Francis Rateyiwa v Kambuzuma Housing Cooperative and City of Harare

The applicant was a member of the first respondent, Kambuzuma Housing Cooperative, a cooperative body established under the Co-operative Societies Act [Chapter 24:05]. In 2001, the applicant was suspended following certain allegations. In 2002, further allegations arose that he had authorized an agreement of sale of a stand being developed by the respondent to himself without the knowledge of the general membership. In this agreement, the applicant signed both as buyer and as chairman of the seller (the cooperative). On 4 June 2006, he was again suspended and was called to a meeting to decide his membership. He did not attend, and on 23 July 2006 a decision was made to eject him from the cooperative. The applicant approached the High Court seeking specific performance of the alleged agreement of sale without first referring the dispute to the Registrar of Co-operative Societies as required by the Act.

• Whether the applicant should have exhausted domestic remedies by referring the dispute to the Registrar of Co-operative Societies in terms of section 115 of the Co-operative Societies Act before approaching the High Court
• Whether the court should exercise its discretion to withhold jurisdiction where statutory domestic remedies have not been exhausted
• Whether the alleged agreement of sale was illegal and void ab initio by virtue of section 80 of the Co-operative Societies Act which prohibits disposal of cooperative property without the Registrar's prior approval
• Whether the High Court's jurisdiction had been ousted by the Co-operative Societies Act

The application was dismissed with costs ordered against the applicant.

1. A claim by a member for specific performance of an alleged debt against a cooperative society constitutes a "dispute concerning the business of a registered society" within the meaning of section 115 of the Co-operative Societies Act and must be referred to the Registrar for decision. 2. While section 115 does not oust the High Court's inherent jurisdiction under section 13 of the High Court Act, the court has discretion to withhold jurisdiction where a litigant has failed to exhaust adequate domestic remedies provided by statute, particularly where such remedies are cheaper, more informal, and equally effective. 3. Any transaction for the sale, donation, or disposal of property owned by a cooperative society conducted without the prior approval of the Registrar as required by section 80 of the Co-operative Societies Act is illegal, void, and of no legal effect from inception. 4. A court will exercise its inherent jurisdiction to regulate its own proceedings and withhold jurisdiction to prevent abuse of process, though such power is exercised sparingly.

The court observed that the registrar's powers under section 114 and 115 of the Act are sufficiently wide to effectively conduct a hearing and resolve disputes, being akin to those of a hearing officer. The court noted the trend toward informal and cheaper arbitration processes for dispute resolution rather than formal court procedures. GOWORA J commented that the formalities for cooperative societies were designed to serve those in society without adequate means to embark on capital-intensive projects, making it appropriate that disputes should be resolved through cheaper mechanisms. The court also noted that the applicant's status as a member or former member of the cooperative was irrelevant to determining whether he was entitled to specific performance, as his claim was premised on an alleged agreement concluded prior to his expulsion.

This case establishes important principles regarding the exhaustion of statutory domestic remedies before approaching the courts in Zimbabwe. It clarifies that while the High Court's inherent jurisdiction is not easily ousted, the court has discretion to withhold jurisdiction where adequate alternative dispute resolution mechanisms are provided by statute. The case also reinforces the principle that transactions conducted in contravention of statutory prohibitions are void ab initio. It demonstrates the courts' approach to cooperative societies legislation and the importance of following prescribed regulatory procedures for disposal of cooperative property. The judgment is significant for cooperative law, administrative law, and civil procedure, particularly regarding when litigants must exhaust alternative remedies before seeking relief from the courts.