NDOU J: The
applicant seeks a provisions order in the following terms:
“Terms
of the order sought
That you show cause to this honourable court if any, why a
final order should not be made in the following terms:
(1)
The
Deputy Sheriff, Bulawayo be and is hereby ordered to keep the vehicle namely a
Hino Truck Registration number AAV 5504 or AAR 8634 engine number HO7DA29183,
chassis number FD3HKA13698 until case number HC 1887/07 is lawfully disposed
of.
(2)
Respondent
shall pay the costs of an attorney and client scale.
Interim relief granted
Pending confirmation or discharge of this order,
(1)
The
Deputy Sheriff be and is hereby ordered and directed to seize a motor vehicle,
namely a Hino truck registration number AAV 5504 or AAR 8634 engine number
HO7DA29183, chassis number FD3HKA13698 from respondent or any other person
deriving rights from him and wherever such vehicle may be found and store same
for and on behalf of this honourable court.”
This matter has a chequered history and I will not go into
detail. The respondent raised points in limine which I propose to deal with
first. The deponent to the founding
affidavit, one Christopher Hlabathi Siphambili, did so “in his capacity as the
Director of the Applicant's Company”.
The respondent's point in limine in
this regard is that the deponent is not a director of the plaintiff
company. The CR 14 of the applicant
which the respondent produced, shows that the deponent is not a director or a
chairman of the applicant. The directors
are shown as Levison Mlanzi, Njabulo Zikhali and Lungile Christopher
Siphambili. It is clear that the
deponent was part of the Board of Directors but resigned on March 2002 together
with Mgcini Siphambili. They gave way to
F M Accounting as the company secretaries, who are secretaries to date.
The deponent's founding affidavit,
therefore, has material misrepresentation of facts on his directorship and
chairmanship of the applicant. In his
response, the deponent claimed ignorance as these changes where allegedly
effected in absence from the country i.e. when he was resident in Canada. These changes were allegedly masterminded by
his son. Be that as it may, the deponent
was not clothed with the legal capacity to institute these proceedings on
behalf of the applicant. Faced with this
dilemma, the deponent sought authorization from one of the current
directors. What the deponent is
attempting to do is to ratify proceedings instituted without legal
capacity. The power of attorney cannot
operate retrospectively. This
application should have been withdrawn and instituted afresh, if need be, with
the proper authorization – MacFoy v United Africa Co Ltd [1961] 3 ALL ER
1169 (PC) at 11721 and Minister of Lands
& Anor v Mkushi 1988 (1) ZLR
209 (SC) at 219. As Lord DENNING pointed out in the MacFoy v United Africa Co Ltd – case:
“If
an act is void, then it is in law a nullity.
It is not only bad, but incurably bad.
There is no need for an order of the court to set it aside. It is automatically null and void without
much ado, though it is sometimes convenient to have the court declare it to be
so. And every proceeding which is
founded on it is also bad and incurably bad.
You cannot put something on nothing and expect it to stay there. It will collapse.”
On this point alone, the application
should fail without going into the other points raised in limine and the merits of the application.
Hwalima, Moyo & Associates, applicant's legal practitioners
Messrs Cheda & Partners,
respondent's legal practitioners
