Simon Mazorodze Housing Co-operative v Lisa Tagara

The Plaintiff, a registered co-operative society, issued summons on 3 November 2021 against the Defendant claiming eviction and repossession of stand No 16586 Simon Mazorodze Housing Co-operative, Fountainbleau, Kuwadzana Phase 3 Dzivaresekwa Harare. The Plaintiff alleged that in 2012 the Defendant occupied the stand without approval and without complying with the society's requirements: filling a joining form, paying a joining fee, and complying with by-laws. Plaintiff claimed it only discovered through a 2021 audit that the Defendant was not a registered member and had no records of payment or approval. The Defendant had built a house on the stand and was residing there. The Defendant filed a special plea on 20 December 2021 alleging: (1) no cause of action established, (2) prescription of the claim, and (3) that the matter was already before the Registrar of Co-operative Societies. A letter dated 23 July 2021 from Registrar T. Shoko confirmed that a dispute had been declared regarding the audit report's validity and directed the co-operative to put on hold all actions emanating from the audit report until the dispute was resolved.

• Whether the Plaintiff established a cause of action against the Defendant
• Whether the Plaintiff's claim had prescribed in terms of the Prescription Act [Chapter 8:11]
• Whether the court had jurisdiction to hear the matter given that a dispute was pending before the Registrar of Co-operative Societies in terms of section 115 of the Co-operatives Societies Act [Chapter 24:05]
• Whether domestic remedies under the Co-operatives Societies Act had to be exhausted before approaching the court

1. The special plea on the third point (matter before Registrar) is granted. 2. Plaintiff's claim is struck off for being prematurely before the court. The dispute before the Registrar is to continue until finality. 3. Plaintiff to bear Defendant's costs on an attorney-client scale.

Where a dispute concerning the business of a registered co-operative society has been declared and is pending before the Registrar of Co-operative Societies in terms of section 115 of the Co-operatives Societies Act [Chapter 24:05], the court must withhold its jurisdiction and defer to the domestic remedies provided in the Act. An applicant must exhaust the remedies available under sections 115 and 116 of the Co-operatives Societies Act (determination by the Registrar and subsequent appeal structures) before approaching the courts. It is premature to bring eviction proceedings based on an audit report when the validity and authenticity of that audit report is the subject of a pending dispute before the Registrar, and the Registrar has directed that all actions emanating from the audit report be put on hold until the dispute is resolved.

The court noted that the remedies provided under the Co-operatives Societies Act are more than capable of providing adequate redress to an aggrieved party and constitute a cheaper form of dealing with disputes, which is commendable given that co-operative societies serve those in society without adequate means to embark on capital projects without assistance. The court also observed that the Plaintiff ought not to have brought the matter to court had it exercised due diligence and obtained the Registrar's letter of 23 July 2021, which had been brought to its attention by the Defendant. While the court found that a cause of action was established and that the claim had not prescribed, these findings were ultimately academic given the decision on jurisdiction.

This case reinforces the principle that domestic remedies provided under the Co-operatives Societies Act [Chapter 24:05] must be exhausted before approaching the courts. It emphasizes the jurisdiction of the Registrar of Co-operative Societies to determine disputes concerning the business of registered societies under section 115 of the Act. The judgment upholds the policy that co-operative society disputes should be resolved through specialized, cheaper administrative mechanisms rather than court litigation, recognizing that co-operatives serve those without adequate means. The case also clarifies the application of section 16(3) of the Prescription Act regarding when a creditor becomes aware of facts giving rise to a debt, and confirms that cause of action requires material facts that must be proved to entitle a plaintiff to succeed.