Edward Tawanda Madza and Patrick Munyaradzi and John Maseko and Austin Zvoma and Sarah Chiseya and Lucas Taruvinga and Jameson Kugara and Simpson Mandizha and Eaglesvale School Development Committee (High School) and Eaglesvale School Development Committee (Junior School) v The Reformed Church in Zimbabwe Daisyfield Trust and The Reformed Church of Zimbabwe and Naison Tirivavi and The Dutch Reformed Church

### Preamble
1
HH 383-13
HC 6776/13
---------




EDWARD TAWANDA MADZA

and

PATRICK MUNYARADZI

and

JOHN MASEKO

and

AUSTIN ZVOMA

and

SARAH CHISEYA

and

LUCAS TARUVINGA

and

JAMESON KUGARA

and

SIMPSON MANDIZHA

and

EAGLESVALE SCHOOL DEVELOPMENT COMMITTEE

(HIGH SCHOOL)

and

EAGLESVALE SCHOOL DEVELOPMENT COMMITTEE

(JUNIOR SCHOOL)

versus

THE REFORMED CHURCH IN ZIMBABWE

DAISYFIELD TRUST

and

THE REFORMED CHURCH OF ZIMBABWE

and

NAISON TIRIVAVI

and

THE DUTCH REFORMED CHURCH

THE HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE September 5, 2013

UREGENT CHAMBER APPLICATION

S. Hwacha, for the applicants

R. Mukausi & J. Mupoperi, for the 1st & 2nd respondents

R Makamure & N. P. Timba, for 3rd respondent

Van Vuuren, for 4th respondent.

CHITAKUNYE J: On 5 September 2013 I dismissed the above urgent chamber application on preliminary points raised by the respondents. The basis for the dismissal was as follows:-

The applicants approached court with an urgent chamber application seeking an interim order that:-

1. Pending the final determination of this matter, the first and second respondents be

ordered forthwith not to interfere with or involve themselves in any manner in the

administration and or finances of Eaglesvale School.

2 The Board of Governors of Eaglesvale School and the School Development

Committees shall continue to manage the school and its finances.

3 Third respondent be ordered to take instructions concerning the administration and

finances of the School from the Applicants and not from the First and Second

Respondents.

In the founding affidavit applicants alleged that they were bringing the application in both their personal and official capacities. First applicant alleged he was the chairperson of the Board of Governors, second to eighth applicants are all members of the Management Board of governors. Second applicant is also the Deputy Chairperson of the Board, third and eighth applicants are representatives of the School Development Committees. They are also parents and stakeholders of Eaglesvale School. The ninth to tenth applicants are the two School Development Committees representing the High School and the Junior School respectively.

The nature and extent of the application as stated in applicants’ founding affidavit is that this is an application for an order to interdict and bar the First, Second and Third  respondents from unlawfully disrupting the lawful management of the school by the applicants, to bar them from plundering and abusing school money and other assets illegally and, immediately in order to ensure that all school processes and activities including preparations for public and other exams are not disrupted as is happening now ant lately. It is also an application for a substantive declaration that the First and Second Respondents have no authority or power to manage the school and or to determine the Board of Governors, and School Development Committees.

The applicants further alleged that the matter is extremely urgent because the first, second and third respondents are already currently interfering and disrupting the management of the school generally, harassing staff management, the School Development Committees and Board. Recently on or about 15 August 2013 Applicants discovered that the first, second and third respondents are taking money from the school illegally for their personal use. Furthermore on or about 21 August 2013, the applicants learnt that the respondents have declared themselves as executive Board and that they are trying to change the signatories of the school accounts from the current Board to themselves. Unless this court issues an order barring the respondents, the school will continue to suffer prejudice and harm which is irreparable. The conduct of the respondents has affected and is likely to continue to affect the welfare and interests of school children, their parents, teachers and staff. Already, some parents who have been desperately contacting Board members about the issue are threatening to withdraw their children from the school. Other parents are threatening not to pay school fees for the third term unless the plunder and confusion is stopped. All of this immediately threatens financial planning and stability especially now as we approach the third term, which is the exams term and is only about two weeks away. Some teachers at the school have also started to look elsewhere. All these issues make both an interim order and the final determination of this matter extremely urgent.

The first, second and third respondents opposed the application. A representative of fourth respondent attended court without having filed opposing papers purely as a party cited and baffled by the citation when it had no interest in the matter.

The respondents raised three points in limine.  The respondents contended that there was no proper Urgent application before me. The purported application is not in compliance with rule 241 of the High Court rules. That rule provides that:-

“(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed and, except as is provided in sub rule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies.”

In casu Form 29B was not completed. There was a clear lack of the grounds and basis for the application as required by the rules. Instead respondents had to go to the founding affidavit to ascertain the grounds and basis for the application. Faced with the above reality applicants applied for condonation of their non-compliance with the rules in terms of rule 4C. Rule 4C authorises departure from rules and direction where court is satisfied that such departure is required in the interests of justice. Such departure must however be exercised with trepidation lest it be taken as an avenue to condone blatant non-compliance with the rules. After listening to submissions by counsel for the parties I was of the view that the justice of the case required a departure from the rule on this occasion. In that regard I granted the condonation. This is however with a stern warning that such degree of non-compliance should stop. Rules are there to assist parties to litigate and courts to efficiently deal with matters before it. The grounds and basis for the application must thus be clear ex facie.

The next point in limine pertained to the question of locus standi. The respondents contended that 1st to 8th respondents have no locus standi to purport to represent the Board of Governors. The Board they purported to represent and from whose authority they purported to act was dissolved on 11 July 2013 by the Reformed Church of Zimbabwe Daisyfield Trust and an interim Board of Governors put in place. None of them is a member of this new Board. As for 9th and 10th applicants no such Committees exist at the school instead there are Parents and Teachers Associations. In any case such Committees are not legal persona with the power to sue or be sued.

From the submissions made it is common cause that for an individual to represent an organisation or legal entity they ought to have authority from that entity. In casu, 1st to 8th applicants purported to be acting for the Board of Governors as well. It is only proper that such a Board ought to have authorised them to do so. It is not enough to merely state that ‘I am the chairperson or vice chairperson or just a Member of the Board of governors and so by virtue of that I have authority to sue on behalf of the Board’. The applicants ought to have produced the Board resolution empowering them to act on behalf of the Board. It is pertinent to note that the Board of Governors was said to comprise 12 members. If 8 decided to take legal action it is not the Board unless such action has been decided upon by the Board. No such decision by way of resolution or whatever format was tendered or even alluded to as having been made by the Board. Such omission is clearly fatal to the application.

As for 9th and 10th applicants, apart from the assertions by 7th and 8th applicants that they are Members/Chairpersons of the School Development Committees they did not tender or refer to any resolution or decision made by such entities authorising them to sue on behalf of the Committees. As alluded to earlier on being a chairperson of such an entity does not cloth one with authority to sue on behalf of the Committee. There was need for the applicants to refer to specific resolution or constitutive act that empowered them to take legal action on behalf of the Committees.

Another aspect that touches on the aspect of locus standi is the accepted fact that the Board of governors of which the applicants purported to be members of was purportedly dissolved on the 11 July 2013. As from that date 1st to 8th applicants ceased ex facie to be members of that Board. Whether, in their view, such dissolution was unlawful or otherwise is neither here nor there. What is clear is that on that date the Trustees of the school passed a decision to dissolve that Board and replaced it with an interim Board. It is also common cause that as at the date of this hearing the applicants or any former member of that Board had not challenged the decision to dissolve that Board. It must thus be accepted that that Board to which applicants claim membership was dissolved.

The applicants also alluded to the fact that they are also approaching court in their personal capacities, as parents and stakeholders in the school. That would still not assist their cause taking into account the relief they seek. Such mere assertion without disclosing substantial interest is inadequate.

I am thus of the view that applicants have failed to show that they have locus standi especially in light of the relief they seek.

The third point in limine pertained to the issue of urgency. The applicants’ case on the question of urgency was rather vague. In paragraph 7 of the founding affidavit 1st applicant stated, inter alia, that-

“It is the issue of Mr Tirivavi’s suspension and disciplinary case which, inter alia, has highlighted the urgent problems which this application seeks to resolve. Third respondent is an appointee of the applicants as Headmaster.”

If the need to act arose on the suspension and disciplinary of 3rd responded it means the need to act arose in May 2013 when 3rd respondent was suspended or, at the latest, when he was reinstated by Daisyfield Trustees after a disciplinary hearing on 21 June 2013. However in his submissions applicants’ legal practitioner argued that the need to act arose on 15 August 2013 when the applicants discovered that respondents were making withdraws from the school account. That argument is difficult to comprehend in light of accepted facts. It is not denied that 3rd respondent was suspended by the Applicants’ Board of governors in May 2013. Thereafter a disciplinary hearing, to which Members of the Board were invited, was held. 1st applicant did not deny attending such a hearing. It is common cause 3rd respondent was reinstated as Headmaster on 21June 2013 after the hearing. The reinstatement meant 3rd respondent was expected to perform his functions as Headmaster from that date.

It is common cause that on 11 July 2013 1st respondent dissolved the Board of Governors to which the applicants were members. I did not hear the applicants to deny knowledge of this. Dissolution of the Board entailed stripping individuals in that Board of powers they exercised before the dissolution. Upon dissolution the applicants should have taken action to challenge that decision if they felt it was unlawful. They were stripped of the power to govern or manage the School on 11 July 2013 and not on 15 August 2013 when they discovered the withdrawals. It must have been clear to them that whoever was now entrusted with the management of the school would access the school account just as they did during their tenure as Board members.

I am of the view that it is the dissolution of their Board on 11 July 2013 which should have triggered reaction from them, if they had deemed prior acts of reinstating 3rd respondent not worth of taking urgent action.

Having been so dissolved and so stripped of Board of governors powers on 11 July 2013 applicants sat on their laurels and cannot come to court on 21st August alleging urgency. They clearly sat back and let the situation, whose consequences they ought to have realised, unfold without taking action.

In Madzivanzira & Others v Dexprint Investments (pvt) Ltd &Another 2002 (2)ZLR 316 (H) court held that for an application to be treated as urgent, not only must there be the danger of irreparable prejudice if the matter is not dealt with immediately, but also the applicant must himself have treated the matter as one of urgency. See also Kuvarega v Registrar-General & Another 1998(1) ZLR 188 (H)

In casu, the applicants did not treat the matter as urgent at the time the need to act arose. The matter cannot be urgent simply because the consequences of the dissolution of the Board of Governors are now being felt.

It must have been clear that having been dissolved as a Board the applicants no longer had authority to manage the school. When the interim Board of Governors was put in place, which fact applicants did not deny knowledge of, they must have known that the interim Board was there to take over their functions and responsibilities. As already alluded to all this occurred with their knowledge and without any legal challenge.

I am therefore of the view that the application is not urgent at all.

Accordingly having considered all the preliminary points raised the application is hereby dismissed with costs

Dube, Manikai & Hwacha, applicants’ legal practitioners

Saratoga Makausi law Chambers, 1st and 2nd Respondents’ legal practitioners

Kantor & Immerman, 3rd Respondent’s legal practitioners

Van Vuuren, for 4th Respondent