Kalmic Investments (Pvt) Ltd and Athienitis Properties (Pvt) Ltd and Rylance Farms (Pvt) Ltd v Maidei Mujuru and Stern Mifara N.O. and Joyce Mujuru and Kuzivakwashe Mujuru and Tendai Mujuru and Bianca Chibwe and Takunda Mujuru and Tawanda Mujuru and Tsitsi Mujuru and The Master of the High Court N.O.

### Preamble
1
HH 185/21
HC 4729/20
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KALMIC INVESTMENTS (PVT) LTD

and

ATHIENITIS PROPERTIES (PVT) LTD

and

RYLANCE FARMS (PVT) LTD

versus

MAIDEI MUJURU

and

STERN MIFARA N.O.

and

JOYCE MUJURU

and

KUZIVAKWASHE MUJURU

and

TENDAI MUJURU

and

BIANCA CHIBWE

and

TAKUNDA MUJURU

and

TAWANDA MUJURU

and

TSITSI MUJURU

and

THE MASTER OF THE HIGH COURT N.O.

HIGH COURT OF ZIMBABWE

CHAREWA J

HARARE, 25, March & 28 April 2021

Opposed Application – Joinder

Mr G Machingambi, for the applicants

Mr T.M. Kanengoni, for second respondent

CHAREWA J: Applicants own properties concerning which first respondent sought their inclusion in the Estate of Late Solomon Ruzambu Tapfumanei Mujuru (the Estate) on the basis that applicants were the deceased’s alter egos. In response, applicants filed this application seeking joinder in HC 2370/2020 on the grounds that as registered owners of the properties in question, they had an interest to protect regarding those properties.

The second respondent, who is the executor in the Estate opposes the application for joinder on the grounds that the persons purporting to represent applicants have no right or capacity to do so given that there is no CR14 appointing them as directors or shareholders of applicants attached to the founding affidavit. In any event, there is in existence, a determination by the Master, which is extant, that the three purported representatives of applicants failed to support their allegation that they are directors of applicants. Consequently, applicants are not properly before the court and as a result, there is no application for the court to consider.

Background

On 15 August 2020, first respondent sought an order, under HC2370/20, declaring that the immovable properties registered in the applicants’ names be declared to constitute the Estate on the basis that applicants were the deceased’s alter egos. During his lifetime, the deceased was in a business partnership for the Thurlow Group of Companies with one James Chafungamoyo Makamba (Makamba). The applicants herein were some of the companies that comprised the Thurlow Group. Upon dissolution of their partnership, the deceased and Makamba entered into an agreement wherein they effectively shared between themselves, certain immovable properties registered in the companies under the Thurlow Group. The partners acknowledged, in their agreement, that the companies in the Thurlow Group were the registered and beneficial owners of the immovable property which they were dividing between themselves. To give effect to the agreement on the division of immovable property, the business partners agreed to sign share transfer forms for the respective companies as well as resignation letters as directors, secretaries and public officers for the respective companies which owned the properties allocated to each other. By virtue of that agreement the properties registered to applicants were allocated to the deceased. Makamba surrendered his shareholding and resigned his directorship and public office positions in applicants.

Parties’ submissions

Applicants submit that they are independent legal persons which own the properties sought to be included in the deceased’s estate. Their ownership being undisputed, they have interests to protect and must be joined in HC2370/20.

The second respondent submits that for there to be joinder, there must exist a legal person to be joined, and which legal person is duly represented by properly authorised persons. In casu applicants did not file CR14 with their application to show that its purported representatives were duly appointed officers of applicants. The CR14 was only filed with the answering affidavit. Such CR14 being a document filed in 2020 is questionable given that the dispute as to the applicants’ representation has been raging since the registration of the estate, to the extent that there is a decision by the Master, which is extant, that the applicants’ representatives are unauthorised and that applicants are the deceased’s alter egos.

Analysis

It is trite that the legal requirement for joinder is that there must be a common question of fact or law, and all rights to relief are in respect of or arise out of the same transaction or series of transactions. Further, the applicant must show that he has an interest in the matter for which he seeks joinder. The second respondent does not dispute that applicants are the registered titleholders and beneficial owners of the property which is sought to be incorporated as the assets of the estate of Solomon Ruzambu Tapfumanei Mujuru. Neither does he dispute that as such registered titleholders and beneficial owners, they thus have an interest in whether the property should be included in the deceased estate. His sole disputation is that, applicants should not be joined to the application seeking a declaration that the applicants’ property should be included in the deceased estate because they are not properly before the court, by reason of being represented by unauthorised persons, as no CR14 showing that the applicants’ are directors or officers of applicants were filed with the founding affidavit.

It is true that no CR14 was filed with the founding affidavit for joinder. However, I know of no legal requirement that in instituting proceedings a company must attach CR14 to its founding documents to show that its representatives are duly authorised. Second respondent has not referred me to any authority in this respect. It is my view that for purposes of an application for joinder, or any litigation by a company, it is not strictly necessary to file a CR14 with the founding documents to show that it is properly represented before the court. What is necessary is a resolution by the company that it has resolved to institute or defend legal proceedings and identifying the person that has been tasked with being its mouth piece. Case law abounds on this proposition. In casu, the resolutions by applicants are attached to the founding affidavit.

It is not in dispute that applicants are legal persons. Therefore whether or not there is a CR14 showing who the directors of the legal person are, is, in my view, not necessary to show whether applicants are properly represented for purposes of this application. That is a substantive issue for determination in deciding whether or not applicants are alter egos of the deceased for purposes of inclusion or exclusion of the properties registered to applicants as estate property. It is thus precipitate to raise that issue at the time of an application for joinder, which purpose is not to decide the status of the parties vis-a-viz what may or may not be estate property.

Neither is it in dispute that applicants are the registered and beneficial owners of the properties in issue. That is clear from paragraph B of the preamble to the agreement between the deceased and Makamba. It follows that as registered and beneficial owners of the properties which are sought to be included in the deceased’s estate, applicants have real and substantial interests which, if they are able to show that they are not deceased’s alter egos, they are entitled to protect. And to enable them to protect such interest, they must be joined to the proceedings seeking to include the properties in the deceased’s estate.

I must differ with second respondent’s submission that the Master has made a determination that applicants’ representatives are unauthorised and that applicants are deceased’s alter egos. The Master, in his decision of 15 May 2019, clearly made no such determination: he left those issues to be determined by the High Court. Rather, his decision was that,

“…..It is common cause that the Master has no jurisdiction to adjudicate on ownership of assets and that the issue is subjudice, as such the Master will not deal with the same.

……….. What was envisaged by the Master was a position where the two parties would share whatever proof they had to support their position regarding ownership of assets. The Master also anticipated that the proof, if any, would also be lodged with this office so as to assist in determining whether or not the executor should continue to collect rentals. It appears there was no supporting documentation lodged by Mr Chidzivo on behalf of the Respondents to support their position. Whereas the executor has attempted to lodge various documentation to support his position on why the assets are being regarded as estate assets. Therefore faced with a scenario where one party alleges that assets should be dealt with in the estate and files documentation in support thereof, and the other simply alleges to the contrary but fails to file supporting proof, the Master is persuaded to decide in favour of the one who has supported his position. Our view is that, pending finalisation of the High Court matter (my emphasis), the assets in dispute should be dealt with as if they form part of the estate.

On the issue of collection of rentals…….We are therefore of the view that the status quo that prevailed before December 2018 should be reverted to until finalisation of the matter that is before the High Court. (my emphasis) We believe there would be no prejudice to the parties as the monies would still be accounted for once the High Court matter has been finalized.”

I have not been made aware of any order or judgment of this court that the matter before the High Court has been finalised in the respondent’s favour. Rather, I believe, that is in fact the matter to which joinder is sought so that these very issues can be decided. Neither have I been made aware of any other decision by the Master apart from the above quoted decision.

Finally, it is instructive to note that while second respondent deposes to an opposing affidavit that the purported representatives of applicants were not indicated as directors or secretaries of the applicants in the records of the Company Registry, his averments are unsupported as he does not attach what he found thereat. Further the letters from Scanlen and Holderness which he attached to his opposing affidavit as annexures A and B are unhelpful, as they generally refer him to the deceased’s accountants for information on the status of deceased’s companies including the applicants. Neither does he attach anything from the accountants to support his position that applicants’ representatives are unauthorised. On the contrary, while it was not necessary for purposes of the applicants’ founding affidavit, the CR14 that applicants attach to their answering affidavits suggest that they were officers of applicants.

Consequently, I find that the applicants have shown on a balance of probabilities that they are entitled to joinder as prayed for.

Costs

While the applicants sought costs on the legal practitioner and client scale in the draft order, no submissions on such costs was made in the founding affidavit or the heads of argument or oral submissions. Costs being in the discretion of the court, and generally, following the result, are on the ordinary scale.  There is no justification for an order of costs on the higher scale.

DISPOSITION

In the premises it be and is hereby ordered as follows

The first, second and third applicants be and are hereby joined as parties and as the tenth, eleventh and twelfth respondents in the application instituted by the first respondent against the second to the tenth respondents in Case Number HC 2370/20.

The court application in Case Number HC 2370/20, be and is hereby amended by adding Kalmic Investments (Pvt) Ltd, Athienitis Properties (Pvt) Ltd and Rylance Farms (Pvt) Ltd as the tenth, eleventh and twelfth respondents.

The second respondent shall pay costs of suit.

G. Machingambi Legal Practitioners, applicant’s legal practitioners

Nyika Kanengoni & Partners, second respondent’s legal practitioners