Moyo v Bowman & Ors (HC 10916 of 2013) [2015] ZWHHC 204 (24 February 2015)

1 HH 204/15 HC 10916/13 THUTHANI MOYO versus JOHN BOWMAN and PONDS PHIRI and BERYL WATSON and MARGARET JAMES and ABEL DENHERE and INGRID CHARSELY and RODERICK PHIRI and MARGARET MATOWE and ZEPHANIA CHIPATO HIGH COURT OF ZIMBABWE MAWADZE J HARARE, 17 October 2014 and 25 February 2015 Opposed Application Applicant in person Ms S A Wabatagore, for 1st, 2nd, 3rd, 4th, 5th, 6th, 8th and 9th respondents No appearance for 7th respondent MAWADZE J: While our legal system allows unrepresented litigants to approach the High Court in civil matters, this case brings into focus, the need, in some cases which involve intricate issues of law for such litigants to be legally represented. My spirited attempts to advice the applicant to seek legal representation, even through the Registrar were spurned by the applicant who insisted that he had the experience knowledge and confidence to argue his case. My misgivings arose after I had, with the patience of the biblical Job, ploughed through HH 204/15 HC 10916/13 applicant’s founding affidavit, answering affidavit and heads of argument but still was unable to appreciate applicant’s case. The relief sought by the applicant is couched in the following terms: “IT IS ORDERED THAT; 1. 2. 3. 4. The Resolutions signed on the 1st of December 2011 by the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents are null and void and have no effect at all. The Resolution signed on 22nd April 2012 by the 1st and 8th Respondents is null and void and has no effect at all. The constitution used to sit for the meeting of 2nd November 2011 and 22 April 2012 is null and void and has no effect at all. Thee 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th Respondents pay the costs of the proceedings.” The application is opposed by all the respondents except the seventh respondent who apparently was not served. The manner in which the relief sought is couched is so vague that one has to plough through numerous documents filed in order to find out what these Resolutions relate to. To compound the problem applicant does not state in what capacities all the nine respondents are being cited. TOC H Zimbabwe from the reading of the papers filed is a non-governmental welfare organization. The applicant as per his founding affidavit is a member of TOC H Zimbabwe since 1994 although his memberships is currently being disputed by the respondents (Respondents hereinafter refer to all but seventh respondent). The respondents are members of TOC H Zimbabwe although the positions they hold in that organization are not specified by the applicant. It is extremely difficult to summarise the facts giving rise to this application. This is so because the founding affidavit does not seek to identify each and every respondent and in what capacity each respondent is joined in this matter. Further the founding affidavit is vague and embarrassing as it is long, winding but still not clear in what applicant’s grievances are and what applicant wants this court to do for him. Put simply the cause of action is unclear. Let me briefly illustrates the point made above by referring to the founding affidavit. The founding affidavit comprises of 8 pages (page 4 – 11) or 30 paragraphs. Attached to founding affidavit are Annexures A to V (page 13 – 55). The Answering affidavit covers 10 pages (page HH 204/15 HC 10916/13 62 – 72) and further Annexures A to N (page 72 – 90) are attached. This is clearly improper for applicant to attach new annexures to the answering affidavit. In his founding affidavit the applicant said he was co-opted as a member of TOC H Zimbabwe Executive Committee in July 2010 until he was barred on 2 November 2011 as per the minutes of the meeting held on that date. At this meeting it was resolved that the TOC H Zimbabwe motor vehicle which was registered in applicant’s name after being purchased in South Africa should with immediate effect be transferred to TOC H Zimbabwe and that applicant should hand over the said motor vehicle. At same meeting it was also resolved that all extension work of TOC H Zimbab we be suspended with immediate effect and that applicant and others involved in this outreach and extension voluntary work should be advised accordingly. As per Annexures C and D the applicant on 12 February 2011attended as a member, a meeting for TOC H Zimbabwe Management Committee and on 24 September 2011 as a member of the National Executive Committee. The applicant then refers to a meeting he said he was not invited on 25 September 2011 by the National Executive Committee but para 7 and 8 of the founding affidavit are difficult to comprehend just like para 9. The applicant said he took issue with the cancellation of the management committee meeting scheduled for 29 October 2011 and that this was the genesis of his problems. The applicant does not explain the nature of these problems but instead refers to Annexure H in which TOC H Zimbabwe National chairman the seventh respondent Rodreck Phiri resigned due to personal commitments. On 16 November 2011 applicant said he received a letter written by the second respondent terminating applicant’s and others’ services as extension workers and for applicant to surrender the motor vehicle registered in his name but belonging to TOC H Zimbabwe. According to the applicant this directive violated Article 5E(viii) (See Annexure E page 21 being a copy of TOC H Zimbabwe Constitution). The applicant does not explain how that provision infringes the constitution or applicant’s rights. As per Annexures L and M applicant protested as regards the directive in the letter dated 16 November 2011. According to the applicant this invited further harassment and psychological abuse. The applicant does not explain who harassed him and in what way. In May 2012 the applicant said he was arraigned before a Harare Magistrate on charges he did not specify but insists they were trumped up charges. Nonetheless the applicant was convicted and he alleges he has appealed to this court. The applicant said on 14 July 2012 the second HH 204/15 HC 10916/13 respondent in HC 6417/12 filed an urgent chamber application seeking an order to compel applicant to surrender the said motor vehicle to TOC H Zimbabwe. The applicant alleges the second respondent used forged documents in support this application being annexure A and the National Council Resolution (Annexure N). Apparently this matter was decided by my sister Dube J against the applicant who was ordered to surrender the motor vehicle to TOC H Zimbabwe. Applicant said he decided not to appeal against the order granted by Dube J but to challenge it through this application. I do not understand how he intends to do that. As per the founding affidavit applicant refers to another TOC H Zimbabwe constitution Annexure U (p 47). It is not clear what issue applicant raises in relation to this constitution except to allege that TOC H Zimbabwe is a Private Voluntary Organisation and that it is a juristic person. The applicant further alleges that the first respondent is in contempt of the Constitution as he had breached s 21 (i) (a) to (k) of the Private Voluntary Organisations Act [Chapter 17:05]. This provision however deals with the suspension of Executive Committee Members by the Minister responsible for administering that Act. The applicant alleges that the first respondent’s term of office expired on 21 November 2011. In the concluding paragraphs of the founding affidavit applicant alleges, in a general way, that his rights have been violated (see para 29). It is not clear in what specific manner his rights have been trampled upon. Instead the applicant said this is the case because the respondents have used forged documents to persecute him and that they are not ascribing to the aims and objects of TOC H Zimbabwe. As already explained it is extremely difficult to appreciate the cause of action in this matter. The story narrated in the founding affidavit while full of sound and fury clearly signifies nothing which is legally discernable to found a cause of action. It is not therefore surprising that Ms Wabatagore for the respondents has taken a number of points in limine which she believed if upheld disposes of this matter. I now turn to the points in limine raised. The respondents have raised the following points in limine; (a) that there are material dispute of facts in the application (b) the non joinder of TOC H Zimbabwe in these proceedings (c) applicant’s locus standi in the matter HH 204/15 HC 10916/13 (d) the incompetence of the relief sought in para 2 of the draft order. I turn to the issues; Material dispute of facts It is clear that there are indeed several material dispute of facts which cannot be resolved on the papers filed of record. i) The dispute relates to the correct constitution of TOC H Zimbabwe. There are two constitutions attached to the founding affidavit, Annexure E at p 21 and Annexure U at p 47. The applicants contends that the constitution relied upon by the respondents is a forgery and he tenders his own version of the constitution being Annexture E. This position is vehemently disputed by the respondents in the opposing affidavits. I have no doubt in my mind that applicant who attached the two constitutions to his founding affidavit was aware at the time of instituting these proceedings that the respondents would challenge the other version of the constitution. There is therefore a dispute as to which is the applicable version of the constitution. ii) The respondents stated that some of the documents used to support the applicant’s case and are attached to the applicant’s founding affidavit are not authentic documents for TOC H Zimbabwe. Reference is made to Annexure G. (p 28) which relates to minutes of the meeting held by the National Executive Committee on 26 October 2011. The respondents submitted that the minutes are not confirmed or signed by the President of TOC H Zimbabwe. On the other hand the applicant insists that the document is authentic. iii) The applicant has challenged the resolutions allegedly passed by TOC H Zimbabwe alleging that the resolutions were improperly passed and not in accordance with the constitution of TOC H Zimbabwe. This is vehemently disputed by the respondents who maintain the resolutions were duly passed in accordance to the applicable constitution of TOC H Zimbabwe. As an example applicant alleges that the National Council Resolution Annexure R (p 44) is forged. The respondents allege that the resolution was duly passed. HH 204/15 HC 10916/13 iv) The membership of applicant in the National Executive Committee and Management committee is put into the issue. Similarly the allegations of fraud and mismanagement made against the respondents are disputed. The respondents stated that applicant would be co-opted to attend the meetings by invitation as a member of TOC H Zimbabwe, See Annexure D at p 134 in which it was stated that applicant is not an Executive Committee member as provided for by the constitution and that he had no voting right in the Executive Committee. While applicant contended that he had no proof of such membership he still insists he is a member of the Executive Committee. The disputed allegations of fraud and management are not supported by any evidence filed of record. There would be need to lead viva voce evidence in that regard. The nature of the material dispute of facts is such that I am unable to adopt the approach enunciated in the case of Fibreglass Pvt Ltd v Peech 1987 (2) ZLR 388 at 339 where it was said” “It is, I think, well established that in motion proceedings a court should endevour to resolve the dispute raised in affidavits without hearing of evidence. It must take a robust and common sense approach and not an over fastidious one, always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned”. I am therefore satisfied that there are material dispute of facts in this matter which cannot be resolved on the papers filed of record. In the exercise of my discretion I have two options, which is to either dismiss this application or refer the matter to trial. See Mashingaidze v Mashingaidze 1995 (1) ZLR 219 (H); Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 at 234 D-F. I am unable to refer this matter to trial as the papers filed by the applicant cannot stand as summons and declaration. Consequently, the only available option is to dismiss the application. The Non Joinder of TOC H Zimbabwe In terms of r 87 (1) of the High Court Rules 1971 no cause of action or matter shall be defeated by reason of misjoinder on non-joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. It is common cause that TOC H Zimbabwe is not party to these proceedings. The applicant has sought to rely on r 87 (1) of the High Court Rules 1971. The inescaple conclusion however is that the non-joinder of TOC H Zimbabwe is clearly fatal to these proceedings. I say HH 204/15 HC 10916/13 so because of a number of reasons. It is clear from the applicant’s founding affidavit that TOC H Zimbabwe which is a juristic person is intricately involved and implicated in the actions done by both the applicant and the respondents. The constitution of TOC H Zimbabwe is in issue as well as the propriety of its operations. The resolutions made by TOC H Zimbabwe are put in issue either as illegal or as nullity. I have no doubt that TOC H Zimbabwe has a direct and substantial interest in this application. See Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232 at 235. While the non-joinder of TOC H Zimbabwe on its own may not defeat this application, I am of the view that cumulative effect of the non-joinder of TOC H Zimbabwe coupled with the material dispute of facts is fatal to this application. Applicant’s locus standi in judicio in the dispute or matter I find no merit in relation to this point in limine. While applicant’s membership in the National Executive Committee and Management Committee of TOZ H Zimbabwe has been put in issue there is no evidence placed before the court to show that applicant is no longer a member of TOC H Zimbabwe. Even if he had ceased or failed to pay subscription fees he would be entitled to challenge adverse decisions made against him by TOC H Zimbabwe. The Incompetence of the Relief Sought in Paragraph 2 of the draft order The National Council Resolution passed on 22 April 2012 (Annexure R p 44) authorizes Ponds Phiri the Acting National Chair of TOC H Zimbabwe to represent TOC H Zimbabwe in any litigation and to sign any documents on behalf of TOC H Zimbabwe relating to litigation issues or matters. This is the resolution the applicant seeks, in para 2 of the draft order to be declared null and void and to be of no effect of law. This relief sought is incompetent. The applicant concedes that the said resolution was recognized by this court in a matter dealt with by Dube J in HC 7180/12 wherein the second respondent successfully represented TOC H Zimbabwe in an application against the applicant for transfer of a motor vehicle. The plea of re judicata is available to the respondents. See Wolfenden v Jackson 1985 (2) ZLR 313 at 316 B-C. It is therefore futile for the applicant to seek to challenge the same resolution in these proceedings when the applicant did not appeal against the judgment by my sister Dube J. The relief sought by the applicant in para 2 of the draft order is incompetent. In conclusion, I am satisfied that there are material dispute of facts in this matter. The non-joinder of TOC H Zimbabwe in this application adversely affect the applicant’s case. The HH 204/15 HC 10916/13 relief sought by the applicant in para 2 of the draft order is incompetent. All these points in limine taken cumulatively or together are fatal to the application and dispose of the matter. The question of costs should follow the result. Accordingly, it is ordered that: 1. The application be and is hereby dismissed. 2. The applicant shall pay the costs. V. Nyemba & Associates, 1st , 2nd , 3rd , 4th , 5th , 6th , 8th & 9th respondents’ legal practitioners