Special
Plea
MATHONSI
J:
The
plaintiff is a co-operative society engaged in the noble business of
providing housing for its members one of whom was, until he was
unceremoniously dismissed from membership by letter dated 4 June
2015, the defendant in this matter.
Following
the expulsion of the defendant, the plaintiff sued out a summons
against him seeking an order for his eviction from a property known
as Stand 5486 of 315 Retreat Township, Waterfalls Harare (the Stand)
on the pain of legal practitioner and client costs.
In
its declaration the plaintiff made the averments that the defendant
had been admitted as a member of the co-operative in 2005 in terms of
Clause 7 of the plaintiff's By-Laws. When he failed to meet his
membership obligations in terms of the same By-Laws the defendant was
initially suspended and subsequently expelled in terms of Clauses 21
and 23 of the By- Laws, thereby forfeiting the Stand which had been
allocated to him by virtue of his membership.
As
the defendant has refused to vacate the Stand, the plaintiff craved
the grant of an eviction order aforesaid.
The
action is contested by the defendant who, after entering appearance
to defend, also filed a special plea in the following:
“The
defendant pleads to the claim as follows:
1.
SPECIAL PLEA
1.1
This Honourable Court does not have jurisdiction to hear this matter
as it is a matter between a registered housing co-operative namely
Nehanda Co-operative Society Limited and one of its members.
1.2
In terms of section 115 of the Co-operative Societies Act, the
plaintiff should have first attempted to have the matter resolved by
the housing co-operative. Failure of which the plaintiff would then
have approached the Registrar in terms of section 115 of the
Co-operative Societies Act.
Wherefore
the plaintiff's claim ought to be dismissed with costs on a legal
practitioner and client scale.”
The
plaintiff holds a different view.
According
to the plaintiff the matter was indeed dealt with by the co-operative
which first suspended and later expelled the defendant for his
indiscretions in violation of the By-Laws. The defendant's fate was
communicated to him by letter dated 4 June 2015. It reads:
“REF:
NOTIFICATION OF SUSPENSION AND EXPULSION
You
are hereby notified that at a special general meeting held at:
Venue:
Nehanda Housing Co-operative site offices
Date:
30 May 2015
Time:1300hrs
You
were suspended and expelled from being a member of the
above-mentioned housing co-operative. You are therefore advised to
visit the co-operative offices as soon as possible for a way forward
in connection with your refunds as well as the necessary
administrative issues failure of which will result in the
co-operative taking a legal route at your expense. Your co-operation
will be greatly appreciated.”
The
expulsion letter was signed by both the secretary and the chairperson
of the co-operative.
As
it turns out subsequent to that outcome, the defendant was given an
opportunity by the plaintiff to make representations on his
expulsion. This was communicated to him by letter dated 15 May 2015
which notified him of the date of hearing for that purpose namely 30
May 2015. What brought the defendant to that predicament was his
failure to pay subscriptions for more than 3 months, failure to
attend meetings and insubordination.
Apparently,
the affliction of failing to attend meetings continued to bedevil the
defendant because, despite being notified of the date of the special
general meeting to consider representations on his expulsion, the
defendant still failed to attend that meeting and make
representations as appears from the minutes of that meeting.
On
a vote of 42 to 5, the members resolved to uphold the defendant's
expulsion.
Mr
Gijima
for the plaintiff insisted that the provisions of section 115 of the
Co-operative Societies Act [Chapter
24:05]
were complied with because, subsequent to that, the dispute was
indeed referred to the Registrar of the Co-operative Societies who
delegated the responsibility of resolving the dispute between the
parties to two (2) of his or her officials namely Ms
Mutumhe
and
Ms Mutepfa.
By
consent of the parties I allowed Mr Gijima
to
produce proof of such attendance which then necessitated the
postponement of the matter for that purpose.
In
doing so, it was hoped that proof that the dispute was referred to
the Registrar would resolve the matter given that the defendant
sought to bar the plaintiff from approaching this court on the single
ground that it had not exhausted domestic remedies provided for in
the Act.
Despite
the production of the minutes of the Special General Meeting convened
for that purpose on 19 November 2016, which clearly show that the two
(2) representatives of the Registrar had presided over the meeting
and confirmed the majority decision of the members to expel the
defendant, Ms Choniwa
for the defendant pursued the special plea.
She
submitted that the manner in which the matter was dealt with at that
meeting and the outcome thereof did not satisfy the provisions of
section 115 in that the Registrar did not resolve the dispute.
There
is no decision by the Registrar resolving the dispute between the
member and the co-operative society as required by the Act.
I
am therefore required to decide whether, after the dispute was
referred which is now common cause, the Registrar resolved it.
Mr
Gijima
submitted that indeed the Registrar dealt with and resolved the
matter through his or her representatives by upholding the expulsion.
Ms
Choniwa's
position
is that the dispute was left hanging and unresolved.
I
have said that the minutes, which the defendant has not attempted to
challenge and show that the defendant was actually in attendance at
the meeting held on 19 November 2016, clearly demonstrate that the
Registrar's representatives presided over the deliberations. They
even conducted a poll for the members to have a second bite at the
cherry, as it were, to decide whether to affirm or reverse the
expulsion. When the members still voted for the expulsion, they must
be taken to have upheld it, washing their hand, Pilate style, of the
matter before taking their leave.
Part
of the minutes read:
“Ms
Mutumhe and Ms Mutepfa explained the results and the meaning of the
outcome to Mr Nkomazana and she also took the opportunity to plead to
the members to hear Mr Nkomazana out and if possible to assist him
since he was now an elderly citizen with a family to cater for. Mr
Nkomazana was given the chance to plead with the delegates as well as
to explain his side of the story. Mr Nkomazana said that he never
refused to subscribe his monthly contributions but had only fallen on
hard times due to economic challenges which he faced during the
respective period and he believed that his expulsion had a lot more
into it than the debt owed… The delegates generally concurred that
Mr Nkomazana remains expelled and advised him to desist from
threatening other members my any means as he usually does. Ms Mutumhe
and
Ms Mutepfa
concluded
that they had finished their findings and were now going to leave us
as a co-operative to discuss this issue so that we bring it to
finality.”
Reading
the minutes as a whole and in light of that conclusion it cannot be
doubted that the Registrar exhausted his or her interventions and did
not find the need to overturn the decision of the members.
The
Registrar even allowed the defendant to mitigate and still found no
reason to set aside the resolution of the members.
Can
it be said therefore that domestic remedies provided for in the Act
were not exhausted?
I
think not.
In
terms of section 115 of the Act:
“(1)
If any dispute concerning the business of a registered society arises
-
(a)
within the society, whether between the society and any member, past
member or representative of a deceased member, or between members of
the society or the management or any supervisory committee; or
(b)
between registered societies;
and
no settlement is reached within the society or between the societies,
as the case may be, the dispute shall be referred to the Registrar
for decision.”
Subsection
(2) interprets a dispute to include any claim by the society for a
debt due to it from a member or past member, any claim by a member
and any dispute concerning the interpretation of a society's
by-laws.
There
is therefore no doubt that the dispute between the parties over the
defendant's failure to pay subscriptions fell under the provisions
of section 115 of the Act, even after his expulsion from the
co-operative.
In
terms of section 115(3) of the Act:
“Where
a dispute has been referred to him in terms of subsection (1), the
Registrar may –
(a)
settle the dispute himself; or
(b)
refer the dispute for settlement to an arbitrator or arbitrators
appointed by him; or
(c)
refer the dispute to the Minister for decision.”
In
light of the foregoing provisions I find as fact that the matter was
indeed referred to the Registrar in terms of section 115 of the Act
and that the Registrar was entitled to delegate his or her
responsibilities in terms of that section to Ms Mutumhe
and
Ms Mutepfa
in
order for them to resolve the dispute.
I
also find as fact that the two (2) thoroughly investigated the matter
and found nothing amiss with the manner in which the plaintiff had
applied the By-Laws in deciding to expel the defendant.
In
fact, I am prepared to go as far as make a finding that the Registrar
upheld the decision to expel the defendant.
If
he or she had not done so, the contrary finding would appear ex-facie
the minutes. Quite to the contrary what appears is a finding that
there was nothing wrong with the process.
I
do not agree with Ms Choniwa
for
the defendant that no decision was taken by the Registrar merely
because the representatives left the parties to try and find each
other.
They
did so after making a finding that the defendant had been properly
expelled.
In
any event one gets the sense that this was the easiest of disputes to
be resolved because it was common cause that the defendant had failed
to pay subscriptions. There was nothing to resolve there. There was
no challenge or dispute on the interpretation of the By-Laws.
In
terms of clause 16 of the By-Laws every member has an obligation to
abide, not only by the By-Laws but also by the majority decisions of
the society.
Clause
21 allows for expulsion even for any action considered disloyal or
contrary to the interests of the society.
The
defendant's special plea which I have reproduced above, is
predicated on the failure to refer the matter to the Registrar for
resolution.
I
have found that the matter was indeed referred to the Registrar.
The
special plea is ill-founded.
Ms
Choniwa
shifted ground when it became apparent that the dispute was referred.
She submitted instead that the dispute having been referred to the
Registrar, the latter did not make a decision.
I
have again found that a decision to uphold the expulsion was arrived
at.
In
fact, to suggest, as Ms Choniwa
did, that that there must exist a judgment by the Registrar or his or
her representative deciding the matter, is to worry about the form
than substance.
I
conclude that there is no merit in the special plea.
In
the result, it is ordered that:
1.
The special plea be and is hereby dismissed.
2.
The costs shall be costs in the main cause.
F.G.
Gijima & Partners,
plaintiff's legal practitioners
IEG
Musimbe & Partners,
defendant's legal practitioners
