Job Sibanda v Dowood Services (Pvt) Ltd and Bulawayo City Council

### Preamble
1
HB 120/25
HCBC 175/24
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JOB SIBANDA

Versus

DOWOOD SERVICES (PVT) LTD

AND

BULAWAYO CITY COUNCIL

HIGH COURT OF ZIMBABWE

M DUBE J

BULAWAYO 06 JUNE 2025 AND 18 JULY 2025

Opposed Application

T Masiye Moyo, for the applicant

M. Ndlovu for the 1st respondent

DUBE J:	 This is a court application in which the applicant seeks a declaratory order against the 1st respondent, a private company in the following terms:

The Agreement of Sale between the applicant and the 1st respondent dated 24 November 2010 in respect of stand 15324 Kelvin West, Bulawayo is valid and binding between the parties.

Consequentially, on condition that all other terms are complied with, the 2nd respondent is ordered to register the right, title and interest in such stand in applicant’s name upon him filing an application to that effect.

1st respondent is to pay costs of this application on the attorney-client scale.

The application is opposed by the 1st respondent. The 2nd respondent, despite being served, has not filed any opposing papers and is therefore presumed to abide by the decision of this Court.

Factual Background

The salient facts of the matter are as follows. The applicant is a legal practitioner who, from around 2010, provided legal services to the 1st respondent and its director, Mr. Dave Luwo (“hereinafter referred to as Luwo”).

On 24 November 2010, the parties entered into a written Agreement of Sale whereby the 1st respondent sold stand 15324 Kelvin West, Bulawayo, to the applicant for a purchase price of US$10,000.00. The purchase price was payable via a deposit of US$2,000.00, with the balance to be paid in monthly instalments of US$1,000.00. The applicant avers that he paid the purchase price in full, making cash payments to the 1st respondent’s manager and to Luwo himself. He states that upon payment of the deposit, he took vacant possession of the stand, which he has held since that date. He installed and locked a gate and changed the postal address for correspondence with the 2nd respondent to his own.

For approximately 13 years, the situation remained unchanged. In April 2023, Luwo contacted the applicant, initiating a series of communications and events that form the basis of this dispute. These events culminated in the applicant discovering that Luwo had broken the lock to the property and installed a tenant. After some discussions, the applicant alleges that Luwo acknowledged his ownership and agreed he could deal directly with the tenant. However, on 4 September 2023, the applicant received a letter from the 1st respondent’s legal practitioners purporting to terminate the Agreement of Sale.

The applicant disputes the validity of this termination. The 1st respondent, represented by Luwo, opposes the application, raising several preliminary points and substantive defences.

The applicant raised a point of law contending that the application is, in fact, unopposed as the opposing papers filed by the 1st respondent are a nullity. This judgment pertains to that preliminary point.

The Preliminary Point: Validity of the Notice of Opposition

The applicant, through his supplementary heads of argument filed by his legal practitioners, submitted that there is no valid opposition before the Court. The basis for this submission is that the 1st respondent is a private company, a juristic person. The Notice of Opposition and the initial Heads of Argument filed on its behalf were signed and filed not by a registered legal practitioner, but by Mr. David Bruno Luwo, a director of the company.

The starting point is the recognition that a company is a juristic person, separate and distinct from its shareholders and directors. This is a foundational principle of company law. As a juristic person, a company has no physical existence and cannot “appear” in court in person. It must be represented. The question of who may represent a company in Zimbabwe is well-settled. The Supreme Court decision in Lees Import and Export (Pvt) Ltd v Zimbank 1999 (2) ZLR 36 (S) definitively ruled that a company has no automatic right to be represented by a director or shareholder in proceedings before the High Court or the Supreme Court. The court held that, unless the rules of court or another enactment provide otherwise, a juristic person can only be represented by a legal practitioner.

In Pumpkin Construction (Pvt) Ltd v Chikaka 1997 (2) ZLR 430 H two judges of the High Court held that,

“Therefore, there is no statutory provision authorizing an officer of a company to sue out summons or process or to commence, carry on or defend any action, suit or other proceedings in the High Court in the name of the company. That being the case, the first ground of the exception must be upheld for a variety of reasons.”

The 1st respondent, in its own supplementary heads, argued that this was merely an “irregular step” governed by Rule 43 of the High Court Rules, 2021. It was contended that the applicant, by filing an answering affidavit and taking other steps after the irregular papers were filed, had waived his right to object.

This argument is misplaced. It conflates a procedural irregularity, which is voidable, with a fundamental defect that renders a proceeding a nullity. The failure of a corporate entity to be properly represented by a legal practitioner is not a mere procedural misstep that can be rectified or waived by the subsequent actions of the other party. It goes to the very capacity of the party to appear and be heard by the court. It is a fundamental issue of legality.

The court in Sound Electrical Properties v Hornfriskon Investments (Pvt) Ltd HB48 - 18 stated as follows:

“The position is therefore that a person who can show that he or she is the alter ego of the company is allowed to approach the court seeking leave to appear on behalf of such a company in the superior courts. This is because in such situations the person is in effect the heartbeat of the company there being no distinction between the company and the individual…. It is not without reason that Lamola was authorized to represent the respondent by what appears to be a fully-fledged board of directors including a company secretary. It means that the respondent is a fully functional company. It is certainly not a one man band and Lamola cannot therefore be the directing mind and will of the company who controls it. In that regard he cannot appear on its behalf. Even if he was, he would have to seek and be granted leave to appear.” (Underlining for own emphasis)

The above principles apply with equal force in the present matter. Should Mr Luwo be the alter ego of the 1st respondent company, Dowood Services (Private) Limited, he ought to have sought leave first from this court to represent the company in defending the application filed by the applicant.  The 1st respondent has filed its papers without legal representation or leave of the court as required by the law. There is therefore no valid notice of opposition before the court. Consequently, every subsequent document founded upon it, including the 1st respondent’s heads of argument and other submissions, is also incurably bad. There was, in law, nothing for the applicant to answer to and no irregularity for him to waive. His filing of an answering affidavit in response to a nullity does not breathe life into that which was born dead. Where proceedings are a nullity, the court can make no valid order on the merits of the dispute.  It is settled law that a nullity begets nullity.

The venerable dicta of Lord Denning in MacFoy v United Africa Co Ltd [1961] 3 All ER 1169, as cited in Ngani v Mbanje & Anor; Ngani v Mbanje & Anor 1987 (2) ZLR 111 (HC), is most apposite:

“If an act is a nullity, it is not only bad, but incurably bad… And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

There is therefore no valid opposition before me.

Disposition

Having found that the matter is unopposed, the Court must simply satisfy itself that the applicant’s papers establish a prima facie case and that the relief sought is competent. The application is for a declaratur based on a written agreement of sale, which has been placed before the court. The facts giving rise to the claim have been clearly and logically set out. The legal arguments underpinning the claim, namely the validity of a sale of rights in property held under a suspensive sale from a municipality and the invalidity of a purported cancellation that does not comply with the Contractual Penalties Act [Chapter 8:04] are, on the face of the papers, sound.

The applicant has established a prima facie case for the relief sought, and in the absence of any valid opposition, there is no reason to deny the order.

Costs

The applicant has prayed for costs on the punitive legal practitioner and client scale. The court is reluctant to order punitive costs to a litigant save in circumstances where a litigant is clearly abusing court processes. Counsel for the applicant submitted that he wrote letters to the 1st respondent’s counsel advising him of the irregularity. The lawyers did not heed to the call and went on to argue the matter. This conduct has resulted in the applicant incurring costs. I am however of the view that the Defendant had a fairly arguable technical point on the distinction between “an irregular step” in terms of Rule 43 of the High Court rules 2021 and a fundamental defect that renders process void ab initio. In the spirit of the Constitution where every party is entitled to defend their rights and interests without fear nor favour, I do not find punitive costs warranted in this matter.

Order

Accordingly, it is ordered that:

The Agreement of Sale entered into between the applicant and the 1st respondent on 24 November 2010 in respect of Stand 15324 Kelvin West, Bulawayo, is declared to be valid and binding between the parties.

The purported cancellation of the said Agreement of Sale by the 1st respondent is declared null and void.

The 1st respondent is ordered to sign all necessary documents and take all necessary steps, within fourteen (14) days of this order, to give effect to the transfer of all rights, title, and interest in Stand 15324 Kelvin West, Bulawayo, to the applicant.

In the event that the 1st respondent fails or refuses to comply with paragraph 4 of this order, the Sheriff of the High Court, Bulawayo, is hereby authorised and directed to sign all such necessary transfer documents on behalf of the 1st respondent.

The 2nd respondent, Bulawayo City Council, is ordered to register the right, title, and interest in Stand 15324 Kelvin West, Bulawayo, in the applicant’s name upon the applicant fulfilling all of the 2nd respondent's requirements for such a transfer.

The 1st respondent shall pay the costs of this application on an ordinary scale.

Masiye Moyo and associates, applicant’s legal practitioners

Ndlovu Mehluli and Associates, 1st respondent’s legal practitioners