Lusama Fashion Enterprises (Private) Limited v Mt Selinda High School and United Church of Christ in Zimbabwe

### Preamble
1
HMT 74-19
HC 162/19
---------


LUSAMA FASHION ENTERPRISES (PRIVATE) LIMITED

versus

MT SELINDA HIGH SCHOOL

and

UNITED CHURCH OF CHRIST IN ZIMBABWE

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 28 October 2019

Special plea in bar

AJ Dhliwayo., for the plaintiff

T Tazvitya, for the defendants

MUZENDA J: On 6 June 2019 the plaintiff initiated court proceedings by issuing summons against Mt Selinda High School and its responsible church authority, United Church of Christ in Zimbabwe as co-defendant claiming payment of US$29 384-00, interest at the prescribed rate and costs of suit on an attorney-client scale.

On 19 July 2019 defendant entered appearance to defend. On 6 August 2019 defendants filed their special plea in bar to the following effect:

That the 1st Defendant is not a legal persona capable of suing and being sued in its own name. The citation of the 1st Defendant is improper, because in terms of s 36 of the Education Act [Chapter 25:04] as read with Statutory Instrument 87 of 1992 Plaintiff ought to have cited the School Development Committee. The summons is invalid because it has been issued against 1st Defendant who has no legal capacity to be sued.

The citation of the 2nd Defendant is improper in that the 2nd Defendant is a distinct legal persona from the 1st Defendant and therefore is not liable in any manner for the acts of the 1st Defendant which is a separate legal entity in terms of s 36 of the Education Act [Chapter 25:04] as read with Statutory Instrument 87 of 1992.

First defendant is cited by the plaintiff in the summons as Mt Selinda High School. The second defendant is United Church of Christ. The plaintiff goes on to describe second defendant as the responsible authority which overseas first defendant’s administration and has legal status to be co-sued with its educational institution and hence is jointly and severally liable to settle first defendant’s indebtedness.

In opposing the special plea the plaintiff unfortunately did not reply to the special plea but proceeded to prepare heads of argument. It is important to remark at this stage that a party served with a special plea in terms of Order 21 r 137 is obliged to at least comment on the special plea indicating the basis of his or her response to the special plea in order to avoid leading evidence from the bar and also for purposes of expediency to both the court and the other party. Where a party does not do so it will risk to be adjudged to be in default and the special plea will be deemed unopposed.

In its heads of argument in opposition to the special plea the plaintiff contented that 1st defendant is an established non-government school and admittedly is not a legal persona. This is exactly what defendants are saying in support of their special plea vis-à-vis 1st defendant. However the plaintiff goes on to argue that judged by the stance taken by the highest court in the country, the Constitutional Court if the school did not have legal capacity the Constitutional Court ought to have stated so. It did not, so it can be argued a school is a legal persona which can be sued. It was further argued by Mr AJ Dhliwayo for the plaintiff that the Education act [Chapter 25:04] does not pronounce that a school is not a legal persona and does not confer legal personality to a school development committee. Statutory Instrument 87 of 1992 does not take away the common law legal status of a school when it places legal personality on a school development committee. The Education Act places obligations on the part of the second defendant as the responsible authority, and there was nothing wrong done by the plaintiff to join 2nd defendant to the proceedings, he argued.

Mr Dhliwayo went on to submit that a school is considered to be a universitas. He added that 1st defendant is allowed to open and operate bank accounts and to purchase property. When the court asked counsel for plaintiff to explain the basis of the universitas, Mr Dhliwayo admitted that such powers are derived from a Constitution which Constitution is created in terms of s 36 (1) of the Education Act. Section 36 of the Education Act, he clarified only provides for the establishment of a school Development Committee. Where a registered school receives a grant from the State, there are schools which do not receive grants and are legal persons, and that is based on common law.

On the other hand, Mr T Tazvitya, for the defendants submitted that the 1st defendant is not a legal person and should not have been cited. On the joinder of the 2nd defendant, it was submitted that 2nd defendant is not privy to the alleged contract. The contract that is being relied upon by the plaintiff was allegedly between it and the 1st defendant.

WHETHER FIRST DEFENDANT IS A LEGAL PERSON

Both parties unreservedly admit that Mt Selinda High School is not a legal persona, hence it cannot be sued. It is not a legal entity.

Section 36 of the Education Act, provides for the establishment of School Parents Assemblies and School Development Committees, the Responsible Authority of any registered school shall cause the School Parents Assembly to establish a School Development Committee, the composition, functions, duties, procedures and power of the School Development Committee shall be as contained in the Constitution of the School Parents Assembly. Further s 3 of the Statutory Instruments 87 of 1992, Education (School Development Committees’) (Non-Government Schools) Regulations furnished the School Development Committee with a legal status to sue and to be sued distinct from the founder or responsible authority or owner of the private school who established it. Responsible Authority is defined in s 2 of the Education Act to mean “in relation to or at a school mean the person, body or organisation responsible for the establishment and management of the school” capable of performing all acts that bodies corporate may by law perform.

In the matter of Dzobo Primary School v Mahakaire and Others the court dealt with the legal capacity of the School Development Committees and it was held that:

“…..It is clear from submissions made before this court and from the record that the SDC employed the respondents. The appellant is not a legal entity but the SDC which employed the appellants can be sued as same has legal capacity conferred by Statutory Instrument 87/92.

As was found in CT Bolts (Pvt) Ltd v Workers Committee, where a party has no legal capacity there would be no party before the court. I identify with the funding therein where it was stated that

‘The respondent not being a legal persona, is not properly before this court. The proceedings before the Labour Court and prior to that, the arbitrator, were similarly void.’

In casu the award by the arbitrator was a nullity, so is the registration of the award. There was no party or legal entity before the court so an order could not be made against no one. Simply put, you cannot put something on nothing and expect it to hold. There was no competent order in the first place.”

The establishment of School Development Committees through Statutory Instrument 87 of 1992 was to capacitate such institutions with legal capability to sue and be sued and become “capable of performing all acts that bodies corporate may by law perform.” It would be pointless in my view to cite a responsible authority as a party to the proceedings in full knowledge that a School Development Committee created by the School Parents Assembly exists. I do not agree with Mr Dhliwayo for the plaintiff when he argued that because the Constitutional Court did not rule or disqualify a school from the proceedings brought before it, it recognised the school as a legal persona. The legal capacity of the named school relating to the proceedings was not an issue set out by the parties for the Constitutional Court’s determination.

A universitas derives its authority and mandate from the provisions of its Constitutions and in this case the first defendant’s Constitution born out of the legislation formed a School Development Committee which is in existence. The whole argument by the plaintiff, though very fascinating to listen to does not hold. The common law concept of universitas does not apply at all. In any case it was held that:

“An universitas personnum in Roman Dutch Law is a legal fiction, an aggregation of individual forming a persona or entity, having the capacity or acquiring rights and incurring obligations to a great extent as a human being. An universitas is distinguished from a mere association of individuals by the fact that it is an entity distinct from the founder.”

In casu, in addition to the establishment of the Students Parents Assembly Constitution, the first defendants School Development Committee exists. The plaintiff seems to argue that there is no School Development Committee, yet that point is not contented on paper before the court. I conclude that the first defendant has no legal capacity to be cited in court proceedings. Hence the defendants’ argument that:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.”

finds favour with the court. It is the plaintiff’s legal representative to thoroughly investigate the legal status of an intended defendant well before summons are issued to avoid legal challenges of the type raised by the defendants in this case more particularly where statutes are so clear relating to School Development Committees.

The first special plea succeeds.

WHETHER SECOND DEFENDANT IS PROPERLY JOINED

It is not controverted that second defendant is a legal persona and fundamentally owns first defendant. However second defendant has a competent School Development Committee born out of the Students’ Parents Assembly to manage all affairs of the first defendant including legal portfolio. It is also not in dispute from the papers before me that the alleged contract between plaintiff and Mt Selinda High School did not involve the second defendant, the church. Hence I agree with the defendant’s counsel that:

“This doctrine of privity of contract provides that contractual remedies are enforced only by or against parties to a contract, and not third parties, since contracts only create personal rights.”

Further in the matter of Symptoms Siwawa v Cooper Construction (Pvt) Limited, it was held that:

“The applicant faces an unsurmountable hurdle in that he relied for his claim on an agreement in which he is not a party. There is no privity of contract. The principle of privity of contract in our law is a simple one. As stated by the Learned author, RH Christie

‘A person who is not a party to a contract cannot be held liable or claim on it because, as it is usually expressed, he is not privy to the contract . The doctrine of privity of contract is however sufficiently elastic to encompass the rules of agency, under which a principal becomes a party to a contract made on his behalf by his agent. But the appointment by the agent of a sub-agent does not, in the absence of agreement to the contract, create privity of contract between the sub-agent and the principal.”

I do not agree with plaintiff that the second defendant as owner of certain property at the school premises should be cited in a matter involving first defendant, presumably because it has an interest in the matter. Yes, it might have an indirect interest but such interest is well catered for by the School Development Committee on behalf of the second defendant. As already found the School Development Committee has the legal capacity to do so on behalf of both first and second defendants.

I am convinced that first and second defendants cannot be sued in respect of the alleged contract between plaintiff and first defendant’s School Development Committee and the second special plea succeeds.

Costs

The defendants had argued that the special pleas be upheld and that plaintiff be penalised to pay wasted costs on attorney-client scale. Mr Tazvitya later on conceded that there was no basis for such a draconic form of costs. His concession was highly proper. Plaintiff’s argument cannot be categorised as futile and vexatious, however, the plaintiff’s conduct after it received the special plea leaves a lot to be desired. Plaintiff ought to have engaged defendants and at least establish whether there was a School Development Committee for first defendant and then if possible apply to amend its summons. Plaintiff did not avail a copy of the bank transaction documents to prove as to who effected payments made to the plaintiff, this could have justified it to why it cited the defendants, it literally sat on its laurels until the date of set down to hear the special plea. Such a conduct of the plaintiff is deplorable and it ought to be visited with costs.

Disposal

Both special pleas are upheld

Plaintiff is ordered to pay defendants’ costs.

T. Hara & Partners, plaintiff’s legal practitioners

Bere Brothers, defendants’ legal practitioners