Bouckaert v Duckworth and 5 Others (873 of 2022) [2022] ZWHHC 873 (16 November 2022)

1 HH 873-22 HC 3927/21 ROBIN BOUCKAERT versus GARY DUCKWORTH and WILFRIED PABST and GUY WITHAL and GUY STOCKIL and SAVE VALLEY CONSERVANCY and THE TRUSTEES FOR THE TIME BEING OF THE SAVE VALLEY CONSERVANCY TRUST HIGH COURT OF ZIMBABWE HARARE 26 May and 16 November 2022 CHILIMBE J Opposed application A. Moyo with G. Sithole -for applicant D. Tivadar -for the respondents CHILIMBE J BACKGROUND [ 1] This application for a declaratur was on course for argument when Mr. Tivadar for the respondents made application for leave to file an additional affidavit in terms of rule 59 (12) of the High Court Rules 2021. Both counsel agreed that such application be made and opposed from the bar with heads of argument being subsequently filed by both sides to buttress submissions made. I will return to this point shortly, in the interim, the background to the dispute; - [ 2] The fifth respondent Save Valley Conservancy (“SVC”), is a universitas comprising of natural and legal persons who own, occupy or operate farms, ranches and communal land in the South Eastern Lowveld area of Zimbabwe. The contiguous tract of land occupied by these properties is known collectively as “the Conservancy” For all intents and purposes, the Conservancy is predominantly a HH 873-22 HC 3927/21 game reserve. The SVC`s objects are premised on the promotion of the Conservancy`s primary interests as a game reserve.1 [ 3] Sixth respondent (“SVC Trust”) is a different and separate organisation whose objects are however, intrinsically linked to those of the SVC. The first, second, third and fourth (Duckworth, Pabst, Withal and Stockil) are members of the SVC holding therein, various positions in its structures. [ 4] It is common cause that applicant (“Bouckaert”) assumed between November 2020 and June 2021, the post of (a) chairperson of the SVC, (b) chief executive officer of the SVC (c) trustee of the SVC Trust. On or around 21 June 2021, matters took a turn as relations between Bouckaert and the respondents soured. This led to Bouckaert`s suspension as Chairman of SVC by the Executive Committee of the SVC between 23 and 25 June 2021. Bouckaert was also effectively ejected as a trustee of SVC Trust and removed from office of chief executive of SVC. On 16 July 2021, Bouckaert filed the present application seeking an order annulling the SVC and SVC Trust`s resolutions or actions to remove him from office. [5] On 29 November 2021, after pleadings in this matter had closed, the SVC held its annual general meeting (AGM) which resolved to confirm the ejectment of Bouckaert as the SVC`s Chairperson and Chief Executive Officer. It is this resolution taken at this event that respondents now seek to include in the papers before this court via the additional affidavit. THE NATURE OF THE INTERLOCUTORY APPLICATION [6] In presenting their arguments, counsel assumed disparate positions on the matter to be resolved. Mr. Tivadar for the respondents argued that applying the established principles governing admissibility of additional affidavits, the court could easily determine whether to include or exclude the affidavit in question. Moyo for the applicant argued that the matter went deeper than just the admissibility of an additional affidavit. He argued that this additional affidavit, issued from a resolution that sought to interfere with a matter litis contestatio and in furtherance of the unlawful acts by respondents. Accordingly, the court had to determine the issue of res litigiosa. [ 7] I will adopt the course proposed by Mr. Tivadar for the simple reasons that it is counsel who moved the court for leave to file an additional affidavit and also for other grounds further articulated later in this judgment. Before reverting to the arguments, a summary of the dispute; - 1 From the papers, it is apparent that the SVC is involved in extensive work covering the zoological, economic, developmental, environmental and commercial aspects. They run programmes with donors, government and community geared toward sustainable exploitation of the game resources. There are several such initiatives in both Zimbabwe and Southern Africa. The SVC`s local a nd international profile in that regard is quite significant. HH 873-22 HC 3927/21 APPLICANT`S PRAYER IN THE MAIN APPLICATION [ 8] In paraphrase, Bouckaert sought the following prayer in his 8-paragraph draft order; - a) A declaration that the SVC`s Executive Committee lacked the legal capacity to suspend and or dismiss him from his post as Chairman of the SVC. b) That the Executive Committee`s meeting of 22 June 2021, together with its resultant resolution to authorise his suspension from office was invalid and therefore be set aside. c) A declaration that Clause 5.13.1 of the SVC Trust`s Deed of Trust (Registration No. MA 780/21 which presumed the automatic resignation of a Trustee once he or she was “declared insolvent”), was inapplicable in the absence of an Order of this Court so issuing such a declaration of insolvency. d) That he be declared the substantive Chief Executive Officer of the SVC “until and unless his contract of employment is lawfully terminated in accordance with prescribed due process in terms of the Labour Act [ Chapter 28:01]. THE ADDITIONAL AFFIDAVIT [9] In his heads of argument in support of the application for leave to file an additional affidavit, Mr. Tivadar raised the following points as (i) arising from the above prayer, (ii) answering Mr. Moyo`s legal point on res litigiosa and (iii) justifying the inclusion of an additional affidavit; - a) “The Respondents have done exactly what Applicant has demanded that they do; namely, refer the matter to the members. [paragraph 36] b) In the circumstances, Applicant cannot complain that his rights were “undermined”. On the contrary, the rights he demanded were given effect to. [paragraph 37] c) Applicant is not assisted by the cases it cites. These cases concerned situations where a party did what the other party did not wish it to do-such as disposing of an asset that was being sued for-see quotation from Chikadaya v Chenga that applicant relies on. [ paragraph 38] d) The present case is the very opposite. The Respondents did exactly what Applicant -and his legal representatives -demanded. [paragraph 39] HH 873-22 HC 3927/21 e) The Applicant was aware that the AGM would be held. The Applicant was entitled to attend the AGM and convince the members that they should continue supporting him. The Applicant clearly did achieve this. Had members sided with him, no doubt, the Applicant would wish to rely on the resolution. [paragraph 48] f) As pointed out at the hearing it is Applicant himself who insisted that members in a general meeting should consider whether or not to remove him as Chairman. Applicant simply has no answer to this most fundamental point; [paragraph 31] g) Applicant`s own Counsel confirmed at the hearing that it is only the actions of the Executive Committee that are being challenged. This is also clear if one has regard to paragraphs 2 to 4 of the Draft Order [ Record pg 93], which are limited to the Executive Committee`s actions. [paragraph 26] h) If the Applicant wishes to argue that the Respondent`s conduct was mala fide or contemptuous, it is at liberty to do so. However, those arguments are relevant to the issue of what weight if any, should be attached to the Further Affidavit; rather than dealing with the issue of whether the document should be admitted onto the record in the first place. [paragraph 17]” [ 10] The additional affidavit itself is a brief one pager which refers to an equally terse resolution of the SVC`s annual general meeting of 29 November 2021 which endorsed the Executive Committee`s decision to dismiss Bouckaert from the position of Chairman and Chief Executive Officer. REQUIREMETS FOR ADDUCTION OF ADDITIONAL AFFIDAVITS IN TERMS OF RULE 59 (12) [ 11] It is settled law that where parties elect to litigate via motion proceedings ,the courts will (i) insist on such parties adhering to the sequence prescribed in the rules2, (ii) permit a departure from that order only in exceptional circumstances and (iii) reiterate that the granting of any leave to file additional affidavits is discretionary. Further,the courts will require of a party so seeking leave ( iv) to prove that it is not motivated by mala fides in seeking to introduce the additional evidence and (v) to tender valid reasons for not having availed the evidence 2 CHITAPI J outlined the reason behind the courts` s trictness a s follows [ a t page 2] i n Netone Cellullar (Pvt) Ltd v Kangai HH 441-19“Appl ication procedure by i tself is a quicker procedure for bringing cases up to hearing s tage a nd it i s more cost effective than action procedure. Rule 235 whi ch allows the court a discretion to allow the filing of further a ffidavits has the effect of prolonging application procedure which it is not intended to be. The court will have to extend the times past the cl os e of filing the a nswering a ffidavit. In my vi ew, rule 235 s hould be vi ewed as an exception a nd not the norm. There must therefore be special justification for a departure from the general run of the filing of pleading otherwise the purpose and a i ms of s peedy disposal of disputes by way of court a pplications procedure can easily be defeated if the rule is allowed to be a bused.” HH 873-22 HC 3927/21 earlier. Finally,the court must be satisfied that (vi) adduction of additional affidavits will not prejudice the other party and that (vii) the new evidence sought to be introduced will not materially alter the causa or controversy between the parties. [ 13] The above position has been laid out in a number of decisions3 including Associated Newspapers Zimbabwe v Media & Information 2006 (1) 128 (H) at 131 E-D, where MAKARAU J (as she then was) held; - “Leave to file additional affidavits cannot be had for the asking. The court will insist on the observance of its rules regarding the sequencing of affidavits to be filed in an application, for uniformity of practice and certainty in the system, unless in the view of the court, justice will miscarry. In particular, the court will not readily grant leave to file an additional affidavit to deal with facts that were available to the parties at the time the permitted affidavits were drawn up and deposed to. Again, the court will not readily grant leave to file additional affidavits that seek to bring in a new cause of action or defence where the facts giving rise to such were available to the parties at the time of the filing of the traditionally recognized affidavits.” APPLYING THE LAW TO THE FACTS [ 14] It is not in dispute that the evidence which respondents seek to file as an additiona l affidavit was not in existence as at the time that the notice of opposition was filed. On that basis, no question arises regarding the justification of its exclusion at the time the applicatio n was opposed. I also believe that it will not be necessary, for purposes of resolving the issue before the court, for one to query the respondents as to why the step they took at the AGM on 29 November 2021 could not be earlier taken. One may therefore proceed to examine the other considerations which the authorities have established to guide the courts in processing applications of this nature. [ 15] The main consideration is whether the affidavit sought to be introduced will materia lly alter the cause of an action already pleaded and before the court. That consideration will in the process, establish whether the application is predicated on any bad intent and whether any 3 See Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H); Jackson v Rothmans of Pall Mall (Zim) (Pvt) Ltd 1993 (2) ZLR 156 (S) ; Scotfin Ltd v Afri Trade Supplies (Pvt) Ltd 1993 (2) ZLR 170 (H); Mangwiza v Ziumbe NO & Anor 2000 (2) ZLR 489 (S) United Refineries Limited v The Mining Industry Pension Fund, & 3 Ors SC 63-14; Dominion Trading FZ-LLC v Victoria Foods (Pvt) Limited 2013 (2) ZLR 332 (H) ; N. Svova & Others v National Social Security Authority SC 10-16; Standard Chartered v Matiza 1994 (1) ZLR 186; HH 873-22 HC 3927/21 prejudice might be occasioned to the applicant if the additional affidavit is admitted. The answer to these issues lies buried in the facts already presented, as well as the import of the affidavit itself. [ 16] I set out the basis of the dispute in [6] above as it is borne out by the relief sought by Bouckaert in this application. This application was spiritedly contested by the respondents. The main affidavit opposing the relief sought (deposed to by Duckworth) goes to great lengths to confirm that the decisions taken by or on behalf of the SVC and SVC Trust to relieve Bouckaert of his responsibilities within the SVC and SVC Trust were justified at law. [ 17] There is no admission in the papers before the court, (as now seems to obliquely emerge from arguments presented on behalf of the respondents), that the removal of Bouckaert was improper. It has now been submitted by counsel for respondents that the controversy has effectively terminated because the respondents have taken steps to address the defect complained of by Bouckaert-namely to validate the decision of the SVC`s Executive Committee. [18] One would pose two questions in response to this position (laid out with great emphasis as captured in [ 7] above). The first question would be; -are the respondents conceding as true, the averments made out in the founding affidavit, including the refutations of any wrong doing by Bouckaert? And secondly if indeed the respondents delivered, by their subsequent action at the AGM, the very prayer that applicant sought in this court, why then did they not simply withdraw their defence and acquiesce to the relief sought? [ 19] The answer to both questions is quite obvious and it demonstrates one thing; -that the controversy between the parties as pleaded was not in the least bit cured by the resolution taken at the AGM. This for the simple reason that such resolution did not address the bedrock of the dispute. Bouckaert insists that he was wrongly removed from office, whilst respondents similarly insist that the removal was proper. It is on this basis that I was not convinced, with respect, that the additional affidavit dissipated the controversy as argued by Mr. Tivadar. [ 20] This brief summary is relevant for purposes of accentuating (a) the causa between the parties as it presently stands before the court and (b) whether the additional affidavit which the respondents seek to introduce will alter that particular causa. Cause of action was defined in in Peebles v Dairibord (Private) Limited Peebles v Dairiboard (Private) Limited 1999 (1) ZLR HH 873-22 HC 3927/21 41 (H), and in Joel Simon Silonda (Substituted By Executor Vusumuzi Thomas Silonda) v Vusumuzi Nkomo SC 6-22 as follows at page 16; - “The law on what constitutes a cause of action is settled. A cause of action is simply a factual conspectus, the existence of which entitles one person to obtain from the court a remedy against another person. In other words, it is an entire set of facts upon which the relief sought stands. See Peebles v Dairiboard (Private) Limited 1999 (1) ZLR 41 (H) at 54E-F and Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626 at 637.” [ emphasis added] [21] Applying this test to the present matter, clearly, the resolution taken at the SVC`s AGM seeking as it did, to ratify the SVC`s Executive Committee`s decision to oust applicant would materially alter the causa. Moreso given that the Executive Committee`s original decision to remove Bouckaert from office had triggered this application which sought the court`s intervention to declare such action invalid. The application was predicated on a number of grounds which were met with spirited defence justifying the action taken by the Executive Committee. The ratification taken by the SVC at its AGM will not as noted, reconcile these positions. Even moreso, it will not only introduce a third dimension to the dispute but actually cloud the original positions taken by the parties. [22] Mr. Tivadar referred me to the Dominion Trading FZ-LLC v Victoria Foods (Pvt) Limited (supra), decision where MATHONSI J (as he then was) granted leave for the filing of a set of additional affidavits after closure of pleadings. In particular, counsel argued that the court in Victoria Foods recognised the developments at respondent company as being relevant to the disposal of the dispute. Likewise, the SVC had to get on take steps necessary for the furthera nce of its very grave and noble objects after their fall out with Bouckaert. Having carefully considered both the circumstances of this matter on one hand, and the Victoria Foods case on the other, I am not persuaded that the latter decision can avail the present respondents` arguments. I say so for the following reasons; - [ 23] In Victoria Foods, the court had to rule on the solvency of a fairly large corporate. In that regard, it became necessary for the court to delve into the respondent`s financial affairs, a process that involved a fairly intense reconciliation of the trading figures. The court found, in that regard, that the additional affidavits which respondent sought to introduce were relevant to the exercise at hand. Secondly, a closer reading of the Victoria Foods case reveals a number HH 873-22 HC 3927/21 of other discretionary considerations peculiar to that matter including an extraordinar ily lengthy opposing affidavit which cried out for further response. [ 24] Thirdly and whilst on this point, a quick survey of the cases in which an additiona l affidavit was allowed or refused will confirm the self-same point that each matter`s circumstances must influence the court`s decision.4 [ 25] Then there is (a) the issue of res litigiosa raised by Mr. Moyo on behalf of Bouckaert and (b) the counter-argument that Bouckaert approached the court seeking to impugn the conduct of the Executive Committee and not the rest of the members of the SVC. My understanding of the arguments was that both counsel sought to ask the court to make a definitive ruling on the holding of the AGM by the SVC and in particular, its subsequent resolution regarding Bouckaert. [ 26] I had recourse to the authorities cited in particular by Mr. Moyo and comment as follows ;- in Musoni v Jokonono & Anor HH 54-10,the court declined to admit a defence proffered after the period within which amendment of a plea could be effected had elapsed in terms of the rules. In the Chikadaya v Chenga & Ors HH 211-10 matter, the court`s finding on f res litigiosa, was ancillary to the court`s basis for ruling in favour of plaintiff. And in Anglican Church of the Province of Zimbabwe v Anglican Church of the Province of Central Africa & Anor HH 451-12,the court was seized with an urgent application between factions feuding for control of church assets. [27] My initial view after considering the authorities is that a fuller inquiry would be desirable. The issue of the SVC`s AGM was not a dispute before the court. The holding of the AGM did not trigger a formal objection from Bouckaert in the form of an application. The issues regarding propriety or otherwise of this AGM were not shared between the parties on notice nor pleaded before the court. I will thus be reluctant to dispose of the issue, which carries significant implications on either party`s rights, on the basis of a legal point raised from the bar in response to a prayer for leave to file an additional affidavit. [ 28] Whilst the matter arose as a legal point, the law was well-articulated by UCHENA JA in El Elion Investments (Private) Limited v Auction City (Private) Limited SC 29-16 [ at page 6-7 of the cyclostyled judgment]; - 4 See the recent decision of Busangabanye & Anor v Matsika & 5 Ors HH 680-22. HH 873-22 HC 3927/21 “It is accepted that a point of law can be raised at any stage of the process even on appeal. The law on the raising of points law for the first time on appeal is clear and has been articulated in a plethora of cases. In Muchakata v Netherburn Mine 1996 (1) 153 (S) at p 157A KORSAH JA said; “Provided it is not one which is required by a definitive law to be specially pleaded a point of law, which goes to the root of the matter, may be raised at any time, even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is directed: Morobane v Bateman 1918 460; Paddock Motors (PTY) Ltd v Igesund 1976 (3) SA 16 (A) at 23D-G.” In Muskwe v Nyajina & Ors SC 17/12 ZIYAMBI JA at p 2 of the cyclostyled judgment said; “Undoubtedly a point of law can be raised at any time even though not pleaded. However, this is subject to certain considerations, one of which is that the court has to consider whether raising a point of law at this juncture would cause prejudice to the party against whom it is raised.”” DISPOSITION [29] It is my view that the additional affidavit sought to be introduced by the respondents will materially alter the causa in as much as it is likely to prejudice the applicant in that regard. I also considered whether the matter could be cured by permitting applicant to file an answer to the additional affidavit should they be admitted. My conclusion was that the additional affidavit dealing as it did with the subsequent ratification of impugned conduct would merely aggravate the quarrels before the court. I believe the matter should be decided as pleaded, and a ruling rendered. For these reasons, I am unmoved by the plea for leave to admit the additiona l affidavit. Accordingly, the application for leave to file an additional affidavit by the respondents be and is hereby refused with costs. Kantor & Immerman -applicant`s legal practitioners Kevin J. Arnott-respondents` legal practitioners CHILIMBE J______23/11/22