Elizabeth Mashindi v Ngungunyana Housing Co-operative and Others

The plaintiff joined Ngungunyana Housing Co-operative (1st defendant) as a member in 2006 and was allocated Stand No. 14473 Budiriro, Harare. On 13 February 2019, she was advised that her premises were being demolished. The following day, she found that the wooden cabin she had erected had been dismantled and left at Ngungunyana's offices, together with bricks from the stand. The 3rd defendant had constructed a structure of concrete blocks on the stand, having been allocated the stand by Ngungunyana. When the plaintiff attended Ngungunyana's offices, the 2nd defendant informed her that she had been expelled from the co-operative society, resulting in her stand being repossessed. The plaintiff alleged that these actions violated Ngungunyana's Constitution and the Co-operative Societies Act. She sought a declaration as lawful owner of the stand, a declaration that her expulsion was null and void, eviction of the defendants from the stand, and costs on an attorney-client scale.

• Whether the plaintiff was required to exhaust domestic remedies provided under section 115 of the Co-operative Societies Act [Chapter 24:05] before approaching the High Court
• Whether the court should withhold its jurisdiction in favour of the dispute resolution mechanism provided in the Co-operative Societies Act
• Whether the remedies available under the Co-operative Societies Act are adequate and effective

1. The point in limine was upheld. 2. The trial cause in Case Number HC 5249/19 was removed from the roll. 3. The dispute between the parties was referred to the Registrar of Co-operative Societies for determination in terms of section 115(1)(a) of the Co-operative Societies Act [Chapter 24:05]. 4. Each party was ordered to bear its own costs.

Where a dispute concerns the business of a registered co-operative society, section 115(1)(a) of the Co-operative Societies Act [Chapter 24:05] creates a peremptory requirement that such disputes be referred to the Registrar of Co-operatives for decision before approaching the courts. The court will exercise its discretion to withhold jurisdiction and defer to domestic remedies provided by statute where those remedies are adequate and effective. A dispute concerning a member's expulsion from a co-operative society and the repossession of a stand allocated by the society falls within the category of disputes concerning the business of the society that must be referred to the Registrar under section 115(1)(a).

The court observed that the remedies provided under the Co-operative Societies Act are commendable as they provide a cheaper form of dealing with disputes, which aligns with the legislative intent that co-operative societies serve those in society without adequate means to embark on projects requiring capital outlay. The court noted that the Registrar has wide-ranging powers under the Act, including the power to summon members, officers, employees or agents to provide information and produce documents under section 114, and the power to refer matters for arbitration under section 115(5). The court also noted that the law on exhaustion of domestic remedies is the same in South Africa, citing Lawson v Cape Town Municipality 1982 (4) SA 1.

This case reinforces the principle that litigants must exhaust domestic remedies provided by statute before approaching the courts, particularly in matters relating to co-operative societies. It confirms that Zimbabwean courts will exercise their discretion to withhold jurisdiction where adequate alternative dispute resolution mechanisms exist in legislation. The case emphasizes the importance of the statutory dispute resolution framework under the Co-operative Societies Act and demonstrates the court's willingness to defer to specialized administrative bodies (the Registrar of Co-operatives) for resolution of disputes falling within their statutory mandate. The judgment promotes the policy of expeditious and cost-effective resolution of disputes involving co-operative societies, which serve members who may lack adequate financial means.