These are they.
The appellant is married, in terms of the Marriages Act [Chapter
5:11], to Tamuka Dimbi who is one of the Directors and shareholders of the
respondent company. In May 2006, the respondent company purchased Stand number
3414 Mainway Meadows, Waterfalls, Harare from Way Mark Investments. The purchase price was paid in full.
Development on the Stand was done using the financial resources of the
respondent company. The respondent company has four Directors, namely Kingsley
Dumba, Tamuka Dimbi, Admire Meze, and Susan Dimbi. Their shares are 40%, 40%,
10% and 10% respectively.
In November 2009, the appellant's husband was allowed by
the respondent company to take occupation of House No. 3414 Mainway Meadows,
Waterfalls, Harare, after a marital dispute with the appellant. The appellant
followed her husband and joined him in the occupation of the house. The husband
moved out after the marital problems persisted.
He is now residing at Number 191 Cheviet Road, Waterfalls. The appellant
remained in occupation of the respondent company's house.
On 10 May 2010, the respondent company sued the appellant
in the High Court for an order of ejectment.
Although the appellant opposed the application, the court a
quo upheld the contention by the respondent company that she had no right to
remain in occupation of the house. In a well-reasoned judgment, it held that
the marital status gave her no right to occupy company property after vacation
of the same by the husband under whose right of occupation she enjoyed
residence. The allegation by the appellant that the respondent company was a
façade created by her husband to place the property in question beyond her
reach was dismissed.
The appellant attacked the decision of the court a quo on
three grounds;
(i) The first ground is that the case had material disputes
of fact which could not be resolved without viva voce evidence.
(ii) The second ground is that the respondent is a façade
and an alter ego of Tamuka Dimbi.
(iii) The third ground is that Stand Number 3414 Mainway
Meadows, Waterfalls is matrimonial property….,.
On the question whether the respondent company is a façade
and an alter ego of Tamuka Dimbi, the court a quo said:
“In my view, lifting or piercing the corporate veil would
not take the respondent's case any further. What is clear is that the respondent's
husband owns 40 shares in the Applicant company and the balance is held by
other three shareholders. Her husband is not even a majority shareholder and is
one of the four directors of the company. The respondent's husband cannot be
deemed to be the alter ego of the Applicant Company.”
The appellant argued that although the property is
registered in the name of the respondent, it belongs to her husband. She asked
the court a quo to lift the corporate veil to see that the company is an alter
ego of her husband. In the court's view,
whether or not the respondent is the alter ego of her husband, it still has a
right to eject the appellant from the house. A holding that the respondent
company is Tamuka Dimbi's alter ego would show the husband as the owner of the
property.
She would not be the owner.
The appellant claims a right of occupation on the basis
that she is a wife of Tamuka Dimbi. That does not give her a right to remain in
occupation of the house - especially when the husband has offered her
alternative accommodation.
In Dhlembeu v Dhlembeu 1996 (1) ZLR 105 (SC) GUBBAY CJ said…,
in similar circumstances:
“I agree
entirely with the learned judge that at this juncture the appellant has no
legal interest in the property. There is, therefore, no valid basis upon which
she may continue in occupation.” 