Joseph Pangani Kugara v Zimbabwe Minerals Federation & 2 Ors

### Preamble
1
HCMSC 89-24
HMA 36-25
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JOSEPH PANGANI KUGARA

vs

ZIMBABWE MINERALS FEDERATION

And

HENRIETTA BEATRICE KUGARA

And

MINISTER OF MINES & MINING DEVELOPMENT

HIGH COURT OF ZIMBABWE

ZISENGWE J

MASVINGO 2 June 2025

Judgment delivered on 4 November 2025

A S Madzima; for the applicant

V. Chirove; for the first and second respondents

Opposed application

ZISENGWE J:  	At the heart of this application is the question of the legitimacy of the second Respondent, Henrietta Beatrice Rushwaya to continue serving as President of Zimbabwe Miners Federation (the first respondent).  When stripped to its lowest terms, the applicant’s contention is that the second respondent’s continued incumbency of that position offends certain provisions of the constitution of the first respondent.  In particular, he avers that by dint of her criminal conviction on smuggling charges the second respondent was automatically disqualified from occupying that position.  The applicant who holds himself up as a member of an affiliate organisation of the first respondent seeks an order for her removal to pave way for fresh elections to fill that position.  The prayer sought reads;

IT IS ORDERED THAT:

The continued tenure of the second respondent as President of the first respondent following her conviction for violating section 182 (1) (a) of the Customs and Excise Control Act [Chapter 23:02] be and is hereby declared to be ultra vires the first respondent’s Constitution.

Consequently, it is hereby declared that the second respondent ceases to hold the office of President of the first respondent.

Consequently, the first respondent’s remaining members of the National Executive are hereby mandated to elect an eligible candidate to fill the vacancy within 30 days of this order and in the interim the first respondent’s presidency until a substantive President is elected.

The second respondent shall pay costs of this application on an attorney and client scale.

The application is resisted by the first respondent. The second respondent however did not file any opposing papers.  Her efforts to belatedly join the fray were in vain. The thrust of the first respondent’s opposition to the application is twofold.  Firstly, it disowns and distances itself from the constitution relied upon by the applicant to anchor his case.  Secondly, it disowns the very organisation to which the applicant purports to belong, i.e., the Kwekwe Miners Association. It is averred that subject to certain conditions the new constitution governing the affairs of the first respondent allows an executive member who finds himself or herself in the position of the second can retain such position notwithstanding his or her conviction.

However, in addition to resisting the application on the merits the respondent raised two points in limine namely that the applicant lacks the requisite locus standi to institute these proceedings. Secondly that the applicant itself is beset with serious falsehoods.

In his answering affidavit, the application reacted by in kind by raising preliminary objections of his own.  These may be summarized as follows: that the notice of opposition and opposing affidavit by the first respondent are contrived and fictitious as they are not backed by the requisite documentary evidence.  Secondly, that the second respondent who is at the centre of the dispute did not file any opposing affidavit and as such is barred despite first applicant’s endeavour to clothe the notice of opposition as one for both first and second respondents. Thirdly, that there is no instrument demonstrating that the deponent to the second respondent’s opposing affidavit was duly authorised to file such opposing papers on behalf of either the first or second respondents.

He also addressed the respondents’ points in limine.

The background facts

It is common cause that the second respondent is the current President of the first respondent having been so appointed in 2021. The latter was described in the opposing affidavit deposed to by its secretary General Morgan Mugawu as a: “non-profit association of small-scale miners whose main objective is to lobby for various issues and relating to small scale miners.”  Further it is averred on its behalf that it derives its membership from a wide spectrum of the society including individuals, associations, syndicates, unions and organizations which subscribes to its objectives.

The applicant on the other hand is an individual who claims to be a member of an entity known as the Kwekwe Mining Association, itself professedly an associate member of the first respondent.

It is a common cause that on 26 October 2020, the second respondent was arrested on charges of attempting to smuggle out of the country, six kilograms of gold i.e., contravening section 182 (1) (a) of the Customs Excise Act [Chapter 23:02]. The value of the gold was about US$ 360 000.  She was eventually convicted in the wake of a contested trial and sentenced to pay a fine of US$ 5 000 or in default of payment 12 months’ imprisonment.

The application is anchored on certain clauses of what the applicant claims to be the first respondent’s constitution.  In a word he avers that by virtue of her conviction the second respondent must relinquish her position as President of the first respondent.  He specifically relies on Articles 12.1.2,12.1.3, and 18.3 of the first respondents’ constitution.  He clarifies the position as follows in paragraphs l to o of his founding affidavit, thus:

l. The 2nd Respondent’s continued tenure of office post her conviction and sentence is in direct contravention of the 1st Respondent’s constitution.

m. In terms of article 12.1.2 of the constitution, a member who engages in competition with the 1st Respondent or is involved in acts of illegal or fraudulent nature or acts in a manner that brings the name of the 1st Respondent into disrepute must have their membership terminated upon recommendations to the General Council by the National Executive.

n. Furthermore, in terms of article 12.1.3, a member who generally fails to abide by and observe the provisions of the constitution must have their membership terminated.

o. In addition, in terms of article 18.3 of the constitution of the 1st Respondent, a National Executive member convicted of a criminal offence shall also cease to be a member of the National Executive.

He also attached newspaper articles from this jurisdiction and beyond depicting the widespread reportage of the scandal of the second respondent’s arrest and conviction.

According to the first respondent, however, the constitution relied upon by the applicant is not the final draft circulated to the affiliate members.  An elaborate explanation was provided of the key stages in the process of amending the first respondent’s constitution which commenced in January 2020.  It is further averred in this regard that only paid up members were furnished with the final constitution which incorporated certain key amendments and the Kwekwe Miners Association was not part of the recipients of that amended constitution.

In short, it is averred on behalf of the first respondent that not only is the applicant not one of its members but also that Kwekwe Miners Association is not its member either and this explains why it is not a recipient of the updated constitution. Further it is asserted that the latter association lost its membership in 2017 and that its endeavour to re-join the first respondent was thwarted by failing to be up to date with its subscriptions.

The first respondent further contends that the document which the applicant holds out to be the first respondent’s constitution was a mere draft presented to its legal practitioners for their consideration at one of the meetings during the constitution making process and does not incorporate the amendments which were subsequently effected thereto.

Perhaps most importantly, the first respondent asserts that at a special general meeting held on 15 November 2023, question of the incumbency of the second respondent was placed on the agenda and was deliberated upon and a resolution passed allowing her to continue as the first respondent’s President.

The net effect of the first respondent’s position is that a conviction such as the one visited upon the second respondent did not automatically translate to her relinquishing her membership of the National executive council of the first respondent.  Rather, what needed to happen was for the national executive council to pass a resolution to that effect with the subsequent concurrence of its legal committee.  Therefore, no such resolution having been passed, there was no basis for the removal of the second respondent.

In his answering affidavit, the applicant stuck to his guns.  He flippantly dismissed the chronology of stages in the supposed constitution making process as being of no moment.  He further excoriated the first respondent for referring to annexures and documents which were not attached to its opposing affidavit.

In short, he dismissed the assertions of the amendment to the first respondent’s constitution as creation of but fiction designedly to mislead the court and to sanitize the unlawful incumbency of the second respondent.  He therefore asserted that the Constitution which he relied upon was the only true constitution of the first respondent. In response to the first respondent’s contention that he lacked the requisite locus standi to bring the application not least for want of a resolution authorising him to do so, he attached a document titled: “Extract from the minutes of a meeting of Kwekwe Mining Association held at Golden Eagle Mine, Silobela on the 28th January 2024’. It is signed by several members of the Kwekwe Miners Association who were present at that meeting. The document reads:

“Whereas the general members of Kwekwe Miners Association have been aggrieved by the continued leadership of the undeserving Henrietta Beatrice Rushwaya as Presindentof the Zimbabwe Miners Federation (ZMF) to which unanimously agreed that Joseph Panganani Kugara (I.D No. 70-228952 R 38) shall receive the backing of Kwekwe Miners Association in mounting a court challenge against Henrietta Beatrice Rushwaya’s continuance of office as President of ZMF after  her criminal conviction in complete defiance of the ZMF’s  constitution.

Kwekwe Miners Association shall foot all costs involved in mounting this court challenge of other member associations are not willing to continue on costs after being advise of the intended court challenge. There shall be no dispute or any argument of whatever nature relating to a member Joseph Panganani Kugara instituting legal proceedings with the backing of Kwekwe Miners Association.”

It is to the points in limine that I now turn.

The first respondent’s objection to the locus standi of the applicant.

In this regard the first respondent mounts a three-pronged attack impugning the applicant’s locus standi to institute the application. Firstly, it is contended that contrary to his assertions to that effect, the applicant is not member of the first respondent and that in any event the applicant has not filed any proof of his membership with the first respondent. Secondly, it is contended that the applicant has not furnished proof that he has the requisite authority to represent the Kwekwe Miners Association. According to the first respondent, the resolution furnished by the applicant does not equate to the granting of authority as all it does is to provide “backing” for the application, which is a far-cry from authorization to institute proceedings. Thirdly, it is averred that the Kwekwe Miners’ Association itself is not a member of the first respondent and has dismally failed to furnished proof that it is.

Per contra, the applicant contends that he is imbued with the requisite locus standi by virtue of his membership with the Kwekwe Miners Association itself a member of the first respondent.

In Makarudze & Anor v Bungu & Ors 2015 (1) ZLR 15 (H) the court pointed out that locus standi in judicio refers to one’s right, ability or capacity to bring legal proceedings in a court of law. One must justify such right by showing that one has a direct and substantial interest in the outcome of the litigation. Such an interest is a legal interest in the subject-matter of the action which could be prejudicially affected by the judgment of the court. See also ZIMTA v Min of Education & Culture 1990 (2) ZLR 48 (HC); Bamford v Minister of Community Development 1981 (3) SA 1054 (C); Stevenson v Minister of Local Government & National Housing & Ors 2002 (1) ZLR 498 (S) & Sibanda v Apostolic Faith Mission SC 49-18.

A litigant is required to justify such a right by showing that he has a direct and substantial interest in the outcome of the litigation. Mamimine S in his book “Civil procedure of the High Court and Supreme Court in Zimbabwe at page 49 posits as follows:

“For a party to have an interest in the subject matter, it means that there is a direct and substantial interest. In other words, a litigant must show what prejudice he or she is likely to suffer or how he or she is likely to be affected by the decision of the court if it is to be made”

In casu, the question which comes to the fore is whether the applicant being a member of an organisation which claims to be a member or affiliate of the first respondent can bring a claim in relation to the affairs of the latter organisation. It is common cause that as an individual the applicant is not a member of the first respondent.

In my respectful view, the conflation by the applicant of his locus standi vis-a-vis that of the Kwekwe Miners Federation is his undoing.  He failed to separate his personal interest from that of Kwekwe Miners Association.  He erroneously treated the two as one. If his legal standing is based on his authorisation by the Kwekwe Miners Association as purportedly evidenced by the resolution dated 28 January 2024 attached to his answering affidavit, then the correct party should have been the Kwekwe Miners Association itself, yet the applicant brought the application in his individual capacity. The corollary is that the application having been brought in his individual capacity then he did not need what was curiously termed the “backing” of the Kwekwe Miners Association.

Should it have been the Kwekwe Miners Association to institute proceedings against the first respondent through the applicant, it had two options. The first was to authorise the applicant to depose to the requisite affidavits but institute the application in its name. Alternatively, the applicant needed to show that he was suing the first respondent in his representative capacity as such. They did neither.

In the absence of either of the above, the interest of the applicant is indirect and far removed from the affairs of the first respondent. The interest of the applicant is derived from the interest of Kwekwe Miners Association, the removal of Kwekwe Miners Association creates a yawning gap between first respondent and applicant. Further as correctly submitted by the first respondent, “backing” an application is not the same as authorizing the applicant, it simply means lending one’s support, moral or otherwise to a cause.

Put differently, the applicant’s interest being ostensibly derived from his membership of Kwekwe Miners Association his interest would similarly be exercisable through the same organisation. It is Kwekwe Miners Association which is the direct bearer of rights (hence interest) in the affairs of the second respondent.

Further, the application having been brought in the applicants’ personal capacity, then applicant needed to show his personal membership of the first respondent, which he neither alleged nor proved.  He only has himself to blame for conflating the capacity in which he approached the court.

Even if one were to accept as alleged by the applicant that the Kwekwe Miners Association is a member of the first respondent, an individual member of the affiliate organisation would not have locus standi to institute proceedings against the umbrella organisation in his individual name.  such proceedings would have to be instituted on the name of the affiliate organisation itself.

Having thus found that the applicant lacks the requisite locus standi, it shall not be necessary to consider the rest of the preliminary points raised by either of the parties.

Accordingly, the following order is hereby made:

IT IS HEREBY ORDERED THAT:

The first respondents’ first point in limine is hereby upheld. The applicant lacks locus standi to institute the application and the application is hereby dismissed with costs.

Farai & Associates, applicants’ legal practitioners.

Chirove Dzingirai Group of Attorneys, first and second respondents’ legal practitioners