JUMO v APPEL and Another (167 of 2025) [2025] ZWHHC 167 (14 March 2025)

4 HH167-25 HC 3104/24 TALENT JUMO versus KERRY-LYN APPEL and SAMEEA AHMED-HASSIN HIGH COURT OF ZIMBABWE MHURI J HARARE 12 November 2024 and 14 March 2025 Opposed Application Adv R Mabwe for Applicant Mr A Dracos for Respondent MHURI J: Applicant approached this Court with an application for a declaratory Order and consequential relief in terms of section 14 of the High Court Act (CAP 7:06.) The background that gives rise to this application can be gleaned from the Applicant’s founding affidavit and in brief is as follows: That Applicant is the founder of Katswe Sistahood Trust. She appointed first and second Respondents as First Trustees whose tenure of office was for a period five years expiring on 12 January 2014.As a result of the expiration of first and second Respondents term of office, Applicant’s intention is to elect additional trustees. As such applicant seeks the following relief: - That an Order declaring that first and second Respondents are no longer Trustees of Katswe Sistahood Trust and that she is the remaining Trustee of Katswe Sistahood and that she is entitled in terms of Katswe Sistahood Deed of Trust to appoint additional Trustees as she deems fit.Consequently, by virtue of clause 6.4 of the Deed of Trust for Katswe Sistahood Trust she is entitled by communication in writing, to elect as additional trustees any persons who are fit and willing to work. The Respondents strongly opposed the application and in their opposition they raised five preliminary points which singly or cumulatively, they were of the view that they dispose of the matter and on that basis, they prayed that the application be dismissed. The preliminary points were to this effect: - That applicant had not utilized the provision in the Trust Deed that the dispute be referred to arbitration hence the Court had no jurisdiction to hear the matter. At the commencement of this hearing, this preliminary point was abandoned. That paragraphs 15.3 and 15.4 of Applicant’s Heads of Argument as well as paragraph 9 of the answering affidavit which raise new issues not raised in the founding papers should be expunged from the record. Save for paragraph 9 in the answering affidavit, Applicant conceded that paragraphs15.3 and 15.4 in the Heads of Argument can be struck out. That Applicant had no locus standi to institute these proceedings as she instituted the proceedings as a founder of the Trust when as a founder, she has no issues in the Trust which becomes a separate legal persona upon registration.That the issue of Respondent’s resignation was prescribed as the cause of action arose on 21 January 2014 which according to Applicant Respondents’ term of office expired.That there was non-joinder of trustees in their official capacity. The Respondents were sued in their personal capacity and also that the Trust was not cited.That the relief being sought is incompetent in that it indicates in paragraphs 1 and 2 that Respondents are no longer Trustees and if the Court were to find that Respondents’ positions came to an end by effluxion of time, the Order will be contradictory and this applies to Applicant as well. Applicant’s position with regards the preliminary points raised was that the points are meritless and ought to be dismissed and the parties proceed to argue the matter on the merits. I directed that the parties make submissions on both the preliminary issues and the merits so that at the end, if I find the preliminary issues to be devoid of any merit, I proceed to determine the matter on the merits but if I find that the points have merit and uphold them, it would be unnecessary for me to determine the merits. As regards the second point in limine, a concession having been made by Applicant that paragraphs 15:3 and 15:4 can be struck out of the heads of argument the paragraphs are hereby expunged. As regards paragraph 9 of the answering affidavit, paragraph 12 of first Respondent’s opposing affidavit to which applicant was answering to reads as follows: - “This is denied. No evidence has been led to establish any failure or inability on my part to act. It is submitted that Applicant is not entitled to appoint any additional trustees as there is no vacuum. It is also denied that I withdrew from the operation or management of the trust. I will set out later in this affidavit and in greater detail the current structure of the trust and its management.” Applicant answers to this averment in her paragraph 9 by stating that she has established the evidence. She referred to annexures TJ1 and TJ2.It is clear therefore that Applicant was answering to the issues as raised by Respondent. This was not a new issue being brought in the answering affidavit. This point in limine cannot be allowed to stand and is dismissed. As regards the point on locus standi, Applicant in her founding affidavit attests under paragraph 2 that “I am the founder of Katswe Sistahood, a trust that I caused to be registered in terms of the laws of Zimbabwe on 12 January 2009 under MA 10/09 ……………………………………………………………………. …………………………………………………………………… By virtue of founding and creating the Trust …. and desiring it to be a body corporate with perpetual succession, I have a real and substantial interest in ensuring the longevity of the Trust I founded.” Clear from the above, is the fact that. Applicant did not institute these proceedings as a trustee but as the founder. The question that arises is does she as a founder have the locus standi to institute the proceedings? Respondents have cited case authorities in which the position was stated that founders of trusts have no interest in the trust once it has been formed. See the case of NAFOC NORTHEN CAPE & ORS V ROSEMARY MODISE & ORS 6/2013 in which it was stated that, “As far as the second Applicant is concerned, it is simply alleged by Smith in his founding affidavit that the second Applicant, as a founder and donor of the Trust supports the application……The position seems to be however that once a trust is created, the founder has no further jurisdiction over it and is functus officio unless certain powers have been specifically reserved in the Trust Deed.” See also HONoRE’S SOUTH AFRICAN LAW OF TRUSTS 6TH ED CAMERON et al 243 wherein it was stated “The founder of a trust who is not a trustee or beneficiary and who has no legal standing in relation to the affairs of the trust apart from a right to take steps to have the trust declared invalid. Having transferred the trust property to the trustees the settler is functus officio (in other words he has no further part to play.” Clause 6.2 of the original Trust Deed YOWLI Zimbabwe Trust whose name was changed to Katswe Sistahood Trust states that the first Trustees shall be Talent JumoKerry AppelSameea Ahmed-Hassim This clearly shows that Applicant was not just a founder but is also a Trustee. To that end the above position relied upon by Defendants does not affect Applicant, this is despite the fact that she does not state in her founding affidavit that she is instituting these proceedings as a Trustee. I am persuaded and agree with the submission by Applicant that she is approaching this Court as an interested party who has direct and substantial interest in this matter in terms of section 14 of the High Court Act. Support is found in the case of NEWTON E DONGO v NAIK & 5 ORS SC 52/2020 in which Gwaunza DCJ had this to say at page 6 of the cyclostyled judgment when relating to the provision of section 14: “Implicit from the reading of the provision is that a declaratur is sought by a person with an interest in the subject matter of the dispute, inquiring or seeking a determination of an existing future or contingent right” I find therefore that Applicant has the locus standi to institute these proceedings. Consequently, the point in limine is hereby dismissed. As regards the point on prescription, a bare averment was made that Respondents’ term of office expired in 2014 and is therefore prescribed. This point was not motivated in detail to enable the Court to make a determination on when exactly the cause of action arose. Respondents deny that, and averred that they continued performing their duties way past 2014 into 2024.This point is also rejected. As regards the point on non-joinder of Respondents as Trustees, it is a trite legal position that no cause or matter shall be defeated by non-joinder. Rule 32(11) is apt. “No cause or matter shall be defeated by reason of misjoinder or non-joinder of any party and the count may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the case or matter.” Respondents are parties to this matter, though cited in their individual capacities. It is their rights and interests that are affected by the determination of this matter. This point is also rejected. As regards the last point, I also find it to be devoid of any merit. A draft Order is what it is, a draft. A Court can grant relief as per the draft or grant relief as amended. Rule 59(27) is instructive on this position. It provides: “At the conclusion of the hearing or thereafter, the Court- a) ……………………………………………………… b) may grant the order applied for including a provisional order, any variation of such order or provisional order whether or not general or other relief has been asked for, and may make such order as to costs as it considers fit” I agree with Applicant’s submission that it was premature for Respondents to raise the point at this stage. In the result the point is also dismissed. Overally all the points in limine are devoid of any merit and are dismissed. I now turn to deal with the merits of the case. Section 14 of the High Court Act upon which this application is premised, provides as follows: - “The High Court may in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination” Gubbay CJ had the occasion to consider when a declaratur should be granted. This he had this to say: - “The condition precedent to the grant of a declaratory order under section 14 of the High Court of Zimbabwe…. is that the Applicant must be an “interested person” in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing future or contingent right. The Court will not decide abstract academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction” Johnsen V Agricultural Finace Corp 1995(1) ZLR 65 (S) In casu, it goes without saying that Applicant has a real interest in the matter. She founded the Trust, appointed the Respondents as Trustees. She is desirous to see the Trust go forward through the activities by the Trustees. It is not in dispute that both Respondents are no longer domiciled in Zimbabwe. Their tenure of office expired in 2014 after the first five years of the inception of the Trust. No evidence was produced of their re appointment though their argument is that there was tacit extension of their re appointment. Filed of record are emails to the Respondents to which no response was filed. This show that Respondents did not actively discharge their duties if ever they did. In the result I will grant Applicant the relief she seeks, to wit that: - It is declared that: Respondents are no longer Trustees of Katswe Sistahood Trust.Applicant is the sole remaining Trustee of Katswe Sistahood Trust.Consequently, Applicant by virtue of clause 6.4 of the Trust of Katswe Sistahood Trust MA 10/09, is entitled by was of communication in writing to appoint any person fit and willing to act as additional trustees for Katswe Sistahood Trust.There shall be no order as to costs. MHURI J………………………………………………………. Tsunga International law, applicant’s legal practitioners Gollop & Blank: Respondents, legal practitioners 4 HH167-25 HC 3104/24 4 HH167-25 HC 3104/24 TALENT JUMO versus KERRY-LYN APPEL and SAMEEA AHMED-HASSIN HIGH COURT OF ZIMBABWE MHURI J HARARE 12 November 2024 and 14 March 2025 Opposed Application Adv R Mabwe for Applicant Mr A Dracos for Respondent MHURI J: Applicant approached this Court with an application for a declaratory Order and consequential relief in terms of section 14 of the High Court Act (CAP 7:06.) The background that gives rise to this application can be gleaned from the Applicant’s founding affidavit and in brief is as follows: That Applicant is the founder of Katswe Sistahood Trust. She appointed first and second Respondents as First Trustees whose tenure of office was for a period five years expiring on 12 January 2014.As a result of the expiration of first and second Respondents term of office, Applicant’s intention is to elect additional trustees. As such applicant seeks the following relief: - That an Order declaring that first and second Respondents are no longer Trustees of Katswe Sistahood Trust and that she is the remaining Trustee of Katswe Sistahood and that she is entitled in terms of Katswe Sistahood Deed of Trust to appoint additional Trustees as she deems fit. Consequently, by virtue of clause 6.4 of the Deed of Trust for Katswe Sistahood Trust she is entitled by communication in writing, to elect as additional trustees any persons who are fit and willing to work. The Respondents strongly opposed the application and in their opposition they raised five preliminary points which singly or cumulatively, they were of the view that they dispose of the matter and on that basis, they prayed that the application be dismissed. The preliminary points were to this effect: - That applicant had not utilized the provision in the Trust Deed that the dispute be referred to arbitration hence the Court had no jurisdiction to hear the matter. At the commencement of this hearing, this preliminary point was abandoned. That paragraphs 15.3 and 15.4 of Applicant’s Heads of Argument as well as paragraph 9 of the answering affidavit which raise new issues not raised in the founding papers should be expunged from the record. Save for paragraph 9 in the answering affidavit, Applicant conceded that paragraphs15.3 and 15.4 in the Heads of Argument can be struck out. That Applicant had no locus standi to institute these proceedings as she instituted the proceedings as a founder of the Trust when as a founder, she has no issues in the Trust which becomes a separate legal persona upon registration. That the issue of Respondent’s resignation was prescribed as the cause of action arose on 21 January 2014 which according to Applicant Respondents’ term of office expired. That there was non-joinder of trustees in their official capacity. The Respondents were sued in their personal capacity and also that the Trust was not cited. That the relief being sought is incompetent in that it indicates in paragraphs 1 and 2 that Respondents are no longer Trustees and if the Court were to find that Respondents’ positions came to an end by effluxion of time, the Order will be contradictory and this applies to Applicant as well. Applicant’s position with regards the preliminary points raised was that the points are meritless and ought to be dismissed and the parties proceed to argue the matter on the merits. I directed that the parties make submissions on both the preliminary issues and the merits so that at the end, if I find the preliminary issues to be devoid of any merit, I proceed to determine the matter on the merits but if I find that the points have merit and uphold them, it would be unnecessary for me to determine the merits. As regards the second point in limine, a concession having been made by Applicant that paragraphs 15:3 and 15:4 can be struck out of the heads of argument the paragraphs are hereby expunged. As regards paragraph 9 of the answering affidavit, paragraph 12 of first Respondent’s opposing affidavit to which applicant was answering to reads as follows: - “This is denied. No evidence has been led to establish any failure or inability on my part to act. It is submitted that Applicant is not entitled to appoint any additional trustees as there is no vacuum. It is also denied that I withdrew from the operation or management of the trust. I will set out later in this affidavit and in greater detail the current structure of the trust and its management.” Applicant answers to this averment in her paragraph 9 by stating that she has established the evidence. She referred to annexures TJ1 and TJ2.It is clear therefore that Applicant was answering to the issues as raised by Respondent. This was not a new issue being brought in the answering affidavit. This point in limine cannot be allowed to stand and is dismissed. As regards the point on locus standi, Applicant in her founding affidavit attests under paragraph 2 that “I am the founder of Katswe Sistahood, a trust that I caused to be registered in terms of the laws of Zimbabwe on 12 January 2009 under MA 10/09 ……………………………………………………………………. …………………………………………………………………… By virtue of founding and creating the Trust …. and desiring it to be a body corporate with perpetual succession, I have a real and substantial interest in ensuring the longevity of the Trust I founded.” Clear from the above, is the fact that. Applicant did not institute these proceedings as a trustee but as the founder. The question that arises is does she as a founder have the locus standi to institute the proceedings? Respondents have cited case authorities in which the position was stated that founders of trusts have no interest in the trust once it has been formed. See the case of NAFOC NORTHEN CAPE & ORS V ROSEMARY MODISE & ORS 6/2013 in which it was stated that, “As far as the second Applicant is concerned, it is simply alleged by Smith in his founding affidavit that the second Applicant, as a founder and donor of the Trust supports the application……The position seems to be however that once a trust is created, the founder has no further jurisdiction over it and is functus officio unless certain powers have been specifically reserved in the Trust Deed.” See also HONoRE’S SOUTH AFRICAN LAW OF TRUSTS 6TH ED CAMERON et al 243 wherein it was stated “The founder of a trust who is not a trustee or beneficiary and who has no legal standing in relation to the affairs of the trust apart from a right to take steps to have the trust declared invalid. Having transferred the trust property to the trustees the settler is functus officio (in other words he has no further part to play.” Clause 6.2 of the original Trust Deed YOWLI Zimbabwe Trust whose name was changed to Katswe Sistahood Trust states that the first Trustees shall be Talent Jumo Kerry Appel Sameea Ahmed-Hassim This clearly shows that Applicant was not just a founder but is also a Trustee. To that end the above position relied upon by Defendants does not affect Applicant, this is despite the fact that she does not state in her founding affidavit that she is instituting these proceedings as a Trustee. I am persuaded and agree with the submission by Applicant that she is approaching this Court as an interested party who has direct and substantial interest in this matter in terms of section 14 of the High Court Act. Support is found in the case of NEWTON E DONGO v NAIK & 5 ORS SC 52/2020 in which Gwaunza DCJ had this to say at page 6 of the cyclostyled judgment when relating to the provision of section 14: “Implicit from the reading of the provision is that a declaratur is sought by a person with an interest in the subject matter of the dispute, inquiring or seeking a determination of an existing future or contingent right” I find therefore that Applicant has the locus standi to institute these proceedings. Consequently, the point in limine is hereby dismissed. As regards the point on prescription, a bare averment was made that Respondents’ term of office expired in 2014 and is therefore prescribed. This point was not motivated in detail to enable the Court to make a determination on when exactly the cause of action arose. Respondents deny that, and averred that they continued performing their duties way past 2014 into 2024.This point is also rejected. As regards the point on non-joinder of Respondents as Trustees, it is a trite legal position that no cause or matter shall be defeated by non-joinder. Rule 32(11) is apt. “No cause or matter shall be defeated by reason of misjoinder or non-joinder of any party and the count may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the case or matter.” Respondents are parties to this matter, though cited in their individual capacities. It is their rights and interests that are affected by the determination of this matter. This point is also rejected. As regards the last point, I also find it to be devoid of any merit. A draft Order is what it is, a draft. A Court can grant relief as per the draft or grant relief as amended. Rule 59(27) is instructive on this position. It provides: “At the conclusion of the hearing or thereafter, the Court- a) ……………………………………………………… b) may grant the order applied for including a provisional order, any variation of such order or provisional order whether or not general or other relief has been asked for, and may make such order as to costs as it considers fit” I agree with Applicant’s submission that it was premature for Respondents to raise the point at this stage. In the result the point is also dismissed. Overally all the points in limine are devoid of any merit and are dismissed. I now turn to deal with the merits of the case. Section 14 of the High Court Act upon which this application is premised, provides as follows: - “The High Court may in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination” Gubbay CJ had the occasion to consider when a declaratur should be granted. This he had this to say: - “The condition precedent to the grant of a declaratory order under section 14 of the High Court of Zimbabwe…. is that the Applicant must be an “interested person” in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing future or contingent right. The Court will not decide abstract academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction” Johnsen V Agricultural Finace Corp 1995(1) ZLR 65 (S) In casu, it goes without saying that Applicant has a real interest in the matter. She founded the Trust, appointed the Respondents as Trustees. She is desirous to see the Trust go forward through the activities by the Trustees. It is not in dispute that both Respondents are no longer domiciled in Zimbabwe. Their tenure of office expired in 2014 after the first five years of the inception of the Trust. No evidence was produced of their re appointment though their argument is that there was tacit extension of their re appointment. Filed of record are emails to the Respondents to which no response was filed. This show that Respondents did not actively discharge their duties if ever they did. In the result I will grant Applicant the relief she seeks, to wit that: - It is declared that: Respondents are no longer Trustees of Katswe Sistahood Trust. Applicant is the sole remaining Trustee of Katswe Sistahood Trust. Consequently, Applicant by virtue of clause 6.4 of the Trust of Katswe Sistahood Trust MA 10/09, is entitled by was of communication in writing to appoint any person fit and willing to act as additional trustees for Katswe Sistahood Trust. There shall be no order as to costs. MHURI J………………………………………………………. Tsunga International law, applicant’s legal practitioners Gollop & Blank: Respondents, legal practitioners