Nehanda Housing Co-operative v Alvord Nkomazana

### Preamble
1
HH 457-18
HC 4220/17
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NEHANDA HOUSING CO-OPERATIVE

versus

ALVORD NKOMAZANA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 25 and 26 July 2018 & 8 August 2018

Special Plea

F.G Gijima, for the plaintiff

Ms C Choniwa, for the defendant

MATHONSI J: The plaintiff is a co-operative society engaged in the noble business of providing housing for its members one of whom was, until he was unceremoniously dismissed from membership by letter dated 4 June 2015, the defendant in this matter. Following the expulsion of the defendant, the plaintiff sued out a summons against him seeking an order for his eviction from a property known as stand 5486 of 315 Retreat Township, Waterfalls Harare (the stand) on the pain of legal practitioner and client costs.

In its declaration the plaintiff made the averments that the defendant had been admitted as a member of the co-operative in 2005 in terms of Clause 7 of the plaintiff’s By-Laws. When he failed to meet his membership obligations in terms of the same By-Laws the defendant was initially suspended and subsequently expelled in terms of Clauses 21 and 23 of the By- Laws, thereby forfeiting the stand which had been allocated to him by virtue of his membership. As the defendant has refused to vacate the stand, the plaintiff craved the grant of an eviction order aforesaid. The action is contested by the defendant who, after entering appearance to defend, also filed a special plea in the following:

“The defendant pleads to the claim as follows:

SPECIAL PLEA

This Honourable Court does not have jurisdiction to hear this matter as it is a matter between a registered housing co-operative namely Nehanda Co-operative Society Limited and one of its members.

In terms of s 115 of the Co-operative Societies Act, the plaintiff should have first attempted to have the matter resolved by the housing co-operative. Failure of which the plaintiff would then have approached the Registrar in terms of s 115 of the Co-operative Societies Act.

Wherefore the plaintiff’s claim ought to be dismissed with costs on a legal practitioner and client scale.”

The plaintiff holds a different view. According to the plaintiff the matter was indeed dealt with by the co-operative which first suspended and later expelled the defendant for his indiscretions in violation of the By-Laws. The defendant’s fate was communicated to him by letter dated 4 June 2015. It reads:

“REF: NOTIFICATION OF SUSPENSION AND EXPULSION

You are hereby notified that at a special general meeting held at,

Venue: Nehanda Housing Co-operative site offices

Date: 30 May 2015

Time:1300hrs

You were suspended and expelled from being a member of the above-mentioned housing co-operative. You are therefore advised to visit the co-operative offices as soon as possible for a way forward in connection with your refunds as well as the necessary administrative issues failure of which will result in the co-operative taking a legal route at your expense. Your co-operation will be greatly appreciated.”

The expulsion letter was signed by both the secretary and the chairperson of the co-operative. As it turns out subsequent to that outcome, the defendant was given an opportunity by the plaintiff to make representations on his expulsion. This was communicated to him by letter dated 15 May 2015 which notified him of the date of hearing for that purpose namely 30 May 2015. What brought the defendant to that predicament was his failure to pay subscriptions for more than 3 months, failure to attend meetings and insubordination. Apparently, the affliction of failing to attend meetings continued to bedevil the defendant because, despite being notified of the date of the special general meeting to consider representations on his expulsion, the defendant still failed to attend that meeting and make representations as appears from the minutes of that meeting. On a vote of 42 to 5, the members resolved to uphold the defendant’s expulsion.

Mr Gijima for the plaintiff insisted that the provisions of s 115 of the Co-operative Societies Act [Chapter 24:05] were complied with because, subsequent to that, the dispute was indeed referred to the Registrar of the Co-operative Societies who delegated the responsibility of resolving the dispute between the parties to two (2) of his or her officials namely Ms Mutumhe and Ms Mutepfa. By consent of the parties I allowed Mr Gijima to produce proof of such attendance which then necessitated the postponement of the matter for that purpose. In doing so, it was hoped that proof that the dispute was referred to the Registrar would resolve the matter given that the defendant sought to bar the plaintiff from approaching this court on the single ground that it had not exhausted domestic remedies provided for in the Act.

Despite the production of the minutes of the Special General Meeting convened for that purpose on 19 November 2016, which clearly show that the two (2) representatives of the Registrar had presided over the meeting and confirmed the majority decision of the members to expel the defendant, Ms Choniwa for the defendant pursued the special plea. She submitted that the manner in which the matter was dealt with at that meeting and the outcome thereof did not satisfy the provisions of s 115 in that the Registrar did not resolve the dispute. There is no decision by the Registrar resolving the dispute between the member and the co-operative society as required by the Act. I am therefore required to decide whether, after the dispute was referred which is now common cause, the Registrar resolved it. Mr Gijima submitted that indeed the Registrar dealt with and resolved the matter through his or her representatives by upholding the expulsion. Ms Choniwa’s position is that the dispute was left hanging and unresolved.

I have said that the minutes, which the defendant has not attempted to challenge and show that the defendant was actually in attendance at the meeting held on 19 November 2016, clearly demonstrate that the Registrar’s representatives presided over the deliberations. They even conducted a poll for the members to have a second bite at the cherry, as it were, to decide whether to affirm or reverse the expulsion. When the members still voted for the expulsion, they must be taken to have upheld it, washing their hand, Pilate style, of the matter before taking their leave. Part of the minutes read:

“Ms Mutumhe and Ms Mutepfa explained the results and the meaning of the outcome to Mr Nkomazana and she also took the opportunity to plead to the members to hear Mr Nkomazana out and if possible to assist him since he was now an elderly citizen with a family to cater for. Mr Nkomazana was given the chance to plead with the delegates as well as to explain his side of the story. Mr Nkomazana said that he never refused to subscribe his monthly contributions but had only fallen on hard times due to economic challenges which he faced during the respective period and he believed that his expulsion had a lot more into it than the debt owed… The delegates generally concurred that Mr Nkomazana remains expelled and advised him to desist from threatening other members my any means as he usually does. Ms Mutumhe and Ms Mutepfa concluded that they had finished their findings and were now going to leave us as a co-operative to discuss this issue so that we bring it to finality.”

Reading the minutes as a whole and in light of that conclusion it cannot be doubted that the Registrar exhausted his or her interventions and did not find the need to overturn the decision of the members. The Registrar even allowed the defendant to mitigate and still found no reason to set aside the resolution of the members. Can it be said therefore that domestic remedies provided for in the Act were not exhausted? I think not.

In terms of s115 of the Act:

“(1) If any dispute concerning the business of a registered society arises-

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 the management or any supervisory committee; or

between registered societies;

and no settlement is reached within the society or between the societies, as the case may be, the dispute shall be referred to the Registrar for decision.”

Subsection (2) interprets a dispute to include any claim by the society for a debt due to it from a member or past member, any claim by a member and any dispute concerning the interpretation of a society’s by-laws. There is therefore no doubt that the dispute between the parties over the defendant’s failure to pay subscriptions fell under the provisions of s 115 of the Act, even after his expulsion from the co-operative. In terms of s 115(3) of the Act:

“Where a dispute has been referred to him in terms of subsection (1), the Registrar may –

settle the dispute himself; or

refer the dispute for settlement to an arbitrator or arbitrators appointed by him; or

refer the dispute to the Minister for decision.”

In light of the foregoing provisions I find as fact that the matter was indeed referred to the Registrar in terms of s 115 of the Act and that the Registrar was entitled to delegate his or her responsibilities in terms of that section to Ms Mutumhe and Ms Mutepfa in order for them to resolve the dispute. I also find as fact that the two (2) thoroughly investigated the matter and found nothing amiss with the manner in which the plaintiff had applied the By-Laws in deciding to expel the defendant. In fact, I am prepared to go as far as make a finding that the Registrar upheld the decision to expel the defendant. If he or she had not done so, the contrary finding would appear ex-facie the minutes. Quite to the contrary what appears is a finding that there was nothing wrong with the process.

I do not agree with Ms Choniwa for the defendant that no decision was taken by the Registrar merely because the representatives left the parties to try and find each other. They did so after making a finding that the defendant had been properly expelled. In any event one gets the sense that this was the easiest of disputes to be resolved because it was common cause that the defendant had failed to pay subscriptions. There was nothing to resolve there. There was no challenge or dispute on the interpretation of the By-Laws. In terms of clause 16 of the By-Laws every member has an obligation to abide, not only by the By-Laws but also by the majority decisions of the society. Clause 21 allows for expulsion even for any action considered disloyal or contrary to the interests of the society.

The defendant’s special plea which I have reproduced above, is predicated on the failure to refer the matter to the Registrar for resolution. I have found that the matter was indeed referred to the Registrar. The special plea is ill-founded. Ms Choniwa shifted ground when it became apparent that the dispute was referred. She submitted instead that the dispute having been referred to the Registrar, the latter did not make a decision. I have again found that a decision to uphold the expulsion was arrived at. In fact, to suggest, as Ms Choniwa did, that that there must exist a judgment by the Registrar or his or her representative deciding the matter, is to worry about the form than substance. I conclude that there is no merit in the special plea.

In the result, it is ordered that:

The special plea be and is hereby dismissed.

The costs shall be costs in the main cause.

F.G. Gijima & Partners, plaintiff’s legal practitioners

IEG Musimbe & Partners, defendant’s legal practitioners