The applicants are foreign legal entities. The first is a German company. It is owned by a Bulgarian Corporation. The second is a Bulgarian entity. It is a subsidiary of the first.
Until 22 November 2017 the first applicant was the owner of a certain piece of land which is situated in the district of Salisbury. The piece of land is called Stand Number 295, Northwood Township 2 of Sumbeni. It was held under Deed of Transfer number 5022/2008. It is commonly known as Number 116 Twickenham Road, Mount Pleasant, Harare [“the Mount Pleasant property”].
On 9 December 2013 one Rajendrakumah Jogi [Jogi] purchased the property. He took title in the property on 22 November 2017 following its sale to him. It is now registered under Deed of Transfer number 4766/17 which Deed records the name of the purchaser as the new owner of the same.
The second applicant was, and still is, the owner of a certain piece of land which is situated in the district of Salisbury. It is called Lot 12 of Lot 15 Block C of Avondale. It is held under Deed of Transfer number 1657/89. It is commonly known as Bath Mansions Flats. It is at Number 32, Bath Road, Avondale, Harare [“The Avondale property”].
The abovementioned two properties lie at the centre of the main application, HC12074/16 and the urgent chamber application, HC2012/18.
The applicants filed the main application on 28 November 2016. They successfully moved the court to interdict the first and second respondents from dealing in any way with the two properties and/or from coming within 100 metres of the same. The interim order which the applicants obtained in the mentioned regard is dated 2 December 2016.
On 22 February 2018 l heard the matter which related to the confirmation or discharge of the provisional order of 2 December 2016. Having heard submissions from both parties, I reserved judgment.
Before the ink which related to my hearing of the main application had dried up, the applicants filed the urgent chamber application, HC2012/18. They did so on 5 March 2018. They moved the court to restore to them possession of the Mount Pleasant property and to interdict:
(a) The first (Bulchimex GMBH Import Export Chemikalien und Produkte (Pvt) Ltd), second (Sarah Hwingwiri) and third (Rajendrakumar Jogi) respondents from selling, or, in any way, alienating or encumbering the Mount Pleasant property.
(b) The fourth respondent (Registrar of Deeds) from facilitating or making further transfer of the Mount Pleasant property which is held under Deed of Transfer number 4766/17 in favour of Rajendrakumah Jogi to anyone.
(c) All the respondents from facilitating or transferring title in the Avondale property which is registered under Deed of Transfer number 1637/89 to anyone.
(d) The fifth respondent (the Sheriff of Zimbabwe) from evicting occupants of the Avondale property.
Because title in the Mount Pleasant property had already changed hands from the first applicant to Mr Jogi when the application was filed, I disallowed paragraphs 1, 2 and 3 of the applicants draft order.
I allowed paragraphs 6 and 9 of the draft order with some amendments. I directed that the word Lease which appeared in paragraph 6 should be deleted. I further directed that the phrase or 116 Twickenham Drive, Mount Pleasant, Harare which appeared in paragraph 9 should also be deleted.
I, accordingly, allowed paragraphs 4, 5 and 6 as amended, 7, 8, 9 as amended and paragraph 11 to remain as the interim relief for the applicants.
The interim order was issued with the consent of all the parties.
My reading of the record satisfied me that HC2012/18 was urgent.
The applicants stated that they were not aware that their Mount Pleasant property had been sold and transferred to someone. They said they became aware of that fact on 1 March 2018 when the deponent to their founding affidavit received a call from one Kudzai Kupambana, the caretaker of the property. He submitted that Mr Kupambana informed him that the Messenger of Court was carrying out eviction at the premises. He said he immediately notified the applicants' legal practitioners of the development. These and him, he said, visited the Mount Pleasant property. He averred that the legal practitioners and him later established that it was not the Messenger of Court but the Deputy Sheriff who had carried out the eviction.
The supporting affidavit of Mr Kubambana was on all fours with that of the deponent of the founding affidavit especially on the portion which related to the latter's eviction.
The applicants filed the urgent chamber application a day after their discovery of what had occurred. They most certainly treated the matter with the urgency which it deserved.
The first, second and third respondents opposed the urgent chamber application. They, however, and to their credit, consented to the interim relief which I granted to the applicants in its amended form. They did so in the interests of progress. They agreed with me that the situation had to be arrested. All the parties shared the view which the court had. The view was that the situation of the parties' case did not have to get out of hand whilst judgment in the main application, HC12074/16, was being awaited.
Two characters stand out clearly in both applications. These are;
(1) One Borislav Boynov (“Borislav”); and
(2) One Sarah Hwingwiri (“Sarah”).
Borislav Boynov is the deponent to the founding and the answering affidavits of the applicants. He is so for the main application as well as the urgent chamber application.
Sarah Hwingwiri is the second respondent in both applications. She is the deponent to the affidavits of the first and the second respondents in both applications.
Sarah Hwingwiri and one Ivan Pantchev (“Ivan”), a Bulgarian who is domiciled in Bulgaria, registered the first respondent in terms of the laws of Zimbabwe. They are both its Directors.
Borislav Boynov's averments, in the main application, were that the applicants own the Mount Pleasant and the Avondale properties. He said they also used to own a certain piece of land which is situated in the district of Salisbury called Lot 9 of Lot 9 of Glen Lorne measuring 4,047 square metres [“the Glen Lorne property”]. This, he alleged, was sold by Sarah Hwingwiri and Ivan Pantchev for $150,000 and transferred into the name of the purchaser.
The sale, he stated, was with the authority of the applicants.
He submitted that Sarah Hwingwiri and Ivan Pantchev did not transmit the proceeds of the sale to the applicants. He successfully moved the court to grant to the applicants the provisional order which prohibited the first and the second respondents from dealing, in any way, with the remaining two properties as well as from coming within 100 metres of the same. He, in the final order, prayed that:
(i) The first applicant be declared the owner of the Mount Pleasant property;
(ii) The second applicant be declared the owner of the Avondale property; and
(iii) The first and second respondents be declared to have no ownership rights or interests in either property....,.
They submitted that the first applicant and the first respondent were two separate legal entities.
They stated that the annexures which the respondents used to support their case were forged documents. They insisted that the annexures which were purportedly deposed to outside Zimbabwe violated section 3 of the High Court [Authentication of Documents] Rules, 1971. They contended that the documents/annexures were not notarised.
They moved the court not to allow the respondents to use them as evidence which supports the latter's case....,.
My first observation relates to the resolution which the respondents passed.
The resolution confers authority on Sarah Hwingwiri to depose to their opposing affidavits. It raises more questions than it provides answers to them. It appears at page 114 of the record. The respondents called it Annexure A.
A reading of the annexure with what Sarah Hwingwiri stated in the first paragraph of the opposing affidavit shows the effort and the extent to which the respondents went to mislead the court. She stated:
“I, the undersigned, SARAH HWINGWIRI, do hereby make oath and state as follows:
1. I am the second Respondent in this matter and I have been authorised to depose to this affidavit on behalf of the 1st Respondent by virtue of a company resolution attached hereto as Annexure A….,.”…,.
The annexure, it is evident, is not that of the first respondent who allegedly authorised Sarah Hwingwiri to depose to the opposing affidavit. It is that of the first applicant.
The question which arises is; who, between the first applicant and the first respondent, authorised Sarah Hwingwiri to depose to the opposing affidavit?
The respondents left that critical issue not only unanswered but also unresolved.
I mention, in passing, that the first applicant could not have authorised Sarah Hwingwiri to depose to the opposing affidavit. It could not do so when it sued the first respondent and her. It could not, in other words, approbate and reprobate, and, at the same time, remain relevant to this application.
The first applicant and the first respondent have similar names. There is, however, a marked difference between the two legal entities. The difference lies in that the first respondent's name ends with the phrase (Private) Limited.
The second question which arises is whether it was by design or by accident for the respondents to have cited the name of the first applicant in their resolution.
The probabilities are that it was more by design than it was by accident. The citation was deliberate. It aimed at confusing issues especially in the mind of unsuspecting readers of the resolution.
It is my considered view that Sarah Hwingwiri must have realised the folly of the resolution of 29 November 2016 (i.e. Annexure A). It was for the mentioned reason, if for no other, that she refrained from repeating the same in all subsequent affidavits which she filed in opposition to any application which related to the two properties.
She, for instance, stated, in the opposing affidavit which she filed on 3 January 2017, as follows:
“I, SARAH HWINGWIRI, duly sworn do hereby take oath and state as follows:
1. I am the second respondent and a director of the first respondent. I am therefore authorised to depose to this affidavit on my behalf and on behalf of the 1st Respondent.”
She stated, in her opposing affidavit to the urgent chamber application, as follows:
“I, the undersigned, SARAH HWINGWIRI, duly sworn do hereby take oath and state as follows:
1. I am the second respondent in this matter. I also have authority to depose this affidavit on behalf of the 1st Respondent by virtue of being its director.”…,.
Sarah Hwingwiri did not mention the person who authorized her to depose to the first of the above mentioned two affidavits. She produced no resolution which conferred authority upon her to act for the first respondent. All she said was that she was authorised to depose to the affidavit on behalf of the first respondent.
Sarah Hwingwiri stated, in so far as HC2012/18 was concerned, that she had the authority to depose to the affidavit on behalf of the first respondent by virtue of being its Director.
The correct position of the matter is that she could not confer any authority upon herself. She could not even do so in her capacity of Director of the first respondent.
It is a trite position of Company Law that a Director cannot confer authority upon himself or herself to act for, and on behalf of, the company on the basis that he/she is a Director of the same. If that was the case, then each Director would, at his/her whim, drag his/her company to court as he/she pleases. Such an undesirable development would run against the concept of good corporate governance which lies at the centre of any business enterprise as well as Company Law.
The respondents did not mince their words in their criticism of the applicants' case.
They indicated that the application was fatally defective for want of a resolution which authorised Borislav Boynov to depose to the founding affidavit. They drew the court's attention to the importance of the resolution which they said was/is a sine qua non aspect of motion proceedings.
They spoke eloquently on the matter. They referred me to a number of case authorities which stressed the importance of the resolution in an application.
Among the cases which they cited in their heads, and in support of the necessity for a resolution, was that of Madzivire & Ors v Zvaridza & Ors 2005 (2) 514 (S)…, which stated as follows:
“…,. A company, being a separate legal persona from its Directors cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle which the courts cannot ignore….,.
The fact that the first appellant is the Managing Director of the fourth appellant does not clothe him with the authority to sue on behalf of the company in the absence of any resolution authorising him to do so.
In Burstein v Yale 1958 (1) SA 768, it was held that the general rule is that Directors of a company can only act validly when assembled at a Board meeting.”…,.
The respondents also referred me to the case of Dendeuka v Paper Place (Pvt) Ltd HH195-11 in which BHUNU J …, made some incisive remarks on the need for a company resolution. The learned judge said:
“The position in our law is…, that a company, being a fictitious legal persona, cannot act on its own. There is therefore need for a company resolution to legalize and validate any company acts…,.”
The last case which the respondents were pleased to draw my attention to on the matter was that of Tapson Madzivire and 3 Ors v Misheck Brian Zvarivadza and 2 Ors HH 2005 wherein MAKARAU J…., stated:
“The fictional legal persona (i.e. a company) still enjoys full recognition by the courts. Thus, for any acts done in the name of a company, a resolution duly passed by the Board of Directors of a company has to be produced to show that the fictional persona has authorised the act.”…,.
The applicants complied with the principles which were enunciated in each of the above cited three cases. They produced two resolutions which conferred authority on Borislav Boynov to depose to their affidavits.
The respondents, on the other hand, produced no resolution.
They, for a start, produced what purported to be the first respondent's resolution. This was, however, not such. They produced no resolution at all for the subsequent affidavits which they filed in opposition to the main and the urgent chamber applications.
It is accepted that Sarah Hwingwiri is a Director of the first respondent. She could not, however, confer authority upon herself to speak for, and on behalf of, the first respondent. She required a resolution for the purpose. She required the input of Ivan Pantchev for any resolution which she would have produced to remain valid. Ivan Pantchev's views were left out of the equation on the issue of the respondents' resolution.
The third question which arises from the above analysed matter is whether or not the respondents are properly before the court.
They passed no resolution authorizing Sarah Hwingwiri to speak for them. The first respondent is, by virtue of the stated fact, out of court.
I am pleased to refer the respondents to Macfoy v United Africa Co Ltd (1961) 5 ALL ER 1169 (PC) 1172 in the mentioned regard. The remarks of LORD DENNING, which he made in the case, are relevant to their situation. The learned LORD JUSTICE said:
“If an act is void, then it is a nullity. It is not only bad but incurably bad….,. It is automatically null and void without more ado….,. You cannot put something on nothing and expect it to stay there. It will collapse.”
Apart from the invalidity of the respondents' resolution, no evidence was produced to show that the first respondent's two Directors – Ivan Pantchev and Sarah Hwingwiri – sat down in some room to pass any resolution. Ivan Pantchev is a Bulgarian who is domiciled in Bulgaria. Sarah Hwingwiri, as a Zimbabwean, stays in this country.
The applicants' unchallenged statement was that Ivan Pantchev came to Zimbabwe at their instance. They said he left for Bulgaria and returned to Zimbabwe at the end of November 2013 to sell the Glen Lorne property. He, according to them, returned to Bulgaria after the sale. They submitted that he has not returned to Zimbabwe again.
The respondents did not challenge the above-mentioned averments of the applicants. They remained mute on the same.
By not challenging the applicants' assertions, the respondents admitted that Ivan Pantchev did not come to Zimbabwe. He, in other words, did not return to Zimbabwe after he had sold the Glen Lorne property. He, in short, did not sit down with Sarah Hwingwiri to pass a resolution authorising her to depose to the opposing affidavits.
The long and short of the above described matters is that the first respondent is not before the court. It is out of court. The opposing papers are, therefore, those of Sarah Hwingwiri alone.
The matter remains between the applicants and Sarah Hwingwiri. It excludes the first respondent in toto.
Annexure C, which the applicants attached to the application, shows that the first applicant was, until 22 November 2017, the owner of the Mount Pleasant property. It purchased it in 2008. It had it registered in its name.
Annexure D shows that the second applicant was, and still is, the owner of the Avondale property. It purchased it in 1989. It retained title in the same from the mentioned period of time to date.
Annexure E shows that the first applicant was the owner of the Glen Lorne property. It purchased it in 2008. Sarah Hwingwiri and Ivan Pantchev sold it to someone at the instance of the applicants. They sold it for $150,000.
Sarah Hwingwiri's averments were that the first respondent was the owner of the Mount Pleasant property. She attached Annexure A to her opposing papers. The annexure, she said, constitutes proof of the fact that the applicants conferred upon her the authority to run the affairs of the two properties on their behalf.
The applicants denied having ever conferred any authority on Sarah Hwingwiri to manage their two properties. They submitted that Borislav Boynov was, and remained, their point-man in Zimbabwe. They said he had their authority to look after their two properties.
Sarah Hwingwiri's statement, which was to the effect that the first respondent owned the Mount Pleasant property, is devoid of merit.
The first respondent did not ever own the Mount Pleasant property. That property's title was always with the first applicant. It was never with the first respondent as was alleged. It was transferred from the first applicant to Mr Jogi when the latter allegedly purchased the same.
The memorandum of agreement of sale, which appears at p156 of the urgent chamber application, bears testimony to the above stated set of circumstances. It describes the first applicant, and not the first respondent, as the seller of the property. It describes Mr Jogi as the purchaser. The two are the parties to the alleged agreement of sale.
The first applicant could not have sold the Mount Pleasant property if it did not belong to it. It could not have sold it if it belonged to the first respondent as Sarah Hwingwiri alleged. It could not have transferred title in the property to Mr Jogi if it did not have title in the same. It could not, in short, give what it did not have.
The first respondent, it is observed, did not ever own or possess the Mount Pleasant property. It did not ever have title in the Avondale property. Title in the same has always remained with the second applicant. The first respondent did not produce any evidence which supported the allegation that it was, or is, the owner of either of the two properties.
Sarah Hwingwiri's claims were that the applicants authorized her to manage the affairs of their two properties which are in Zimbabwe. She produced four documents which she said conferred the requisite authority upon her. The documents comprise:
(a) Annexure A which is a letter which Ivan Pantchev and one Ivo Kamenov Georgiev signed. The capacity in which they signed it was not stated. It is dated 6 September 2016. Its heading reads:
RE: CONFIRMATION AS MANAGER OF THE BULCHIMEX GMBH IMPORT CHAMUKALIEN UND PRODUKTE'S PROPERTIES IN ZIMBABWE…,.
(b) Annexure A1 is a resolution of three legal entities.
These are the first applicant, the first respondent, and the second applicant. It is dated 12 December 2016. It was passed by Ivo Kamenov Georgiev and Ivan Kostadinov Pantchev. Its paragraph 3 stated that the first applicant and the first respondent were one and the same entity. It authorised Sarah Hwingwiri to give effect to any of the companies' resolutions pertaining to the properties as the only Director representing the interests of the organisation in Zimbabwe.
(c) Annexure A2 is a resolution which Ivan Pantchev signed. It is dated 12 December 2016. It was passed by the first applicant and the first respondent. It authorised Sarah Hwingwiri to “represent the company in the court cases including hiring legal practitioners in cases pertaining to the company's properties in Zimbabwe.”
(d) Annexure A3 is an affidavit which Ivo Kamenov Georgiev deposed to on 12 December 2016. He did so as Director of the first applicant. He confirmed Sarah Hwingwiri as their “lawful representative including management of all our properties in Zimbabwe.”
The applicants dis-associated themselves from the above-mentioned four annexures. They said the annexures were a result of Sarah Hwingwiri's resourcefulness. They described them as a fraud and a forgery by her. They submitted that she crafted them with a view to stealing from them their properties through the first respondent in which she is a Director.
The applicants' Annexure M3 is a declaration by one Maria Ilieva Vladimirova who said she was the first applicant's manager and legal representative.
She stated that she was appointed to her position on 28 August 2015. She averred that she had exercised her full rights to represent the first applicant before any third parties, to manage its day-to-day business affairs and to supervise its documentation as well as documentation and record keeping. She stated, in an emphatic manner, that the first applicant's Board of Directors had not adopted any resolution and had not taken any action for incorporation and registration of any daughter company into the first applicant or related parties to it in Zimbabwe. She denied that the first applicant gave any power of attorney or any letter of authorization to Sarah Hwingwiri or to Ivan Pantchev. She stated that the first respondent had no relationship at all with the first applicant. The first respondent, she said, was not even a subsidiary of the first applicant.
She denied that the first applicant ever gave any authority to Ivan Pantchev or Sarah Hwingwiri to manage or sell any of its two properties.
Annexure O, which the applicants attached to the application, is a declaration by one Ivo Kamenov Georgiev. He said he was, until 27 August 2015, manager and legal representative of the first applicant. He stated that he was in that position from 2006 – 27 August 2015. He declared that Sarah Hwingwiri's Annexures A, A1, A2 and A3 were untrue and un-authentic. He said the signature which appeared as his in any of the annexures was not his own. He said:
“1.1 I am referred to as the authoriser who has allegedly confirmed the powers of Sarah Hwingwiri as a manager of the company's property in Zimbabwe. As indicated therein, the letter was produced on 6 September 2016. It is inconsistent with the fact (obviously due to the ignorance and a lack of information of its author) that on 28 August 2015 I was released as a manager and a legal representative of the company…,.
1.2 The second document is a translation of minutes (a Board resolution) into English language dated 12 December 2016 bearing the letterhead of Timeset Ltd a Bulgarian translation agency, which purportedly made that translation into English language.
The original minutes, subject to the translation, again, is missing and not appended thereto…,.
Furthermore, a joint meeting of three legal entities of different nationalities resolving together on matters concerning their private business affairs and properties, in one and the same document, is an absolute distortion of their actual corporate rules as well as legally unacceptable from the stand point of the corporate laws governing the Germany company said above, the Bulgarian Company, Technoimpex JSC (wrongly stated to be incorporated in Germany, and a Zimbabwean Company Bulchimex GMBH Import-Export Chemikalien and Produkte (Pvt) Ltd.
It is important to be noted that the name of the said Zimbabwean company closely resembles the name of the German Company, but, as a matter in fact, it has nothing to do with the German Company (as well as the Bulgarian Company) it has no place in such a joint meeting with them because it is neither a subsidiary of nor a related party to the German Company (or the Bulgarian Company Technoimpex).
It is also important to be mentioned that in this translation of the minutes I am referred to as a Director of the said three companies, but, in fact, I have never been a Director/Manager of the Bulgarian and the Zimbabwean companies. Ivan Kostadinov Pantchev has never been a Director /Manager of the German company. In addition, as indicated therein, the minutes were produced on 12 December 2016. It is inconsistent with the fact that on 28 August 2015, I was released as a manager and a legal representative of the company…,.
In conclusion, the document is false.”…,.
Mr Georgiev discounted annexures A2 and A3 which Sarah Hwingwiri purported to rely upon with clear and uncontroverted evidence.
The applicants' Annexure S was a declaration by one Dimitar Ivannov Tourlakov. He is the owner, manager, and legal representative of TIMSET Ltd.
He denied having ever received, let alone translated, Sarah Hwingwiri's annexures from any language into the English language. He said the four annexures did not exist in his company's records. He stated that he did not sign or issue those. His conclusion was that the four annexures were untrue and unauthentic. He pointed out seven inconsistencies which he said they contained.
I cited in extensor the declaration of Ivo Kamenov Georgiev. I did so as he was alleged to have authorised Sarah Hwingwiri to handle the affairs of the applicants' two properties. He and Ivan Pantchev had their names repeatedly mentioned in the annexures.
His conclusion, with which the court agrees, was that the annexures upon which Sarah Hwingwiri relied were not authentic at all.
Sarah Hwingwiri did not challenge, or even comment upon the declarations of Maria Ilieva Vladimirova, Ivo Kamenov Georgiev and/or Dimitar Ivannov Tourlakov.
The declarations contained information which seriously damaged her case. They called for a response which Sarah Hwingwiri did not ever make.
The law is very clear on such a matter as has been stated in the foregoing paragraph. It states, as trite, that what has not been denied in affidavits is taken as having been admitted. See Fawcett Security Operations v Director of Customs & Excise 1993 (2) ZLR 121 (SC); DD Transport v Abbot 1988 (2) ZLR 92; Remo Investment Brokers (Pvt) Ltd v Securities Commission of Zimbabwe SC85-14.
Mr Georgiev stated that he was no longer working for the applicants when the annexures of Sarah Hwingwiri came into existence. He denied that he authored Annexures A, A1 and/or A3. He stated, and I agree, that the annexures were a forgery. He could not have produced any of the annexures when he had ceased to work for the applicants.
That the annexures were a forgery is evident from their contents.
Annexure 1, for instance, does not mention the name of the place where it was passed - if it was. It does not mention the names of the Directors who attended the meeting on behalf of the first applicant, the first respondent and/or the second applicant.
A meeting of such serious magnitude, with such far reaching consequences, requires real, as opposed to fictitious, evidence that it was held and that the participants took a clear and unequivocal decision to merge the first applicant with the first respondent. It could not be plucked from thin air as Sarah Hwingwiri would have the court believe.
Sarah Hwingwiri did not explain the position of Mr Georgiev in the alleged meeting where the resolution was purportedly passed. He was not a Director of the first or the second applicant. He was a manager and legal representative of one of the applicants. He had ceased to be such when the resolution was allegedly passed. How he was able to communicate to her the contents of the resolution, in December 2016, when he had vacated his office on 27 August 2015, stretches the mind of anyone - that of the court included.
Sarah Hwingwiri stated, in her opposing papers, that she was in constant communication with Ivan Pantchev. She said she communicates with him through emails. She did not explain why she did not call upon him to substantiate the contents of her Annexure 2.
Sarah Hwingwiri's Annexure 2 describes Ivan Pantchev as a Director of the first applicant. It reads, in part, as follows:
“Today, 12 December 2016, the undersigned, Ivan Kostadinov Pantchev…, in his capacity as Director of BULCHIMEX GMBH IMPORT CHEMIKALIEN UND PRODUKTE, a company duly established…,.”…,.
Paragraph 2 of Sarah Hwingwiri's Annexure 3 changes the position of Ivan Pantchev from that of a Director to that of a manager. The annexure which was allegedly deposed to by Mr Georgiev reads, in the relevant part, as follows:
“2. I confirm that through our manager Ivan Kostadinov Pantchev…, Sarah Hwingwiri…, to be our lawful representative including management of all our properties in Zimbabwe.”…,.
It requires little, if any, effort to realise that the papers which Sarah Hwingwiri purports to rely upon are not authentic. They are, if anything, a product of her own fertile mind. She authored them herself. Her aim and object were, as the applicants stated, to reach out to their properties in an unlawful manner, take charge of the same, and deal with them as she pleased.
The documents which she referred to as annexures appeared to have been prepared in a hurried manner. They, in the process, failed to capture some salient features of, for instance, the correct name of the first applicant. Its name, in its correct form, reads: BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALEN und PRODUKTE. The same name as Sarah Hwingwiri wrote in her annexures reads as follows:
(i) Annexure A1: BULCHIMEX GMBH IMPORT CHEMIKALIEN UND PRODUCKTE. The following variations are noted;
(a) GmbH is written as GMBH.
(b) Import-Export is written as Import only. The word Export is left out.
(c) und is written as UND; and
(d) Chemikalen is written as Chemikalien.
(i) In Annexure A1 – Sarah Hwingwiri repeated the same errors.
(ii) In Annexure A2 – Sarah Hwingwiri repeated the same errors.
(iii) In Annexure A3 she repeated the same errors.
A reading of the above shows that her intention was to show that her Zimbabwean company, along which she fashioned the name of the first applicant, was the same as the latter. She failed dismally to achieve her intended end-in-view in the mentioned regard. The two entities, it has already been observed, are separate and distinct from each other. They are not, and can never be, the same.
The word Chemikalien which appears in the abovementioned annexures of Sarah Hwingwiri also appears in the memorandum of agreement of sale which is at p156 of the urgent chamber application.
The question which arises is whether it is the first applicant which sold its Mount Pleasant property to Mr Jogi.
Given Sarah Hwingwiri's fraudulent conduct, as has been observed in the foregoing paragraphs, the probabilities are that this is yet again one of her unwholesome schemes. She admitted, during the hearing of the urgent chamber application, that the mobile number which appears in the portion of the agreement which relates to the seller was her own. The number was quoted in many of the fraudulent documents which she produced as her annexures.
I am satisfied, therefore, that the mobile number belongs to her. It was cited as part of the seller's contact address and phone number.
That Sarah Hwingwiri's annexures were a forgery and a fraud by her is evident from the agreement of sale of the Mount Pleasant property. The agreement was signed on 9 December 2013.
The agreement is either real or unreal. If it is real, as Sarah Hwingwiri would have the court believe, the applicants would not have mandated her to manage the affairs of both properties in December 2016. They could not have done so when, to her knowledge and that of the applicants, Mr Jogi had, as of 9 December 2013, acquired personal rights in the Mount Pleasant property. The applicants would have realised that they could only confer such authority on Sarah Hwingwiri with the consent of Mr Jogi.
It is disquieting in the extreme to observe that Sarah Hwingwiri, who knew that the Mount Pleasant property had been “sold” to Mr Jogi, purported to have acquired the authority of the applicants to manage the same. The fact that she refrained from advising the court of the alleged sale of the property when the application was being heard shows the cunning mind with which she decided to handle the present matter. Nothing prevented her from disclosing that the applicants sold the Mount Pleasant property in December 2013 if they did.
Sarah Hwingwiri spent a lot of time, energy, and effort crafting her lies. She introduced them into the application which she strenuously opposed. She made every effort to create what she termed material disputes of fact. It was unfortunate for her, however, that what she had crated and made part of her case failed to stick.
The applicants described the circumstances through which Sarah Hwingwiri came to work with Ivan Pantchev.
They said they decided to sell one of their three properties and they wondered if they would be able to have the proceeds of the sale remitted to them. It was their testimony that Ivan Pantchev, whom they described as a Bulgarian free agent, convinced them that they would be able to receive the proceeds of the sale of the property. He was scheduled to come to Zimbabwe on holiday, according to them. They said they mandated him, on a trial basis, to sell their Glen Lorne property. He came to Zimbabwe in June, 2012 according to them. He met Sarah Hwingwiri who said she could sell the Glen Lorne property for, and on behalf of, the applicants and secure the exchange control authority to remit the funds to Bulgaria. They said she was, at the time, working for Mercers Property Brokers which is an estate agency. She sold the Glen Lorne property for $150,000 but did not forward the proceeds of the sale to the applicants.
Sarah Hwingwiri's contact with Ivan Pantchev and her work with him opened her mind to a golden chance in a person's life-time. It must have been at that time, more than at any other, that she became aware of Mr Georgiev as one of the applicants' workers. She must, therefore, have crafted all the documents which she used in her fraudulent scheme using the names of Ivan Pantchev, whom she already knew, and Mr Georgiev, whom she got to know, say, through Ivan Pantchev's correspondence with him. She knew of no other Bulgarian name apart from the two's names.
The applicants were, therefore, not far off the mark when they stated that the documents/annexures were a fraud which emanated from Sarah Hwingwiri's forgery. The annexures are nothing but that. The fact that Timeset, which is a Bulgarian translation agency, did not translate those confirms the view which I hold of the matter.
Sarah Hwingwiri registered the first respondent on 14 September 2016. She made an effort to have its name resemble that of the first applicant. She hoped that people who read the name of the first respondent would confuse it with that of the first applicant. Her plan, unfortunately for her, failed to hold.
Given Sarah Hwingwiri's scheming mind, it is doubtful if Ivan Pantchev is a Director of the first respondent. The probabilities are that he is not. If he was, he would simply have deposed to an affidavit confirming his status in the same. His deafening silence in the midst of this hot battle for some other persons' properties remains a cause for very serious concern.
The applicants' averments were that they authorized Ivan Pantchev to sell their Glen Lorne property.
They, however, produced no evidence which supported that his authority was limited to selling only that property. He allegedly sold the Mount Pleasant property. It remains unknown, at this stage, if his authority extended to selling that property as well. If it did, then the sale which he conducted in respect of the same is unassailable. If he did not have their authority to sell, and he sold it, the matter remains for argument before another court and on some other day....,.
The applicants did not mince their words.
They said Sarah Hwingwiri was not the owner. They stated that she schemed to steal from them their properties. They urged the court to make a finding that they were the owners of the properties as well as to declare them such.
Sarah Hwingwiri, on her part, did not dwell so much on the interdict. She made every effort to show that the company which she had registered owned the properties. She said she had the authority of the applicants, through the first respondent, to manage as well as sell the properties.
I have made a finding that the first applicant was, until 22 November 2017, the owner of the Mount Pleasant property. Whether it remains the owner of the same does, in a large measure, depend on the success or otherwise of the applications it filed under HC2974/17 and HC11246/17 and subsequent developments on the same.
I have also made a finding that the second applicant is the owner of the Avondale property.
Sarah Hwingwiri's fraudulent conduct is a nullity. It could not transfer ownership of each of the two properties to herself or to anyone else. It is trite that nothing comes out of an illegal conduct. Nothing, in short, comes out of fraud.
I have considered all the circumstances of this case. I am satisfied that the applicants proved their case on a balance of probabilities. I, accordingly, grant the final order in their favour subject to the amendment which must be effected in paragraph (1) of the draft order. The paragraph is amended to read:
“Until 22 November 2017, the first applicant, Bulchimex GmbH Import-Export Chemikalen und Produkte registered in Germany was the legitimate owner of Stand 295, Northwood Township 2 of Sumbeni commonly known as House No.116 Twickenham Road, Mount Pleasant, Harare.”
