ZIYAMBI
JA:
The
hearing of this matter was postponed in order to determine a point in
limine belatedly taken by Mr Mpofu at the onset of the hearing. It
was that in the proceedings before the court a quo the appellant
purported to act as plaintiff not in his personal capacity but as the
representative of a clan which is not a universitas and which cannot
sue or be sued in its own name. Accordingly, so it was submitted,
since there was no plaintiff before the court a quo the proceedings
were void1.
Consequently, there being no appellant before this Court, the appeal
ought to be struck off the roll.
Mr
Zhou contended that this case is to be distinguished from the CT
BOLTS2
case in that the appellant before us is a persona.
We
agree with Mr Zhou. The appellant appears before this Court as
Pharaoh Muskwe in his capacity as representative of the Mukonde clan.
Our interpretation of his status is that he in his individual
capacity as a member of the clan is representing the clan in this
matter. He is a persona and we are satisfied that he is properly
before this court. The facts of this case are clearly distinguishable
from those in the C T Bolts case where the organisation purporting to
be the respondent was not a legal persona and thus there was no
respondent before the Court.
In
any event, this point was not taken in the court a quo and notice was
given to Mr Zhou shortly before the hearing. Had the point been
raised in the court a quo the appellant would have had the
opportunity to decide whether to move for an amendment to the summons
either to cite the plaintiff in his personal capacity or substitute
members of the clan as individual plaintiffs as it seemed fit.
Undoubtedly,
a point of law can be raised at any time even though not pleaded.
However this is subject to certain considerations one of which is
that the court has to consider whether raising a point of law at this
juncture would cause prejudice to the party against whom it is
raised.
In
our view, there is great prejudice to the appellant who, if the
matter is decided against him, stands to lose the appeal without
argument.
Accordingly,
the point in limine is dismissed.
GARWE
JA: I agree
OMERJEE
AJA: I agree
Madanhi
Mugadza & Company, appellant's legal practitioners
Civil
Division of the Attorney General's office, for the second and third
respondents' legal practitioners
1. CT
Bolts (Pvt) Ltd v Workers Committee SC16/12
2.
supra
