Urgent
Chamber/ Opposed Applications
MANGOTA
J:
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, second and third respondents from selling or, in any way,
alienating or encumbering the Mount Pleasant Property.
(b)
The fourth respondent 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 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 one Sarah Hwingwiri
(“Sarah”).
Borislav
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
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
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'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 4047 square
metres [“the Glen Lorne Property”]. This, he alleged, was sold by
Sarah and Ivan 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 and Ivan 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.
The
first and the second respondents opposed the application. The third
did not. My assumption is that he chose to abide by the decision of
the court.
The
two respondents raised a number of preliminary matters in their
opposition to HC12074/16.
(a)
They submitted that Borislav did not have the authority of the first
applicant to depose to the founding affidavit on its behalf.
(b)
Their second in
limine
matter was that the application was not urgent.
(c)
The third was that an alternative remedy was available to the
applicants.
(d)
The fourth was that the applicants did not comply with the laws of
Zimbabwe when they applied as they did.
(e)
The fifth was that HC12043/16 which the applicants filed remained
pending. They, in the mentioned regard, anchored their opposition on
the defence of lis
pendens.
(f)
The last was that the application contained material disputes of
facts which could not be resolved on the papers.
They
stated, on the merits, that the applicants authorised Sarah to manage
the two properties and/or to sell them on their behalf.
They
submitted that the applicants were not the owners of the properties.
They stated that the first respondent owned the Mount Pleasant
property.
Annexures
M1
and M2
which the applicants attached to their answering affidavits dispose
of the respondents' first preliminary matter. The annexures show
that the applicants conferred authority on Borislav to depose to
their affidavits.
The
issue of the urgency or otherwise of the application remains of no
use to the respondents. That is so because the application was heard
and determined on the basis of urgency.
In
so far as the respondents' third in
limine
matter was concerned, the respondents made a statement which they did
not substantiate. They did not mention the alternative remedy which
they said was available to the applicants. These stated that they had
no other remedy which was available to them. The onus,
therefore, rested on the respondents to mention the remedy which the
applicants could employ for a quick redress of their situation –
i.e. a remedy which was outside the urgent chamber application which
they had filed.
Given
the circumstances of what was confronting the applicants at the time
of the application, I remain satisfied that the only course which was
available to them was to apply as they did. There was, therefore, no
other remedy which was available to them.
The
respondents' statement which was to the effect that the applicants
did not comply with the laws of Zimbabwe was not only far-fetched. It
was also, in my view, meaningless.
The
respondents did not state the manner in which the applicants violated
the laws of Zimbabwe. They simply stated that they violated the law
without elaborating. They left that matter to conjecture.
The
applicants stated, on the point in issue, that they owned immovable
properties in Zimbabwe. They submitted, and correctly so, that they
were not, because of the stated fact, required to provide security
before instituting legal proceedings.
The
applicants had, as at the time of the application, two properties in
Zimbabwe. Nothing prevented them from approaching the court to
protect their rights and interest in the same. No law prohibited them
from applying as they did.
The
issue of lis
pendens
which the respondents raised as their fifth in
limine
matter is without merit. The applicants stated, and the court
confirmed, that they withdrew HC12043/16. They did so on 14 February
2017.
The
applicants denied that there were material disputes of facts in the
matter. They urged the court to adopt a robust approach and resolve
the dispute, if any, on the papers which were before it.
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.
Whether
or not the application contains material disputes of fact will be
determined in the course of this judgment. The probabilities are that
it does not. That is so as the court will have to determine who
between the applicants and the respondents owns the two properties. A
robust approach to the matter as urged of the court by the applicants
will, no doubt, enable the court to resolve the issue without hearing
any oral evidence on that aspect of the case.
My
first observation relates to the resolution which the respondents
passed. The resolution confers authority on Sarah 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 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……”
[emphasis added].
The
annexure, it is evident, is not that of the first respondent who
allegedly authorised Sarah 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 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 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 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.”
[emphasis added].
Sarah
did not mention the person who authorised 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
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 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) 516 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.”
[emphasis added]
The
respondents also referred me to the case of Dendeuka
v
Paper
Place (Pvt) Ltd HH195/2011
in which BHUNU
J (as
he then was) 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 (as
she then was) 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.” [emphasis added]
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 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 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 for any resolution which she
would have produced to remain valid. Ivan'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 to speak for them. The first
respondent is, by virtue of the stated fact, out of court.
It
requires little, if any, debate to state that the resolution which
the respondents produced was no resolution at all. It was fatally
flawed. It was a nullity out of which nothing comes.
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
and Sarah – sat down in some room to pass any resolution. Ivan is a
Bulgarian who is domiciled in Bulgaria. Sarah, as a Zimbabwean, stays
in this country.
The
applicants' unchallenged statement was that Ivan 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 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 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 alone.
The
matter remains between the applicants and Sarah. 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 and Ivan sold it to someone
at the instance of the applicants. They sold it for $150,000.
Sarah'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 to
manage their two properties. They submitted that Borislav was, and
remained, their point-man in Zimbabwe. They said he had their
authority to look after their two properties.
Sarah'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 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's
claims were that the applicants authorised 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 (emphasis added]
(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 para 3 stated that the first applicant
and the first respondent were one and the same entity. It authorised
Sarah 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 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 as their “lawful
representative including management of all our properties in
Zimbabwe”.
The
applicants disassociated themselves from the above-mentioned four
annexures. They said the annexures were a result of Sarah'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 or to Ivan. 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 or Sarah 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's Annexures A, A1, A2 and A3 were untrue and
unauthentic. 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.” (emphasis added).
Mr
Georgiev discounted annexures A2 and A3 which Sarah 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'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 to handle the affairs of the applicants'
two properties. He and Ivan had their names repeatedly mentioned in
the annexures.
His
conclusion with which the court agrees was that the annexures upon
which Sarah relied were not authentic at all.
Sarah
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 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; In
Remo Investment Brokers (Pvt) Ltd v
Securities
Commission of Zimbabwe, SC13/15).
Mr
Georgiev stated that he was no longer working for the applicants when
the annexures of Sarah 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 would have the court believe.
Sarah
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
stated in her opposing papers that she was in constant communication
with Ivan. 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's
Annexure 2 describes Ivan 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…….” (emphasis added).
Paragraph
2 of Sarah's Annexure 3 changes the position of Ivan 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.” (emphasis added).
It
requires little, if any, effort to realise that the papers which
Sarah 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 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 repeated the same errors.
(ii)
In Annexure A2 – Sarah 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 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's fraudulent conduct as has been observed in the foregoing
paragraphs, the probabilities are that this in yet again one of her
unwholesome scheme. 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'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 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 with the consent of Mr
Jogi.
It
is disquieting in the extreme to observe that Sarah 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
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 came to
work with Ivan. 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 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 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's
contact with Ivan 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 whom she already knew and Mr Georgiev whom she got to know,
say, through Ivan'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'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
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's scheming mind, it is doubtful if Ivan 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 authorised Ivan 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
supplementary heads which Sarah filed on 13 February 2018 sought to
make a distinction between an interdict and a declaratory order. She
stated that the two were founded on different causes of action. She
moved the court to dismiss the applicants' final order which,
according to her, related to a declaratory order.
What
Sarah misses, however, is that the whole of the application centres
on two remedies. These were an interdict and a declaratur. The
interdict aimed at arresting the situation to allow the parties a
chance to prove who the real owners of the two properties was or
were.
The
applicants did not mince their words. They said Sarah 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,
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'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.”
Mutumbwa,
Mugabe and Partners
applicant legal practitioners
Farai
Nyamayaro Law Chambers
1st
and 2nd
respondents' legal practitioners
Chigwanda
Legal Practitioners
3rd
respondents' legal practitioners [urgent chamber application]
