Catholic University SIFE Team v SIFE Worldwide and Midlands State University SIFE Team

### Preamble
1
HH 384-2012
HC 9672/12
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CATHOLIC UNIVERSITY

SIFE TEAM

versus

SIFE WORLDWIDE

and

MIDLANDS STATE UNIVERSITY

SIFE TEAM

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 30 August and 4 and 17 September 2012

Urgent Chamber Application

Advocate Ochienge, for the applicant

C Mhike, for the 1st respondent

Ms L Rufu, for the 2nd respondent

BERE J: On 24 August 2012 the applicant filed an urgent chamber application seeking a provisional order couched in the following:

“Interim Relief

Pending the return date –

The Zimbabwe 2012 edition of the Students In Free Enterprise competition is hereby suspended; and

The first respondent is hereby interdicted from performing any act calculated or likely to hinder the applicant’s participation in the 2012 SIFE World Cup scheduled for 23 September 2012.”

The Background

It is necessary to give a brief background of this case and this can be summarised as follows:

The first respondent referred to by the applicant as SIFE WORLDWIDE is an international non-profit making organisation registered in the United States of America and carrying out its business in Zimbabwe through the agency of Boost Fellowship. The first respondent’s activities are not only restricted to Zimbabwe but to other countries as well.

For quite some time now the first respondent has been running a competition called the Students in Free Enterprise World Cup which include various international Tertiary Education Institutions with which it has Memorandums of Understanding. There are guidelines in place to regulate the conduct of this competition. The basic objective of the contest is to afford the participants an opportunity to practice and enhance entrepreneurial skills at a young age.

The way the competition operates is that each of the participating teams from different universities conducts its project for a period of twelve months leading up to the national championship. At the national championship each team makes an oral presentation of the work done during the course of the year. A panel of adjudicators evaluate each of the project on the basis of the presentation made before announcing the national championship for the particular country.

The winning team is then subjected to an audit which is aimed at verifying the presentation made and it is only upon satisfying the audit expectations that the team is allowed passage to the Sife World Cup as a representative of its country or territory.

The applicant’s case is that it participated in the local competition and was declared the winner with the second respondent being the runner up and therefore it ought to have been given the opportunity to represent Zimbabwe at the Sife World Cup for 2012 as opposed to the second respondent.

It was this situation which prompted the applicant to file this urgent application seeking interim relief as outlined in the penultative paragraph of this judgment.

The first respondent has opposed the relief sought by the applicant and in doing so has raised a number of points in limine and in the alternative dealt with its position on merits.

It was contended on behalf of the first respondent that the applicant lacked locus standi in judicio to institute these proceedings.

It was also argued by the first respondent that the court has no jurisdiction to entertain the filed application because the applicant had not attached the first respondent’s property to confirm or establish jurisdiction given that the first respondent was a peregrinus.

As an alternative argument and on merits the first respondent’s position was that its decision to fail the applicant was consistent with the rules of the competition and therefore justifiable in the circumstances.

The points in limine

I propose to deal first with the issue as to whether or not the applicant has locus standi to bring this action.

It is common cause that the Memorandum of Understanding which regulates the conduct of the competition was entered into by the first respondent as the owner of the project and various local universities which are globally referred to in various communications as “Tertiary Education Institutions”.

The first respondent does not deal with clubs or individual groupings within each University establishment but with the Universities themselves. In the instant case the first respondent was dealing directly with the Catholic University and Midlands State University which is the second respondent.

It should and must logically follow that if there is any disagreement or disgruntlement warranting litigation against the first respondent, it is the aggrieved University which must initiate litigation process.

The individual clubs or organisations within Universities like the applicant cannot in my view elevate themselves to the point of having the mandate to act for and on behalf of their Universities but the inverse would be true.

My attention was directed to the provisions of r 2A 8 by the applicant’s counsel as authority for the proposition that the applicant has locus standi to bring this action as it did in this case.

I have considered the provision in question and my view is that that rule is not just grounded in air. It must be understood within its proper context. In my view that rule would only come to the aid of the applicant if the Memorandum of Understanding was between the applicant and the first respondent. This, I have found out not to have been the case here.

My view is that the applicant cannot purport to have locus standi to litigate for and on behalf of the Catholic University. This probably explains why the applicant could not produce its mandate or authority to so act when it was specifically challenged by the first respondent in its opposing affidavit to do so. The answering affidavit which I directed the applicant to file deliberately circumvented this issue, and I believe for good reasons - I suppose because of the futility of trying to counter the arguments raised by Saliwe Mutetwa in para 8 of her opposing affidavit.

It is overstretching the contents of annexure “U” (Catholic University’s letter of 15 August 2012) for anyone to argue that that letter clothed the applicant with locus standi to initiate the current urgent application on behalf of the Catholic University.

I therefore make a specific finding that the applicant had no locus standi in judicio to initiate this action.

Let me now move on to the second point raised in limine by the first respondent’s counsel. Relying on the ratio derived from the case of Kibe v Mphoko Anor and Mali v Mali counsel’s argument was that it was not competent for this court to grant the provisional order desired by the applicant in the absence of an attachment of the first respondent’s person or property to confirm or establish jurisdiction.

With due respect, I have not been persuaded to accept this argument because of two reasons. Firstly, the cause of action arose from the activities of the first respondent in Zimbabwe and not outside this court’s jurisdiction. Secondly, the relief sought is capable of being enforced within the jurisdiction of this court so there is certainly no danger of this court ladening itself with a brutum fulman order.

In this regard, I derive guidance from the eloquent remarks of De WETT AJ, which he gave as follows:

“With due respect to the learned judge, our courts have held that, where the respondent is a peregrinus, the court has jurisdiction if, in the case of a mandatory interdict, the act is to be carried out within such area, or in the case of a prohibitory interdict, if the act against which an interdict is claimed is about to be done in such area. See Leyland v Chetwynd, 18 (1901) SC 239; Kramarski v Kramarski & Ors, 1906 TS 937; Brown v Mcdonald, 1911 EDL 423; Ex parte Kirsten, supra; Ex parte Winter, 1948 (3) SA 377 W.”

I do however take the point that the court would have difficulties if it were to order the first respondent, being a peregrinus to pay costs of suit. This is where the need to attach the person or property of the first respondent would arise.

However, what is desired here is a provisional relief and no costs can be awarded at this stage and assuming I had made a finding that the applicant had locus standi the relief sought would have been granted. The only handicap is that I have already ruled out that the applicant has no locus standi in this matter.

On Merits

Ordinarily and having determined that the applicant has no locus standi the matter would have ended here. However, given the fact that I allowed the parties to address me on merits I must deal with the parties submissions on merits.

Assuming I have erred in making a finding that the applicant has no locus standi when in fact it has (which position I am not conceding to) the applicant would still be faced with yet another monumental challenge.

It is clear to me that there is nothing in the filed papers which suggests that the first respondent has violated its guidelines or rules of the competition in determining the applicant as having failed the competition. There is overwhelming evidence of cheating on the part of the applicant and the discretion was entirely with the first respondent as the owner of the project to either condone or not to condone the conduct of the applicant. The first respondent, by appointing a team of auditors cannot be held hostage by such audit reports but must use its discretion in evaluating such reports.

It occurs to me that the first respondent was within its rights to compile “Annexure Q” which spelt doom for the applicant. If the applicant felt that the procedure adopted in pronouncing its failure was wrong, then the closest the applicant could have done was to file an application for review.

In my view, it would not enhance the competition ethos if the court were to enter the arena and pronounce the applicant as winner in the face of adverse audit reports. The numerous complaints raised against the applicant which led to the unearthing of adverse findings by the audit teams certainly militated against declaring the applicant as the winner.

In passing, it struck me as very strange and quite unusual that before an audit is carried out a “winner” is announced whose confirmation has to await the outcome of an audit report or reports.

To my mind that approach is most undesirable and is the primary cause of the confusion which prompted this application. The pronouncement of winners would be neater if upon oral presentations by the participants they are deferred to await the outcome of the audit reports.

Finally, whichever way one looks at the application, it would not be possible to grant the relief sought.

The applicant’s application is dismissed with costs both on the points in limine and or alternatively on merits.

Coghlan Welsh & Guest, applicant’s legal practitioners

Atherstone & Cook, 1st respondent’s legal practitioners

Dzimba Jaravaza  Associates, 2nd respondent’s legal practitioners