Citation and Joinder re: Legal Status of Litigants, Name Descriptions, Trade Names and the Principle of Legal Persona

SC01-X : CITY OF HARARE vs CINAMON
Ruled By: MCNALLY JA, MANYARARA JA and KORSAH JA

It is of the utmost importance that parties to legal proceedings should be correctly and unambiguously cited.

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH
Ruled By: GOWORA J

At the outset, I sought the views of counsel regarding the identity of the parties before me. Both assured me that even though the Deed of Settlement was in the name of City Calvary Fellowship Trust, the respondent, whose name was cited on the papers, was one and the same person as the Trust.

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS
Ruled By: MUSAKWA J

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 ...

HH73-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and F MATAMBANADZO and J D NYAMUNDA and EIGHT OTHERS
Ruled By: MAKARAU JP

Regarding the eviction of the defendants sought by the plaintiff from the plaintiff's properties, it was averred that the properties occupied by the defendants were registered in the name of Diocese of Manicaland which is run by a Board of Trustees, and that failure to cite the Board of Trustees was fatal to the ...

HH102-10 : OLD MUTUAL LIFE ASSURANCE COMPANY ZIMBABWE (PVT) LTD vs PETER RAFTOPOLOUS t/a SELECTIONS
Ruled By: MTSHIYA J

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 ...

HH17-11 : GRACE MAHACHI vs SMALLHOLDER MICRO-IRRIGATION DEVELOPMENT SUPPORT PROGRAMME (C/O MINISTRY OF FINANCE)
Ruled By: MUTEMA J

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 ...

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.

Also common cause is the fact that the Smallholder Micro-Irrigation Development Support Programme was cited for the very first time only in the application for the registration of the arbitral award in this court. This escaped my eye for had I detected it I would not have granted the application for the registration of the award. What the applicant did in this respect connotes an element of misleading the court if it was done to circumvent the difficulty of executing against the Ministry of Finance's assets or property. It is a wonder that the applicant seemed not to be in the know as regards who her employer was.

HH17-11 : GRACE MAHACHI vs SMALLHOLDER MICRO-IRRIGATION DEVELOPMENT SUPPORT PROGRAMME (C/O MINISTRY OF FINANCE)
Ruled By: MUTEMA J

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 foregoing are the reasons for the order/judgment ...

HH21-11 : CHRIST EMBASSY ZIMBABWE vs CHIDZIVA INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA J

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 ...

HH58-13 : NATIONAL CONSTITUTIONAL ASSEMBLY and LOVEMORE MADHUKU vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O. and THE CHAIRPERSON / ACTING CHAIRPERSON OF THE ZIMBABWE ELECTION COMMISSION N.O.
Ruled By: CHIWESHE JP

The first applicant, a common law universitas, was formed in 1997. Its stated mission is to push for a new, democratic and people driven Constitution in Zimbabwe.

HH366-13 : MURENGA CHIKWAMBA vs MATIUS MUKUNGA and LAZARUS MUKUNGA and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND URBAN DEVELOPMEMNT and DISTRICT ADMINISTRATOR SHAMVA
Ruled By: MATHONSI J

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 ...

HH310-14 : DEPUTY SHERIFF, KAROI vs EDWARD CHIGANGO and 55 OTHERS and FRESH BAKERY, KAROI and DAVID GOVERE
Ruled By: TSANGA J

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 ...

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….,.”

The rest of his affidavit then details in that capacity why he says the property belongs to Noxon Investments (Pvt) Ltd. It was thus very clear to me at all times that Noxon Investments (Pvt) Ltd was being represented by David Govere and that he had been authorised to represent Noxon Investments (Pvt) Ltd. There was no reason not to grant the application to amend and not to proceed with the case as Noxon Investments (Pvt) Ltd already had filed papers stating their claim through their legal representative David Govere.

HH319-14 : GLOAR DESIGN TEAM vs ZIMBABWE NATIONAL ROAD AUTHORITY (ZINARA)
Ruled By: MTSHIYA J

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 6th Floor, Hungwe House, Suit 605, Jason Moyo Avenue, Harare, but for whose address for service for purpose ...

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

(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

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:-

HB38-14 : KUMBIRAI RUGUVA vs STAR LOTTO ZIMBABWE (PVT) LTD
Ruled By: MOYO J

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 ...

HB38-14 : KUMBIRAI RUGUVA vs STAR LOTTO ZIMBABWE (PVT) LTD
Ruled By: MOYO J

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 ...

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.

I accordingly allow the amendment for the aforegoing reasons.

HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD
Ruled By: TAKUVA J

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 ...

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:

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.

This point in limine, being without merit, is hereby dismissed.

Appealed
SC74-14 : SUPERBAKE BAKERIES (PRIVATE) LIMITED vs RUMTOWERS SECURITY (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, GARWE JA and GUVAVA JA

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 ...

SC37-16 : MARANGE RESOURCES (PVY) LTD vs CORE MINING & MINERALS PL (IN LIQUIDATION), MOSES CHINHENGO (RETIRED JUDGE) N.O., PRESIDENT, LAW SOCIETY OF ZIMBABWE N.O., ATTORNEY GENERAL OF ZIMBABWE N.O.
Ruled By: MALABA DCJ, HLATSWAYO JA and GUVAVA JA

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, 5th 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 ...

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:

1. The appeal is struck off the Roll.

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and THE DEPUTY SHERIFF CHIVHU N.O.
Ruled By: GUVAVA J

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 ...

HB87-16 : COLD STORAGE COMPANY LTD vs ADDITIONAL SHERIFF OF THE HIGH COURT – E.M. MAGARA N.O. and HOLLANDS REAL ESTATE and AHMED ESAT and TREVOR AND TALENT and REGISTRAR OF DEEDS
Ruled By: MAKONESE J

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 ...

HH470-14 : GUTA RAMWARI vs CHARLES WADUKA and TAPIWA ZINGWE and MARSHALL DHLIWAYO
Ruled By: MATHONSI J

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

CC03-18 : ZIMBABWE DEVELOPMENT PARTY and VOICE OF THE PEOPLE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SPEAKER OF PARLIAMENT and CHAIRPERSON – ZIMBABWE ELECTORAL COMMISSION
Ruled By: MALABA CJ

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 ...

HH791-15 : NUVERT TRADING (PRIVATE) LIMITED t/a TRIPLE TEE FOOTWEAR vs HWANGE COLLIERY COMPANY
Ruled By: MATHONSI J

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 ...

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.

HH92-11 : MHANYAMI FISHING AND TRANSPORT CO-OPERATIVE SOCIETY LIMITED and OTHERS vs THE DIRECTOR GENERAL PARKS AND WILDLIFE MANAGEMENT AUTHORITY N.O. and PARKS AND WILDLIFE MANAGEMENT AUTHORITY
Ruled By: MAKONI J

I agree with counsel for the first and second respondents that you do not correct a citation in an application by correctly citing the parties in subsequent papers.

HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

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.

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

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 ...

HMA13-18 : JONATHAN CHIKUKWA vs BEAUTY and GAME DOLLAR
Ruled By: MAWADZE J

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.

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

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 ...

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) Limited1996 (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) Limited1996 (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.

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS
Ruled By: MANGOTA J

The applicant represents workers in the sugar industry. It allegedly carries a membership of 16,000 workers. It is an affiliate of the Zimbabwe Federation of Trade Unions…,.The National Executive Committee is the applicant's governing body. The committee manages the affairs of the applicant. Its elected office bearers comprise:(a) The President;(b) ...

The applicant represents workers in the sugar industry. It allegedly carries a membership of 16,000 workers. It is an affiliate of the Zimbabwe Federation of Trade Unions…,.

The National Executive Committee is the applicant's governing body. The committee manages the affairs of the applicant. Its elected office bearers comprise:

(a) The President;

(b) The Vice-President;

(c) The Secretary-General; and

(d) Three other committee members.

In or about 24 February 2014, the deponent to the applicant's affidavit, one Simbarashe Nyemba, and members of his National Executive Committee, were removed from their positions and replaced by the fourth respondent and his team of committee members.

Mr Nyemba, and members of his committee, made an urgent chamber application to the court. The application was filed under case number HC1603/14. The court granted a provisional order to the applicant. It, in effect, directed that paragraphs 3, 4, 5 and 6 of the letter which the second respondent addressed to the seventh respondent on 24 February 2014 should not be executed until proceedings which pertained to case number HC1603/14 had been completed.

The court mentions, in passing, that the proceedings in question are still pending determination.

The present urgent chamber application was premised on the allegations that, on 14 February 2015, the first and second respondents visited Chiredzi in the company of persons who, it was claimed, were from the office of the fifth respondent. The visitors, the applicant averred, appointed the third and fourth respondents as members of the applicant's Executive Committee. The fourth respondent, it said, was appointed president of the applicant's governing body.

It, accordingly, made every effort to move the court to prohibit the fourth respondent and the latter's committee members from representing the applicant until case number HC1603/14 has been conclusively dealt with.

The applicant attached to its application Annexure D. The annexure is a letter which the fifth respondent (the Minister of Public Service) addressed to the applicant's secretary-general. The letter is erroneously dated 16 January 2014. It should have read 16 January 2015 which the applicant said was the correct date.

In the letter, the fifth respondent prohibited the applicant from deducting union dues from the seventh respondent (Tongaat Hullet Zimbabwe).

The fifth respondent stated that, from reports which had been submitted, she had reasonable cause to believe that the funds of members of the applicant were being abused and mis-appropriated. She said she would appoint an investigator who would look into the affairs of the applicant. She prohibited the applicant's national executive committee from using the funds for any purpose other than what the investigator or she herself would have directed.

The fifth respondent copied her letter to, among other authorities, the seventh respondent.

The applicant appealed to the Labour Court against the decision of the fifth respondent. It did so on 22 January 2015 under case number LC/MS/03/15.

The appeal is pending before the Labour Court.

The first, second, third and fourth respondents opposed the application and so did the seventh respondent. The fifth and sixth respondents did nothing about the application. They remained uncommitted to the matter notwithstanding the fact that they were served with the application.

The Sheriff's returns of service showed that both respondents were served on 19 February 2015. Their attitude to the application, therefore, remained unknown. It was, in the premise, assumed that they would abide by the decision of the court as they did not appear in person or through legal representation.

The first four respondents raised some preliminary issues after which they proceeded to deal with the substance of the application.

The seventh respondent adopted a pattern which, to all intents and purposes, was similar to that of the first, second, third and fourth respondents....,.

The seventh respondent stated, as one of its preliminary matters, that:

“3. The citation of the seventh respondent by applicant is defective as there exist at law no such entity as Tongaat Hullet Zimbabwe. The companies who could only have been cited by the applicant in this matter are Hippo Valley Estates Limited and Triangle (Private) Limited. This can be seen on p1 of the applicant's Constitution, being Annexure A herein. To lump up the two together is legally impossible as the former is a listed entity on the Zimbabwe Stock Exchange whilst the latter is a private limited company. To that extent, the applicant's case, if any, against the seventh respondent is therefore fatally defective in that regard.”…,.

The court took judicial notice of the fact that the seventh respondent was cited as such in case number HC1603/14.

The court was not privy to the arguments', if any, which were advanced towards the citation of the seventh respondent in the mentioned case. Whatever those arguments were, if such were ever raised, the court noted that the seventh respondent was cited in that case as such as it was cited in casu and it would, therefore, be treated as such in the present application.

That would be so the argument of the seventh respondent on that matter notwithstanding.

HH430-12 : ZIMSEC EMPLOYEES vs ZIMSEC
Ruled By: KUDYA J

This matter raises issues that have been canvassed in such cases as Benson Samudzimu v Dairibord Holdings (Pvt) Ltd HH204-10; Sibangilizwe Dhlodhlo v Deputy Sheriff of Marondera & Ors HH76-11; Ericson Mvududu v Agricultural and Development Authority HH286-11; and Gaylord Baudi v Kenmark Builders (Pvt) Ltd HH04-12.

In the present matter, the Works Council, consisting of management and workers committee members of the respondent met on 6 June 2011. Present as observers were also two representatives of the National Education Union of Zimbabwe. The Collective Bargaining Agreement reached was, inter alia, to pay a proportion of the money set aside for housing and car purchasing loans as housing allowance. This aspect of the agreement was not implemented.

The matter was referred to conciliation and arbitration in terms of section 93 the Labour Act [Chapter 28:01].

On 15 November 2011, an arbitrator appointed in terms of the Labour Act made an arbitral award directing the Works Council to convene, within 10 days of the order, and agree on appropriation of a proportion of US$420,000 Housing Loan Fund as housing allowance failing which they were to reset the matter before him for quantification.

In the arbitration proceedings, the present applicant was the claimant and the present respondent was the respondent.

The parties did not meet.

The respondent appealed the order while the applicant applied for quantification. The applicant set out a Statement of Claim amounting to US$397,381=80 duly divided amongst the applicant by grade. On 12 January 2012, after considering the written submissions of the parties, the arbitrator granted the applicants relief in terms of its Statement of Claim.

On 20 February 2012, the applicant applied to this court, in terms of section 92B(3) as read with 98(14) of the Labour Act, for the registration of the quantification of 12 January 2012 and costs of suit.

The application was opposed on 29 February 2012.

The respondent raised a number of preliminary issues.

(i) The first was that the applicant was not a legal persona and could not register a judgment in that name.

(ii) It also averred that the Workers Committee that authorised the deponent to its founding affidavit was not a legal persona and thus lacked legal standing to authorize registration of the award.

(iii) It further averred that the award in the record was not the original or a certified copy of the original order as contemplated by Article 35(2) of the Arbitration Act [Chapter 7:15].

(iv) Lastly, it averred that the award was appealed against both before quantification and after quantification in LC/H/28/12.

On the merits, the respondent contended that it was against public policy of Zimbabwe to award an amount calculated by non-managerial employees, which was no longer available, and would cause a huge financial loss.

The answering affidavit dealt with the preliminary points on locus standi and disputed inability to pay averring that the Works Council agreed on the utilization of the Housing Loan Fund that was available.

The arbitrator noted their availability on the date of the Collective Bargaining Agreement and refused to reward the respondent for attempting to deliberately place them beyond the reach of the Works Council after the Collective Bargaining Agreement had been reached.

It seems to me that the present application flounders on the rock of the first preliminary issue raised.

The question of legal persona of a workers committee was conclusively dealt with by the Supreme Court in CT Bolts (Pvt) Ltd v Workers Committee SC16-12.

In that case, GARWE JA, with the concurrence of ORMEJEE and GOWORA AAJA, surveyed the provisions section 23 and 24 of the Labour Act that provide for the institution and functions of a workers committee. He noted that the Labour Act did not make provision for the workers committee to operate as a legal persona. It had not provided for the adoption of a Constitution or acquisition of assets by the workers committee in contrast to section 28 and 29 of the Labour Act that instituted every trade union, employer's organisation or federation into a corporate body on registration.

The learned Judge of Appeal confirmed the correctness of the sentiments expressed by KAMOCHA J in CSC Co. National Workers Committee v CSC Co. Ltd 2002 (1) ZLR 133 (H)…, that “the legislature did not give the workers committee the right to sue or to be sued like it did to the employment council.”

He stated at page 2 of the judgment that:

“The issue of the legal status of the respondent assumes greater significance in a case as this one where there could be issues of costs involved. Under the common law, an unincorporated association, not being a legal persona, cannot, as a general rule, sue or be sued in its name apart from the individual members, whose names have to be cited in the summons.

A universitas, on the other hand, has the capacity, apart from the rights of the individuals forming it, to acquire rights and incur obligations. The position is also established that a body corporate that has no Constitution is not a universitas for it is the Constitution that determines whether an association is or is not a universitas.”

See also Privatisation Agency of Zimbabwe & Anor v Ukubambana Kubatana Investments (Pvt) Ltd & Anor 2003 (1) ZLR 433 (S)…, on the four constituent elements of a universitas.

At page 3, GARWE JA held that:

“The respondent, 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.”

It is conceded, in the answering affidavit, by the deponent to the founding affidavit, that the citation of the applicant as ZIMSEC EMPLOYEES was wrong. The deponent averred, and counsel for the applicant contended, that the citation was a technicality that had been dismissed by the arbitrator on the basis of the 147 names and signatures on page 45 to 48 of the record of proceedings who constituted a portion of 245 employees who comprise the applicant.

The basis for the citation of the applicant before the arbitrator, and in the present application, in this format was based on convenience.

The citation of a Workers Committee as a party in proceedings is replete in our jurisdiction. It is found in such cases as Thomas Meikles Centre (Pvt) Ltd v TM National Workers Committee & Ors SC77-02; Olivine Industries (Pvt) Ltd v Olivine Workers Committee 2002 (2) ZLR 200 (S); and Sagittarian (Pvt) Ltd v Workers Committee, Sagittarian (Pvt) Ltd 2006 (1) ZLR 115 (S).

At page 3 of CT Bolts (Pvt) Ltd v Workers Committee SC16-12, GARWE JA was aware that the Supreme Court had in those cases “proceeded on the basis that the workers committee cited in the appeal proceedings was properly before it and that the issue of the legal status of the workers committee had not, however, been raised, and, consequently a determination of the legal status of the workers committee never became necessary.”

It is apparent from the concessions made by the deponent to the applicant's affidavit, and from its counsel, that ZIMSEC EMPLOYEES is not a universitas. It was a convenient appellation of 245 employees in Grade 2 to 8 of the first respondent. The list of names and signatures fall short of an affidavit of collegiality as defined and applied by BERE J in Mabvadya v Chegutu Rural District Council & Ors HH34-05…, and SMITH J in Olive Mazvita Gudza v University of Zimbabwe HH85-95.

The applicant is not a juristic person. It thus lacked capacity to represent the 245 employees before the arbitrator and this Court. It is not properly before this court. Its proceedings in that name before the arbitrator, and before this Court, are void.

On the basis of the above finding, it is not necessary to determine the other preliminary issues raised and the merits of the application. As the applicant is not a juristic person, an order that there be no order of costs would meet the justice of this case.

Accordingly, the proceedings are struck off the roll with no order as to costs.

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

I dealt with this application on 19 February 2018. I delivered an ex tempore judgment in which I dismissed it with costs.

On 8 May 2018 the applicant addressed a letter to the High Court Registrar. It did so through its current legal practitioners. It requested for reasons for my decision. These are they…,.:

The applicant and the respondent appeared before the arbitrator, one C Mesikano, on 21 February 2013. He issued an arbitral award in favour of the applicant. He ordered the respondent to pay to the applicant the sum of $256,317.

The arbitral award gave birth to the current application. The applicant moved the court to register the same for purposes of enforcement. It advanced four reasons for the motion which it placed before the Court. These were that:

(a) The award was sounding in money;

(b) The amount awarded was within the monetary jurisdiction of the court;

(c) The award was certified in terms of Form LR9; and

(d) The applicants were a party to the arbitration award.

The respondent opposed the application. It raised two preliminary matters after which it dealt with the substance of the application. Its two in limine matters were that:

(i) HC3359/13, which the applicant filed on 3 May 2013, was pending at court; and

(ii) The cases of Ngonidzaishe Moliba and Julius Demo, who were managerial workers, were dealt with separately from that of Nelson Maurede and 16 others.

It stated, on the merits, that the parties did not agree on the quantum which the applicant sought to register. It submitted that the applicant misled the arbitrator on the mentioned issue. It said it registered its objection to the same and it urged the arbitrator to exercise his powers and correct the quantum so that it remained in sync with what it said was the correct position of the matter.

It submitted that it successfully applied for stay of execution of the arbitral award.

It stated, in its heads, that only Nelson Maurede withdrew his application for registration of the arbitral award under HC3359/13. It insisted that the other applicants did not. It said only fourteen (14) applicants were before the court.

It averred that Kelvin Makuva and Jonis Nyadzuwa, who passed on, were not before the court. It stated that there was no substitution of the dead persons. It said the court has not been told the amount which related to the two deceased persons.

It insisted that the arbitral award which did not identify the sixteen (16) others was invalid. It said there was no legal persona which answered to the name “Nelson Maurede and sixteen (16) others.” It submitted that the only person to whom the award related was Nelson Maurede. It averred that the award which was made against a non-existent entity was a nullity.

It moved the court to dismiss the application with costs....,.

The respondent states, and, in my view, correctly so, that there is no legal persona which answers to the name “Nelson Maurede and 16 Others”.

It insists, and I agree, that when proceedings are instituted by a non-existent entity, the court cannot relate to the same. The case of CT Bolts (Pvt) Ltd v Workers Committee 2012 (1) ZLR 363 (S), which it cited in its Heads, aptly describes the circumstances of the applicant.

I, in the mentioned regard, associate myself with the remarks which Garwe JA was pleased to make in the same when he said:

“The respondent, not being a legal persona, is not properly before the court. The proceedings before the Labour Court, and, prior to that, the arbitrator, were similarly void.”

That the proceedings which brought about the award which is the subject of this application are a nullity requires little, if any, debate. It stands to good logic and reason that a nullity cannot form the basis of any registration.

The current application cites Treger Products (Pvt) Ltd as the respondent. The award which the learned arbitrator granted cites Treger Ltd as the applicant's employer.

There is a world of difference between the two cited names.

This application relates to a private company. The applicant's employer, on the other hand, is a public company. It remains unclear if registration is sought against Treger Products (Pvt) Ltd or against Treger Ltd. The applicant did not explain the anomaly. Nor did it explain how that anomaly came about.

The onus rests on it to state the correct position of the matter. The court cannot.

What the court can tell, however, is that it is impossible for the applicant to enforce an award against a non-existent entity. As the respondent correctly states, Treger Products (Pvt) Ltd was not a party to the proceedings which the learned arbitrator conducted. The award cannot, therefore, be registered against it.

The above described matter was succinctly clarified in Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) which 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 written in the summons as being those of the defendant, the summons is null and void ab initio.”

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

The first appellant, Firinne Trust, is a trust incorporated as such by Deed of Trust under the laws of Zimbabwe and registered with the Registrar of Deeds. It trades as Veritas, which is the second appellant herein.

The first respondent, is the Zimbabwe Electoral Commission (ZEC), established in terms of section 238 of the Constitution. Although it is established under the Constitution it carries out its mandate in terms of the Electoral Act [Chapter 2:13] the (“Act”).

The second respondent, the (“Minister”) is the Government official assigned the administration of the Electoral Act [Chapter 2:13]. The third respondent (“the Attorney-General”), is the legal adviser to the Government.

On 19 December 2017, under Case No. HC11749/17, Veritas filed an application with the High Court in which it sought a declaratur and ancillary relief pertaining to sections of the Electoral Act. The premise of the application was that the specified sections of the Electoral Act imposed restrictions on conducting voter education by persons other than the Zimbabwe Electoral Commission (ZEC) and political parties.

In this application, Veritas, on its own behalf and on behalf of the public in general sought an order declaring sections 40C(1)(g), 40C(1)(h), 40C(2) and 40F of the Electoral Act [Chapter 2:13] as being ultra vires sections 56, 61 and 67 of the Constitution; the allegation being that the impugned sections infringe the right of the public in general, and that of Veritas in particular, to equality and non-discrimination, freedom of expression, and their political rights, including the right to a free and fair election and to make political choices freely.

The Zimbabwe Electoral Commission (ZEC) opposed the application raising several points in limine relating to the citation of the applicant in the matter and the form of the application which it contended was not in accordance with the requirements of the rules of court.

In response, and under Case No. HC4391/18, Firinne Trust filed an application for leave to amend the citation of Veritas as applicant. It sought that the record be amended to reflect the applicant as “Firinne Trust also known as Veritas.”

This application was also opposed by the Zimbabwe Electoral Commission (ZEC).

The Minister and the Attorney-General filed their opposing papers out of time. Their failure to adhere to the rules was condoned at the hearing of the applications and they were given leave to participate in the proceedings.

The matters were subsequently consolidated, by consent, and set down for hearing before the same judge.

The learned judge in the court a quo was persuaded to find that the application was fatally defective in that it had been filed by a non-existent party. As a consequence, he refused the request for leave to amend the citation of the applicant (Veritas) for the reason that there was no applicant before him.

He also found that the form used by Veritas in the court application rendered the application itself fatally defective.

Consequent thereto, he upheld the points in limine and dismissed both applications with costs.

This appeal is against the dismissal of the applications.

THE APPEAL

Although the learned judge did not delve into the merits of the dispute the Notice of Appeal filed sought to touch on the merits of the dispute. The court is grateful to counsel for accepting that the merits of the dispute are not in contention in this appeal. The appeal before us is, as a result, confined to the determination by the court of the points in limine.

The grounds of appeal, upon which the judgment is attacked, are the following:

1. The court a quo erred in law in failing to hold that Rule 8C of the High Court Rules, 1971 permits a Trust to sue and be sued in its trade name as if it were its proper name.

2. The court a quo erred in law in failing to hold that the use of a name or trade name of a Trust in litigation in place of the names of the Trustees is for convenience and does not deprive the appellant of locus standi under sections 45(3) and 85 of the Constitution.

3. The court a quo erred in law and misdirected itself by refusing the amendment of the citation of the appellant in circumstances where a trade name had been properly used and the amendment was merely cosmetic.

4. The court a quo erred in law and misdirected itself by failing to hold that the use of Form 29B, with such alterations as circumstances require, is permitted under Rule 229C as read with Rule 4(2)C of the High Court Rules, and, in any event, any departure from the Rules should have been condoned under Rule 4C.

5. The court a quo erred in law in upholding preliminary points lacking substance raised by a party abiding in circumstances where the appellant, second respondent, and third respondent wanted the merits determined.

6. The court a quo erred in law and misdirected itself in awarding costs on a legal practitioner and client scale against the appellant in a Constitutional matter of huge public interest and importance without making any finding in law warranting the exercise of the learned judge's discretion in this regard.

DETERMINATION OF THE POINTS IN LIMINE BY THE COURT A QUO

In deciding on the points in limine the court a quo made remarks to the following effect:

“In casu, the applicant is cited herein in case HC11749/17 as Veritas. It is thereafter described in the founding affidavit deposed to on its behalf by Valerie Anne Ingham-Thorpe (paragraph 1 thereof) as a Trust incorporated in Zimbabwe by a Deed of Trust and registered with the Deeds Registry as Firinne Trust but trading as Veritas.

In my view, the applicant having realized the folly of using the name Veritas alone (a Trust) as the applicant in case HC11749/17 and having been jolted by points in limine raised by the first respondent, must have realized that its application was potentially fatally defective and to avoid the application being declared as such at the hearing of the matter sought to bring the second application in case HC4391/18 seeking leave to amend the citation of the applicant in the matter HC11749/17 by inserting the words 'FIRINNE TRUST also known as' in front of the current citation of the applicant in the main matter such that the full citation of the applicant shall read as follows: 'FIRINNE TRUST also known as Veritas' to ensure that both the registered name as well as the operating name of the Trust, in whose name the application has been brought, appears on all pleadings.

…,.

Procedurally, I agree with the counsel for the first respondent's observation because having noted that its application was potentially fatally defective the applicant need not have resorted to filing a new application dealing with points in limine raised in another application. I say so because in paragraph 10 the applicant said in her founding affidavit in case HC4391/18 that -

'However, in its Opposing Affidavit, the First respondent raised a number of points in limine including one that the application could not be brought in the name of the Trust. The First Respondent subsequently altered this point in its heads of argument to say that the application should have been brought in the name of the registered Trust rather than the Trust's operating name.'”

ISSUES ON APPEAL

The above remarks were made in relation to the application to amend the citation of Veritas, to replace the named applicant in the court a quo with a totally different party to the one appearing on the pleadings.

It seems to me that the application was not one for amendment of the citation of the applicant but its substitution.

I believe that the substance of the appeal addresses this particular finding of the court a quo and the first three grounds of appeal are pertinent in this regard.

Can it be said that the court a quo erred in refusing the application to amend the citation of the appellant?

The issues to decide are;

(i) Firstly, whether or not Veritas is a person.

If it is not a person, can the citation be amended as prayed for by the appellants or does its status as a non-legal person render the proceedings instituted under Case No. HC11749/17 in its name a nullity....,.

ARGUMENTS ON APPEAL

Counsel for the appellant made reference to Rule 8 of the Rules of the High Court 1971, and submitted that in terms of that Rule a person carrying on business may sue or be sued in that name. He argued that an association includes a Trust, and that, as a consequence, a Trust, being an association, is capable of mounting suit in its trade name. Having said this, he accepted that a Trust was not a person in that it was not separate from its trustees. He conceded that the Trust had no separate existence and that it was set up in terms of a Constitution whether as a corporate entity or incorporated one. He suggested, however, that our Rules permit the amendment sought in the lower court....,.

As regards the citation of the applicant in the lower court, counsel for the Zimbabwe Electoral Commission (ZEC) disagreed with counsel for the appellants that Rule 8C was applicable in this instance. He contended that a Trust was not a person as envisaged in the Rule, and, therefore, the appellants could not have recourse to the Rule and have the Trust sue in the name of VERITAS. He suggested that there was, of necessity, a separation between Rule 8 and Rule 8C. He argued that Rule 8 incorporated the ability of the trustees to sue in the name of the Trust. In this case, the name of the Trust is Firinne Trust. He contended that a Trust cannot rely on Rule 8C to sue in a trade name....,.

THE NATURE OF A TRUST

A very pertinent passage on Trusts is found in the book HERBSTEIN & Van WINSEN, Civil Practice of the High Courts of South Africa by the learned authors Cilliers, Loots & Nel to the following effect:

“A Trust is not a legal persona but a legal institution sui generis. Therefore, it must be sued in the name of the trustee or trustees. However, when the Trust itself has been cited, the courts have allowed the correction of the citation. Unless one of the trustees is authorized to act by the remaining trustee or trustees, all the trustees must be joined in suing, and all must be joined when an action is instituted against a Trust. The trustee should be cited in their representative capacities.”

Within this jurisdiction, the issue of whether or not a Trust is a person has received attention and there is a plethora of authority on the subject. In Crundall Bros (Pvt) Ltd v Lazarus NO & Anor 1990 (1) ZLR (H)…, the court stated:

“I can see no reason why a Trust should be regarded as a 'person' for the purposes of the Regulations, when it is not regarded as a 'person' for other purposes.”

This principle was confirmed by SMITH J, in WILSA & Ors v Mandaza & Ors 2003 (1) ZLR (H)…, wherein is stated the following:

“Mr Nherere took the point, in limine, that WLSA, being a Trust, is not a corporate body, and, therefore, cannot appear as a party. That contention is legally sound. In Commissioner for Inland Revenue v MacNeillie's Estate 1961 (3) SA 833 (A) at 840F-H, STEYN CJ said:

'Like a deceased estate, a Trust, if it is to be clothed with juristic personality, would be a persona or legal entity consisting of an aggregate of assets and liabilities. Neither our authorities nor our courts have recognized it as such a persona or entity. The Estate Duty Act, like the Income Tax Act 31 of 1941, does not define 'person'. The Statutory definition in sec. 2(x) of the Interpretation Act 33 of 1957, does not mention a Trust or any category of persons which would include a Trust.

It is trite law that the assets and liabilities in a Trust vest in the trustee.

The introduction of another persona consisting of those assets and liabilities, for the purposes of imposition and collection of a tax, when there is a trustee ready to hand, would be an extraordinary measure which would call for some adjustment, the nature of which is by no means obvious, and of which there is no trace in the Act between the legal position of such a persona and of the trustee.'”

That statement of the law was confirmed in Crundall Bros (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR 125 (S) where…, it was said:

“A trust is not a person. The trustee is the person to be considered for the purposes of the Regulations.”

HERBSTEIN & Van WINSEN, Civil Practice of the High Courts of South Africa also states:

“The fact that one trustee has been authorized by the remaining trustees to institute action on behalf of the trust does not necessarily confer locus standi on that trustee. The trustees must act nomine officii and cannot act in their private capacities. Beneficiaries cannot act independently of trustees against someone other than the trustee in legal proceedings relating to trust property.”

The passage quoted above is in sync with our law.

In Chiite & 7 Others v Trustees, Leonard Cheshire Homes Zimbabwe Central Trust CC10-17, MALABA CJ made the following observation regarding the citation of trustees:

“A proper reading of the provisions of Rule 8A of the High Court Rules establishes that it is not a requirement for the names of the trustees to be listed when they bring an action on behalf of the Trust. The only place where the issue of the listing of the names of the trustees when an action has been instituted on behalf of the Trust is where a defendant to a suit by the Trustees has requested from the Trust the names and addresses of the individual trustees. This would be in line with Rule 8A of the High Court Rules, 1971.”

The contention by the appellants is that it is the Trust that has brought this suit.

That is incorrect.

The suit has been brought by Veritas. The person who deposed to the founding affidavit is not a Trustee, she is an administrator in the employ of the trading arm of the Trust. Thus, the party before the court is not the Trust, it is an entity associated with the Trust. I am not convinced that the Rule that the appellants place reliance on is of any assistance to them.

DOES RULE 8C APPLY IN THE INSTANT PERMITTING THE AMENDMENT SOUGHT

In order to bolster their argument that an amendment of the applicant in this instance would be in order, the appellants have referred the court to Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd 2001 (4) SA 211. At p219, para 15-16, TIP AJ states:

“There is also a category of cases in which substitution was refused because the initial plaintiff was not a legal persona.

In Van Heerden v Du Plessis 1969 (3) SA 298 (O) an action for patrimonial damages had been instituted in the name of a person who was already deceased. An application to substitute the executor of the estate was held to be impermissible on the basis that the original summons was a nullity (at 304A-G).

In reaching that conclusion, SMUTS J placed some reliance on the approach taken in Van Heerden v Braun & Summers, to which I have referred above. Van Heerden v Du Plessis was applied in Friends of the Sick Association v Commercial Properties (Pty) Ltd and Another 1996 (4) SA 154 (D), where the plaintiff had been described in the summons as a voluntary association although it had ceased to be such upon its incorporation as a company not for gain several decades earlier. Refusing substitution, the Court held, at 158A-B, that the summons was a nullity and there was no need to even consider whether or not an amendment might cause prejudice.”

It seems to me that the above statement is not only apposite in this instance but it applies with equal force.

The principle that the citation of a non-existent party results in a nullity was confirmed in Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H). At 253C-254B, MALABA J…, said:

“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 by the respondent as a new judgment debtor. There was no old judgment debtor.

This proposition is not without authority.

In Van Heerden v Du Plessis 1969 (3) SA 298 (O) a summons was issued against a person who had already died. Application was made for an order of substitution of the executor testamentary for the deceased. The application, which was opposed, was refused on the ground that the summons was wholly invalid.

In Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) supra, the learned judge mentioned that cases in which the summons has been issued against a non-existent person are exceptions to the application of the general rule on the approach courts should adopt in deciding applications for orders of substitution. The learned judge, at 369J- 370A, had this to say:

'The correction of a mis-description of an applicant differs also from the cases where the courts have regarded a summons or notice of motion as ab initio invalid because the plaintiff or applicant was a non-existent person.'

In Fosa v Commercial Properties (Pty) Ltd & Anor [1996] 2 All SA 611 (D) the summons was issued in the name of a non-existent plaintiff. An application for substitution was refused by NILE-DUNER AJ on the ground that, the fact that the persona described in the summons did not exist at the date of issue of the summons, called into question the validity of the proceedings before him. The learned acting judge concluded, at p614, by saying:

'There is, in my opinion, no difference, in principle, between the situation in Van Heerden v Du Plessis supra and the present case. I accordingly take the view that the summons is a nullity and that I cannot, by the process of substitution, revive it to the date of its issue.'

See also Dawson (Bradford) Ltd & Ors v Dove & Anor [1971]1 All ER 554 (QB) where it was held that substituting the defendant for the deceased, against whom summons had been issued after his death, was not an act of substitution but of creation.”

The suit, in this appeal, has not been brought by the Trust.

If it had been brought by the Trust, the remarks by the court in the case of Chiite & 7 Others v Trustees, Leonard Cheshire Homes Zimbabwe Central Trust CC10-17 would have been apposite. The arguments made by counsel for the appellant might have been persuasive. In this instance, his arguments are not apposite.

In casu, the appellants have not argued that Veritas is a Trust. The applicant, as cited, is a trade name. It is not a legal persona. It is not suggested that Veritas is an entity, like an association or a partnership. Veritas is a trade name which the Trust makes use of when trading.

Counsel for the appellant concedes that Veritas is not a persona. It is also not the Trust. Despite these very fundamental legal obstacles it is still contended that the court a quo should have exercised its discretion in favour of the appellants and invoked Rule 8C and allowed the application to amend the citation. Rule 8C reads:

“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.”

Rule 8C, which counsel for the appellant seeks reliance on makes reference to a person. Veritas is not a person. The Trust, Firinne Trust, is also not a person.

In moving the appeal, counsel for the appellant sought reliance on the remarks by MATHONSI J…, in Nuvert Trading (Pvt) Ltd t/a Triple Tee Footwear v Hwange Colliery Company HH791-15 to the following effect:

“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. 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 is 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.”

A reading of that statement makes it clear that there must be a party to proceedings, viz, there must be a persona in one form or another.

In my view, the authority does not assist the position taken by the appellants. What it does is to reinforce the argument adopted by the Zimbabwe Electoral Commission (ZEC), to the effect that if the applicant is not a persona, one cannot apply to have that applicant substituted.

The citation of a non-existent entity renders the proceedings a nullity.

I am fortified in these remarks by the dicta in J D M Agro-consult (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H)…, to the following effect:

“What is now before me is a point in limine dealing with the question of the citation of the parties. It is a legal issue in that the defendants aver that the summons is bad at law, in that no defendant has been brought before the court. They allege that the proceedings are a nullity as a result and no application launched by the plaintiff to amend the summons or substitute the defendants can cure the defect as the summons is a nullity.

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 for the publisher and owner of the newspaper is Zimbabwe Newspapers (1980) Limited. That is a registered company, duly incorporated under the laws of this country. Its coming into being is due to the process by which it was incorporated as such. It is then, after its 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, 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 appellants concede that Veritas is not a person.

The Rule that they seek to rely on in having the citation amended speaks of “any person”. Once it is conceded that Veritas is not a legal persona no reliance can be sought in the Rule.

The appellants are out of court. There is, as a consequence, no applicant in the main application.

The Zimbabwe Electoral Commission (ZEC) has argued that the application is a nullity, and that, as a result, there is nothing to amend.

I am constrained to accept that contention.

It is trite that proceedings which are a nullity cannot be amended. This was confirmed in Jensen v Acavalos 1993 (1) ZLR 216 (S), where KORSAH JA, stated…,:

“With this view I most respectfully agree: for if the notice of appeal is incurably bad, then, to borrow the words of LORD DENNING in McFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 11721, '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.'”

Those remarks apply with equal force in this appeal.

There was no applicant before the court a quo. The citation of a non-existent party cannot be amended. The proceedings themselves are a nullity. The application for amendment must, as a result, fail. The court a quo was correct in this regard....,.

DISPOSITION

Once the lack of status of Veritas was raised, the appellants should have exercised caution, and, as found by the learned judge, in the court a quo, withdrawn the application.

Instead, there was a dogged insistence on proceeding with the papers in the form that they were in. Wiser counsel should have prevailed....,.

As argued by counsel for the first respondent, the jurisdiction of the court must be invoked properly and lawfully. It cannot be lawfully invoked at the instance of a non-existent party.

The court a quo was correct in exercising its discretion in favour of the respondents and upholding the points in limine....,.

1....,.

2....,.

3. For the avoidance of doubt the appeal against the points in limine is dismissed.

CC04-20 : INNOCENT GONESE and JESSIE MAJOME vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF THE SENATE and EMMERSON MNANGAGWA N.O. and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

The two applicants are Members of Parliament. They brought two separate applications in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), as read with Rule 27 of the Constitutional Court Rules.

They alleged failure by Parliament to fulfil the constitutional obligation to act in accordance with the procedure for amending the Constitution prescribed by section 328 of the Constitution.

The allegations in the applications are the same. So are the issues. The two applications were consolidated and heard as one.

The applicants challenged the validity of the proceedings that culminated in the passing of Constitutional Amendment Bill (No.1) 2017.

The relief sought is by way of a declaratory order in the terms that:-

1. Parliament failed to fulfil the constitutional obligation provided for in section 328(5) of the Constitution of Zimbabwe, which requires a Constitutional Bill to be passed by two-thirds of the membership of each House sitting separately, when it passed Constitutional Amendment Bill (No.1) of 2017 on 25 July 2017 and 1 August 2017 in the National Assembly and the Senate respectively.

2. Accordingly, the proceedings in Parliament, pertaining to Constitutional Amendment Bill (No.1) of 2017, on 25 July 2017 and 1 August 2017, be and is hereby set aside.

3. The first respondent pays costs of suit.

The Constitutional Bill was intended to amend section 180 of the Constitution insofar as it related to the procedure for the appointment of the Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court. The proposed amendment would also add to section 180 of the Constitution a provision relating to the appointment of the Senior Judges of the Labour Court and the Administrative Court by the Chief Justice.

The application was filed on 6 September 2017. Before it could be heard, the President signed Constitutional Bill (No.1) 2017 into law.

The applicants filed another application under CCZ58/17. They sought an order setting aside the Constitutional Amendment Act on the basis that Parliament had failed to fulfil a constitutional obligation in the passing of the Constitutional Bill.

There are two distinct challenges to the passing of the Constitutional Bill.

The validity of the passing of the Constitutional Bill is challenged by impugning the proceedings in the National Assembly and the Senate.

In respect of the proceedings in each House, the contention is that the passage of the Constitutional Bill was in contravention of the amending procedure prescribed by section 328(5) of the Constitution. The grounds for the claimed violation of section 328(5) of the Constitution are different.

In respect of the proceedings in the National Assembly, the grounds raise factual questions, whilst the grounds in relation to the proceedings in the Senate raise a question of law.

The Court holds that the applicants have failed to show, on a balance of probabilities, that there was no voting conducted in the National Assembly. They also failed to show that the “Aye” votes did not reach the required minimum threshold of 180 votes.

The Court is of the view that the applicants have not been able to prove failure on the part of the National Assembly to act in accordance with the procedure for the amendment of the Constitution prescribed by section 328(5) of the Constitution.

The constitutional obligation imposed on Parliament, by section 328 of the Constitution, when exercising the power to amend the Constitution is to ensure that the procedures prescribed are complied with.

The Court entertains no doubt that, to amend the Constitution by the method prescribed by section 328, every requirement prescribed by the provision must be observed. The omission to comply with any one of the requirements is fatal to the validity of the proposed amendment.

The applicants established that the Constitutional Bill was not passed with the requisite two-thirds majority in the Senate. There was no compliance with the requirements of the procedure prescribed by section 328(5) of the Constitution.

The reasons for the decision now follow.

The Court notes the fact of the conflicting versions of facts and the interpretation of the applicable constitutional provisions. The granting of the relief sought by the applicants depends on one reality. It is discoverable by the finding of the facts on the matters in dispute, the declaration of the true meaning of the applicable constitutional provisions, and the application of the law to the facts.

The proposed amendment to section 180(1) of the Constitution was the cause of the events which culminated in the cause of action pleaded by the applicants for the relief sought. Nothing turned on the substantive value of the proposed amendment of the Constitution.

Before the proposed amendment, section 180 of the Constitution read as follows:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must -

(a) Advertise the position;

(b) Invite the President and the public to make nominations;

(c) Conduct public interviews of prospective candidates;

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.

(3) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned….,.”

Section 180 of the Constitution would read as follows after the proposed amendment:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Service Commission.

(3) If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission in terms of subsection (2), the President shall cause the Senate to be informed as soon as is practicable: Provided that, for the avoidance of doubt, it is declared that the decision of the President, as to such appointment, shall be final.

(4) Whenever it is necessary to appoint a judge, other than the Chief Justice, Deputy Chief Justice or Judge President of the High Court, the Judicial Service Commission must -

(a) Advertise the position; and

(b) Invite the President and the public to make nominations; and

(c) Conduct public interviews of prospective candidates; and

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (5), the President must appoint one of the nominees to the office concerned.

(5) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (4)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.

(6) The President must cause notice of every appointment under this section to be published in the Gazette.

(7) The offices of senior judge of the Labour Court and senior judge of the Administrative Court must be filled by another judge or an additional or acting judge, as the case may be, of the court concerned, and are appointed by the Chief Justice after consultation with the Judicial Service Commission.”...,.

The main contention by the applicants was that there was no proper vote in Parliament....,.

In opposing the application, the first (Parliament of Zimbabwe), the second (the Speaker of the National Assembly), and the third (the President of the Senate) respondents took the preliminary point to the effect that Parliament is not a legal persona. The contention was that Parliament cannot sue or be sued....,.

WHETHER PARLIAMENT CAN SUE OR BE SUED IN ITS OWN NAME

The purpose of the exercise of jurisdiction conferred on the Constitutional Court is to ensure that the other organs of the State, such as the Legislature, act in accordance with the rules prescribing the procedures for the exercise of the powers conferred on them by the Constitution.

Counsel for the first, second, and third respondents persisted with the point in limine that Parliament has no legal personality, and, for that reason, cannot sue or be sued in its own name.

He argued that section 118 of the Constitution, which provides that Parliament consists of the Senate and the National Assembly, does not create a legal persona. He reasoned that Parliament is created by way of constitutive membership. The contention was that the Speaker is the representative and spokesperson of Parliament in its collective capacity. He pressed the point further by arguing that the Speaker and the President of the Senate are cited nominally only. He contended that relief was being sought against a body with no legal personality.

Counsel for the applicants took a contrary view.

He argued that Parliament can sue and be sued. For this proposition, he relied on sections 116 and 118 of the Constitution. Section 116 of the Constitution provides that the Legislature consists of Parliament and the President. He argued that the words “body corporate” are not found in the Constitution. The contention was that the fact that Parliament is not described as a body corporate capable of suing and being sued does not rid it of its status as a constitutional body with justiciable obligations.

Counsel for the applicants further relied on section 167(2)(d) of the Constitution for the proposition that, in applications for relief in enforcing obligations imposed on it, Parliament itself has to be before the Court.

Section 167(2)(d) of the Constitution provides that the Constitutional Court makes the final decision whether the conduct of Parliament is constitutional.

The Court was of the view that the point in limine had no merit.

Parliament exists as a body established by the Constitution out of the joint functions of the two Houses of the National Assembly and the Senate. Whilst the two Houses exist separately for themselves, they exist together for Parliament. Out of the two Houses is constituted Parliament, which is an important body for the purposes of the constitutional order. Together with the President, Parliament is conferred with legislative power. It includes the power to amend the Constitution in accordance with the procedure provided for the purpose under section 328 of the Constitution.

There are provisions of the Constitution which impose obligations on Parliament.

The constitutional provisions impose the obligations on Parliament as directly enforceable law.

Section 119 of the Constitution imposes an obligation on Parliament to protect the Constitution and promote democratic governance in Zimbabwe. The obligation imposed on Parliament, by section 328(5) of the Constitution is that it must not pass a Constitutional Bill at the last reading in the National Assembly and the Senate except by affirmative votes of two-thirds of the membership of each House.

Section 45(1) of the Constitution provides that the provisions guaranteeing the protection and promotion of fundamental human rights and freedoms, enshrined in Chapter 4, are binding on the State and all executive, legislative, and judicial institutions.

Fundamental human rights are binding on Parliament as directly enforceable law.

Section 85(1) of the Constitution secures the fundamental rights and freedoms by making courts of law accessible to any person whose rights are violated by State authority.

That is the case where jurisdiction over the subject matter in dispute is not specified.

The Court would not be in a position to exercise its jurisdiction to determine whether the conduct of Parliament is constitutional, or whether Parliament has failed to fulfil a constitutional obligation, if Parliament, as a constitutional body, cannot be held accountable.

The provisions of section 167(2)(d) of the Constitution show that there is an acceptance that Parliament can be held accountable for failure to discharge its constitutional obligations. The effect of the provision is that the question of fulfilment of a constitutional obligation by Parliament is a matter for the exclusive jurisdiction of the Constitutional Court.

When the Court deals with an application for relief in terms of section 167(2)(d) of the Constitution, it essentially looks at Parliament in the conduct of its functions. The constitutional obligation Parliament would be accused of failing to fulfil would have been imposed on it, in its capacity as a body established by the Constitution, to exercise the legislative power conferred on it by the legislative authority derived from the people.

Counsel for the first, second, and third respondents relied on WOOLMAN and BISHOP, Constitutional Law of South Africa, 2edn Vol 1…,, and Gauteng Provincial Legislature v Killian 2001 (2) SA 68 (SCA) 2001 (3) BCLR 253 (SCA)…,.

The contention that the case of Gauteng Provincial Legislature v Killian 2001 (2) SA 68 (SCA) 2001 (3) BCLR 253 (SCA) is authority for the proposition that Parliament cannot be sued in its own name, because the Speaker is the representative and spokesperson of the Assembly in its collective capacity, must be taken in context.

The case raised for determination the question whether the Speaker of the Gauteng Provincial Legislature had the power to give an undertaking with regard to costs relating to the resolution of a dispute on the constitutionality of a Bill by the Constitutional Court in terms of section 98(2)(d) of the Constitution of the Republic of South Africa Act 200 of 1993.

The case did not speak to the question whether Parliament could sue or be sued in its own name.

The Supreme Court of Appeal interpreted section 98(9) of the Interim Constitution. The section provided that:

“(9) The Constitutional Court shall exercise jurisdiction in any dispute referred to in subsection (2)(d) only at the request of the Speaker of the National Assembly, the President of the Senate, or the Speaker of a provincial legislature, who shall make such a request to the Court upon receipt of a petition by at least one-third of all the members of the National Assembly, the Senate, or such provincial legislature, as the case may be, requiring him or her to do so.”…,.

It is clear that the provision explicitly gave the Speaker of the National Assembly the power to refer a dispute to the Constitutional Court.

As such, the case relied upon by the first, the second, and the third respondents does not take their case any further.

Paragraph 17.2 in WOOLMAN and BISHOP, Constitutional Law of South Africa, 2edn Vol 1…, relied upon by the first, the second and the third respondents as authority for the proposition that Parliament cannot sue or be sued in its name, is unhelpful. It reads as follows:

“The NA [National Assembly] is chaired by the Speaker. The Speaker is the representative and spokesperson of the Assembly in its collective capacity. The Speaker may therefore give binding undertakings on behalf of the NA. Such undertakings may even embrace the expenditure of moneys in relation to the legislative process. Though the Speaker may be removed by a resolution of the NA, the Speaker must not bow to political pressure and is 'required by the duties of his office to exercise, and display, the impartiality of a judge'.”

It is important to note that, in stating the above, the learned authors made extensive reference to the case of Gauteng Provincial Legislature v Killian 2001 (2) SA 68 (SCA) 2001 (3) BCLR 253 (SCA).

It was the finding of the Supreme Court of Appeal that the Speaker of the Gauteng Provincial Legislature had the power to give an undertaking to minority political parties that the Legislature would cover the legal costs incurred in referring a pending bill to the Constitutional Court.

As such, the case is not authority for the proposition that Parliament cannot sue or be sued in its own name.

Regard must be had to Commission for the Implementation of the Constitution v Parliament of Kenya and Others [2013] eKLR Petition No.454 of 2012 where the High Court of Kenya…, said:

“40. I have been cautioned that the doctrine of separation of powers forbids this court from straying into what is seen as the sphere of Parliament. I have also been warned that 'Parliament of Kenya', as a State organ, cannot be sued by its own name.

I think the latter issue is effectively answered by the question of jurisdiction I have discussed above.

In any case, and on this I agree with Mr. Regeru, counsel representing CIC, that a reading of Article 261(5) and (6) contemplates Parliament as the Party to any Petition that may be filed therein. The provision reads that;

'If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.'

41. I therefore reject the respondent's contention that Parliament, as a State organ, cannot be sued by its own name at least for purposes of this suit.

I think the common law notions regarding capacity to be sued must yield to the Constitution which recognises Parliament as a State organ and imposes on it specific responsibilities. The doctrines of legal personality must be read against the beam of the rich provisions of our Constitution.”

A reading of section 167(2)(d), as read with section 119 of the Constitution, shows that Parliament may be sued in its name. It is a separate organ of the State which must be independently accountable for failure to act in accordance with the constitutional obligations imposed on it directly.

It is the obligations imposed by sections 119(1) and 328(5) of the Constitution, among others, that Parliament must fulfil.

It is in respect of those obligations that the Constitutional Court exercises jurisdiction in terms of section 167(2)(d) of the Constitution.

The Constitutional Court is the highest institutional expression of the rule of law.

Its duty is to enforce respect for and the maintenance of the constitutional order. The constitutional order is characterised by a fundamental system of values in terms of which validity of all legislation and other official acts or conduct must be assessed.

Thus, any branch or level of Government, including Parliament, that violates the Constitution or refuses to carry out a constitutional duty can be called to account in a proper proceeding before the Constitutional Court.

It would be in the interests of Parliament to have claims of violation of constitutional provisions imposing obligations on it directly determined by the Constitutional Court.

Appealed
SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

THE FACTSOn 13 July 2011, under Case No HC6750/11, the appellant caused summons to be issued out of the High Court against NZ Industrial and Mining Supplies as defendant to the suit. In the summons he claimed the following relief:(a) A declaration that the parties did enter into a valid ...

THE FACTS

On 13 July 2011, under Case No HC6750/11, the appellant caused summons to be issued out of the High Court against NZ Industrial and Mining Supplies as defendant to the suit. In the summons he claimed the following relief:

(a) A declaration that the parties did enter into a valid agreement for the harvesting of timber in respect of a portion of an area known as Glen Forest, Gairezi, Nyanga.

(b) Delivery of 1,120m3 of sawn timber to the plaintiff.

(c) Alternatively, payment of USD$392,000 being the equivalent of 1,120m3 of timber at USD$350 per cubic metre.

(d) Payment of USD$4,000 being the balance payable in respect of the agreement.

(e) Interest on the above amounts at the prescribed rate of interest with effect from 1 May 2010 to the date of final payment.

(f) Costs of suit on the scale as between client and legal practitioner.

The second respondent duly entered appearance to defend the suit. It was not legally represented and the first respondent, who was its Managing Director, signed the papers indicating an intention to defend the action. He also filed a plea on the merits of the claim.

Thereafter, the parties were summoned to attend a pre-trial conference before a judge in chambers.

The first respondent was advised by the presiding judge that he could not represent the second respondent in the suit as he was not a registered legal practitioner. It was suggested that he should obtain the services of a legal practitioner to represent the company. He undertook to do so.

The pre-trial conference was postponed sine die.

The first respondent engaged one Kaseke to represent the second respondent in the suit.

Subsequent to this, on a date not stated in the papers, the first respondent's immovable property was attached in execution. An investigation revealed that the legal practitioner engaged to represent the second respondent had defaulted when summoned to appear at a resumed pretrial conference.

The appellant had, as a consequence, obtained a default judgment against the second respondent, and, somehow, the first respondent's name had been added as a defendant together with that of the second respondent.

It transpired that the appellant had filed an amended draft order which reflected the defendant to the suit as Zambe Nyika/Gwasira NZ Industrial & Mining Supplies. The record however shows that the declaration described the defendant, the second respondent herein, as a company duly registered as such in accordance with the laws of Zimbabwe.

The appellant was unable to execute against the writ of execution. He, therefore, filed an application under Case No. HC7244/14 in which he sought the following relief:

“IT IS ORDERED AS FOLLOWS:

1. That the application for a mandament restraining the first respondent from disposing of or otherwise alienating the immovable property be and is hereby granted.

2. That the immovable property known as Stand 13552 Salisbury Township of Salisbury Township lands held by the first respondent under Deed of Transfer Number 5750/94, dated 21 September 1994, be and is hereby declared especially executable.

3. That the first respondent shall pay costs of suit.”

The first respondent opposed the application.

In his opposing papers, he also sought, as a counter-application to the relief sought by the appellant, to have the default judgment rescinded.

The court was of the view that the counter application for rescission had not been brought in accordance with the rules of court.

The first respondent's wife also opposed the application.

She contended that she had a personal interest in the immovable property by virtue of her marriage to the first respondent.

The court a quo was disinclined to uphold the opposition, and, on 28 November 2014, it granted the order described above in favour of the appellant.

Consequent to the issuance of this order, on 27 January 2015, a writ of execution was issued in which the property described above was placed under attachment at the instance of the appellant. The record is silent as to the fate of the writ.

On 29 July 2015, Everjoy Meda, the estranged wife to the first respondent, filed an application with the Constitutional Court alleging a violation of her rights in the immovable property arising from the suit and the writ of attachment in execution.

The application was dismissed with costs on a higher scale.

The view of the court was that she should have appealed the judgment of the High Court instead of bringing a constitutional application when no constitutional issue fell for determination before the High Court and the Constitutional Court itself.

On 22 February 2016, under Case number HC1655/16, Everjoy Meda and her son filed an application for the rescission of the judgments granted under Case Numbers HC6750/11 and HC7244/12 respectively, on the grounds that they were issued in error.

They approached the court in terms of Rule 449 of the High Court Rules 1971.

On 2 November 2016, the High Court dismissed the application with an order of costs on the high scale. The court concluded, that, they had not shown that they had any legal interest in the validity of the judgments in question.

On 10 November 2016, the first respondent filed a chamber application in terms of Rule 449 for the rescission of the judgments granted under Case Numbers HC12599/11 and 7244/12 on the premise that they were judgments granted in error.

PROCEEDINGS BEFORE THE COURT A QUO

Before the court a quo, the first respondent contended, that, the appellant had erroneously added his name as a party to the suit when, in reality, he had not been cited when the summons was issued.

He argued, further, that, the court a quo, labouring under the mistaken apprehension that the first respondent was a party to the proceedings, had granted a default judgment whose enforcement was being implemented by the appellant.

He argued, that, the appellant had not proferred a meaningful explanation as to why he had joined the first respondent without due process.

He concluded, that, his joinder to the proceedings was in error, which error should be corrected by the rescission of the two judgments.

The thrust of the argument by the appellant, in opposing the relief sought in the court a quo, was that the first respondent had not been diligent in pursuit of his rights.

In making this argument, the appellant sought reliance on Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S).

The argument made was that various applications had been brought to court by the first respondent and his wife and son. All these applications had been ill-conceived.

It was argued, that, in relation to the application in which the immovable property was declared especially executable, the first respondent was present during the proceedings and he could not, therefore, avail himself of relief under Rule 449.

It was further contended, that, the court had dismissed his bid for rescission and the judgment in question had not been appealed against.

Thus, it was contended, the matter was res iudicata and could not be re-opened through an application under Rule 449.

To that end, the judgment refusing leave for rescission was extant and he was disabled from relief under Rule 449.

On 26 July 2017, the High Court rendered its decision in the matter.

As regards the rescission of the judgment under Case Number HC6750/11, the default judgment, the court observed that:

“In casu, it is not disputed that when the default judgment was granted in HC12599/11 or HC6750/11 the second respondent was not in attendance. It had defaulted at the pre-trial conference.

Again, it is not disputed that when the summons was issued in the matter, the applicant was not a party to the proceedings.

From nowhere, his name was only included, for the first time, at replication stage in the replication by the first respondent who was the plaintiff in the matter.

At the pre-trial conference, when N.Z. Industrial and Mining Supplies did not attend, a court order with the applicant's names was obtained by the first respondent.

The first respondent failed to explain, in his opposing papers in the present matter, how the name of NZ Industrial and Mining Supplies metamorphosed to include the name of the applicant.

The applicant has therefore made a good case for this court to rescind the default judgment that was granted in HC6750/11 initially erroneously granted under case number HC12599/11 as it is clear that it was erroneously sought and granted in the absence of the applicant and it affects his rights and interests.”

The court a quo also adverted to the question of the delay in bringing the application under Rule 449.

The court considered, on the principle set out in Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) that the delay was inordinate but that, notwithstanding the delay, the circumstances were such that the first respondent had made out a good case for the grant of the relief he sought. The court said:

“It was only after 4 years 8 months of the default judgment having been granted that the applicant woke up from his slumber and brought this application. The delay is inordinate. However, in view of the nature of the error that prompted the making of the application, this is an exceptional case where I am inclined to grant the rescission despite the inordinate delay. The error goes to the root of the matter because judgment ended up being granted against a person who is different from the one who had been sued.

In the summons and declaration, the defendant was cited as N.Z. Industrial and Mining Supplies which is a company. At replication stage, the first respondent, who was the plaintiff, simply changed the name of the defendant to Zambe Nyika/ Gwasira N.Z Industrial & Mining Supplies.

The name of the defendant was now a combination of the applicant's name and his company's name.

I believe the first respondent was taking advantage of the fact that N Z Industrial and Mining Supplies was being represented by the applicant, who is a layperson, and not by a legal practitioner.

Upon N.Z. Industrial and Mining Supplies defaulting court, at pretrial conference, the first respondent prepared a draft order with the name of the defendant as Zambe Nyika/ Gwasira N.Z Industrial & Mining Supplies and obtained an order bearing these names.

Such a defendant, who is a combination of an individual and a company, is non-existent.

The judgment cannot, therefore, be allowed to stand. I will thus grant the application for rescission in HC6750/11.”

The court a quo was, however, disinclined to grant rescission in respect of the judgment granted in HC7244/12, which judgment declared the first respondent's immovable property to be especially executable.

The court a quo was of the view that the applicant had failed to satisfy the requirements provided for in Rule 449.

The court a quo found, that, the first respondent was present at the hearing and had filed papers in opposition to the application.

On that premise, the court a quo considered that the first respondent was disabled from arguing that it was a judgment granted in error in his absence. The court a quo found that the application fell foul of Rule 449.

I do not think, that, to that extent, the reasoning of the court a quo can be faulted.

ARGUMENTS ON APPEAL

The appellant appeared in person.

Prior to the matter being set down for hearing the appellant had the benefit of legal representation. Those representing him at the time had filed extensive heads of argument on his behalf.

He submitted that he would abide by these heads of argument.

He maintained, that, the court a quo should not have granted rescission due to the inordinate delay that preceded the filing of the application for rescission.

In the heads of argument, the contention made is that the first respondent had acquiesced to the default judgment in which the court dismissed the application brought by his wife and son under Rule 449.

It was contended, further, that, the court a quo should have upheld the defence of res iudicata raised by the appellant in that the dispute had been determined and the first respondent had participated fully.

Based on the agreement executed by the parties, it was contended, that, there was no error in the description of the defendant to the default judgment.

The appellant made reference to Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H).

Counsel for the first respondent argued as follows:

The default judgment was granted in error. The appellant's legal practitioners had themselves acknowledged this error in a letter addressed to the Registrar of the High Court. The letter had attached to it an amended draft order in which the defendant was a merger of the company and the first respondent as the defendant to the suit.

With regard to the immovable property, she contended that the appellant had fraudulently launched an application to have the property declared especially executable based on the erroneous order.

As it pertained to the application brought by the first respondent's wife and son, it was clear that the application was dismissed on the premise that the two did not have legal interest in the matter. It was not decided on the merits. As a consequence, the argument that the principle of res iudicata was applicable to the facts of this appeal was misplaced and should be discounted by the court.

As regards the judgment issued under Case Number HC7244/12, it was her further argument that the judgment was based on a nullity. The judgment granted in default was granted against a party that did not exist and a party who was not a litigant to the lis.

The setting aside of that judgment affected the status of the later judgment.

The latter had its genesis firmly on the first, and, once the earlier judgment was no more, there could be no life breathed into the second judgment.

She urged the court to exercise its review powers under the Supreme Court Act [Chapter 7:13] and set it aside as being irregular.

ISSUES FOR DETERMINATION

The disposition of this appeal hinges on the construction of Rule 449. The critical questions in that determination are the following:

(i) Whether indeed there was an error in the judgment; and

(ii) Secondly, what is the meaning to be ascribed to “absence” in the said Rule.

ANALYSIS OF THE FACTS

The appellant has never denied, that, when summons was issued, the first respondent was not cited as a party. He has also not denied, that, the first respondent's name was improperly added to the proceedings.

He cannot say how this happened.

The first respondent was not joined as a party. The appellant does not argue that the first respondent was not properly joined as a party.

HERBSTEIN & Van WINSEN…, 5ed, Civil Practice of the High Courts of South Africa, state:

“In an application for a default judgment, the impression was created that a division of ABSA Bank purported, in its own right, to have instituted various actions. The court was satisfied that the party which instituted the actions was ABSA Bank which had locus standi, but was wrongly described in the summons.

As there was no possibility of any prejudice to the defendants, the court granted the amendments applied for.

In another case in which there was an incorrect citation of parties, the court granted an amendment, as it did not involve the substitution of one legal entity for another, but merely corrected an incorrect description of the original plaintiff.

An amendment will not, however, be granted when a defendant's name has been omitted from the summons, or when a summons has been issued in the name of a plaintiff who was no longer alive at the time of issue.

Where the named plaintiff is not a legal persona, the summons is invalid.”

In this case, there was no joinder of the first respondent as a party to the proceedings nor was there even an application to amend the citation of the parties to the suit.

There was an addition of the name of the first respondent - which addition created a non-existent party.

In L & G Cantamessa v Reef Plumbers: L & G Cantamessa (Pty) Ltd v Reef Plumbers: 1935 TPD 56, the court had to consider whether or not a summons can be amended to include a defendant who was not cited in the original summons. At pp59-60, TINDALL J stated as follows:

“The magistrate, in his reasons, stated, that, he allowed the amendment to the summons under sec.105 of the Magistrates Court Act; that he regarded the name of the defendants in which they were sued, viz; L & G Cantamessa as a mere misnomer, and that the mistake was covered by sub-sec. 3 of sec 105 of the Magistrates Court Act.

In my opinion, it is quite plain, that, in taking that view, the magistrate erred.

This is not a case of a mere misnomer. The effect of the amendment was to introduce a new defendant into the case. The original defendant, L & G Cantamessa was either a partnership or two individuals. It would seem that it was intended to cite L & G Cantamessa as a partnership because the summons was served only on one of the parties under Order VI.

In any event, whether the summons was against a partnership or two individuals, it is clear that the limited company is an entirely different persona in law and that it was not merely a matter of a misnomer. A different persona was introduced into the proceedings, and, in my opinion, that was not permissible under sec.105.”

And later at pp60-61:

“…,. That being so, in my opinion, there was no satisfactory answer to the review that there was a gross irregularity that a defendant who had not been cited and was not before the court, had been introduced into the action as the defendant at the conclusion of the case.”

It seems to me, that, those remarks apply with equal force to the facts of the case in the appeal before the court.

The principle set out above was confirmed in the later case of Greef v Janet en'Ander 1986 (1) SA 647. The judgment is in Afrikaanse but the headnote reads:

“There would appear to be no authority for the proposition, that, a court, upon application by a plaintiff, can oblige a non-party to a dispute, without the latter's consent (and by way of an amendment of the summons), to replace the defendant. If the plaintiff suspects that he has sued the wrong party, he can either, in appropriate circumstances, attempt to have the right party joined, or issue summons anew against him.”

I respectfully associate myself with that statement.

The first respondent was never a party, was not joined, and should not have been added to the process in the manner done in this case.

If he had been joined, he would have been a separate party to the company.

What is clear is that the defendant appearing on the order granting default judgment does not exist. There is no such person.

This a clear irregularity as found by the court a quo.

Whether or not the first respondent participated in subsequent proceedings does not change the substance of the irregular order issued in default against him.

In Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H), MAKARAU J…, said:

“The purpose of Rule 449 appears to me to enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error, and, where to allow such to stand, on the excuse that the court is functus officio, would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.

The Rule goes beyond the ambit of mere formal, technical, and clerical errors and may include the substance of the order or judgment: see Grantully P/L 2000 (1) ZLR 361 (SC).

Rule 449 is a procedural step to correct an obviously wrong judgment or order.”

There can be no doubt, in this case, that, the first respondent's interests were affected by the judgment granted in default against him.

There is no doubt that he was not cited as a party to the suit, was not served with the summons, and, even when his name was added, he was not notified.

The judgment given fits all the requisites of a judgment granted in the absence of a party.

When considering whether or not the first respondent should succeed, the court a quo set out the requirements under Rule 449 as being:

“Rule 449(1)(a) reads as follows:

'449 Correction, variation, and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby.”

For relief under Rule 449(1)(a) to be granted, the following requirements have to be met:

(a) The judgment must have been erroneously sought or granted;

(b) The judgment must have been granted in the absence of the applicant; and

(c) The applicant's rights or interests must be affected by the judgment.'

See Mashingaidze v Chipunza & Others HH688-15.

It is therefore clear from these requirements that a party can only seek to rescind a judgment in terms of Rule 449(1)(a) if he was absent when the judgment he seeks to rescind was granted.

If the party was present, he cannot seek rescission.”

In casu, no attempt was made to bring the first respondent before the court. He was absent from the proceedings.

The contention made in the heads of argument, that, he had acquiesced to the judgment by participating in the processes launched by his wife and son cannot sway the court.

The initial proceedings were marred by serious irregularities in the manner in which the appellant sought to bring the first respondent before the court and the first respondent cannot be considered as having acquiesced to a process that amounts to an irregularity.

In the circumstances of this case, the appellant cannot be heard to argue that the court misdirected itself.

The first respondent was never heard. He was not present.

The default judgment was not only granted in error - it was also granted in his absence in every respect.

In my view, the appeal is devoid of merit and must be dismissed.

Appealed
SC22-22 : EZEKIEL CHINOINGIRA vs SABRE SERVICES (PVT) LTD and BALWEARIE HOLDINGS (PVT) LTD
Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

At the conclusion of submissions by counsel, the Court delivered a unanimous ex-tempore judgment. Counsel for the first respondent has now requested written reasons for the ex tempore judgement.It was couched as follows:“We hereby present the unanimous decision of the court.(a) This is an appeal against the whole judgment of ...

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HH480-21 : EZEKIEL CHINOINGIRA vs BALWEARE HOLDINGS (PVT) LTD and SABRE SERVICES (PVT) LTD
Ruled By: MUCHAWA J

This is an urgent chamber application in which the interim relief sought is that the first respondent be barred and interdicted from evicting the applicant from a certain farm known as “the remainder of Westhey, Sabonabon Estate, Kadoma arbitrarily without a court order.As a final order, it is prayed that ...

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SC61-22 : BDO ZIMBABWE CHARTERED ACCOUNTANTS vs ROBIN VELA and THE AUDITOR GENERAL OF ZIMBABWE
Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

INTRODUCTIONThis 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 ...

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....,.

In developing his argument, counsel for BDO Zimbabwe Chartered Accountants (BDO) submitted that Rule 8 of the High Court Rules 1971 provides for the citation in legal proceedings of associations which are not body corporates.

Rule 8C allows a person to be sued in his/her trade name.

BDO Zimbabwe Chartered Accountants (BDO), being the trade name of the appellant, it may sue or be sued in that name.

The Rule provides as follows:

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

BDO Zimbabwe Chartered Accountants (BDO), the appellant, responded to the first respondent's suit in that name....,.

Having regard to the clear provisions of the law, there can be no denying that BDO Zimbabwe Chartered Accountants (BDO), being the appellant's trade name, may sue or be sued in that name in terms of Rule 8C.

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SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

It is trite that an executor/executrix is the recognized legal representative of a deceased estate. He/she is appointed to administer the estate and to ensure the estate is properly wound up with all assets and liabilities being accounted for.

In this regard, section 23 of the Administration of Estates Act [Chapter 6:01] (the Act) provides that:

“The estates of all persons dying either testate or intestate shall be administered and distributed according to law under Letters of Administration to be granted in the Form B in the second schedule by the Master…,.”

It follows, that, in a case involving estates of deceased persons, there shall be appointed a representative who is empowered, through Letters of Administration, to act for and on behalf of the deceased's estate.

This is so because the deceased estate cannot represent itself.

In terms of section 25 of the Administration of Estates Act, a deceased estate is represented by an executor or executrix duly appointed and issued with Letters of Administration by the Master of the High Court.

In Nyandoro & Anor v Nyandoro & Ors 2008 (2) ZLR 219 (H)…, KUDYA J aptly restated the legal position as follows:

“In Clarke v Barnacle NO & Ors 1958 R&N 358 (SR) at 349B-350A MORTON J stated the legal position that still obtains to this day in Zimbabwe. It is that 'whether testate or intestate, an executor, either testamentary or dative, must be appointed…, so that the executor, and he alone, is looked upon as the person to represent the estate of the deceased person.'

He left no doubt, that, towards the rest of the world, the executor occupies the position of legal representative of the deceased with all the rights and obligations attaching to that position and that because a deceased's estate is vested in the executor, he is the only person who has locus standi to bring a vindicatory action relative to property alleged to form part of the estate.

Arising from the nature of a deceased estate, as described in Clarke v Barnacle, supra, and Mhlanga v Ndlovu, supra, it must follow that the citation of a deceased estate as a party to litigation is wrong. The correct party to cite in lieu of the deceased estate is the executor by name. The citation of the second plaintiff and second defendant in casu was therefore improper and incurable. It makes their presence before me a nullity.”

The executor/executrix of an estate has certain rights and powers in connection with the estate and certain duties to perform both at common law and in terms of the Administration of Estates Act.

In The Law and Practice of Administration of Estates, 5th ed by D. MEYEROWITZ, at p123, the esteemed author states that:

“An executor is not a mere procurator or agent for the heirs but is legally vested with the administration of the estate. A deceased estate is an aggregate of assets and liabilities and the totality of the rights, obligations, and powers of dealing therewith vests in the executor so that he alone can deal with them.

He has no principal, and represents neither the heirs nor the creditors of the estate.”

Further, at p124, the author firmly states that:

“No proceedings can be taken against the estate without making the executor a party to them. Similarly, no person can institute proceedings on behalf of the estate except the executor. The estate cannot sue or be sued until an executor has been appointed.”

If, therefore, the totality of the rights, obligations, and powers of dealing with a deceased estate is vested in an executor/executrix, it follows that the executor/executrix must invariably be cited by name in any suit against the estate. Failure to cite the executor/executrix would be fatal to an action against the deceased's estate....,.

When an action is brought against an executor, in his representative capacity, it is an action against the estate rather than one against the individual.

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

The first appellant is a primary school whereas the second appellant is its headmaster and overall administrator. The third appellant is the School's Parents Association capable of suing and being sued in its own name.

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

The first appellant, the Zimbabwe Homeless Peoples Federation, is a universitas at law with an active membership said to be ten thousand homeless people who contribute and pool their resources together for the purpose of achieving and attaining the goal for housing for poor homeless people. The second appellant, Tawonga ...

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

The appellant is a clergyman of the Prophetic Healing and Deliverance Ministries, commonly known as the PHD Ministries. The respondent is the Zimbabwe Gender Commission (“the Commission”), an independent commission provided for in accordance with section 245 of the Constitution and established as a body corporate in terms of section ...

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL
Ruled By: DUBE J

The first applicant is an association of members and will hereinafter be referred to as The Association....,. The second applicant is the chairperson of The Association.

Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

The respondent is a Municipal Council duly constituted as such in terms of the Urban Councils Act [Chapter 29:15].

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.The appeal is opposed by the first respondent....,.The first respondent is a duly registered ...

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS
Ruled By: TAKUVA J

This is an application for confirmation of a provisional order issued by the Honourable Mr Justice Kamocha on the 31st day of October 2013.The applicant is a registered trade union representing the artisans employed by the first respondent. It has capacity to sue and be sued in its own name.

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

This is an urgent chamber application in terms of which the applicant seeks the following relief as set out in the provisional order:“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. That, it be and ...

This is an urgent chamber application in terms of which the applicant seeks the following relief as set out in the provisional order:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That, it be and is hereby declared, that, the letter of Mr A Tsimba, in his capacity as Acting Provincial Resettlement Officer, Mashonaland East Province drawn on the 10 May 2017 for the Ministry of Lands and Resettlement providing an eviction/vacate date and cessation of possession, occupation, use and all farming activities on Plots 3 and 5 of Ivordale Farm by 30 June 2017 is null and void and of no force or effect on account that, in its effect and implementation, it violates sections 68 and 69 of the Constitution of Zimbabwe and section 3 of the Administrative Justice Act [Chapter 10:28].

2. That, it be and is hereby declared that applicant, his agents, representatives, invitees and employees are entitled to the continued possession, occupation and use of the whole of subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha (“the property”) until such time as a final determination has been rendered with regard to applicant's review proceedings and relief in HC12727/16.

3. That respondents, jointly and severally, the one paying the other to be absolved, pay the costs of this suit.

INTERIM RELIEF

Pending the determination of this matter, applicant is granted the following relief:

(a) That first and second respondents and all other persons acting through them be and are hereby interdicted from interfering with applicant's farming operations, possession, and control of movable and immovable property including livestock on Subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha, as reflected in applicant's offer letter dated 16 July 2014, incorporating as it does newly depicted Plots '3' and '5' as set out in a subdivision plan drawn by officers in the 1st respondent Ministry and fresh offer letters in favour of 2nd respondent and an unknown person.

(b) That, it be and is hereby declared that the interim relief granted by his Lorship, Mr Justice Chitapi, in favour of the applicant, on 11 January 2017, in HC12511/16, shall continue to apply until such time as a final determination is made by the High Court in regard to the validity of the withdrawal of applicant's offer letter and downsizing of applicant's property.”

The application was opposed and was heard before me on 5 June 2017.

At the commencement of the hearing, counsel for the applicant applied for an amendment of the official heading by deletion of the word Ministry wherever it appeared in reference to the first respondent and substituting the word Minister in place thereof in order to correctly bring the first respondent before the court in line with paragraph 3 of the founding affidavit.

The reference to Ministry, as opposed to Minister, was on account of a typing error.

Counsel for the first and third respondents opposed the application to amend on the basis that the application was a nullity as against the first respondent and thus no amendment, as sought, could be achieved in order to bring the Minister before the court.

I considered the opposition as purely technical in view of the contents of paragraph 3 of the founding affidavit. In any case, no actual or potential prejudice was proven or demonstrated as likely to be occasioned by the first respondent by reason of the amendment.

I accordingly granted the amendment and directed the matter to proceed.

HH823-15 : AT INTERNATIONAL LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

The respondent is a body corporate responsible for the collection, amongst other imposts, of value added tax in Zimbabwe.

CC13-21 : ZIMBABWE WOMEN LAWYERS ASSOCIATION vs THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

The applicant is a universitas whose objectives, inter alia, include dealing with all matters affecting the professional interests of women lawyers and promoting the legal status and rights of women and children.

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

The first applicant is the founder member of the sixth applicant (Friends of Shabanie Mashava Mines Trust) which is described in the founding affidavit as a networking association of persons who share a common interest to promote, protect, and uphold unwavering respect for constitutionalism.However, the sixth applicant's Constitution was not ...

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

The dispute between the parties centred on a property described as Stand 238 Phase 1 Checheche (“the property”). It is one of those council-owned township properties that local authorities sell on a rent-to-buy basis. It is under the Chipinge Rural District Council.In the court a quo, the respondent (“Chengetai”) sued ...

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Law Portal Zimbabwe

Citation and Joinder re: Legal Status of Litigants, Name Descriptions, Trade Names and the Principle of Legal Persona

SC01-X : CITY OF HARARE vs CINAMON Ruled By: MCNALLY JA, MANYARARA JA and KORSAH JA

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH Ruled By: GOWORA J

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS Ruled By: MUSAKWA J

HH73-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and F MATAMBANADZO and J D NYAMUNDA and EIGHT OTHERS Ruled By: MAKARAU JP

HH102-10 : OLD MUTUAL LIFE ASSURANCE COMPANY ZIMBABWE (PVT) LTD vs PETER RAFTOPOLOUS t/a SELECTIONS Ruled By: MTSHIYA J

HH17-11 : GRACE MAHACHI vs SMALLHOLDER MICRO-IRRIGATION DEVELOPMENT SUPPORT PROGRAMME (C/O MINISTRY OF FINANCE) Ruled By: MUTEMA J

HH17-11 : GRACE MAHACHI vs SMALLHOLDER MICRO-IRRIGATION DEVELOPMENT SUPPORT PROGRAMME (C/O MINISTRY OF FINANCE) Ruled By: MUTEMA J

HH21-11 : CHRIST EMBASSY ZIMBABWE vs CHIDZIVA INVESTMENTS (PVT) LTD Ruled By: CHATUKUTA J

HH58-13 : NATIONAL CONSTITUTIONAL ASSEMBLY and LOVEMORE MADHUKU vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O. and THE CHAIRPERSON / ACTING CHAIRPERSON OF THE ZIMBABWE ELECTION COMMISSION N.O. Ruled By: CHIWESHE JP

HH366-13 : MURENGA CHIKWAMBA vs MATIUS MUKUNGA and LAZARUS MUKUNGA and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND URBAN DEVELOPMEMNT and DISTRICT ADMINISTRATOR SHAMVA Ruled By: MATHONSI J

HH310-14 : DEPUTY SHERIFF, KAROI vs EDWARD CHIGANGO and 55 OTHERS and FRESH BAKERY, KAROI and DAVID GOVERE Ruled By: TSANGA J

HH319-14 : GLOAR DESIGN TEAM vs ZIMBABWE NATIONAL ROAD AUTHORITY (ZINARA) Ruled By: MTSHIYA J

HB38-14 : KUMBIRAI RUGUVA vs STAR LOTTO ZIMBABWE (PVT) LTD Ruled By: MOYO J

HB38-14 : KUMBIRAI RUGUVA vs STAR LOTTO ZIMBABWE (PVT) LTD Ruled By: MOYO J

HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD Ruled By: TAKUVA J

Appealed SC74-14 : SUPERBAKE BAKERIES (PRIVATE) LIMITED vs RUMTOWERS SECURITY (PRIVATE) LIMITED Ruled By: GWAUNZA JA, GARWE JA and GUVAVA JA

SC37-16 : MARANGE RESOURCES (PVY) LTD vs CORE MINING & MINERALS PL (IN LIQUIDATION), MOSES CHINHENGO (RETIRED JUDGE) N.O., PRESIDENT, LAW SOCIETY OF ZIMBABWE N.O., ATTORNEY GENERAL OF ZIMBABWE N.O. Ruled By: MALABA DCJ, HLATSWAYO JA and GUVAVA JA

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and THE DEPUTY SHERIFF CHIVHU N.O. Ruled By: GUVAVA J

HB87-16 : COLD STORAGE COMPANY LTD vs ADDITIONAL SHERIFF OF THE HIGH COURT – E.M. MAGARA N.O. and HOLLANDS REAL ESTATE and AHMED ESAT and TREVOR AND TALENT and REGISTRAR OF DEEDS Ruled By: MAKONESE J

HH470-14 : GUTA RAMWARI vs CHARLES WADUKA and TAPIWA ZINGWE and MARSHALL DHLIWAYO Ruled By: MATHONSI J

CC03-18 : ZIMBABWE DEVELOPMENT PARTY and VOICE OF THE PEOPLE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SPEAKER OF PARLIAMENT and CHAIRPERSON – ZIMBABWE ELECTORAL COMMISSION Ruled By: MALABA CJ

HH791-15 : NUVERT TRADING (PRIVATE) LIMITED t/a TRIPLE TEE FOOTWEAR vs HWANGE COLLIERY COMPANY Ruled By: MATHONSI J

HH92-11 : MHANYAMI FISHING AND TRANSPORT CO-OPERATIVE SOCIETY LIMITED and OTHERS vs THE DIRECTOR GENERAL PARKS AND WILDLIFE MANAGEMENT AUTHORITY N.O. and PARKS AND WILDLIFE MANAGEMENT AUTHORITY Ruled By: MAKONI J

HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS Ruled By: MAFUSIRE J

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi) Ruled By: ZHOU J

HMA13-18 : JONATHAN CHIKUKWA vs BEAUTY and GAME DOLLAR Ruled By: MAWADZE J

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED Ruled By: MAFUSIRE J

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS Ruled By: MANGOTA J

HH430-12 : ZIMSEC EMPLOYEES vs ZIMSEC Ruled By: KUDYA J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD Ruled By: MANGOTA J

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

Appealed SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

Appealed SC22-22 : EZEKIEL CHINOINGIRA vs SABRE SERVICES (PVT) LTD and BALWEARIE HOLDINGS (PVT) LTD Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

View Appeal HH480-21 : EZEKIEL CHINOINGIRA vs BALWEARE HOLDINGS (PVT) LTD and SABRE SERVICES (PVT) LTD Ruled By: MUCHAWA J

View Appeal SC61-22 : BDO ZIMBABWE CHARTERED ACCOUNTANTS vs ROBIN VELA and THE AUDITOR GENERAL OF ZIMBABWE Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

View Appeal SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

Appealed SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION Ruled By: GOWORA JA, PATEL JA and UCHENA JA

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL Ruled By: DUBE J

Appealed SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI Ruled By: MUTEMA J and MOYO J

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS Ruled By: TAKUVA J

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: FOROMA J

HH823-15 : AT INTERNATIONAL LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

CC13-21 : ZIMBABWE WOMEN LAWYERS ASSOCIATION vs THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS Ruled By: MAKARAU JCC

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA Ruled By: MAWADZE J and MAFUSIRE J

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Law Portal
Zimbabwe

SC01-X : CITY OF HARARE vs CINAMON
Ruled By: MCNALLY JA, MANYARARA JA and KORSAH JA

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH
Ruled By: GOWORA J

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS
Ruled By: MUSAKWA J

HH73-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and F MATAMBANADZO and J D NYAMUNDA and EIGHT OTHERS
Ruled By: MAKARAU JP

HH102-10 : OLD MUTUAL LIFE ASSURANCE COMPANY ZIMBABWE (PVT) LTD vs PETER RAFTOPOLOUS t/a SELECTIONS
Ruled By: MTSHIYA J

HH17-11 : GRACE MAHACHI vs SMALLHOLDER MICRO-IRRIGATION DEVELOPMENT SUPPORT PROGRAMME (C/O MINISTRY OF FINANCE)
Ruled By: MUTEMA J

HH17-11 : GRACE MAHACHI vs SMALLHOLDER MICRO-IRRIGATION DEVELOPMENT SUPPORT PROGRAMME (C/O MINISTRY OF FINANCE)
Ruled By: MUTEMA J

HH21-11 : CHRIST EMBASSY ZIMBABWE vs CHIDZIVA INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA J

HH58-13 : NATIONAL CONSTITUTIONAL ASSEMBLY and LOVEMORE MADHUKU vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O. and THE CHAIRPERSON / ACTING CHAIRPERSON OF THE ZIMBABWE ELECTION COMMISSION N.O.
Ruled By: CHIWESHE JP

HH366-13 : MURENGA CHIKWAMBA vs MATIUS MUKUNGA and LAZARUS MUKUNGA and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND URBAN DEVELOPMEMNT and DISTRICT ADMINISTRATOR SHAMVA
Ruled By: MATHONSI J

HH310-14 : DEPUTY SHERIFF, KAROI vs EDWARD CHIGANGO and 55 OTHERS and FRESH BAKERY, KAROI and DAVID GOVERE
Ruled By: TSANGA J

HH319-14 : GLOAR DESIGN TEAM vs ZIMBABWE NATIONAL ROAD AUTHORITY (ZINARA)
Ruled By: MTSHIYA J

HB38-14 : KUMBIRAI RUGUVA vs STAR LOTTO ZIMBABWE (PVT) LTD
Ruled By: MOYO J

HB38-14 : KUMBIRAI RUGUVA vs STAR LOTTO ZIMBABWE (PVT) LTD
Ruled By: MOYO J

HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD
Ruled By: TAKUVA J

Appealed
SC74-14 : SUPERBAKE BAKERIES (PRIVATE) LIMITED vs RUMTOWERS SECURITY (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, GARWE JA and GUVAVA JA

SC37-16 : MARANGE RESOURCES (PVY) LTD vs CORE MINING & MINERALS PL (IN LIQUIDATION), MOSES CHINHENGO (RETIRED JUDGE) N.O., PRESIDENT, LAW SOCIETY OF ZIMBABWE N.O., ATTORNEY GENERAL OF ZIMBABWE N.O.
Ruled By: MALABA DCJ, HLATSWAYO JA and GUVAVA JA

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and THE DEPUTY SHERIFF CHIVHU N.O.
Ruled By: GUVAVA J

HB87-16 : COLD STORAGE COMPANY LTD vs ADDITIONAL SHERIFF OF THE HIGH COURT – E.M. MAGARA N.O. and HOLLANDS REAL ESTATE and AHMED ESAT and TREVOR AND TALENT and REGISTRAR OF DEEDS
Ruled By: MAKONESE J

HH470-14 : GUTA RAMWARI vs CHARLES WADUKA and TAPIWA ZINGWE and MARSHALL DHLIWAYO
Ruled By: MATHONSI J

CC03-18 : ZIMBABWE DEVELOPMENT PARTY and VOICE OF THE PEOPLE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SPEAKER OF PARLIAMENT and CHAIRPERSON – ZIMBABWE ELECTORAL COMMISSION
Ruled By: MALABA CJ

HH791-15 : NUVERT TRADING (PRIVATE) LIMITED t/a TRIPLE TEE FOOTWEAR vs HWANGE COLLIERY COMPANY
Ruled By: MATHONSI J

HH92-11 : MHANYAMI FISHING AND TRANSPORT CO-OPERATIVE SOCIETY LIMITED and OTHERS vs THE DIRECTOR GENERAL PARKS AND WILDLIFE MANAGEMENT AUTHORITY N.O. and PARKS AND WILDLIFE MANAGEMENT AUTHORITY
Ruled By: MAKONI J

HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

HMA13-18 : JONATHAN CHIKUKWA vs BEAUTY and GAME DOLLAR
Ruled By: MAWADZE J

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS
Ruled By: MANGOTA J

HH430-12 : ZIMSEC EMPLOYEES vs ZIMSEC
Ruled By: KUDYA J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

Appealed
SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

Appealed
SC22-22 : EZEKIEL CHINOINGIRA vs SABRE SERVICES (PVT) LTD and BALWEARIE HOLDINGS (PVT) LTD
Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

View Appeal
HH480-21 : EZEKIEL CHINOINGIRA vs BALWEARE HOLDINGS (PVT) LTD and SABRE SERVICES (PVT) LTD
Ruled By: MUCHAWA J

View Appeal
SC61-22 : BDO ZIMBABWE CHARTERED ACCOUNTANTS vs ROBIN VELA and THE AUDITOR GENERAL OF ZIMBABWE
Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

View Appeal
SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL
Ruled By: DUBE J

Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS
Ruled By: TAKUVA J

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

HH823-15 : AT INTERNATIONAL LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

CC13-21 : ZIMBABWE WOMEN LAWYERS ASSOCIATION vs THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J