Nhaka Yevana Housing Cooperative Society AND 24 Others V Reydale Ridge PARK (Pvt) LTD AND CEM Construction (Pvt) LTD AND Housing People OF Zimbabwe AND Zimbabwe Defence Forces

### Preamble
HH 87-2007
HC 1690/07
NHAKA YEVANA HOUSING COOPERATIVE SOCIETY
and
24 OTHERS
---------


==============================

NHAKA YEVANA HOUSING COOPERATIVE SOCIETY
and
24 OTHERS
versus
REYDALE RIDGE PARK (Pvt) Ltd
and
CEM CONSTRUCTION (PVT) LTD
and
HOUSING PEOPLE OF ZIMBABWE
and
ZIMBABWE DEFENCE FORCES

HIGH COURT OF ZIMBABWE
MAKARAU JP
Harare 9 October and 19 December 2007

Opposed Application

Mr K Chirenje, for applicants.
Mr H Zhou, for the respondents.

MAKARAU JP: The first applicant is a housing cooperative, duly registered in terms of the laws of Zimbabwe. The remaining applicants have not been described in the papers before me but appear to be housing cooperatives as well.

The first applicant filed a founding affidavit, deposed to by its chairman. From that affidavit, the following emerge:

On 18 July 2000, the first applicant entered into a written agreement of sale with the first respondent, a property owning company, in terms of which it purchased a certain piece of land. On various but different dates, the remaining applicants also purchased various pieces of land from the first respondent under various written agreements of sale that were attached to the application.

In terms of the written agreement of sale between the first applicant and the first respondent, it was a specific term of the agreement that the contractors to develop the site would be appointed by the first, third and fourth respondents.

The second respondent is in charge of developing the land.

The applicant is not aware of how the second respondent was appointed to develop the site but was later on advised of the appointment by the first respondent. Again it later came to the knowledge of the applicant that the first and second respondents have the same directors and are sister companies.

In terms of the written agreement of sale, the third respondent was to act as the project and finance manager of the housing scheme. In this capacity, the third respondent would receive all payments by the applicants to the first respondent for the cost of developing the site. At some stage, the third respondent declined to be the project and financial managers of the development citing lack of progress on the site as the reason for its withdrawal. It then stopped receiving the payments from the applicants. From that date on, the applicants made their payments directly to the first respondents in response to a request to do so by the first respondent, thereby bypassing the third respondent.

No progress was made on the developments. Piqued by this, the applicants approached the Ministry of Local Government, Public Works and Urban Development for help but to no avail. The feather that broke the camel’s back appear to have been the demand by the first applicant of further payments from the applicants in November 2006 which the applicants found exorbitant. This application was then filed.

In the application, the applicants seek an order declaring the appointment of the second respondent as contractor to the project null and void. In the second prayer, they seek an order compelling the first, third and fourth respondents to appoint an independent contractor within 14 days of the order failing which Costain Zimbabwe are to appoint a contractor to work on the site. The draft order ends with a prayer for costs against first and second respondents on the higher scale.

No founding affidavits were filed on behalf of the second to twenty-fifth applicants. What were filed is a number of “supporting affidavits” each deposed to by the chairperson of the respective applicant. The contents of the each of the twenty four affidavits are standard. The standard content of each affidavit is to the effect that the deponent has read and understood the contents of the affidavit deposed to by the chairperson of the first applicant which is confirmed to be true and correct. Each affidavit ends in the fourth paragraph with the statement that the applicant in question also purchased a piece of land from the first applicant. No further averments are made as to whether the first respondent breached the attached agreement of sale and if so, in what respect.


The application was opposed by the first and second respondents and raised in *limine* in the opposing affidavit are issues of the authority of the deponent to the founding affidavit and his capacity to bring the application on behalf of the other applicants.

Regarding the merits of the matter, the first and second respondents alleged that the first applicant is in breach of the agreement of sale as it failed to pay its pro-rata share of the development costs. The respondents went on to allege that all the housing cooperatives to which it sold land had breached their respective agreements of sale in material ways, resulting in the cancellation of these agreements.

Regarding the appointment of the second respondent as contractor, the respondents averred that the appointment was binding as it was done by the first respondent as the owner of the land sold to the applicants.

The matter was placed before me for argument as an opposed matter. I must confess that I found the state of the record most depressing in the manner in which the voluminous application and notice of opposition were filed. The papers make for painful reading as in my view, little care went into the preparation of the papers and of the matter as I shall detail below.

In my view, it is pertinent at this stage that I mention that the duty of a legal practitioner receiving instructions from a client is to sift through those instructions and identify the legal issues that arise and then determine on how best to present such issues to court. In drafting court papers, legal practitioners should not simply narrate all the instructions they receive in the order (or non order) they receive such from clients, leaving it to the court to hunt for and put together the case being presented. It is not all information from the instructions that is relevant. Similarly, those responding to founding affidavits do not necessarily have to answer each and every statement made in the founding affidavit. In my view, it takes a good legal practitioner to pick out the relevant facts and averments and no which ones can be safely ignored without compromising one’s defence.

Further, legal practitioners must identify a cause of action from the instructions they receive from their clients and ensure that this appears in the papers that they file. They cannot simply empty all before the court and expect the court to sift through the information for a possible cause of action.

Finally, the relief that is sought in an application must have a relationship with the averments made in the application and it must be capable of enforcement by the court through the recognized mechanisms laid out in the rules. In this regard I make specific reference to one of the prayers in this application to the effect that the Zimbabwe Defence Forces, cited as the fourth respondent be compelled to appoint an independent contractor in a private agreement between the applicants and the first respondent and to which the Defence Force was not a party. The same prayer proceeds to hold that in the event that this fails, Costain Zimbabwe should appoint a contractor for the parties. I cannot see the legal basis upon which the Defence Forces or Costain Africa can be compelled to perform a duty in an essentially private arrangement between the feuding parties and to which they are not privy.

It would appear to me that the applicants were advised to approach the court for remedies available under review proceedings yet their relationship with the first respondent is governed by contract. In this regard, I note that the general allegation against the first respondent is that it breached the agreement of sale as between the parties. If this is correct, then it appears to me that the remedies available to the applicant are therefore to be found in the law of contract and not in the administrative law of review. It is my further view that an act done contrary to the specific terms of an agreement between the parties is not a nullity at law. It simply entitles the other party to make an election as to the status of the contract. The injured party cab elect to have the contract terminated and seek damages or it may elect to hold the defaulting party to the contract. Such remedies are to be found in the law of contract itself.

I now turn to the specific issues raised by the respondents in the opposing affidavit. These are the mandates of the persons deposing to the affidavits filed on behalf of the applicants and locus standi of the first applicant to bring the application on behalf of the other applicants. Finally, I will deal with the issue of the procedure that has been adopted by the first applicant in bringing an application in the face of numerous disputes of facts.

It is trite that the applicants, being all fictitious legal persons, can only act through the agency of an authorised person. The authority of the person so acting is to be derived from the provisions of the charter or constitution creating each applicant. It is not enough for a deponent to simply allege that they are the chairperson of the cooperative society for such an appointment on its own does not clothe the deponent with authority not only to depose to the affidavit, but to bring litigation on behalf of the society. As with the authority of a director to act on behalf of a company, this is a well established legal principle, which the courts cannot ignore. (See Tapson Madzivire and others v Misheck Brian Zvarivadza and others Sc 10/06).


The mandates of the chairmen of the various housing cooperatives were specifically challenged in the opposing affidavits. This cast a burden on the many deponents to the affidavits to prove their authority. None of them did.

On the basis of the above, I would hold that the authority of the deponent to the affidavits filed on behalf of the applicants to bring this application on behalf of the applicants has not been fully established.

Secondly, the applicants in this matter have been mis-joined in my view. It is common cause that each applicant has an individual sale agreement with the first respondent upon which it is suing. This is not a class action but individual claims for relief against the respondents, founded in contract law.

In any event, the second to the twenty-fifth applicants have not laid out their alleged causes of action against the respondents but have simply confirmed what the first applicant is alleging against the first respondent as a breach of the specific agreement of sale as between the parties. No averment has been made that the agreements of sale between the other applicants and the first respondent are similar to the one between the first applicant and the second respondent in all respects and have been similarly breached.

Finally, I agree with the first and second respondents that the matter is replete with disputes of facts such that application procedure should not have been resorted to. The alleged breach of the agreement by the first respondent is denied and was denied even before the application was filed. A counter averment was made before the application was filed that instead, it was the applicants that were all in breach of the agreements of sale which the first respondent had purportedly cancelled. In such circumstances, the conduct of the applicants in bringing an application is the conduct that was disapproved of in *Masukusa v National Foods Ltd and Another* 1983 (1) ZLR 232 (H).

I equally disapprove of such conduct.

In the result, I make the following order:

1. The application is dismissed.
2. The applicant is to bear the first and second respondents’ costs of the application.


Mawere & Sibanda, applicant’s legal practitioners.

Mhiribidi, Ngarava & Moyo, 1st and 2nd respondents’ legal practitioners.
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