Ngungunyana Housing Cooperative Society Limited and Luke Chesango and Morris Chimutwe and Shepherd Ruzive v Registrar of Cooperative Societies N.O

### Preamble
1
HH 560-18
HC 11194/17
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NGUNGUNYANA HOUSING COOPERATIVE

SOCIETY LIMITED

and

LUKE CHESANGO

and

MORRIS CHIMUTWE

and

SHEPHERD RUZIVE

versus

REGISTRAR OF COOPERATIVE SOCIETIES N.O

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 17 September 2018 and 26 September 2018

Opposed Application

H. Chitima, for the applicants

T. Shumba, for the respondent

CHIKOWERO J: I have no doubt at all that this application has merit.

On the 1st of December 2017 applicants filed a chamber application seeking the following relief;

“ IT IS ORDERED THAT:

1. The court application in case number HC 8786/17 be and is hereby dismissed for 	want of prosecution.

2. Respondent shall pay costs of suit.”

What happened is this.

On 1 August 2017 applicants filed a court application for review.

This was under case number HC 6446/17.

There were two respondents in that matter. These were, respectively, the Registrar of Cooperative Societies N.O and the Minister of Small and Medium Enterprises and Cooperative Development N.O.

A certificate of service of the application was filed on 1 August 2017. It certified that service was effected on 14 July 2017 at 14.00 hrs at Liquenda House, Corner Nelson Mandela / First Street Harare, in respect of both respondents. Service was effected on a receptionist employed by the first respondent. The receptionist accepted service in respect of both respondents.

No opposing papers were filed.

The following order was thus granted, in default, on 9 August 2017:

“IT IS ORDERED THAT:

Application be and is hereby granted.

The inquiry made by the 1st respondent into the affairs of the 1st applicant whose findings are contained in a report dated 27 January 2017 be and is hereby set aside.

1st respondent’s suspension of the 1st applicant’s management and supervisory committees 	chaired by Luke Chesango and Shepherd Ruzive respectively be and is hereby held to be unlawful and of no force and is set aside.

The appointment of an administrator by the 1st respondent to administer 1st applicant’s affairs be and is hereby held unlawful and of no force and is set aside.

1st and 2nd respondents shall pay costs of suit on the higher scale.”

On 22 September 2017, under case number HC 8786/17, the Registrar of Cooperatives N.O filed a court application for rescission of the aforesaid default judgment.

Opposing papers were duly filed on the 6th October 2017. Service of the same was effected on the same date as demonstrated by the certificate of service filed of record on 11 October 2017.

Thereafter there was inaction on the part of the Registrar of Cooperatives N.O.

Put simply, he did not prosecute his application for rescission of default judgment. He neither filed an answering affidavit nor heads of argument.

In that matter, as in the present, he is represented by the Civil Division of the Attorney General’s Office.

The inaction triggered the applicants to institute this application.

It is an application for dismissal for want of prosecution.

The relevant legal provision is r 236 (3) (b) of the High Court Rules 1971. It reads:

“Where the respondent has filed a notice of opposition and an opposing affidavit and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent on notice to the applicant, may either…

…

make  a chamber application to dismiss the matter for want of prosecution and the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.”

The factors to consider in exercising the discretion vested in me by this rule are set out in Guardforce Investments (Pvt) Ltd v Sibongile Ndlovu & 2 Others SC 24/16.

I examine this application in light of each of those principles.

The length of the delay and the explanation thereof

In the opposing papers filed on 14 December 2017, the respondent’s legal practitioners state that the application for dismissal was served on them on 1 December 2017.

The one month period to either file an answering affidavit or to set down the matter for hearing had expired when the present application was filed and served on 1 December 2018.

That is a breach of the rules of court.

There was another breach. The matter was argued on 17 September 2018. Still no answering affidavit had been filed in the main matter. That matter had not been set down for hearing.

Respondent’s counsel said the previous legal practitioner handling the main matter, on secondment to the Civil Division of the Attorney General’s Office, had been abruptly recalled to the Zimbabwe Republic Police.

The date when Ms Magunde was recalled is not given. No supporting affidavit from her was placed before the court.

The file was not reallocated to anybody else.

It was only reallocated to present counsel on service of the application for dismissal.

Despite the inadequacies therein, I am prepared to accept the explanation for the inaction by the respondent between the period 6 October 2017 to 1 December 2017.

I have already found there was inordinate delay. This relates to the period 1 December 2017 to 17 September 2018.

The reason for not prosecuting the main matter post 1 December 2017 is unreasonable. Mr Shumba, seized with the main matter since 1 December 2017, did completely nothing to demonstrate any intention, desire or zeal by the respondent to prosecute that mater.

His explanation at the hearing that respondent was waiting for disposal of the present matter so that, if the decision is in favour of the respondent, prosecution of the main matter could then be resumed is not only contrary to law but is a clear indication of respondent’s disinclination to pursue the main matter to finality.

Prospects of success

In my view, the application for rescission of default judgment has completely no prospects of success.

I perceive the respondent to have been in wilful default.

I painstakingly went through both reference files to this matter.

The respondent’s assertion that copy of the court application for review was not served on him because his address for service was Chiedza House in Harare and not Liquenda House is, in my view, unmeritorious.

Attached to the papers opposing the application for rescission of default judgment are a total of five letters between the respondent and the applicants reflecting the respondent’s physical address as Liquenda House.

In fact, the applicant’s legal practitioners at the time, Mangwana and Partners, weighed in with correspondence of their own. In all the correspondence, however, the respondent’s physical address screamed “Liquenda House 58 Nelson Mandela Avenue, Harare”. Correspondence that emanated from the respondent was by the “Registrar of Cooperatives”. That is respondent.

The letters preceded the filing of the application for review.

No evidence is attached to the founding affidavit in the court application for review to substantiate the respondent’s allegation that the respondent was housed at Chiedza House Corner First Street and Kwame Nkrumah Avenue, Harare at the time that copy of the court application for review was served, and accepted, on behalf of the respondent at Liquenda House.

The Minister did not apply for rescission of judgment. The person who accepted service of the application for review on behalf of the then two respondents did not depose to an affidavit explaining what she did with that court process after receipt thereof.

Tabani Shoko, the Registrar of Cooperatives and the respondent herein, claimed that only the Minister was served with copy of the court application for review. He goes further to allege that even that service was “defective”. He does not explain what that means. Tabani Shoko is not the receptionist on whom service was effected, and accepted, on behalf of the Minister and himself.

On the merits, the application for rescission of judgment is, as I see it, doomed to failure.

It is not correct that the first applicant was running without a register of members. A membership register is attached to the papers opposing the relief sought in the main matter.

Secondly, By Law 50 (1) of the first applicant’s By-Laws permitted, as was done, the keeping of its funds in the trust account of Mangwana and Partners.

It reads:

“Except where the Society’s banking is done with a cooperative union of which it is a 	member or where the society funds are kept in trust with its designated lawyers, the society 	shall maintain a bank account or accounts with one or more recognised commercial banks.”

Further, this court in the matter of Ngungunyana Limited v Minister of Small Medium Enterprises Developments N.O, Registrar of co-operative societies N.O and Dominic Muzavazi HH 276/16 made a finding that the Management Committee headed by second applicant was lawfully elected into office.

Copy of that judgment is attached to the papers opposing the application for rescission of judgment.

Also attached to the same opposing papers are copies of minutes of first applicant’s Annual General Meeting of 27 November 2016 proving that elections were held in respect of the current members of both the management and Supervisory Committees. In these circumstances I do not see how the argument that second to fourth applicants have been unlawfully in office since 2013 can assist the respondent.  Minutes were filed showing their re-election.  No provision of the Co-operative Societies Act [Chapter 24:05] (‘’The Act’’) prohibits that.

It also is pertinent to note that copy of a petition of the first applicant’s members was attached to the opposing affidavit in the application for rescission of judgment.  In that petition the members come out loud and clear that:

“We the undersigned, fully paid up members of Ngungunyana Housing Co-operative Society Limited, do hereby state and confirm that we are in support of our management and supervisory committees led by Luke Chesango and Shepherd Ruzive respectively. We are satisfied with the progress of development in the co-operative. We have not raised any complaints in the manner in which the co-operative is being run and we are not in support of the appointment of an Administrator by the Registrar of Co-operatives.”

The petition is dated 15 May 2017.

In the circumstances, I am with the applicants when they say non-members, rather than members of the first applicant, were consulted by respondent in enquiring into the affairs of the first applicant and coming up with the decisions invalidated by this court on 9 August 2017.

Finally, s 26 of the High Court Act [Chapter 7:06] is a sound legal basis for applicants’ approach to this court to review the enquiry by and decision of the respondent.  It reads:

“26.  Power to review proceedings and decisions

Subject to this Act and any other law, the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”

I was not referred to any other law ousting this court’s power, jurisdiction and authority to review the respondent’s proceedings and decisions.  I have not found any.

Clearly therefore, I am unable to give an order relating to set down of the main matter.

This is because I hold that matter to be devoid of prospects of success.

Whether the applicants will suffer any prejudice

If I dismiss this application I would have consigned applicants to defending unnecessary and costly litigation to achieve the same result that I am able to deliver now.

It would be grossly unjust were I to withhold relief from the applicants.

The balance of convenience is in their favour.

I have seen an internal memorandum dated 16 November 2015. It was authored by the City of Harare’s City Planner, Engineer M.P. Moyo.

It was addressed to the City’s Projects and Planning Manager.

It is a recommendation that a certificate of compliance be issued to the first applicant.

After listing the stands in the first applicant’s portfolio it concludes with these words:

“Please be advised that the above mentioned development has complied with the condition 	regarding the installation of water and sewer reticulation infrastructure.

All stages were inspected to the satisfaction of my team. I therefore recommend that a 	certificate of compliance be issued.”

A parallel development certificate was issued to first applicant by the Director of Works City of Harare, on 24 July 2017.

It reads in part:

“I hereby certify that the above mentioned stands are now connected to municipal 	water and sewerage reticulation. Roads have been constructed to subgrade level.

In line with council policy, I hereby grant your cooperative parallel development 	certificate 	and advise you to submit core house building plans for approval subject to the following 	conditions…”

This letter was addressed to the Chairperson of the Cooperative. That is the second applicant. It and the recommendation are documentary evidence tendered in opposition to the application for rescission of judgment.

I exercise my discretion against disrupting these developments. They are being spearheaded by the second, third and fourth applicants. I therefore refrain from throwing spanners in the works.

The application succeeds.

I order as follows:

The court application in case number HC 8786/17 be and is hereby dismissed for want of prosecution.

The respondent shall pay the applicants’ costs.

Mutandiro, Chitsanga and Chitima, applicants’ legal practitioners

Civil Division of the Attorney General’s Office, respondent’s legal practitioners