MAKONESE J: This application purports to be an urgent chamber application. The order sought is couched in the following
terms:
“Interim relief sought
1.
The process of transfer of
stands 11970 and 8195 Bulawayo Township be and is hereby stopped forthwith and
if such transfer had already been made it be declared of no consequence.
2.
The fourth and fifth
respondents are ordered to stop interfering with applicant's right of ownership
of stand 11970 and 8195 Bulawayo Township.
Terms of final order sought
1.
That the agreement of sale
between first and fourth respondents in respect of stand 11970 be and is hereby
declared a nullity.
2.
That first respondent be and is
hereby ordered to comply with Rule 359 of the High Court Rules, 1974 (sic), in handling the sale in execution.
3.
First respondent to pay the
costs of suit.”
When I received this urgent chamber application I directed that all
the respondents be served. All the
respondents had on the day of the hearing filed opposing papers, save for the 3rd
respondent, whose role as the auctioneer was peripheral to the real issues at
stake. Various points in limine were raised by the
respondents. I intend to examine each of
these issues. The issues were argued at
length by all the parties and several decided cases were brought to my attention
relating to the principles that govern the form and substance of urgent
applications. It is necessary that I set
out a brief synopsis of the background to this application.
Factual
background
On the 11th November 2015
first respondent conducted a sale in execution in pursuance of a writ of
execution obtained by Jacob Mafusire and others, who are former employees of
the Cold Storage Company (applicant). On
12th November 2015 first respondent declared the fourth and fifth
respondents as the respective bidders for the two properties on sale. Stands 11970 and stand 8195 Bulawayo Township
were accordingly sold to the fourth and fifth respondents for US$35 000 and
US$36 000 respectively. On 20th
November 2015 applicant filed an objection to the confirmation of both sales on
the grounds that the properties were sold for unreasonably low prices. A meeting was convened on the 17th
December 2015 before the Additional Sheriff, Bulawayo to deal with the
objections. It is common cause that at
this meeting, the applicant was represented by a legal practitioner Mr G. Sengweni. Mr Chagwinya attended the meeting as a
representative of the Cold Storage Company.
Mr D. Dube attended the
meeting on behalf of the judgment creditors.
A copy of the minutes was filed at the hearing of this matter and the
findings are set out in the following terms:
“After hearing the submission by both
parties the Sheriff confirmed the sale of the two immovable properties to the
highest bidders based on the following reasons:
1.
The sale was properly conducted
2.
Even if the sale is to be set
aside the applicant does not have any plan to pay the respondent the
outstanding amount.
3.
The applicant did not bring the
prospective buyer who would offer more money.
4.
The sale by the Sheriff is a
forced sale so rules that apply to a willing seller and willing buyer set up do
not apply in this particular case.
5.
The objection was filed was
only meant to frustrate the process since people purporting to represent the
applicant did not have any authority to represent the applicant but were trying
To safeguard their interests on the properties since they did not have the
resolution by the Board to represent the applicant.”
Although the applicant disputes that at the end of the meeting of
the 17th December 2015 a decision was announced, two of the
attendees of this meeting confirmed that the outcome of that meeting was
announced that same day. There is
irrefutable evidence that on 17th December 2015 the first respondent
wrote to the applicant's legal practitioners indicating confirmation of the
sale in execution. The applicant filed
this urgent application on the 8th March 2015 seeking an order to
stay transfers of the properties to the purchasers.
I shall now proceed to deal with the points in limine, in turn.
Urgency
The respondents contend that the
matter is not urgent. Applicant's papers
confirm that on 2 February 2016, the applicant's legal practitioners received
the Sheriff's confirmation of the sale.
On the same date, the applicants addressed a letter to the Sheriff. The letter was received by the Sheriff on the
4th February 2016. This
application was only filed on the 8th March 2016. This is almost one month from the date the
applicant became aware of the confirmation of the sale. With respect, the amount of the delay is both
inordinate and unjustifiable. It is a
delay that, in terms of the dictates of the law regarding urgent matters is not
justifiable. There is no excuse for the
delay. The applicant's legal
practitioner for his part did not articulate any reasonable justification for
such a delay. On this basis alone, the
court would be entitled to dismiss the application. See Kuvarega
v Registrar Gen & Anor 1998 (1)
ZLR 188 (H).
Non-compliance
with the Rules
Even if the matter were deemed to be
urgent, the application before the court is not an urgent application. It is, in fact a court application. Applicant has not conformed to the rules with
respect to form when preparing and filing this application. A court application is in Form 29, which is
what the applicant has filed. An urgent
chamber application is in Form 29B, which is what the applicant ought to have
prepared and filed. There is no urgent
chamber application before the court.
There exists only a cover that purports to contain an urgent chamber
application. The application before the
court is not an urgent chamber application both in nature and form. Further, and in any event, the application
does not set out the facts upon which it is founded. There can be no doubt that the application is
fatally defective as it does not comply with the provisions of Rule 241 (1) of
the High Court Rules. The provisional
order itself does not comply with Rule 247 as it is not in Form 29C as per Rule
247 (1) (a). It is also critical to note
that if the interim relief were to be granted it would amount to final relief
in that there is no attempt to include stand 8195 Bulawayo Township, in the
final order. To that extent applicant
would have obtained final relief in respect of stand 8195, Bulawayo Township.
See the cases of Minister of Higher & Tertiary Education
vs BMA Fasteners (Pvt) Ltd & Others HB-42-14, and Chief Gampu Sithole v Kennedy Ndlovu HB-63-13.
Inspite of the non-compliance with
the mandatory rules noted above, the applicant has not bothered to apply for
condonation for the failure to comply with the Rules, inspite of such
non-compliance having been brought to applicant's attention by respondents on
the 11th March 2016 at the first hearing of the matter.
Once again, this matter could easily
be disposed on the basis that the application is fatally defective for
non-compliance with the Rules of Court..
No locus standi
It was contended by the respondents
that Reuben Chagwinya, the deponent to the founding affidavit has no authority
from the Cold Storage Company Limited to litigate on behalf of the
company. The provisions of section 9 of
the Companies Act (Chapter 24:03) are clear;
“A company shall have the powers of a natural person
of full capacity in so far as a body corporate is capable of exercising such
powers.”
It is trite law that a company being
a separate legal persona, distinct from its directors, it cannot be represented
in a legal suit by a person who has not been authorized to do so. The applicant sought to argue that he is the
Company Secretary of the Cold Storage Company and that as such he has inherent
powers to represent the company. This
assertion is, however, not supported by the applicant's own papers. In paragraph 2 of the founding affidavit, the
deponent states as follows:
“I am the Administration Manager of the applicant and
as such I am duly authorized to depose to this affidavit on behalf of the
applicant.”
I was referred by Mr Sengweni, appearing for the applicant to
the case of River Ranch Limited v Delta Corporation Ltd HH-1-10.
The operative part of the cited case
states as follows:
“Under the law of agency, it is trite that the
agent's actions operate to create a contractual or legal tie between the
principal and the third party. The
agent's authority to act may arise either by dint of actual authority, whether
express or implied, or by way of ostensible or apparent authority or authority by
estoppel…”
This decision is no authority for
the proposition that the deponent ought not to have secured a Board Resolution
authorizing him to act for applicant.
The passage of the judgment that has been referred to deals with the
agent's ostensible authority to act in certain contractual relationships. The issue was dealt with by the Supreme Court
in the case of Madzivire and Others v
Zvarivadza & Others SC-10-06.
The learned CHEDA (AJ) stated at page 4 of the cyclostyled judgment as follows:-
“It is clear from the above that a
company, being a separate legal person from its directors, cannot be
represented in a legal suit by a person who has not been authorized to do
so. This is a well established legal
principle, which the courts cannot ignore.
It does not depend on the pleadings by either party.
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
authorizing him to do so.” (emphasis mine)
See also, the case of Burnstein v Yale 1958 (1) SA 768.
This application is clearly not
properly before the court because the deponent to the founding affidavit has
not been authorized to act on behalf of the applicant. In my view this point in limine was well taken.
Before I conclude, I am constrained
to deal with a matter which arose from this application concerning the citation
of parties. The second respondent in
this matter has been referred to as Jacob Mafusire and others. There is no such party known as Jacob
Mafusire and others. It is a basic
principle of law that before a litigant embarks on instituting legal action, he
should ascertain the correct citation of the party being sued to enable to
appropriate party to respond accordingly.
We are left to speculate in this matter who the “others” refers to. If Jacob Mafusire is representing the
interests of other former employees of the applicant this does not come out of
the papers filed. Further, the 5th
respondent is referred to as “Trevor & Talent”. It transpired that Trevor Dube and Talent
Dube are husband and wife. They
confirmed that they purchased one of the properties as husband and wife. The citation of 2nd respondent and
5th respondent is inelegantly crafted and this is not desirable.
In the result, I accordingly, uphold the points in limine and dismiss the application with costs.
Messrs T. Hara & Partners, applicant's legal practitioners
Mathonsi-Ncube Law Chambers, 2nd respondent's legal practitioners
Joel Pincus, Konson & Wolhuter, 4th respondent's practitioners
Messrs Coghlan & Welsh, 5th respondent's legal practitioners
