Sally Mugabe Heights Housing Cooperative v Bigboy Stowa Ngwenya & 6 Ors

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SALLY MUGABE HEIGHTS HOUSING COOPERATIVE
versus
BIGBOY STOWA NGWENYA
and
SIMBARASHE MUSHAYI
and
NEVER SANDAKO
and
SERVIOUS PAWAKARAMBA
and
NYASHA CHIVAVIRO
and
RICHARD ZAKARIA
and
MARY MADYAMBUDZI


HIGH COURT OF ZIMBABWE
CHIGUMBA J
HARARE, 7 November 2016, 8 February 2017




Civil Trial



C. W. Gumiro, for plaintiff
G. T. Mharapara, for defendant

       CHIGUMBA J: The plaintiff is a duly registered housing co-operative. The defendants
are all occupying the plaintiff’s administration block at Acorn Farm in Harare. The plaintiff
issued summons against the defendants on 18 December 2014, for an order that they vacate its
administration block. The basis of the plaintiffs claim is an offer letter for the servicing and
development of residential stands for the benefit of its members. An administration block was
built in order to provide offices for the plaintiff’s management committee. The seven defendants
are all former members of plaintiff’s original management committee who have refused to vacate
the administration office block without any lawful right, authority or the consent of the plaintiff.
The defendants entered notice of appearance to defend on 6 February 2015.
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       They filed a plea on 24 March 2015, in terms of which they challenged the plaintiff’s
authority to institute legal proceedings against them. They averred that they constitute the
plaintiff’s legitimate management committee. They averred that;- the matter had been struck off
the roll at the Administrative Court for the reason that domestic remedies had to be exhausted,
this action was premature, the building in question did not belong to the plaintiff but to the
Group of Eight Holdings Private Limited [98] which used it initially for a poultry project, the
building was used as a point of sale for chickens and eggs. On 28 July 2015, the matter was
referred to trial on the following issues;-
       1. Whether the plaintiff is authorized to institute these proceedings.
       2. Whether the building in question is owned by the plaintiff or by the Group of Eight
           Holdings Private Limited.
       3. Whether the defendants should be evicted from the building in question.


       At the hearing of the matter, the plaintiff withdrew its claim against the fourth defendant
Servious Pawakaramba, because he is now deceased. The plaintiff opened its case by calling Ms
Eva Mtisi, one of its members who resides at stand 80, and its current chairperson. She produced
plaintiff’s certificate of registration as a cooperative, dated 2001. She stated that;- the
administration block occupies 400 square metres and that this is where the defendants started
operating from when the plaintiff was initially set up, after being issued with an offer letter
which forms part of the record on 7 January 2005.
         The plaintiff initially poured foundations for eight houses, and managed to build one to
completion from the monthly subscriptions of its members. The first house was supposed to be a
model or demonstration house. The plaintiff’s members rejected it because the plan was wrong,
the kitchen faced the toilet. It was also agreed that the size of the stands be reduced to 200 square
metres instead of 400. It was agreed that the 8 slabs would be used as temporary structures after
they had been built using monthly subscription contributions from the plaintiff’s members. After
the eight houses were built the defendants took them over, claiming that the houses belonged to
them. The company mentioned by the defendants [98] comprises of all of them because the 8 of
them occupied the farm during the land reform programme. The eight defendants refused to
handover control of the cooperative after being removed from the management committee by a
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vote of no confidence in terms of the law that governs cooperatives. Letters were written to the
parent ministry to advise them of these developments (rp10, 12, 17-18). An Annual General
Meeting was held on the advice of the parent ministry.
           An audit finance report was tabled at this meeting and the defendants were removed
from the management committee (rp19-23). New office bearers were duly elected, in the
presence of officials from the parent ministry. The defendants approached the Administrative
Court seeking to challenge their ouster and the election of new office bearers. Officials from the
parent Ministry wrote a letter to Borrowdale Police Station advising of the appointment of a new
Chairperson of the plaintiff (rp25-26) on 14 October 2015.The current committee was
subsequently recognized by the Administrative Court (rp28). Its judgment is at rp29-30.The
defendants appealed against the finding of the Administrative Court. The judgment was
rescinded and the matter set down again but struck off the roll (rp31). Parallel structures now
exist at the plaintiff’s offices, with defendants harassing plaintiff’s members and fleecing
members of the public in the name of the plaintiff, as well as purporting to allocate stands
without any lawful authority to do so.
       During cross examination the witness told the court that she was not among the group of
people who originally invaded the farm. She insisted that she was a member of the plaintiff from
its inception and she produced receipts to show that she has and still is making monthly
contributions. She denied any knowledge of a lease which had been issued to the Group of 8
Holding Company for the same piece of land that had vested in the plaintiff through the offer
letter. She told the court that the plaintiff has a register of its members, a file of the minutes of
its meetings and a record of all of its resolutions. She told the court that the Ministry of Local
Government was supposed to issue them with title deeds when they had completed the
developing of the residential stands. She said that if the defendants had been given a lease by the
Ministry of Local Government their offer letter took precedence.
     The plaintiff’s second witness was Caroline Dare, another member of the cooperative, from
2001 to date. She told the court that;- she resides in the administration block which is the subject
of these proceedings. She was allocated that house by Daniel Mavaka when he was still
plaintiff’s Chairperson. He died in 2005. She left the administration block for a two year period,
then went back there in 2008 and has resided there up to now. The plaintiff owns the
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administration block and she resides there temporarily while her house is under construction. She
has never been asked to pay rent or to leave by the Group of Eight Company. During cross
examination the witness told the court that as a member of the cooperative they paid construction
and administration subscriptions which were used to construct what is now known as the
administration block, which belongs to the plaintiff and not to individual members or any other
company. The plaintiff was the one which used to run a poultry project from the administration
block. She has never heard of a lease given to the Group 8 Company. The plaintiff closed its
case.
        The defendant called Richard Zakaria as its witness. He told the court that;-he resides at
number 184 Sally Mugabe Heights. In the year 2000 a group of war veterans from Harare East
resolved to invade Acorn Farm during the land reform period. They raised money from well-
wishers to start farming activities. They built temporary structures which are now being called
the administration block. They ran a poultry project from these temporary structures. Their
chicken coops were destroyed in 2005 as being unsuitable in an urban area. The administration
block was built when a lease was issued to the Group of 8 Holdings (G8) consisting of war
veterans, by the Ministry of Local Government, in 2005 rezoning part of Acorn Farm as
commercial premises. G8 paid a sum of USD$1 344-00 to the Ministry. The administration
block was built before the cooperative was formed. The issue is currently being handled by the
Ministry of Cooperatives.
          During cross examination the witness told the court that;-the Ministry of Small and
Medium Enterprises which oversees cooperatives was seized with the dispute between the parties
and was in the process of resolving it. The administration block was built in 2001 and that the
plaintiff had been incorporated by then. He collected money from the plaintiff’s members. In
2005 the plaintiff resolved to construct the administration block as evidenced by the minutes
filed of record. The administration block is situated on the land allocated to G8 as part of its
lease of commercial premises. He is currently paying subscription fees to the plaintiff. He had no
proof that the G8 paid for the lease issued to them by the Ministry of Local Government. In
closing submissions it was submitted on behalf of the defendant that the plaintiff does not have
the requisite authority or mandate to institute these proceedings, that the stand in question was
now held in terms of a permit with an approved layout plan, the plaintiffs offer letter had been
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overtaken by events, and that the G8 are the rightful beneficiaries to the piece of land in
question.
         This matter was referred to trial to determine the plaintiff’s locus standi in judicio to bring
these proceedings, the ownership of the administration block, and the question of whether the
plaintiffs are entitled to evict the defendants from it. The issue that arises for determination in my
view is whether, the parties, all card carrying and fully paid up members of the plaintiff, can
evict each other from the administration block and not provide each other with alternative fully
constructed houses in line with the objectives of their cooperative? It is common cause that the
plaintiff is a duly registered cooperative which is regulated by the Ministry of Medium and Small
Enterprises. It is common cause that on 19 February 2011 a vote of no confidence was passed
against the management committee that was running the affairs of the plaintiff, and that a new
management committee was elected into place. The court accepts that the evidence favors the
conclusion that Ever Mtisi was elected to chair the new management committee in 2012. The
relevant Ministry clearly accepted her election into office as plaintiff’s chairperson. The court
accepts that, there is no pending challenge to that witness’s election which is currently pending
before any court, the application for review having been struck off the roll by the Administrative
Court.
           The defendants are obliged to accept the new management committee as the governing
committee until such time as it is voted out of office in accordance with plaintiff’s constitution,
or their appointment is lawfully set aside. It is trite that citizens are obliged to obey the law then
argue afterwards. See Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for
Information and Publicity & Anor1. The court accepts that the current management committee of
the plaintiff, led by Mtisi has the requisite locus standi in judicio to institute these proceedings,
on the basis of the power conferred on it by s 57 Cooperative Societies Act [Chapter 24:03], to
administer the affairs of the cooperative.
            Turning to the merits of the matter it is common cause that;-on 15 November 2001 the
plaintiff was duly registered as a cooperative, at this time, the plaintiff’s members were in
occupation of Acorn Farm, an offer letter was issued to the plaintiff on the 7 th of January 2005,
on 15 January 2005 the director of physical planning issued the plaintiff with a layout plan,

1
    2004 (1) ZLR 538 (S) @ 548 B-C
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which was subsequently amended on 20 April 2008. It is trite that an offer letter is a contractual
agreement. See Masunda v Minister of State for Land & Anor2. The terms and conditions of such
a letter cannot be unilaterally altered without due process as set out in the Land Acquisition Act.
The terms of the offer letter clearly were that Acorn Farm be developed for the benefit of the
plaintiff’s members. It is common cause that the G8 is not a member of the plaintiff. It is trite
that an offer letter is issued in respect to agricultural land only. See Vodage Investments (Pvt) Ltd
v Toro & Ors 3. The land in question is under Goromonzi Rural District Council. In order for the
council to have properly issued a development permit for commercial purposes for this land, the
use of the land would have had to be gazetted as urban instead of agricultural. Agricultural land
is alienated by the Ministry of Lands, not by the Ministry of Local Government whose mandate
is over urban land.
        The court accepts that Goromonzi Rural District Council purported to issue some sort of
permit to the G8. It has no lawful authority to issue such a permit as long the land is designated
as agricultural and held in terms of an offer letter issued to the plaintiff by the Ministry of lands.
See Dusabe & Anor v City of Harare & Ors, Adore Gold Private Limited v Ministry of Lands
and 2 Ors4. The court finds that in terms of the Rural District Councils Act [Chapter 29:13], a
rural district Council cannot issue a sub divisional permit in respect of agricultural land which is
held in terms of an offer letter which has not been set aside in respect of the land that is subject
to the lease or permit issued. Goromonzi Rural District Council’s lease or permit is null and void
ab initio. It cannot protect the defendants, as directors of G8 from eviction because it is a nullity.
      It follows that the evidence supports the probability, with a reasonable degree of certainty,
that the plaintiff is the lawful holder of Acorn farm in terms of a valid offer letter which has not
been cancelled or set aside in terms of the Land Acquisition Act. It is more probable than not,
that the administration block was constructed using subscriptions from plaintiff’s members. It
belongs to the plaintiff, and the plaintiff is entitled to evict the G8 from it. What is giving the
court pause, is the question of whether the plaintiff can evict the defendants if they are its current
card carrying fully paid up members, without allocating them their houses which they are
entitled to. The plaintiff can certainly evict the G8 from the administration block, but not its fully
2
  2006 (2) ZLR 72 (H)
3
  2015 (1) ZLR 509 (H)
4
  HH 44-14
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paid up members, without providing them with alternative accommodation or issuing them with
their houses which they are entitled to as its members. The plaintiff’s claim is allowed, with
costs. In the result, it be and is hereby ordered that;-
    1. The Group of Eight Holding Company Private Limited be and hereby evicted from the
        administration block at Acorn Farm, forthwith.
    2. The Group of Eight Holding Company Private Limited shall pay the costs of suit,
        together with the defendants, jointly and severally, the one paying the others to be
        absolved.
    3. The defendants be and are hereby evicted from the administration block at Acorn Farm,
        forthwith, provided that those defendants who are fully subscribed members of the
        plaintiff shall be allocated suitable alternative houses by the plaintiff, within Acorn farm
        on the date of the eviction.




Ngarava, Moyo & Chikono, plaintiff’s legal practitioners
Mtombeni, Mkwesha, Muzawazi, & Associates, defendants’ legal practitioners