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 Respondents 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 Applicants 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 co-operate 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 mis-managed 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....,.
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.
