Urgent
Chamber Application
BERE
J:
In
launching this urgent application the applicants have urged this
court to grant them interim relief couched as follows:
“INTERIM
RELIEF GRANTED
1.
1st Respondent be and is hereby interdicted from selling stands to
any person either natural or juristic.
2.
1st Respondent's management shall not dispose of any asset
belonging to 1st Respondent or purchased using 1st respondent members
contributions.
3.
2nd Respondent shall not threaten nor interfere with administration
of 1st Respondent's activities.”
This
application is premised on the first applicant's other application
pending in this court filed under HC9842/14 on 6 November 2014. I
will refer to this particular application as the main application for
ease of reference.
The
first applicant's main application was filed in terms of section
85(1)(c) of the Constitution of the Republic of Zimbabwe1
and in that application the first applicant appears as the only
applicant who on 9 September 2014 was suspended by the first
respondent.
In
that main application the first applicant sought inter alia to
challenge the general meeting of 27th September 2014 which appears to
have ushered in the Management Committee whose coming into being she
was not happy with. She also sought the disqualification of this
Management Committee.
There
is no doubt that the applicant has problems with the Management
Committee of the first respondent.
A
date of hearing is yet to be provided in the main application.
The
final order desired by the applicants in the instant matter is to bar
first respondent from operating until such time the main matter is
determined.
The
urgent application filed by the applicants has been strenuously
opposed by the two respondents on the basis that there is nothing
that has been placed before this court to justify the urgency of this
matter given that the main issue that triggered the applicant's
concern were the election of office bearers for the first respondent
on 27 September 2014.
The
position of the first respondent and supported by the second
respondent is that from September 2014 the applicants did nothing
really to protect their interests and that they have had to wait
until the filing of this urgent application on 10 March, 2015.
There
is no bona fide explanation as to why action was not taken
immediately the first respondent's management was put in place to
avoid the potential prejudice now being faced by the second
respondent which has projected itself as an innocent party in its
dealings with the first respondent.
The
applicants have instead gauged the computation of their time to file
this urgent application from the 8th and 9th of March 2015. The 8th
of March 2015 is alleged to be the date when the applicants learnt of
the transaction between the first respondent and the second
respondent concerning the disposal of certain land in which the first
applicant has an interest.
The
significance of 9th of March 2015 is the date when the applicants
were notified of their eviction from the cooperative's houses by
the first respondent.
The
view that this court takes is that the coming into office of the new
office bearers of the first respondent on 27 September 2014 was with
the full knowledge of the applicants and it ought to have dawned on
the applicants that the new Management Committee was going to embark
in running the affairs of the first respondent in a manner they
considered to be in the best interest of the first respondent.
The
transactions involving the first respondent and the second respondent
must clearly be looked at within this context.
The
casual approach adopted by the applicants does not justify urgency in
this case.
The
eviction of the applicants by the first respondents initiated on the
9th of March 2015 cannot in my view be looked at as the most
opportune time to bring the instant application to court on an urgent
basis because if the applicants feel very strongly that they have a
good defence to that eviction process they have all the time as
prescribed by the court rules to deal with that process.
That
process can be dealt with independent of the order desired in the
first applicant's main application pending in this court.
There
is a plethora of authorities which condemn litigants who want to
benefit from self-created urgency and this is one classic example of
such a scenario. See Kuvarega v Registrar-General and Anor1.
The
other significant and disturbing feature of this case is that in
HC9842/14 the first applicant purports to be acting on behalf of
other members of the first respondent yet there is nothing in her
papers to demonstrate that she indeed has the mandate of those
unidentified individuals.
Not
even an affidavit of collegiality has been filed by the first
applicant.
One
cannot by their mere say so pretend to be fighting for the cause of
others without any tangible indication that indeed they have such a
mandate.
Section
85(1)(c) of the Constitution requires much more than a bare
declaration that one is acting on behalf of other class of persons.
There must be a way of identifying such other litigants otherwise it
would set a very bad precedent for a litigant to be accepted to be
representing others when in fact she is fighting for her own
interests.
Finally,
I am persuaded to accept without question the ratio expressed by my
then sister Judge, Gowora in the case referred to me by first
respondent's counsel, Makamure v Deven Engineering (Pvt) Ltd2
that;
“Litigants
must refrain from seeking relief in an urgent manner where such
relief is dependant on the conclusion of an action launched.”
The
rationale behind this is that such an approach forces the judge
seized with the urgent application to start speculating on the
possible outcome of the matter that may never be brought before him
for determination, worse still for him to try and draw conclusions
that may be in conflict with the eventual outcome of the main matter.
In
any event in the main case that has been launched by the first
applicant under HC9842/14 the first applicant does not seek to have
the decisions of the Management Committee whose legitimacy she
attacks to be set aside.
Consequently,
I am satisfied that the applicants have failed to fast track this
matter before the court on an urgent basis. I decline to hear this
matter on urgent basis.
The
applicants are ordered to pay costs of this application for both the
first and second respondents.
Munangati
and Associates Incorporating Goneso and Associates, applicants legal
practitioners
Kachere
and Guwuriro, 1st respondent's legal practitioners
Mapondera
and Company, 2nd respondent's legal practitioners
