue of authority made a finding that a deponent
is qualified to swear to an affidavit as long as he or she had
knowledge of the facts and can swear to these facts.
He
does not need authority to do that and this is provided in Order 32
Rule 227(4) of the Rules. It
is the institution of the proceedings and the prosecution thereof
which must be authorised.”
(My emphasis).
Mr
P
Nyakureba
for the applicant admitted during the hearing that Mr Joshua Maligwa
is the Town Clerk and Chief Executive of the 1st
respondent, Mutare City Council and invariably always acts for the
City Council. Mr Maligwa is not a stranger to the proceedings for and
on behalf of the 1st
respondent.
Given
all the above I find that Mr Joshua Maligwa is authorised to depose
affidavits on behalf of the 1st
respondent and the notice of opposition filed on behalf of the 1st
respondent is beyond reproach and valid, I will dismiss the
applicant's point in
limine.
Whether
Applicant has Locus
Standi
The
1st
respondent submitted that applicant does not have locus
standi
to institute proceedings in a representative capacity in terms of
section 85 of the Constitution.
Section
85 of the Constitution states that a certain class of persons may
approach a court directly for the vindication of a fundamental
right
allegedly infringed or likely to be infringed.
The
1st
respondent further contends that the applicant did not prove that it
has been authorised to represent the rate payers let alone that it
has a mandate to represent the ratepayers.
The
1st
respondent added in its submission that the applicant does not
specifically allege the nature of a right allegedly wronged upon and
the already paid rates do not fall in the genre of rights enshrined
in Chapter 4 of the Constitution. Hence an approach in terms of
section 85 to vindicate the alleged infringement of the rights of
general public is not available to the applicant.
Section
85 is only applicable where there is a potential threat of rights as
contained in the bill of rights.
In
any case the applicant belatedly raised the issue of property rights
in its heads of argument. In its affidavit, applicant did not raise
nor show that any right has been infringed.
The
applicant submitted that it is acting under the auspices of section
85 of the Constitution. What the applicant is asking the court is to
hold the 1st
respondent accountable to the applicant and its members as well as
the general public from Mutare who are parting with the money which
1st
respondent has not accounted for in five years due to failure to have
external audits of 1st
respondent's accounts and books.
The
applicant further argues that the money paid to the 1st
respondent is personal property and went on to cite section 71 of the
Constitution all in a bid to define the word money under the rubric
of “property”.
The
applicant believes that it has the appropriate mandate to represent
Mutare residents and rate payers and hence has a direct interest in
the matter.
In
the matter of Trustees
of the Makomo E Chimanimani v Minister of Lands and Anor (supra)
the court on p328A concluded thus:
“I
further identify with Mr
Uriri's
argument on the applicant's locus
standi
arising from section 85 of the substitutions. The
Constitution has widened the group of persons who can take action
where there are allegations of infringement of Constitutional rights
or a threat thereto.
The provisions of section 85 are very clear, anyone can literally and
practically take action 'In their own interest, on behalf of
another person who cannot act for themselves, in the public interest,
etc as long as the issue pertains to Constitutional
rights.'”
(My emphasis).
I
am not satisfied that the money paid by the applicant or ratepayers
or Mutare residents once accepted by 1st
respondent still belongs to the payee. The money would become the
local authority's and not the resident.
The
applicant did not meet the requirements set out by section 85, more
particularly where the section relates to “allegations of
infringement of Constitutional rights or a threat thereto.” Granted
the applicant can sue in its name as per the objectives of the Deed
of Trust but applicant failed to establish the existence of the
infringement of constitutional rights or threat thereto so as to
qualify to bring proceedings under section 85 of the Constitution.
Accordingly, this point
in limine
raised by the 1st
respondent is upheld for it has merit.
Whether
the sought relief is vague, imprecise and unusual
The
1st
respondent submitted that the relief being sought is incompetent and
cannot be granted in the circumstances.
The
applicant seeks an interdict in the form of a mandamus
and structural interdict, in addition applicant seeks a declaratur.
The cover of the court application reads “Court
application for an order of Declaratur, Mandamus, Structural
Interdict and Ancillary Relief.”
According
to the 1st
respondent this clearly demonstrates the ineptitude and the
irrationality of the relief that is being sought.
The
1st
respondent submitted that the applicant has not proved the
requirements of an interdict nor does the affidavit outline the
allegations or facts which establish such pre-requisites. Applicant
has not demonstrated that it has a clear right to compel the 1st
respondent to do an audit. The applicant falsely believes that by
forming a trust it grants it an automatic right to compel the 1st
respondent to abide by its demands, there is no contract of such a
right to compel the 1st
respondent.
The
applicant must aver or adduce evidence to establish such a right and
it has failed.
The
1st
respondent further added that the applicant has dismally failed to
demonstrate on its papers any potential harm may suffer or its
beneficiaries may suffer if the relief it seeks is not granted.
The
1st
respondent added that the application should also fail on the basis
that there are other remedies available to the applicant, applicant
has not approached the Minister the 1st
respondent, to exhaust domestic remedies.
Where
there is an alternative remedy there is no basis for seeking the
interdict.
The
1st
respondent also impugned the applicant for failing to demonstrate the
requirements of a structural interdict, that is by proving that there
is inefficiency in the system and as such there will be need to be
controlled.
The
applicant did not manage to prove that there is incompetence or gross
inefficiency which warrants the imposition of structural interdict.
The
1st
respondent cited the case of Kenton
on Sea Ratepayers Association & Ors v Ndlambe Local Municipality
2017 (2) SA 86 (ECG).
The
City Council also pointed out the dangers associated with structural
interdicts moreso in that it violates the concept of separation of
powers.
The
court would end up treading into institutional spheres of control and
result into undue interference with other spheres of governance.
The
final point hammered by the 1st
respondent is that even for a declaratur the applicant failed to meet
the requirements of section 14 of the High Court Act by failing to
demonstrate the existing future right which will be affected if the
court does not give judgment.
It
prayed for the dismissal of the application.
1st
respondent cited the matter of Johnson HFC 1995 (1) ZLR 65 (S) at p72
E-F GUBBAY CJ held:
“The
condition precedent to the grant of a declaratory order under section
14 of the High Court of Zimbabwe Act 1981 is that the applicant must
be an 'interested person' in the sense of having a direct and
substantial interest in the subject matter of the suit which could be
prejudicially affected by the judgment of the Court. The interest
must concern an existing, future or contingent right. The Court will
not decide abstract, academic or hypothetical questions unrelated
thereto. But the presence of an actual dispute or controversy between
the parties interested is not a prerequisite to the exercise of
jurisdiction.”
This
point in
limine
lies on the border line of law and fact.
In
my view these issues dealt with herein would have been appropriately
dealt with in the main that is on the merits. However, the 1st
respondent's submission is that the applicant did not crisply in
its founding papers exhaustively encapsulate these ingredients in
order to achieve its intended purpose. Such a failure should
putatively paralyse the application and this court should uphold the
preliminary point and dismiss the application.
Apparently
the face of the court application is a mixed bag of separate reliefs
“God's plenty” and like a hunter's arrow any pray can be
caught and the hunter, will attain his purpose of a catch.
I
agree with the 1st
respondent that the relief being sought is vague and embarrassing.
An
examination of the affidavit in conjunction with the draft order
indeed causes concern and the applicant ought to have crisply
tabulated its facts and the draft sealing clearly the relief sought.
The basis upon which the ultimate relief is premised was not
established and I accordingly uphold this preliminary point.
Exhaustion
of Domestic Remedies
This
preliminary point is but secondary to the other points in limine
raised by the 1st
respondent.
It
is this court's view that the applicant's relief or recourse lies
with the 2nd
respondent, the Minister of Local Government, Public Works and
National Housing (the Ministry has since changed its name but for
convenience, I will cite the party as cited on the papers).
The
2nd
respondent unearthed the irregularities that triggered a reaction
from the applicant and if the applicant intends to pursue the matter
it ought to engage the 2nd
respondent who had powers to regulate and administer the 1st
respondent.
Section
311 of the Urban Councils Act can be resorted to by the applicant and
achieve the very relief it wants this court to grant to it. Section
311 should be read in tandem with the section 315 of the same Act
which can direct the 1st
respondent to comply with certain actions to be done by 1st
respondent to iron out any creases in how the finances of the City
Council are being handled.
The
2nd
respondent has both administrative and regulatory powers to uphold
good governance of 1st
respondent in the interests of the residents and rate payers.
Negotiations
of all the stakeholders should be for the interests of all of them.
I
further agree with the 1st
respondent that it is generally accepted that if the administration
machinery is working well and effective internal remedies are
provided for, the administration is in the best position to rectify
its own mistakes and should be given chance to do so. To permit
ill-timed access to the courts before the administration has been
given the space to rectify the perceived mistakes will undermine the
functioning of the administration.
See
Guide to Administrative Law by Professor G Feltoe. Olivine
Industries (Pvt) Ltd v Gwekwerere
2005
(2) ZLR 421 (H) and Djordjevic
v Chairman Practice Control Committee, Medical & Dental
Practitioner Council of Zimbabwe
2009 (2) ZLR 221 (H).
The
applicant does not state on its founding papers that internal
remedies had failed nor does it show that efforts were made by it but
bore no fruits to justify its logic of approaching the court.
The
decision to go to courts was hurried and not justified.
The
applicant is urged to liaise with the 2nd
respondent and reserve the impasse with minimum friction and costs.
All
the three points in
limine
raised by the 1st
respondent have merit and the court has found sense in all three of
them and regard being made to the aforegoing, the following order is
made:
1.
The three points in
limine
raised by the 1st
respondent are upheld.
2.
The point in
limine
by the applicant is dismissed.
3.
The application is dismissed with costs on attorney-client scale.
Maunga,
Maanda & Associates,
applicant's legal practitioners
Bere
Brothers,
1st
respondent's legal practitioners
