Madzivire Enterprises (Pvt) Ltd v Schweggman Family Trust (HB 22 of 2007) [2007] ZWBHC 22 (7 February 2007)

Judgment No. HB 22/07 Case No. HC 732/06 X­Ref HC 2721/03 MADZIVIRE ENTERPRISES (PVT) LTD Versus SCHWEGGMAN FAMILY TRUST IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 8 MAY 2005 AND 8 FEBRUARY 2007 C P Moyo, for the applicant K Ncube for the respondent Opposed Application NDOU J: The applicant seeks the confirmation of a provisional order issued by this court on 1 April 2006. The substance of the application is that the applicant seeks an order preventing the renovation of the leased premises pending the determination of the application between the parties in HC 2721/03. In this application I have to deal with the points in limine raised by both parties. I will deal with these points in turn. Respondent’s point in limine In brief, the respondent challenges the locus standi of Vunganai Mataya to depose to the founding affidavit. As a general rule, I agree that it is necessary for a company’s representative to state clearly in his affidavit and exhibit proof that he is authorised to represent the company. He should aver that he has been duly authorised to act for and on behalf of the company and show by company resolution that he was authorised. This is essential in order to bind the company that he represents – United Associates (Pvt) Ltd v Est Ncube & Ors HB­29­03; Unlawful Occupiers of the School Site v City of JHB [2005] 2 ALL SA 108 (SCA) and Gurus Mining Corporation v Ncube HB­8­06. There is, however, an exception to this general rule. This is an example of the exception to the rule. In this case the respondent previously dealt with Judgment No. HB 22/07 Case No. HC 732/06 X­Ref HC 2721/03 the deponent as the applicant’s representative in the main application HC2721/03. It is, therefore, not proper for the respondent to challenge the deponent’s locus standi at this stage – Air Zimbabwe Corporation & Ors v ZIMRA HH­96­03 and Gurus Mining case, supra. On this point the point in limine raised by the respondent must fail and it is accordingly dismissed. Applicant’s point in limine In this one, the applicant challenges Titus Ncube’s locus standi to represent the respondent. From the cross­referenced file it is common cause that Titus Ncube became the sole beneficiary to the respondent on 28 April 2003. Thereafter, the respondent dealt with Titus Ncube as the respondent’s representative. Applicant has had dealings with Titus Ncube as a representative of the respondent. This late challenge of Titus Ncube’s locus standi has no merit – Air Zimbabwe Corporation – case, supra, and Gurus Mining – case – supra. Once more, the applicant’s point in limine must fail and it is accordingly dismissed. Accordingly, both points in limine are dismissed and the matter will be set down for hearing on the merits. Majoko & Majoko, applicant’s legal practitioners Job Sibanda & Associates, respondent’s legal practitioners 2