Opposed
Matter
MAKONI
J:
This
is an application for an interdict in which the applicants seek a
mandatory interdict against the respondents, compelling them to pay
the applicants their end of project benefits as per their promise.
The
applicants are all former employees of Constitution Parliament Select
Committee (COPAC) mandated to draft the Constitution of Zimbabwe.
COPAC
winded up their activities in 2013 by drafting a draft constitution
and submitting a report to the Parliament of Zimbabwe. COPAC, through
the fourth respondent, submitted a list, with names of the
beneficiaries who were to be paid, to the first respondent and they
were paid.
The
list did not include the names of the applicants resulting in them
not receiving any payment.
The
applicants approached this court seeking a mandatory interdict
compelling the respondents to pay them their end of project.
The
opposing affidavit was deposed to by Ms Virginia Mabiza, the
Secretary for Justice Legal and Parliamentary affairs, on behalf of
the first and third respondents.
In
their answering affidavit, the applicants took issue in limine, with
the opposing affidavit filed by the Secretary on the basis that there
are no papers showing that she had authority to depose to the
affidavit. There is no explanation why the first and third
respondents could not file opposing affidavits.
I
will deal with the point in limine first.
Mr
Sithole for the applicants submitted that there are no papers showing
that the secretary had authority to depose to an affidavit on behalf
of the first and third respondent. He argued that it is the Minister
being sued not the Ministry hence the secretary cannot act on behalf
of the minister. The application stands unopposed because there are
no reasons why first and third respondents did not file opposing
affidavits if indeed they were opposing the relief sought by the
applicants.
The
second and fourth respondents did not file any opposing affidavits.
Mrs
Zvedi for the first and third respondents argued that the secretary
was legally authorized to act on behalf of the first and third
respondent in that it is generally accepted that a person can depose
to an affidavit if he can swear positively to the facts of an
affidavit and the facts are within his or her personal knowledge. The
secretary is the accounting officer for the first respondent
responsible for the day to day running of the Ministry.
It
is not within the personal knowledge of the Minister or the Attorney
General why the applicants were not paid.
She
submitted that the facts in casu are within the accounting officer's
personal knowledge not the Minister's.
In
support of her submissions Mrs Zvedi referred to the case of Zimbabwe
Banking Corporation Ltd v Trust Finance Ltd and Anor 2006 (2) ZLR 405
at D, where the court held that the omission in a founding affidavit
of the allegation that a deponent was duly authorized was not fatal
particularly in view of the history and background of the
application.
Rule
227(4) provides:
“An
affidavit filed with a written application –
(a)
Shall be made by the applicant or respondent, as the case may be, or
by a person who can swear to the facts or averments set out therein;
and
(b)
May be accompanied by documents verifying the facts or averments set
out in the affidavit, and any reference in this Order to an affidavit
shall be construed as including such documents.”
Hebstein
and van Winsen, state the following on the point:
“It
has been held that documentary proof of authorisation may be supplied
in an answering affidavit. Where an application is made by an agent
on behalf of a principal, an averment of the agent's authority is
essential, unless it appears from the affidavits filed in the
application that the principal is aware and ratifies the proceedings.
A statement that the applicant is acting in the capacity of agent for
the principal in question is a sufficient allegation of authority to
make the application.”
Hebstein
and van Winsen, Civil Practice of the High Courts of South Africa 5th
Edition Volume 1 at page 437:
“Similarly,
in Mall (Cape) (Pty) Ltd v Merino Ko-operasie BPK 1957 (2) C-D it was
held that:
'When
an artificial person, such as a company, commences notice of motion
proceedings some evidence must be placed before the Court that the
applicant has duly resolved to institute the proceedings and that the
proceedings are instituted at its instance. Though the best evidence
that the proceedings have been properly authorised would be provided
by an affidavit made by an official of the company annexing a copy of
the resolution, such form of proof in not necessarily in every case.
Each case must be considered on its merits and then Court must decide
whether enough has been placed before it to warrant the conclusion
that it is the applicant which is litigating and not the same
unauthorized person.'”
In
casu, the Secretary in paragraph 1 of the opposing affidavit states:
“I
am the Secretary for Justice, Legal and Parliamentary Affairs and as
such I am the Accounting Officer for the said Ministry. I have been
duly authorized to depose to this affidavit on behalf of the first
and third respondents. The matters of fact which I depose to herein
are, save where otherwise indicated or the context so suggests,
within my personal knowledge and are true and correct to the best of
my knowledge and belief. Where I make submissions on the this is as a
result of legal advice rendered to me by my legal practitioners of
record, which advice I accept and verily believe to be correct.”
From
the above it is clear that the Secretary makes a clear averment that
she has authority to depose to the affidavit. She is the accounting
officer in the Ministry of Justice, Legal and Parliamentary Affairs
and is seized with day to day running of the Ministry.
She
would be privy to the facts relevant to this application unlike the
first and third respondents who are not and could not possibly depose
to the affidavit.
The
averment in para 1 of the Secretary's affidavit is enough proof to
satisfy the court that it is the first and third respondents who are
litigating in this matter.
As
was stated in Mall Cape supra, it is not always that some form of
prof is necessary in every case.
I
will therefore, dismiss the point in limine and find that the
opposing affidavit of the first and second respondents is properly
before me.
MERITS
Mr
Sithole submitted that the application meets the requirements of a
mandatory interdict in that the applicants have a clear right to be
paid their end of year project just like their colleagues who were
paid.
He
further submitted that a clear right arises from the fact that the
respondents never disputed that the applicants are entitled to their
end of project benefits.
He
further submitted that injury on the applicants exists on the basis
that the applicants were unfairly differentiated from their
colleagues and this infringed upon their right to equality.
He
further submitted that there is no other available remedy available
to the applicants other than an interdict compelling the respondents
to pay the applicants their end of project benefits.
Mrs
Zvedi further submitted that the applicants anticipate a right to
payment because payments were made to other members but they have not
established that they have a clear right.
He
further argued that what the applicants have is a financial interest
which alone does not suffice to satisfy the requirements of a
mandatory interdict.
The
issue in this matter is whether a mandatory interdict can be granted
in favour of the applicants.
In
determining whether a mandatory interdict can be granted to the
applicants there are certain requirements that must be met. In
Setlogelo v Setlogelo 1914 AD 221 at 227 INNES JA accepted that:
“The
requisites for the right to claim an interdict are well known; a
clear right, injury actually committed or reasonably apprehended, and
the absence of similar protection by any other ordinary remedy.”
The
requirements of a mandamus or mandatory interdict were enunciated by
GUBBAY J in Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR
52 (S) at 56B-D wherein it was held that:
“An
application for a mandamus or 'mandatory interdict' as it is
often termed, can only be granted if all the requirements of a
prohibitory interdict are established. These are:
1.
A clear or definite right – is a matter of substantive law.
2.
An injury actually committed or reasonably apprehended – an
infringement of the right established and resultant prejudice.
3.
The absence of a similar protection by any other ordinary remedy. The
alternative remedy must -
(a)
be adequate in the circumstances;
(b)
be ordinary and reasonable;
(c)
be a legal remedy; and
(d)
grant similar protection.”
The
above explanation highlights that the requirements for a mandamus or
mandatory interdict are the same as those for a prohibitory
interdict.
In
Oil Blending Enterprises (Pvt) Ltd v Min of Labour 2001 (2) ZLR 446
(H) CHINHENGO J described a mandatory interdict in the following
terms:
“A
mandamus or mandatory interdict is a judicial remedy recognized under
our law: see Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR
52 (S). It is applied against public authorities. It is an order
which requires a public authority to comply with a statutory duty
imposed upon it or one which requires a public authority to perform
some act which remedies a state affairs brought by its own unlawful
administrative action (L Baxter on Administrative Law at p687).
It
is, therefore, a judicial remedy available to enforce the performance
of a specific statutory duty or to remedy the effects of an unlawful
action already taken.
In
this application, I am concerned with the former – to order or not
to order the respondent to perform a specific statutory duty placed
upon him. The remedy will be granted were the public authority is
under a clear duty to perform the act ordered.”
CB
Prest in The Law & Practice of Interdicts, Juta 1993 at p43
provides that:
“The
word 'clear' relates to the degree of proof required to establish
the right and should not be used to qualify the 'right' at all.
The existence of a right is a matter of substantive law. Whether that
right is clearly established is a matter of evidence. In order to
establish a clear right the applicant has to prove on a balance of
probability the right which he seeks to protect.”
In
my view, in order for an application for an interdict to succeed, the
applicant must establish the following criteria which has been
established in terms of case-law, that is;
1.
A clear right which must be established on a balance of
probabilities;
2.
Irreparable injury committed or reasonably apprehended; and
3.
The absence of a similar protection by any other remedy.
Mr
Sithole contended that the applicants have a clear right to be paid
their end of project benefits just like their colleagues.
Mrs
Zvedi submits that the applicants anticipate a right to payment on
the basis that their colleagues who were members of COPAC were paid.
They claim a financial interest.
The
learned authors Hebstein and Van Winsen supra, at p1458 stated the
following about a financial interest:
“The
right which the applicant must prove is also a right which can be
protected. This is a right which exists only in law, be it at common
law or statutory law. The right that forms the subject matter of a
claim for an interdict must thus be a legal right. A financial or
commercial interest alone will not suffice. The right must be the one
that is enforceable in law.”
Further
down on the same page they state:
“In
order to decide whether a right has been established, one must look
to the branch of substantive law concerned. When the right is one
that arises automatically in law it is not necessary for the
applicant to allege any facts in order to establish the right.”
From
the above it is clear that all that the applicants have established
is a financial interest and that will not suffice to satisfy the
requirements of a mandatory interdict.
It
was incumbent upon the applicants to establish that they have a legal
right.
Their
right had to be either founded in statutory law, whereby they would
be required to cite the relevant statute or in common law whereby
they would cite the relevant principle of law.
As
Hebstein and Van Winsen supra stated, one must look at the branch of
substantive law concerned, in other words, identify the branch of
substantive law such as contract or delict where their right is
predicated on.
From
the above, it is clear that the applicants have failed to establish a
clear right at law entitling them to seek a mandatory interdict.
To
merely allege that some of their colleagues were paid is not
sufficient.
They
could have been wrongly paid and that does not entitle the applicants
to payment.
Having
been satisfied that the applicants failed to meet the first
requirement of a mandatory interdict which is a clear right, it will
not be necessary for me to deal with the other requirements.
The
court is satisfied that the applicants have not successfully managed
to satisfy the requirements for a mandamus or mandatory interdict to
be granted in their favour. In the result, I will make the following
order:
(1)
The application is dismissed.
(2)
The applicants to pay the first and second respondent's costs.
Messer's
Mapendere and Partners, for the applicants
Civil
Division, for the 1st & 3rd respondents
