At the outset, I sought the views of counsel regarding the identity of the parties before me.

There is the added handicap in respect of the citation of the second respondent.

Mr. Drury cited the second respondent by his name, national registration number, as well as postal address. It is common cause that these particulars relate to Enos Porusingazi, the beneficiary of an offer letter relating to a portion of Stillfontein Farm.

It is also common cause that the application and notice of set down was served at Stillfontein Estates.

As it turned out, the party who attended court as second respondent contends that he has not despoiled the applicants'. Although he is the holder of an offer letter, this second respondent contends that he is waiting for due process to take its course before he moves onto the portion of land allocated to him. Counsel for the applicants' sought to explain that according to his instructions the person who exhibited the offer letter to the applicants is the father of Enos Porusingazi and not the party who attended court.

There is no doubt then that the second respondent was not properly cited.

Counsel for the applicants' submitted that there would be no prejudice if the application is granted notwithstanding this anomaly. The question that immediately arises is which second respondent will have to comply with the order. Court orders are meant to be obeyed, and there are consequences that follow non-compliance.

The plaintiff in casu remains as cited in the summons, namely, Old Mutual Life Assurance Company Limited. It is that plaintiff who, as far back a 6 May 2008, must have been aware of the predicament of CABS. The most that could, therefore, have happened was for the plaintiff's notice requiring the defendant to vacate the premises to disclose its full intentions by making reference to CABS and explaining who CABS was (i.e. the alleged relationship).

What can be gleaned from the papers is that the contract of employment was entered into on 3 November 2008 between the applicant as employee and the National Authorising Officer for the Smallholder Micro-Irrigation Development Support Programme, viz the Ministry of Finance as the employer.

It is common cause that the Smallholder Micro-Irrigation Development Support Programme is a separate legal person from the Ministry of Finance.

The letter of the applicant's suspension from work, dated 20 October 2009, emanated from the Ministry of Finance. It was authored by a Deputy National Authorising Officer of that Ministry. So was the letter containing the misconduct charge dated 30 October 2009.

Following an abortive disciplinary hearing at the Ministry of Finance, the applicant took her case to the Ministry of Labour – against, not the Smallholder Micro-Irrigation Development Support Programme but the Ministry of Finance. A labour officer referred the matter to arbitration after conciliation failed. It is common cause that before the arbitrator, the parties were the applicant as claimant and the Ministry of Finance as respondent. The award reads:

“That respondent pay to the applicant salary arrears and benefits amounting to E51,933=90 within 7 days from date of the interim determination.”

It goes without quarrel, in view of the foregoing, that the Smallholder Micro-Irrigation Development Support Programme had nothing to do with the applicant's misconduct charge; it therefore was not her employer hence it did not feature before the labour officer or the arbitrator. It was never represented before the two tribunals. The award was clearly not against it, it being a separate legal entity. When the applicant resumed duty following her reinstatement pursuant to the arbitral award, the Smallholder Micro-Irrigation Development Support Programme Manager, Nhlema, on 26 May 2010, wrote to the Ministry of Finance asking for instructions on how to proceed. He also, on the same date, wrote to the applicant saying inter alia: “I now await formal instructions from the employer on how to proceed.” This buttresses the view that the Ministry of Finance was the applicant's employer. Even the letter written by the applicant's legal practitioners on 11 November 2009 complaining about the applicant's suspension from duty and disciplinary enquiry was addressed, not to the Smallholder Micro-Irrigation Development Support Programme, but to the Ministry of Finance.

Order 39 Rule 328 clearly states that any process which names a wrong person as a party is invalid.

In casu, a wrong respondent was named in the process of registering the arbitral award as well as in the writ of execution. Such a process is accordingly invalid.

The applicant raised two main issues regarding whether or not it has a bona fide defence to the claim and therefore the application for rescission is not intended to harass the respondent and delay the inevitable.

It firstly contended that it was wrongly cited in case no. HC3672/09. It was cited as Christ Embassy Church instead of Christ Embassy, Zimbabwe. It stated that there is no such entity simply referred to as Christ Embassy Church in Zimbabwe.

I am perplexed at the submission made by the applicants in view of paragraph 3 of the order in case no. HC318/10. The applicant consented to the amendment of its citation in that case to reflect its proper name. It is not clear on what basis it persists in arguing that it was not properly cited when it consented to the amendment. It appears to me that the applicant was accepting that it was one and the same as Christ Embassy Church and that the satellite church did not have a separate persona from the applicant. 

Counsel for the third and fourth respondents also took the point that the citation of the third respondent is defective in that it is not a legal persona.

I agree that the proper person to be cited is the Minister of Local Government and not the Ministry. I am, however, of the view that the defect is merely technical and cannot be fatal to the application. Moreover, this court has the discretion in terms of Rule 4C to condone a departure from the Rules and also to regulate its process.

An application to amend the citation of David Govere was made by the applicant.

With regards to incorrectly cited parties, case law and legal authorities are clear that such amendments are permissible. As HERBSTEIN and VAN WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, Volume 1 (Juta & Co., 2009)  5^th ed…, explain…,:

“Where a party has been cited incorrectly, the citation can be amended. It is important to distinguish between situations where the person cited is a non-entity and where an existing entity has been incorrectly cited. It is also important to distinguish the correction of citation of a party and the substitution of a new party. A court can allow the substitution of a party by way of an amendment provided that no prejudice results to the other parties to the proceedings.”

In casu, I was not faced with the substitution of a new party altogether but the correction of an incorrectly cited party. I allowed the application to amend the citation of David Govere with that of Noxon Investments (Pvt) Ltd and proceeded to hear the matter to finality for the following reasons.  

From the evidence in the papers filed in support of the interpleader application, and from the affidavit of David Govere himself, it was clear, at all times, that he was being cited as David Govere in his capacity as Director of Noxon Investments (Pvt) Ltd. The first evidence of this is from the detail in the summons themselves. The issue therein was outlined as follows:

“You are summoned to appear before this court on the 26^th day of September 2012 at 10am/pm to have it determined and declared whether certain movable property listed in annexure hereto, attached and removed on the 8^th of August 2012 by the Messenger of Court, Karoi by virtue of Warrant of executing issued by this court of the 12^th day of October 2011, in an action in which you, the said Edward Chigango and 55 others, obtained a judgment in the sum of $51,161=30 plus interest thereon at the rate of 5% per annum from 31 July 2010 against Fresh Bakery, Karoi, which said property David Govere, in his capacity as Director of Noxon Investments ( Pvt|) Ltd, claim to be his company's property.” …,.

Secondly, the applicant's founding affidavit, in paragraph 4, also referred to David Govere as follows:

“The 3^rd Respondent is David Govere, in his capacity as Director of Noxon Investment Pvt Ltd, whose address is c/o of Bvekwa Legal Practitioners, 5^th Floor Dolphin House, 123 Leopold Takawira Street Harare.”

Again, it is clear from the above that he was cited in his capacity as representing Noxon Investments (Pvt) Ltd. The amendment sought, among those relating to the citation, was to change this particular to read as follows:

“The 3^rd Respondent is Noxon Investments (Pvt) Ltd, a corporate body duly registered in terms of the laws of Zimbabwe being represented by its Managing Director, Mr David Govere whose address is care of Bvekwa Legal Practitioners, 5^th Floor Dolphin House, 123 Leopold Takawira Street Harare.” 

Thirdly, the third respondent himself deposed, in his inter pleader affidavit, in this capacity as follows:

“I, DAVID GOVERE, do hereby take oath and state as follows:

1. I am a Director of Noxon Investments. In this capacity, I have authority to swear to this affidavit.The facts I depose to are, to the best of my knowledge and belief, true and correct….,.”

Under paragraph 1 of its declaration, the plaintiff went on to describe itself as follows:-

“1. The plaintiff is a company duly incorporated in terms of the laws of the Republic operating and carrying on business from the 6^th Floor, Hungwe House, Suit 605, Jason Moyo Avenue, Harare, but for whose address for service for purpose of these proceedings is care of its undersigned Legal Practitioners, Messrs Scanlen & Holderness, 13^th Floor, 74 Jason Moyo Avenue, Harare.”

The above description was incorrect because the plaintiff is not a body corporate.

Upon filing an appearance to defend, the defendant proceeded to file a special plea indicating that, because of the above description of the plaintiff, the summons was a nullity…,.

Since the special plea is based on the validity of the summons, I shall not, at this stage, go into the details of the parties' claims.

In its special plea filed on 14 November 2011, the defendant averred that the summons and declaration are invalid because:- 

“i. Gloar Design Team – as pleaded in the heading and thus citation of the parties – is a juristic non-entity. Significantly, the legitimately expected suffix after 'Gloar Design Team' of “(Pvt) Limited or Limited” is absent. The entity cited and pleaded by Plaintiff is a non-entity incapable of suing or being sued in its own name.

ii. The further averment in paragraph 1 of the Plaintiff's declaration that “Plaintiff is a company duly incorporated in terms of the laws of the Republic operating and carrying on business” is incorrect and denied. There is no private limited or publicly listed company by that name registered in Zimbabwe under the Companies Act. The Plaintiff accordingly has no locus standi and is in want of juristic personality. Plaintiff's claim is fatally defective.

WHEREFORE, Defendant prays that Plaintiff's claim be dismissed with costs of suit on a legal practitioner and client scale.”

In its replication, filed on 25 November 2011, the plaintiff responded to the special plea in the following terms:

“Having regard to provision of Rule 8C of the High Court Rules RGN 1047/71 regarding proceedings against persons under their trading name, the citation of the Plaintiff by its trading name is not fatal to the proceedings and hence the special plea must fail.”

The above response from the plaintiff was, in my view, correct in law.

At the commencement of the trial, the plaintiff, as a way of dealing with the special plea, applied to amend paragraph 1 of its declaration to read as follows:-

“1. The plaintiff is a registered Architect by the name of Owen Chikuhuhu trading as Gloar Design Team whose address for service for the purposes of these proceedings is care of his undersigned legal practitioners, Messrs Scalen & Holderness, 13^th Floor, CABS Centre, Harare.”

The application to amend the declaration was strongly opposed.

Counsel for the plaintiff submitted that the amendment was necessitated by the need to properly describe the plaintiff. He said there was no intention to substitute the plaintiff. He said the architect trading under the name 'Gloar Design Team' was Owen Chikuhuhu and that Rule 8C of the High Court Rules 1971, allowed for the said Owen Chikuhuhu to issue summons in his business name.

Indeed, Order 2A of the High Court Rules 1971 which was promulgamated under Statutory Instrument 192 of 1997, came into force on 1 October 1997. Rules 8A, 8B and 8C thereunder provide, 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 this 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.

8B. Declaration of persons to be associates

(1) Where proceedings have been instituted by or against an association in terms of this Order, the court or a judge may, on court application made by any party to the proceedings either before or after judgement, declare any person to be an associate of the association.

(2) Upon a declaration being made in terms of subrule (1), the proceedings shall continue in the same manner, and the same consequences shall follow, as if the person who is the subject of the declaration had been named in the summons or notice commencing the proceedings.

8C. Proceedings by or against persons under their trade name 

Subject to this Order, a person carrying on business in a name or style other than his own name may sue or be sued in that name or style as if it were the name of an association, and Rules 8A and 8B shall apply, mutatis mutandis, to any such proceedings.”

Clearly, Rule 8C equates a business name to an association.

However, notwithstanding Rule 8C above, counsel for the defendant persisted that there was no valid summons before the court. He said the court could not be asked to amend a nullity.

In the main, counsel for the defendant relied on Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Ltd 1996 (2) ZLR 565 (S) and J.D Magro-Consult & Marketing (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H).

In Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Ltd 1996 (2) ZLR 565 (S), the Supreme Court stated the following:-

“But the crucial distinguishing feature is that the institution of the action in the name of Stewart Scott Kennedy was void ab initio. Without a plaintiff there can be no claim. A document which purports to be a summons requiring the defendant to comply with a claim of a non-existent person is null and void as far as the institution of the claim is concerned. The plaintiff is the one who issues the challenge to litigation (see Voet 5.1.9) and must be a persona. If authority is needed for such an axiomatic statement it is to be found in Kelly v Petersen 1948 (4) SA 958 (A).”

The above is a correct exposition of the law prior to 1 October 1997 when Rule 8C was introduced into our High Court Rules 1971.

In reading J.D Magro-Consult & Marketing (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H), I did not find any reference to Rule 8C - which was already in force. I noted, however, that there was, in that case, reliance on Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Ltd 1996 (2) ZLR 565 (S) - a case which was decided before Rule 8C came into force.

As submitted by the plaintiff's counsel, Rule 8C was relied upon in the decision in The Sheriff of the High Court v Antony William Mackingtosh and 2 Ors HH330-13. In that case, MATHONSI J said:-

“It is a celebrated principle of company law that a company, once incorporated, becomes a fictious person. That is the whole essence of the legal persona principle of our law. To that extent, therefore, the use of the word “person” in Rule 8C should, of necessity include an incorporation. In my view, an incorporation which carries on business in a name or style can be sued in that name or style.”

As already stated, the Rule actually elevates the business/trade name to an association.

Apart from being guided by the fact that in terms of our law, as from 1 October 1997, a party or “person carrying on business in a name or style other than his own name may sue or be sued in that name or style as if it were an association,” I readily associate myself with the above enunciation of our current law on the issue before me.

On 7 October 2011, Owen Chikuhuhu, referred to in the proposed amendment, decided to sue under his business name, Gloar Design Team, as permitted by Rule 8C. It cannot therefore be argued that as at that date there was no plaintiff. The question of a nullity, in my view, is thrown away by Rule 8C. That being the case, there is a summons and declaration that the plaintiff can amend. The issue of substitution does not arise, and, therefore, the defendant is estopped from arguing prescription.

There has always been a plaintiff….,.

It is also important to note that Rule 8C must be read together with Rules 8A and 8B. Accepting that Rule 8C treats a business name as an association, I believe that the plaintiff can legitimately bring this application under Rule 8B(1) which provided as follows:-

“Where proceedings have been instituted by or against an association in terms of this Order, the court or a judge may, on court application made by any party to the proceedings either before or after judgement, declare any person to be an associate of the association.” …,.

In casu, the plaintiff seeks to declare that Owen Chikuhuhu is the person behind the trading name “Gloar Design Team.”

The applicant wants to amend paragraph 1 of the declaration in order to properly describe itself. There is no substitution at all because the plaintiff remains as was when summons was issued. In fact, were it not for the incorrect description of the plaintiff in paragraph 1 of the declaration, there would, in my opinion, have been no need for the proposed amendment. I believe all what the plaintiff is saying is:-

“Whilst I should have cited myself as Owen Chikuhuhu trading as Gloar Design Team, I want it to be clearly known that I am the person trading under that name i.e Gloar Design Team.”

The law allows him to do that by way of an application as he has done (i.e. Rule 8B(1) above)….,.

I also want to believe the incorrect description of the plaintiff was made in error.

Indeed, at the end of it all, I am asking myself why I have had to write all this when Rule 8C is clear and unambigious. That Rule requires no super legal interpretation. It simply says a person can, with effect from 1 October 1997, sue and be sued under the business or trade name he or she operates. There has to be evidence of the existence of a person and the business name under which the person operates. That is why Rules 8A(1) and 8B(1) apply.

In casu, the amendment is being sought under Rule 8B(1) in order to make the correct declaration of the person who trades under “Gloar Design Team” so as for the court to determine the real issues of dispute between the parties.

The amendment, in my view, does not prejudice the defendant, who has, in any case, already pleaded to the summons.

The application to amend the declaration should succeed, and, that being the case, the special plea cannot be upheld. Our law allows the procedure adopted by the plaintiff. The trial should proceed on the basis of the pleadings already filed.

I therefore order as follows:-

1. The defendant's special plea is dismissed.

2. The plaintiff be and is hereby granted permission to amend paragraph 1 of its declaration so that it reads as follows:-

“1. The plaintiff is a registered Architect by the name of Owen Chikuhuhu trading as Gloar Design Team whose address for service for the purposes of these proceedings is care of his undersigned legal practitioners, Messrs Scalen & Holderness, 13^th Floor, CABS Centre, Harare;”…,.

The respondent raised a point in limine to the effect that the respondent company is “Star Lotto Zimbabwe (Pvt) Ltd” and not “Star Lotto (Pvt) Ltd” as originally cited by the applicant in this application. 

The respondent contends that there is no respondent before this court hence the application should be dismissed….,.

Of concern, however, in this regard, is that the respondent, in its agreement with the applicant, dated 21 August 2013, and Annexed as “B” to the applicant's papers, referred to itself as Star Lotto (Pvt) Ltd. On the page where a Michael Horwitz signed on behalf of the respondent, the respondent's name is also given as Star Lotto (Pvt) Ltd just above Michael Horwitz's signature. The respondent entered into an agreement for non-disclosure with the applicant, pursuant to the winning of the prize by the applicant and presented themselves in that agreement as Star Lotto (Pvt) Ltd. Following non-payment and numerous efforts to pursue the payment, the applicant then sought to compel payment from the respondent through this application and he cited the respondent in the same manner that the respondent had called themselves in the Non-Disclosure Agreement. 

The applicant, after learning of the mis-description of the respondent, filed an amendment prior to the hearing of this matter….,.

I am persuaded by GOWORA J's findings in Old Mutual Asset Management (Pvt) Ltd v F & R Travel Tours and Car Sales HH53-07 wherein she stated thus:-

“It is trite that an amendment, even where it is intended to substitute a party, will be granted unless the application to amend is mala fide or would cause prejudice to the other side which cannot be cured by costs.”

I am further persuaded by the South African case of Four Towers Investments (Pt)y Ltd v Andre's Motors 2005 (3) SA 39 (NPD). In that case, a full bench on appeal held that:

“An application for amendment will always be allowed unless it is mala fide or would cause prejudice to the other party which cannot be compensated for by an order for costs or by some other suitable order such as a postponement.”

South African cases on this point stipulate that where the misdescription of a party consists of using the wrong name for the party concerned, an amendment is permissible since this is not tantamount to a substitution of that party, and, in effect, the right party is brought to court but such a party is not properly described or named in the proceedings. Refer to the case of Four Tower Investments (Pty) Ltd v Andre's Motors 2005 (3) SA 39 (NPD), and, in addition the case of Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) 1994 (2) SA 363…, per INNES J wherein the learned judge stated as follows:-

“The general rule is that an amendment of a notice of motion, as in the case of a summons or pleading in an action, will always be allowed unless the application to amend is mala fide or unless the amendment would cause prejudice to the other side which cannot be compensated by an order for costs, or, in other words, unless the parties cannot be put back for the purposes of justice in the same position as they were when the notice of motion which it is sought to amend was filed…,. A material amendment such as the alteration or correction of the name of the applicant, or the substitution of a new applicant, should, in my view, usually be granted subject to the considerations mentioned of prejudice to the respondent….,. The risk of prejudice will usually be less in the case where the correct applicant has been incorrectly named and the amendment is sought to correct the misnomer than in the case where it is sought to substitute a different applicant. The criterion in both cases, however, is prejudice which cannot be remedied by an order as to costs and there is no difference, in principle, between the two parties.”

In the case before me, clearly the right party was brought to court with a wrong description by the omission of “Zimbabwe” in its name. In fact, the respondent itself entered into an agreement prior to the institution of this application and omitted the word “Zimbabwe” from its own name. I am of the view that the applicant's bid to amend its papers and correctly describe the respondent is not mala fide at all, as, in fact, the respondent contributed to the situation that the applicant now finds himself in. Again, there cannot be any prejudice at all since the correct party has been brought to court. On the basis of the cases I have alluded, to I am not of the view that the proceedings before me are a nullity for want of the respondent's proper description.

In respect of the improper citation, my view is that it was cured by the amendment in accordance with Rule 87(1) and (2)(b) of this Court's rules. The effect of the amendment is to join the first respondent in his official capacity as the fourth respondent and ZEXCOM (Pvt) Ltd becomes the fifth respondent.

Linked to this ground is a related ground raised rather belatedly by counsel for the first, fourth and fifth respondents, namely, that the applicant has cited a non-existing party in that there is no legal entity called ZEXCOM (Pvt) Ltd but ZEXCOM Foundation Investment Fund (Pvt) Ltd. It was further submitted that the fourth respondent was never appointed as a liquidator of ZEXCOM (Pvt) Ltd but of ZEXCOM Foundation Investment Fund (Pvt) Ltd. Also, it was submitted that the first respondent has since filed this as a supplementary ground in the Supreme Court.

For these reasons, it was submitted that these and earlier proceedings are null and void ab initio. Reliance was placed on the following cases:

(a) JDM AGRO Consultancy & Marketing (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H)…,.

(b) Garia Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H).

Finally it was argued, on the first respondent's behalf, that this supplementary ground of appeal strengthens his prospects of success on appeal.

This court was then urged not to “speculate” on what the Supreme Court might do on appeal. The court was referred to two authorities, namely;

J.G. Construction v Chadwick & Anor 2012 (1) ZLR 358 (H); and Maydale International Marketing (Pvt) Ltd v Dr Kelly & Anor HH04-10.

The applicant's response was that the first respondent did not raise this issue at all during the previous proceedings only to adopt it midstream after it was raised in a separate application for joinder by some shareholders. The first respondent knew of the correct citation since 2010 but has never objected to this mis-description. The first and fifth respondents did not suffer any prejudice as a result. In fact, the first respondent, in all his papers, including the appeal to the Supreme Court, has been referring to the fifth respondent as ZEXCOM (Pvt) Ltd and not ZEXCOM Foundation Investment (Pvt) Ltd. The applicant denied that this mis-description of the fifth respondent bolsters the first respondent's appeal in that the applicant can apply for an amendment in the Supreme Court, which amendment is likely to be allowed since it is not mala fide or prejudicial to the other side.

In my view, the authorities support this position – see for example GOWORA J's sentiments in Old Mutual Asset Management (Pvt) Ltd v F & R Travel Tours & Car Sales HH53-07 wherein she stated:

“It is trite that an amendment, even where it is intended to substitute a party, will be granted unless the application to amend is mala fide or would cause prejudice to the other side which cannot be cured by costs.”…,.

In Devonia Shipping Ltd v M V Luis (Yeoman Shipping Co. Ltd Intervening) 1994 (2) SA 363…, it was stated that:

“The general rule is that an amendment of a notice of motion, as in the case of a summon or pleading in an action, will always be allowed unless the application to amend is mala fide or unless the amendment would cause prejudice to the other side which cannot be compensated by order for costs, or in other words, unless the parties cannot be put back for the purposes of justice in the same position as they were when the notice of motion which it is sought to amend was filed…,. The risk of prejudice will usually be less in the case where the correct applicant has been incorrectly named and the amendment is sought to correct the misnomer than in the case where it is sought to substitute a different applicant. The criterion in both cases, however, is prejudice which cannot be remedied by an order as to costs and there is no difference in principle between the two parties.”…,.

In casu, there can be no question of prejudice because the correct parties were brought before me. For these reasons, I am not persuaded that the proceedings before me are a nullity for want of the fifth respondent's proper description. 

On the first issue, I am of the view that the court a quo improperly relied on Rule 8C of the High Court Rules for its decision that the appellant, as cited, had the requisite locus standi.

Rule 8C provides as follows:

“Subject to this Order, a person carrying on the business in a name or style other than his own name may sue or be sued in that name or style as if it were the name of an association, and Rules 8A and 8B shall apply, mutatis mutandis, to any such proceedings.”

It is evident from a reading of this Rrule that it applies only to associations and not corporate bodies.

In its responding affidavit in the court a quo, the appellant referred to itself as “Harambe Holdings (Private) Limited” trading as “Superbake Bakeries (Pvt) Ltd.” This was a bald statement which was not in any way substantiated, an aspect that appears to have escaped the attention of the court a quo. I am of the view, however, that since the appellant itself appeared to accept that it was a separate legal entity, there is nothing on the papers to suggest that the appellant is not such a body, capable of suing and being sued. 

The need for the proper citation of parties is highlighted in, CILLIERS A.C. et al in HERBSTEIN & VAN WINSEN's The Civil Practice of the High Courts of South Africa, 5^th ed, vol.1…, as follows:

“Before one cites a party in a summons or in application proceedings, it is important to consider whether the party has locus standi to sue or be sued (legitima persona standi in judicio) and to asceratain what the correct citation of the party is.”…,.

Expounding on the same theme, the writer, PETER VAN BLERK, in Legal Drafting: Civil Proceedings, Juta and Company Ltd, 2014, remarks:

“Generally speaking, it is the practitioner representing the plaintiff who is required to take the initiative in identifying parties to the action. This function must also receive the consideration of the defendant's legal practitioner. It happens from time to time that, to use the colloquial expression, the plaintiff has sued the 'wrong party' or even, although less frequently, that the 'wrong plaintiff' has sued. A practitioner faced with one or the other of these situations must identify precisely what has occurred. In the case of the so-called 'wrong defendant', the first question to be asked is on whom the summons was served. Is it the party cited in the summons? If so, the second question is whether the cause of action relied upon by the plaintiff is one that lies against the defendant cited by the plaintiff. If the party served with the summons is correctly described (ignoring spelling errors or minor immaterial mistakes), then one should admit the allegations concerning the identity of the defendant and deny the appropriate allegations regarding the cause of action. If the description of the defendant clearly does not apply to the person on whom the summons is served, the person served has, technically speaking, no duty to oppose the proceedings.”…,.

The present matter before the court is one where the description of the respondent does not apply to the person on whom process was served, and, therefore, technically speaking, on whom no duty to defend the proceedings arises, but for the obvious compromise of the first respondent's interests as already noted in the terms of the draft order sought and the consequent entitlement to intervene.

As for the legal consequences of wrong citations, understandably very few situations of 'wrong defendants/respondents' or 'wrong plaintiffs/applicants' have had to be decided in our jurisdiction, as such errors, I believe, are routinely rectified in consultation between the parties. See also, for comparison, PATERSON TJM, Eckard's Principles of Civil Procedure, Juta and Company Ltd, 2005, 5^th ed (2012)…, where it is stated:

“In the event of these pleas (non-joinder and mis-joinder) being successful, the court will order a stay in the proceedings so that the pleadings can be amended so as to bring the proper parties before the court.”

The case of CT Bolts (Pvt) Ltd v Workers Committee SC-6/12 involved a 'wrong respondent' and it was held that a 'workers committee' “not being a legal persona, is not properly before this court. The proceedings before the Labour Court and prior to that, the arbitrator, were similarly void.”

Again, a wrong party, this time an applicant, sued in Gweru Water Workers Committee v City of Gweru SC25-15 and MALABA DCJ remarked as follows:

“The appellant claimed on behalf of the employees. A worker's committee can only represent the interests of the employees who appointed or elected it at the workplace. It cannot substitute itself for the employees and claim their rights in litigation. The right to sue accrues to the employees, and the employees, in their individual capacities, can enforce the rights. The employees would be claiming rights under contracts of employment with their employer. A universitas personarum would not have a right to sue for those rights when it is not privy to any of the contracts of employment. Representation in terms of section 24(1) of the (Labour) Act does not mean that a person or body would have the right to substitute itself in place of the employees as a party to proceedings.”

Thus, the fate of an application where a wrong party is cited is clear. The proceedings cannot be sustained.

In casu, the wrong citation was compounded by the appellant's stubborn refusal to rectify the error - even when assured by the other side that such an application would not be opposed. This application should therefore suffer not only the general fate consequent upon such errors, but also an exemplary order of costs wrought by the appellant's unhelpful attitude. The other matters raised in the appeal necessarily fall away in the light of this conclusion.

Accordingly, the appeal not being properly before this court, it is hereby ordered as follows:

Finally, counsel for the respondents submitted that the second respondent should not have been cited as a party as it is not a persona but a geographical area….,.

3. Wrong citation of the 2nd Respondent

It was also submitted on behalf of the respondents that the second respondent should not have been cited as a party to the proceedings as it is not a legal persona but a geographical area. This position was set out clearly in the Supreme Court Judgment…, where the court held as follows:

“In so far as the legal status of the Diocese of Harare is concerned, the conclusion by the learned judge that it is not a legal entity that can be withdrawn from the Province is undoubtedly correct. The holding is in accordance with the principle derived from the ancient laws and usages of the Catholic Church that Dioceses should be associated in Provinces. The preamble to the Constitution confirms that the Church was formed on the basis of the principle that a Diocese is an administrative area or legal division of a Province under the episcopical jurisdiction of the Bishop. The word Diocese is derived from a Greek term meaning administration….,.”

The applicant's legal practitioner correctly conceded that the second respondent should not have been cited. Indeed, it would have been difficult for him to argue otherwise in view of the detailed judgment dealing with the point.

In my view, therefore, the points in limine which were raised by the respondents were proper and warranted the dismissal of the applicant's application without proceeding to deal with the merits….,.

Before I conclude, I am constrained to deal with a matter which arose from this application concerning the citation of parties.

The second respondent in this matter has been referred to as Jacob Mafusire and Others. There is no such party known as 'Jacob Mafusire and Others.'

It is a basic principle of law that before a litigant embarks on instituting legal action, he should ascertain the correct citation of the party being sued to enable the appropriate party to respond accordingly. We are left to speculate, in this matter, who the “others” refers to. If Jacob Mafusire is representing the interests of other former employees of the applicant this does not come out of the papers filed.

Further, the fifth respondent is referred to as 'Trevor & Talent'. It transpired that Trevor Dube and Talent Dube are husband and wife. They confirmed that they purchased one of the properties as husband and wife.

Rule 8A of the High Court Rules allows a party to be cited by its trading name.

The second respondent opposed the application on the basis that he is incorrectly cited.

He averred that the Constitution creates the office of the Speaker of the National Assembly and not the “Speaker of Parliament.” On this ground, the second respondent contended that the applicants were non-suited.

The second respondent also raised a point relating to the non-joinder of the Minister of Justice, Legal and Parliamentary Affairs, the President of the Senate and the Minister of Finance and Economic Development.

He alleged that the Minister of Justice, Legal and Parliamentary Affairs should have been cited as a party because he is the one who administers the Political Parties (Finance) Act [Chapter 2:11]. The second respondent also contended that the Minister of Finance and Economic Development was a necessary party for the reason that he administers the Treasury from which the claimed US$420,000= would be paid. With regards to the non-joinder of the President of the Senate, the second respondent contends that both the National Assembly and the Senate make laws and the law-making function is not restricted to the National Assembly.

On 16 January 2013, the applicant issued summons in which it cited the defendant as “Hwange Colliery Company”, for payment of $59,590=13 plus interest at the prescribed rate and collection commission being the purchase price of safety shoes allegedly supplied at the instance of that entity.

The face of the summons is defective in that it does not comply with Rule 11(c) of the High Court of Zimbabwe Rules, 1971 as it does not contain a general statement of the nature of the claim and the relief or remedy sought in the action.

But then, the failure to comply with Rule 11(c) is not the main subject of the present inquiry, the respondent not having excepted to the summons by reason of that defect.

To the summons was attached what the applicant termed “particulars of claim” as opposed to a declaration.

The applicant must have realised early that its summons had defects not only in that the particulars of claim attached to the summons should have been headed “declaration” but also that the name of the defendant was incomplete. The proper citation of the defendant should be “Hwange Colliery Company Limited.” The word “Limited” was omitted.

It then sought the indulgence of the respondent to amend the pleadings to address those anomalies but the respondent refused to consent to such amendment. The applicant has been forced to make this application for an amendment to add the word “Limited” in the name of the defendant, to substitute “declaration” for “particulars of claim”, to add a few averments to paragraph 3 of the declaration and effectively to substitute the figure of $67,931=14 in respect of the value of the goods sold to the respondent.

The application is opposed by the respondent on the grounds that the party cited in the summons, “Hwange Colliery Company”, does not exist, and, as the applicant has sued a non-existent party the summons does not have a defendant and is therefore a complete nullity. The summons is also a nullity, it is argued, because it does not contain a true and concise statement of the claim in breach of Rule 11(c) of the court Rules. Finally, the respondent took the view that the amendment sought is prejudicial to it in that it “substantially changes the complexion of the case which it is to meet.”

The evidence that has been placed before me shows that by a certificate of change of name, Form C2, dated 8 November 2004 the name Wankie Colliery Company Limited was changed, following a special resolution, to Hwange Colliery Company Limited. Therefore, the true name of the respondent is Hwange Colliery Company Limited. As I have already said, in citing the defendant in the summons the applicant omitted only the appellation “Limited” and it now seeks to have it added.

In advancing the argument that the summons does not have a defendant and is therefore a nullity which cannot be saved by an amendment, counsel for the respondent relied on the authority of JDM Agro–Consult & Marketing (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H)…, in which GOWORA J…, remarked that:

“It is pertinent to state from the outset that the application to amend the summons by altering the name of the second defendant, which was granted at the pre-trial conference, was without effect. The party named as the second defendant did not exist at the time that the summons was issued and served. The correct appellation is Zimbabwe Newspapers (1980) Ltd. That is a registered company duly incorporated under the laws of this country. It's coming into being is due to the process by which it was incorporated as such. It is then, after incorporation, that it becomes a juristic person, capable of suing and being sued in its own right.

Without that process it is non-existent.

The entity sued by the plaintiff as the second defendant is The Herald Newspaper. It is not a registered company and does not exist in any other form. Consequently, the plaintiff issued summons against a non-existent being. The amendment to the second defendant's name therefore was of no force and effect as the summons itself was a nullity. In Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) this court stated:

'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 in the summons as being those of the defendant, the summons is null and void ab initio.'

The learned judge went on to pronounce, at 75G; 76A that:

“It matters not, in my view, that the two defendants entered appearance to defend and proceeded to file a plea. The process of filing pleadings under those names would not have imbued the summons with any form of legality. There was no summons for them to plead to given that there were no persons answering to the names on the summons. They cannot be identified as such.

This is not a mis-description which can be amended by alteration of the names on the summons, nor is it a substitution. One cannot amend or substitute something which does not exist.”…,.

I must say that in that case, the plaintiff had cited the first defendant as 'The Editor, The Herald' and the second defendant as 'The Herald'. Both did not exist because, as the court correctly concluded the editor of a newspaper is an occupation which may be occupied by an individual at any one time, which occupant changes from time to time. The citation was irregular. The plaintiff should have cited the name of that editor. As for the second defendant, 'The Herald Newspaper', it was a non-existent entity because the correct defendant was the Zimbabwe Newspapers (1980) Limited, which is the company responsible for the publication and circulation of the newspaper known as the Herald. There was therefore no way of saving that summons.

I should also relate to the case of Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) which was relied upon by GOWORA J…, in JDM Agro–Consult & Marketing (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H).

In that case, the applicant had obtained judgment against a non-existent company. The respondent, who had signed, the Deed of Surety accepted personal liability. The applicant sought an order to amend the judgment by substituting the respondent for the non-existent company but the respondent did not consent to the substitution. MALABA J…, stated:

“The plaintiff is, of course, entitled to choose the person against whom to proceed and leave out any person against whom it does not desire to proceed. 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 in the summons as being those of the defendant, the summons is null and void ab initio.”

He went on at 253 C–D:

“In this case, the person against whom the plaintiff thought it was proceeding as a defendant was non-existent at the time summons was issued. The proceedings and judgment that followed the summons were null and void. To try an action in which there is only one party is an exercise in futility. There were no two parties to give rise to the existence of a cause of action between them. There was nothing to be substituted as a new judgment debtor. There was no old judgment debtor.”

See also Old Mutual Asset Management (Pvt) Ltd v F & R Travel Tours & Car Sales HH53-07 (unreported).

Those cases are clearly distinguishable from the present case and reliance on them is completely misplaced. In both cases, there was no defendant at all and the court correctly found that no amendment could be made to a non-existent summons given that a summons is only valid if it has a defendant to answer to it.

In the present case, it cannot be said, by any stretch of the imagination, that the defendant does not exist because there is an entity answering to that name. The only omission was the word “Limited” which is an expression speaking to its limited liability status than anything. The amendment sought relates to completeness of the name as opposed to introducing a new persona to a summons originally without a defendant.

Counsel for the respondent referred me to an authority which is not favourable to his case and I commend him for that. It is the case of Masuku v Delta Beverages HB172-12 in which CHEDA J quoted with approval the remarks of WESSELS J in Van Vuuren v Braun and Summers 1910 TPD 950…, that:

“Now, in order to bring a defendant legally into court a summons is required. In order that the summons may be valid it must comply with the requirements of Rule 6. It must purport to be a summons, a mere request or letter to the effect that the defendant is kindly requested to appear in court on a certain day is an invalid citation. Next, the summons must specify the defendant. It is true that it will not be described as accurately as he should be. If a man is baptized 'George Smith' it is no defect to call him 'John Smith' because the individual is pointed out with sufficient accuracy. But if there were no mention of the defendant at all the summons would be a wholly worthless document and could not be amended by inverting the defendant's name in court.”

CHEDA J went on to conclude that:

“In casu, the entity against whom applicant has sued is said to be non-existent. The argument is grounded on the fact that the citation omitted the full description of the respondent. The crucial question that [irresistibly] begs an answer is, to what extent does the omission affect the identification of the respondent?

Respondent is a well-known blue chip company whose fleet of cars are all over our national and domestic roads and its commercial advertisements need no introduction. In other words, Delta Beverages is known here and beyond. To me, applicant may have technically erred in her description but has described respondent with sufficient clarity to an extent of eliminating any mistake either legal or factual of respondents identity. Applicant sufficiently described respondent.”

In that matter, the respondent had been cited as Delta Beverages instead of Delta Beverages (Pvt) Ltd - its registered name. That defective description was upheld.

I am also mindful of the fact that in terms of Rule 8C of the High Court of Zimbabwe Rules, 1971 a person carrying on business in a name or style may sue or be sued in that name or style as if it were the name of an association. So the sin of omitting the appellation “Limited” in the citation pales in that regard.

In my view, the applicant is entitled to make the amendment in order to correctly and completely cite the respondent….,.

1. The citation of the defendant is hereby amended to read Hwange Colliery Company Limited.

2….,.

3. Paragraph 2 of the declaration to read Hwange Colliery Company Limited where the name Hwange Colliery Company appears.

In terms of Order 2A Rule 8 of the Rules of this Court, associates may sue or be sued in the name of their association. In terms of Rule 7, “association” includes a Trust. “Associate”, in relation to a Trust, means a trustee.

The fifth respondent…, proceeded to register the same estate of the deceased in the Magistrates Court under DRH1009/14….,.

What is apparent is that the matter ended up before a Magistrate, B. Pabwe, on 1 October 2014. The parties in that matter are stated as “Estate Late” being the applicant and “Lovemore Chipunza Sekeramayi” as the respondent.

It is difficult to understand how the matter ended up before the Magistrate. More seriously, the parties stated are non-existent. The applicant is not a legal persona while the stated respondent was deceased.

Such proceedings could only be a legal nullity because there were no persons involved. The matter was between non-existent persons.

The first respondent in the matter is cited just as “BEAUTY” and described as a waiter employed by the second respondent. The second respondent is cited as “GAME DOLLAR” or “GAME DOLLAR RESTAURANT”. The applicant believes the second respondent is a body corporate described as a registered company.

This was an opposed court application that I heard on 16 September 2013. Soon after argument I issued the following order:

“1. The Respondent's objections in limine are dismissed.

2. The Applicant's application to delete “(Private)” in the name of the Respondent [and] in its place to substitute “(Zimbabwe)” is granted.

3. It is hereby declared that the Applicant is entitled to purchase [the] motor vehicle, namely, a Mazda Familia Registration number AAM 7769 at 10% of its market value.

4. The Respondent is directed to cause an evaluation of the said motor vehicle to establish its open market value and to sell to the Applicant the vehicle at 10% of the market value so established.

5. The Respondent shall pay the costs of suit.”...,.

In this matter the applicant sought an order declaring, in the main, that she was entitled to purchase a certain Mazda Familia motor vehicle, registration no. AAM 7769 (hereafter referred to as “the motor vehicle” or “the vehicle”), at 10% of the market value. The facts were largely common cause. They were these;

The applicant had just resigned from employment with the respondent after five years. The motor vehicle had been a company car issued to her in terms of the respondent's motor vehicle policy. She applied to buy it. Initially, the sole dispute was whether the applicant was entitled to buy the vehicle at 10% of the market value as she contended, or at the market value, less 10%, as the respondent contended. The applicant based her claim on a document that she said was the relevant motor vehicle policy that governed her employment.

The respondent based its contention on another document that it said was the amended policy that had been introduced during the applicant's tenure of employment and which, allegedly, had replaced the applicant's document.

With time, the dispute escalated to include the argument that the sale of any company vehicle to incumbent holders was at the discretion of the respondent as the employer and owner of such vehicles and that in the applicant's case, the respondent had decided against selling. It was also argued that when initially the respondent had communicated its offer to her the applicant had purported to accept something else which had not been in the respondent's offer....,.

The respondent's second point in limine was that the applicant had sued a non-existent entity.

It said its correct name was “P.G. Industries (Zimbabwe) Limited” and not “P.G. Industries (Private) Limited” as on the applicant's citation.

The applicant reacted by applying to remove “(Private)” wherever it appeared on the respondent's name, and to substitute it with “(Zimbabwe)”.

The respondent raised the issue of the alleged non existent entity in the notice of opposition.

That prompted the applicant, in the answering affidavit, to give notice of intention to apply for an amendment. The respondent then went on to devote some ten or so paragraphs in its heads of argument, and further, some appreciable time during oral submissions, arguing that the applicant's claim should be dismissed on account of the alleged mis-spelling – but, on no occasion was it mentioned how such an amendment would prejudice the respondent.

In terms of Order 20 Rule 132 the court or a judge may, at any stage of the proceedings, allow a party to alter or amend its pleadings. The alteration should be on such terms as may be just and for the purpose of determining the real question in controversy between the parties. The Rule is worded as follows:

“132. Court may allow amendment of pleading

Subject to Rules 134 and 151, failing consent by all parties, the court or a judge may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.”

The general rule is that an amendment of a pleading will always be allowed unless the application is mala fide or the amendment will cause an injustice or prejudice to the other party which may not be compensated by an order of costs; Commercial Union Assurance Co Ltd v Waymark NO 1995 (2) SA 73 and UDC Ltd v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210 (H).

In Old Mutual Asset Management (Pvt) Limited v F & R Travel Tours and Car Sales HH53-07 the plaintiff was cited as “Old Mutual Asset Management (Pvt) Limited”. In the declaration it was described as “Old Mutual Properties (Pvt) Limited”. The plaintiff moved to amend its name as cited in the declaration, by the deletion of “Properties” and the substitution thereof with “Asset Management”.

Citing Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Limited 1996 (2) ZLR 565, GOWORA J…, first noted, inter alia, that a declaration, where it differs from the summons, automatically amends the summons to the extent of that difference. She then dismissed the application on the basis that in that case it was not just a question of the mis-spelling of the plaintiff's name but that the pleading commencing action was null and void because the purported plaintiff was non-existent. However, in passing, the learned judge had noted as follows…,:

“It is trite that an amendment, even where it is intended to substitute a party, will be granted unless the application to amend is mala fide or would cause prejudice to the other side which cannot be cured by costs.”

I agree with such an approach.

The situation in both Old Mutual Asset Management (Pvt) Limited v F & R Travel Tours and Car Sales HH53-07 and Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Limited 1996 (2) ZLR 565 was materially different from that in the present case. In those cases there was, in law, no process before the court, a non-existent entity having purported to bring the proceedings. In casu, it was not the plaintiff who was said to be nonexistent. It was the respondent. There was proper process before me. But the respondent's name had been mis-spelt. The mis-spelling was, in my view, something rather innocuous.

In the founding affidavit, the applicant had described the respondent as “P. G. Industries '(Pvt)' Ltd, a company duly incorporated in terms of the laws of the Republic…, whose address of service for purposes of these legal proceedings is care of their legal practitioners of record Messrs Mawere & Sibanda…,.”

In the notice of opposition, the respondent, duly represented by its legal practitioners of record, Mawere and Sibanda, first claimed that there was no legal entity called P.G. Industries (Private) Limited, and then went on to name and describe itself as “P. G. Industries '(Zimbabwe)' Limited, a company duly registered in terms of the laws of Zimbabwe which (sic) capacity to sue and be (sic) sued in its own name.”…,.

The respondent was a juristic person. The two words “Private” and “Zimbabwe” are merely descriptive. A company with “Private” as part of its name denotes that it is a private company with certain restrictions on some of its rights. For example, in terms of section 33 of the Companies Act [Chapter 24:03] the right to transfer shares, the right to have members that are less than two or more than fifty, the right to invite members of the public to subscribe for shares or debentures, etc. are all restricted in respect of private companies. On the other hand, a company with “Zimbabwe” as part of its name, and without “Private”, may suggest that it is a public company listed on the local stock exchange.

In the case of the respondent, the words “Private” or “Zimbabwe” were not, in my view, an intrinsic part of the name. They were not the root. The root, in my view, was “P. G. Industries”. That is why the substitution of the one word with the other would not in the least cause any prejudice - and the respondent never said that its objection was based on any perceived prejudice.

I therefore dismissed that point in limine too.