Rufaro Marketing Employees Housing Cooperative Society v Molline Munjoma

The appellant, a housing co-operative registered for employees of Rufaro Marketing Company, sued the respondent for eviction from stand No. 1923 Crowborough, Phase 3, Harare, and damages of $1750. The appellant claimed it was the registered owner of the stand and that the respondent was in illegal occupation as she was not a member of the co-operative, which was restricted to Rufaro Marketing Company employees. The respondent admitted she was not an employee but claimed she had applied for and been accepted as a member by the then secretary of the co-operative, and that she paid monthly subscriptions. Section 6 of the appellant's constitution restricted membership to Rufaro Marketing Employees. The respondent also relied on a provisional order from the High Court (Case No. HC 5961/05 dated 1 December 2005) which she claimed declared her a legitimate member, though this order was never confirmed. The Magistrate's Court dismissed the appellant's claim with costs, prompting this appeal.

• Whether the respondent was a member of the appellant co-operative society
• Whether section 115 of the Co-operative Societies Act applied to the dispute
• Whether an unconfirmed provisional order could establish membership rights
• Whether the appellant established its right to evict the respondent
• Whether the appellant proved damages

The appeal succeeded in part with costs. The order of the Magistrate's Court was set aside and substituted with: (a) An order for eviction of the defendant and all those claiming occupation through her from stand no. 1923, Crowborough, Phase 3, Harare; (b) The claim for damages was dismissed; (c) Defendant to pay costs of suit.

Section 115 of the Co-operative Societies Act applies only to disputes between a co-operative society and its members, past members, or representatives of deceased members. Where a person fails to establish membership of a co-operative society, the dispute resolution mechanism under section 115 does not apply. The onus rests on a person claiming membership of a co-operative society to prove such membership. An unconfirmed provisional order cannot be relied upon to establish substantive rights or defeat clear ownership rights of the applicant. Where constitutional provisions of a co-operative society restrict membership to a defined category (in this case, employees of a specific company), persons not falling within that category must affirmatively prove membership if claiming to be members.

The court observed that the only probability was that the constitution of the co-operative society existed at its inception, as it would have been a mandatory requirement for registration, notwithstanding the respondent's claim that no constitution existed when she allegedly joined. The court noted that the respondent had failed to pursue confirmation of the provisional order for over 12 years (from December 2005 to the time of the appeal hearing), suggesting a lack of diligence on her part. The court also commented that the trial magistrate had lost direction of the issues before her and focused inappropriately on the conduct of the secretary and whether any hearing was conducted concerning the secretary, rather than on the central issue of whether the respondent had established membership.

This case is significant in South African (Zimbabwean) jurisprudence as it clarifies the application of section 115 of the Co-operative Societies Act, establishing that the dispute resolution mechanism contained therein only applies to disputes involving actual members of a co-operative society. It reinforces the principle that the onus rests on a person claiming membership rights to prove such membership, particularly where constitutional provisions restrict membership to defined categories. The judgment also establishes that an unconfirmed provisional order cannot be relied upon to establish substantive rights, particularly where the party seeking to rely on it has failed to take steps to have it confirmed over an extended period (in this case, from 2005 to 2018).