Mabonde Agricultural Services and Jacob Sigodo Mabonde and Hazel Muneyi Nazvo Moyo v Sentridge Investments (Private) Limited and PK Chivaura and O Chikonyora and S Chamisa and Dyna Vent and F Zhou and K Dziva and C Gwatidzo and M Zvenhamu and MB Gonga and RC Mubvumbi and S Siziba and T Tafireyi and The Registrar of Deeds N.O.

### Preamble
HH 201/10
HC 2571/08
MABONDE AGRICULTURAL SERVICES
and
JACOB SIGODO MABONDE
---------


==============================

MABONDE AGRICULTURAL SERVICES
and
JACOB SIGODO MABONDE
and
HAZEL MUNEYI NAZVO MOYO
versus
SENTRIDGE INVESTMENTS (PRIVATE) LIMITED
and
PK CHIVAURA
and
O CHIKONYORA
and
S CHAMISA
and
DYNA VENT
and
F ZHOU
and
K DZIVA
and
C GWATIDZO
and
M ZVENHAMU
and
MB GONGA
and
RC MUBVUMBI
and
S SIZIBA
and
T TAFIREYI
and
THE REGISTRAR OF DEEDS N.O.

HIGH COURT OF ZIMBABWE
BHUN J
HARARE, 29 May 2007 and 23, 27, July 2007 and 12, 23 May 2008 and 17 June 2008 and 8
April 2009, 14 July 2008, and 15 September 2010

Advocate Fitches, for the plaintiff
Advocate Zhou, for the, first defendant.
Advocate Morris, for the second to fourteen defendants.

BHUNU J: The facts in this case are basically as outlined in my interim judgment of 8
April 2008. The facts are as follows:


The first plaintiff, Mabonde Agricultural Enterprises (Pvt) Ltd is a dully registered company in terms of the laws of this country. It is the owner of two pieces of land known as Estantia Farm measuring 853, 7087 hectares and Stoneygate Farm measuring 120010, 4599 hectares situate in the Chegutu area.

The third Plaintiff is a director and major shareholder of the first plaintiff with 65% of the shares. The second plaintiff is also a shareholder and director retaining 32% of the shares.

The other shareholders are the estates of the late Roger Moyo, Mathew Moyo and David Moyo comprising one percentage point each. The three deceased estates are not part of these proceedings.

The background to this case is that sometime in 1998 and on 25 August, the second plaintiff Jacob Moyo left Zimbabwe to settle in the United Kingdom with his wife the third plaintiff. Before departure he executed a general power of attorney in favour of his son one Sibangilizwe Moyo, authorizing him to manage all his personal affairs and estates here in Zimbabwe.

On the strength of the general power of attorney and in the absence of his parents, Sibangilizwe allegedly went on an extravagant spree prodigal son style, disposing of his fathers assets and effects as well as the two farms Estantia and Stoneygate which are at the heart of this trial. He subdivided the two farms and sold the subdivisions to the respective defendants cited in this case.

It is, however, common cause that the two farms did not and do not belong to his principal but to the first plaintiff, Mabonde Agricultural Enterprises (Pvt) Ltd a duly registered company. It is trite that the company is a separate legal entity with a separate existence from the second plaintiff who granted him the power of attorney. The cardinal point for determination is whether Sibangilizwe abused the power of attorney and acted *ultra vires*. The power of attorney In other words, the real issue at hand is whether or not it was within Sibangilizwe’s power to subdivide and sell the subdivisions to the second to fourteenth defendants. Did he have the necessary mandate to do what he did? If not, then it might mean that the sales may be tainted with illegality.

The general power of attorney reads in party:

“Know all men whom it may concern:

That I JACOB SIGODO MABONDE MOYO


Do hereby nominate and appoint Sibangilizwe Moyo

To be my General Attorney and Agent for managing and transacting all my affairs in banking, Mabonde Agricultural Enterprise P/L, Moyo and partners, Muneyinazvo General Dealer and any other business or undertaking whatsoever, including my Goats, sheep, cattle, house and stands if any.

With power to ask, demand, sue for recover all debts or sums of money…AND to buy and sell immovable or mining property, and for that purpose to make the necessary declaration as to the truth of the amount of purchase money and to receive, or to make and give, as the case may be, the necessary acts and Deeds of transfer of such landed or mining property in due and customary form according to the local laws and usages, to locate, peg, register or abandon mining claims or locations, either in my name, or in the name of any person whose rights I shall have acquired …AND to transfer and accept transfer of shares, sock or debentures in any syndicate, public company or corporation: AND if necessary for me and on my behalf to commence, prosecute, or to defend, any action, suit or other proceeding in or before any Court, or other body or person, and to suffer judgment or decree to be given against me in any such proceedings…”

It is clear that the power of attorney does not and did not extent to any other property other than that of his principal Jacob Sigodo Mabonde Moyo.

The evidence led at this trial establishes that apart from the second plaintiff no other share holder in Mabonde Enterprises (Pvt) authorized or granted Sibangilizwe a power of attorney to dispose of its two farms in question. It is trite that Sibangilizwe being a mere agent of the second plaintiff had no power to do what his principal could not do.

It is beyond question that the second defendant had no power to dispose of the shares belonging to his three brothers’ deceased estates without authorization from their respective executors or the Master of the High Court according to law. It therefore appears to me that the general power of attorney granted by the second plaintiff Sibangilizwe for the administration of his personal affairs and estates could not and did not extend to the three deceased brothers’ estates. In the absence of express authorization it will be tantamount to dispossessing the dead who can no longer speak for themselves.

The same can be said of the third plaintiff’s shares. We can not assume that she authorized Sibangilizwe to deal in her shares when she gave him no power of attorney and is suing for the recovery of her shares albeit that she is now in default of appearance.

Evidence was also led tending to establish that Sibangilizwe did not follow the correct procedure before selling the subdivisions to the defendants in that he did not obtain the necessary company resolutions before selling the subdivisions on the two farms. What this means is that he sold the subdivisions without authorization from the owner Mabonde Agricultural Enterprises (Pvt Ltd.

While the rule in *Royal Bank v Turquand 119 ER 886* and adopted in *Walenn Holdings (Pvt) Ltd v Integrated Contracting Engineers (Pvt) Ltd & Another 1998 (1) ZLR 333* (H) to the effect that strangers dealing with a company are entitled to assume that the necessary internal company procedures have been complied with is correct, such assumption is no answer to the plaintiffs’ claim that Sibangilizwe sold their respective shares without their consent.

It is equally no answer to the plaintiffs’ complaint that the subsequent transfers of the purchased properties were irregular and tainted with illegality.

Although the second to fourteenth defendants may have already taken title, I am satisfied that they took defective titles. It must be borne in mind that the effect of Sibangilizwe’s conduct had the undesirable if not illegal effect of dispossessing innocent third parties particularly the three deceased estates and beneficiaries without the involvement of the Master of the High Court or their respective executors. Indeed evidence was led from responsible government officials suggesting that the transfers were tainted with irregularity and illegality.

It is true as pointed out by Mr. *Morris* that the three estates have not been cited nor have they complained. The deceased could obviously not complain. Their estates have not been cited. As a result we do not know whether any executors have been appointed. For that reason it is necessary to call for the Master’s report in terms of the rules of Court to enable the Court to determine the rights of the three deceased estates in this matter.

*Mapombere, Musakana & Ruzengwe*, plaintiff’s legal practitioners
*Sawyer & Mkushi*, defendants’ legal practitioners
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