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

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HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

This is an application for stay of execution.

The first respondent was an Executive Dean in the Faculty of Commerce and Law of the applicant. At the end of his fixed term contract as Dean, a dispute arose on his status. The parties failed to agree on whether he automatically assumed his former post or whether his contract of employment was terminated.

Conciliation failed and the matter was referred to arbitration.

On 10 January 2011, the applicant was ordered to reinstate the first respondent as a Senior Lecturer, and, in the alternative, to negotiate his exit package in lieu of reinstatement. It was further directed that they approach the arbitrator if they failed to agree on the exit package.

On 2 February 2011, the applicant noted an appeal to the Labour Court against the arbitral award and applied for interim relief seeking the suspension of the award pending the appeal.

While these were pending in the Labour Court, the first respondent requested for the quantification of the exit package in lieu of reinstatement.

On 22 August 2011, the arbitrator quantified the amount in the sum of US$77,302.

On 26 September 2011, the applicant filed a combined application for review and an appeal with the Labour Court against the quantification.

On 27 September 2011, the first respondent, on notice to the applicant, applied in the High Court for the registration of the arbitral award. He served the applicant with the application for registration of the arbitral award on that date.

The applicant did not oppose the registration.

Instead, aware of the application in the High Court, it filed an urgent chamber application in the Labour Court, on 5 October 2011, seeking interim relief for the suspension of the arbitral award of 22 August 2011. The interim relief was granted by the Labour Court on 31 October 2011.

In the meantime, the award was registered by the High Court on 15 November 2011.

On 26 January 2012, the second respondent served a Notice of Attachment to remove the applicant's property for execution without any notice period.

The applicant launched the present application on 27 January 2012. I set it down for hearing on 1 February 2012.

The first respondent raised four preliminary points contesting the urgency of the matter.

I deal with each in turn.

(i) The first preliminary issue raised is on the authority of the deponent to the applicant's affidavit to depose to such an affidavit on behalf of the applicant.

Counsel for the first respondent submitted that where a natural person acts for an artificial person, he or she must establish the authority so to act. She relied on the sentiments expressed by ADAM J in Direct Response Marketing (Pvt) Ltd v Shepherd 1993 (2) ZLR 218 (H)…, part of a quotation in Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) ZLR 347 (C)…,.

Counsel for the applicant relied on the same quotation to argue that the first respondent had not established that the applicant is not properly before the court. The portion he relied on…, reads:

“The best evidence that the proceedings have been properly authorised would be to provide, by an affidavit, made by an official by the company, annexing a copy of the resolution, but, I do not consider that that form of proof is necessary in every case. Each case must be considered on its own merits and the court must decide whether enough has been placed before it to warrant the conclusion that it is the applicant which is litigating and not some un-authorised person on its behalf.

Where, as in the present case, the respondent has offered no evidence at all to suggest that the applicant is not properly before the court, then, I consider that a minimum of evidence will be required from the applicant: cf Parsons v Barkly East Municipality 1952 (3) SA 595 (E); Thelma Court Flats (Pty) Ltd v McSwigin 1954 (3) SA 457 (C)."

I am satisfied, that, to insist on a resolution from the applicant, that it resolved that the deponent file the founding affidavit on its behalf, would be carrying formality too far.

The applicant is the Director, Legal Services of the applicant.

Counsel for the first respondent conceded that she has, in previous litigation between the parties, filed founding affidavits on behalf of the applicant. There has been protracted litigation between the parties.

I am satisfied that the application is that of the applicant and not of the deponent to its founding affidavit.

The first preliminary point must fail.

HB41-14 : ITYAI NKOMO and 2 OTHERS vs T.M. SUPERMARKETS (PVT) LTD
Ruled By: KAMOCHA J

The first applicant, Ityai Nkomo, is the one who deposed to the founding affidavit which was adopted by the second applicant, Nicholas Khumbula Tshili, and Thembinkosi Nyathi, the third applicant.

Appealed
HB42-14 : MINISTER OF HIGHER & TERTIARY EDUCATION vs BMA FASTENERS PL and CHRISTOPHER MASWI N.O (as Provisional Judicial Manager of BMA FASTENERS PL) and MASTER OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: MAKONESE J

Authority to institute proceedings The founding affidavit was deposed to by one Nyasha Njowa, who is a Regional Manager employed by the Zimbabwe Manpower Development Fund. The deponent claims to derive his authority from a letter dated 23 July 2002. The letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the Ministry of Higher and ...

HB44-14 : SETUKA SIWELA vs ESTATE LATE GABRIEL SIWELA DRB 561/12 and THE ASSISTANT MASTER
Ruled By: KAMOCHA J

Secondly, counsel for the respondent cannot positively swear to the facts relating to the joint ownership of the property by the parties. He has no knowledge whatsoever of how the property was acquired. It is undesirable for a lawyer to depose to affidavits on behalf of litigants.

HB112-14 : KEMBO MOHADI and OTHERS vs BARBRA LUNGA (in her capacity as the Provisional Liquidator of NERRY INVESTMENTS (PVT) LTD) and CBZ BANK
Ruled By: TAKUVA J

At the hearing of this application, counsel for the first respondent raised a point in limine in which he argued that the first applicant has no authority to defend this application on behalf of the 12 other applicants because he had produced no mandate from any of them to prove that they so mandated him. ...

SC48-13 : STANLEY MAJURIRA vs TREDCOR (ZIMBABWE) (PVT) LTD
Ruled By: PATEL JA

The applicant's second objection is that the deponent to the opposing affidavit (Mr. Marecha) was not authorised to depose thereto. This is because he was suspended from duty on 18 September 2012 and the disciplinary proceedings against him, which were commenced on 9 October 2012, were to be continued on 19 October ...

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SC09-15 : INTER-AGRIC (PRIVATE) LIMITED vs ALLAN MUDAVANHU AND TWELVE OTHERS
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

Before delving into the merits of the appeal, it is appropriate to dispose of the dispute in relation to the twelve others herein. It was contended, on behalf of the appellant, that the Labour Court and the arbitrator, in turn, made a determination with wide implications in relation to the second to thirteenth ...

Before delving into the merits of the appeal, it is appropriate to dispose of the dispute in relation to the twelve others herein.

It was contended, on behalf of the appellant, that the Labour Court and the arbitrator, in turn, made a determination with wide implications in relation to the second to thirteenth respondents. The contention was based on the undisputed fact that the only time the claims in relation to the twelve others were alluded to was in the arbitrator's award. The appellant argued that the arbitrator had placed an onus on the employer to show that the departure of the other twelve from employment was procedural.

A perusal of the record of proceedings before the arbitrator points to the fact that the only evidence of unfair dismissal placed before the learned arbitrator was in relation to Mudavanhu. The only reference to the other twelve is to the effect that they were made to resign after they refused to be moved from the factory to work in the fields. None of the so-called twelve others appeared before the arbitrator. However, the record contains affidavits, attested to by nine of those respondents, in which authorization is granted to Mudavanhu to speak on their behalf in the dispute with the appellant.

The arbitrator accepted the claim by Mudavanhu that he was legally permitted to represent his fellow employees on a right provided for in section 4 of the Labour (Settlement of Disputes) Regulations S.I.217 of 2003 (“the Regulations”). The arbitrator was pleased to find that Mudavanhu was properly authorised and that, consequently, his former workmates were properly before the learned arbitrator.

Clearly he erred.

Firstly, section 4 of the Labour (Settlement of Disputes) Regulations S.I.217 of 2003 allows a party to a matter before a labour officer to be represented by a fellow employee, an official of a trade union, employer's organisation or a legal practitioner. The Labour (Settlement of Disputes) Regulations S.I.217 of 2003 do not define who a labour officer is. A definition is found in the Labour Act [Chapter 28:01], where the labour officer is defined as; “a labour officer means a labour officer referred to in para (b) of subsection (1) of s 101.”

Reference to section 101 of the Labour Act [Chapter 28:01] reveals the following definition in relation to labour officers:

“Such number of labour officers and employment officers as may be necessary for carrying out the functions assigned to such officers in terms of this Act.”

There is a clear distinction between a labour officer and an arbitrator and their respective functions under the Labour Act [Chapter 28:01]. Appearance before a labour officer cannot be read or stretched to mean appearance before an arbitrator. It is my considered view that Mudavanhu was not empowered to represent his former workmates at the hearing before the arbitrator. The arbitrator erred at law in permitting him to do so….,.

As a consequence, the court a quo misdirected itself in upholding the finding by the arbitrator that the other twelve respondents were properly before him. In addition, the court should have found that Mudavanhu could not legally represent them before the arbitrator.

SC31-15 : WECTOR ENTERPRISES (PRIVATE) LIMITED vs LUXOR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, HLATSHWAYO JA, and MAVANGIRA AJA

THE AUTHORITY OF MR MOYO It was submitted, on behalf of Luxor, that Mr Moyo was not the litigant but had merely deposed to the affidavit in terms of the High Court Rules as one who could attest to the facts since he had represented Knight Frank as agent for Luxor in most of the ...

Appealed
HH232-15 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: UCHENA J

Counsel for the first respondent also submitted that the deponent of the applicant's founding affidavit does not have personal knowledge of the facts she deposed to in that affidavit. Counsel for the applicant, in response, submitted that she clearly has personal knowledge of the facts of this case. Founding Affidavit Counsel for the first respondent's attack ...

Counsel for the first respondent also submitted that the deponent of the applicant's founding affidavit does not have personal knowledge of the facts she deposed to in that affidavit.

Counsel for the applicant, in response, submitted that she clearly has personal knowledge of the facts of this case.

Founding Affidavit

Counsel for the first respondent's attack on the founding affidavit is based on the need for the deponent to have personal knowledge of the contents of his or her affidavit. The attack on Mrs Zvedi's founding affidavit must therefore be assessed against the provisions of Rule 227(4)(a) of the High Court Rules 1971, which provides as follows;

“An affidavit filed with a written application –

(a) Shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein; and…,.”

Mrs Zvedi, in her founding affidavit's paragraphs 1 to 3, said;

“1. I am a legal practitioner of this Honourable Court, duly sworn and admitted, and am presently employed as a Chief Law Officer in the Civil Division of the Attorney General's Office, the legal practitioners of record of the within named Applicant. I have been duly authorised to depose to this affidavit on behalf of the applicant as the substantial content of the affidavit relates to matters of law and procedure which applicant himself has little or no knowledge of.

2. The matters of fact which I depose to herein are, save where otherwise indicated or the context so suggests, within my personal knowledge and belief.

3. I have acquainted myself with the matters which I refer to herein by perusal of all relevant files which the Civil Division has in its possession, and also by personal inquiry with my colleagues who have knowledge of those matters.”

A reading of these three paragraphs reveals that the deponent has three sources of knowledge which entitles her to depose to the affidavit;

(i) Her legal training and experience;

(ii) Personal knowledge and knowledge acquired from reading files held by Civil Division; and

(iii) Inquiries held with colleagues.

Rule 227(4)(a) of the High Court Rules, 1971 simply requires the deponent to be the applicant or respondent “or a person who can swear to the facts or averments set out therein.”

All Mrs Zvedi had to do to qualify was to read files held at the Civil Division on the facts relating to the Food and Agriculture Organisation Agreements and the applicable law. She then could fill in that with inquiries with officers who had previously dealt with such cases. Armed with that information, she had every right to depose the founding affidavit. I therefore find no merit in counsel for the first respondent's challenge to her capacity to depose to the founding affidavit. There is no doubt that apart from establishing the existence of the Agreements the rest depends on the history of the case which has been handled by the Civil Division and the law, which Mrs Zvedi is expected to know, or ascertain, as she said she did.

Appealed
SC30-16 : STAND FIVE FOUR NOUGHT (PRIVATE) LIMITED vs SALZMAN ET CIE SA
Ruled By: ZIYAMBI JA, GOWORA JA and UCHENA JA

AUTHORITY TO REPRESENT THE RESPONDENT The respondent's opposing affidavit was deposed to by Melina Matshiya on the strength of the authority granted to her by the respondent's special Power of Attorney dated 24 and 26 June 2014. The court a quo held that she was, by that Power of Attorney, properly authorised to represent the respondent. Counsel ...

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HH767-15 : IN RE: STAND FIVE FOUR NOUGHT (PVT) LTD (Under Provisional Judicial Management) FOR AN ORDER FOR FINAL JUDICIAL MANAGEMENT vs x
Ruled By: MATHONSI J

Counsel for the applicant submitted that the power of attorney and Board resolution are still invalid and of no use for purposes of this matter because the Board resolution appointed: “Mtetwa and Nyambirai Incorporating Wilmot and Bennett as its attorney and agent for purposes of recovering the monies due and owing to it by Myramar ...

Counsel for the applicant submitted that the power of attorney and Board resolution are still invalid and of no use for purposes of this matter because the Board resolution appointed:

“Mtetwa and Nyambirai Incorporating Wilmot and Bennett as its attorney and agent for purposes of recovering the monies due and owing to it by Myramar Farming (Pvt) Ltd.”

As Mtetwa and Nyambirai renounced agency on 21 May 2015 (significantly long after the notice of opposition was filed on 20 November 2014) and Wilmot and Bennett are no longer part of the former law firm, Melina Mathsiya, is therefore not authorised to represent the creditor.

Surely, that cannot possibly be a serious argument.

What is apparent is that when the notice of opposition was filed the two (2) law firms were operating as one.They must have broken up somewhere along the way to practice as distinct entities and Wilmot and Bennett continued to represent the creditor and filed a notice of assumption of agency separately. In my view, that did not invalidate the appointment because they were also appointed - albeit as incorporated by Mtetwa and Nyambirai.

The second leg of that argument is equally not sustainable.

It is that the law firm was appointed to recover money owed by Myramar Farming (Pvt) Ltd and not to defend the applicant's application.

The process of recovering money owed by the principal debtor has taken the creditor's agent to the opposition of an application clearly designed to avoid paying. That money is also owed by the applicant as co-principal debtor; a co-principal debtor that has renounced the benefit of excursion. It would be naive to invalidate the document on the basis that it makes reference to the principal debtor and not the surety.

In any event, the purpose of attaching a company resolution or even a power of attorney is to demonstrate that it is the company which is litigating and not an unauthorised person. The court will not disbelieve a deponent of an affidavit who says he or she has authority of the company to represent it unless it is shown evidence to the contrary. It is not enough for the applicant to just complain about such authority without placing anything before the court to suggest that it is not the company that is before the court.

African Banking Corporation of Zimbabwe Limited t/a Banc ABC v DWC Motors (Pvt) Ltd and Others HH123-13….,.

It is important that the applicant is, in fact, not only a surety but also a co-principal debtor who has renounced the benefits of excursion and division. In that regard it matters not that the documents giving authority refer to Myramar Farming (Pvt) Ltd and not the applicant itself. The line between them has become blurred because of that; apart from the fact that both the power of attorney and resolution are couched in such wide and sweeping terms that they allow the agent to do virtually anything on behalf of the creditor.

Even if I were wrong in making the foregoing conclusions, I would still dismiss the objection to the instruments of authority on the basis that the Rules of Court no longer require a legal practitioner to produce a power of attorney to represent a litigant. It is trite that a legal practitioner is an agent of his or her client and that he or she has authority to depose to an affidavit on behalf of the client with a rider that the legal practitioner can only depose to those facts to which he or she has personal knowledge.

In Zimbank Ltd v Trust Finance Ltd & Anor 2006 (2) ZLR 404 (H)…, MAVANGIRA J stated:

“I agree with the applicant's counsel's submission that it is trite that a legal practitioner is his client's agent. See para 4 of his heads of argument. I do not, consider the omission in the founding affidavit of the allegation that the deponent was 'authorised', to be fatal, particularly also, in view of the history or background of the application. This same legal practitioner acted for the applicant in the proceedings which subsequently led to the taxation now sought to be reviewed and in which the issue of his authority was not an issue. I am satisfied that the deponent's averment in the founding affidavit is sufficient, in the circumstances of this matter, to show his authority to depose thereto and therefore find that the deponent was duly authorised by the applicant as he states.”

I associate myself fully with that pronouncement which equally applies to the present matter and accordingly uphold the opposing papers and the representation of the creditor.

CC19-17 : JONATHAN MOYO vs SERGEANT CHACHA and THE ZIMBABWE ANTI-CORRUPTION COMMISSION and THE COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and THE PROSECUTOR-GENERAL
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, UCHENA JCC and ZIYAMBI AJCC

It is apparent from the papers that the first respondent would have filed an opposing affidavit had the lawyers representing the Zimbabwe Anti-Corruption Commission not erroneously believed that Mr Pondo could speak for the first respondent.

SC03-17 : HAROLD CROWN and PORTRIVER INVESTMENTS (PRIVATE) LIMITED vs ENERGY RESOURCES AFRICA CONSORTIUM (PRIVATE) LIMITED and ENERGY RESOURCES AFRICA (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

GROUND 2: Whether the application was authorised. The application was purportedly brought by Energy Resources Africa Consortium (Private) Limited whose Directors are David Mashayamombe and Harold Crown. David Mashayamombe, who deposed to the founding affidavit, averred that he is a Director of Energy Resources Africa Consortium (Private) Limited and Energy Resources Africa (Private) Limited and: “I am ...

GROUND 2: Whether the application was authorised.

The application was purportedly brought by Energy Resources Africa Consortium (Private) Limited whose Directors are David Mashayamombe and Harold Crown. David Mashayamombe, who deposed to the founding affidavit, averred that he is a Director of Energy Resources Africa Consortium (Private) Limited and Energy Resources Africa (Private) Limited and:

“I am a Director of the First and Second Applicant companies. I aver that I have authority to depose to this affidavit on behalf of both Applicants. I attach hereto the resolution of the Board for the Second Applicant as Annexure “A.”

The resolution was signed by David Mashayamombe and T.P. Ntaisi. It read:

“ENERGY RESOURCES AFRICA (PRIVATE) LIMITED

EXTRACT FROM THE MINUTES OF THE BOARD OF DIRECTORS

Held on 30 September 2015

It was resolved:

That the company shall institute court proceedings as advised by the company's legal advisors to protect the interests of the company as a Shareholder in Energy Resources Africa Consortium (Private) Limited.”

No resolution from Energy Resources Africa Consortium (Private) Limited was produced.

The appellants argued in the High Court, as well as before this Court, that Energy Resources Africa Consortium (Private) Limited did not authorise the application purportedly filed on its behalf by David Mashayamombe.

The learned judge rejected that argument.

He found that David Mashayamombe and Harold Crown “are directors in ERAC and ERA” and that David Mashayamombe could depose to the affidavit on behalf of the two companies.

In so finding, the learned judge misdirected himself. Harold Crown is not a Director of Energy Resources Africa (Private) Limited.

Although the papers show clearly, in particulars filed with the Companies Registry, that both Harold Crown and David Mashayamombe are Directors of Energy Resources Africa Consortium (Private) Limited, there is no evidence showing that both are Directors of Energy Resources Africa (Private) Limited. The learned judge's finding that Harold Crown was a co-director of both Energy Resources Africa Consortium (Private) Limited and Energy Resources Africa (Private) Limited is therefore not supported by the evidence. What the evidence discloses is that whereas David Mashayamombe is a Director of both companies, Harold Crown is a Director only of Energy Resources Africa Consortium (Private) Limited.

David Mashayamombe admits that he unilaterally took the decisions, on behalf of Energy Resources Africa Consortium (Private) Limited:

(i) To approach the Zimbabwe Revenue Authority with a view to obtaining the benefit of the tax amnesty;

(ii) To institute the present proceedings; and

(iii) Tto order the City of Harare to halt all payments to Portriver Investments (Private) Limited until details of a new bank account to be opened by Energy Resources Africa Consortium (Private) Limited were availed to it for the purpose of depositing those payments therein.

The court a quo was of the view that David Mashayamombe had acted properly. It said…,:

“In our view, the first applicant (ERAC) did nothing wrong in signing the resolution in the absence of the first respondent (Harold Crown) who is elusive. So whatever Mr Mashayamombe did was above board and valid in terms of the duties of a Director under the Companies Act for the benefit of the companies and the other Directors. Even if he had not signed the resolution as he did we would still have accepted his founding affidavit on the basis that, as a Director, he had personal knowledge of what was happening in the companies and could positively [swear] to an affidavit touching on the affairs of the company. He has sufficient authority to depose to any affidavit.”

This finding calls for comment.

Firstly, Energy Resources Africa Consortium (Private) Limited did not pass or sign a resolution. The only resolution on record was made by Energy Resources Africa (Private) Limited, a different entity from Energy Resources Africa Consortium (Private) Limited and an entity of which Harold Crown is not a Director. Energy Resources Africa (Private) Limited could not legally authorise the institution of proceedings in the name of Energy Resources Africa Consortium (Private) Limited. Thus, the resolution signed by Energy Resources Africa (Private) Limited could not, and did not, constitute authority to David Mashayamombe to make the application on behalf of Energy Resources Africa Consortium (Private) Limited.

Further, while it is correct that David Mashayamombe, as a Director of both Energy Resources Africa (Private) Limited and Energy Resources Africa Consortium (Private) Limited, could depose to an affidavit “touching on the affairs of the company”; it has not been established that he was authorised by Energy Resources Africa Consortium (Private) Limited to institute proceedings on its behalf.

This issue of authorisation to represent a company was clearly dealt with by this Court in Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514 (S) where it was held that a company, being a separate legal persona from its Directors, cannot be represented in a legal suit by a person who has not been authorised to do so. At page 516 B-E CHEDA JA, delivering the judgment of the Court, said:

“It is clear from the above that a company, being a separate legal persona from its Directors, cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle which the courts cannot ignore. It does not depend on the pleadings by either party. The fact that the first appellant is the Managing Director of the fourth appellant does not clothe him with the authority to sue on behalf of the company in the absence of any resolution authorising him to do so. In Burstein v Yale 1958 (1) SA 768 (W), it was held that the general rule is that Directors of a company can only act validly when assembled at a Board meeting.

There is no evidence that there was any service of a notice of a meeting to pass the required resolution authorising the first appellant to represent the fourth appellant. Even if the first, second and third appellants had agreed on the action, there is no indication that the first respondent, who is one of the Directors, was served with a notice of a meeting of Directors to pass the resolution of authority. Both the fourth appellant and the first respondent are entitled to be served with a notice of meeting so that a resolution be passed authorising the first appellant to represent the fourth appellant. This was not done. Failure to do so renders the decision to represent the fourth appellant invalid.”

In his answering affidavit, David Mashayamombe sought to justify the unilateral decisions taken by him, purportedly on behalf of Energy Resources Africa Consortium (Private) Limited, by relying on sections 169(1) and 170 of the Companies Act [Chapter 24:03] ('the Act') set out below;

“169 Directors and Secretary

(1) Every company shall have not less than two directors, other than alternate directors, at least one of whom shall be ordinarily resident in Zimbabwe.

(2) Every company shall have at least one secretary ordinarily resident in Zimbabwe.

(3) Every person signing the Memorandum of a company shall, until other directors are appointed, be deemed to be a director of the company and be liable for all the duties and obligations of a director:

Provided that where a person signs the Memorandum, whether as agent or otherwise, on behalf of some other person who is not qualified to be a director of the company, the first-mentioned person shall be deemed to be a director.

(4) Where subsection (1) or (2) are not complied with in relation to any company, each director of that company shall, unless he satisfies the court that he took all reasonable steps that were available to him to secure compliance with the relevant provisions, be guilty of an offence and liable to a fine not exceeding level three.

[Section as amended by Act No. 22 of 2001]

170 Validity of acts of Directors

The acts of a director or manager shall be valid notwithstanding any defect that may afterwards be discovered in his appointment or qualification.”

The above passages were quoted by the court a quo without explaining their relevance to the matter in issue. It was not explained what “duties of Directors in terms of the Companies Act” had the effect of validating David Mashayamombe's actions nor which “other Directors” would benefit from his actions.

Counsel for the respondents submitted that the requirement that at least one of the Directors be ordinarily resident in Zimbabwe is to be interpreted as meaning that the resident Director could act unilaterally on behalf of the company.

I do not agree.

The provision clearly envisages a situation where alternate Directors would be appointed to act in place of the absentee Directors and would, together with the resident Director, transact the business of the company. It seems to me that section 169 of the Companies Act [Chapter 24:03] was meant to ensure that not all the Directors of a company are absentee Directors and that the management of companies is not left solely to alternate Directors. In other words, the resident Director would act with the alternate Director in making valid decisions on behalf of the company.

The submission to the contrary, urged by counsel for the respondents, would not accord with a proper interpretation of section 169 of the Companies Act [Chapter 24:03].

I conclude that the application brought in the court a quo was not authorised by Energy Resources Africa Consortium (Private) Limited and was therefore invalid. It ought to have been dismissed by the court a quo for this reason.

This conclusion, on its own, is dispositive of the appeal. However, I turn to consider the third preliminary matter.

SC50-17 : JOSEPH SIBANDA and WEDGEWALL INVESTMENTS (PRIVATE) LIMITED vs MAKONDE INDUSTRIES (PRIVATE) LIMITED (in liquidation) and GLEN MOOR TRADING (PRIVATE) LIMITED and OTHERS
Ruled By: ZIYAMBI JA, GOWORA JA and BHUNU JA

The second appellant is a private company with limited liability duly registered as such under the laws of Zimbabwe. It is common cause that the first appellant is the major shareholder of the same. He is also a Director of the company. He deposed to the founding affidavit on behalf of both appellants. ...

HMA17-17 : MAIN ROAD MOTORS (Case 1) and SYLVIA CHORUWA (Case 2) vs COMMISSIONER – GENERAL, ZIMRA
Ruled By: MAFUSIRE J

The second point in limine taken by the respondent was in respect of Case 1. He said the authority of the applicant's deponent to represent it in the proceedings had not been produced or demonstrated. In Case 1, the founding affidavit for the applicant, a company, was deposed to by one Patrick Muguti [“Muguti”]. He ...

In Case 1, the founding affidavit for the applicant, a company, was deposed to by one Patrick Muguti [“Muguti”]. He said he was the Director; that he was duly authorised to depose to the affidavit; and that the facts stated therein were true and correct to the best of his knowledge and belief. As his authority to institute the proceedings and to speak on behalf of the applicant, Patrick Muguti attached an alleged company resolution.

There lay the problem. Counsel for the respondent tore into it.

A company does not function on its own but through an authorised agent. So where there is nothing before the court to show that the agent has been authorised by the company to institute the legal proceedings, a respondent may take objection: see Air Zimbabwe Corporation & Ors v ZIMRA 2003 [2] ZLR 11 [H]; Madzivire & Ors v Zvarivadza & Ors 2006 [1] ZLR 514 [S] and Mall [Cape] [Pvt] Ltd v Merino Ko-operasie Bpk 1957 [2] SA 347 [C].

There are no hard and fast rules as to the form or nature the agent's authority should take. It may be in the form of a company resolution. It may be by affidavit or affidavits. In all situations where the authority is required, there must be some evidence placed before the court to show that the person purporting to represent the company is duly authorised. Each case depends on its own merits.

Counsel for the applicants accused the respondent, in my own words as I understood him, of trying to escalate the technicalities game to ridiculous proportions. He said it was Patrick Muguti who, through his South African-based relative, had arranged the purchase of the Toyota Fortuner motor vehicle; that it was Muguti who, through his agents, had facilitated the customs clearance for the vehicle at the border; and that it was him who had arranged the payment of duty. It was Muguti who the Zimbabwe Revenue Authority (ZIMRA) had, at all times, dealt with when they came after the vehicle. It was him who ZIMRA's officials had held meetings with. At no stage had ZIMRA challenged his authority. Under such circumstances, it was insincere for the Zimbabwe Revenue Authority to purport not to recognise Patrick Muguti's authority to represent the applicant.

Counsel for the respondent countered by saying that the Zimbabwe Revenue Authority (ZIMRA) had dealt with Patrick Muguti as no more than a mere agent of the applicant. That did not translate to clothing him with the requisite authority to represent the applicant in court proceedings.

Plainly, Patrick Muguti's alleged authority to represent the applicant was not a company resolution. It was an open letter addressed to no-one in particular, but “To Whom it May Concern.” It was not even on letter-head, but on a plain sheet of paper. It said:

“Re: APPOINTMENT OF PATRICK MUGUTI TO REPRESENT MAIN ROAD MOTORS

At a meeting held by MAIN ROAD MOTORS, it was unanimously agreed that Patrick Muguti be appointed to represent Main Road Motors in all Legal Proceedings.”

Thus, the document did not say who had met; when and where they had met. To cap it all, it was Patrick Muguti himself who signed the document!

Lawyers should advise their clients properly.

Sometimes, the courts easily see through it when the discharge of a mandate by a legal practitioner has just been perfunctory. Documents should not just be cobbled up for presentation in court without regard to their efficacy. Counsel for the applicant knew, or must have known, that the dud document above was far from being the resolution that is recognised as the authority for a company representative to bring legal proceedings in the High Court.

However, in spite of all that, I was not prepared to non-suit the applicant on account of Patrick Muguti's nebulous authority, or lack of it. Where the authority of a company's representative has not been produced, or has been challenged, the court has discretion to stand down the matter and allow it to be submitted: see the cases of Air Zimbabwe Corporation & Ors v ZIMRA 2003 [2] ZLR 11 [H] and Madzivire & Ors v Zvarivadza & Ors 2006 [1] ZLR 514 [S].

I stood down the point and allowed the rest of the points in limine to be argued.

HB77-16 : TRIANIC INVESTMENTS (PVT) LTD and REOUVEN DRAY vs NQOBILE KHUMALO and FRANCISCA MUFAMBI and THE SHERIFF OF ZIMBABWE, BULAWAYO
Ruled By: TAKUVA J

The second issue, relating to locus standi, is without merit, in my view. Annexure A is a company resolution granting Mr Chikarara authority to sign “all court papers” involving the first applicant and the first and second respondents. Once such a document is filed of record. In the absence of clear evidence ...

HMA31-17 : CHAMU MINING SYNDICATE vs SIBONGILE MPINDIWA N.O. and CHAMWANDOITA SYNDICATE
Ruled By: MAFUSIRE J

Originally, the second respondent was a syndicate of six individuals. Four had died, including one Lawrence Nyakutsikwa [“Lawrence”]. He had died more than twenty years before. In this application, the opposing affidavit for the second respondent was by Lawrence Nyakutsikwa's son and heir to the estate, one Lovemore Nyakutsikwa ['Lovemore']. At the hearing, counsel for ...

Originally, the second respondent was a syndicate of six individuals. Four had died, including one Lawrence Nyakutsikwa [“Lawrence”]. He had died more than twenty years before. In this application, the opposing affidavit for the second respondent was by Lawrence Nyakutsikwa's son and heir to the estate, one Lovemore Nyakutsikwa ['Lovemore'].

At the hearing, counsel for the applicant took a point in limine. She argued that Lovemore was not qualified to speak on behalf of the syndicate, especially given that there were still two other members surviving. She said these had been served with the application but that they had chosen not to file any opposing papers. As such, there was no proper opposition before the court by the second respondent.

In counter, counsel for the second respondent first complained about being ambushed on this point as the applicant had neither raised it in its answering affidavit, nor referred to it in its main heads of argument. He said the applicant had only raised it for the first time in its supplementary heads of argument. These were filed a mere two court days before the hearing.

Counsel for the applicant said since it was a legal point; the applicant could raise it at any time.

Counsel for the second respondent referred to section 61 of the Mines and Minerals Act [Chapter 21:05], particularly subsection [2] thereof. It provides that when two or more persons are registered as joint holders of a mining location, each and every such person shall be jointly and severally responsible for every obligation and liability attaching to the registered holder of such location.

Counsel for the second respondent's point was that in as much as the obligations and liabilities attach jointly and severally to joint holders of a mining location, profits and benefits accrue to them in the same way. He argued that Lovemore Nyakutsikwa, as heir, could legitimately stand in his late father's shoes and claim, or protect, what was due to the estate.

Counsel for the applicant rejected the notion that where responsibilities and liabilities are said to attach to members of an entity jointly and severally, it is the same with regards to the benefits or accruals due to that entity. She maintained that Lovemore Nyakutsikwa could well represent and protect the interests of his late father's estate as heir, but that in no way could he represent the syndicate, especially given that its two original members were still alive.

With respect, the parties' arguments on this point were more heat than light. Neither side cited any authorities for their diametrically opposed views, or referred me to any other principle or philosophy that would show that where an enactment provides, as section 61 of the Mines and Minerals Act [Chapter 21:05] does, that if joint members of an entity are jointly and severally liable for the debts or liabilities of that entity, their right to the accruals or profits of the entity is [or is not] joint and several, in the sense that a payment to one is [or is not] a payment to all. Counsel for the applicant submitted that the right cannot be joint and several, as counsel for the second respondent said it was, because if, for example, the applicant won the case with costs, it could not recover against Lovemore Nyakutsikwa.

But I failed to understand why counsel for the applicant was saying that.

The concept of liability that is joint and several is such that the creditor is not obliged to split the debt equitably, or pro rata, between the debtors. Each is liable to the creditor to the full extent of the debt. It is up to the one that pays to seek reimbursement from the others to the extent of their respective portions. So, to counsel for the applicant's example, if the applicant won the case with costs, and if Lovemore Nyakutsikwa was deemed a member of the second respondent's syndicate, through his being the heir of his late father's estate, then he would be liable for those costs jointly and severally with the other members.

None of the parties answered, satisfactorily, the query that I repeatedly raised during argument, namely, whether these so-called syndicates are corporate bodies whose corporate status would ordinarily remain unaffected by changes in their membership. None of them shed any light on how, as syndicates, they were constituted.

Counsel for the applicant said they were not corporate bodies and that, at any rate, the wording of section 61 of the Mines and Minerals Act [Chapter 21:05], aforesaid, militated against such a construction. However, this was despite the fact that in its own founding affidavit, the applicant described itself as “…, a body corporate/universitas…,.”

The law says he who alleges must prove.

It was the applicant that said, in spite of his being the heir to the estate of his late father, who himself had been a member of the syndicate, Lovemore Nyakutsikwa was not qualified to stand for, and/or speak on behalf of the second respondent's syndicate. The onus was on it. It has not discharged it.

The applicant described itself as a body corporate/universitas. But no incorporation document was produced. The mere coming together of a group of people, or gang, for some commercial purpose such as mining, does not automatically transform it into a body corporate.

In casu, there was nothing placed before me, either by way of documents or cogent argument, to show why Lovemore Nyakutsikwa was disbarred from representing Lawrence Nyakutsikwa's interest in the syndicate that had devolved to him by intestate succession.

At any rate, in the opposing affidavit, Lovemore Nyakutsikwa did not say he was representing the second respondent. He said he was the heir to Lawrence Nyakutsikwa's estate and that he had the authority to respond to the application.

In the circumstances, the applicant's point in limine is hereby dismissed.

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

No locus standi It was contended by the respondents that Reuben Chagwinya, the deponent to the founding affidavit, has no authority from the Cold Storage Company Limited to litigate on behalf of the company. The provisions of section 9 of the Companies Act [Chapter 24:03] are clear; “A company shall have the powers of a natural ...

No locus standi

It was contended by the respondents that Reuben Chagwinya, the deponent to the founding affidavit, has no authority from the Cold Storage Company Limited to litigate on behalf of the company. The provisions of section 9 of the Companies Act [Chapter 24:03] are clear;

“A company shall have the powers of a natural person of full capacity in so far as a body corporate is capable of exercising such powers.”

It is trite law that a company, being a separate legal persona, distinct from its Directors, it cannot be represented in a legal suit by a person who has not been authorized to do so.

The applicant sought to argue that he is the Company Secretary of the Cold Storage Company and that, as such, he has inherent powers to represent the company.

This assertion is, however, not supported by the applicant's own papers. In paragraph 2 of the founding affidavit, the deponent states as follows:

“I am the Administration Manager of the applicant, and, as such, I am duly authorized to depose to this affidavit on behalf of the applicant.”

I was referred, by counsel for the applicant, to the case of River Ranch Limited v Delta Corporation Ltd HH01-10.

The operative part of the cited case states as follows:

“Under the law of agency, it is trite that the agent's actions operate to create a contractual or legal tie between the principal and the third party. The agent's authority to act may arise either by dint of actual authority, whether express or implied, or by way of ostensible or apparent authority or authority by estoppel..,.”

This decision is no authority for the proposition that the deponent ought not to have secured a Board Resolution authorizing him to act for the applicant. The passage of the judgment that has been referred to deals with the agent's ostensible authority to act in certain contractual relationships. The issue was dealt with by the Supreme Court in the case of Madzivire and Others v Zvarivadza & Others SC10-06. The learned CHEDA AJ stated…, as follows:-

“It is clear from the above that a company, being a separate legal person from its Directors, cannot be represented in a legal suit by a person who has not been authorized to do so. This is a well established legal principle which the courts cannot ignore. It does not depend on the pleadings by either party.

The fact that the first appellant is the Managing Director of the fourth appellant does not clothe him with the authority to sue on behalf of the company in the absence of any resolution authorizing him to do so.”…,.

See also the case of Burnstein v Yale 1958 (1) SA 768.

This application is clearly not properly before the court because the deponent to the founding affidavit has not been authorized to act on behalf of the applicant. In my view, this point in limine was well taken….,.

In the result, I accordingly, uphold the points in limine and dismiss the application with costs.

HB97-16 : REVEREND CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA vs CHARLES NHANGA and MTHANDAZI SIBANDA and TEDDY NDLOVU and OSCAR NDLOVU and OTHERS
Ruled By: MOYO J

The first applicant avers, in the founding affidavit, that he is the President and Overseer as well as Chairman of the Board of Trustees of the second applicant which is the Church.

HB100-16 : TEBEKWE SANDS and MATOVU INVESTMENTS JOINT VENTURE vs MIKE G. HUGHES
Ruled By: TAKUVA J

The facts are as follows: Tebekwe Sands (Pvt) Ltd and Matovu Investments (Pvt) Ltd are partners in an agreement where Ngezi Mining Company (Pvt) Ltd, a subsidiary of SMM Holdings, as the registered holder of certain mining claims in the Midlands Province, agreed to tribute the mining location to the tributor, namely, Tebekwe (Pvt) Ltd and Matovu ...

The facts are as follows:

Tebekwe Sands (Pvt) Ltd and Matovu Investments (Pvt) Ltd are partners in an agreement where Ngezi Mining Company (Pvt) Ltd, a subsidiary of SMM Holdings, as the registered holder of certain mining claims in the Midlands Province, agreed to tribute the mining location to the tributor, namely, Tebekwe (Pvt) Ltd and Matovu (Pvt) Ltd. The Tribute Agreement was entered into between the Grantor and the Tributor on 28 December 2015. The tributor, as a joint venture, started mining Tebekwe Mine in Shurugwi. Disputes arose over the manner in which mining operations were conducted. This led to an inspection of the mine by an inspectorate team from the Ministry of Mines on 31^st March 2015. The inspection culminated in a report dated 1 April 2015 being compiled by the acting Provincial Mining Director wherein certain breaches of mining regulations were noted. Operations were then suspended pending compliance.

The report also mentions the following observation:

“Noted also was that Tebekwe Mine is being run under a joint venture between Matovu Investments and Tebekwe Sands but the management structures are different and labour returns and production returns are not being submitted under one management structure. This office would like the management structure at Tebekwe Mine to be clear-cut so that conflict of interest among the joint venture partnership can be resolved in amicably (sic). There appears to be two separate structures at the mine at the moment.”…,.

It is common cause that Tebekwe Sands (Pvt) Ltd and Matovu Investments (Pvt) Ltd have different Directors. The applicant in casu is indicated as Tebekwe Sands and Matovu Investments Joint Venture (represented by Smelly Dube). Smelly Dube is a Director of Matovu Investments (Pvt) Ltd. She is neither a Director nor Shareholder in Tebekwe Sands (Pvt) Ltd). However, in her founding affidavit, she swore as follows;

“1. I am a partner of the Joint Venture, the applicant, in the current proceedings. I am authorized to depose to this affidavit by virtue of a Board resolution dated the 2^nd January 2016 attached hereto annexure 'A'.”

Annexure 'A' is headed “Resolutions of the Board of Directors of Matovu Investments and Tebekwe Sands Joint Venture. This annexure was signed by S. Dube, C. Meya and R.B. Chiwara who are Directors of Matovu Investments (Pvt) Ltd in a Board meeting. This meeting was not attended by any of the Directors of Tebekwe (Pvt) Ltd.

This fact is indisputable.

Quite clearly, the resolutions of the Board of Directors of Matovu Investments (Pvt) Ltd, in the absence of Directors of Tebekwe Sands (Pvt) Ltd, cannot, by any stretch of the imagination, be said to be resolutions of the Board of Directors of the two companies i.e. the joint venture.

What is baffling is why Smelly Dube refers to this resolution as the product of the “Board of the Joint Venture.”

One wonders whether this is said out of sheer ignorance or out of lack of candour or as a deliberate ploy to trick or mislead the court. Be that as it may, the legal position is that Smelly Dube has no locus standi to represent the joint venture in legal proceedings. For her to be clothed with such authority, the resolution must be that of the Board of Directors of the joint venture. There is no such resolution. The legal ramifications are that there is no applicant before the court as a result of this defective resolution.

See Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Ltd 1996 (2) ZLR 565 (S).

In the result, the application is dismissed with costs.

HH458-15 : THE EVANGELICAL CHURCH OF ZIMBABWE vs REVEREND DOCTOR ISAAC SODA
Ruled By: MATHONSI J

Regarding locus standi, the point is made that the applicant, as a universitas, governed by a Constitution, can only act in accordance with that governing document. Anything done in breach of its Constitution is, in essence, a nullity and of no legal consequence whatsoever. I agree. Article VIII A(1) of the applicant's Constitution provides: “(i) The head of the Evangelical Church shall ...

I agree.

Article VIII A(1) of the applicant's Constitution provides:

“(i) The head of the Evangelical Church shall be an Executive Bishop. The title Bishop shall be restricted to the term of office.

(ii) The Bishop's term of office shall be five years which may be extended for another five year term if re-elected by the AGC.”

Article VIII D deals with the duties and functions of the Bishop and provides, at (x), that:

“The Pastors' Council Chairman shall be Deputy to the Bishop and shall act in place of the Bishop when the Bishop is out of office.”

In my view, this matter resolves itself on the facts that are common cause. It is common cause that the outgoing Bishop Makachi's term has expired hence the need for an election to fill that position. In any event, if it had not expired, he is not the one who has instituted this application. Instead, David Chiveso did, purporting to act in terms of a resolution passed at a meeting of the applicant held on 4 May 2015. The minutes attached to the application do not specify which structure of the applicant held that meeting.

The Deputy Bishop is, by Constitutional provision, the Pastors' Council Chairman and he acts on behalf of the Bishop in the absence of the latter. It is common cause that the office in question is currently held by Reverend Amos Mateva, who has deposed to an affidavit denying convening the meeting on 28 March 2015 which overturned the election results. He also denied instituting any legal proceedings on behalf of the church or convening any meeting which resolved to take such action while at the same time proudly claiming responsibility for the inauguration of the respondent on 9 March 2015 - even after he had been served with the present application.

Article XII B (vi) of the applicant's Constitution provides;

“The Administrative Committee shall have the right to represent the church in all its structures in all legal matters where such expertise is needed.”

It is common cause that the Chairman of the Administrative Committee is Reverend Dewah. He has deposed to an affidavit denying convening the meeting of 4 May 2015 which appointed David Chiveso to represent the applicant in this matter. He denies that his committee ever resolved to institute any legal proceedings against the respondent and states that it is not the church which has made this application. Quite to the contrary, it is his committee which organised and presided over the inauguration of the respondent as Bishop of the church.

The question, therefore, is whether David Chiveso had the requisite authority to sue using the name of the church in the circumstances.

The starting point is to state that the relationship between the parties, who are members of an association like a church or a social club, is contractual. They are governed and bound by the rules and regulations of the association: Constantinides v Jockey Club of South Africa 1954 (3) SA 35 (C) 44C. The interests and rights of persons who are members of any type of unincorporated association are governed exclusively by contracts, that is, rights between themselves; Civil Service Employees Association & Anor v Public Service Association & Ors HH111-14; Re: Bucks, Constabulary Widows and Orphans Fund Friendly Society (NO) [1979] WLR 936…,.

In Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S)…, MALABA JA…, made the point that:

“It is important to bear in mind what the learned judge appears not to have appreciated. It is the fact that the legal basis of an un-incorporated voluntary association of persons, such as a social club, is the contract between and amongst the associates. The law recognises their freedom to determine the acts by which they intend to be bound, who should perform them, and when. The duty of a court of law is to determine whether what is claimed to have been done is in fact what was prescribed by the members of the club in strict compliance with the procedure they laid down for validity to attach to those acts.”

Members of the church prescribed for themselves the rules that govern them in the form of the Constitution. They had the freedom to do so. Those rules provide that their head is the Bishop and where the Bishop is unable to act for any reason, it is the Deputy Bishop who acts in his place and discharges the functions of that office which include convening meetings. The rules prescribe that the Administrative Committee, chaired by Reverend Dewah, should represent the church in legal matters. It is not open to any aggrieved member or faction of members to litigate using the name of the church - no matter how many they are. If they do, what they do in violation of the Constitution is a nullity and of no legal consequence.

Unfortunately, this is exactly what David Chiveso has done.

It matters not that he has the backing of the majority members, real or imagined. Such action cannot possibly be valid because David Chiveso does not have the constitutional mandate to sue on behalf of the church. As it now turns out, those clothed with authority to sue on behalf of the church have disowned David Chiveso leaving him high and dry….,.

Counsel for the applicant submitted, at the hearing…, that Elder Chiveso was elevated to the position of Chairman of the Administrative Committee at the meeting of 28 March 2015 which ex-communicated the then Chairman and the Deputy Bishop. For that reason he has capacity to represent the church.

The difficulty with that submission is that that meeting is colourless and mysterious indeed. It is not clear which organ of the church held that meeting and whether it was constitutional.

Counsel for the applicant submitted that it was an Extraordinary General Conference convened in terms of Article 111 A (iv) of the Constitution which provides that the council may convene Extra-Ordinary General Conferences as and when deemed fit.

Even if that were the case, and there was indeed a council with such power among the members who participated, I agree with counsel for the respondent, that, in terms of that Article such a meeting could not invalidate what was decided by the Annual General Conference. This is because it was of inferior jurisdiction than the latter. In terms of Article 111A (1):

“The Annual General Conference (AGC) is the supreme organ of the Evangelical Church of Zimbabwe and all the functions and powers of this church, as a corporate body, are vested and exercised through this organ. Its decisions are final and binding on the entire membership of the church.”

That should put the matter to bed really.

The meeting of 28 March 2015 could not lawfully invalidate what was done by the supreme organ. It could not ex-communicate the Deputy Bishop and/or the Chairman of the Administrative Committee recognised by the supreme organ and for participating at the Annual General Conference. Therefore, both Reverend Mateva and Reverend Dewah remained in office and should be the ones representing the church and not David Chiveso who clearly has no locus standi….,.

In the result, the application is hereby dismissed with each party to bear its own costs.

HHH82-16 : THE PROSECUTOR GENERAL OF ZIMBABWE vs BEATRICE TELE MTETWA and RUMBIDZAI MUGWAGWA ESQUIRE
Ruled By: MAWADZE J

(b) The second point raised by the first respondent relates to the requirements of Rule 227(4)(a) of the High Court Rules, 1971 which provides that; “4 An affidavit filed with a written application…, (a) Shall be made by the applicant or respondent, as the case may be or by a person who can swear to the facts or ...

(b) The second point raised by the first respondent relates to the requirements of Rule 227(4)(a) of the High Court Rules, 1971 which provides that;

“4 An affidavit filed with a written application…,

(a) Shall be made by the applicant or respondent, as the case may be or by a person who can swear to the facts or averments set out therein.”

While it is correct that Mr Mapfuwa, who deposed to the founding affidavit, was not the trial prosecutor and that Mr Zvekare and Mr Mugabe were the trial prosecutors, the fact remains that Mr Mapfuwa is a Law Officer attached to the Appeals Section of the Prosecutor General's Office. It goes without saying that in order to prepare this application Mr Mapfuwa had to peruse the record of proceedings in order to make an informed decision on whether to seek leave to appeal or not. Mr Mapfuwa, to that extent, has full knowledge of the facts pertaining to the application and his authority to depose to the founding affidavit cannot be imputed. The criticism made by the first respondent, however, is well-founded that Mr Mapfuwa improperly commented, in his founding affidavit, on the demeanour of State witnesses. This is something Mr Mapfuwa could not have possibly gleaned from the transcript of the record of proceedings and to that extent he clearly perjured himself. The demeanour of State witnesses could only have been observed by the trial prosecutors.

Counsel for the applicant, to his credit, made this concession.

My finding is that Mr Mapfuwa can swear positively to the facts of this case as a Law Officer who perused the record of proceedings and that the failure to have the trial prosecutors swearing to the founding affidavit cannot defeat the application. While the criticism made by the first respondent as regards some of the comments made by Mr Mapfuwa can be deemed to be fair criticism it is not, in my view, fatal to this application.

I am therefore inclined to make the finding that the deposition of the founding affidavit by Mr Mapfuwa does not invalidate this application and therefore dismiss this preliminary issue.

HH228-16 : ANJIN INVESTMENTS (PVT) LTD vs THE MINISTER OF MINES & MINING DEVELOPMENT and THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER-GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: MANGOTA J

It is important that a comment be made as regards the resolutions which accompanied the applicant's application. The resolutions purport to confer authority upon one Zhang Shibin to depose to the founding affidavit. The first resolution is dated 2 March 2016. The one which was attached to the applicant's answering affidavit was dated 25 February 2016. It ...

View Appeal
HH154-14 : TEL ONE (PRIVATE) LIMITED vs UNITRACK (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

The respondent raised a point in limine that the deponent to the founding affidavit did not adduce proof that she was authorized to represent the applicant in these proceedings….,. The applicant annexed a resolution of its Board of Directors, dated 10 September 2013, to show that the deponent to the founding affidavit was duly authorized to represent ...

View Appeal
HH768-15 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO
Ruled By: CHIGUMBA J

Opposing papers were filed on behalf of the second to fourth respondents. The third respondent deposed to the opposing affidavit on their behalf…,.

HH124-15 : RIMUKA ISLAMIC SOCIETY vs ENOCK MWASHUHWA
Ruled By: ZHOU J

Jabilu Phiri stated that when the defendant failed to vacate the premises, after being given three months' notice, the executive committee of the plaintiff passed a resolution for eviction proceedings to be instituted. A copy of the resolution was exhibited in evidence…,. The defendant questioned the validity of a resolution (exhibit 6) produced by the plaintiff's witness authorising proceedings ...

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS
Ruled By: MAFUSIRE J

The respondents' second point in limine was that the applicant's deponent, one Paul Snyman (“Snyman”), had not produced his authority to institute and represent it in the proceedings. As such, it was argued, there was no proper affidavit, and therefore no proper application before the court. In his affidavit, Paul Snyman had testified that he was the applicant's human resources ...

HH255-14 : FUNGAYI J. NYEMBA vs CBZ BANK and PRAISE PETROLEUM (PVT) LTD and CROSLEY MASHIRI and NOVELTY MASHIRI and FARAI NYEMBA
Ruled By: MATHONSI J

Generally, affidavits must be confined to facts which the deponent is able of his own knowledge to prove except, of course, in interlocutory motions.

Appealed
HH151-16 : SHORAI NZARA and ARROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN and vs CECILIAH KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: MAFUSIRE J

All the applicants sued via one Veronica Nzara [“Veronica”]. She was the deponent to the main affidavits. She was the mother of the first applicant and the grandmother of applicants 2 to 4. She had been resident here. At the commencement of the proceedings all the applicants had been resident abroad. There had been a dispute over the ...

HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: ZHOU J

Regarding the fourth respondent (Evan Mawarire), the name of one Evan Mawarire appears in the papers. However, one Kuzivakwashe Agnes Ngodza deposed to an affidavit on behalf of the fourth respondent. Although she states that the authority to do that is in terms of a power of attorney; no such power of attorney is attached ...

SC27-19 : SYNOHYDRO ZIMBABWE (PVT) LTD vs TOWNSEND ENTERPRISES (PVT) LTD and DAVID WHATMAN N.O. and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MAKARAU JA

Prospects of success It was contended, on behalf of the first respondent, that the applicant's prospects of success on appeal are not bright. In considering this factor I am aware that another court is yet to consider the same prospects of success on appeal when it determines the application for condonation of late filing of the appeal and extension ...

Prospects of success

It was contended, on behalf of the first respondent, that the applicant's prospects of success on appeal are not bright.

In considering this factor I am aware that another court is yet to consider the same prospects of success on appeal when it determines the application for condonation of late filing of the appeal and extension of time within which to file the appeal. I am however comforted by the fact that my findings herein are not binding on that other court.

The applicant contends that the court a quo erred in several respects.

It argued, in the main, that the court a quo erred in holding that a Director of a company who had read the arbitral award, the record of proceedings, and had access to the records and other institutional memory of the company could not depose to an affidavit in an application to set aside the award and to the opposing affidavit in an application to register the award. Its main contention was that corporations, being persons in perpetuity and lacking corpus, can only be represented in legal proceedings by authorised officers and a director, so authorized, is competent to depose to an affidavit on behalf of the corporation. In circumstances where a corporation is so represented, it cannot be said that it has no voice before the court and only the other party will be heard.

Per contra, the first respondent argued that the Director who represented the applicant in the proceedings a quo did not participate in the negotiation of the arbitral agreement, was not a witness to the arbitration proceedings, did not attend the meetings where the dispute was discussed and did not set out the basis of his knowledge of the facts that he deposed to in the two affidavits. On account of this failing, it is argued that the court a quo correctly held that the applicant's affidavits in both matters be struck off.

There is clearly an argument in the two competing contentions advanced by the parties that may detain the Supreme Court. There is no ready answer to each of them and the court will have to rely on one or more underlying legal principles in Company Law and in the interpretation of the rules of procedure to resolve the argument.

The contention by the applicant that a corporation can be represented by any of its authorised directors who has access to company records and other reservoirs of institutional memory has some prospects of success on appeal.

Having found that there is an argument relating to one of the grounds of appeal is sufficient basis for a finding that there are prospects of success in the application for condonation. On this basis alone, I would grant the relief sought in the application. For completeness of the record though, I will briefly consider the other grounds upon which the judgment of the court a quo has been attacked.

HH18-10 : CENTRAL AFRICA BUILDING SOCIETY vs EPHISON NDAHWI
Ruled By: MAKARAU JP

While I am not determining the application for summary judgment itself, it appears to me that it is inadequate for a deponent to an affidavit verifying the plaintiff's claim and amount claimed, if any, to simply state boldly, and badly, that they verify the claim and the amount claimed without giving details. Verifying the claim, in my ...

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

The application before the court was filed of record on 16 December 2013. The founding affidavit was deposed to by G. Chiparaushe in a personal capacity and as the duly authorized representative of the sixty-six other applicants who attached supporting affidavits authorizing him to represent them.

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me. The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares ...

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me.

The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares in the first respondent (the company). The company is the registered owner of a certain piece of land situate in the District of Salisbury Town measuring 3,066 square metres commonly known as 98 Churchill Ave, Gunhill, Harare held under Deed of Transfer Number 39/76 (the property). The shares entitled the holder to an exclusive right of occupation and use of the property.

The applicants aver that they paid the purchase price in instalments. They then encountered problems when they intended to make the final payment as Muir became evasive. The Gurupiras then filed a court application, in HC6660/07, seeking to compel Muir to furnish them with her banking details to enable them to make payment of the balance of the purchase price. They finally paid the balance on 13 February 2008 by cheque.

On 11 December 2007 Muir and the sixth respondent (Leggatte) signed a Shareholders Agreement in terms of which 98 shares in the company were issued and allotted to Leggatte. The Gurupiras got wind of the agreement and they instituted the present proceedings on 7 March 2008 against the company and Muir seeking the following relief;

“Whereupon, after reading documents filed of record and hearing counsel it is hereby ordered that:-

IT IS ORDERED THAT:-

1. The 3^rd respondent is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Gunhill, Harare also known as a certain piece of land situate in District of Salisbury Town Lands measuring 3,066 square metres under Deed of Transfer dated 7 January 1976 (Registration Number 39/76).

2. The sale of the property to any unknown third party be and is hereby set aside.

3. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd respondent is directed to sign all the necessary documents to transfer.

4. Should the 2^nd respondent fail or refuse to sign the necessary documents to effect transfer the 4^th of 5^th respondent is hereby directed to sign all the necessary documents to effect the transfer by 3^rd respondent to 1^st and 2^nd applicants.

5. The 1^st and 2^nd respondents shall bear all the costs of this application on an attorney client scale.”

The application was served by the Deputy Sheriff on both respondents by placing in a letter box. None of the respondents responded, and, on 21 May 2008, the Gurupiras obtained default judgement. On 16 June 2008, the Gurupiras took transfer of the property into their names. On 23 July 2008, they made an ex parte application, in the Magistrates' Court, for the eviction of the company and Muir and it was granted. On 24 July 2008 the company and Muir and all those claiming occupation through her were evicted.

That is when the company, as represented by Leggatte, became aware of the default judgment, and, on 22 August 2008, it applied for rescission of the default judgement in Case No. 4211/08. The matter was referred to trial after material disputes of fact became apparent. The trial was held before MAFUSIRE J, and, on 19 March, judgment was handed down. The court made the following order;

“DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008, in HC1393/08, is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2. Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

3.3 Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Leggatte, should be set aside.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order, and, thereafter, the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendants jointly and severally, the one paying the other to be absolved.”

The company, in terms of paragraph 4 above, then filed its opposing papers to the present proceedings on 2 April 2014. It took the point in limine, that, the order sought by the Gurupiras was incompetent in that they sought transfer of the property and yet they only bought shares in the company. On the same date, the company filed a counter application for the eviction of the Gurupiras. Again, on the same date, Mr Stevenson filed a Notice of Opposition for Muir. The parties filed further papers up to Heads of Argument.

On 22 January 2015, the Gurupiras filed an application for joinder of Leggatte which he opposed. On 25 February 2016 an order granting joinder of Leggatte was granted. Further pleadings were filed pursuant to the order of joinder. Leggatte also adopted the point as raised by the company. The Gurupiras filed a supplementary affidavit wherein, inter alia, they sought an amendment to the draft order.

The matter was set down for hearing on 21 May 2015. A day before the hearing Mr Stevenson filed a document titled “Take notice that the 2^nd respondent hereby files of record a mandate given to her legal practitioners of record.”

A supporting affidavit by Mr Moyo, Leggatte's legal practitioner, is attached. To the affidavit, Mr Moyo attached a letter allegedly written by Muir and delivered to him by Leggatte who had allegedly received it from Muir's son.

On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr De Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted. The amended Draft Order seeks the following relief;

“WHEREUPON, after reading the documents filed of record and hearing counsel:

IT IS ORDERED THAT:

1. An order declaring the 1^st and 2^nd applicant to be the lawful shareholders of the entire shares in the 1^st respondent (the company) and that any purported transfer or appointment of directors by the 1^st respondent to the 6^th respondent be deemed null and void.

2. An order declaring the 1^st and 2^nd applicants to be the lawful owners of the 1^st respondent (the company's) sole immovable property being Stand 12896 Salisbury Township situate in the district of Salisbury measuring 3,066 square metres known as No.98 Churchill Avenue, Gunhill, Harare and that the above property be transferred in favour of 1^st and 2^nd applicants.

3. An order that the 2^nd respondent be directed to sign all necessary documents to effect transfer of both the shares and the property.

4. Should the 2^nd respondent fail to sign the necessary documents to effect transfer of the shares and the property, the 4^th respondent is hereby directed to sign all necessary documents for 3^rd respondent to effect the transfer to 1^st and 2^nd applicants.

5. The 1^st, 2^nd and 6^th respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.”

The granting of the application to amend the Draft Order disposed of the point taken by the company and Leggatte regarding the competency of the order sought by the Gurupiras.

Mr Mpofu took the point, in limine, that the second respondent was not properly before the court. He submitted that the default judgment was taken against all respondents. The company applied for rescission of the judgment. In the order by MAFUSIRE J, only the company was given leave to defend the matter. Muir was in default and never applied for condonation.

He further submitted that Mr Stevenson deposed to the affidavit opposing the matter. He avers that after the granting of the default judgement he renounced agency after being instructed to hand over Muir's files to another legal practitioner. He was then prevailed upon by interested parties to act on behalf of Muir. Since the company was directed to file its opposing papers within 10 days of the order, he felt compelled to do the same for Muir.

Mr Mpofu further contended that Mr Stevenson did not have instructions to deal with this matter.

He tells some falsehoods on page 136 paragraph 12 when he said Muir's husband signed the agreement with Legatte on 27 May 2008 and yet, by then, Mr Muir had transferred his one share to his wife and had passed on.

The supplementary affidavit by Mr Moyo, in paragraph 2, is at variance with what appears in Mr Stevenson's affidavit in paragraphs 4 and 5. The position put forward by Mr Moyo is a false position.

In response, Mr De Bourbon submitted that the entire judgment was set aside for both the second and sixth respondents. The judgment dealt with the issue of service of the application on Muir and the company. All the issues that the court opined might be determined in the matter, in paragraph 3.2 of the order also involve Muir. She was therefore properly before the court.

Mr Stevenson submitted that at the time default judgment was taken the issue was transfer of the property and not of shares. He contended that in an emergency one acts to protect his or her neighbour. If the Gurupiras had been successful, it would reflect on his client as she is the one who sold the shares. He submitted that a legal practitioner is allowed to give evidence. He had sought authority from his client's relative and the letters had just been found by Mr Moyo. The fact that he had handed over file HC66660/08 to another legal practitioner did not prevent him to act in an emergency on behalf of his client. He was the one best placed to know the position.

In reply, Mr Mpofu submitted that the fact MAFUSIRE J opined that the issue of service might need determination does not make Muir a party. In any event, service was effected on the domicilium citandi in terms of the agreement. If Muir is not happy then she is the one who must attack it. A Notice of Opposition is filed by the respondent. The legal practitioner can file a supporting affidavit as witness. Mr Stevenson purports to act as an agent when he has no authority. When notice is given that the issue will be taken up, an attempt is made to validate the authority. Mr Stevenson does not do the affidavit himself. Instead, Mr Moyo, the sixth respondent's legal practitioners, deposes to the affidavit. Mr Stevenson filed an affidavit in his own name without purporting to represent Muir.

The issue for determination is whether the second respondent, Muir, is properly before me. I will examine the issue from two angles;

(i)...,.

(ii) Secondly, whether the affidavit by Mr Stevenson is properly before me. In other words, is there a Notice of Opposition on behalf of Muir?...,.

Coming to the second angle, Muir did not file an affidavit neither has one been filed by a party authorised by her.

In terms of Rule 227(2)(b), every written Notice of Opposition shall be signed by the respondent or by his legal practitioner. In terms of Rule 227(4)(a) an affidavit shall be made by the respondent or by a person who can swear to the facts or averments set out therein.

It is trite that where the Notice of Opposition or affidavit is to be signed by a person other than the respondent, that person must show that he is authorised to do so. The authors HERBSTEIN & Van WINSEN - The Civil Practice of the High Courts of South Africa, 5^th Ed…, put it this way;

“Where an application is made by an agent on behalf of a principal, an averment of the agent's authority is essential, unless it appears from the affidavits filed in the application that the principal is aware of and ratified the proceedings. A statement that the applicant is acting in the capacity of agent for the principal in question is a sufficient allegation of authority to make the application.”

In casu, Mr Stevenson filed an affidavit. It is not clear whether it is an opposing or supporting affidavit. In it he avers that he renounced agency after being asked by Muir to hand over her files to some other legal practitioners. In paragraph 7 he asserts;

“I have been prevailed upon by interested parties to the instant matter to act on behalf of the second respondent in the absence…,.”

It is a telling assertion. He filed the “affidavit” without a mandate from Muir but did so due to some pressure from interested parties.

After the matter had been postponed, Mr Moyo, for Leggatte, filed a supplementary affidavit whereby he asserted that he had discovered a letter from Muirs's son authorising Mr Stevenson to act for Muir.

It is clear that this is an attempt to validate the actions of Mr Stevenson.

Mr Stevenson does not depose to the supplementary affidavit to explain why he was quite categoric in his affidavit that “he had been prevailed upon”. This does not explain why he filed the affidavit in his name without an averment that he had been authorised by Muir to defend the proceedings and to depose to the opposing affidavit.

If the interested parties thought that his evidence would assist them, then he should have deposed to an affidavit which they would attach to their own papers.

In any event, Mr Stevenson does not have personal knowledge about some of the critical matters in this case. He has no independent knowledge of whether the Gurupiras discharged their obligations or not in terms of the agreement. He does not know whether Muir cancelled the agreement, and, if so, how.

Mr Stevenson is either mistaken on the facts or he did not tell the truth in his affidavit. In paragraph 12 of his affidavit he states;

“The agreement signed by the second respondent and her husband, Ramon Charles Muir, on 27 May 2008 with John Leggatte, who signed on 28 May 2008…,.”

It is common cause that the agreement with Leggatte was entered into by Sandra Muir only. By the time of that agreement, her husband was late. She owned the two issued shares in the company with her husband's share having been transferred to her in 2006. Whatever information that he placed before the court is hearsay and it is inadmissible - and such information does not constitute Muir's opposition.

In view of the above there is no opposition filed by Muir and the matter will be related to on that basis.

This leaves the court with the Gurupira's position and that of Leggatte in the main and the counter-application.

HH223-13 : HWANGE COLLIERY CO. LTD and HWANGE COAL GASIFICATION CO. PL vs HWANGE COAL GASIFICATION CO. PL and TENDAI SAVANHU and KINGDOM BANK LTD and STANBIC BANK LTD and GUO FENG and ORS
Ruled By: MAFUSIRE J

There has been ferocious litigation in a space of four months pitting several protagonists. The dispute was convoluted and the issues multi-faceted. At the centre was a company called Hwange Coal Gasification Company (Private) Limited. For ease of reference I shall refer to this company as the Coal Gasification Company. The one protagonist was a Chinese ...

HH204-15 : THUTHANI MOYO vs JOHN BOWMAN and PONDS PHIRI and BERYL WATSON and MARGARET JAMES and ABEL DENHERE and OTHERS
Ruled By: MAWADZE J

While our legal system allows unrepresented litigants to approach the High Court in civil matters, this case brings into focus the need, in some cases which involve intricate issues of law, for such litigants to be legally represented. My spirited attempts to advise the applicant to seek legal representation, even through the Registrar, were spurned by the applicant ...

My spirited attempts to advise the applicant to seek legal representation, even through the Registrar, were spurned by the applicant who insisted that he had the experience, knowledge, and confidence to argue his case.

My misgivings arose after I had, with the patience of the biblical Job, ploughed through the applicant's founding affidavit, answering affidavit, and heads of argument but still was unable to appreciate the applicant's case.

The relief sought by the applicant is couched in the following terms:

“IT IS ORDERED THAT;

1. The Resolutions signed on the 1^st of December 2011 by the 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th Respondents are null and void and have no effect at all.

2. The Resolution signed on 22^nd April 2012 by the 1^st and 8^th Respondents is null and void and has no effect at all.

3. The Constitution used to sit for the meeting of 2^nd November 2011 and 22 April 2012 is null and void and has no effect at all.

4. The 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th Respondents pay the costs of the proceedings.”

The application is opposed by all the respondents except the seventh respondent who apparently was not served.

The manner in which the relief sought is couched is so vague that one has to plough through numerous documents filed in order to find out what these Resolutions relate to. To compound the problem, the applicant does not state in what capacities all the nine respondents are being cited.

TOC H Zimbabwe, from the reading of the papers filed, is a non-governmental welfare organization. The applicant, as per his founding affidavit, is a member of TOC H Zimbabwe since 1994 although his membership is currently being disputed by the respondents (respondents hereinafter refer to all but the seventh respondent).

The respondents are members of TOC H Zimbabwe although the positions they hold in that organization are not specified by the applicant.

It is extremely difficult to summarise the facts giving rise to this application. This is so because the founding affidavit does not seek to identify each and every respondent and in what capacity each respondent is joined in this matter. Further, the founding affidavit is vague and embarrassing as it is long, winding, but still not clear in what the applicant's grievances are and what the applicant wants this court to do for him.

Put simply, the cause of action is unclear.

Let me briefly illustrate the point made above by referring to the founding affidavit. The founding affidavit comprises of 8 pages (page 4–11) or 30 paragraphs. Attached to the founding affidavit are Annexures A to V (page 13–55). The answering affidavit covers 10 pages (page 62–72) and further Annexures A to N (page 72–90) are attached. This is clearly improper for the applicant to attach new annexures to the answering affidavit.

In his founding affidavit, the applicant said he was co-opted as a member of TOC H Zimbabwe Executive Committee in July 2010 until he was barred on 2 November 2011 as per the minutes of the meeting held on that date. At this meeting it was resolved that the TOC H Zimbabwe motor vehicle which was registered in the applicant's name, after being purchased in South Africa, should, with immediate effect, be transferred to TOC H Zimbabwe and that the applicant should hand over the said motor vehicle. At the same meeting, it was also resolved that all extension work of TOC H Zimbabwe be suspended with immediate effect and that the applicant and others involved in this outreach and extension voluntary work should be advised accordingly.

As per Annexures C and D, the applicant, on 12 February 2011, attended, as a member, a meeting for TOC H Zimbabwe Management Committee, and, on 24 September 2011, as a member of the National Executive Committee. The applicant then refers to a meeting he said he was not invited on 25 September 2011 by the National Executive Committee but paragraphs 7 and 8 of the founding affidavit are difficult to comprehend just like paragraph 9. The applicant said he took issue with the cancellation of the Management Committee meeting scheduled for 29 October 2011 and that this was the genesis of his problems.

The applicant does not explain the nature of these problems, but, instead, refers to Annexure H in which TOC H Zimbabwe National Chairman, the seventh respondent, Rodreck Phiri, resigned due to personal commitments. On 16 November 2011, the applicant said he received a letter written by the second respondent terminating the applicant's and others' services as extension workers and for the applicant to surrender the motor vehicle registered in his name but belonging to TOC H Zimbabwe.

According to the applicant, this directive violated Article 5E(viii) (see Annexure E page 21 being a copy of TOC H Zimbabwe Constitution). The applicant does not explain how that provision infringes the Constitution or the applicant's rights.

As per Annexures L and M, the applicant protested as regards the directive in the letter dated 16 November 2011. According to the applicant this invited further harassment and psychological abuse. The applicant does not explain who harassed him and in what way. In May 2012 the applicant said he was arraigned before a Harare Magistrate on charges he did not specify but insists they were trumped up charges. Nonetheless, the applicant was convicted and he alleges he has appealed to this court.

The applicant said on 14 July 2012 the second respondent, in HC6417/12, filed an urgent chamber application seeking an order to compel the applicant to surrender the said motor vehicle to TOC H Zimbabwe. The applicant alleges the second respondent used forged documents in support of this application, being annexure A and the National Council Resolution (Annexure N). Apparently this matter was decided by my sister DUBE J against the applicant who was ordered to surrender the motor vehicle to TOC H Zimbabwe.

The applicant said he decided not to appeal against the order granted by DUBE J but to challenge it through this application.

I do not understand how he intends to do that.

As per the founding affidavit, the applicant refers to another TOC H Zimbabwe Constitution, Annexure U…,. It is not clear what issue the applicant raises in relation to this Constitution except to allege that TOC H Zimbabwe is a Private Voluntary Organisation and that it is a juristic person. The applicant further alleges that the first respondent is in contempt of the Constitution as he had breached section 21(i)(a) to (k) of the Private Voluntary Organisations Act [Chapter 17:05]. This provision however deals with the suspension of Executive Committee members by the Minister responsible for administering that Act.

The applicant alleges that the first respondent's term of office expired on 21 November 2011.

In the concluding paragraphs of the founding affidavit the applicant alleges, in a general way, that his rights have been violated (see paragraph 29). It is not clear in what specific manner his rights have been trampled upon. Instead, the applicant said this is the case because the respondents have used forged documents to persecute him and that they are not ascribing to the aims and objects of TOC H Zimbabwe.

As already explained, it is extremely difficult to appreciate the cause of action in this matter. The story narrated in the founding affidavit, while full of sound and fury, clearly signifies nothing which is legally discernable to found a cause of action. It is not therefore surprising that counsel for the respondents has taken a number of points in limine which she believed, if upheld, disposes of this matter.

I now turn to the points in limine raised. The respondents have raised the following points in limine;

(a) That there are material dispute of facts in the application.

(b) The non joinder of TOC H Zimbabwe in these proceedings.

(d) The incompetence of the relief sought in paragraph 2 of the draft order....,.

The Incompetence of the Relief Sought in Paragraph 2 of the draft order

The National Council Resolution passed on 22 April 2012 (Annexure R…,.) authorizes Ponds Phiri, the Acting National Chair of TOC H Zimbabwe, to represent TOC H Zimbabwe in any litigation and to sign any documents on behalf of TOC H Zimbabwe relating to litigation issues or matters.

This is the resolution the applicant seeks, in paragraph 2 of the draft order, to be declared null and void and to be of no effect of law.

This relief sought is incompetent.

The applicant concedes that the said resolution was recognized by this court in a matter dealt with by DUBE J in HC7180/12 wherein the second respondent successfully represented TOC H Zimbabwe in an application against the applicant for transfer of a motor vehicle. The plea of res judicata is available to the respondents. See Wolfenden v Jackson 1985 (2) ZLR 313…,. It is therefore futile for the applicant to seek to challenge the same resolution in these proceedings when the applicant did not appeal against the judgment by my sister DUBE J.

The relief sought by the applicant, in paragraph 2 of the draft order, is incompetent.

HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA
Ruled By: MWAYERA J

The applicant approached the court through the Urgent Chamber Book seeking for an interdict pendente lite.

The order sought seeks to restrain the respondents, in particular the fourth respondent, from evicting and or disrupting the applicant's farming activities at Subdivision 11 of Chipinge West Annex pending the finalisation of proceedings under case number HC52/18.

The order sought by the applicant, as discerned from the papers, is as follows:

“TERMS OF THE FINAL RELIEF:

(a) That the respondents, or anyone acting through them, be and are hereby interdicted from implementing the changes made to the applicant's farm and location by the letter dated 7 June 2018 from the 1st respondent pending the determination filed by the applicant under case number HC52/18.

(b) The respondents pay costs of suit on attorney client scale.

INTERIM RELIEF:

1. The 4th respondents, or anyone acting through him or under his instructions, be and are hereby ordered to stop, immediately, all evictions of the Applicant and removal of his property or farm workers.

2. The 4th respondent, or anyone acting through him or under his instructions, in particular members of the Zimbabwe National Army, be and are hereby interdicted from entering any part of the Applicant's farm where he is presently occupying and staying.”

I must mention that the matter, which was received on 22 June 2018, was set down for hearing on 25 June 2018 to allow for service to be effected on the parties.

On 25 June 2018, Mr Mukoyi, who indicated he is a Provincial Lands Officer and thus the second respondent, indicated that he came in as a representative of the first, and third respondents with instructions to postpone the matter so as to secure legal representation. The applicant's counsel consented and the court acceded to the indulgence for legal representation to be secured.

On 28 June 2018, at the hearing, the fourth respondent appeared in person. There was no appearance for the first and third respondents even though Mr Mukoyi then purported he had the mandate to represent the first respondent and the third respondent.

I must mention I was somewhat taken aback by the non-availability of the lawyers as that was the reason for postponement in the first place. I even inquired if the first respondent was not represented by the Civil Division and Mr Mukoyi insisted he had the mandate. Even after it was intimated to him, since he was not a lawyer, as he revealed upon being questioned, he could not represent the first and third respondents, he insisted the Ministry had made a decision it was not necessary to engage lawyers.

Mr Mukoyi then appeared in person for the office of the Provincial Lands Officer....,.

I must, however, mention that the court took judicial notice of the fact that Government Ministries are ordinarily represented by the Attorney General's Civil Division. The unusual stance by Mr Mukoyi that the Ministry had made a decision that he appears on their behalf intrigued the court and this has been brought to the attention of the Attorney General's Office.

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 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 first four respondents' in limine matters were that:

(a)...,.;

(b)...,.;

(c)...,.; and

(d) Simbarashe Nyemba did not have the authority to represent the applicant....,.

The deponent to the applicant's affidavit stated that he was the applicant's President, and, as such, he had the mandate and capacity to represent the applicant in these proceedings. He attached to the application Annexure A. The annexure is the applicant's Constitution….,.

The court went through the contents of the annexure. It saw nothing which showed that Mr Nyemba, as President, did have the mandate and/or capacity to represent the applicant in the application. Section 12:0 of the annexure makes reference to Powers and Duties of the National Executive Committee. It reads, in part, as follows:

“The duties of the Office Bearers shall be as follows:

(a) President

The president shall preside at all meetings of which he is present, enforce observance of the Constitution of the Union, sign minutes of meetings after approval by the National Executive Committee, sign all cheques on the banking account of the Union, and perform such other duties as by usage and custom pertain to the office. He shall not have deliberate vote but shall, in the event of equality, have a casting vote.”

The first four respondents submitted, correctly so, that Mr Nyemba did not have the authority to institute the application on behalf of the applicant. They stated, and the court accepted, that no resolution was tendered to show that the deponent to the affidavit of the applicant was clothed with the authority to institute the proceedings on behalf of the applicant.

The duties of the president were stated in clear and categorical terms. Those duties, it was observed, did not confer any authority on the president to act for and on behalf of the applicant in any lawsuit or in criminal proceedings. His duties are confined to his or her work inside and not outside the applicant.

If Mr Nyemba did have the authority of the applicant to represent the latter in this, or any other matter, as he would have the court believe, members of his committee would have conferred him with the requisite authority to so act. They would, as did the first four respondents, have made a resolution to that effect.

Mr Nyemba did not offer any reason as to the fact of why his committee members, if they existed, did not make the resolution allowing him to represent the applicant in this case.

There was no application which was before the court under the observed set of circumstances.

The law says he who avers must prove.

HH229-15 : IZAYI PARK HOUSING SCHEME (represented by ELINAS GUMBO) vs SHADRECK GWENA and OTHERS
Ruled By: TAGU J

The applicant seeks a spoliation order against all the 18 respondents on the following terms:“A. TERMS OF THE FINAL ORDER SOUGHTIt is ordered that:(1) The Respondents are interdicted from interfering with the Applicant's project and business in whatever manner.(2) The Respondents' behaviour and conduct is hereby declared wrongful and unlawful.(3) ...

The applicant seeks a spoliation order against all the 18 respondents on the following terms:

“A. TERMS OF THE FINAL ORDER SOUGHT

It is ordered that:

(1) The Respondents are interdicted from interfering with the Applicant's project and business in whatever manner.

(2) The Respondents' behaviour and conduct is hereby declared wrongful and unlawful.

(3) The Respondents are ordered to pay costs of suit on a client–attorney scale.

B. PROVISIONAL ORDER GRANTED

Pending the confirmation of the provisional order;

It is ordered that;

(1) The Respondents be and are hereby ordered to release and return all documents, and office keys to the Applicant forthwith or at least not later than 48 hours from the date of this order.

(2) The Respondents are ordered to vacate the Applicant's offices at No.6 Kataza Road, Zvishavane and allow the Applicant to take occupation of its offices forthwith.

(3) The Respondents are barred from interfering with the Applicant's affairs, business or/and project in whatsoever manner unless with the Applicant's consent.

(4) The Respondents are barred from going to Izayi Park project site unless with the consent of the Applicant.

(5) The Respondents are interdicted from harassing and threatening the Applicant's executive members or the Applicant's general members in whatever manner.

C. SERVICE OF THIS ORDER

Service of this order shall be effected by the Applicant's legal practitioners.”

The respondents raised three points in limine....,.

(iii) Thirdly, the respondents took issue with Elinas Gumbo's locus standi in judicio to represent Izayi Park Housing Scheme before any court of law.

Their argument being that there was a General Meeting on 3 January 2015 where elections were held and a new executive committee was ushered in and Elinas Gumbo lost the right to occupy office or any positions within Izayi Park Housing Scheme Organisation.

The applicant challenged this point in limine on the ground that there is a resolution which authorised him to depose an affidavit on behalf of the applicant. He argued that the respondents are raising the issue of the purported new executive which is the basis of this present application. He therefore denied that he was trying to challenge the election of the new executive through the back door.

The resolution which Elinas Gumbo referred to says;

“RESOLUTION OF IZAYI PARK HOUSING SCHEME EXECUTIVE COMMITTEE MADE AT A MEETING WHICH WAS HELD ON THE 11TH DAY OF FEBRUARY 2012

The executive committee of Izayi Park Housing Scheme unanimously passed a resolution that ELINAS GUMBO shall represent the cooperative in all legal proceedings instituted by the co-operative or against the co-operative.

Dated at 11th February 2012

M. Mubaiwa
……………………………
MAXWELL MUBAIWA
SECRETARY”

In casu, up to about 7th February 2015 there was a legitimate committee in charge of Izayi Park Housing Scheme headed by Elinas Gumbo.

Currently, there is a new executive committee in charge of the same Izayi Park Housing Scheme purportedly headed by one Stephen Chipembere, comprising the rest of the respondents.

It is the alleged conduct of the respondents towards Elinas Gumbo and his committee members that is the subject of this application.

In my view, any aggrieved party has a right to take the offending party to court for redress.

In this situation, any committee member has locus standi in judicio to sue any committee member. It is apparent that there is a split among the members and each group is claiming to be the legitimate one. Under such a scenario the courts could be approached by either side to make a determination. The party deciding to approach a court for arbitration cannot be said to lack locus standi in judicio.

In the case of Elinas Gumbo, he has locus standi to sue any member of the committee. Equally still, unless it has been decided otherwise, he has full locus standi to sue on behalf of Izayi Park Housing Scheme in terms of the resolution of the 11th of February 2012.

In the result, I dismiss the last point in limine.

HH231-15 : TAPFUMANEYI MUDZENGERERE and OTHERS vs CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MUREMBA J

The applicants were granted an arbitral award by Arbitrator P Bvumbe in their favour on 28 August 2013. On 12 February 2014 the arbitral award was quantified. This is an application to have the arbitral award registered as an order of this court in terms of section 98(14) of the Labour Act [Chapter 28:01] for the purposes of enforcing the order.

The respondent raised a point in limine to the effect that the application should be dismissed for the reason that the founding affidavit was deposed to by Mr Caleb H. Mucheche, who is a legal practitioner, on behalf of the applicants, his clients.

In the answering affidavit, Mr Mucheche argued that there was nothing irregular about a legal practitioner deposing to an affidavit in a matter where he is conversant with the facts. He said, in the present case, he is the one who was representing the applicants during arbitration proceedings leading to the present application, so he is conversant with the facts.

He went on to cite the case of Zimbabwe Banking Corporation Limited v Trust Finance Limited and Another HH130-06 where the court took into account the history of the case and accepted the applicant's affidavit which had been deposed to by the applicant's legal practitioner. The same legal practitioner had acted for the applicant in the proceedings which subsequently led to the taxation case which sought to be reviewed by the court. The court said that the deponent was duly authorised by the applicant as he averred in the affidavit.

Mr Mucheche also referred to the case of Air Zimbabwe Corporation & Others v The Zimbabwe Revenue Authority HH96-03. In that case, the court held that the deponent to the applicant's affidavit had authority to act for and on behalf of the applicants after taking into account the prior dealings between the parties.

Mr Mucheche further argued that it is not always a requirement that there has to be proof of authority to represent the principal.

It was submitted that in any case this court is only faced with the application for the registration of the Arbitral Award and nothing else. It does not have to enquire into the merits of the case.

In support of the point in limine, counsel for the respondent made reference to the case of Mandaza v Mzilikazi Investments (Pvt) Ltd 2007 (1) ZLR (H) wherein NDOU J said;

“Generally, a legal practitioner should not depose to a founding affidavit on behalf of a client. However, he may do so if the facts of the case are within his personal knowledge. Even in such exceptional case the practice should be exercised sparingly.”

Counsel for the respondent argued that in the present case there is no explanation why the applicants could not depose to the affidavit themselves.

Taking into account the history of the case, that it is Mr Mucheche who was representing the applicants during the arbitration proceedings leading to the present application, I would not say that it is doubtful that he was authorized by the applicants to represent them. What he deposed to is within his personal knowledge.

I find the cases that were cited by Mr Mucheche relevant. Even the case that was cited by the respondent's counsel is also relevant and it supports the applicant's argument that in a case where a legal practitioner has personal knowledge he can depose to an affidavit.

Even Rule 227(4)(a) of the High Court Rules, 1971 states that an affidavit that accompanies a written application shall be made by the applicant or respondent, as the case maybe, or by a person who can swear to the facts or averments set out therein.

In Bubye Minerals (Pvt) Ltd & Another v Rani International Ltd 2007 (1) 22 (S) CHEDA JA…, stated that a founding affidavit must be based on personal knowledge and not on hearsay.

That being the case in the present matter, that Mr Mucheche's affidavit is not based on hearsay, I am not persuaded by the respondent's argument.

In the case of TFS Management Company (Pvt) Ltd v Graspeak Investments (Pvt) Ltd & Another 2005 (1) 333 (H) it was stated that an affidavit accompanying an application may be made by a legal practitioner who can depose to facts within his personal knowledge. In that case, that is what happened and the court went on to say that the legal practitioner did not require special authority to depose to the affidavit. His authority to depose to the affidavit in the application for further particulars could not be disputed because the respondents had not impugned his authority to act for the applicant in the main action.

In the present case, if Mr Mucheche was representing the applicants in the arbitration proceedings the respondent has no basis to challenge his authority in deposing to the founding affidavit.

For the above reasons, I will dismiss the point in limine.

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

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 ...

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

The applicants are foreign legal entities. The first is a German company. It is owned by a Bulgarian Corporation. The second is a Bulgarian entity. It is a subsidiary of the first.

Until 22 November 2017 the first applicant was the owner of a certain piece of land which is situated in the district of Salisbury. The piece of land is called Stand Number 295, Northwood Township 2 of Sumbeni. It was held under Deed of Transfer number 5022/2008. It is commonly known as Number 116 Twickenham Road, Mount Pleasant, Harare [“the Mount Pleasant property”].

On 9 December 2013 one Rajendrakumah Jogi [Jogi] purchased the property. He took title in the property on 22 November 2017 following its sale to him. It is now registered under Deed of Transfer number 4766/17 which Deed records the name of the purchaser as the new owner of the same.

The second applicant was, and still is, the owner of a certain piece of land which is situated in the district of Salisbury. It is called Lot 12 of Lot 15 Block C of Avondale. It is held under Deed of Transfer number 1657/89. It is commonly known as Bath Mansions Flats. It is at Number 32, Bath Road, Avondale, Harare [“The Avondale property”].

The abovementioned two properties lie at the centre of the main application, HC12074/16 and the urgent chamber application, HC2012/18.

The applicants filed the main application on 28 November 2016. They successfully moved the court to interdict the first and second respondents from dealing in any way with the two properties and/or from coming within 100 metres of the same. The interim order which the applicants obtained in the mentioned regard is dated 2 December 2016.

On 22 February 2018 l heard the matter which related to the confirmation or discharge of the provisional order of 2 December 2016. Having heard submissions from both parties, I reserved judgment.

Before the ink which related to my hearing of the main application had dried up, the applicants filed the urgent chamber application, HC2012/18. They did so on 5 March 2018. They moved the court to restore to them possession of the Mount Pleasant property and to interdict:

(a) The first (Bulchimex GMBH Import Export Chemikalien und Produkte (Pvt) Ltd), second (Sarah Hwingwiri) and third (Rajendrakumar Jogi) respondents from selling, or, in any way, alienating or encumbering the Mount Pleasant property.

(b) The fourth respondent (Registrar of Deeds) from facilitating or making further transfer of the Mount Pleasant property which is held under Deed of Transfer number 4766/17 in favour of Rajendrakumah Jogi to anyone.

(c) All the respondents from facilitating or transferring title in the Avondale property which is registered under Deed of Transfer number 1637/89 to anyone.

(d) The fifth respondent (the Sheriff of Zimbabwe) from evicting occupants of the Avondale property.

Because title in the Mount Pleasant property had already changed hands from the first applicant to Mr Jogi when the application was filed, I disallowed paragraphs 1, 2 and 3 of the applicants draft order.

I allowed paragraphs 6 and 9 of the draft order with some amendments. I directed that the word Lease which appeared in paragraph 6 should be deleted. I further directed that the phrase or 116 Twickenham Drive, Mount Pleasant, Harare which appeared in paragraph 9 should also be deleted.

I, accordingly, allowed paragraphs 4, 5 and 6 as amended, 7, 8, 9 as amended and paragraph 11 to remain as the interim relief for the applicants.

The interim order was issued with the consent of all the parties.

My reading of the record satisfied me that HC2012/18 was urgent.

The applicants stated that they were not aware that their Mount Pleasant property had been sold and transferred to someone. They said they became aware of that fact on 1 March 2018 when the deponent to their founding affidavit received a call from one Kudzai Kupambana, the caretaker of the property. He submitted that Mr Kupambana informed him that the Messenger of Court was carrying out eviction at the premises. He said he immediately notified the applicants' legal practitioners of the development. These and him, he said, visited the Mount Pleasant property. He averred that the legal practitioners and him later established that it was not the Messenger of Court but the Deputy Sheriff who had carried out the eviction.

The supporting affidavit of Mr Kubambana was on all fours with that of the deponent of the founding affidavit especially on the portion which related to the latter's eviction.

The applicants filed the urgent chamber application a day after their discovery of what had occurred. They most certainly treated the matter with the urgency which it deserved.

The first, second and third respondents opposed the urgent chamber application. They, however, and to their credit, consented to the interim relief which I granted to the applicants in its amended form. They did so in the interests of progress. They agreed with me that the situation had to be arrested. All the parties shared the view which the court had. The view was that the situation of the parties' case did not have to get out of hand whilst judgment in the main application, HC12074/16, was being awaited.

Two characters stand out clearly in both applications. These are;

(1) One Borislav Boynov (“Borislav”); and

(2) One Sarah Hwingwiri (“Sarah”).

Borislav Boynov is the deponent to the founding and the answering affidavits of the applicants. He is so for the main application as well as the urgent chamber application.

Sarah Hwingwiri is the second respondent in both applications. She is the deponent to the affidavits of the first and the second respondents in both applications.

Sarah Hwingwiri and one Ivan Pantchev (“Ivan”), a Bulgarian who is domiciled in Bulgaria, registered the first respondent in terms of the laws of Zimbabwe. They are both its Directors.

Borislav Boynov's averments, in the main application, were that the applicants own the Mount Pleasant and the Avondale properties. He said they also used to own a certain piece of land which is situated in the district of Salisbury called Lot 9 of Lot 9 of Glen Lorne measuring 4,047 square metres [“the Glen Lorne property”]. This, he alleged, was sold by Sarah Hwingwiri and Ivan Pantchev for $150,000 and transferred into the name of the purchaser.

The sale, he stated, was with the authority of the applicants.

He submitted that Sarah Hwingwiri and Ivan Pantchev did not transmit the proceeds of the sale to the applicants. He successfully moved the court to grant to the applicants the provisional order which prohibited the first and the second respondents from dealing, in any way, with the remaining two properties as well as from coming within 100 metres of the same. He, in the final order, prayed that:

(i) The first applicant be declared the owner of the Mount Pleasant property;

(ii) The second applicant be declared the owner of the Avondale property; and

(iii) The first and second respondents be declared to have no ownership rights or interests in either property....,.

The two respondents raised a number of preliminary matters in their opposition to HC12074/16.

(a) They submitted that Borislav Boynov did not have the authority of the first applicant to depose to the founding affidavit on its behalf....,.

Annexures M1 and M2, which the applicants attached to their answering affidavits, dispose of the respondents' first preliminary matter. The annexures show that the applicants conferred authority on Borislav Boynov to depose to their affidavits....,.

My first observation relates to the resolution which the respondents passed.

The resolution confers authority on Sarah Hwingwiri to depose to their opposing affidavits. It raises more questions than it provides answers to them. It appears at page 114 of the record. The respondents called it Annexure A.

A reading of the annexure with what Sarah Hwingwiri stated in the first paragraph of the opposing affidavit shows the effort and the extent to which the respondents went to mislead the court. She stated:

“I, the undersigned, SARAH HWINGWIRI, do hereby make oath and state as follows:

1. I am the second Respondent in this matter and I have been authorised to depose to this affidavit on behalf of the 1st Respondent by virtue of a company resolution attached hereto as Annexure A….,.”…,.

The annexure, it is evident, is not that of the first respondent who allegedly authorised Sarah Hwingwiri to depose to the opposing affidavit. It is that of the first applicant.

The question which arises is; who, between the first applicant and the first respondent, authorised Sarah Hwingwiri to depose to the opposing affidavit?

The respondents left that critical issue not only unanswered but also unresolved.

I mention, in passing, that the first applicant could not have authorised Sarah Hwingwiri to depose to the opposing affidavit. It could not do so when it sued the first respondent and her. It could not, in other words, approbate and reprobate, and, at the same time, remain relevant to this application.

The first applicant and the first respondent have similar names. There is, however, a marked difference between the two legal entities. The difference lies in that the first respondent's name ends with the phrase (Private) Limited.

The second question which arises is whether it was by design or by accident for the respondents to have cited the name of the first applicant in their resolution.

The probabilities are that it was more by design than it was by accident. The citation was deliberate. It aimed at confusing issues especially in the mind of unsuspecting readers of the resolution.

It is my considered view that Sarah Hwingwiri must have realised the folly of the resolution of 29 November 2016 (i.e. Annexure A). It was for the mentioned reason, if for no other, that she refrained from repeating the same in all subsequent affidavits which she filed in opposition to any application which related to the two properties.

She, for instance, stated, in the opposing affidavit which she filed on 3 January 2017, as follows:

“I, SARAH HWINGWIRI, duly sworn do hereby take oath and state as follows:

1. I am the second respondent and a director of the first respondent. I am therefore authorised to depose to this affidavit on my behalf and on behalf of the 1st Respondent.”

She stated, in her opposing affidavit to the urgent chamber application, as follows:

“I, the undersigned, SARAH HWINGWIRI, duly sworn do hereby take oath and state as follows:

1. I am the second respondent in this matter. I also have authority to depose this affidavit on behalf of the 1st Respondent by virtue of being its director.”…,.

Sarah Hwingwiri did not mention the person who authorized her to depose to the first of the above mentioned two affidavits. She produced no resolution which conferred authority upon her to act for the first respondent. All she said was that she was authorised to depose to the affidavit on behalf of the first respondent.

Sarah Hwingwiri stated, in so far as HC2012/18 was concerned, that she had the authority to depose to the affidavit on behalf of the first respondent by virtue of being its Director.

The correct position of the matter is that she could not confer any authority upon herself. She could not even do so in her capacity of Director of the first respondent.

It is a trite position of Company Law that a Director cannot confer authority upon himself or herself to act for, and on behalf of, the company on the basis that he/she is a Director of the same. If that was the case, then each Director would, at his/her whim, drag his/her company to court as he/she pleases. Such an undesirable development would run against the concept of good corporate governance which lies at the centre of any business enterprise as well as Company Law.

The respondents did not mince their words in their criticism of the applicants' case.

They indicated that the application was fatally defective for want of a resolution which authorised Borislav Boynov to depose to the founding affidavit. They drew the court's attention to the importance of the resolution which they said was/is a sine qua non aspect of motion proceedings.

They spoke eloquently on the matter. They referred me to a number of case authorities which stressed the importance of the resolution in an application.

Among the cases which they cited in their heads, and in support of the necessity for a resolution, was that of Madzivire & Ors v Zvaridza & Ors 2005 (2) 514 (S)…, which stated as follows:

“…,. A company, being a separate legal persona from its Directors cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle which the courts cannot ignore….,.

In Burstein v Yale 1958 (1) SA 768, it was held that the general rule is that Directors of a company can only act validly when assembled at a Board meeting.”…,.

The respondents also referred me to the case of Dendeuka v Paper Place (Pvt) Ltd HH195-11 in which BHUNU J …, made some incisive remarks on the need for a company resolution. The learned judge said:

“The position in our law is…, that a company, being a fictitious legal persona, cannot act on its own. There is therefore need for a company resolution to legalize and validate any company acts…,.”

The last case which the respondents were pleased to draw my attention to on the matter was that of Tapson Madzivire and 3 Ors v Misheck Brian Zvarivadza and 2 Ors HH 2005 wherein MAKARAU J…., stated:

“The fictional legal persona (i.e. a company) still enjoys full recognition by the courts. Thus, for any acts done in the name of a company, a resolution duly passed by the Board of Directors of a company has to be produced to show that the fictional persona has authorised the act.”…,.

The applicants complied with the principles which were enunciated in each of the above cited three cases. They produced two resolutions which conferred authority on Borislav Boynov to depose to their affidavits.

The respondents, on the other hand, produced no resolution.

They, for a start, produced what purported to be the first respondent's resolution. This was, however, not such. They produced no resolution at all for the subsequent affidavits which they filed in opposition to the main and the urgent chamber applications.

It is accepted that Sarah Hwingwiri is a Director of the first respondent. She could not, however, confer authority upon herself to speak for, and on behalf of, the first respondent. She required a resolution for the purpose. She required the input of Ivan Pantchev for any resolution which she would have produced to remain valid. Ivan Pantchev's views were left out of the equation on the issue of the respondents' resolution.

The third question which arises from the above analysed matter is whether or not the respondents are properly before the court.

They passed no resolution authorizing Sarah Hwingwiri to speak for them. The first respondent is, by virtue of the stated fact, out of court.

I am pleased to refer the respondents to Macfoy v United Africa Co Ltd (1961) 5 ALL ER 1169 (PC) 1172 in the mentioned regard. The remarks of LORD DENNING, which he made in the case, are relevant to their situation. The learned LORD JUSTICE said:

“If an act is void, then it is a nullity. It is not only bad but incurably bad….,. It is automatically null and void without more ado….,. You cannot put something on nothing and expect it to stay there. It will collapse.”

Apart from the invalidity of the respondents' resolution, no evidence was produced to show that the first respondent's two Directors – Ivan Pantchev and Sarah Hwingwiri – sat down in some room to pass any resolution. Ivan Pantchev is a Bulgarian who is domiciled in Bulgaria. Sarah Hwingwiri, as a Zimbabwean, stays in this country.

The applicants' unchallenged statement was that Ivan Pantchev came to Zimbabwe at their instance. They said he left for Bulgaria and returned to Zimbabwe at the end of November 2013 to sell the Glen Lorne property. He, according to them, returned to Bulgaria after the sale. They submitted that he has not returned to Zimbabwe again.

The respondents did not challenge the above-mentioned averments of the applicants. They remained mute on the same.

By not challenging the applicants' assertions, the respondents admitted that Ivan Pantchev did not come to Zimbabwe. He, in other words, did not return to Zimbabwe after he had sold the Glen Lorne property. He, in short, did not sit down with Sarah Hwingwiri to pass a resolution authorising her to depose to the opposing affidavits.

The long and short of the above described matters is that the first respondent is not before the court. It is out of court. The opposing papers are, therefore, those of Sarah Hwingwiri alone.

HH195-11 : ELISHA DENDEUKA vs PAPER PLACE (PVT) LTD
Ruled By: BHUNU J

The applicant obtained an arbitral award in terms of the Labour Act [Chapter 28:01] in the following terms:

“Wherefore, after carefully analyzing the facts and the law, I make the following award:

1. That Claimant is hereby reinstated as a permanent worker to his position without loss of salary or benefits with effect from the date of dismissal.

2. That if reinstatement is not an option, the Claimant should be paid damages of US$16,184 within thirty (30) days from the date of the arbitral award.”

The arbitrator, Mr. Munyaradzi Dangarembizi, duly signed and authenticated each page of his reasons for registration with the High Court. The section provides as follows:

“(14) Any party to whom an arbitral award relates may submit for registration the copy of it furnished to him in terms of subsection (13) to the court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the arbitral award exceeds the jurisdiction of any magistrates court, the High Court.

(15) Where arbitral award has been registered in terms of subsection (14) it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.”

Mr. Thomas Vallance submitted a copy of the respondent's opposing affidavit in his capacity as agent of the respondent authorized thereto by a special power of attorney granted to him by the company's Managing Director, one Mohamed Hafiz- Abdulla.

The position in our law is however that a company, not being a fictitious legal persona, it cannot act on its own. There is therefore need for a company resolution to legalize and validate any company acts as observed by MAKARAU J in Tapson Madzivire and 3 Others v Misheck Brian Zvarwadza and 2 Others HH 2005. In that case the learned judge observed that:

“The fictional legal persona that is a company still enjoys full recognition by the courts. Thus, for any acts done in the name of a company a resolution duly passed by the Board of Directors of a company has to be produced to show that the fictional person has authorized the act.”..,..

I am in respectful agreement with her ladyship's observation.

In this case, the purported company agent produced a power of attorney granted to him by the company's Managing Director. A power of attorney is however no substitute for a company resolution.

In that case, even if the Managing Director, Mr. Abdulla, had appeared in person before the court he would still have been required to produce a company resolution as proof that the company had authorized him to do what he is attempting to do on its behalf. Without a company resolution Mr. Vallance is merely representing the Managing Director's position and not that of the company....,.

In the result, I hold that the respondent not being properly represented in these proceedings the application should be treated as unopposed.

HH257-18 : CLEVER VUTETE vs CHAIRPERSON OF THE APPEALS COMMITTEE (ZIMBABWE OPEN UNIVERSITY) and ZIMBABWE OPEN UNIVERSITY
Ruled By: MUNANGATI-MANONGWA J

The applicant herein was employed by the second respondent, Zimbabwe Open University, and was discharged for violating the second respondent's Code of Conduct. He appealed against the decision of the disciplinary committee.

The appellate body failed to inform the applicant of the outcome of the appeal within the period provided in the Code of Conduct.

The applicant is claiming a violation of his rights as enshrined in section 69 of the Constitution due to the employer's failure to adhere to its own Code of Conduct. For that, he seeks a declaratory order for the following relief;

It is ordered that;

1. The first and second respondents' failure to process and deal with the applicant's appeal in terms of the second respondent's Code of Conduct be declared unlawful and wrongful.

2. The subsequent discharge of the applicant, by the respondents, be and is hereby declared to be unlawful and wrongful.

3. The disciplinary proceedings against the applicant, by the respondents, on the basis of the obtaining allegations be and are hereby stayed permanently.

4. The first and second respondents are ordered to pay costs of suit on a client-attorney scale, jointly and severally, one paying the other to be absolved.

The application is opposed.

The applicant raised a point in limine at the hearing that there is no opposition before the court.

Counsel for the applicant submitted that there was no proper opposition before the court as the deponent of the opposing affidavit did not state which of the two respondents he was representing and whence from he derives his authority. He argued that merely stating that he was employed as a Human Resources Manager by the second respondent was not sufficient.

Counsel for the respondents, in response, conceded that whilst the opposing affidavit could have been better drafted, it is apparent that the deponent, Mr Mutaviri, was deposing to the opposing affidavit on behalf of the respondents. The applicants had not provided any evidence indicating that the deponent was on a frolic of his own.

I find that the opposition should be read together with the Notice of Opposition. The filed notice indicates that the opposing affidavit is filed on behalf of the respondents by the respondents' legal practitioners.

That the deponent alleges that he is employed by the second respondent as Human Resources Manager, and that he purports to know the facts of the matter, and, this being a labour-related matter, I have no doubt that the respondents would in fact repose authority in the deponent. Further, the respondents provided the authority - although it then came as an attachment to the heads of argument.

In my view, there was/is no prejudice suffered by the applicants. I find that there is no merit in the point raised as what is crucial is that the deponent is deposing to what is in his personal knowledge.

Accordingly, the point is dismissed.

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

The applicant filed an urgent chamber application for a provisional order of stay of eviction as interim relief and a final order that he should remain in peaceful occupation of immovable property known being Stand number 107 of Salisbury Township, also known as Number 102 Harare Street, Harare.

I heard the application on 10 February 2017 and dismissed it with costs, giving reasons ex tempore, in the presence of the applicant, for lack of urgency and locus standi by the applicant.

On 22 May 2017, three and a half months later, the applicant wrote to the Registrar requesting the reasons for my decision, which I render hereunder.

The Facts

Stand 107 of Salisbury Township belonged to the late Sushila Natverlal Naik whose estate was duly registered on 9 May 2016 and administered under the Master's supervision to its final conclusion; (Letters of Administration issued to the deceased's son, Joytindra Natverlal Naik, dated 22 June 2016, refer). As part of the finalisation of the administration of the estate, the property was disposed of to the first defendant on 21 July 2016.

Upon finalisation of the administration of the estate, and the disposal of the estate property, three months' notice was properly given to the legal tenant, Goldpack Investments (Pvt) Ltd and all those claiming occupation through it, to vacate the property in favour of the new owner.

Upon failure of the occupants to vacate, the matter went before the Magistrates Court which granted an order of eviction on 3 February 2017.

Prior to her death, the deceased had leased the property for five years, commencing 1 November 1999 to 31 October 2004, to Goldpack Investments (Pvt) Ltd. The terms of the lease agreement did not allow for subletting or cession without the deceased's consent.

Contrary to the lease agreement, and subsequent to the deceased's death, Goldpack Investments (Pvt) Ltd “ceded” its rights to a company called Clintvest Investments (Pvt) Ltd. While the directors of the two companies were the same, the companies were, and are, separate legal entities.

Clintvest Investments (Pvt) Ltd subsequently allegedly sublet to several flea market stall-holders as is apparent from Magistrates Court Case No. 41044/2016. The applicant's name is not included as one of the stall holders in that matter though he swore an affidavit on their behalf - the basis of which is unclear. Nothing on the record, or in previous litigation, supports that the applicant was also a stallholder and subtenant of Clintvest Investments (Pvt) Ltd.

The applicant instituted the present application on his own behalf as appears from his founding and “supplementary founding affidavit” (sic). However, he purports to speak for other subtenants without laying the basis for doing so.

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the entire judgment of the High Court, sitting at Harare, handed down on 8 May 2019, in which the following order was granted:

1. The appointment of the 2nd and 3rd respondents as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null and void.

2. The appointments of the 2nd respondent, as Acting President and President of the Movement for Democratic Change party, were unconstitutional and therefore null and void.

3. All appointments and/or re-assignments and actions of the 2nd respondent, in his purported capacities as Deputy/Acting or incumbent President, were unconstitutional and therefore null and void.

4. The 1st respondent be and is hereby ordered to hold an Extra-Ordinary Congress after the lapse of at least one month after the date of this Order.

5. The respondents are ordered to pay the applicant's costs of suit, jointly and severally, the one paying the others to be absolved.

The Background

The first appellant is the Movement for Democratic Change, a political party which has capacity to sue and be sued in its own name (“the Party”).

The remaining protagonists are members of the Party who were cited as follows in the court a quo;

The second appellant is the President of the Party, while the third appellant is its National Chairman.

The first respondent, who was the applicant a quo, is the Organising Secretary for the Gokwe Sesame District. The second respondent is the Deputy President, the third respondent is the Acting President and the fourth respondent is the Secretary General of the Party.

The facts relating to this matter are as follows;

On 15 July 2016, the second appellant and the second respondent were appointed Deputy Presidents of the Party by the founding President, the late Dr Morgan Richard Tsvangirai. At the time these appointments were made, the post of Deputy President was occupied by the third respondent, having been elected as such at the Party's Congress held in October 2014.

Following the death of Dr Tsvangirai, on 14 February 2018, a special National Council meeting was convened, on 15 February 2018, whereat the second appellant was confirmed as the Acting President of the Party.

On 24 September 2018, the first respondent launched an application in the High Court challenging the validity of the President's appointment of the second appellant and second respondent as Deputy Presidents of the Party. He averred that such appointments were made ultra vires the Party's constitution as they were not done via an election by Congress. The first respondent argued that the meeting of 15 February 2018 was a non-event as the National Council did not have powers to ordain an Acting President or a President of the Party. He further emphasised that Article 9.21.1 of the Party's constitution was clear that, upon the death of the President, the Deputy President assumed the role of Acting President. As such, he argued that the third respondent, as the duly elected Deputy President of the Party, became Acting President upon the death of Dr Tsvangirai, and was obliged to call for an Extraordinary Congress within a year.

The third appellant opposed the application and deposed to an affidavit on behalf of the first and second appellants as well as the second and fourth respondents. He took four preliminary objections to the application;

(i) Firstly, he contended that the first respondent did not have locus standi to represent the first appellant as he had not produced a solemn declaration reflecting proof of acceptance of his membership of the Party.

(ii) Secondly, he stated that the first respondent's delay in raising his complaints was inordinate and would cause prejudice as many developments had occurred since the appointments under challenge. Further, he claimed that the first respondent had waived his rights to challenge the appointments.

(iii) Thirdly, he argued that the first respondent ought to have exhausted internal remedies provided in the Party's constitution by noting an appeal to its Appeal's Tribunal.

(iv) Lastly, the third appellant contended that the order directing the first appellant to hold an Extra-Ordinary Congress was incompetent relief in an application for a declaratur.

Regarding the merits of the application, the third appellant disputed the validity of the Constitution relied on by the first respondent. He submitted that the “true Constitution” was attached to the late President's opposing affidavit in the case of Patson Murimoga & Anor v Morgan Richard Tsvangirai & Ors HC7453/16.

The third appellant also argued that the appointments by the late President were made in terms of Article 9 of the Constitution which gave the President power to appoint deputies to “officers of Congress” on the instructions of the National Executive and the National Council. It was submitted that the appointments were made on the instructions of the National Council and ratified by the same in terms of Article 18 of the Party's constitution.

The third appellant further submitted that the subsequent occupation, by the second appellant, of the office of Acting President, was valid as it was the result of unanimous assent and was based on the second appellant's valid election as Deputy President.

In his replying affidavit, the first respondent challenged the validity of the third appellant's opposing affidavit. He stated that, in the absence of a mandate from the other parties, the third appellant could not depose to solemn facts on their behalf.

Further, he contended that the third appellant had not shown that he was authorised to represent the Party.

Lastly, the first respondent took the position that the first appellant, together with the second, third, and fourth respondents, were barred for having failed to file their opposition to the application.

Determination of the Court A Quo

On the preliminary objections raised by the parties, the court a quo made the following rulings;

It held that the first appellant was barred for having failed to file an opposing affidavit, as the third appellant, who purported to act on its behalf had failed to show proof of his authority. The court also held that the second and fourth respondents were barred for having failed to file their own opposing papers, while the third respondent was barred for having failed to oppose the application.

In relation to the first respondent's locus standi to institute the proceedings, the court held that his membership card was sufficient proof of his membership of the Party.

Regarding the issue of exhaustion of internal remedies, the court a quo reflected that the relief sought by the first respondent would not be competently granted by the Party's appeals tribunal. The court reasoned that it was more probable that the appeal would not be heard in an impartial manner due to the composition of the Appeals Tribunal.

On the issue of waiver of the first respondent's right to challenge the appointments, the court found that the first respondent had timeously approached the court after he became aware of his rights through a legal opinion furnished to the Party.

On the merits of the application, the court held that the appointments of the second appellant and second respondent, as Deputy Presidents of the Party, having by-passed the electoral process, were ultra vires the Party's constitution.

The court reasoned that the Constitution clearly provided that a Deputy President could only hold office by virtue of an election by Congress. This position was fortified by the court's interpretation of several provisions of the Party's constitution. The court considered the provisions of Article 6.4.4, which relate to the composition of the National Standing Committee. In particular, Article 6.4.4.1 was clear that a member could only occupy the office of Deputy President pursuant to an election at Congress. The late President had acted contrary to this provision by “picking” the second appellant and the second respondent as Deputy Presidents. The court also had regard to Article 9 of the Constitution which provides for the functions of various office bearers, including Deputy Presidents. In particular, Article 9.14 stipulates that all office bearers hold office by virtue of winning an election in Congress in terms of Article 6.4.4. The court highlighted that the President's powers of appointment, in terms of Article 9.1.4, had to be exercised “where such is provided for in the Constitution.” Thus, the President could only appoint the Secretary for Elections in terms of Article 6.4.4(k). The court further indicated that Article 9 listed office bearers and the Deputy President in the singular. In light of this, the court reasoned that the mention of Deputy Presidents in the plural was a typographical error.

The court further considered the powers of the National Council, in terms of Article 18 of the Constitution, to cure an oversight or omission in the appointment of office bearers. The court held that the contention that the National Council had delegated to the late President the power to make the contested appointments was not supported by the evidence. The oversight or omission sought to be cured was not identified in the papers pertaining to the deliberations of the National Council in 2016. Accordingly, Article 18 could not aid the appellants' case. Neither the President nor the National Council could bypass the requirement of holding an election at a Congress to fill those offices that were already provided for under the Constitution.

Additionally, the court took the view that the Party was founded on constitutionalism and social democracy, as per Article 3.1. Thus, the imposition of Deputy Presidents, by the late President, and the imposition of the second appellant as Acting President, acting in concert with the National Council, at its meeting on 15 February 2018, was contrary to those founding values.

In light of these considerations, the court a quo held that the contested appointments were unconstitutional and granted the order aforementioned.

Consequently, the court applied the provisions of Article 9.2.1(b) of the Constitution, in terms of which the Deputy President becomes the Acting President, where the President is unable, for any reason, to perform his or her powers, functions, or administrative duties. The court accordingly concluded that at the time of the late Dr Tsvangirai's death, the third respondent was the Deputy President and ought to have assumed presidential duties, pending the holding of an Extra Ordinary Congress to elect a new President, in terms of Article 9.21.1 of the Constitution.

Grounds of Appeal

There are numerous grounds of appeal herein, some of which are repetitive or should have been conjoined. They are reproduced verbatim as follows:

1. The court a quo erred in coming to the conclusion that first appellant was barred for failing to file an opposing affidavit and so erred in treating a valid affidavit deposed to by the third appellant as pro non scripto, and, in proceeding to determine the matter without hearing the first appellant.

2. A fortiori, the court a quo erred in proceeding in a manner which is in violation of the first appellant's constitutionally-protected right to be heard before an independent and impartial court as envisaged by section 69(2) of the Constitution of Zimbabwe, 2013.

3. Having found that the Constitution relied upon by the appellants at least contemplated the appointment of Deputy Presidents, the court a quo misdirected itself in concluding, without hearing evidence on this material issue, that the reference to Deputy Presidents in that Constitution was a typographical error.

4. A fortiori, the court a quo erred in writing a Constitution for the first appellant and in irregularly bringing it under the authority of such a document.

5. The court a quo erred in not concluding that the appointment of Deputy Presidents in the first appellant was in accordance with the Constitution of that party, had been mandated by congress and the highest decision making organ outside congress, and was, for all purposes, valid as a unanimous decision of a voluntary association.

6. Having been addressed on the law governing voluntary organisations and its effect on the subject before it, the court a quo misdirected itself in not pronouncing itself on that issue and in not deciding a question which was material to the decision required of it.

7. The question of the proper Constitution for the first appellant having been previously resolved in terms of an extant judgment in a matter which involved the same parties and/or at least their privies, the court a quo erred in allowing that issue to be re-opened and in founding its judgment on a Constitution which is foreign to the first appellant.

8. The court a quo erred in treating, without a valid legal or factual basis, the domestic remedies set out under the first appellant's Constitution as ineffectual and in not requiring, in accordance with superior court authority, the exhaustion of those remedies ante the bringing of the matter to court.

9. The court a quo misdirected itself, such misdirection amounting to an error in law, in not finding that the first respondent's participation in the activities of the first appellant, under the leadership of the second appellant, and duration of same, estopped him from contending against the validity of his appointment to the prejudice of the first appellant.

10. The ordinary congress for the first appellant having become due, the court a quo erred in finagling upon that party an extra ordinary congress and so erred in creating a totally untenable position which is at variance with the first appellant's Constitution and is totally unworkable either in fact and/or in law.

11. The court a quo erred in intervening, without a valid legal or factual basis, in the workings of a voluntary association and in subordinating its statutes and unanimous assent to the whims of a dishonestly disgruntled individual....,.

Issues for Determination

Before commencing his submissions, Mr Mpofu indicated that he was abandoning the tenth ground of appeal which avers that the court a quo had “finagled” upon the Party an Extra-Ordinary Congress which was at variance with the Party's constitution.

In my view, he should also have been forthright in abandoning the related seventh ground of appeal which impugns the court a quo for having founded its judgment on a Constitution which was “foreign” to the first appellant. Clearly, this latter ground simply cannot be sustained given the position eventually accepted, and confirmed, by his co-counsel that the document availed by the Court, which was identical to that contained in the appeal record as well as that attached to Dr Tsvangirai's opposing affidavit in Case No. HC7453/16, is the only true and authentic Constitution of the Party for present purposes.

It is that very document which was also relied upon by the court a quo in formulating its judgment.

It follows that the seventh ground of appeal must also be jettisoned. It is accordingly ordered that both the seventh and the tenth grounds of appeal be struck out.

I now turn to the remaining nine grounds of appeal.

As I have already intimated, some of the grounds of appeal ought to be combined so as to rationalise their disposition. On that basis, I consider the following to be the salient issues for determination in casu:

(a) Whether the first appellant was correctly barred a quo, and, consequently, denied the right to be heard.

(b) Whether the first respondent should have exhausted the domestic remedies afforded by the Party constitution before instituting the application a quo.

(c) Whether the first respondent was estopped from challenging the validity of the second respondent's appointment as the leader of the Party.

(d) Whether the reference to Deputy Presidents (in the plural) in the Party constitution was a mere typographical error.

(e) Whether the appointment of the second appellant and the second respondent, as Deputy Presidents of the Party, and the subsequent appointment of the second appellant as its Acting President, were valid as being in accordance with the Party constitution.

(f) Whether there was any valid legal or factual basis for the court a quo to intervene in the workings of the Party as a voluntary organisation.

Status of First Appellant A Quo

In his opposing affidavit a quo the third appellant (Mr Komichi) declares that he is “the National Chairman of the [first appellant] by whom I am duly authorised to depose to this affidavit in my capacity as National Chairman.”

The court a quo found that the first appellant was barred for having failed to file its own opposing affidavit and that the third appellant, who purported to act on its behalf, had failed to demonstrate his authority to do so.

Mr Mpofu submits that Mr Komichi's affidavit clearly speaks to the status and locus standi of the Party and that there was no need for him to have been authorised for that purpose. The judgment a quo materially affected the rights and interests of the Party to its prejudice and it should therefore have been afforded the right to be heard. In any event, the first respondent could not drag the Party to court and then claim that it had no locus standi. Furthermore, even if the Party were to be held to be in default a quo, it is entitled to appeal against the judgment a quo given that it was final and definitive in its effect vis a vis the Party.

Mr Mutungura counters that no person claiming to act on behalf of another can do so without authority. A body corporate, being an artificial person, cannot act by itself and any person claiming to act on its behalf must be clothed with authority to do so. In the instant case, Article 6.6.1(j) of the Party constitution allows its National Executive Committee to institute and defend legal proceedings against the Party. It was therefore necessary for that Committee to appoint Mr Komichi to act on behalf of the Party.

Mr Madhuku supports this position and further submits that the holding of executive office did not entitle Mr Komichi to depose on behalf of the Party. In any event, the Party was fully heard a quo through the third appellant's (Mr Komichi) averments and submissions.

I note, first and foremost, that the cases relied upon by counsel for the respondents, i.e. Crown & Anor v Energy Resources Africa Construction SC03-17 and Madzivire & Ors v Zvirivadza & Anor 2006 (1) ZLR 514 (S), were both concerned with corporate bodies as opposed to voluntary organizations.

In the latter instance, particularly where a political party bedevilled by a leadership wrangle is involved, it may be necessary to adopt a less rigid approach to questions of locus standi and authority to depose. The principal mischief that is to be guarded against is to avoid the situation where the organisation in question is litigated for by an un-authorised person without its specific sanction.

As is reasoned by HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,:

“Any person who can swear positively to the facts will be sufficient and no special authority to him or her by the Plaintiff is necessary for the affidavit to be effective.”

The difficulty in casu, however, is that Mr Komichi's opposing affidavit is somewhat laconic and lacking in particularity as to the specific mechanism by which he was authorised by the Party to depose to his affidavit.

It is not evident whether this was by resolution of the National Executive Committee or by some other committee or functionary within the Party. Nor does Mr Komichi affirm that he can swear positively to the facts deposed to in his affidavit. Be that as it may, I do not think that it is necessary, for present purposes, to determine this particular aspect of the appeal. As is conceded by Mr Mpofu, the second and third appellants were represented and heard through the same counsel that represented the first appellant. Given this context, his belated prayer that the matter be remitted to the court a quo to hear the first appellant would entail nothing less than an exercise in judicial futility.

I agree with Mr Madhuku that the first appellant was adequately represented in the proceedings a quo, and, despite having been non-suited, was afforded the right to be heard.

Insofar as concerns the present appeal, there can be no doubt that the first appellant has had more than ample opportunity to be very ably represented and fully heard in the proceedings before us. All in all, I take the view that the first ground of appeal is entirely otiose and need not detain this Court any further.

View Appeal
HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI
Ruled By: MUSHORE J

The applicant is a member of the Movement for Democratic Change [hereinafter “MDC” or 'the party”) having joined the party in 2000. He is also currently the Organising Secretary for the Gokwe Sesame District of the party.

The respondents were cited by the applicant as follows;

(i) The first respondent is the Movement for Democratic Change Party.

(ii) The second respondent is Nelson Chamisa, who is cited in his capacity as the President of the party.

(iii) The third respondent is Elias Mudzuri, who is cited in his capacity as Deputy President of the party.

(iv) The fourth respondent is Thokozani Khupe, who is cited in her capacity as the Acting President of the party.

(v) The fifth respondent is Douglas Togaraseyi Mwonzora who is cited in his capacity as the Secretary General of the party.

(vi) The sixth respondent is Morgan Komichi, who is cited in his capacity as the Acting Chairman of the MDC.

This is an application for declaratory relief declaring;

(a) The second and third respondents appointments as Deputy Presidents of the MDC unconstitutional and thus null and void; and

(b) Declaring that the second respondent is not the Acting President/President of the party; and

(c) Declaring all appointments, re-assignments and actions done by the second respondent as the Acting President/President of the party null and void.

The applicant is also desirous of obtaining an order compelling the party to hold an Extra–Ordinary Congress.

It is a common cause that the late President of the party, Dr Morgan Richard Tsvangirai appointed the second and third respondents as Deputy Presidents in 2016. It is also common cause that Dr Morgan Richard Tsvangirai passed away on 14 February 2018. It is not in dispute that thereafter, on 15 February 2018, a day after the late President's passing, at a meeting of the Executive Committee and the National Council, the second respondent (who described himself in the minutes as being the Acting President), was, by a resolution of the meeting, appointed as the President of the party. It is also common cause that the fourth respondent was elected Deputy President at a National Congress which was held in 2014.

However, it is the manner by which the second respondent ascended to his position of President that has driven the applicant to make the present application challenging that present status quo of the leadership within the party, combined with a challenge to the manner by which the second and third respondents rose to their Deputy Presidential posts, sometime in 2016, without being elected into office.

The applicant has described his concerns as follows in his founding papers;

According to him, the late President, Dr Tsvangirai, did not have any powers conferred to him in terms of the MDC Constitution to appoint two Deputy Presidents as he did in 2016. He alleges that the late President acted ultra vires the Constitution. Thus, according to the applicant, any such appointments, by choice, were unconstitutional, and thus void for unconstitutionality. He produced the booklet version of the Constitution of the Party with his papers and referred to various provisions in the Party's Constitution in support of his contentions.

Insofar as the fourth respondent is concerned, it is the applicant's case that according to the Party's Constitution, she is the only person who is eligible to be the Acting President by virtue of her being elected Deputy President at a Congress in 2014; and by virtue of her has continued to hold that position up until the date of Dr Tsvangirai's demise.

Regarding the second respondent becoming President of the party, the applicant is alleging that the assumption, by the second respondent, to the position of President of the Party, was in defiance of the provisions of the Constitution of the Party. He alleges that that rise to the position of President, by the second respondent, is void for unconstitutionality.

Using the applicant's own words he describes the events leading to the second respondent assuming the Presidency of the Party as being a “well–choreographed move to usurp the throne.”

The applicant casts doubt on what he describes as being “second respondent's ascendancy to the title of President of the party” which he states was done in breach of the Constitution.

The applicant alleges that on 15 February 2018, the second respondent purported to call a meeting of the National Executive Committee and the National Council at which resolutions were made 'to ordain' the second respondent as President of the party. He attached minutes of the meeting convened by the second respondent at which he states that neither House made such a resolution and that both Houses, and I quote, “pretended to accept the second respondent as the President of the party.”

The applicant also stated that prior to launching the present application he took legal advice after reading a legal opinion on the issue of the legality of the Presidency. The legal advice he received encouraged him to file the present application. He also stated that he learned, from such legal advice, that the meeting which took place on 15 February 2018, a day after the death of Dr Tsvangirai, did not have constitutional powers to ordain either an acting or substantive President.

The applicant also complained that he had not been invited to the meeting of 15 February 2018 in circumstances where he should have been invited in his capacity of a delegate to that Congress. The applicant also pointed out that the meeting of 15 February 2018 was just an Ordinary Congress and that it is a meeting of an ExtraOrdinary Congress in which such party business pertaining to leadership should be discussed and not just an Ordinary Congress as was the case in the present matter.

The applicant stated that the hastily convened meeting, by the second respondent, of the party's Standing Committee; the National Executive Committee and the National Council, on 15 February 2018, was void for unconstitutionality because the second respondent had no such powers to convene such a meeting.

The application is opposed....,.

The sixth respondent stated that the booklet Constitution which the applicant had produced as evidence, did not accurately reflect what the sixth respondent calls 'the true Constitution”. However, the sixth respondent did not attach the version of the “true Constitution” which he was making reference to; save by referring the court to examine another court record in the case of Patson Murimoga and Anor v Morgan Richard Tsvangirai & Ors HC7453/16.

I noted that even though the sixth respondent paid homage to another version of the Constitution, the sixth respondent still relied on the booklet Constitution which was the applicant's version of the Constitution when he made his legal submissions. It seems he then forgot to point out the differences between the applicant's version and his version of the Constitution for the remainder of his submissions.

The sixth respondent submitted that the late President had powers conferred on him by virtue of Article 9 to appoint the Deputy Presidents (as he did in 2016) and that, as such, Article 9 validated the legitimacy of the appointments of the second and third respondents as Deputy Presidents by Dr Tsvangirai. The sixth respondent then went on to state that the late President's actions, in appointing the second and third respondents as Deputy Presidents, were as a result of the National Council has delegated its authority to the late Dr Tsvangirai to appoint those deputies with its approval, in terms of Article 18 of the MDC Constitution. The sixth respondent pointed to the mention of Deputy President(s) in the plural in Article 6.4.4.1(a) as being “evidence that the Constitution allowed for more than one Deputy President to the party.”

With respect to the appointment of the second respondent as President of the party, the sixth respondent justified the appointment of the second respondent by stating that the second respondent was “the preferred choice” of all three Deputy Presidents and that the appointment was unanimous.

He also added that the applicant accepted that appointment by the applicant having continued to be an active member of the party.

In reply to the Notice of opposition, apart from challenging the averments made by the sixth respondent, the applicant raised two points in limine pertaining to the automatic bar which he submitted was in place against all of the respondents and which he alleged prevented all of the respondents from proceeding to present their respective arguments on the merits....,.

(i) Whether the first, third, fourth and fifth respondents were barred for failing to file opposing affidavits

The first, third, fourth and fifth respondents did not file individual opposing affidavits at all. The first, second, third, and fifth respondents' names, however, appeared on the sixth respondent's affidavit which was entitled:

“1st, 2nd, 3rd, 5th and 6th Respondents' Notice of Opposition.”

It is trite that a party cannot make averments under oath on behalf of a party for facts which he cannot swear positively to; and for which he has not been granted the authority to make such representations.

The sixth respondent presented his affidavit in an improper form.

The Rules do not allow a party to act in a representative capacity to other respondents without the veracity of the authority to make averments on behalf of those respondents being shown and approved to be in order by the Court. At the very least, there must be an averment in the affidavit as to how the respondent purports to act in such representative capacity.

Order 32 Rule 233 of the High Court Rules, 1971…, reads as follows:

“233. Notice of opposition and opposing affidavits

(1) The respondent shall be entitled, within the time given in the court application in accordance with Rule 232, to file a notice of opposition in Form No. 29A, together with one or more opposing affidavits.

(2) As soon as possible after filing a notice of opposition and opposing affidavit in terms of subrule (1), the respondent shall serve copies of them upon the applicant, and, as soon as possible thereafter, shall file with the Registrar proof of such service in accordance with Rule 42B.

(3) A respondent who has failed to file a notice of opposition and opposing affidavit in terms of sub-rule (1) shall be barred.”

When looking in the body of the sixth respondent's opposing affidavit and its substance, it becomes clear that in his submissions he does not introduce himself as purporting to represent the second, third and fifth respondents although the heading of the affidavit represents the sixth respondent to be deposing evidence on behalf of the second, third and fifth respondents.

It is trite that hearsay evidence is not permitted in affidavits.

In the present matter, it was necessary for the third and fifth respondents' to file their own affidavits wherein they could depose to statements of fact which are within their knowledge.

The fact that the third and fifth respondents did not file opposing affidavits means that they are barred for their failure to comply with Order 32 Rule 233 referred to above.

The third and fifth respondents are therefore not before the court.

Although he made no mention of his authority to represent the third and fifth respondents, the sixth respondent submitted that he is deposing evidence on behalf of himself and the first respondent (MDC). Thus, in essence, the only party whom the sixth respondent actually purports, by his own submissions, to represent, is the first respondent - that being the MDC.

This is what he said when he introduced himself in his opposing affidavit:

“I, Morgan Komichi, the National Chairman of the Movement for Democratic Change (MDC) the abovementioned first respondent by whom I am fully authorised to depose to this affidavit in my capacity as National Chairman do hereby make oath and state…,.”

He did not show proof of such authority having been given to him by the MDC. Even in the Party's Constitution itself, there is no such authority conferred to the National Chairperson at any time to enter into legal proceedings or defend legal proceedings on behalf of the first respondent. In fact, the sixth respondent did nothing to assure the court that he has instructions from anybody for that matter.

Thus, with no–one to speak on its behalf, the first respondent, which is a juristic personality, lacks representation. Accordingly, the first respondent is also barred for failure to file an opposing affidavit.

The fourth respondent has not opposed the application and also barred.

The second respondent filed a short affidavit in support of the sixth respondent's affidavit.

The only notices of opposition remaining are those of the second and sixth respondent's with the second having been filed in support of the sixth respondent's affidavit.

The court thus only recognises the second and the sixth respondents as being the litigating opposition to the present application.

CC20-20 : MATHEW SOGOLANI vs MINISTER OF PRIMARY AND SECONDARY EDUCATION and HEADMASTER, MASHAMBANHAKA SECONDARY SCHOOL and HEADMASTER, CHIZUNGU PRIMARY SCHOOL and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

The application was opposed by the first, the second, and the third respondents (“the respondents”).The first respondent...,., deposed to the opposing affidavit.

HH19-11 : JAMESON RUSHWAYA and ANNIE RUSHWAYA vs PATTERSON TIMBA and SWIMMING POOL & UNDER WATER REPAIRS PL and TOLROSE INVESTMENTS PL and MESSENGER OF COURT, KADOMA
Ruled By: MAVANGIRA J

This is an urgent chamber application in which the applicants seek a Provisional Order in the following terms:“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 first, second, and fourth respondents and/or their agents ...

This is an urgent chamber application in which the applicants seek a Provisional Order in the following terms:

“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 first, second, and fourth respondents and/or their agents shall not interfere in any manner whatsoever with applicants' possession of Glencairn Mine or the assets thereat.

INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicants are granted the following relief:-

2. That first, second, and fourth respondents be and are hereby ordered to remove all the locks on the 3 gold concentrators, carbon room, 4 fuel pumps, workshop, and gates leading to the mining areas at Glencairn Mine.

3. That the first, second, and fourth respondents restore possession of the Nissan NP 300 (registration no. ABP 0456) and Nissan Hardbody 2.5 (registration no. ABG 4956) to the applicants.”

At the onset of proceedings, counsel for the first, second, and third respondents raised four preliminary points for determination by the court before the matter could be heard on the merits:

(i)...,.

(ii)...,.

(iii) The third point raised is that the applicants herein have no locus standi in judicio to institute these proceedings. Counsel for the first, second, and third respondents submitted that the mine and assets are owned by the third respondent. The applicants are shareholders, the first applicant being also a director of the third respondent. The company has not mandated them to bring these proceedings which they have brought in their personal capacities....,.

It appears to me that the preliminary point that must first be determined is whether or not the applicants have the locus standi in judicio to bring this application before the Court.

The essence of the applicants' claim is that they were despoiled of their possession and control of Glencairn Mine, and the assets thereat.

In his founding affidavit, the first applicant has stated that the second applicant and he, in their capacities “as the legal directors and shareholders of the third respondent, have been in peaceful and undisturbed possession of the mine…, and all the assets thereat.”

Clearly, the applicants' said possession was not exercised or enjoyed in their personal capacities.

It is common cause that the third respondent owns and runs the mine. Any disturbance of peaceful and undisturbed possession, therefore, could only be complained of by the third respondent.

Had the third respondent passed a resolution authorising the institution of these proceedings, they would have been instituted in the name of the third respondent and the applicants, as authorized agents, would have been on solid ground.

The applicants have rather opted to cite the third respondent as a respondent to their claim. The third respondent cannot be a respondent in the applicant's claim. If any spoliation has occurred, the third respondent herein would be the applicant. Its Board of Directors would then pass a resolution authorising the institution of the necessary proceedings and indicating the person or persons who would do the necessary acts on its behalf.

It is not the applicants' stance that they were acting independently of the third respondent. Rather, in paragraph 6 of the first applicant's founding affidavit, he states that he only cited the third respondent as a respondent because in proceedings instituted by the first respondent against the applicants, which application resulted in the granting of the order that has prompted these proceedings, the third respondent herein was joined as third applicant.

It appears to me that the applicants' stance and explanation is self-contradictory.

The institution of proceedings against them, by the third respondent, under whose auspices they were engaged in all the pertinent activities, negates their very locus standi in this matter having regard to the nature of their claim.

For the above reasons, the said point in limine is upheld.

It appears to me that it is not necessary, in view of my finding on the discussed point in limine, to deal with the rest of them. The nature of the point in limine that has been upheld is such as to make it unnecessary to do so. No purpose would be served thereby.

In the result, it is found that the applicants have no locus standi in judicio to institute this urgent chamber application.

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

View Appeal HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O. Ruled By: KUDYA J

HB41-14 : ITYAI NKOMO and 2 OTHERS vs T.M. SUPERMARKETS (PVT) LTD Ruled By: KAMOCHA J

Appealed HB42-14 : MINISTER OF HIGHER & TERTIARY EDUCATION vs BMA FASTENERS PL and CHRISTOPHER MASWI N.O (as Provisional Judicial Manager of BMA FASTENERS PL) and MASTER OF THE HIGH COURT OF ZIMBABWE N.O. Ruled By: MAKONESE J

HB44-14 : SETUKA SIWELA vs ESTATE LATE GABRIEL SIWELA DRB 561/12 and THE ASSISTANT MASTER Ruled By: KAMOCHA J

HB112-14 : KEMBO MOHADI and OTHERS vs BARBRA LUNGA (in her capacity as the Provisional Liquidator of NERRY INVESTMENTS (PVT) LTD) and CBZ BANK Ruled By: TAKUVA J

SC48-13 : STANLEY MAJURIRA vs TREDCOR (ZIMBABWE) (PVT) LTD Ruled By: PATEL JA

View Appeal SC09-15 : INTER-AGRIC (PRIVATE) LIMITED vs ALLAN MUDAVANHU AND TWELVE OTHERS Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

SC31-15 : WECTOR ENTERPRISES (PRIVATE) LIMITED vs LUXOR (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, HLATSHWAYO JA, and MAVANGIRA AJA

Appealed HH232-15 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE LIMITED and THE SHERIFF OF ZIMBABWE Ruled By: UCHENA J

Appealed SC30-16 : STAND FIVE FOUR NOUGHT (PRIVATE) LIMITED vs SALZMAN ET CIE SA Ruled By: ZIYAMBI JA, GOWORA JA and UCHENA JA

View Appeal HH767-15 : IN RE: STAND FIVE FOUR NOUGHT (PVT) LTD (Under Provisional Judicial Management) FOR AN ORDER FOR FINAL JUDICIAL MANAGEMENT vs x Ruled By: MATHONSI J

SC03-17 : HAROLD CROWN and PORTRIVER INVESTMENTS (PRIVATE) LIMITED vs ENERGY RESOURCES AFRICA CONSORTIUM (PRIVATE) LIMITED and ENERGY RESOURCES AFRICA (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

SC50-17 : JOSEPH SIBANDA and WEDGEWALL INVESTMENTS (PRIVATE) LIMITED vs MAKONDE INDUSTRIES (PRIVATE) LIMITED (in liquidation) and GLEN MOOR TRADING (PRIVATE) LIMITED and OTHERS Ruled By: ZIYAMBI JA, GOWORA JA and BHUNU JA

HMA17-17 : MAIN ROAD MOTORS (Case 1) and SYLVIA CHORUWA (Case 2) vs COMMISSIONER – GENERAL, ZIMRA Ruled By: MAFUSIRE J

HB77-16 : TRIANIC INVESTMENTS (PVT) LTD and REOUVEN DRAY vs NQOBILE KHUMALO and FRANCISCA MUFAMBI and THE SHERIFF OF ZIMBABWE, BULAWAYO Ruled By: TAKUVA J

HMA31-17 : CHAMU MINING SYNDICATE vs SIBONGILE MPINDIWA N.O. and CHAMWANDOITA SYNDICATE Ruled By: MAFUSIRE 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

HB97-16 : REVEREND CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA vs CHARLES NHANGA and MTHANDAZI SIBANDA and TEDDY NDLOVU and OSCAR NDLOVU and OTHERS Ruled By: MOYO J

HB100-16 : TEBEKWE SANDS and MATOVU INVESTMENTS JOINT VENTURE vs MIKE G. HUGHES Ruled By: TAKUVA J

HH458-15 : THE EVANGELICAL CHURCH OF ZIMBABWE vs REVEREND DOCTOR ISAAC SODA Ruled By: MATHONSI J

HHH82-16 : THE PROSECUTOR GENERAL OF ZIMBABWE vs BEATRICE TELE MTETWA and RUMBIDZAI MUGWAGWA ESQUIRE Ruled By: MAWADZE J

HH228-16 : ANJIN INVESTMENTS (PVT) LTD vs THE MINISTER OF MINES & MINING DEVELOPMENT and THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER-GENERAL OF THE ZIMBABWE REPUBLIC POLICE Ruled By: MANGOTA J

View Appeal HH154-14 : TEL ONE (PRIVATE) LIMITED vs UNITRACK (PRIVATE) LIMITED Ruled By: CHIGUMBA J

View Appeal HH768-15 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO Ruled By: CHIGUMBA J

HH124-15 : RIMUKA ISLAMIC SOCIETY vs ENOCK MWASHUHWA Ruled By: ZHOU J

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS Ruled By: MAFUSIRE J

HH255-14 : FUNGAYI J. NYEMBA vs CBZ BANK and PRAISE PETROLEUM (PVT) LTD and CROSLEY MASHIRI and NOVELTY MASHIRI and FARAI NYEMBA Ruled By: MATHONSI J

Appealed HH151-16 : SHORAI NZARA and ARROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN and vs CECILIAH KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI Ruled By: MAFUSIRE J

HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS Ruled By: ZHOU J

SC27-19 : SYNOHYDRO ZIMBABWE (PVT) LTD vs TOWNSEND ENTERPRISES (PVT) LTD and DAVID WHATMAN N.O. and THE SHERIFF OF ZIMBABWE N.O. Ruled By: MAKARAU JA

HH18-10 : CENTRAL AFRICA BUILDING SOCIETY vs EPHISON NDAHWI Ruled By: MAKARAU JP

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND Ruled By: CHIGUMBA J

Appealed HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE Ruled By: MAKONI J

HH223-13 : HWANGE COLLIERY CO. LTD and HWANGE COAL GASIFICATION CO. PL vs HWANGE COAL GASIFICATION CO. PL and TENDAI SAVANHU and KINGDOM BANK LTD and STANBIC BANK LTD and GUO FENG and ORS Ruled By: MAFUSIRE J

HH204-15 : THUTHANI MOYO vs JOHN BOWMAN and PONDS PHIRI and BERYL WATSON and MARGARET JAMES and ABEL DENHERE and OTHERS Ruled By: MAWADZE J

HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA Ruled By: MWAYERA 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

HH229-15 : IZAYI PARK HOUSING SCHEME (represented by ELINAS GUMBO) vs SHADRECK GWENA and OTHERS Ruled By: TAGU J

HH231-15 : TAPFUMANEYI MUDZENGERERE and OTHERS vs CIVIL AVIATION AUTHORITY OF ZIMBABWE Ruled By: MUREMBA 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

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI Ruled By: MANGOTA J

HH195-11 : ELISHA DENDEUKA vs PAPER PLACE (PVT) LTD Ruled By: BHUNU J

HH257-18 : CLEVER VUTETE vs CHAIRPERSON OF THE APPEALS COMMITTEE (ZIMBABWE OPEN UNIVERSITY) and ZIMBABWE OPEN UNIVERSITY Ruled By: MUNANGATI-MANONGWA J

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT Ruled By: CHAREWA J

Appealed SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA Ruled By: GARWE JA, PATEL JA and GUVAVA JA

View Appeal HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI Ruled By: MUSHORE J

HH19-11 : JAMESON RUSHWAYA and ANNIE RUSHWAYA vs PATTERSON TIMBA and SWIMMING POOL & UNDER WATER REPAIRS PL and TOLROSE INVESTMENTS PL and MESSENGER OF COURT, KADOMA Ruled By: MAVANGIRA J

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