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HB113-09 - MADUMELANA IMPORT AND EXPORT (PVT) LTD vs WATSON MPOFU

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Procedural Law-viz interim interdict.

Procedural Law-viz provisional order.
Law of Property-viz vindicatory action.
Law of Property-viz rei vindicatio.
Procedural Law-viz founding affidavit re authority to depose to the founding affidavit.
Corporate Law-viz Directorship re authority to depose to the founding affidavit.
Corporate Law-viz Directorship re CR14.
Procedural Law-viz founding affidavit re material misrepresentation of facts.
Corporate Law-viz deposing to the founding affidavit on behalf of a corporate body re legal capacity.
Corporate Law-viz instituting legal proceedings on behalf of a corporate entity re legal capacity.
Law of Contract-viz power of attorney.
Law of Contract-viz power of attorney re ratification of historical actions.
Law of Contract-viz power of attorney re retrospective effect.
Law of Contract-viz ratification re power of attorney iro retrospective effect.

Vindicatory Action or Rei Vindicatio re: Approach, Ownership Rights, Claim of Right, Estoppel and Lien

The applicant seeks a provisional 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) That 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 H07DA29183, chassis number FD3HKA13698 until case number HC1887/07 is lawfully disposed of.

(2) Respondent shall pay 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 H07DA29183, chassis number FD3HKA13698, from respondent, or any other person deriving authority 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.

Founding, Opposing, Supporting and Answering Affidavits re: Deponent, Representative Authority & Affidavit of Collegiality

The respondent has 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 deponent's founding affidavit, therefore, has material misrepresentations of facts on his Directorship and Chairmanship of the applicant.

This application should have been withdrawn, and instituted afresh, if need be, with proper authorization – Macfoy v United Africa Co. Ltd [1961] 3 ALL ER 1169 (PC)..., and Minister of Lands & Anor v Mkushi 1988 (1) ZLR 209 (SC)...,.

As LORD DENNING pointed out in the Macfoy v United Africa Co. Ltd [1961] 3 ALL ER 1169 (PC) case -

“If an act is void, then, it is, at 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 must fail without going into the other points raised in limine, and the merits of the application.

Directorship re: Approach, Powers, Boardroom Disputes and Collective Responsibility

The CR14 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..., together with Mgcini Siphambili. They gave way to FM Accounting as the Company Secretaries, who are Secretaries to date.

In his response, the deponent claimed ignorance, as these changes were allegedly effected in his 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 legal capacity to institute these proceedings on behalf of the applicant.

Agency Law re: Acting For Another iro Power of Attorney, Resolutions, Proxy, Negotiorum Gestio, Conduct & Derivative Action

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.

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
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