Court name
Harare High Court
Case number
HC 8565 of 2010

Sasfuel & Chem Zimbabwe (Pvt) Ltd v Symes N.O. & Ors (HC 8565 of 2010) [2010] ZWHHC 270 (28 November 2010);

Law report citations
Media neutral citation
[2010] ZWHHC 270

SASFUEL AND CHEM (ZIMBABWE) PRIVATE

LIMITED

and

MARYNA ESTELLE SYMES N.O.

and

ENVA MOHAMAD MOTALA NO

and

THLABO IGNATIUS MAENETYA N O

and

THE MASTER OF THE HIGH COURT OF ZIMBABWE

 

 

HIGH COURT OF ZIMBABWE

MAKONI J

HARARE, 29 November 2010

 

 

T M Kanengoniwith Mr Silika, for the applicant

J Samungae withC Venturas, for 1st, 2ndand 3rdrespondents

 

 

MAKONI J:    The applicant claims the return of the movable property itemized in para a of the interim relief. The applicant has failed to establish ownership of the five trucks and six as itemized.

There was a concession that the applicant cannot establish ownership AAZ 977; Regarding AAZ 9773 and AAZ 9718, the applicant produced what it termed a confirmatory note from VID. The applicant submitted that the note is confirmation that VID is holding on to the trucks and registration books for the motor vehicles.

Firstly there is nothing on the confirmatory note to confirm that the applicant is the owner. As was rightly pointed out by Mr Samkange, anyone could have obtained that note.

Secondly if the motor vehicle/trailers are at VID how can the court order the respondents to return such motor vehicle to the applicant.

Regarding 517-766 N and 771-2439, the applicant produced registration books which indicate that the motor vehicles belong to the third parties. Attempts were made to suggest that the applicant purchased the trucks from the third parties. The submissions where not persisted with when it was noted that the documents produced in evidence did not relate to the motor vehicles in issue.

The applicant therefore has no locus standi to bring the present proceedings.

 

AUTHORITY TO DEPOSE TO THE FOUNDING AFFIDAVIT

Mr Silika swore that he is the applicant’s director and has been authorized by the applicant to depose to this affidavit. This was challenged by the respondents through a supporting affidavit by Michael John Burns.

It is settled in our law that once authority of a representative of a company is challenged, the other party must prove that he has the requisite authority. This is normally in the form of a board resolution authorizing the deponent to institute proceedings and to swear to the affidavit  See United Associates (Pvt) Ltd v Estate Late Leonard Dabulamanzi Ncube & Ors HB 29/03. The applicant has failed to furnish this court with proof that he had authority to institute proceedings on behalf of the applicant. The fact that the issue is before another court does not detract from the fact that before this court the deponent has no authority. There is therefore  no application before me. The applicant’s case also falls on that issue.

I would agree with Mr Samkange that the applicant is abusing court process. The respondents were unnecessarily dragged to court when the applicant’s papers were far from being in order. I will award costs on the Law Society tariff.

In my view once the applicant’s case failed to pass the hurdle of locus standi, it will not be necessary for me to determine as the other issues.

In the result I make the following order:

 

“The application is dismissed with costs on the Law Society tariff”.

 

 

 

Chikumbirike & Associates, applicant’s legal practitioners

Venturas & Samkange, 1st, 2ndand 3rdrespondents’ legal practitioners