The Trustees For The Time Being Of Young Africa Trust v Stiching Young Africa International and The Trustees For The Time Being Of Young Africa International – Africa Hub Trust

### Preamble
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HH490/23
HC970/23
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THE TRUSTEES FOR THE TIME BEING OF YOUNG AFRICA TRUST

versus

STICHING YOUNG AFRICA INTERNATIONAL

and

THE TRUSTEES FOR THE TIME BEING OF YOUNG AFRICA INTERNATIONAL – AFRICA HUB TRUST

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 29 May & 16 August 2023

COURT APPLICATION

Adv.G Madzoka, for the applicant

Adv. T Zhuwarara, for 1st and 2nd the respondents

MANZUNZU J

INTRODUCTION:

The applicant seeks relief in the form of a final interdict against the 1st and 2nd respondents in the following terms:

“(1) The application for a final interdict against the 1st and 2nd respondents be and is hereby granted.

(2) The 1st respondent and 2nd respondent and anyone acting through them or on their behalf be and are hereby barred, interdicted, restrained, prohibited and stopped from assuming the administrative, advisory and supervisory role of the Board of the Applicant or interfering directly or indirectly with the administration and financial affairs of the Applicant which vests with the Trustees for the time being of the Applicant.

(3) The 1st and 2nd respondents bear the costs, jointly and severally, the one paying the other to be absolved on a legal practitioner and client scale.”

The applicant is The Trustees For The Time Being Of Young Africa Trust (hereinafter referred to as Young Africa Trust) is a charitable and educational Trust established in 1998 by Young Africa (The Netherlands) a Dutch charitable foundation. The latest Board of Trustees for the applicant assumed office in 2022. The applicant says it is an independent and locally managed non-governmental organization.

The 1st respondent, Stiching Young Africa International (hereinafter referred to as Young Africa International ) is a charitable foundation registered in Netherlands.

The 2nd respondent is The Trustees For The Time Being Of Young Africa International – Africa Hub Trust (hereinafter referred to Africa Hub Trust) was established in 2015 to implement the objects of Young Africa International.

There is an affiliation agreement signed on 3 October 2016 between Stiching Young Africa International  and Young Africa Zimbabwe. The 2nd respondent, Young Africa International says Young Africa Zimbabwe is as a matter of fact the applicant i.e. Young Africa Trust. The applicant on the other hand says it is not the same as Young Africa Zimbabwe. Applicant dissociates itself from the name Young Africa Zimbabwe.

The 2nd respondent says it derives its authority from the affiliate agreement to interfere in the affairs of the applicant. In fact, what sparked this dispute is the dismissal and termination of the applicant’s board by the 2nd respondent. The 2nd respondent says it has those powers as per affiliation agreement, and applicant says it’s not a party to such agreement.

The issue therefore is whether the applicant is a party to the agreement, and if so whether the 2nd respondent acted within its powers.

The respondents ring fenced themselves with points in limine which are subject of this judgment. Similarly the applicant also attacked the notice of opposition and resolutions authorising depondents  to the opposing affidavit as invalid.

The preliminary points raised by the respondents range from an attack on the jurisdiction of the court, locus standi of the applicant’s trustees and whether there are material disputes of fact.

I have ranked these preliminary points the first of which deals with whether or not this application is properly before me.I considered the issue of jurisdiction as one which can be argued together with the merits.

Locus standi

Advocate Zhuwarara’s argument was that the applicant was improperly cited. He referred to the applicant’s founding affidavit on the description of the parties which says, “The applicant is Young Africa Trust a duly registered Trust in terms of the laws of Zimbabwe…”

He also referred to the Trust Deed in paragraph 2 which states that, “The name of the charitable trust hereby constituted shall be Young Africa (known otherwise in short as YA).”

It was further argued for the respondents that Young Africa Trust ought to have sued in its own name and not through the Trustees.

In response Advocate Madzoka for the applicant, relied on the authority of Federation of Non-Governmental Organisation Trust and Another	v Musengezi & 7 Others, HH 645/22 where the court stated at page 5 of the cyclostyled judgment:

“A trustee or trustees may sue on behalf of a trust, see Gold Mining and Minerals 	Development Trust v Zimbabwe Miners Federation 2006(1) ZLR 174; WLSA & Ors v 	Mandaza 2006(1) ZLR 174: A trust has no legal personality. It  acts through 	its 	trustees who and carry out its objectives for and on behalf its beneficiaries.  It is 	controlled by the trust deed which specifies  what the trustees  can and cannot do . 	Where proceedings are brought by a trust, it ought to be represented by all its trustees 	in  all litigation unless the trust deed stipulates otherwise, see Trustees of Leonard 	Cheshire Homes Zimbabwe Central Trust v Chiite and Ors SC 306 / 10; Mutanga v 	Mutanga SC 85/22. Where a trust deed stipulates that one  trustee may  represent a 	trust in litigation and a trustee is duly nominated and authorised by other trustees to 	bring proceedings on behalf of a trust,  he has an entitlement to bring proceedings on 	behalf  of the trust thereby obviating the requirement for  citation or joinder of all the 	trustees.” (underline is mine).

This case sets a general rule that a Trust has no legal persona, it ought to be represented by all its trustees in litigation unless that position is altered by the Deed.

It was then argued for the applicant that there is no clause in the Deed which bars the Trustees to sue on behalf of the Trust.

In response Advocate Zhuwarara was quick to refer to the Deed in paragraph 3 (a) & (b) which states that:

“ a) The Trust shall have perpetual succession unaffected by changes in the members of its trustees, and shall be capable of owning property and incurring liabilities in its own name and of suing and being sued in a court of law.

b) The Trust shall, in relation to its property and affairs for the purposes of carrying out its objects or performing any acts incidental thereto, have all rights, powers and previleges which it would have possessed had it been a private individual of full legal capacity, except as limited by law, and, for the purpose of greater clarity the trust is hereby declared to be a universitas personarum.”

I agree with Advocate Zhuwarara on the point that paragraph 3 of the Deed sets out a departure from the general rule where Trustees sue on behalf of the Trust. In casu, the Trust is declared to be a universitas personarum, which means it can sue or be sued in its own name and hence no need for Trustees to act on its behalf. In the premise, I find that the applicant has no locus standi. This means the application is not properly before me. With this finding I see no point to deal with the rest of the preliminary points.

DISPOSITION

The application be and is hereby struck off the roll with costs.

Kanokanga and Partners, applicant’s legal practitioners

Atherstone and Cook, respondents’ legal practitioners