MHANYAMI FISHING AND TRANSPORT

CO-OPERATIVE SOCIETY LIMITED

and

KUBATANA NHARIRA FISHING CO-OPERATIVE

SOCIETY LIMITED

and

LAZY RIVER FISHERIES (PVT) LIMITED

versus

THE DIRECTOR GENERAL PARKS AND WILDLIFE

MANAGEMENT AUTHORITY N O

and

PARKS AND WILDLIFE MANAGEMENT AUTHORITY

and

THE ATTORNEY-GENERAL N.O.

HIGH COURT OF ZIMBABWE

MAKONI J

6 May 2010 and 15 June 2011

J Shekede, for the applicants

W P Zhangazha, for the 1^stand 2^ndrespondents

J Mumbengegwi, for the 3^rdrespondent

Opposed Application

MAKONI J:    The applicants approached this court seeking an order in the following terms:

“1)       The decision by the first and second respondents in refusing to renew the fishing permits for the first, second and third applicants be and is hereby set aside.

 2)        The first and second respondents are hereby directed to issue fishing permits to the first, second and third applicants upon payment of the requisite fees and compliance with one statutory requirements.

 3)        The first and second respondents shall pay costs of suit jointly and severally, the one paying the other to be absolved”.

The background to the matter is that the three applicants have been in the fishing business for a period spanning over 20 years. Within that period, the first and second respondents would issue them with annual fishing permits. On 5 October 2006, the first respondent wrote to the third applicant advising it that its fishing permit would not be renewed as it would be redistributed to other incoming players. The letter gave them one year’s notice from 1 January 2007 to 31 December 2007. The first and second applicants were later advised that the contents of the letter of 5 October 2006 applied to them as well. The applicants pleaded with the first respondent who extended the period of operation to December 2009. Thereafter, the first respondent refused to renew the applicants’ permits.

The applicants then approached this court in terms of s 3(1) (a) as read with ss 4 and 5 of the Administrative Justice Act [Cap 10:28] (“the Act”). The basis for the application is three fold. Firstly they contend that the decision by the respondents to refuse to renew their fishing permits contravenes the laws of natural justice and the relevant provisions of the Act. Secondly, they contend that they have a legitimate expectation that their fishing permits will be renewed. Lastly, they contend that the decision in refusing to renew their permits was made retrospectively and has no basis at law since the enabling statute does not provide for same.

The respondents, raised four points in limine:

1. The High Court cannot substitute an administrative decision with its own in applications made in terms of the Act.
2. The High Court should exercise its discretion to withhold its jurisdiction from the applicants for failing to exhaust the domestic remedies by way of appeal to the relevant minister as allowed by the enabling statute.
3. The deponents of the applicants’ affidavits have no authority to sign the founding affidavits on behalf of the applicants.
4. The first and second respondents have been mis-cited.

I will deal with the points in seriutum.

POINT I

This point relates to para 2 of the draft order only. I will not dwell much on it as in my view, even if I were to make a finding in favour of the respondents, it will not dispose of the matter. The court still has to consider whether it can grant the other paragraphs of the draft order.

Mr Zhangazha submitted that the applicants chose to proceed to seek relief in terms of a specific statute and not through the common law approach. The relief they seek in para 2 of the draft order is one that effectively substitutes the administrative authority’s decision. This is not envisaged anywhere in the Act.

Mr Shekede submitted that it is a general principle of our law that our courts do not lightly interfere with administrative decisions made by administrative authorities in the absence of illegality, irrationality or procedural impropriety. The High Court can interfere with an administrative decision on the aforementioned grounds. He further submitted that in terms of s 4(2) of the Act, the High Court may confirm or set aside the decision concerned or refer the matter back to the administrative authority concerned for consideration or reconsideration.

Paragraph 2 of the Draft Order reads:

“2.       The first and second respondents are hereby directed to issue fishing permits to the first, second and third applicants upon payment of the requisite fees and compliance with other statutory requirements”.

The point being made by the respondents, which point I agree with, is that the effect of granting para 2 of the order, is to substitute the decision of the respondents with that of this court. No such power is conferred on this court by s 4 (2) of the Act.

Section 4 (2) provides:

(2)        Upon an application being made to it in terms of subs (1), the High Court may, as may be appropriate –

(a)        confirm or set aside the decision concerned;

(b)        refer the matter back to the administrative authority to take administrative action within the relevant period specified by law or, if no such period is specified, within a period fixed by the High Court;

(c)        direct the administrative authority to take administrative action within the relevant period specified by law, or if no such period is specified, within a period fixed by the High Court;

(d)        direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or if no such period is specified, within a period fixed by the High Court;

(e)        give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

In my view, the language used in the above section was carefully crafted in a bid to avoid the undesirable situation where the courts would take over the functions of an administrative authority. See Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 at 21 (S). McNALLY JA quoted, with approval, comments in Baxter’s Administrative Law that:

“The function of judicial review is to scrutinise the legality of administrative action, not to secure a decision by a judge in place of the administrator. As a general principle, the court will not attempt to substitute their own decision for that of the public authority; if an administrative decision is found to be ultra-vires the court will usually set it aside and refer the matter back to the authority for a fresh decision. To do otherwise ‘would constitute an unwarranted usurpation of the powers entrusted to the public authority by the legislature’. Thus, it is said that: ‘the ordinary course is to refer back because the court is slow to assume a discretion which has by statute been entrusted to another tribunal or functionary. In exceptional circumstances this principle will be departed from. The overriding principle is that of fairness’”.

I also agree with Mr Zhangazha that no adequate information is available to the court for it to be able to grant para 2. Before granting a permit, the respondents would look into such issues as the size of the nets, fish population, the number of operators allowed per year and many others. These are issues of an administrative nature which this court cannot inquire into. The court cannot therefore direct the respondents to issue permits to the applicants. I will therefore uphold the point in limine.

POINT  2

DOMESTIC REMEDIES

It was submitted by Mr Zhangazha that s 124 (2) of the Parks and Wild Life Act [Cap 20:14] provides for an appeal to an aggrieved person to the Ministry of Environment and Natural Resources. The section gives the Minister power to substitute the decision of the respondents. The Act therefore provides adequate relief to aggrieved persons.

Mr Shekede, on the other hand, submitted that s 124 was not peremptory. That domestic remedies can be dispensed with where there are special circumstances. He also submitted that the Act came into effect in 2004 when the Parks and Wildlife Act [Cap 20:14] was already in existence. This provides a party with a choice to either exhaust the domestic remedies or to approach the High Court.

It has been laid down in a number of cases, in our jurisdiction, that where domestic remedies are capable of providing effective redress in respect of the complaint and secondly where the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so. See Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 234 (S) at 249 D. See also Moyo v Forestry Commission 1996 (1) ZLR 173 (h) AT 191d – 192 b, Muzengi v Standard Chartered Bank Zimbabwe Limited & Anor 2002 (1) ZLR 334 S at 338 A – B, and  Djordjevic and The Chairman of the Practice Control Committee of the Medical and Dental Practitioners Council of Zimbabwe & Anor HH 110/09.

Some of the factors to be considered in determining whether the court can withhold its jurisdiction until domestic remedies are exhausted were considered in Lawson v Cape Town Municipality 1982 (4) SA 1 at 6H to 7A (S). COMRIE J said:

“Among these are: the subject matter of the statute (transport, trading licences, town planning and so on); the body or person who makes the initial decision and the bases on which it is to be made; the body or person who exercises appellate jurisdiction the manner in which that jurisdiction is to be exercised, including the ambit of any re-hearing on appeal, the powers of the appellate tribunal, including its power to redress or cure wrongs of a reviewable character; and whether the tribunal, its procedures and powers are suited to redress the particular wrong of which an applicant complains”.

Section 124 provides:

1. Any person who is aggrieved by any decision of an appropriate authority, for unalianated land or for any waters in refusing to issue or cancelling or imposing condition in respect of a permit referred to in subs (4) of section fifty-nine or section eighty-six may appeal against the decision to the Minister.
2. Upon an appeal being made in terms of subs (1) the Minister may uphold the decision of the appropriate authority or may direct the appropriate authority to issue a permit in terms of subs (4) of section fifty-nine or section eighty-six or to delete all or any of the conditions imposed in respect of such permit and the appropriate authority shall comply with such direction.

Subsection 1 of s 124 uses the word “may”. The applicants argue that it is permissive and not peremptory. I agree with the respondents’ position that the word was used to give an aggrieved party a choice whether to appeal or not. The appeal procedure is available to “Any person who is aggrieved by any decision of an appropriate authority …” (my own underlining). The appeal procedure was therefore available to the applicants.

In my view, the appeal procedure was capable of providing effective redress to the applicant’s complaint. The Minister, in terms of subs 2, is empowered to do various acts one of which is what the applicants seek in para 2 of the Draft Order. The powers that the Minister has were as described by COMRIE J in Lawsen’s case supra “of considerable breath and would in my view cater for most cases …”. He can inter alia, issue permits, unlike this court which does not have such powers under the Act. The Minister is better placed to acquire the appropriate information before he can grant a permit.

 In view of the above findings, I will uphold the point in limine.

POINT 3

 AUTHORITY TO DEPOSE TO THE FOUNDING AFFIDAVITS

The first and second applicants are co-operatives. The third applicant is a registered company in terms of the laws of Zimbabwe. It was submitted by Mr Zhangazha that the deponents of the founding affidavits did not have authority to depose to the affidavits. In their answering papers, the applicants contended that the respondents had no basis to challenge their authority. They attached the certificates of registration and certificate of incorporation as proof that the applicants were registered. It was submitted on their behalf that in terms of ss 22 and 28 of the Co-operatives Societies Act [Cap 24:05] and s12 and 13 of the Companies Act [Cap 24:03], they had the requisite authority.

The first and second applicants are in terms of s 21 of the Co-operative Act [Cap 24:05] body corporates with all the rights attendant on a body corporate. The third applicant, is a duly registered company. The three applicants are therefore artificial persons.

“Unlike an individual, an artificial person can only function through its agent and it can only take decisions by the passing of resolutions in the manner provided by its constitution.

There is considerable amount of authority for the proposition that, where a company commences proceedings by way of petition, it must appear that the person who makes the petition on behalf of the company is duly authorised by the company to do so. This seems to me to be a statutory rule and one which should apply also to notice of motion proceedings where the applicant is an artificial person. In such cases some evidence should be placed before the court to show that the applicant has duly resolved to institute the proceedings and that the proceedings are instituted at its instance. Unlike in the case of an individual, the mere signature of the notice of motion by an attorney and the fact that the proceedings purport to be brought in the name of the applicants are in my view insufficient. The best evidence that the proceedings have been properly authorised would be to provide an affidavit made by an official of the company annexing a copy of the resolution …”  

See Male (Cape) (Pty) Ltd v Merinoko-operasie Bpk 1957 (2) SA 347 C at 351-352 as quoted with approval in Direct Response Marketing (Pvt) Ltd v Shepherd 1993 (2) ZLR 218 (H) at 221 C-D and F-G.

In my view, once a party raises an issue whether the deponent to an affidavit has authority to depose to an affidavit on behalf of an artificial person, then the other party must place before the court some form of proof that he is so authorised. For artificial persons, such proof will be in the form of resolutions. The deponents offered no evidence that they had been authorised to institute the proceedings on behalf of the applicants. They could have produced the resolutions annexed to the answering affidavits as the respondents had challenged their authority. There is therefore no evidence that the applications were duly authorised. In view of my finding, I will uphold the point in limine.

POINT 4

 MISCITATION OF THE RESPONDENT

The respondents cited the respondents as the Director General, Zimbabwe Parks and Wildlife Management Authority NO and Zimbabwe Parks and Wildlife Management Authority. The proper citation for the first respondent is The Director General, Parks and Wildlife Management Authority and for the second respondent Parks and Wildlife Management Authority. When the respondents took issue with the citation, the applicants, in subsequent papers cited the respondents properly. It was contended, by the respondents, that the applicants did not adopt the procedure as laid down in the rules. The applicants contended that they cited the respondents in such a manner in view of the various correspondence received from the first respondent whose letter heads reflected the second respondent as Zimbabwe Parks and Wild Life Management Authority.

Section 3 of the Parks and Wild Life Act [Cap 20:14] establishes the Parks and Wild Life Management Authority which is a body corporate capable of suing and being sued in its corporate name. This is the entity that can be sued if there are any issues arising out of the Parks and Wild Life Act [Cap 20:14]. There is no such entity as the Zimbabwe Parks and Wild Life Management Authority. It was the duty of the applicants to check with the appropriate statute what entity to sue rather than rely on a letter heads from correspondence. The authority is managed by the Parks and Wild Life Management Authority Board. In my view, this should have been cited as the first respondent rather than the Director-General.

In view of the above, the applicants have brought non-existent entities before the court. I agree with Mr Zhangazha that you do not correct a citation in an application by correctly citing the parties in subsequent papers.

I have upheld all the four points raised by the respondents in limine. It will not be necessary for me to deal with the matter on the merits.

In the result, I make the following order:

1. The application is dismissed.
2. The applicants to pay the respondents’ costs.

Wintertons, applicants’ legal practitioners

Chinamasa, Mudimu, Chinogwenya & Dondo, 1^stand 2^ndrespondents’ legal practitioners

Attorney-General