Judgment record
Farainesu Mutamba and Francis Garirai and Edson Mudningi and Sauro Muvinji and Elijah Gonye and Phestas July Manyawi and Nyembesi Sadomba and Zeber Masuku and Martha Mafukame and Ignition Mutubuki and Phillip Tagwirei and Tichivangani Mukaka v The Zimbabwe Cane Farmers Association
HH 685-18HH 685-182018
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FARAINESU MUTAMBA
and
FRANCIS GARIRAI
and
EDSON MUDNINGI
and
SAURO MUVINGI
and
ELIJAH GONYE
and
PHESTAS JULY MANYAWI
and
NYEMBESI SADOMBA
and
ZEBERT MASUKU
and
MARTHA MAFUKAME
and
IGNITION MUTUBUKI
and
PHILLIP TAGWIREI
and
TICHIVANGANI MUKAKA
versus
THE ZIMBABWE CANE FARMERS ASSOCIATION
HIGH COURT OF ZIMBABWE
CHIRAWU –MUGOMBA J
HARARE, 8, 15, 16, 17 and 24 October 2018
OPPOSED MATTER – DECLARATUR
T. Mpofu for the applicants
L. Uriri for the respondent
CHIRAWU-MUGOMBA J: On 25 April 2018 the applicants filed a court application
for a declaratur seeking the following relief against the respondent:
a. That the 1st to the 12th applicants be and are hereby declared members of the
respondent.
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b. That the respondent be and is hereby ordered to accept payment of outstanding levies
and subscriptions by 1st to 12th applicants, to restore their rights as full members of the
Association and to furnish them with written communication of such restoration to
full membership rights.
c. That the respondent be and is hereby compelled to comply with the 1 st to 12th
applicants’ request for information and documents relating to the affairs of the
respondent which include but are not limited to minutes of meetings held,
composition of executive committee, names of any other office bearers, financial
information and any other information relating to the respondent that the said
applicants may require.
d. That the respondent shall pay the applicants costs of suit on the legal practitioner to
client scale.
The requirements and the law relating to a declaratur has been pronounced in a
plethora of cases. In Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994
(1) ZLR 337 (S) GUBBAY CJ (then) pronounced the remedy available in terms of s 14 of the
High Court Act [Chapter 7:06] which reads:
“Section 14 of the High Court Act
14. High Court may determine future or continent rights.
The High Court may, in its discretion, at the instance of any interested person, inquire into
and determine any existing, future and contingent right or obligation, notwithstanding that
such person cannot claim any relief consequential upon such determination”
The learned Chief Justice (as he then was) said on page 343 [G-H], 344 [A-F]:-
“The condition precedent to the grant of a declaratory order is that the applicant must be an
interested party, in the sense of having a direct and substantial interest in the subject matter of
the suit which could be prejudicially affected by the judgment of the court. See United Watch
& Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C)at 415;
Milani & Anor v South African Medical & Dental Council & Anor 1990 (1) SA 899 (T) at
902G-H. The interest may relate to an existing future or contingent right. The court will not
decide abstract, academic or hypothetical questions unrelated to such interest. See Anglo-
Transvaal Collieries Ltd v S A Mutual Life Assurance Soc 1977 (3) SA 631 (T) at 635G-H.
But the existence of an actual dispute between persons interested is not a statutory
requirement to the exercise by the court of jurisdiction. See Ex parte Nell 1963 (1) SA 754
(A) at 759-760A. Nor does the availability of another remedy render the grant of a declaratory
order incompetent. See Gelcon Investments (Pvt) Ltd v Adair Properties (Pvt) 1969 (2) RLR
120 (G) at 128A-B; 1969 (3) SA 142 (R) at 144D-F.
This then is the first stage of the determination by the court.
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At the second stage of the enquiry, it is incumbent upon the court to decide whether or not the
case in question is a proper one for the exercise of its discretion under s 14. What constitutes a
proper case was considered by WILLIAMSON J in Adbro Investments Co Ltd v Minister of
the Interior and Ors 1961 (3) SA 283 (T) at 285B-C, to be the one which generally speaking,
showed that:
“…… despite the fact that no consequential relief is being claimed or perhaps could
be claimed in the proceedings, yet nevertheless justice or convenience demands that a
declaration be made, for instance as to the existence of or as to the nature of a legal
right claimed by the applicant or of a legal obligation claimed to be due by a
respondent. I think that a proper case for a purely declaratory order is not made out if
the result is merely a decision of mere academic interest to the applicant. I feel that
some tangible and justifiable advantage in relation to the applicant’s position with
reference to an existing future or contingent legal right or obligation must appear to
flow from the grant of the declaratory order sought”
The applicants’ case as amplified by T Mpofu’s submissions at the hearing can be
summarised as follows: - The applicants are ordinary members of the respondent by
virtue of being members of the Chipiwa and Triangle Mill Groups in terms of the
respondent’s constitution. Sometime between 2015-2017 they failed to pay their
subscriptions and levies due to the respondent. The respondent send the applicants notice
dated the 6th of November 2015 requesting them to pay the levies. They failed to pay
within the stipulated 30 days and this resulted in their rights to vote on any matters
relating to the respondent being suspended. Sometime between September and November
2017, they paid the outstanding amounts so as to regularise their membership. The
applicants’ legal practitioners advised the respondent of the full payment and requested
some details pertaining to the affairs of the respondent. The respondent through its legal
practitioners responded by stating that the applicants were not entitled to the information
requested since they had renounced their membership. Further that the applicants had not
stated what the payments were for and the respondent had rejected such payments.
The respondent opposes the application as amplified by L Uriri at the hearing.
The respondent contends that the applicants at various times applied and were admitted
into membership of the respondent. However sometime in 2015, the 1 st applicant being in
the lead, the applicants began a series of actions which can only be interpreted as a
renunciation of their membership when they instructed millers not to remit levies to the
respondent. The respondent in its opposing affidavit particularised the conduct of the
applicants that in its view shows that they have renounced their membership. Whether or
not the applicants renounced their membership by conduct will be critical to the
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resolution of this matter. The respondent also raised three points in limine these being
that:
a. The 3rd to the 12th applicants are improperly before the court. The 3 rd to the 12th
applicants’ affidavits were sworn on the 21 st of April 2018, whilst the 1 st applicant’s
affidavit was sworn two days later on the 23 rd of April 2018. Therefore the 3 rd to the
12th applicants were improperly before the court.
b. That the matter has material disputes which relate to the issue of payments of arrear
levies- that (apart from the fact that there was no basis for the applicants to make
payments), this court cannot without evidence being led ascertain how much in levies
maybe due and there is need to calculate what each applicant owes.
c. That the matter is lis pendens since there is a pending dispute before this court in HC
2361/17 wherein the respondent seeks to interdict the 1 st applicant and all his
colleagues. In that matter, the opposition by the 1 st applicant is that all applicants are
members of the respondent and some of them (including the 1 st applicant) are
executive members of the respondent. A determination by this honourable court in
that matter that the 1st applicant and his colleagues re entitled to represent the
respondent as executive members would impliedly mean that they are deemed
members already as one cannot be an executive member of the respondent without
being a member first.
Both the applicants and respondents dealt adequately with the points in limine in the
heads of argument. I propose to deal with these points in sequence.
3rd to the 12th applicants being improperly before the court
The response by the applicants to the respondent’s assertion that they are improperly
before the court is that the 3rd to 12th applicants all read the 1st applicant’s affidavit before
swearing to theirs because these were prepared simultaneously after instructions were been
given to legal practitioners. Therefore whether they were sworn to earlier or later is neither
irregular nor fatal. Even if it was, it does not affect the matter before the court since
circumstances are all the same hence a decision on one affects the rest. This assertion by the
applicants is indeed bold and pays little regard to the meaning of an affidavit. An unsworn
document remains just that – a document. Therefore when the 3rd to the 12 th applicants
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averred in their affidavits each that, “I have read the founding affidavit (my emphasis) of
Farainesu Mutamba and I fully associate myself with the contents thereof and I hereby abide
by his averments as if they were my own” this was misleading. There was no affidavit by
Farainesu Mutamba that they could fully associate themselves with. An affidavit is not just
any document. It is one to which the deponent swears before a competent person that the
contents therein is the truth. It has evidentiary value (See generally the Civil Evidence Act,
[Chapter 8:01]. In Condurago Investments (Pvt) Ltd T/A Mbada Diamonds v Mutual
Finance (Pvt) Ltd HH-630-15, BHUNU J expressed displeasure regarding an instance when a
legal practitioner certified a matter as being urgent on the basis that this was done some days
before the founding affidavit had been sworn to. He stated as follows:
“As we have already seen in this case a vital essential element for a valid certificate of
urgency is missing in that the certificate of urgency was prepared without recourse to a valid
founding affidavit as it predated the affidavit. That being the case, the certifying lawyer
could not have properly applied his mind to the facts arising from a non-existent
founding affidavit. For that reason alone I come to the conclusion that the urgent chamber
application is fatally defective for want of an essential element of such an application. The
urgent chamber application is therefore unsustainable.” ( my emphasis)
The casual approach by the applicants to the fact that the 3rd to the 12th applicants
associated themselves with a document (not an affidavit) deserves censure. What they saw
before swearing to their own affidavits was a document and it is baffling then that they claim
to have read the ‘affidavit’ of the 1st applicant. The 3rd to the 12th applicants are therefore
improperly before the court. Their saving grace is that the order sought is one in rem and if
the application is granted, it will not exclude them.
There are material disputes of facts
It is not every case where there are material disputes of facts (real or imagined) that
warrants the leading of oral evidence.
In the South African case of Plascon-Evans Paints Ltd v van Riebeeck Paints [Pty]
Ltd1 CORBETT JA stated as follows2:
“It is correct that, where in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant’s affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent, justify such an order.
…………... In certain instances the denial by respondent of a fact alleged by the applicant
1
1984 [3] SA 623 [A]
2
At pp 634H – 635B
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may not be such as to raise a real, genuine or bona fide dispute of fact. If ….. the Court is
satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on
the basis of the correctness thereof and include this fact among those upon which it
determines whether the applicant is entitled to the final relief which he seeks ……….”
I fully associate with the Plascon-Evans rule. The issue on the levy arrears is not in
my view one that creates disputes of facts. Should the application be successful, the exercise
to determine who owes what is not one that requires the court to be involved in as it can be
easily determined.
The matter is lis pendens
The respondent averred that the matter is lis pendens as per HC 2361/17 in terms of
which the respondent seeks to interdict the 1 st applicant and his colleagues (2nd to 12th
applicants) from purporting to represent the respondent in any manner whatsoever. In that
case, the order by CHITAKUNYE J is to the following effect,
Pending the determination of this matter, the applicant is hereby granted the
following relief:
1. The respondent and any persons acting on his behalf or for his interests be and are
hereby interdicted from misrepresenting by conduct or otherwise that they have
authority to represent the applicant or act on its behalf in any manner whatsoever.
HC 2361/ 17 is about control of the respondent whereas this present matter relates to
membership. The applicants seek a declaratur which if granted will dispose of all other issues
afflicting the respondent. In any event, the applicants made it clear in the answering affidavits
that they were not opposed to the confirmation of the provisional order.
Merits
Having disposed of the points in limine I now turn to the main matter.
It is not in dispute that the affairs of the respondent are dealt with through a written
constitution. Although this issue is not in contention, it is prudent that I deal with the legal
status of the respondent. The fact that it has a constitution puts it in the realm of a common
law universitas. In Christian Faith Tabernacle v Sparrows Nest Ministries, HH-69-09, and
PATEL J stated as follows:
“ Having regard to all of the foregoing, it seems clear that the plaintiff meets the requisite
criteria for a duly constituted universitas, viz. a body endowed with perpetual succession and
the capacity to acquire and own moveable and immovable property. It is also endowed with
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the capacity to do everything necessary to effectuate its objectives, including by implication
the power to advance and protect its property rights.”
It is not in dispute that respondent’s constitution has no provision for termination of
membership. It only has provision for ‘suspension’ of voting rights and resumption of full
membership as follows:
16. LEVIES
16. 1 A member who fails to pay his levies, subscriptions or other charges due to the
Association within (30) days of notice in writing being served on him requiring him to
do so, shall lose his right to vote on nay Association matter and the Association shall
have the right to claim and recover, by legal means all outstanding amounts owing to
it by the defaulting member.
16.2 Upon payment of all outstanding amounts, a member shall resume full
membership with all the rights of a member.
In the event of a dispute, the court looks to the constitution as aptly stated by Bamford in The
Law of Partnership and voluntary Association in South Africa, 3rd ed, 1982 @ p 132-3:-
‘…the relationship between the parties is contractual…This contract falls to be construed by
the court according to the ordinary rules of construction; the court cannot, because it
considers the contract unreasonable from the point of view of one of the parties, depart from
the language used and attempt to make it a reasonable one according to its standards. It
cannot, because it might disapprove of some of its terms, disregard them or give them a
meaning other than arises from the ordinary and natural meaning of the language employed.
Accordingly, the ordinary rules relating to implied terms and restraints of trade apply’
As already stated, the position adopted by the applicants is that they are still members
of the respondent. They did not pay levies for a certain period but they have since paid albeit
that the respondent has rejected the payments. The respondent on the other hand contends
that the applicants have repudiated or renounced membership through their conduct. In other
words as I understand it, the respondent contends that the applicants have resigned by
conduct and further that the applicants cannot rely on section 16:1 and 16:2 of the
constitution since that clause does not mean that members cannot resign or renounce their
membership. It is intended to cover those members who are willing and do participate in the
affairs of the respondent except for the exercise of the right to vote. The legal position in
relation to resignation where a constitution contains no provision has been laid out by
Bamford (supra) @ p 142 as follows:
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“If the constitution contains no provision as to retirement or resignation, a member may retire
or resign at any time, without the consent of the other members. A resignation does not
normally have to be formal to be accepted-for example, by the secretary –to be effective.
Thus a letter of resignation send in and received cannot be revoked. There can be resignation
by conduct (my emphasis) as well as by words, and a sufficient degree of inertia, such as not
paying annual subscriptions over a period of three years can constitute conduct for this
purpose”.
In its heads of argument, the respondent made reference to the Supreme Court
decision in Church of the Province of Central Africa v Diocesan Trustees, Harare Diocese
2012(2) ZLR 392 (S) where on page 417 MALABA DCJ (as he then was) stated the following:
“There must be many people who leave offices in voluntary associations without giving
notice. If the contention by Dr Kunonga was to be accepted, it would mean that a person
could leave office and return to an organization when benefits arise as long as he or she can
claim that he or she had not resigned office because no written notice was given.”
And further that; - (on p 418 –C-D)
“By his own words and conduct he had placed himself to a position in which he felt no
obligation to give due obedience to the Archbishop. He occupied an equivalent position of
authority and relevance in another church. Resignation of a bishop is a question of fact
dependant on the evidence of the conduct of the individual. Where evidence shows that the
individual exercised his/her right to terminate the relationship with the church, the resignation
takes effect immediately the conduct is committed.”
The effect of the judgement is to put it beyond doubt that Zimbabwean law recognises
resignation from a voluntary association by conduct. T Mpofu attempted to draw a distinction
between renunciation of membership or repudiation. In my view, it is a distinction without a
difference as resignation, renunciation or repudiation of membership all have the same effect-
that a member has left an association. The central issue in this matter therefore becomes this-
have the applicants’ resigned membership from the respondent by conduct? Put differently-
what conduct on the part of the applicants can be said to show that they resigned from the
respondent? This is a matter of fact.
Perhaps it may also be prudent to consider the characteristics of a common law
universitas. In Flexi Holiday Club and Ors v La Lucia Sands Shareblock Limited Case no
19/02 a decision of the Kwazulu-Natal High Court, the five core characteristics were stated as
follows:
“1.1 The club must be an association founded on the basis of mutual agreement between
its constituent members. This entails that the club will come into being if the
individuals who propose forming the club have the serious intention to associate inter
se as members and are in agreement on the essential characteristics and objectives of
the club (universitas) pleaded next:
1.2 The club must be an association or entity distinct from its members and independent
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from the individual members’ rights and duties: as such, a club (universitas) must be
autonomous and free from external control or influence especially by or from its
founders (or founder members): external control and influence by founders members
are features of foundations, trusts, unincorporated associations, proprietary or
subsidiary companies in a group of companies, and not of bona fide or genuine
universitates personarum :
1.3 The club must be an association which has perpetual succession:
1.4 The club must be an association or entity capable of owning property apart and
independently from its members and must be capable of suing or being sued apart and
independently from its members: and finally,
1.5 The object which an universitas personarum pursues must be lawful and must not
primarily be the acquisition of gain or profit for itself and/or its members.”
What emerges is that the association’s members must have common interests and
must be moving in the same direction. If a member starts behaving in a manner that is
inimical to the interests of the association, that may show that they are no longer interested in
associating.
Turning to the facts at hand, although the applicants claim that they could pay the
arrear levies as and when they deemed fit, I agree with the respondent’s assertion that clause
16.1 and 16.2 only covers members who have a serious intention to participate in the affairs
of the respondent except for the exercise of their right to vote. The very act of not paying
levies taken in totality with all other acts of the applicants’ shows conduct that is inimical to
the interests of the respondent. It would have been a different matter if the applicants were to
pay arrears without having engaged in certain behaviour between 2015-2017 which is
inimical to the respondent’s interests.
The applicants despite an opportunity to do so did not refute the respondent’s
contention that they (applicants) instructed millers not to remit levies to the respondent.
Applicants’ response to the disruption of the AGM in the answering affidavit is especially
telling, ‘Applicants did not disrupt the meeting as alleged but they objected to Mr Lagesse
chairing the meeting which they were entitled to as they strongly felt he was not the
appropriate person to chair’ There is no averment of who they felt should chair the meeting.
Section 11.7 of the constitution specifically states that, ‘At all General Meetings, the
Chairman of the Association, or in his absence, the vice chairman of the Association, shall
preside over the meeting….’ How a chairperson as mandated in the constitution becomes an
inappropriate person to chair is baffling. The applicants also proceeded in clear contravention
of the constitution to ‘appoint’ their own executive committee to which the 1 st, 3rd, 4th and 6th
applicants were purportedly appointed to the executive. The 20 October 2015 minutes shows
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that they ‘rejected’ the Lagesse led executive. The applicants do not show how the ‘new’
executive was appointed in compliance with the constitution. All they did not want was the
Lagesse led executive. The meeting to elect a ‘new’ executive was actually held on the same
day as the AGM as a dare to the recognised executive of the respondent. They proceeded to
hold a series of other meetings under this ‘new executive’ until interdicted by this court in
HC 2361/17. In that matter CHITAKUNYE J held that the 1st applicant created a parallel
structure. In the answering affidavit the response by the applicants to this is as follows, ‘ For
the avoidance of doubt, the so-called association was merely a mechanism by the aggrieved
applicant’s to organize themselves for the sole purpose of asserting their rights as members
of the respondent as a group. The finding by CHITAKUNYE J has not been challenged. The
applicants are not challenging the confirmation of the provisional order in that matter. The
effect of this is that indeed the applicants formed a parallel association which conduct is
tantamount to acting against the interests of the respondent. The parallel association was also
confirmed by the applicants’ legal practitioners by way of a letter dated the 1 st of August
2017 addressed to the respondent’s legal practitioners. In that letter it was confirmed that as
part of the parallel structure, the applicants had opened an account in the name of the
respondent. The account had since been closed but the money as would have been expected if
the applicants were averring that they were still members of the respondent was instead going
into an account named as Chipiwa Mupapa Association. To that end, parallels can be drawn
between the conduct of the applicants to that of the respondents in the Church of the Province
of Central Africa case (supra). Having accepted that they acted illegally by holding
themselves as representing the respondent and it being established that the applicants were
carrying out what can only be termed as nefarious activities, the applicants cannot be heard to
claim that they can simply be declared members of the respondent.
In HC 8128/16, the 1st applicant sought an order that certain members of the
respondent’s executive committee be interdicted from acting as members. In that application,
he claimed that he is a member of the respondent and the immediate question that arises is –
if he is a member as alleged, why is he seeking in this current application a declaratory order
that he is a member. Although the application was withdrawn, it further points to the fact that
the 1st applicant especially acted contrary to the interests of the respondent and was bent on
disrupting the activities and affairs of respondent. Notwithstanding the provisional order in
HC 2361/17, the 1st applicant addressed an email to certain persons dated the 14th of June
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2017 clearly ‘mocking’ the Schwarer led executive that it only had six members and not the
204 members that farm in the Chipiwa and Triangle Mill groups. This ignores the fact that
this is the legitimate executive of the respondent and there is no explanation why the 1 st
applicant would clamour to be declared a member of a six-member only association.
The applicants in support of their contention that they never had any intention to
renounce membership averred that they could not simply abandon an association to which
they contributed for years without getting any share of the assets of the association. As
indicated in the Flexi Club case (supra), ‘The object which an universitas personarum
pursues must be lawful and must not primarily be the acquisition of gain or profit for itself
and/or its members.’ The only time at which assets can be shared is upon adoption of a
resolution to dissolve the association – as per clause 19.2 and 19.3. That therefore puts paid
to the applicants’ assertion.
The totality of the applicant’s conduct is unequivocally that of resignation or
renunciation of membership by conduct. There is no legal requirement that the respondent
‘accepts’ the resignation. (See Bamford (supra). The absurdity of requiring confirmation of
resignation was well captured in the Church of the Province of Central Africa case (supra)
that a member can for a certain period engage in conduct that undermines an association and
when the member comes to their senses they then claim that their resignation was never
accepted.
The next important consideration is when it can be said that the applicants resigned or
renounced their membership. In my view, they did so on 20 October 2015 when they decided
to elect as minuted a ‘new executive committee’. That marked the beginning of conduct
inimical to the interests of the respondent. It is pertinent to note that at the time that the
applicants voted a ‘new’ executive committee into power, they did not even have voting
rights as per 16:1 of the constitution.
Having found that the applicants ceased being members of the respondent on 20
October 2015, it follows that there is no legal basis for declaring them to be members of the
respondent, and the respondent cannot be compelled to accept payment of outstanding levies
and to confirm that the applicants’ full rights have been restored. There is also no legal basis
for the respondent to furnish information and documents to the applicants.
Costs are always in the discretion of the court. The applicants have a constitutional
right to litigate in as much as the respondent has a constitutional right to defend itself. I do
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not perceive the applicants as having acted out of malice and I do not also perceive the
respondent to have been actuated by malice in defending the application. Therefore an order
of costs on a higher scale is not warranted.
The applicants have failed to meet the requirements for the granting of a declaratur
and accordingly it is ordered as follows:
The application be and is hereby dismissed with costs.
Mawere Sibanda, applicants’ legal practitioners
Matizanadzo and Warhurst, respondent’s legal practitioners