The
facts are as follows:
Tebekwe
Sands (Pvt) Ltd and Matovu Investments (Pvt) Ltd are partners in an
agreement where Ngezi Mining Company (Pvt) Ltd, a subsidiary of SMM
Holdings, as the registered holder of certain mining claims in the
Midlands Province, agreed to tribute the mining location to the
tributor, namely, Tebekwe (Pvt) Ltd and Matovu (Pvt) Ltd. The Tribute
Agreement
was entered into between the Grantor and the Tributor on 28 December
2015. The tributor, as a joint venture, started mining Tebekwe Mine
in Shurugwi. Disputes arose over the manner in which mining
operations were conducted. This led to an inspection of the mine by
an inspectorate team from the Ministry of Mines on 31st
March 2015. The inspection culminated in a report dated 1 April 2015
being compiled by the acting Provincial Mining Director wherein
certain breaches of mining regulations were noted. Operations were
then suspended pending compliance.
The
report also mentions the following observation:
“Noted
also was that Tebekwe Mine is being run under a joint venture between
Matovu Investments and Tebekwe Sands but the management
structures are different
and labour
returns and production returns are not being submitted under one
management structure.
This office would like the management structure at Tebekwe Mine to be
clear-cut so that conflict of interest among the joint venture
partnership can be resolved in amicably (sic).
There appears to be two
separate structures at the mine at the moment.”…,.
It
is common cause that Tebekwe Sands (Pvt) Ltd and Matovu Investments
(Pvt) Ltd have different Directors. The applicant in
casu
is indicated as Tebekwe Sands and Matovu Investments Joint Venture
(represented by Smelly Dube). Smelly Dube is a Director of Matovu
Investments (Pvt) Ltd. She is neither a Director nor Shareholder in
Tebekwe Sands (Pvt) Ltd). However, in her founding affidavit, she
swore as follows;
“1.
I am a partner of the Joint Venture, the applicant, in the current
proceedings. I am authorized to depose to this affidavit by virtue of
a Board resolution dated the 2nd
January 2016 attached hereto annexure 'A'.”
Annexure
'A' is headed “Resolutions of the Board of Directors of Matovu
Investments and Tebekwe Sands Joint Venture. This annexure was signed
by S. Dube, C. Meya and R.B. Chiwara who are Directors of Matovu
Investments (Pvt) Ltd in a Board meeting. This meeting was not
attended by any of the Directors of Tebekwe (Pvt) Ltd.
This
fact is indisputable.
Quite
clearly, the resolutions of the Board of Directors of Matovu
Investments (Pvt) Ltd, in the absence of Directors of Tebekwe Sands
(Pvt) Ltd, cannot, by any stretch of the
imagination, be said to be resolutions of the Board of Directors of
the two companies i.e. the joint venture.
What
is baffling is why Smelly Dube refers to this resolution as the
product of the “Board of the Joint Venture.”
One
wonders whether this is said out of sheer ignorance or out of lack of
candour or as a deliberate ploy to trick or mislead the court. Be
that as it may, the legal position is that Smelly Dube has no locus
standi
to represent the joint venture in legal proceedings. For her to be
clothed with such authority, the resolution must be that of the Board
of Directors of the joint venture. There is no such resolution. The
legal ramifications are that there is no applicant before the court
as a result of this defective resolution.
See
Stewart
Scott Kennedy v Mazongororo Syringes (Pvt) Ltd
1996 (2) ZLR 565 (S).
In
the result, the application is dismissed with costs.
