NDOU
J: After hearing submissions by both counsel I ordered that the
provisional order granted by this court on 29 June 2011 be discharged with
costs on the ordinary scale. I indicated that reasons for doing so will
follow in due course. These are they.
The applicant, is an association of
residents at Westgate Security Complex (“the camp”) a residential facility
owned by the 1st respondent to provide accommodation to its
employees. This facility appears to have been extended to other tenants
who are not employees of the 1st respondent. The electricity
and water bills at camp are in the name of the 1st respondent and
the latter pays for the bills. The 1st respondent thereafter
recoups the same from the residents. The 1st respondent disconnected
electricity in the camp to houses occupied by members of the applicant.
Members of the applicant consequently instituted an urgent chamber application
seeking urgent relief in the form of an order restoring the status quo ante.
A provisional order was granted. The respondents filed opposing
papers. The respondents have raised a preliminary point on the legal
standing of the applicant. It raised an issue that the applicant is not a
body capable of suing and being sued. The applicant purported to correct
this defect by belatedly filing what it terms a constitution in its answering
affidavit. The said constitution is skimpy and does not meet the
requirements of a constitution of a universitas – Dadoo Ltd v
Krugersdorp Municipal Council 1920 AD 530 at 550 – 6. It is
trite law that a universitas is an entity distinct from the
individuals who compose it, and it has perpetual succession. The
constitution of the applicant simply reflects an association of people who have
a common interest, and is allegedly an offshoot of another organization.
The averments in the answering affidavit constitute a belated and inadequate
attempt to rectify a fatal error. It is trite that an application stands
or fails on its founding affidavit – Mobil Oil Zimbabwe (Pvt) Ltd vs Travel
Forum (Pvt) Ltd 1990 (1) ZLR 67 (H) at 70C. On this point alone the
provisional order should be discharged.
In the event that I made a mistake in this finding, still the provisional order
should be discharged on the second point raised. There is no written
authority from the persons Mr E. Ngwenya (who disposed to the founding
affidavit) purports to represent. Guta Ra Mwari v Tayali
& Ors HB-132-04 and Mashavave v Zimbabwe United Passenger
Company Ltd & Anor 1998 (1) ZLR 567 (H) at 570B – 571B. The
purported resolution dated 24 August 2009, i.e. some twenty-three months before
the urgent chamber application was filed, granting three people a vague mandate
to sign court documents on behalf of the alleged association, is inconsistent,
contradictory and illogical. It has apparently eleven different
signatures, then an annexure with fifty-two names, where it is somehow expected
that the fifty-two names have authorized the two persons to represent
them. This is patently not so.
It is for the above reasons that the provisional order was discharged.
Cheda & Partners, applicant's legal practitioners
James,
Moyo-Majwabu & Nyoni, respondents' legal
practitioners
