A
company is a person. It is a juristic person, or, in legal parlance,
a legal persona, but all the same a person. It has an identity
separate from that of its members. It can own property independently
of, and separately from, its members. Thus, a company's assets are
not the members' assets.
These
cardinal principles seem ...
A
company is a person. It is a juristic person, or, in legal parlance,
a legal persona, but all the same a person. It has an identity
separate from that of its members. It can own property independently
of, and separately from, its members. Thus, a company's assets are
not the members' assets.
These
cardinal principles seem to have been purposefully ignored or
inadvertently overlooked in this matter. The result has been
prolonged litigation for over five (5) years.
The
facts were largely common cause.
The
plaintiff was a duly registered private company. At all relevant
times, prior to 16 June 2008, its major asset was an immovable
property situate Stand 12896 Salisbury Township, measuring 3,066
square metres, held under Deed of Transfer No.39/76
and otherwise known as 98 Churchill Avenue, Gunhill, Harare
(hereafter referred to as “the property”). Its principal officer,
in the sense of being the majority shareholder and director, was the
third defendant (hereafter referred to as “Sandra Muir”).
On
21 May 2008, this court, MTSHIYA J, granted a default judgment in
HC1393/08. This followed an application by the first and second
defendants herein who therein were the first and second applicants
respectively. Hereafter, I shall refer to the first and second
defendants as “Mr and Mrs Gurupira” or “the Gurupiras”. The
default judgment effectively directed the plaintiff herein, the first
respondent therein, to transfer the property to the Gurupiras. Sandra
Muir, the second respondent therein, was ordered to sign the
necessary papers within 10 days of the order failing which the
Sheriff, who is the fourth defendant herein, or the Deputy Sheriff,
who is the fifth defendant herein and was also the fifth respondent
therein, would sign the transfer papers in place of Sandra Muir. The
order by MTSHIYA J read as follows:
“IT
IS ORDERED THAT;
1.
The 1st
Respondent [the plaintiff herein] is hereby interdicted from
transferring the property known as No.98 Churchill Avenue, Harare,
also known as a certain piece of land situate in District of
Salisbury Township Lands measuring 3,066 square metres under Deed of
Transfer 39/76 to anyone except the 1st
and 2nd
Applicants.
2.
The property in paragraph 1 above be transferred to Asswell Africa
Gurupira and Jean Jane Gurupira and the 2nd
Respondent [Sandra Muir] is directed to sign all the necessary
documents to finalise the transfer within 10 days of the Order.
3.
Should the 2nd
Respondent fail or refuse to sign the necessary documents to effect
transfer the 4th
or 5th
Respondent [Sheriff and Deputy Sheriff respectively] are hereby
directed to sign all the necessary documents to effect the transfer
by the 3rd
Respondent [Registrar of Deeds] to 1st
and 2nd
Applicants.
4.
The 1st
and 2nd
Respondents shall bear all the costs of this application on
attorney-client scale jointly and severally one paying the other to
be absolved.”
The
order was granted in default of appearance by the plaintiff and
Sandra Muir.
Through
their erstwhile lawyers, Manase and Manase, the Gurupiras said they
had served their application in HC1393/08 in a letter-box at the
property.
Following
that default judgment, the property was transferred to the Gurupiras
on 16 June 2008 under Deed of Transfer No. 4778/2008. The then Deputy
Sheriff for Harare had signed the transfer papers. Manase and Manase
had been the conveyancers. After that, Manase and Manase had applied
for, and had obtained, ex parte, an order of eviction from the
Magistrate's Court.
Meanwhile,
the plaintiff had changed hands.
One
John Legget had become the majority shareholder. This had followed a
series of agreements with Sandra Muir. She, on her part, had by then
emigrated to Israel. One Diniwe Chinyani (“Diniwe”) had been
staying at the property. She had been Sandra Muir's employee of 10
years and more. With the change of ownership of the plaintiff,
Diniwe's continued stay on the property, as an employee of the
plaintiff, had been through an arrangement with John Legget. As the
Messenger of Court was executing the ex parte order of eviction from
the Magistrate's Court Diniwe Chinyani raised alarm. It did not
help. She and her family were evicted. After that, the Gurupiras took
occupation and moved in.
The
plaintiff, through John Legget, filed an urgent chamber application
for rescission of judgment. However, the matter was adjudged to be
not urgent. The plaintiff then filed an ordinary court application
for rescission of judgment. It also sought the reversal of the
transfer of the property from the Gurupiras back to the plaintiff.
Finally, it also sought the eviction of the Gurupiras. The
application was filed under the reference no HC4211/08. The
application was said to have been brought in terms of both Order 9
Rule 63 and Order 49 Rule 449.
The
Gurupiras, through Manase and Manase, opposed the application.
The
matter came before PATEL J…, The learned judge felt that there were
serious and irreconcilable disputes of facts. On 24 September 2009 he
referred the matter to trial. The application would stand as a
summons. The parties would file further pleadings in accordance with
the rules of court. That was done.
The
trial came before me on 10 February 2014....,.
The
plaintiff called seven (7) witnesses. The first was one Paradzayi
Matambanadzo, a technician from Net One Cellular, a cellular network
provider. His evidence was that without a special device, which Net
One Cellular did not have, it was not possible for it to decrypt a
short message service (sms) transmitted through its platform by one
user to the other. This evidence was led to deal with one of the
issues in the matter. That issue was whether or not Sandra Muir had
transmitted to the Gurupiras an sms advising them of the Zimbabwean
dollar balance due by them to her in respect of the sale of shares.
It was in issue whether the purchase price would be paid in
Zimbabwean dollars or in foreign currency. These transactions had
been entered into before the advent of the multi-currency system
adopted by this country in February 2009.
The
second witness called by the plaintiff was one Leonard Nhari, a
forensic scientist. One of the issues was whether or not Sandra Muir
had acknowledged receipt of certain payments made by the Gurupiras.
Mr Nhari's evidence was that after he had examined Sandra Muir's
purported signatures on the questioned documents it was his
conclusion that the signatures were not hers but forgeries or
imitations.
The
third witness called by the plaintiff was John Legget himself. His
evidence was that at the time the Gurupiras had taken transfer of the
property, through a court order that they had obtained in default, he
had already become the owner of the plaintiff through an initial
allotment of 98 of the un-issued shares and a subsequent buy out of
the remaining two (2) shares still held by Sandra Muir.
John
Legget said that neither he nor the plaintiff had been aware of the
court application by the Gurupiras. Until the time of eviction he had
never heard of the Gurupiras, let alone of their interest in the
property. If their application had been served through the letter box
at the property then Diniwe Chinyani ought to have seen it. She
stayed permanently on the property. She would bring him all mail that
concerned Sandra Muir or the plaintiff. John Legget questioned why
Manase and Manase had chosen to serve the court application meant for
the plaintiff and Sandra Muir through a letter box when they were, at
all relevant times, duly represented by legal practitioners, Thompson
Stevenson & Associates. At that time there was already litigation
pending between the Gurupiras and Sandra Muir under HC6660/07. That
was an application by the Gurupiras to compel Sandra Muir to furnish
them with her local Bank account details allegedly to enable them to
deposit the balance of the purchase price.
The
fourth witness called by the plaintiff was Thompson David Stevenson.
He had, at all relevant times, been Sandra Muir's attorney. No
application had been served on him. He found it strange that Manase
and Manase had not directed that the court application in HC4211/08
be served on him. He was at that time still seized of Sandra Muir's
mandate in HC6660/07 in which she was vigorously contesting the
Gurupiras' claims. Mr Stevenson also said that nobody had
approached him for the original title deed for the property. It was
strange that Manase and Manase had resorted to applying for a
replacement copy in order to register the transfer of the property to
the Gurupiras.
The
fifth witness called by the plaintiff was Washington Meda. His firm,
Admew Management Services, had provided secretarial services to the
plaintiff. It had, among other things, registered the transfer of
shares in favour of John Legget and had drawn up the share
certificates for him.
The
sixth witness for the plaintiff was Diniwe Chinyani. She explained
that she checked the mail box everyday. She had seen no application.
Although at the particular time the application is alleged to have
been served Sandra Muir was now in Mozambique on her way to Israel,
her home country, she would remit all her mail or that of the
plaintiff to John Legget.
The
seventh and last witness for the plaintiff was one Anthony Neil
Purkis (“Mr Purkis”). He was a chartered secretary in real
estate. His evidence was that it was him that had fixed the sale of
shares agreement between Sandra Muir and John Legget. Initially, a Mr
Stephen Lennox Attwell had offered to buy Sandra Muir's
shareholding in the plaintiff. The agreed price had been around
US$220,000. However, Mr Attwell had only paid a deposit of $30,000
and had defaulted afterwards. The sale had been cancelled. Mr Purkis
had subsequently closed another deal with John Legget. That agreement
had been consummated. Out of the proceeds from John Legget, $30,000
would be kept in trust for Mr Attwell. Mr Purkis said he had not
heard of the Gurupiras prior to the agreement with John Legget. It
was only much later that he had heard of them from Sandra Muir. He
had heard that other than a trifle US$17,000, the Gurupiras had
failed to pay the sum required on the plaintiff's shares.
For
the defence, only Mr Gurupira gave evidence.
Basically,
his evidence was that following an advert in one of the local
newspapers they had learnt that the property was on sale. The
property was owned by the plaintiff. They had been advised that in
order to get the property they had to buy Sandra Muir's shares in
the plaintiff. Although they were not really interested in the
plaintiff they had signed an agreement for the purchase of those
shares. This was the only way to get the property. The agreed
purchase price had been ZW$7 billion payable over 6 months in local
currency. They had fully paid the purchase price; partly in foreign
currency, partly in local currency, and partly in kind.
Towards
the end, when the balance owing was ZW$6 billion, Sandra Muir had
started to prevaricate and it was becoming difficult to remit
payments to her. In November 2008, which was the deadline for payment
in terms of the agreement, they had had to apply to court for an
order to compel her to disclose details of her local Bank account to
enable them to make the last payment. This had been the application
under HC6660/07. However, that application had not been proceed with.
Sandra Muir had agreed to accept cash. She had received and had
signed for it on 13 November 2008. The date on the acknowledgement of
receipt had incorrectly been entered as 14 November. He had altered
it in long hand to read 13 November.
Mr
Gurupira denied that they had breached the agreement of sale. He
confirmed that Manase and Manase had applied on their behalf to
compel the plaintiff and Sandra Muir to transfer the property to him
and Mrs Gurupira. The actual registration of transfer had been in
terms of the court order.
The
defence closed its case after the evidence of Mr Gurupira.
Having
heard all the evidence and having read the voluminous record I was
left in no doubt that Manase and Manase had snatched a judgment for
the Gurupiras who, through their new attorneys, Sawyer and Mkushi,
were improperly clinging onto it. The words of McNALLY JA in Zimbabwe
Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (the Zimbank
case) have kept playing in my mind. At p402E the learned judge of
appeal made the following terse remarks (KORSAH JA and MUCHECHETERE
JA agreeing):
“Here
there was a mistake. It was clearly a mistake. Zimbank had no
possible reason to allow the claim against it…, to go by default.
No-one, and in that term I include My Moyo of Chikumbirike and
Associates, who acted for Masendeke, could have reasonably have
thought otherwise.”...,.
In
this mater, to allow the default judgment to stand would make justice
turn on its head.
See
Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452
(S)…,.; and Pamire & Ors v Dumbutshena NO & Anor 2001 (1)
ZLR 123 (H)…,.
It was manifestly reprehensible for Manase and Manase to rush an ex
parte application for eviction through the Magistrate's Court. It
was clearly an abuse of the court process. The main matter was
playing out in the High Court. It is doubtful that the Magistrate's
Court had jurisdiction over such a matter. The High Court was avoided
deliberately because evidently no judge of this court would have
countenanced an application for such profound and life-changing
relief as eviction to be determined ex parte.
