On the 23rd of March 2015, Mr Sebastian Bakare; Mr Terrance Moody; Ms Natsai Nyamuwanza; Mr Cephas Sagwete; Ms Poshier Magada; Ms Maraidza Elizabeth Mutambara joined together to form United Mutare Residents and Ratepayers Trust.
Counsel for the applicant appears on the copy of the Resolution dated 3rd July 2018 which was prepared just a day before the current application was filed at Court was added to the list of Trustees.
Clause 6 of the Deed of Trust specifies the applicant's Core Business thus:
“The provision of a comprehensive platform for residents participation in local governance, service delivery, local democracy, and policy formulation, accountability and transparency.”
Article 2, captioned “LEGAL STATUS” provides inter alia:
“The Trust shall be a body corporate and as such…,.”
It is not clear as whether it can sue or be sued in its name, however, it can acquire, own, and is
limited to its property in as far as liability is concerned.
On the 4th of July 2018, the applicant filed an application seeking the following relief:
“It is declared that 1st Respondent has failed to comply with its Constitutional mandate to 'ensure good governance by being effective, transparent, accountable and institutionally coherent' in exercising its right to govern the local affairs of the Community of Mutare by not carrying out an external audit of books, balance sheet and accounts for the financial years ending 30 June 2014, 30 June 2015, 30 June 2016 and 30 June 2017.
2. And it is ordered that:
(a) 1st Respondent appoints a reputable firm of registered public auditors within 30 days of the granting of this order to carry out an audit of its books, balance sheets and accounts referred in section 286 of the Urban Councils Act [Chapter 29:15] for the financial years ending 30th June 2014-2017.
(b) Further that, 1st Respondent produce to the auditors for the purpose of audit, accounts, balance sheets, all relevant books, papers, writings and minutes books in its possession for the financial years ending 30 June 2014-2017 within 30 days of the granting of this order.
(c) Further, that, 1st Respondent prepare and present before this court a comprehensive report within the first 90 days of the granting of this order, detailing how it has complied with this order and at 180 days mark, an audit report for the financial years ending 30th June 2014-2017 as provided under section 306(3) of the Urban Councils Act [Chapter 29:15] failure which 1st Respondent shall be in contempt of court.
3. 1st Respondent will pay costs of suit on a legal practitioner-client scale.”
Facts
From 10 to 19 December 2015, the second respondent embarked on an institutional special investigative audit report at the first respondent's institution following complaints that the first respondent's, the City Council, employees were being owed salary arrears of eighteen months.
Obviously, the report by the Ministry was adverse and revealed anomalies committed by Mutare City Council.
The applicant accessed the investigative report and offered to assist the City Council.
The City Council refused and the applicant wrote threatening letters to the first respondent and indicated to Municipality of Mutare that it was going to advise residents to boycott payment of utility bills until the City Council met their demands.
The City Council responded encouraging dialogue, and, further letters were exchanged and the letter of 16 April 2018, written by the applicant's legal practitioners, proposed a tripartite meeting between the applicants, the City Council officials, and the residents and ratepayers on the other side.
No meeting was held.
The City Council supplied some information in June 2018, availing to the applicant schedules of Zinara funds, education levy, and outstanding debts due to the Council per ward.
The applicant was not amused by the conduct of the City Council, and, on the 4th of July 2018, this application was filed at the court.
The first respondent, the City Council, is opposing the application.
The first respondent raised three points in limine;
(i) The first one being that of locus standi in judicio;
(ii) The second one is that the relief sought is vague, imprecise, and unusual; and
(iii) The third and final one is that the applicant did not exhaust domestic remedies.
On the other hand, after receiving the first respondent's opposing papers, the applicant, in its replying affidavit, also introduced the fourth point in limine before this court, challenging the authority of Mr Joshua Maligwa in preparing the opposing affidavit without a resolution of the City Council.
On that note, the applicant proposed to the court, that, there is no valid opposition and the application has to be granted.
On the date of hearing of the application, I granted the first respondent an opportunity to address the court, first, focusing on all the points in limine - including that raised by the applicant.
After the first respondent had addressed the court, the applicant was given the opportunity to reply and address the court on the question of Mr Maligwa's lack of authority....,.
Whether the sought relief is vague, imprecise and unusual
The first respondent submitted, that, the relief being sought is incompetent and cannot be granted in the circumstances.
The applicant seeks an interdict in the form of a mandamus and structural interdict; in addition, the applicant seeks a declaratur. The cover of the court application reads:
“Court application for an order of Declaratur, Mandamus, Structural Interdict and Ancillary Relief”
According to the first respondent, this clearly demonstrates the ineptitude and the irrationality of the relief that is being sought.
The first respondent submitted, that, the applicant has not proved the requirements of an interdict nor does the affidavit outline the allegations or facts which establish such pre-requisites. The applicant has not demonstrated that it has a clear right to compel the first respondent to do an audit. The applicant falsely believes, that, by forming a Trust, it grants it an automatic right to compel the first respondent to abide by its demands; there is no contract of such a right to compel the first respondent.
The applicant must aver or adduce evidence to establish such a right and it has failed.
The first respondent further added, that, the applicant has dismally failed to demonstrate on its papers any potential harm it may suffer or its beneficiaries may suffer if the relief it seeks is not granted.
The first respondent added, that, the application should also fail on the basis that there are other remedies available to the applicant; the applicant has not approached the Minister, the second respondent, to exhaust domestic remedies.
Where there is an alternative remedy, there is no basis for seeking the interdict.
The first respondent also impugned the applicant for failing to demonstrate the requirements of a structural interdict; that is, by proving that there is inefficiency in the system, and, as such, there will be need to be controlled.
The applicant did not manage to prove that there is incompetence or gross inefficiency which warrants the imposition of a structural interdict.
The first respondent cited the case of Kenton on Sea Ratepayers Association & Ors v Ndlambe Local Municipality 2017 (2) SA 86 (ECG).
The City Council also pointed out the dangers associated with structural interdicts, moreso, in that it violates the concept of separation of powers.
The court would end up treading into institutional spheres of control and result into undue interference with other spheres of governance.
The final point hammered by the first respondent is that even for a declaratur, the applicant failed to meet the requirements of section 14 of the High Court Act by failing to demonstrate the existing, future right which will be affected if the court does not give judgment.
It prayed for the dismissal of the application.
The first respondent cited the matter of Johnson HFC 1995 (1) ZLR 65 (S)…,.; GUBBAY CJ held:
“The condition precedent to the grant of a declaratory order under section 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an 'interested person' in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the Court. The interest must concern an existing, future, or contingent right. The Court will not decide abstract, academic, or hypothetical questions unrelated thereto. But, the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction.”
This point in limine lies on the borderline of law and fact.
In my view, these issues dealt with herein would have been appropriately dealt with in the main, that is, on the merits.
However, the first respondent's submission is that the applicant did not crisply, in its founding papers, exhaustively encapsulate these ingredients in order to achieve its intended purpose. Such a failure should putatively paralyse the application and this court should uphold the preliminary point and dismiss the application.
Apparently, the face of the court application is a mixed bag of separate reliefs “God's plenty” and like a hunter's arrow any prey can be caught and the hunter will attain his purpose of a catch.
I agree with the first respondent that the relief being sought is vague and embarrassing.
An examination of the affidavit, in conjunction with the draft order, indeed causes concern and the applicant ought to have crisply tabulated its facts and the draft, sealing, clearly, the relief sought.
The basis upon which the ultimate relief is premised was not established and I accordingly uphold this preliminary point.
This preliminary point is but secondary to the other points in limine raised by the first respondent.
It is this court's view, that, the applicant's relief or recourse lies with the second respondent, the Minister of Local Government, Public Works and National Housing (the Ministry has since changed its name but for convenience, I will cite the party as cited on the papers).
The second respondent unearthed the irregularities that triggered a reaction from the applicant, and, if the applicant intends to pursue the matter it ought to engage the second respondent who had powers to regulate and administer the first respondent.
Section 311 of the Urban Councils Act can be resorted to by the applicant and achieve the very relief it wants this court to grant to it. Section 311 of the Urban Councils Act should be read in tandem with the section 315 of the same Act which can direct the first respondent to comply with certain actions to be done by the first respondent to iron out any creases in how the finances of the City Council are being handled.
The second respondent has both administrative and regulatory powers to uphold good governance of the first respondent in the interests of the residents and ratepayers.
Negotiations of all the stakeholders should be for the interests of all of them.
I further agree with the first respondent, that, it is generally accepted, that, if the administration machinery is working well, and effective internal remedies are provided for, the administration is in the best position to rectify its own mistakes and should be given a chance to do so.
To permit ill-timed access to the courts before the administration has been given the space to rectify the perceived mistakes will undermine the functioning of the administration: see Guide to Administrative Law by Professor G FELTOE; Olivine Industries (Pvt) Ltd v Gwekwerere 2005 (2) ZLR 421 (H); and Djordjevic v Chairman, Practice Control Committee, Medical & Dental Practitioner Council of Zimbabwe 2009 (2) ZLR 221 (H).
The applicant does not state, on its founding papers, that internal remedies had failed nor does it show that efforts were made by it but bore no fruits to justify its logic of approaching the court.
The decision to go to the courts was hurried and not justified.
The applicant is urged to liaise with the second respondent and resolve the impasse with minimum friction and costs.
All the three points in limine raised by the first respondent have merit and the court has found sense in all three of them, and, regard being made to the aforegoing, the following order is made:
1. The three points in limine raised by the first respondent are upheld.
2. The point in limine by the applicant is dismissed.
3. The application is dismissed with costs on attorney-client scale.
