Manojkumar Thakorbhai Patel v The Trustees for the Time Being of the Teepeee Trust (1) and Gunvantlai Jamnadas Virji Shah (2) and Dhirubhai Maganlal Desai (3)

### Preamble
1
HH 360 - 25
HCH 1298/25
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MANOJKUMAR THAKORBHAI PATEL

versus

THE TRUSTEES FOR THE TIME BEING OF THE TEEPEE TRUST (1)

and

GUNVANTRAI JAMNADAS VIRJI SHAH (2)

and

DHIRUBHAI MAGANLAL DESAI (3)

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE: 9 & 18 June 2025

Opposed Court Application

E. R. Samukange, for the applicant

M. Mbuyisa, for the respondents

DEMBURE J:

This is a court application for a mandamus. The applicant seeks an order that:

“a) 	First, Second and Third Respondents avail to the Applicant signed books for Lotus Lingerie Manufacturers (Private) Limited and Blockhouse Investments (Private) Limited for the period from 2018 to date

b) 	First, Second and Third Respondents avail to the Applicant an account that speaks to the Trustees’ Fees (First and Second Respondents) from 2018 to date.

c) 	An order that First, Second and Third Respondents avail to the Applicant the lease agreement for Stand 173 Salisbury Township, held under Deed of Transfer No. 8348/01 otherwise known as [101 Mbuya Nehanda Street, Harare] and the Lease Agreement for Stand 751 Ardbennie Township 10 of Lot 2 of Lot 1A Ardbennie, held under Deed of Transfer No. 8149/72 otherwise known as [751 Cooleen Road, Ardbennie].

d) 	First, Second and Third Respondents avail to Applicant bank statements for Lotus Lingerie Manufacturers (Private) Limited and Blockhouse Investments (Private) Limited for the period from 2018 to date.

e) 	First, Second and Third Respondents jointly and severally, the one paying the other to be absolved, be ordered to pay costs of suit on an attorney and client scale.”

The respondents strenuously opposed the application. On 9 June 2025, the court, after hearing oral submissions from the parties’ legal practitioners, reserved judgment sine die.

FACTUAL BACKGROUND

2.	The applicant is a beneficiary of the Teepee Trust. While the Trustees for the time being of Teepee Trust were officially cited, the second and third respondents, who are the trustees, were further cited in their personal capacities. The second and third respondents were appointed as trustees by an order of this court handed down on 31 October 2018.

3.	The Teepee Trust (“the Trust”) registered in terms of a Notarial Deed of Trust No. MA 1654/92 was settled by the applicant’s now late father, Kamalaben Thakorbhai Patel, on 7 September 1992. The other beneficiaries in terms of the Notarial Deed of Trust are Kishorekumah Patel and Pareshkumar Thakorbhai Patel.

4.	It is common cause that the Trust holds the entire shareholding in a company called Thakor Holdings (Private) Limited (“Thakor Holdings”), a company duly registered in terms of the laws of Zimbabwe. In turn the said Thakor Holdings has two wholly owned subsidiary companies, namely Lotus Lingerie Manufacturers (Private) Limited (“Lotus Lingerie Manufacturers”) and Blockhouse Investments (Private) Limited (“Blockhouse Investments”), also duly registered in accordance with the laws of Zimbabwe.

5.	Lotus Lingerie Manufacturers is the registered owner of an immovable property called stand 751 Ardbennie Township 10 of Lot 2 of Lot 1A Ardbennie also known as 751 Cooleen Road, Ardbennie, Harare (“the Ardbennie property”). On the other hand, Blockhouse Investments is the registered owner of an immovable property called stand 173 Salisbury Township, also known as 101 Mbuya Nehanda Street, Harare (“the Mbuya Nehanda Street property”). The said properties are being leased to tenants.

6.	While in para(s) (3) and (4) of the applicant’s founding affidavit, the second and third respondents were referred to as the trustees of the Trust, there was no dispute that they are also directors of Lotus Lingerie Manufacturers and Blockhouse Investments. What is clear from a reading of the founding affidavit is that they were not sued in their capacities as directors of the two companies, but the averments in the founding affidavit are that, as trustees, they administer the Trust and owe a fiduciary duty to the applicant as a beneficiary.

7.	On 13 December 2024, the applicant’s legal practitioners wrote a letter to the respondents demanding that they furnish him with detailed financial accounts for Lotus Lingerie Manufacturers and Blockhouse Investments for the period from November 2018 to date. The applicant averred that he was furnished with unsigned draft books of accounts on 3 March 2025. However, the letter with the attached draft financials from the respondents’ legal practitioners was clearly written on a “without prejudice” basis.

8.	On 5 March 2025, the applicant, through his legal practitioners further requested signed books of accounts for Lotus Lingerie Manufacturers and Blockhouse Investments for the period 2018 to date; the schedule of the trustees’ fees from 2018 to date; lease agreements for the Ardbennie and Mbuya Nehanda Street properties and the banks statements for the two companies for the period 2018 to date. It was his case that the information he requested was not supplied and is being unlawfully withheld by the respondents.

9.	In their opposition to the application, the respondents contended that there is no cause of action for the suit against them. They pleaded that the information sought relates to signed books, leases and bank accounts of the two companies, which are third parties not before the court. The said companies should have been cited in this suit. It was also stated that the Trust wholly owns Thakor Holdings and has no direct relationship with the two subsidiary companies. That there is no legal basis established for the information to be sought against them in their personal capacities. They also argued that in any case, as of 19 March 2025, there were no such signed books of accounts for the two companies. It was also their averment that the applicant, who was a director who had effective control of the two companies until 8 January 2019, failed to keep proper books of accounts for the companies.

10.	With regards to the claim for an account of trustees’ fees, the respondents contended that nothing had been pleaded in the founding affidavit to support this relief, and the respondents could not tell where this prayer was coming from. The respondents further pleaded that they resolved to wind up the Trust and that, after hiring a consultant, they resolved to compensate the other beneficiaries for the prejudice they had suffered from the applicant’s operations by giving them equal shares in Lotus Lingerie Manufacturers. As for the shares in Blockhouse, they resolved as trustees to share them equally among all three beneficiaries. They also denied breaching any fiduciary duty and sought the dismissal of the application with costs.

THE PARTIES’ SUBMISSIONS

APPLICANT’S SUBMISSIONS

11.	Mr Samukange submitted that he abides by the papers filed of record. He referred the court to para(s) 5.8 and 5.9 of the respondent’s opposing affidavit and argued that what appears from the respondents’ opposing affidavit is that the only assets of the trust are the two companies. Para 5.12 of the opposing affidavit speaks to the directors of the companies being the two trustees. Counsel further referred to para (4) of the letter dated 28 November 2021 and submitted that the letter speaks to the same respondents as the directors of the companies. He argued that the companies ought to be treated as one economic entity, as the shares are held by one entity, which is also in control of the subsidiaries. Reference was made to the case of DHN Food Distributors Ltd v London Borough of Tower Hamlets [1976] 3 All ER 462 (CA) at 467. The legal position outlined in that case was confirmed in the case of Barnsley v Harambe Holdings (Pvt) Ltd HH 84/12.

12.	It was further argued that it is the Trust that has control of all the entities. The court must lift the corporate veil. When the court queried that the lifting of the corporate veil had not been pleaded in the founding affidavit and that the concerned companies had also not been cited or joined to these proceedings, Mr Samukange argued that the court has a wide discretion on the matter. He also further referred the court to the case of Manja & Ors v The Sheriff of Zimbabwe & Anor SC 9/21 and submitted that the court is entitled to look to substance rather than form to arrive at the true facts. The court ought to look at the fact that the respondents are the ones in control of the books. He accordingly prayed for an order in terms of the draft order.

RESPONDENTS’ SUBMISSIONS

13.	Per contra, Mr Mbuyisa submitted that by and large, he would abide by the papers filed of record. He argued that the papers address all the issues. He went on to argue that where the corporate veil is to be lifted, the entities must be cited. All three companies to which the Trust is a shareholder must be cited. The corporate veil cannot be lifted without that being pleaded, and the three companies having been cited. The resolution distributing the shares in the two companies still exists, and this is covered in para(s) (5.22) and (5.23) of the respondents’ opposing affidavit. The resolution relating to the ownership of these two companies was made and subsists.

14.	It was further argued that there were no signed books of accounts. Mr Mbuyisa also stated that there were no proper books of accounts kept for these two companies. He submitted that the requirement of a clear right had been addressed in the heads of argument. Counsel further argued that this matter relates to the internal processes of the two companies. There is no specific provision of the law that has been cited establishing the applicant’s clear right to the financial statements of the two companies. The Trust is entitled to income from the Trust assets. If no dividend has been declared, the Trust cannot produce its own books to account for the dividend it has not received. There was a reference to a letter with the draft accounts, but that letter is clearly marked “without prejudice”. It cannot be used to substantiate that there is a clear right. The documents are unsigned. What is before the court is for the production of signed accounts which do not exist. The bank accounts do not exist as the rentals are paid in cash. There is mention of an account for Trust fees, which is not substantiated.

ISSUE FOR DETERMINATION

WHETHER THE REQUIREMENTS FOR A MANDAMUS HAVE BEEN SATISFIED

THE LAW

15.	It is trite at law that a mandamus is a judicial remedy available to enforce the performance of a specific statutory duty or remedy the effect of an unlawful action already taken. See Chironga & Anor v The Minister of Justice, Legal and Parliamentary Affairs & Ors CCZ 14/20 at p 15. The court further restated the requirements for a mandamus as follows:

“The requirements to access the judicial remedy were spelt out in the case of Setlogelo v Setlogelo 1914 AD at 227. The Supreme Court of Zimbabwe noted with approval the requirements of mandamus in the case of Tribatic (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S) at p56. The requirements the applicants must prove for a mandamus are that:

(1) 	A clear or definite right –this is matter of substantive law.

(2) 	An injury actually committed or reasonable apprehended- an infringement of the right established and resultant prejudice.

(3) 	The absence of a similar protection by any other ordinary remedy.”

ANALYSIS

A CLEAR OR DEFINITE RIGHT

16.	It is a settled principle that a clear right is a right clearly established at law. The right must be derived from either common law or statutory law and must be proved. Accordingly, whether the applicant has a clear right is a matter of substantive law, but whether that right is clearly established is a matter of evidence. Herbstein & Van Winsen, The Civil Practice of the High Court South Africa, 5th edition, at page 1457, further state that one has to prove a clear and definite right in terms of substantive law, a right which can be protected, a right existing at common law or statutory law. In order to establish a clear right, the applicant must, therefore, prove on a balance of probability the right he seeks to protect.

17.	It is common cause that the applicant is a beneficiary of the Trust and that the respondents are the trustees thereof. It is trite at law that trustees have a duty to account to beneficiaries. The duty is rooted in the trustees’ fiduciary duty to act in the best interests of the trust and its beneficiaries. See Armitage v Nurse [1997] 2 All ER 705 and E. Cameron et al, Honore’s South African Law of Trusts, 5th ed, 2017. The beneficiaries have a right to demand disclosure of documents and information based on the trustees’ duty of accountability. The duty to account includes keeping accurate records of the administration of the trust or estate. It is pertinent to note, however, that the duty to provide the beneficiaries with all necessary information, including detailed accounts, relates only to the trust assets and the trust activities. The trustees manage the trust assets solely for the benefit of the beneficiaries. The duty only extends to the management of the trust and its assets, and they are required to have full transparency and accountability in their dealings. See also Doyle v Board of Executors 1999 (2) SA 805.

18.	In this case, it is not in dispute that the Trust wholly owns Thakor Holdings. The said Thakor Holdings has two wholly owned subsidiaries; Lingerie Manufacturers and Blockhouse Investments. The established general principle of our law is that a company is a juristic person that has a separate legal personality from its members (or shareholders). See Salomon v Salomon & Co Ltd [1897] AC 22 and Contract Hauliers (Pvt) Ltd v Close Proximity Enterprises (Pvt) Ltd HB 15/17. Even in a one-man company the principle of separate corporate personality of a company remains operative. See Lee v Lee’s Air Farming Ltd [1961] AC 12. In that case, Lee was a shareholder, sole director and sole employee of the company, Lee’s Air Farming Ltd. The court held that Lee and Lee’s Air Farming Ltd were separate and distinct legal entities.

19.	The same legal principle applies in relation to the relationship between a parent company and its subsidiaries. They remain separate and distinct legal entities. In Heritage Insurance Group Limited v Matsika HH 468/21 at p 6 Muzofa succinctly said:

“A company is considered a holding company if it has a subsidiary company. A company is a subsidiary of another where the other company is its member and controls the composition of its board or holds more than half of its equity share capital. Despite the unit established as a holding company the separate legal personality of each individual company is not completely lost. The common law principle that a company is a separate legal entity is still applicable. Subject to legal exceptions the subsidiary company does not lose its legal personality. In Charterbridge Corporation Ltd v Llyods Bank Ltd [1969 2All ER 1185] the court considered the issue and noted that,

‘Each company in the group is a separate legal entity and the directors of a particular company are not entitled to sacrifice the interest of that company’.”

It is, therefore, clear at law that the two subsidiary companies, Lotus Lingerie Manufacturers and Blockhouse Investments, are separate and distinct legal persons from their holding company, Thakor Holdings. They also exist as separate entities from the Trust itself. They cannot be said to be managed by the trustees or the respondents in their capacity as trustees. The Trust assets are not the two subsidiary companies. The Trust only owns Thakor Holdings. It is a sole shareholder in Thakor Holdings, and that again does not extend the trustees’ fiduciary duties to account and disclose any information or documents kept or prepared by the two subsidiaries, as they are separate legal persons.

20.	The applicant’s cause of action is founded on the failure by the respondents as trustees to furnish him with the requested information from the two subsidiaries. His cause is not pleaded on the basis that the respondents are directors of those companies. This is what the founding affidavit shows. Having pleaded a case of accountability of trustees, it means their duty could only extend to the management and accounting for trust assets and not assets of third parties, or of the said subsidiary companies.

21.	The information requested, namely the signed books of accounts for the said two companies; the lease agreements for the properties owned by the same companies namely the Ardbennie and Mbuya Nehanda Street properties and the banks statements for the two companies all for the period 2018 to date are information within the purview of the said companies, as separate legal persons. They are documents or information which are not ordinarily prepared by and can be demanded from the Trust itself. They do not concern trust assets or activities under the control of the trustees in their management of the Trust. Accordingly, there exists no common law substantive right for the applicant to demand from the trustees documents or information relating to assets and activities of other persons not before the court. The trustees do not owe any fiduciary duty to account for or disclose such information or documents on the financial operations of the two companies in their capacity as trustees of the Trust.

22.	It is settled that it is the company itself that is obliged by the law to keep proper books of account or financial records of its activities. It is also the statutory duty of the directors to ensure that such financial records are prepared and kept as required by the law. See s 182 of the Companies and Other Business Entities Act [Chapter 24:31]. The said section reads:

“182 Keeping of financial records

(1) 	Every company shall cause to be kept in the English language or (subject to the proviso to section 9 (“Form of registers and other documents”)(3)) any officially recognised language financial records with respect to –

(a) 	all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place;

(b) 	all sales and purchases of goods by the company;

(c) 	the assets and liabilities of the company.

(2) 	For the purposes of subsection (1), financial records shall not be deemed to be kept with respect to the matters aforesaid if there are not kept such records as are necessary to give a true and fair view of the state of the company’s affairs and to explain transactions.

(3) 	The financial records shall be kept at the registered office of the company or at such other place as the directors think fit and shall at all times be open to inspection by the directors …

(4) 	…

(5) 	If any director of a company fails to take all reasonable steps to secure compliance by the company with the requirements of this section or has been the cause of any default by the company thereunder the Registrar may (unless he or she is satisfied that the director’s conduct was fraudulent, reckless or wilful, in which event section 69 (“ Fraudulent, reckless or wilful failure of financial accounting; falsification of records”)(1)(a) shall apply) serve upon him or her a category 2 civil penalty order in which the remediation clause may, in addition to any other appropriate remedial action, require that proof be given to the Registrar within a specified period that—

(a) 	the director concerned has commenced or completed an appropriate course of instruction to enable him or her to comply with the requirements of this section; or

(b) 	the company has employed a competent and reliable person with the duty of seeing that the requirements of this section are complied with.”

23.	It is clear, therefore, that it is a director of the company who is legally bound to ensure that the company complies with the requirement of ensuring that there are financial records. The acts of the company are carried out and given effect by directors who have the duty to operate and manage the affairs of the company. See Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 (HL) 713. In casu, the duty to account and disclose any financial information or records of assets of the company lies with the directors of Lotus Manufacturers and Blockhouse Investments, in their capacities as such. It does not extend to trustees of the Trust in their capacity as trustees as pleaded in this case. Accordingly, the applicant cannot turn and argue a case it had not pleaded in the founding affidavit, that since the second and third respondents are also directors of the two companies, they must account and disclose the information. The application stands or falls on its founding affidavit. There are no averments in the founding affidavit that the respondents were sued in their capacity as directors of the Lotus Manufacturers and Blockhouse Investments. If that were the case, it would have completely changed the dimension of the applicant’s case. In addition, it would also have required that the said companies from which the information is demanded be cited as parties to the suit.

24.	There is no substantive legal duty for the trustees to disclose information or furnish documents relating to assets owned by another person and not the Trust. The law is very clear that the company owns its property alone and not jointly with shareholders. A shareholder does not have direct proprietary rights to property or assets owned by the company. See Borland’s Trustees v Steel Bros & Co. (Pvt) Ltd [1901] 1 Ch 279. This position was also confirmed as part of our law in Coumbis v Theright Investments (Pvt) Ltd HH 740/22. As correctly stated by F. Hamadziripi (ed), Aspects of Contemporary Company Law in Zimbabwe, 2023, at p 42, in general, shareholders’ interests in the company extend to their shares only. See also Davies and Worthington Gower’s Principles of Modern Company Law, 2016, at p 35.

25.	It would follow that the Trust does not own the Ardbennie and Mbuya Nehanda Street properties, as these belong to Lotus Lingerie Manufacturers and Blockhouse Investments, respectively, as separate juristic persons themselves. The rentals received from such properties are the assets of the said companies. In terms of the law, it would be the directors of those companies who would owe the duty to the company to account for the said payments. The Trust, being the sole shareholder of Thakor Holdings, would legally be entitled to dividend as income if the board of directors of the company has declared such dividend. That declared and paid out dividend would then constitute the income of the Trust, and that is what the trustees in that capacity would be obliged to account for. Thus, in Patel & Anor v Veemco (Pvt) Ltd & Anor HH 364/18 at p 14 Chitakunye J (as he then was) restated the legal position when he said:

“It is trite that dividends are not paid out of a company’s capital but from its divisible profits. In order for shareholders to be paid a dividend, the company must first declare such dividend. Even where a profit has been realised the company may decide against declaring a divided from its divisible profits and may instead appropriate part or all the profits to some other purpose to which profits of the company may lawfully be applied. Where the directors opt to pay out dividends such must first be declared. It is only when a dividend has been declared in accordance with the articles of the company that a company becomes indebted to its shareholders in the amount of their dividends.”

26.	The applicant did not plead that Thakor Holdings or its subsidiaries, by extension, had declared any dividend to constitute an asset of the Trust. Instead, the applicant sought documents relating to the financial records of the two companies from the trustees when such documents are under the purview of the said companies as separate entities. The claim in that respect is at odds with the law. It is utterly without any legal foundation. No clear right, therefore, exists for the applicant to enforce or protect. The requested documents are not under the control of the trustees but are those of the companies, which can only be released to those lawfully entitled to them under company law. That right does not extend to a beneficiary of a trust as against the trustees in this case. The claim for the signed books of accounts for the said two companies, the lease agreements for the properties owned by the said companies and their bank statements for the period 2018 to date, being legally untenable, cannot succeed. I agree with Mr Mbuyisa that there is no valid legal cause of action in respect of the claim for such documents against the respondents, as trustees.

27.	There was an argument that the court must consider the substance of the dispute and not its form, and pierce the corporate veil. Mr Samukange urged the court to lift the corporate veil and consider the companies as one economic entity. In Barnsley v Harambe Holdings supra Mathonsi J (as he then was) restated the law on the exceptions to the general rule of separate corporate personalities of companies when he said:

“In respect of holding companies my attention has been drawn to the seminal words of lord Denning in DHN Food Distributors Ltd v London Borough of Tower Hamlets 1976 (3) ALLER 462 (CA) at 467 where that celebrated law Lord said;

“Although the companies in a group are separate legal entities, the court have in the mercantile context dealt with the group as an economic entity. This lifting of the corporate veil is indicated especially when a parent company owns all the shares of the subsidiaries so much so that it can control movement of the subsidies.”

I am in total agreement with that pronouncement. As stated by corbett cj in The Shipping Corp of India Ltd v Evdomon Corp and Anor1994 (1) SA 550 (A) at 566C-E which was quoted with approval by Sandura Ja in Van Nickerk v Van Niekert & Ors 1999 (1) ZLR 421 (S) 427 G-H to 428A:

“It is of cardinal importance to keep distinct the property rights of a company and those of its shareholders even where the latter is a single entity and that the only permissible deviation from this rule known to our law occurs in those (in practice) rare cases where the circumstances justify ‘piercing’ or ‘lifting’ the corporate veil I do not find it necessary to consider, or attempt to define, the circumstances under which the court will pierce the corporate veil. Suffice it to say that they would generally have to include an element of fraud or other improper conduct in the establishment or use of the company or the conduct of its affairs.” (See also Mangwendeza v Mangwendeza 2007(1) ZLR 216 (H) at 217F and Manyathela v Manyathela HB 44/11.”

28.	In the Barnsley case, supra, a case for the piercing of the corporate veil had been pleaded. The court cannot be asked to disregard the general principle of corporate legal personality or pierce the corporate veil without it being pleaded that the circumstances would warrant the court exercising that discretion. In exercising that discretion, the court must do so judiciously. It must be guided by the pleadings and the evidence before it. The issue of piercing the corporate veil was only brought up at the hearing by Mr Samukange. It was never pleaded in the founding affidavit. As is the law, an application can only be disposed of on the basis of the founding affidavit. There being no pleaded circumstances for the court to pierce the corporate veil in the founding affidavit, the court cannot judiciously exercise that discretion.

29.	The mere fact that the second and third respondents are also directors of the subsidiary companies of Thakor Holdings, the company wholly owned by the Trust, does not per se suffice to create a legal basis to pierce the corporate veil. In any case, the two companies and their parent company, Thakor Holdings, are not even before the court for me to properly consider such a request. The request for the court to pierce the corporate veil made only in oral submissions in court was clearly unsustainable. The court normally adopts a case-by-case approach. Lifting the corporate veil would usually be the last resort, and courts do not have an automatic discretion to lift the veil. See F. Hamadziripi (ed), supra, at p 46. The argument is accordingly rejected. It was raised as an afterthought. In my view, counsel simply raised it upon realising that the applicant’s case for the documents of the said companies was hopeless at least on the papers before me.

30.	The applicant could also not seek to establish a right from the letter dated 3 March 2025 from the respondents’ legal practitioners. That letter was written on a ‘without prejudice’ basis. The contents thereof cannot be accepted in a court of law as evidence against the respondents. There is no substantive right for the applicant entitling him to demand the requested documents relating to the two companies. Neither the common law nor statutory law provides the applicant with any such right. The law, as noted above, does not support the applicant’s claim. The trustees have no legal duty under statute or common law to furnish the said documents of Lotus Lingerie Manufacturers and Blockhouse Investments, which are third parties not even cited in this case.

31.	For the above reasons, the applicant failed to satisfy the first requirement of a clear or definite right concerning the documents of the two companies sought for the relevant period.

32.	As regards the applicant’s claim for an account that speaks to the trustees’ fees from 2018 to date, it was only a prayer in the draft order and also contained in para 5 of the founding affidavit. The nature of the claim was not pleaded in the founding affidavit. A case is not made in the prayer or relief sought. Its basis must be clearly set out in the founding affidavit to enable the respondent to meet such a claim in the opposing affidavit. In Chironga & Anor supra at p 8 Hlatshwayo Jcc stated as follows:

“It is trite that an application stands or falls on the averments made in the founding affidavit. See Herbstein & van Winsen the Civil Practice of the Superior Courts in South Africa 3rd ed (hereinafter ‘Herbstein &Van Winsen or the Authors’) p 80 where the authors stated that:

“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits any fortifying paragraphs in his replying affidavits will be struck out.”

33.	While in terms of the law, the trustees are duty-bound to account for the management of trust assets (see Honore’s South African Law of Trusts supra), there was nothing pleaded to support the prayer for an order for them to deliver the alleged schedule of account of trustees’ fees. The respondents correctly noted in para 9.2 of their opposing affidavit that:

“The relief sought for the Trustees also lacks legal merit. No explanation has been provided on what the Trustees' Fees are in the founding affidavit and where they are coming from. It is thus difficult for the trustees to respond on what is this account that speaks to the Trustees’ Fees that is being requested.”

Without specific averments on this claim in the founding affidavit, it cannot be said that the applicant established any clear right thereto. The applicant even admitted in para (10) of the answering affidavit that he did not know if the trustees were being paid for their services, and if they were paid, how much they were paid. In any event, a case could not be made in the answering affidavit. Clearly, it was not proved that there was an account the respondents had to render to the applicant on the matter. As nothing was pleaded in the founding affidavit establishing the basis for the prayer for the said schedule of accounts, that claim too cannot succeed.

INJURY COMMITTED OR REASONABLY APPREHENDED

34.	The second requirement that the injury must actually have been committed or reasonably apprehended was also not satisfied. According to Herbstein and Winsen, supra at p 1464, the harm must have been caused by the respondent(s), and alternatively, the prevention of the harm must be within the respondent(s)’s power. As the court put it in the Chironga case, supra, “the injury must be understood in the wide sense”.

35.	The applicant failed to establish any harm suffered or reasonably apprehended caused by the respondents as the trustees of the Trust or the prevention of any harm within their power in their capacities as the trustees of the Trust. I found above that the documents claimed are those of the two companies, which are separate legal persons and not, at law, considered to be trust assets. The rentals received remain the said companies’ assets, as the immovable properties themselves. The directors of those companies account to their respective companies. The trustees do not control the said assets in their management of the trust affairs and activities. There were no averments of any income arising from declared dividends for the Trust from the holding company. The Trust itself has no direct relationship with the said subsidiary companies. There is clearly no injury committed or reasonably apprehended. The applicant has no legal entitlement to request the documents of the said companies from the trustees. No right has been infringed as such a right does not even exist in the first place.

ABSENCE OF ALTERNATIVE REMEDY

36.	The third requirement that there must be no other remedy affording the same protection has not been satisfied. The applicant has a remedy in company law to obtain the financial documents of the two companies. In any case, the two companies have not been cited in this case. The documents sought relate to those entities’ financial records, and it is only those entities and their directors in that capacity who can answer the applicant’s claim. I do not agree that the second and third respondents, as trustees of the Trust, are the custodians of the documents of the two companies. As alluded to above, the said companies remain separate legal persons. Unless the court is invited on a properly pleaded basis to pierce the corporate veil, there may be no legal basis for this court to treat these distinct juristic persons as one economic entity. There is no legal obligation bestowed on the trustees by the law of trusts to furnish the applicant with documents of the two separate and distinct juristic persons.

DISPOSITION

37.	The requirements for a mandamus have not been satisfied. The applicant failed to discharge the onus on him to prove his case on a balance of probabilities. This court, therefore, is not satisfied that the applicant is entitled to the remedy sought. The applicant ought to have formulated his claim upon due consideration of the principles of company law. It was ill-advised for the applicant to seek to hold trustees liable under their fiduciary duty to account in respect of financial records or documents of separate legal persons. As put in Salomon’s case supra:

“[O]nce the company is legally incorporated it must be treated like any other independent person with rights and liabilities to itself, and the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are.”

While the court, in appropriate cases, may lift the corporate veil, the exceptional circumstances thereof must be established on the common law grounds and/or statutory provisions.

38.	With regards to costs, I find no reason to depart from the general rule that costs shall follow the cause.

39.	In the result, I make the following order:

The application is dismissed with costs.

Dembure J: …………………………………………………..

Samukange Hungwe Attorneys, applicant’s legal practitioners

Mtetwa & Nyambirai, respondents’ legal practitioners