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:
- 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.
- 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.
- The unauthorised payment of any money from the school
to the First and Second Respondent and or any of their officers is
unlawful.
- 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.
- The First, Second and Third Respondents are ordered to
pay the costs of this application.
INTERIM RELIEF GRANTED
- 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.
- The Board of Governors of Eaglesvale School and the
School Development Committee shall continue to manage the school and its
finances.
- 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.
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:
- Reinstate Mr. Tirivavi back to his work as the
suspension was unlawful.
- 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,
appellant's legal practitioners
Sarotoga Makausi Law Chambers, first and second Respondent's legal practitioners
Kantor and Immerman, third Respondent's legal practitioners
