Kadoma Agricultural Show Society & 8 Ors v Dekwe & 6 Ors

### Preamble
1
HCC09-22
KADOMA AGRICULTURAL SHOW SOCEITY
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KADOMA AGRICULTURAL SHOW SOCEITY

And

CRISPEN DIRAO

And

TALENT GARIKAI

And

LUCKSON MUNYAI

And

HARDDAY MANDAVA

And

AKIM MHENE

And

THERESA CHINGALE

And

LEOCADIA DUBE

And

GIFT NDHLOVU

Versus

EDDLIGHT DEKWE

And

SHEPHERD KATSATSU

And

JAMES SAKALA

And

TINASHE DZINOREVA

And

CHRISTOPHER CHENENHAMO

And

THERESA ZINTO

And

PATSON MADERA

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI 22 & 30 June 2022

Urgent Chamber Application

Muzofa J: This is an urgent chamber application to interdict the respondents from carrying out executive functions of the first applicant including preparations for the August 2022 Kadoma agricultural show.

The first applicant is a legal persona with capacity to sue and be sued.

The second to the ninth applicants purport to be the lawful appointed authority to administer the affairs of the first applicant.

The respondents are individuals with capacity to be sued.  They too claim to be the lawful committee to run the first applicant’s affairs. At the heart of this dispute, is the control of the first applicant.

According to the second to the ninth applicants, the first applicant is run by an elected management committee. They were elected into office in terms of the firs applicant’s Constitution in 2019 on a five year term. The seventh respondent was the elected chairperson of the said management committee. Due to some alleged misconduct by the seventh respondent, a vote of no confidence was passed against him by other management committee members. He was subsequently suspended from the management committee.

This was the beginning of the protracted dispute over the control of the first applicant.  The seventh respondent did not accept the suspension.  He continued to perform his duties.  He advised the applicants of his non recognition of the suspension in October 2021.

Without making a determination on the suspension of the seventh respondent, I comment in passing on it to assist the parties.  The first applicant’s Constitution, attached to the notice of opposition does not provide for the procedure adopted by the second to the ninth applicants.    It may be that they derived such powers from some other law. In the absence of a provision giving them the power to act as they did the suspension may be questionable.

Having said so, I revert to the matter before the court.  After the suspension of the seventh respondents both parties resorted to litigation after litigation in the Magistrates’ Court.  I will revert to the cases later in the judgment.

At this stage the relevant case is the ex-parte application by the applicants seeking an interdict for the respondents to give vacant possession of the first applicant’s offices to them.  A writ of execution has since been issued and the applicants have taken occupation of the offices.  The case was filed under CGK 319/22 issued on the 2nd of June 2022.  The return date is 30 June 2022.

The applicants are in the process of planning for the August 2022 show. As the applicants continue in their preparations, the respondents, who are running a parallel structure are also preparing for the August 2022 Agriculture Show.

On that basis, the second to ninth applicants seek an interdict as already stated.

Preliminary Points

In their opposition, the respondents raised two preliminary issues on urgency and that the matter is lis pendens.

Urgency

I was not persuaded on the urgency of the matter.

After all the in and out of court fights between the parties, it emerges that the August 2022 Kadoma Agricultural Show (KAS) must be prepared for. This is the cause of action.  In other words, the second to the ninth applicants’ causa is that, they want to prepare for the show free of interference from the respondents.

It is trite that an application stands or falls on the affidavits. The affidavit must clearly set out the cause of action, when it arose and justify the urgency based on the facts.  At the end of the day urgency is a factual issue determined on the facts as set out on the founding affidavit.

The founding affidavit deposed to by the second applicant is couched in very general terms.  On urgency, at page 13 a narration of the background to the dispute is made.  I quote verbatim the relevant paragraphs relating to urgency.

“(d). The agricultural show is due in August 2022 and we need to properly prepare for it without interference.

(e).	We cannot wait until August to seek the relief we are seeking for this will amount to waiting for the day of reckoning.

(f).	There is serious damage that our preparation will be jeopardized by the Respondents since they are determined to wrestle the preparation of the show from us.

(g).	This will bring the name of the 1st Applicant into disrepute and prejudice the stakeholders and members who want to see real progress instead of some fights in the management.

(h).	The conduct of the Respondents in the past testify to their determination to elbow us illegally, that is going to court to seen an interdict.”

As a starting point, the court is not favoured with information on what the respondents have done in preparation for the show.  The court is not told when this took place. It is important that the applicants set out with precision that information as it assists the court to determine if indeed there is any harm real or potential. The time when the offensive conduct was done is critical for obvious reasons, it shows if indeed the applicants also treated the matter as urgent. The founding affidavit does not make a case for urgency.

Mr Chikono for the applicants tried to sanitise this palpable deficiency and submitted that the issue of a parallel structure is not denied and preparation for the August show is not in dispute.  The submission misses the point of an urgent chamber application. In such an application the court exercises its discretion after considering whether or not the litigant wishing to have the matter treated as urgent has shown an infringement or violation of some legitimate interest, and whether or not the infringement of such interest if not redressed immediately would not be the cause of harm to the litigant which any relief in the future would render a brutum fulmen.See Tripple C Pigs & Anor v Commissioner General, ZIMRA HH 7/07.A court cannot make an informed decision from a scanty founding affidavit.

The founding affidavit must speak to the facts obtaining on the ground and not generalize issues even if they are not in dispute. The court is not privy to what transpired between the parties. The applicants’ failure to take the court into their confidence can only be prejudicial to the applicant’s case.

Even if the parallel structure and the preparations for the August show by the respondents is not disputed the matter remains not urgent. The applicants were aware that the seventh respondent challenged his suspension as far back as October 2021. I agree with the respondents’ submissions that the preparation for the August show was known earlier and the applicants did not take action.

The parallel structure was known to the applicants. The minutes of a General Meeting of the Kadoma Agriculture Society (KAS) held on the 3rd of January 2022 was attached to the application.  The purpose of its attachment was to demonstrate the illegalities by the seventh respondent. That as it maybe, it also shows that the Management Committee comprising of the applicants, was dissolved and a new committee elected. This is provided for in the first applicant’s Constitution.  I do not deal with the legality or otherwise of the process. What is important to this case is that this new management committee was immediately tasked with the duty to prepare for the 2022 (KAS).

The applicants became aware of the meeting at around the date of the meeting. They must have had a cue of the implication of that mandate. They filed an urgent chamber application for a provisional order seeking relief almost similar in effect to the one before the court under HC 121/22.  The matter was withdrawn.  The reason for the withdrawal is said to be that there was a pending case under CGK 551/21.

Two issues that impact on urgency in this matter arise from HC121/22.  I was advised that CGK 551/21 is still pending. One wonders why the applicants approached the court again on the same issues .There was no explanation why the same matter was filed when the reason for the withdrawal of HC121/22 is still in extant.

By virtue of the AGM of the 22nd of January 2022, the applicants became aware of the parallel structure and its mandate.  To approach this court on an urgent basis alleging that the respondents are preparing for the August show after withdrawing HC121/22 is to take the court for granted. There is no urgency as contemplated by the law. Urgency arises where the matter cannot wait at the time when the need to act arises otherwise the applicant will suffer irreparable harm, there is no satisfactory remedy and the applicant has treated the matter as urgent. See CMED v Maphosa and others HH 151/15.

If the Respondents are preparing for the 2022 August show, they do so on the authority of the mandate given to them by the AGM held on the 22nd of January 2022.  The Applicant did nothing about that meeting. They sat on their laurels and chose to pursue some other remedies before the Magistrates court .If anything, the applicants opted to pursue some piecemeal litigation instead of litigating to finality issues that bring to an end this dispute. The real dispute that must be determined by the court is the declaration of the legitimate management committee.

From the forgoing the matter lacks urgency.  It was reasonably foreseeable that the respondents would prepare for the 2022 Agricultural Show from January 2022.  The Applicants did not act only to approach the court some six months later. No satisfactory explanation was given for the delay in approaching the court.

Accordingly the application is not urgent and it is removed from the roll of urgent matters.

Moyo Chikono & Gumiro, applicants’ legal practitioners

F.G Gijima and Associates, Respondents’ legal practitioners.