Nenyasha Housing Cooperative v John Chikandiwa and Joseph Chigaramashizha and Madhovi Fungayi and Saunyama Henry and Sheiby Maponga and Emmanuel Makase

### Preamble
1
HH 82-18
HC 12113/16
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NENYASHA HOUSING COOPERATIVE

versus

JOHN CHIKANDIWA

and

JOSEPH CHIGARAMASHIZHA

and

MADHOVI FUNGAYI

and

SAUNYAMA HENRY

and

SHEIBY MAPONGA

and

EMMANUEL MAKASE

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 15 January and 14 February 2018

Opposed Matter

S Gutsa, for the applicant

N B Munyuru, for the respondents

TAGU J: This is an application for an interdict as against the respondents. The order being sought by the applicant being that:

The respondents be and are hereby interdicted, restrained and prohibited from interfering with the applicant’s operations and activities at the Glaudina project site in any manner.

In particular that respondents be restrained and prohibited from holding themselves out as the applicant’s representatives, to applicant’s members, service providers, development partners and the world at large.

The respondents be prohibited from convening any member’s meetings without leave of the management committee, and

Respondents pay costs of suit.

In its founding affidavit deposed to by the Chairperson of the applicant‘s Management Committee one NGOSHI AMOS the applicant averred that it is a duly registered Co-operative Society and owner of a piece of land called Lot 1 of subdivision A of Merwede of Glaudina, otherwise called Lot 1 of Glaudina, which it allocated to its members and is developing for the benefit of its members. It bought the said land in August 2012 from one BRUCE ROWAN GRANT. It averred that the first respondent is not a member of the applicant but was invited by the applicant to act in an ex officio capacity as a co-signatory of the applicant’s account, before accounts of the applicant were transferred and merged with those of a developer SHIANXI CORPORATION (PVT) LTD engaged by the applicant in June 2016. It further conceded that the second and third respondents are indeed members of the applicant. As to the fourth, fifth and sixth respondents the applicant submitted that these are neither members of the applicant nor buyers of the applicant’s land but are spouses of the members of the applicant. Finally it submitted that all the respondents hold no administrative posts within the applicant.

In brief the reason why this application was brought to court is that all along the administration of the project had been running smoothly with the applicant having engaged a construction company SHIANXI CORPORATION (PVT) LTD to spearhead development of the roads and sewer network and complete the servicing of stands by July 2017. However, the respondents who are defaulters led by the first respondent who seems bitter over the loss of his account signatory position following the engagement of the developer, ganged up to stall progress on the project site and cause chaos. In a coup-style the respondents declared themselves the residents’ representatives and have called unsanctioned members meetings on the 13th and 20th of November at the project site and have despite efforts to engage them by management committee vowed to continue with their meetings. By force they threatened the few members who attended to tow their line and passed a resolution to stop developments by the engaged construction company. They further directed members to stop payment of development subscriptions to the construction company and channeled them to the applicant’s previous account to which the first respondent was a signatory. They became hostile to the construction company’s workers and stopped them from trenching to enable the laying of water and sewer pipes by the developer hence stalling the progress of the project. For these and other acts the applicant wants the respondents to be interdicted.

In their notice of opposition the respondents admitted among other things that the applicant indeed is the owner or the piece of land in question but averred that the management committee is in breach of the by-laws and the governing Act in that it had not performed its duties as outlined therein. They alleged embezzlement of the funds by the deponent and the committee. They denied declaring themselves residents’ representatives but that they appointed a committee to petition the management committee to address their grievances. They in a nutshell denied that they have stalled the progress of the project nor cause chaos.

The respondents took a point in limine that this court has no jurisdiction over the matter and said the applicant should have complied with the specific provisions of s 115 of the Co-operative Societies Act [Chapter 24. 05] which clearly provides that any disputes between the applicant and the members should be referred to the Registrar of the Co-operatives for arbitration before referred to the Ministry of Small to Medium Enterprises.

At the hearing of the matter the applicant conceded that the second and third respondents are indeed members of the applicant hence dropped claims against them since their conditions are governed by s 115 of the Co-operative Societies Act. As to first, fourth and fifth and sixth respondents the applicant maintained that these are not members of the applicant but spouses of the members hence insisted on its claim.

Section 115 of the Co-operative Societies Act [Chapter 24.05] provides among other things that:

“If any dispute concerning the business of a registered society arises-

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

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.”

By definition “Registrar” means the Registrar of Co-operative Societies referred to in section four or any other person who performs any function of the Registrar that has been delegated or assigned to him in terms of section one hundred and twenty-one;”

It follows therefore that any dispute between members of a Co-operative or between Co-operatives must first be referred to the Registrar of Co-operatives. In the present case the applicant is a registered Housing Co-operative. The dispute between the applicant and the second and third respondents is therefore a dispute that must be referred to the Registrar for resolution. The applicant conceded that the second and third respondents are members of the Co-operative. This court therefore has no jurisdiction to hear the matter at this stage. The concession made by the applicant is therefore properly made. The application is therefore withdrawn at this stage in respect of the second and third respondents only. The point in limine is therefore partially upheld. I will deal with the issue of costs later in my judgment.

As regards the first, fourth, fifth and sixth respondents the applicant maintained that they are not members of the applicant. I therefore need to examine their status further.

In its founding affidavit the applicant submitted that the first respondent though not a member was invited by applicant to act in an ex officio capacity as a co-signatory of the applicant’s account.

In his opposing affidavit the first respondent did not dispute the fact that he is not a member of the applicant’s Housing Co-operative. He did not state the capacity in which he is acting other than that he is the first respondent. The other respondents filed supporting affidavits to the averments made by the first respondent. None of them averred that indeed the first respondent is and was a member of the Housing Co-operative. In my view that which has not been disputed is taken to have been admitted. I am therefore convinced beyond doubt that the first respondent was and is not a member of Nenyasha Housing Co-operative. It automatically follows that the provisions of section 115 of the Co-operative Societies Act do not apply to the first respondent. The court therefore has jurisdiction to deal with this matter as against the first respondent. The point in limine is therefore dismissed vis –a- vis the first respondent. Again I will deal with the issue of costs later.

In respect of the fourth, fifth and sixth respondents the applicant submitted that these are not members of the applicant but are spouses of the members of the applicant. Again the main opposing affidavit and the supporting affidavits filed by the first, fourth, fifth and sixth respondents do not dispute the fact that the fourth, fifth and sixth respondents are not members of the applicant. They did not even state their status in the applicant other than that they adopt the opposing affidavit filed by the first respondent as if specifically pleaded by them. It was very important that they should have dealt with the averments made by the applicant in its founding affidavit that they are not members but spouses of the applicant’s members. They did not aver that their spouses are now deceased and that they are representing or acting on behalf the applicant’s deceased members. A look at Nenyasha Housing Co-operative Society Limited’s membership Register (09/16) which is an Annexure “F” attached to the applicant’s answering affidavit does not contain the names of the first, fourth, fifth and sixth respondents.  For that reason I am not convinced that they are members of the applicant’s Housing Co-operative. As a result the provisions of s 115 of the Co-operative Societies Act do not apply to them. This court has inherent jurisdiction to hear this matter against the fourth, fifth and sixth respondents as well. I therefore dismiss the point in limine in respect of the fourth, fifth and sixth respondents. As I said earlier I will deal with the issue of costs later.

AD MERITS

This is an application for an interdict against the first, fourth, fifth and sixth respondents. For an interdict to be granted by the court the applicant must establish that:

there is a prima facie right,

a well-grounded apprehension of fear of injury which is irreparable; and

that there must be no ordinary remedy which can protect the applicant other than an interdict.

See Econet Wireless Holdings v Minister of Information 2001(1) ZLR 373 at 374B, Choruma Blasting and Earth Moving v Njanji 2000 (1) ZLR 85 at 89 and Harland Brothers (Pvt) Ltd v Raymond Finaughty & Ors HH-6-10.

A perusal of the papers filed of record shows that the applicant meets all the requirements set above. I say so because the respondents in their opposing papers and submissions conceded to the fact that they called for and are continuing calling for unsanctioned meetings at applicant’s project site. This is confirmed by Annexure “A” which are copies of minutes of meetings called by them. They have admitted that there is a management committee of the applicant in existence and as I showed above they are not members of the applicant let alone they do not hold any administrative posts in the applicant’s management committee.

The respondents contend that this application is meant to silence them from querying the management style by the applicant’s management committee. In my view being non-members of the applicant the respondents have no business querying how the applicant is being administered. They have no right to interfere in the affairs of the applicant or with the applicant’s exercise or right to service its land and contract a developer of its choice, them being non-members or are mere spouses of members of the applicant. Not only are they meddling with administration of the applicant’s affairs, but are interfering with the applicant’s contractor. If the respondents are not stopped the applicant risks facing lawsuits of breach of contract from the developer. There is therefore no other remedy available to the applicant other than an interdict.

AD COSTS

In my view the respondents won in respect of the second and third respondents after the applicant conceded that it should not have brought this application against the second and third respondents as this violated the provisions of s 115 of The Co-operative Societies Act. Since the applicant made a concession on its own volition and withdrew the application against the second and third respondents, though belatedly, there is no reason to saddle the applicants with costs on a higher scale. In respect of the second and third respondent each party would bear its own costs.

In respect of the first, fourth, fifth and sixth respondents, the applicants were put into unnecessary expenses since these respondents had no locus standi to meddle in the affairs of the applicant and should not have persisted with their opposition since they are not members of the applicant’s Housing Co-operative. For that reason the applicants were unnecessarily put out of pocket and the first, fourth, fifth and sixth respondents must be visited with costs on a higher scale.

IT IS ORDERED THAT:

The application against the 2nd and 3rd Respondents be and is hereby dismissed and each party to bear its own costs.

The 1st, 4th, 5th and 6th Respondents be and are hereby interdicted, restrained and prohibited from interfering with the Applicant’s operations and activities at the Glaudina project site in any manner.

In particular that the 1st, 4th, 5th and 6th Respondents be and are hereby restrained and prohibited from holding themselves out as the Applicant’s representatives, to applicant’s members, service providers, development partners and the world at large.

The 1st, 4th, 5th and 6th Respondent be and are hereby prohibited from convening any member’s meetings without leave of the management committee of the Applicant.

1st, 4th, 5th and 6th Respondents shall pay costs of suit on a legal practitioner and client scale.

Gutsa & Chimhoga Attorneys, applicant’s legal practitioners

Muvingi & Mugadza, respondents’ legal practitioners