BHUNU
J: The facts in this case are basically as outlined in my interim judgment of 8
April 2008. The facts are as follows:
The
first plaintiff, Mabonde Agricultural Enterprises (Pvt) Ltd is a dully
registered company in terms of the laws of this country. It is the owner of two
pieces of land known as Estantia Farm measuring 853, 7087 hectares and
Stoneygate Farm measuring 120010, 4599 hectares situate in the Chegutu area.
The
third Plaintiff is a director and major shareholder of the first plaintiff with
65% of the shares. The second plaintiff is also a shareholder and director
retaining 32% of the shares.
The
other shareholders are the estates of the late Roger Moyo, Mathew Moyo and
David Moyo comprising one percentage point each. The three deceased estates are
not part of these proceedings.
The
background to this case is that sometime in 1998 and on 25 August, the second
plaintiff Jacob Moyo left Zimbabwe
to settle in the United
Kingdom with his wife the third plaintiff.
Before departure he executed a general power of attorney in favour of his son
one Sibangilizwe Moyo, authorizing him to manage all his personal affairs and
estates here in Zimbabwe.
On
the strength of the general power of attorney and in the absence of his
parents, Sibangilizwe allegedly went on an extravagant spree prodigal son
style, disposing of his fathers assets and effects as well as the two farms
Estantia and Stoneygate which are at the heart of this trial He subdivided the
two farms and sold the subdivisions to the respective defendants cited in this
case.
It
is, however, common cause that the two farms did not and do not belong to his
principal but to the first plaintiff, Mabonde Agricultural Enterprises (Pvt)
Ltd a duly registered company. It is trite that the company is a separate legal
entity with a separate existence from the second plaintiff who granted him the
power of attorney. The cardinal point for determination is whether Sibangilizwe
abused the power of attorney and acted ultra
vires .the power of attorney In other words, the real issue at hand is
whether or not it was within Sibangilizwe's power to subdivide and sell the
subdivisions to the second to fourteenth defendants. Did he have the necessary
mandate to do what he did? If not, then it might mean that the sales may be
tainted with illegality.
The general
power of attorney reads in party:
“Know all men
whom it may concern:
That I JACOB
SIGODO MABONDE MOYO
Do hereby
nominate and appoint Sibangilizwe Moyo
To be my
General Attorney and Agent for managing and transacting all my affairs in
banking, Mabonde Agricultural Enterprise P/L, Moyo and partners, Muneyinazvo
General Dealer and any other business or undertaking whatsoever, including my
Goats, sheep, cattle, house and stands if any,
With power to
ask, demand, sue for recover all debts or sums of money…AND to buy and sell
immovable or mining property, and for that purpose to make the necessary declaration
as to the truth of the amount of purchase money and to receive, or to make and
give, as the case may be, the necessary acts and Deeds of transfer of such
landed or mining property in due and customary form according to the local laws
and usages, to locate, peg, register or abandon mining claims or locations, either
in my name, or in the name of any person whose rights I shall have acquired
…AND to transfer and accept transfer of shares, sock or debentures in any
syndicate, public company or corporation: AND if necessary for me and on my
behalf to commence, prosecute, or to defend, any action, suit or other
proceeding in or before any Court, or other body or person, and to suffer
judgment or decree to be given against me in any such proceedings…”
It
is clear that the power of attorney does not and did not extent to any other
property other than that of his principal Jacob Sigodo Mabonde Moyo.
The
evidence led at this trial establishes that apart from the second plaintiff no
other share holder in Mabonde Enterprises (Pvt) authorized or granted
Sibangilizwe a power of attorney to dispose of its two farms in question. It is
trite that Sibangilizwe being a mere agent of the second plaintiff had no power
to do what his principal could not do.
It is beyond question that the second
defendant had no power to dispose of the shares belonging to his three
brothers' deceased estates without authorization from their respective
executors or the Master of the High Court according to law. It therefore
appears to me that the general power of attorney granted by the second
plaintiff Sibangilizwe for the administration of his personal affairs and
estates could not and did not extend to the three deceased brothers' estates.
In the absence of express authorization it will be tantamount to dispossessing
the dead who can no longer speak for themselves.
The
same can be said of the third plaintiff's shares. We can not assume that she authorized
Sibangilizwe to deal in her shares when she gave him no power of attorney and
is suing for the recovery of her shares albeit that she is now in default of
appearance.
Evidence
was also led tending to establish that Sibangilizwe did not follow the correct
procedure before selling the subdivisions to the defendants in that he did not
obtain the necessary company resolutions before selling the subdivisions on the
two farms. What this means is that he sold the subdivisions without
authorization from the owner Mabonde Agricultural Enterprises (Pvt Ltd.
While
the rule in Royal Bank v Turquand 119 ER
886 and adopted in Walenn Holdings
(Pvt) Ltd v Integrated Contracting
Engineers (Pvt) Ltd & Another 1998 (1) ZLR 333 (H) to the effect that strangers dealing with a company are entitled
to assume that the necessary internal company procedures have been complied
with is correct, such assumption is no answer to the plaintiffs' claim that
Sibangilizwe sold their respective shares without their consent.
It
is equally no answer to the plaintiffs' complaint that the subsequent transfers
of the purchased properties were irregular and tainted with illegality.
Although
the second to fourteenth defendants may have already taken title, I am
satisfied that they took defective tittles. It must be borne in mind that the
effect of Sibangilizwe's conduct had the undesirable if not illegal effect of
dispossessing innocent third parties particularly the three deceased estates
and beneficiaries without the involvement of the Master of the High Court or
their respective executors. Indeed evidence was led from responsible government
officials suggesting that the transfers were tainted with irregularity and
illegality.
It
is true as pointed out by Mr. Morris
that the three estates have not been cited nor have they complained. The
deceased could obviously not complain. Their estates have not been cited. As a
result we do not know whether any executors have been appointed. For that
reason it is necessary to call for the Master's report in terms of the rules of
Court to enable the Court to determine the rights of the three deceased estates
in this matter.
Mapombere, Musakana & Ruzengwe, plaintiff's legal practitioners
Sawyer & Mkushi, defendants' legal practitioners
