MTSHIYA J: This is an application for summary judgment.
On
18 August 2010 the applicants issued summons against the respondents seeking
the following relief:-
“(a) Delivery of 70 5000 litres of diesel
(b) Payment
of the replacement value of 70 5000 litres of diesel at the market rate
prevalent
on the date of judgment;
(c)
Costs of suit on the legal
practitioners and client scale”
On
30 August 2010 the respondents filed an appearance to defend and served same on
the applicants' legal practitioners on 7 September 2010.
On
14 September 2010 the applicants filed this application and in the founding
affidavit deposed to by Pedzisai Miriam Lilliethy Garwe, (Garwe) the basis of
this application is that:
“13. The service of the Appearance to Defend, at
least seven days after the date of entry of the Appearance, renders that Notice
of Appearance to Defend, defective and therefore a legal nullity by reason of
the non compliance with r 49 of the High Court Rules 1971, as amended.
14. The entering of the Notice of Appearance
to Defend was mala fide and made only to delay the finalisation of this matter.
15. In my belief, the respondents do not have
a defence to the claim made by the applicants.
16. It would be a waste of the Court's time
and valuable resources if this matter were to be defended up to trial
stage.
17. Consequently, I pray for an order for
summary judgment in terms of the draft order annexed hereto”.
In
the same founding affidavit Garwe states as follows:-
“I
am authorised to depose to this affidavit by virtue of my aforementioned office
and
by
virtue of Resolutions of the Board of Directors of the applicant companies
attached
hereto
as Annexures “LG1”, “LG2” and “LG3”.
Garwe
goes further to describe the applicants as follows:-
“2. The first applicant is MYSTICAL TRADING (PRIVATE) LIMITED, a
company incorporated in terms of
the laws of Zimbabwe, and thus an incola
applicant
of this honourable Court. The
applicant is a trader in, and conveyor of, petroleum
based fuels. Its address for
service is care of its legal practitioners of record Messrs
Mutamangira & Associates
Legal Practitioners of Second Floor Travel Plaza, 29
Mazowe Street, Harare.
3. The second applicant is MARCOL TRADING (PTY) LIMITED a company
incorporated in Mauritius which either a subsidiary or sister to the first
applicant. Its address for service is care of Messrs Mutamangira &
Associates Legal Practitioners of 2nd Floor, Travel Plaza, 29 Mazowe
Street.
4. The third applicant is BROAD FUELS CC a company incorporated
in terms of the laws of the Republic of South Africa which is either subsidiary
or sister to the first applicant. Its address for service is care of Messrs
Mutamangira & Associates Legal Practitioners of 2nd Floor,
Travel Plaza, 29 Mazowe Street”.
The above shows
that the third and fourth respondents are companies registered outside
Zimbabwe.
At the commencement of the proceedings I
indicated to the parties that Annexures LG1, LG2 and LG3 (i.e. the resolutions
authorising Garwe to depose to the founding affidavit) in the court file were
not signed. Both parties advised and showed me that the resolutions in their
files were indeed signed. Mr Chinyama,
for the respondents, then requested that for the sake of progress the hearing
should proceed. I then heard arguments from both parties which arguments were
in line with heads of arguments already filed.
I must point out that, notwithstanding his
earlier stance of urging the court to proceed despite the fact that the
resolutions in the court file were not signed, Mr Chinyama, in his submissions re-introduced the issue. He submitted
that Garwe had no proper authority to depose to the founding affidavit. Indeed
if that submission is correct, then there is no application before the court.
The
signed resolutions were submitted by the applicant's legal practitioners to me
for the court file. The signed resolutions are on the letter heads of the
applicants described in paras 2, 3 and 4 of the founding affidavit.
Rules
3 of the High Court (Authentication of Documents) Rules 1971 provides as
follows:
“Any
document executed outside Zimbabwe shall be deemed to be sufficiently
authenticated for the purpose of
production or use in any court or tribunal in Zimbabwe or for the
purpose of production or lodging in any public office in Zimbabwe if it is
authenticated –
(a) By a
notary public, mayor or person holding judicial office; or
(b) In
the case of the countries or territories in which Zimbabwe has its own
diplomatic or consular representative, by the head of a Zimbabwean diplomatic
mission, the deputy or acting head of such mission, a counsellor, first, second
or third secretary, a consul-general, consul or vice-consul”.
An
examination of the resolutions clearly shows that there is no compliance with
the
above rule with respect to the
resolutions purported to be emanating from the second and third applicants. The
second applicant is based in Mauritius and the third applicant is based in
South Africa. In terms of the above rule, the resolutions were clearly not
properly authenticated for use in this court. The resolutions are therefore not
acceptable. To the extent that the interests of the first applicant cannot be
delinked from the other two applicants, it follows that this fatal procedural
irregularity impinges on the first applicant's position before the court. This
finding means that there is no founding affidavit to this application. I
believe this is a matter of law which the court can also raise mero motu.
It
is also interesting to note that the applicants are fully aware of the
provisions of the above rule. This comes out clearly in Mr Moyo's submissions
on their behalf.
In
opposing the execution of the third respondent's affidavit, which affidavit is
the anchor to the opposition to this application, the applicants, in their
heads of argument, state as follows, (I quote at length):
“13 The third respondent, in para 3 of his
affidavit claims to be 'currently resident in South Africa … and all (his)
business transactions are carried out from South Africa'.
14. The signature on his affidavit is
authenticated by one Oswell Chinganga, a legal practitioner of this honourable
Court, who claims that the affidavit was executed before him at Harare on 5
October 2010. It is denied that on that date the third respondent was in
Harare.
15. The third respondent executed his
affidavit in South Africa and not Harare as is represented on oath in his
Opposing Affidavit.
16. His affidavit is therefore improperly
executed in that it was never executed before the person who authenticated it.
18. The affidavit would have been properly
authenticated had it been authenticated by persons holding the offices listed
in the aforementioned Rule. That the third respondent did not do so means that
what is before this Court is a nullity. Consequently, The famous statement,
coined in memorable prose by Lord Denning, the eminent Master of the Rolls in Macfoy v United Africa Company Limited
(1961) 5 All ER 1169 (PC) at 1172, clearly sums up the status of the third
respondent's affidavit.
'If an act is void, then it is a
nullity. It is not only bad, but incurably bad. There is no need for an order
of the Court to set it aside. It is automatically null and void without more ado,
although it is sometimes convenient to have the court declare it to be so. And
every proceeding which is founded on it is also bad and incurably bad. You
cannot put something on nothing and expect it to stay there. It will collapse”.
I
fully agree with the applicants' understanding regarding the authentication of
documents such as are meant for use in this application. The applicant's
interpretation of r 3 of the High Court (Authentication of Documents) Rules
1971 is correct. Accordingly the absence of proper authentication, of the
resolutions from second and third applicants, in my view, renders the present
application a nullity. That being the case I cannot therefore proceed to
consider other matters which are said to arise out of the purported application.
Given the above, I believe the proper course
to take is to dismiss this application with costs.
The
application is dismissed with costs.
Mutamangira
& Associates, applicants' legal practitioners
Chinyama & Partners, respondents' legal practitioners
