Simon Muzenda Housing Cooperative Society v George Tayengwa and Minister of Local Government Public Works and National Housing

### Preamble
1
HH 288-21
HC 7088/20
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SIMON MUZENDA HOUSING COOPERATIVE SOCIETY

versus

GEORGE TAYENGWA

and

MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS

AND NATIONAL HOUSING

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 28 May, 2 & 10 June 2021

Opposed Court Application

N. Mugiya, for the applicant

N. K Mufunda, for the 2nd respondent

MUZOFA J: The applicant seeks a prohibitory interdict against the respondent, more specifically that the respondent is prohibited from interfering with the applicant’s business, barring him from masquerading as a member of the applicant, confirmation of the respondent’s expulsion from the applicant and costs of suit on a higher scale.

The applicant is a registered cooperative in terms of the laws of Zimbabwe. It is membership based. The respondent was a member of the applicant before the purported expulsion. According to the applicant, from the time the respondent was expelled he has interfered with the applicant’s administration more particularly in that in the company of one member who is now deceased went door to door to members of the applicant threatening to evict them if they did not comply with their orders. On 7 November 2020 the respondent disrupted an executive meeting convened by the applicant and has sown seeds of discontent and hatred among the members.

In opposing the application, a preliminary point was taken that the applicant has not exhausted the domestic remedies provided in s 115 of the Co-operative Societies Act

[Chapter 21:05] ‘the Act’. This dispute must be referred to the Registrar of Co-operatives ‘the Registrar’ for resolution.

In response to the preliminary point it was argued that section 115 of the Act does not include circumstances as are before the court. There is no dispute between the parties, the respondent was expelled. In any event, it was submitted that the Registrar cannot grant the relief sought in this application.

Section 115 of the Act provides an internal dispute resolution mechanism. I am not persuaded that there is no dispute between the applicant and the respondent. The expulsion of the respondent by the applicant is indicative of a dispute. I am also not persuaded by the applicant’s submission that s (2) thereof is exhaustive of the disputes that must be referred to the Registrar. The use of the phrase “without limiting subsection (1) ...” at the beginning of the subsection means the subsection does not limit the nature of disputes that must be referred to the Registrar. However the relief sought by the applicant in the form of a prohibitory interdict cannot be granted by the Registrar. It can only be granted by this court. To that extent the issue on exhaustion of internal remedies does not arise. It is up to the respondent to refer whatever he believes is the dispute to the Registrar. The preliminary point is without merit.

The requirements of an interdict are trite, the applicant has to establish a clear right, an injury actually committed or reasonably apprehended and the absence of similar protection by other ordinary remedies see Setlogelo v Setlogelo, Rowland Electro Engineering (Pvt) Ltd v Zimbank .

Although the applicant’s founding affidavit does not clearly articulate the clear right, it would appear that its right is based on the expulsion of the respondent. The respondent’s expulsion is subject to confirmation in these proceedings. My findings will either confirm the existence of a clear right or not.

I shall address the expulsion. In terms of Article 10(d) of the applicant’s constitution a member ceases to be such on expulsion by a two-third majority vote of members present and voting at a general meeting. Tapiwa Ray Masinire deposed to the founding affidavit on behalf of the applicant. The affidavit does not refer to any general meeting neither were the minutes placed before the court. The confirmation of the respondent’s expulsion can only be predicated on a demonstration that due process was complied with in terms of the applicant’s constitution. Instead of canvassing these pertinent issues the applicant’s affidavit is a narration of the alleged disruptive conduct by the respondent. The respondent actually denied that a general meeting was held where a two-third majority voted in favour of his expulsion. In the absence of evidence that the respondent was expelled from the applicant in compliance with the constitution I am unable to confirm same. It therefore follows that the applicant has failed to establish a clear right to obtain the remedy it seeks.

The applicant has to establish all the factors for an interdict to be granted. Failure to prove one of the factors is fatal to the application. In that regard it serves no purpose to consider the other factors.

Accordingly, the application is dismissed with costs.

Mugiya & Muvhami Law Chambers, applicant’s legal practitioners

Chengeta &Mufunda Law Chambers, 1st & 2nd respondent’s legal practitioners