ZIYAMBI
JA: The
appellants, on 21 August 2013, brought an application in the High
Court on a certificate of urgency seeking a provisional order in the
following terms:
1.
It is hereby ordered and declared that the management of Eaglesvale
School vests in the Management of the Board of Governors of
Eaglesvale School and the School Development Committees of the High
School and Junior School respectively.
2.
The First and Second Respondents are not empowered to dissolve the
Management Board of Governors and the School Development Committees
of the High School and Junior School and any such acts are declared
to be unlawful.
3.
The unauthorised payment of any money from the school to the First
and Second Respondent and/or any of their officers is unlawful.
4.
Consequently the First, Second and Third Respondents be and are
hereby restrained and interdicted from interfering unlawfully in the
Applicants management of the administrative and financial affairs of
Eaglesvale School.
5.
The First, Second and Third Respondents are ordered to pay the costs
of this application.
INTERIM
RELIEF GRANTED
6.
Pending the final determination of this matter, the First and Second
Respondents be and are ordered forthwith not to interfere and/or
involve themselves in any manner in the administration and/or
finances of Eaglesvale School.
7.
The Board of Governors of Eaglesvale School and the School
Development Committee shall continue to manage the school and its
finances.
8.
Third Respondent is ordered to take instructions concerning the
administration and finances of school from the Applicants and not
from the First and Second Respondents.
9.
The Applicant and/or its legal practitioners be and are hereby
authorised to serve this provisional order on the Respondents.
The
learned Judge before whom the matter was placed dismissed the
application with costs on the grounds that the appellants had no
locus
standi
to bring the application and, further, that the matter was not
urgent.
Against
this judgment the appellants have appealed on grounds, inter
alia,
that the court erred on both grounds.
It
was prayed on appeal that the judgment of the court a
quo
be set aside and substituted with an order granting the provisional
order sought with costs.
THE
BACKGROUND FACTS
In
1984 the Dutch Reformed Church formed and registered a non-profit
making company under the name Daisyfield Trust.
The
company was established as a not-for-profit welfare company in terms
of the Companies Act. The purpose of the Daisyfield Trust was to
establish and to ensure oversight of a Christian ethos for the
schools established or falling under the Trust according to Dutch
Reformed Church values, and generally to maintain a Christian
character.
Eaglesvale
School (previously Bothashof School) was brought under the oversight
of the Trust for the aforesaid reason and purpose.
Sometime
in 2010, a decision was taken by the Dutch Reformed Church to hand
over the Trust to the Reformed Church of Zimbabwe.
With
the authorization of the Minister of Justice the articles of
association of the Daisyfield Trust were altered to accommodate the
change of ownership and, on 15 March 2013, by special resolution of
the Daisyfield Trust, its name was changed to THE REFORMED CHURCH IN
ZIMBABWE'S DAISYFIELD TRUST.
I
will refer to it hereinafter as “the Trust”.
Following
the above, the oversight of the school then moved to the Reformed
Church of Zimbabwe who then became the trustees of the Trust.
Up
to 12 July 2013, the first to the eighth appellants were members of
the Board of Governors responsible for the management of Eaglesvale
School. The ninth and the tenth appellants are members of the School
Development Committees of the Junior and Senior schools,
respectively.
It
appears from the opposing papers that on 12 July 2013 a letter was
written by the Board of Trustees addressed to the third respondent as
follows:
“Att:
Mr N Tirivavi
Eaglesvale
School Management Board
12
July 2013
RE:
DISSOLUTION OF EAGLESVALE SCHOOL MANAGEMENT BOARD
The
above matter refers.
You
are hereby notified that the Reformed Church in Zimbabwe's
Daisyfield Trust Board of which you have been a board member, has
been dissolved with immediate effect.
It
has come to the attention of the Reformed Church in Zimbabwe's
Daisyfield Trust that the School Management Board did not follow
instructions from the board of trustees as written in the letter to
you dated 21 June 2013. For avoidance of doubt, the letter instructed
the School Management Board to:
1.
Reinstate Mr. Tirivavi back to his work as the suspension was
unlawful.
2.
Give Mr. Tirivavi all his salary and benefits from the date of
suspension.
The
Reformed Church in Zimbabwe's Daisyfield Trust regrets that to this
day, the Headmaster has not been given his dues and his office is
still locked and blocked, thereby hindering the smooth running of the
school. It would seem from the occurrences pertaining to various
issues at the school that the school management board is not willing
to cooperate or work with the trustees.
Therefore
the board of trustees has been left with no option but to dissolve
you as the school management board. This means your membership to
this board ceases forthwith. However, you are notified that if you
are still interested to be part of the new board to be set up, you
should submit your application to the board of trustees by the end of
the day of Monday 15 July 2013.”
It
is not clear on the papers as to whether or not the letter was
brought to the attention of the appellants but it is not disputed
that the appellants at some stage thereafter came to know of the fact
that an Interim Board of Governors had been appointed by the
trustees.
Thereafter
a situation then allegedly pertained where instructions were being
given to the administrative staff by both boards of governors and the
headmaster was taking instructions from the “Board of Trustees”
and not from the appellants.
The
third respondent Naison Tirivavi is the headmaster.
THE
APPLICATION
The
appellants averred that the urgent problem and reason for the
application is that:
“The
new trustees are running havoc and disrupting the management of the
school. Unfortunately, they are also abusing school funds and
resources for personal gain. Until recently the reasons for the
conduct of the RCZ and its appointed trustees, whilst still
disruptive, were not clear. Sadly it is now the clearer and urgent
that the reason for this conduct is inter
alia
to take control of finances unlawfully and to plunder them.”
They
averred that the trustees had lifted the suspension of the headmaster
on charges of misconduct while the charges against him were still
pending and attached vouchers to show that within one month, that is
to say, during the period 19 June 2013 to 19 July 2013, the first to
third respondents had looted some $80,000 from the school coffers for
their own gain and without the knowledge of the appellants.
They
claimed that it had never been the practice for trustees to draw
money from the school as evidenced by the fact that one Mr Van Vuuren
the former trustee of the Trust under the management of the Dutch
Reformed Church had never drawn or demanded money from the school
throughout his term of office.
The
role of the Trust, they stated, was to bring help whether monetary or
otherwise to the school and not to plunder its resources.
They
had grave concerns that the respondents were trying to access the
bank accounts which have always fallen under 'the guardianship of
the Board and the School Development Committees'.
They
alleged that they wrote to the Trustees advising them that their
attempt to dissolve the Board was void.
However,
that letter does not form part of the record and details of the date
or contents thereof cannot be ascertained.
They
alleged, further, that the interim board had taken control of the
finances of the school and were making payments to the Trustees, for
their services, in a manner which caused alarm to the appellants.
They
attached to their papers a number of vouchers which they say caused
them to fear that the funds of the school were being mismanaged to
the personal benefit of the Trustees.
For
the above reasons they felt the need for an interdict to be granted
as a matter of urgency.
The
application was opposed by the respondents who contended that the
matter was not urgent.
The
Board, they said, had been dissolved on 12 July 2013 and the
appellants knew, as at that date, that an interim board had taken
over the management of the school. It follows that the new
administration would have access to the school's bank accounts and
finances. Accordingly, the appellants had not made out a case for the
matter to be given preference on the court roll by being accorded an
urgent hearing.
In
the respondents opinion the matter ought to have been referred to the
ordinary roll.
In
any event, the appellants had no locus
standi
to make the application since they had not shown that they
represented the Board. No resolutions or other forms of authority
were produced to the court which would satisfy it of the locus
standi
of the appellants to bring this application.
THE
ISSUES
At
the hearing, a number of preliminary points were raised. The two
which formed the basis of the decision were that the matter was not
urgent; and that the appellants had no locus
standi
to make the application.
URGENCY
The
appellants claimed that it was their discovery that money was being
fleeced out of the school's finances which gave rise to the urgency
and not the fact that the Trustees had authorised other persons to
run the school.
In
particular, they claimed that what triggered the application was
their discovery, on the 15th
August 2013, of a number of vouchers which indicated that the
school's finances were being misappropriated by the respondents.
These vouchers date from 19 June 2013 to 19 July 2013.
The
learned Judge was of the view that the urgency was created by the
appellants since the chaos which existed at the school predated the
alleged misappropriation of funds and the appellants ought to have
known that the new Board would seek access to the finances and bank
accounts of the school.
Indeed,
the appellants were quite vague on the reasons for the urgent
application.
They
do not give the date when the problems began to surface with the
Trustees. They mention that the Trustees had reinstated the
headmaster whom they had suspended even while the suspension order
was extant. Their allegations boiled down to the fact that the
Trustees were interfering with their management of the school yet
they are silent on the dates of occurrences of these problems.
It
appears from the respondents opposing papers that the headmaster was
allegedly reinstated sometime in June 2010.
In
short, the appellants failed to provide in their affidavits
sufficient detail from which the learned Judge could form the opinion
that the matter merited an urgent hearing.
We
do not find any impropriety in the learned Judge's exercise of his
discretion in this regard.
However,
having concluded the matter was not urgent, the proper course would
have been to remove the matter from the roll of urgent matters to
allow the appellants, if so minded, to place the matter before the
High Court on the ordinary roll for determination.
The
order of dismissal was improper in the circumstances.
The
main question faced by a Judge presented with an 'urgent
application' is to decide whether or not to give priority to the
application by dealing with it on an urgent basis. In arriving at a
decision on this issue he or she is called upon to exercise
discretion. Such discretion must be exercised judicially taking into
account the factors urged in favour of, and against, an urgent
hearing.
If,
on perusal of the papers, the Judge comes to the conclusion that the
matter is urgent enough to merit an urgent hearing, then he or she
conducts a hearing and gives such order as he thinks fit.
But
if the conclusion is reached, however, that the matter is not urgent,
he or she must refuse to hear the application and remove it from the
roll, in which event the applicant has the option of enrolling his
matter for hearing on the ordinary roll of court applications.
It
is a contradiction in terms to dismiss a matter on the twin bases
that it is not urgent and that the applicant has no locus
standi for
the latter basis indicates that a decision on the merits of the
application has been made in which event the applicant is barred from
placing the matter on the ordinary roll for determination.
The
effect of the dismissal on the latter basis is that the applicant is
put out of court and is deprived of his right to have the matter
properly ventilated in a court application or trial.
Where,
however, the matter is struck off the roll for lack of urgency, the
applicant, if so advised, may place the matter on the ordinary roll
for hearing.
The
learned Judge, in giving his reasons for finding that the matter was
not urgent, made certain findings of fact which involved the merits.
For
example, he found that the appellants Board was dissolved on July 12,
a fact of which the appellants claim they were unaware, and that the
appellants had not established locus
standi
to act for the Board or to seek the remedy sought in the draft
provisional order.
Those
issues went to the heart of the matter. In proceeding to determine
them and to make those findings of fact, the court misdirected
itself.
LOCUS
STANDI
The
issue of locus
standi
raises a dispute of fact which is capable of resolution by the
production of further evidence by the parties, if so minded.
It
falls to be resolved upon consideration of the merits after all the
evidence which the appellant is entitled, and wishes, to produce has
been placed on record.
The
insufficiency of evidence contained in the founding affidavit is not
in itself fatal to the establishment of locus
standi
since that deficiency can, in given circumstances, be remedied by
further evidence.
Because
of the confused manner in which this application was dealt with by
the court a
quo,
the appellant was deprived of an opportunity to adduce, if it so
wished, evidence which would establish its locus
standi
to bring the application.
RELIEF
SOUGHT
It
was submitted by Mr Mpofu
that if the appeal found favour with this Court then it should grant
the provisional order sought as a remittal would cause hardship to
both parties.
As
stated above, we are not persuaded to interfere with the trial
court's finding on urgency and the issue of locus
standi
has not been resolved on the papers.
This
Court is always reluctant to decide matters at first and last
instance although it is quite possible that it may do so in
exceptional circumstances.
This
is because it is preferable to have the benefit of the reasoning of
the lower court and that way an appellant is not deprived of his
right to appeal and, in the exercise of this right, to place before
this Court for consideration, a different view from that of the court
a
quo.
We
do not, in the circumstances, consider this to be a case where this
court can make the final decision at first and last instance.
COSTS
The
appeal has partially succeeded in that this Court has found that the
order dismissing the application was improper. The appellants are
therefore entitled to their costs of this appeal.
Accordingly
it is ordered as follows:
1.
The appeal succeeds in part.
2.
The judgment of the court a
quo
is altered to read as follows:
“The
matter is not urgent. It is removed from the roll. The applicants
shall pay the costs of this application.”
3.
The respondents shall pay the costs of the appeal.
GARWE
JA:
I agree
HLATSHWAYO
JA:
I agree
Dube,
Manikai & Hwacha,
appellants legal practitioners
Sarotoga
Makausi Law Chambers,
first and second Respondent's legal practitioners
Kantor
and Immerman,
third Respondent's legal practitioners
