Mapfumo v Shirichena & Anor (CIV A 19 of 2015) [2015] ZWHHC 754 (23 September 2015)

1 HH 754-15 CIV ‘A’ 19/15 MARTIN MAPFUMO versus TAFADZWA SHIRICHENA and MARTIN MURANDA HIGH COURT OF ZIMBABWE UCHENA & MWAYERA JJ HARARE, 30 July 2015 & 23 September 2015 Civil Appeal T. P. Machiridza, for the appellant P Kwenda, for the respondents MWAYERA J: On 30 July 2015 after hearing both counsel and having considered the record of proceedings and submission filed we dismissed the appeal with costs. We undertook to furnish written reasons for the disposition. The appellant approached the court on the basis of one ground of appeal that the court a quo erred at law and on facts in holding that it did not have jurisdiction to deal with the matter. The brief background to the matter has to be put in perspective. The appellant while in the court a quo sought to evict the respondents from Stand No 1089, Sally Mugabe Heights, Borrowdale North, Harare. The first respondent and second respondent (claiming rights through first respondent) defended the matter on the basis that she was also allocated the same stand by the same cooperative Zvakatanga Sekuseka. The respondent took possession earlier than the appellant in 2004. It is abundantly clear from the record that both parties are members of the same cooperative Zvakatanga Sekuseka. The circumstances of the matter depict a situation of a double allocation by a registered cooperative. The court a quo, alive to this background information in the face of a special plea that it had no requisite jurisdiction in terms of s 115 of the Co-operatives Societies Act upheld the special plea. The provisions of s 115 of the Co-operatives Societies Act [Chapter 24:05] are instructive. Section 115 reads: HH 754-15 CIV ‘A’ 19/15 “If any dispute concerning the business of a registered society arises. (a) 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 management or any supervisory committee; or (b) between registered societies and no settlement is reached within the society or between the societies, as the case may be, the dispute should be referred to the Registrar for decision.” (underlining is mine) A reading of the relevant section is crystal clear that where a dispute arises between members of a registered co-operative it shall be resolved within the cooperative or referred to the Registrar. The Registrar is the Tribunal best placed to resolve the matter or dispute emanating from double allocation of the absence of those domestic remedies had been earlier resorted to the court a quo properly and ably exercised its discretion and ruled that it had no jurisdiction to entertain the dispute between members of a registered cooperative. I must hasten to point out that the deliberate attempt by the appellant’s counsel to mislead the court on the background to allocation of the stands in a move to clothe the magistrate’s court with jurisdiction on purported different allocation and none membership of the appellant to the cooperative, is not only mischievous but deplorable. There is clear evidence on record that both appellant and the first respondent are members of the same cooperative Zvakatanga Sekuseka. The court a quo correctly took note of the parties; status as provided in an earlier court record 478/14 in which the appellant conceded the magistrate’s court had no jurisdiction given the provision of s 115 of the Cooperatives Social Act [Chapter 24:05]. The issuing of fresh summons and omitting salient factors that both parties belong to the same cooperative and thus the dispute is over land doubly allocated by the cooperative does not change the complexion of the matter. It does not clothe the magistrate’s court with jurisdiction given provision of s 115 of the Cooperatives Societies Act. The nature of dispute calls for exhaustion of domestic remedies first. Given the respondent is in situ and was placed on the land by the same cooperative that also allocated the same land to the appellant the Registrar is the tribunal best suited to resolve the issue so as to come up with a practical solution to the matter. The case of Rateyiwa v Kambuzuma Housing Co-operative and Another ZLR 2007 (1) 311 is relevant. From the forgoing it is clear the trial court upheld the special plea of having no jurisdiction because the law as given in s 115 of Co-operative Societies Act is clear. The HH 754-15 CIV ‘A’ 19/15 dispute between the members of a registered cooperative have to be attended to domestically first. We find no fault in the reasoning of the court a quo. Accordingly the appeal has no merit and must fail. In the result it is ordered that: 1. The appeal be and is hereby dismissed with costs. . UCHENA J agrees ………………… Messrs Antonio & Dzvetero, appellant’s legal practitioners Kwenda & Associates, respondent’s legal practitioners