Izayi Park Housing Scheme v Ngwena & Ors (HC 1505 of 2015) [2015] ZWHHC 229 (10 March 2015)

1 HH 229-15 HC 1505/15 IZAYI PARK HOUSING SCHEME (represented by ELINAS GUMBO) versus SHADRECK GWENA and CUTHBERT SHOKO and NOEL MUREMBA and ALEX HOVE and KNOWLEDGE DUBE and RICHARD GURAJENA and ERINA CHIPUNGA and MUNASHE CHIKWEKWE and CAPTAIN CHIPWANYIRA and STEPHEN CHIPEMBERE and PANYIKA NDLOVU and HLALISI NDLOVU and MR. MUTAMBISI and MR. MUKUSHA and KENNEDY SHUMBA and HAMPHREY GUDO and MR. RUVAZA and CHIKORE MUNYARADZI HIGH COURT OF ZIMBABWE TAGU J HARARE, 23, 24, 26 February and 11 March 2015 HH 229-15 HC 1505/15 Urgent Chamber Application N. Mugiya, for applicant O. Shava, for respondents TAGU J: The applicant seeks a spoliation order against all the 18 respondents on the following terms: “A. TERMS OF THE FINAL ORDER SOUGHT It is ordered that (1) The Respondents are interdicted from interfering with the Applicant’s project and business in whatever manner. (2) The Respondents’ behaviour and conduct is hereby declared wrongful and unlawful. (3) The Respondents are ordered to pay costs of suit on a client – attorney scale. B. PROVISIONAL ORDER GRANTED Pending the confirmation of the provisional order; IT IS ORDERED THAT; (1) The Respondents be and are hereby ordered to release and return all documents, and office keys to the Applicant forthwith or at least not later than 48 hours from the date of this order. (2) The Respondents are ordered to vacate the Applicant’s offices at No. 6 Kataza Road, Zvishavane and allow the Applicant to take occupation of its offices forthwith. (3) The Respondents are barred from interfering with the Applicant’s affairs, business or and project in whatsoever manner unless with the Applicant’s consent. (4) The Respondents are barred from going to Izayi Park project site unless with the consent of the Applicant. (5) The Respondents are interdicted from harassing and threatening the Applicant’s executive members or the Applicant’s general members in whatever manner. C. SERVICE OF THIS ORDER Service of this order shall be effected by the Applicant’s Legal practitioners.” HH 229-15 HC 1505/15 The respondents raised three points in limine. Firstly, the respondents took issue with the application filed by the applicant. It is the respondents’ submission that the application does not comply with r 241 (1) of the High Court Rules 1971. It was contented that the applicant ought to have stated briefly the grounds upon which the application is being made. Rule 241 provides; “241. Form of chamber applications (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 subrule (2) shall be supported by one or more affidavits setting out the facts upon which the applicant relies. Provided that, where a chamber application is to be served on an interested party, it shall be in Form No. 29 with appropriate modifications. (2) ………..” After perusing the applicant’s answering affidavit, Mr Shava, on behalf of the respondents wisely abandoned that argument and admitted that indeed the applicant’s application complied in all material respects with the provisions of r 241. To that extent, the first point in limine is dismissed. Secondly, the respondents took issue with the Certificate of Urgency. Their argument was that the certificate of urgency, though signed by the deponent, a Mr Phillip Mbano, of Mbano Legal Practitioners, was not dated. Further, that the certificate does not give a chronology of dates and events leading to the alleged unlawful conduct of the respondents. Indeed I had sight of the certificate of urgency. It was signed by the deponent. It alleges all the unlawfulness on the part of the respondents. It was date stamped by the Registrar on the same date when all the other papers filed of record were date stamped. The deponent started by stating in his affidavit that: “Having read the founding Affidavit of the Applicant in this matter, I confirm that this case merits urgent attention of this Honourable Court in that; …..” He then proceeded to give a chronology of all the unlawfulness on the conduct of the respondents without stating the dates. The dates and events are fully chronicled in the applicant’s founding affidavit. In my view, it would have been proper to state dates as well, but since the deponent made reference to the applicant’s affidavit, and went on to sign his own affidavit this is sufficient compliance with the Rules. In the circumstances the second point in limine is dismissed. HH 229-15 HC 1505/15 Thirdly, the respondents took issue with Elinas Gumbo’s locus standi in judicio to represent Izayi Park Housing Scheme before any court of law. Their argument being that there was a general meeting on 3 January 2015 where elections were held and a new executive committee was ushered in and Elinas Gumbo lost the right to occupy office or any positions within Izayi Park Housing Scheme Organisation. The applicant challenged this point in limine on the ground that there is a resolution which authorised him to depose an affidavit on behalf of the applicant. He argued that the respondents are raising the issue of the purported new executive which is the basis of this present application. He therefore denied that he was trying to challenge the election of the new executive through the back door. The resolution which Elinas Gumbo referred to says- “RESOLUTION OF IZAYI PARK HOUSING SCHEME EXECUTIVE COMMITTEE MADE AT A MEETING WHICH WAS HELD ON THE 11TH DAY OF FEBRUARY 2012 The executive committee of Izayi Park Housing Scheme unanimously passed a resolution that ELINAS GUMBO shall represent the cooperative in all legal proceedings instituted by the cooperative or against the co-operative. Dated at 11th February 2012 M. Mubaiwa ………………………………. MAXWELL MUBAIWA SECRETARY” In casu, up to about 7th February 2015 there was a legitimate committee in charge of Izayi Park Housing scheme headed by Elinas Gumbo. Currently there is a new executive committee in charge of the same Izayi Park Housing Scheme purportedly headed by one Stephen Chipembere, comprising the rest of the respondents. It is the alleged conduct of the respondents towards Elinas Gumbo and his committee members that is the subject of this application. In my view, any aggrieved party has a right to take the offending party to court for redress. In this situation any committee member has locus standi in judicio to sue any committee member. It is apparent that there is a split among the members and each group is claiming to be the legitimate one. Under such a scenario the courts could be approached by either side to make a determination. The party deciding to approach a court for arbitration cannot be said to lack locus standi in judicio. In the case of Elinas Gumbo he has locus standi HH 229-15 HC 1505/15 to sue any member of the committee. Equally still, unless it has been decided otherwise, he has full locus standi to sue on behalf of Izayi Park Housing Scheme in terms of the resolution of the 11th February 2012. In the result, I dismiss the last point in limine. I will now deal with the merits of the application. Mr Elinas Gumbo stated in his founding affidavit that the applicant operates as a housing cooperative, a scheme established in 2007 and managed by the Ministry of Local Government and Housing Development, doing business in Zvishavane in conjunction with Zvishavane Town Council. It has been operating smoothly to date and run by an executive committee of six members who are himself Elinos Gumbo, Engineer Chiraya, Ngara Phiri, Benson Farai, Rufaro Nyoni and Maxwell Mubaiwa. He said recently, and on 7 February 2015, the respondents, most of whom are defaulters ganged and decided to oust the executive committee in a coup style. What happened was that the applicant called for a meeting on 7 February 2015 at Izayi Park for all its members so that they could appraise them on the state of progress and the respondents planned their meeting on the same day and time with the applicant. When the meeting started at 09:00am, the respondents chased the applicant away claiming that they were war veterans and the 14th respondent claimed he was a police officer who could arrest the applicant’s executives if they refuse to leave the meeting. The applicant’s executive members complied and left the meeting, but after dissolving the meeting. The respondents proceeded with an illegal meeting when most of the members had left with the applicant’s executive members. The applicant then reported the matter to the relevant Ministry which is currently seized with the matter. Whilst waiting for the Ministry to finalise the matter and resolve the dispute, the respondents teamed up and on 16 February 2015 besieged the applicant’s offices at No. 6 Kataza road, Zvishavane. They forcibly entered the offices and took the office keys and books and proceeded to unlawfully evict all office bearers and threw their belongings outside. The applicant reported the matter to the Zimbabwe Republic Police Zvishavane, but the fourth respondent who is a police officer influenced the police who then told the applicant that the matter was a civil matter. This prompted the applicant to approach this court on an urgent basis as there is no alternative relief in the circumstances. The applicant felt that it will suffer irreparable harm as the respondents’ conduct was unlawful and a cash box with US$ 23 500.00 was taken away. Furthermore, he said the respondents threatened to kill the HH 229-15 HC 1505/15 applicant’s executive members should they dare challenge them hence the members are now living in fear of the respondents’ barbaric behaviour. The respondents through an affidavit deposed to by one Shadreck Gwena, the first respondent denied the allegations. They admitted that the project was established in 2007, but claimed that it has not been functioning smoothly to date. They submitted that the project was terminated in May 2013 and the beneficiaries held a meeting on 3 January 2015 and voted out the old committee. A new committee comprising of the following members was voted into office. These are Stephen Chipembere, Noel Muremba, Munashe Chikwekwe, Tendayi Sibanda, Erina Chipungu, Kennedy Shumba, Captain Chipwanyira, Panyika Ndlovu and Virginia Sithole. The respondents further, claimed that at the meeting of the 7th February 2015 they did not chase away the old committee members, but rather challenged them on why they were calling the meeting when they had been ousted, and at a time they were being investigated. They confirmed that the 14th respondent is a member of the Zimbabwe Republic Police and is also the investigating officer in the case involving the old committee members. It is their contention that they did not besiege the office or acted in the manner described. They claimed that the receipt books and all documentations pertaining to the scheme were taken by the police pending investigations. They denied taking a cash box containing US$ 23 500.00. They said by involving the police they did not take the law into their hands. On the contrary they accused the applicant of taking the law into his hands by approaching this court thereby hampering investigations. From the submissions it is apparent that Elinas Gumbo was all along the authorised representative of Izayi Park Housing Scheme. He was a member of the old executive running the offices and affairs of the housing scheme. It is clear that some items were taken out of the offices of Izayi Park Housing Scheme following a meeting held by the beneficiaries on 7 February 2015. The taking was done without the consent of the old executive members. It was also taken without an order of the court. The respondents managed to file two relevant documents in their opposing papers to support the existence of a new executive committee. They did not file anything to prove that the purported new executive committee was voted into office on 3 January 2015. This they could have done by way of filing the minutes of the 3rd January 2015 or at least a copy of the agenda of the 3rd January 2015. What is attached are minutes of the meeting of the 7th February 2015. In that minute it is clear that the old executive members had been given the HH 229-15 HC 1505/15 police clearance by the Dispol to hold the meeting at the same venue. Further, the minutes showed in clear terms that the old executive was asked to leave and when some members of the old committee refused to leave a group of male beneficiaries told a Mr Chireya that if he did not leave they could push him to leave. Some ladies who had umbrellas threatened to use them to force one Mr Mukura to leave. This gives credence to Mr Elinas Gumbo’s claim that they were threatened with assault and they left the meeting. The other document is a letter of confirmation of the new executive written by one Arch. P S. Mukura, a Provincial public Works director- Midlands dated 9th February 2015 which is addressed “TO WHOM IT MAY CONCERN”. It is not clear why and at whose instance the letter was written after the meeting of the 7th February 2015. Assuming that a new committee was elected into office on 3 January 2015, that is neither here nor there. The issue is whether or not the new executive despoiled the old executive. In my view, the issue to be decided is whether or not the applicant has made a case for spoliation orders. In order to obtain a mandament van spolie the applicant must show that: (a) he was in peaceful and undisturbed possession of the things, and (b) he was unlawfully deprived of such possession. (Nino Bonino v De lange 1906 TS 120 at 122; Burger v van Rooyen 1961 (1) SA 159 (O); and Scholtz v Faifer 1910 TPD 243 at 246). In casu, the applicant had factual control of the project, the offices, office keys, books and all other belongings with the intention to derive some benefit from them. He was deprived of his possession. The deprivation was done without a court order or other lawful means. It is trite law that the person who has been deprived of his possession must first be restored to his former position before the merits of the case can be considered. The main purpose of the mandament is to preserve public order by restraining persons from taking the law into their own hands and by inducing them to submit the matter to the jurisdiction of the courts. Peace in a community could not be maintained if every person who asserted that he had a claim to a particular thing were entitled to resort to self-help to gain possession of the thing. (C. G. Vander Merwe and M. J. de Wall – ‘The law of things and Servitudes’ p 68; Curatoren van “Pioneer Lodge NO.1” v C Champion 1879 OFS 51 at 54, Muller v Muller 1915 TPD 28 at 31.) In this case the respondents argued that the things were taken by the police for purposes of investigations and that Izayi Park offices have not been taken over. I do not agree HH 229-15 HC 1505/15 with that submission. The mere fact that a police officer “unofficially” sanctions dispossession is not sufficient to legalise an otherwise unlawful act. The police can only search and seize property on the strength of a Warrant of seizure, or other lawful instructions. In this case it has not been submitted that the police officer or officers who took away the items from the offices did so on the strength of such warrant or court order. Their actions were illegal on the authorities of Potgieter v Du Plessis 1978 (1) SA 751 (NC) at 754B – D, Coetzee v Coetzee 1982 (1) SA 933. As regards both requirements I am satisfied that the applicant has satisfied them. The respondents dispossessed the applicant forcibly and wrongfully against his consent. The court in such a case will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute. In acting as they did, whether as principles or agents, all respondents took the law into their own hands. They are guilty of what is called self-help. This court must insist on observance of the principle that a person in possession of property, however unlawful his possession may be and however exposed he may be, to ejectment proceedings, cannot be interfered with in his possession except by due process of law. If interfered with unlawfully the court will not condone such interference. It will redress the situation pending the taking of lawful action for ejectment. In the result, the provisional order is granted in terms of the draft. Mugiya and Macharaga Law Chambers, applicant’s legal practitioners Chidawanyika, Chitere & Partners, respondents’ legal practitioners