3
HH 249-23
HC 7244/21
ADAMS WELLINGTON TARUVINGA
and
DANDAZI RESIDENCE ASSOCIATION
versus
DANDAZI RESIDENCE ASSOCIATION TRUST
and
MICHAEL ASIDI
and
CASPER MUNYARADZI MUDONDO
HIGH COURT OF ZIMBABWE
MANGOTA J
HARARE, 14 November 2022 and 12 April 2023
Judgment
Mr Chirenje, for the applicant
Mr T Goro, for the respondent
MANGOTA J: Residents of Dandazi surburb which is in Bindura are former workers of Ashanti Gold Mine. These were subjected to evictions from houses which they acquired through their employer-employee scheme the moment that they left employment at the mine.
To ensure that their former employer would not evict them from, and repossess, the houses which they occupied, the residents made up their minds to speak against the evictions and/or repossession of their houses with one voice. They formed Dandazi Residence Association (“the association”).
With a view to catering for housing needs of the residents as well as issues which the latter group of persons were then facing, the association formed a trust which is the first respondent in casu. It was registered with the Registrar of Deeds on 23 April, 2012. Its individual members became the primary beneficiaries under the trust whose objectives, in the main, were to:
Promote and maintain the welfare of beneficiaries – and/or
Promote closer and better co-operation of the trust and relevant local authorities in the provision of housing services to beneficiaries of the trust, amongst other objectives.
The second and third respondents (“the respondents”) are trustees of Dandazi Residence Association Trust (“the trust”). Both of them, it is agreed, played a pivotal role in the formation of the trust. They are, if a comparison may be favoured, some of its founding members. They and three others became trustees of the trust at its inception. They are Trustees todate.
The first applicant one Adams Wellington Taruvinga (“Taruvinga”) claims that he is the chairperson of the second applicant which, together with him, sued the respondents whom they accuse of mismanaging the affairs of the trust. They allege that the respondents have failed to achieve the objectives of the trust and/or to keep a true and correct account of their administration of the trust including its accounts, amongst other allegations. They move me to:
Set aside the appointment of the respondents as trustees of the trust so that they are deemed to have vacated the office of trustees of the trust;
Empower the Management Board of the association to appoint five persons from its members as trustees of the trust –and
Direct the respondents to surrender all assets and documents of the trust to new trustees who are appointed in terms of paragraph 2 above within five (5) days of this order.
The application cannot succeed. It cannot succeed for a variety of reasons. The first reason centers on the propriety or otherwise of the second applicant’s presence in court. The respondents insist that the second applicant is not in court. They challenge Taruvinga to produce evidence which supports his allegation which is to the effect that the second applicant is in court.
The trite position of the law is that he who alleges must prove. That position of the law was aptly articulated in Nyahondo v Hokonya & Ors, 1997 (2) ZLR 45 (S) at 459 wherein the court stated that:
“The general principle is that he who makes an affirmative assertion, whether plaintiff or respondent, bears the onus of proving the facts so asserted.”
In casu, Taruvinga who is the deponent to the founding affidavit states in the same that he is the chairperson of the second applicant which he alleges conferred authority upon him to depose to the founding affidavit. He makes reference to the resolution of the second applicant’s board which he claims authorises him to depose to the founding affidavit. He asserts that the resolution is attached to the application and it, according to him, is marked Annexure A.
Annexure A appears in the consolidated index as item number 6. Item number 6 is the Trust Deed. It is at pages 22-35 of the record. It is not a resolution of the second applicant as Taruvinga would have the respondents and me believe. It is a Notarial Deed of Trust of Dandazi Residence Association Trust.
Taruvinga cannot have the respondents and me believe that the Trust Deed is equivalent to the resolution of the board of the second applicant. He is, accordingly, misleading the respondents and me when he alleges, as he is doing, that the second applicant authorised him to sue the respondents on its behalf. It did not.
The second applicant, it is evident, did not confer such authority upon him. The second applicant, it is a fact, is not in, but out of, court making Taruvinga to be on a frolic of his own. He failed to establish the second applicant’s locus to sue the respondents.
The second reason for the failure of the application centers on the position of Taruvinga himself. He alleges that he is the chairperson of the second applicant. He, once again, produces no evidence which shows that he is the chairman of the second applicant. If he is such, as he would have the respondents and me, believe, he would, in all probability, have filed supporting affidavits from members of the second applicant’s Management Board, if it has such, supporting the claim that he is the chairperson of the second applicant. He cannot prove the stated claim by his mere say so.
The assertion which Taruvinga makes in paragraph 1 of the founding affidavit is controverted in a material manner by the respondents who state, in paragraph 8.1 of their notice of opposition, that Taruvinga represents a splinter group which separated itself from the association. The association, they assert, still exists with one of them, namely Michael Saidi, as its chairman.
The respondents rest their defence on the trite position of the law which states that what is not denied in affidavits must be taken to be admitted: Fawcett Security Operations v Director of Customs & Excise, 1993 (2) ZLR 121 (SC); D.D Transport (Pvt) Ltd v Abbot, 1988 (2) ZLR 92. The same principle was succinctly stated in Gordon v Tarnow, 1947 (3) SA 525 (AD) at 531-532 wherein Davies AJA (as he then was) said:
“But this admission in the plea is of the greatest importance for it is what Wigmore (paras 2588-2590) calls a judicial admission (of the confessio judiciallis of Voet (42.2.6) which is conclusive rendering it unnecessary for the other party to adduce evidence to prove the admitted fact and incompetent for the other party making it to adduce evidence to contradict it.”
Apart from the bare denial which he made, Taruvinga does not deny that he represents a splinter group which separated itself from the association. He does not deny that Michael Saidi is the chairperson of the association. He does not controvert the allegation which is to the effect that he is a rival faction of the association. Nor does he deny that the second applicant is a break-away faction which he is sponsoring.
Given the claims of the respondents which Taruvinga does not challenge, Taruvinga cannot be said to be representing the association which is still with the respondents. It is this association which gave birth to the trust. The second applicant which Taruvinga allegedly sponsors and him cannot, at law, speak for the association. He and it do not have the locus to sue for, and on behalf of, the association which Michael Saidi is chairing as a trustee of the trust. Neither the second applicant which Taruvinga is sponsoring nor Taruvinga himself have a direct and/or substantial interest in the association and the trust which is the brain child of the association.
Locus, simply and legally understood, is the right of a person to bring proceedings in court on behalf of himself or a person or an entity to which the person suing has a direct and substantial interest. To have locus, the person who is suing must justify the existence of such a right by showing that he has a direct and substantial interest in the subject-matter and the outcome of the litigation: ZIMTA & Ors v Minister of Education & Culture, 1990 (2) ZLR 48 (HC) 52; Henry Vilijoen (Pvt) Ltd v Aweburch Brothers, 1953 (2) SA 151; Deary NO v Acting President & Ors, 1979 RLR 200 (G).
Where it is shown, as it has been, that neither the second applicant nor Taruvinga has the locus to sue the respondents, the matter is at an end. They cannot sue because they have no cause of action against the respondents. Their case, it would appear, is materially divorced from that of the respondents and the trust. They have their own area of operation which is separate and distinct from that of the respondents and the trust. Taruvinga and the second applicant which he fronts cannot poke their noses into the trust which is not their brain child. They should leave that to the respondents who formed and nurtured the association and the trust from the date of their birth todate.
Apart from the findings which are to the effect that Taruvinga and the second applicant who is out of court do not have the locus to sue, or any cause of action against, the respondents and the trust, the application of Taruvinga is in complete violation of the law which asserts that an applicant stands or falls on its founding affidavit. This law was succinctly enunciated in a number of case authorities. Notable amongst such authorities are those of Maurberger v Maurberger, 1948 (3) SA 731 ( C ); De Villiers v De Villiers, 1943 TPD 60; S.A Railways Club v Gordonian Liquor Licensing Board, 1953 (3) SA 526 and Bayat & Ors v Hansa & Anor, 1955 (3) SA547 at 553 which states that:
“…..an applicant for relief must (save in exceptional circumstances) make his case and produce all the evidence he desires to use in support of it, in his affidavits filed with the notice of motion, whether he is moving ex parte, or on notice to the respondent, and is not permitted to supplement it in his replying affidavit (the purpose of which is to reply to averments made by the respondent) in his answering affidavits, still less make a new case in his replying affidavits.”
Hebstein and Van Winsen bring out the abovementioned point with clarity and precision in their Civil Practice of Superior Courts in South Africa, 3rd Edition, p 80 wherein the learned authors state that:
“The general rule…which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that, although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon to either affirm or deny.”
The founding affidavit of Taruvinga leaves a lot to be desired. It is akin to the English adage which reads ‘Much ado about nothing’. It contains claims and allegations which the deponent himself does not substantiate. He makes statements which he leaves unsupported. His founding affidavit therefore stands or falls on the unsubstantiated statements which he makes in the same.
Taruvinga’s allegations against the respondents, it is observed, appear in para. 14 of his founding affidavit. Subpara(s) 14.1 – 14.7 are relevant in the mentioned regard. He states in paragraph 14.1 that the respondents failed to promote close and better co-operation of the trust and relevant local authorities in the provision of housing services to beneficiaries of the trust. He makes that bare allegation which he does not substantiate. He does not, as the respondents correctly assert, tell the court the manner in which the respondents failed to promote close and better co-operation of the trust and relevant local authorities in the provision of housing services to beneficiaries of the trust.
The respondents advise, in the same, that the project was temporarily placed on hold by Bindura Rural District Council (“the Council”) after the mine which is the former employer of the trust’s beneficiaries opened court cases relating to ownership of the houses. They assert that the temporary closure of the project occurred after the trust had already submitted building plans to the Council to pave way for change of ownership of the houses.
Annexure C which the respondents place reliance upon in respect of the abovementioned matter is relevant. The annexure is a letter which the Council wrote to the association on 16 July, 2012. It appears at p 38 of the record. It advises the association of court cases which the association’s employer had mounted against its beneficiaries. These comprised 104 writs of ejectment, 20 evictions, 53 summons and 50 pending court cases which had been filed against beneficiaries of the trust. The Council returned the house plans to the association whom it requested to make further submissions to enable it to allocate land to sitting beneficiaries of the association.
Michael Saidi who is one of the respondents in casu states, and his statement remains unchallenged, that he was and is chairperson of the association as well as that of the trust. It, accordingly, makes no difference if the Council communicated with him by virtue of his position as chairperson of the association or the trust. The net effect is that his double-barelled work was, at all times, in furtherance of the welfare of beneficiaries of the trust who are also members of the association.
In so far as para. 14.2 is concerned, Taruvinga does not, once again, show the manner in which the respondents failed to keep a true and correct account of their administration of the trust including auditing of its accounts. Nor does he show the manner in which the respondents denied the beneficiaries of the trust access to the accounts of the trust as he alleges in paragraph 14.3 of his affidavit. He makes some bald allegations which he does not substantiate. He could easily have requested some beneficiaries of the trust to file affidavits which support the allegation that they were denied access to the accounts of the trust. Nothing, in short, prevented him from producing a letter or letters which beneficiaries wrote complaining that they requested sight of the Trust’s audited accounts and their request was turned down by the respondents.
The respondents deny that they failed to keep a true and correct account of their administration of the trust or that they denied beneficiaries of the trust access to the accounts of the trust. They admit that clause 10 of the trust deed gives the beneficiaries the right to access the accounts. They qualify the right by stating that the beneficiaries can only access the accounts by giving thirty days written notice. They assert, correctly in my view, that Taruvinga did not attach to the application any evidence which shows that he or any of the beneficiaries of the trust made the written request in terms of clause 10 of the trust deed and was/were denied access to the accounts of the trust. An attachment to the application of such written request(s) would have sufficed. The fact that nothing of the sort was attached to the application is ample evidence that Taruvinga made bare and unsubstantiated allegations which would not see his application succeed.
The respondents and the trust acquitted themselves with succinct precision. They were able to dismiss Taruvinga’s claims which are to the effect that they failed to hold meetings or to keep records of the meetings which they held. They produced documentary evidence of requests which they made to members of the police to be allowed to hold meetings of the trust. Reference is made in the mentioned regard to pp 39 – 42 of the record. They assert correctly that they did not hold any meetings in 2020 and 2021 because of the Covid 19 induced restrictions.
Taruvinga, it is evident, made allegations which he did not substantiate. His application falls on his founding affidavit which leaves a lot to be desired. He, as the respondents allege, is making an attempt to take hold of the affairs of the association as well as the trust. He makes a lot of assumptions but he cannot prove his case by those assumptions. He requires clear and cogent evidence for him to succeed.
Taruvinga failed to prove his case on a preponderance of probabilities. His application is, in the result, dismissed with costs.
Chirenje Legal Practitioners, applicant’s legal practitioners
Mbidzo Muchadehama and Makoni, respon dent’s legal; practitioners