INTRODUCTION
This judgment involves two consolidated appeals from the High Court (the court a quo) being case numbers SC258/20 and SC285/20. The court issued a consolidation order dated 29 March 2021 by consent of the parties. Both appeals are based on the same record of proceedings and issues in the court a quo under Case No. HC6503/19.
It was therefore convenient to consolidate the two appeals because the matter was determined by the same judge a quo on the same facts and issues.
The two appeals arise from the same judgement. Each appellant lodged its own appeal against the same judgment in which they were contesting parties.
Both appeals bring into question the judgment of the court a quo which determined that the forensic audit conducted by the appellant, at the behest of the second respondent, was an administrative action subject to review by the court a quo.
In consequence thereof, the court a quo reviewed and set aside the forensic audit for irregularity coupled with costs at the higher scale....,.
POINTS IN LIMINE
At the commencement of the hearing, counsel for the first respondent raised two preliminary points for determination. After hearing arguments from counsel, the court ruled that the two preliminary points be determined in tandem with the main appeal:
(i) The first point of objection in limine is that there is no appellant before the court in this case....,.
WHETHER THERE IS A PROPER APPELLANT BEFORE THIS COURT
Counsel for the first respondent's first contention is that BDO Zimbabwe Chartered Accountants (BDO), being a partnership, cannot sue or be sued in its own name because it has no legal personality. It therefore has no locus standi in any court of law.
For that proposition of law, he placed reliance on the case of Gariya Safaris (Private) Limited v Van Wyk 1996 (2) ZLR 246 (H) in which MALABA J…, observed that:
“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written on the summons as being those of the defendant, the summons is null and void ab initio.”
On that score, he submitted that BDO Zimbabwe Chartered Accountants (BDO) was improperly before the court because it was a non-existent legal entity lacking the requisite legal capacity to sue and be sued in its own name.
Counsel for BDO Zimbabwe Chartered Accountants (BDO), on the other hand, countered that a partnership, being an association, can sue or be sued in its own name in terms of Order 2A of the High Court Rules, 1971.
I now proceed to resolve the two conflicting propositions of law submitted by opposing counsel respectively.
The facts in Gariya Safaris (Private) Limited v Van Wyk 1996 (2) ZLR 246 (H) are diametrically different from the facts of this case.
In that case, the applicant had sued and obtained judgment against a non-existent fictitious entity called Con and Son (Private) Limited in the mistaken belief that it was a registered company. When it turned out that it was in fact a fictitious unregistered company, the applicant applied for its substitution with a natural person, one Van Wyk, for purposes of execution alleging that he had acted fraudulently as Managing Director of the fictitious company.
The court found no evidence of fraud and held, as appears from the headnote, that:
“…, in the present case, the proceedings and judgment following the issuing of summons were null and void because the proceedings had been brought before a non-existing defendant. Therefore, there could be no question of the substitution of a new judgment debtor.”
The main distinguishing feature in this case is that BDO Zimbabwe Chartered Accountants (BDO) is not a non-existent party lacking the capacity to sue or be sued in its own name.
While, at common law, in the distant past, partnerships, unregistered associations, and clubs had no locus standi to sue or be sued in their own names except through the names of their individual membership, the law has since changed.
The development and change of the archaic common law in this respect was a progressive endeavour to facilitate easier citation of the parties in a partnership without being bogged down in unnecessary cumbersome citation technicalities.
The applicable law is to be found under Order 2A of the High Court Rules, 1971 which rules were in force when the litigation commenced. They have since been repealed and substituted by S.I.202 of 2021 (SI202/21).
Order 2A is now Rule 11 of the Supreme Court Rules, 2018.
It regulated the citation of partnerships, trusts, syndicates, clubs or any other association which is not a body corporate.
BDO Zimbabwe Chartered Accountants (BDO) reliance on that Rule was therefore apposite.
The capacitation of partnerships, associations, and clubs to sue and be sued in their own names without the cumbersome need to cite each and every member of the unincorporated entities in court proceedings has been a welcome development both at home and in South Africa which has similar jurisprudence as ours.
At home, Rule 7 of the High Court Rules 1971 provided the definition of an association as follows:
“In this Order, 'associate', in relation to —
(a) A trust, means a trustee;
(b) An association other than a trust, means a member of the association;
'association' includes —
(a) A trust; and
(b) A partnership, a syndicate, a club, or any other association of persons which is not a body corporate.”
Undoubtedly, Rule 7 defines an association as including a partnership, a syndicate, a club or any other association of persons which is not a body corporate.
Rule 8 goes on to clothe members of such entities with locus standi to sue or be sued in the name of the association as defined in the Rules. It provides as follows:
“8. Proceedings by or against associations
Subject to this Order, associates may sue and be sued in the name of their association.”
Having conferred members of unregistered associations with locus standi, the law maker was careful to render members of an association accountable for their rights and obligations without hiding behind the association's name.
To that end, Rule 8A of the High Court Rules obliges an association engaged in legal proceedings to provide the other party, upon written request, within five (5) days, with the names and addresses of its associates at the material time when the cause of action arose.
The Rule shields the other party against any prejudice that may arise from the association's lack of legal or corporate status.
Thereafter, it proceeds to provide an elaborate procedure for obtaining the relevant information. It provides as follows:
“8A. Naming of Associates
(1) In any proceedings to which an association is a party, any other party may, by written notice to the association, require a statement of the names and places of residence of the persons who were the association's associates at the time the cause of action accrued.
(2) A person who receives a notice in terms of subrule (1) shall, within five days after receiving it —
(a) Furnish the party concerned with a written statement containing the required information; and
(b) File a copy of the written statement with the Registrar; and the proceedings shall continue in the same manner, and the same consequences shall follow, as if the associates had been named in the summons or notice commencing the proceedings: Provided that the proceedings shall continue in the name of the association except where a writ of civil imprisonment is sought against an associate, in which event the associate shall be specifically named in the civil imprisonment proceedings.”
In interpreting the South African Rule 14, which is similar to our Rule 2A, the learned authors HERBSTEIN & Van WINSEN,,The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5th ed, Vol 1…, articulate the mischief behind the change as follows:
“Rule 14 facilitates the citation of partnerships, firms, and associations as defendants, as well as allowing those entities to sue in their own names. It has been held by the Supreme Court of Appeal, that, this Rule enables members of an association to assert rights which they hold, by virtue of their membership, in the name of the association.”
From the foregoing, it is plain that the primary distinguishing feature between Gariya Safaris (Private) Limited v Van Wyk 1996 (2) ZLR 246 (H) and this case is that a partnership is covered by Order 2A of the High Court Rules whereas an unregistered company is not.
Since the legislature has not altered the common law in respect of the citation of unregistered companies the position remains the same.
Gariya Safaris (Private) Limited v Van Wyk 1996 (2) ZLR 246 (H) was therefore correctly decided because it dealt with the citation of a non-existent, fictitious, and unregistered company which is not the case here. The decision in that case is therefore irrelevant to the determination of the issues at hand in this case.
Having said that, I find it ironic that it is the first respondent who sued the appellant in case number HC60503/19 citing it in the manner it now objects to.
I therefore find no merit in the first point in limine. It is accordingly dismissed without any further consideration....,.
