Apatron Mining (Private) Limited and Vusumuzi Osfael Mazibuko v Josphat Kudumba and Others

The 1st to 8th Respondents issued a summons on 12 February 2019 under case number HC 1057/19 citing the 1st defendant as "Vusimusi Masibuko trading as Apatron Mining Fort Rixon" seeking a declaratur regarding a lease agreement over Munjungwe Conservancy and eviction of the 1st defendant. The Respondents obtained a default judgment on 23 July 2019 and a writ of eviction/ejectment on 19 August 2019. On 10 December 2019, the Deputy Sheriff evicted the 1st Applicant (Apatron Mining (Pvt) Ltd) and its personnel from Munjungwe Conservancy. The 2nd Applicant's actual name is Vusumuzi Osfael Mazibuko, and he does not trade as "Apatron Mining Fort Rixon". The 1st Applicant is a duly incorporated company with capacity to sue and be sued in its own name. Neither the 1st nor 2nd Applicant were properly cited in the original proceedings. The Applicants then brought this application to declare the proceedings under HC 1057/19 and the resulting order invalid, and to be reinstated to the property.

• Whether there was proper opposition to the court application by the 1st to 8th respondents
• Whether a legal practitioner can properly depose to an opposing affidavit on behalf of clients without exceptional circumstances
• Whether the requirements for granting a declaratur were established
• Whether the summons and declaration under HC 1057/19 were null and void ab initio due to citing a non-existent party
• Whether proceedings and judgments obtained against a non-existent party are valid
• Whether the court has jurisdiction to declare invalid proceedings concluded by another judge of the same court

1. The proceedings instituted by the 1st to 8th Respondents against "VUSIMUSI MASIBUKO trading as APATRON MINING FORT RIXON" under HC 1057/19 (Harare) were declared invalid. 2. The writ of execution issued pursuant to the default order in HC 1057/19 (Harare) was declared invalid and cancelled. 3. The 1st Applicant, Apatron Mining (Pvt) Ltd, was reinstated to peaceful and undisturbed occupation and possession of Munjungwe Conservancy, Mwenezi. 4. The 1st to 8th Respondents were ordered to pay costs of suit on an attorney and client scale, jointly and severally, the one paying the other to be absolved.

A summons has legal force and effect only when issued against an existing legal or natural person. If there is no legal or natural person answering to the names in the summons as being of the defendants, the summons is null and void ab initio, and the proceedings and judgment that follow are null and void. A legal practitioner must not depose to an affidavit on behalf of a client save in exceptional circumstances, such as where facts are within the legal practitioner's personal knowledge, and even then this should be exercised sparingly. Where a legal practitioner deposes to an affidavit containing matters not within their personal knowledge without proper explanation, the affidavit contains inadmissible hearsay and should be disregarded. The audi alteram partem rule entitles an individual to be heard before an adverse decision is made against them.

The court noted that the issue of jurisdiction of the court to declare invalid proceedings concluded by another judge of the same court was raised by the Respondents but stated it would leave this issue open since it was raised in an opposing affidavit that the court decided to ignore on the basis that it contained hearsay evidence. The court also observed in passing that while the principle regarding legal practitioners not deposing to affidavits on behalf of clients is often stated in relation to founding affidavits, it equally applies to opposing affidavits, citing Hiltunen v Hiltnen 2008 (2) ZLR 296 (H).

This case reinforces fundamental principles of Zimbabwean civil procedure regarding: (1) the validity of proceedings - that a summons issued against a non-existent legal or natural person is null and void ab initio, and any proceedings and judgment flowing from such a summons are similarly void; (2) the requirements for legal practitioners deposing to affidavits on behalf of clients - that this should only occur in exceptional circumstances where facts are within the legal practitioner's personal knowledge, and adequate explanation must be given; (3) the protection of constitutional rights, particularly the audi alteram partem rule requiring parties to be heard before adverse decisions are made against them; and (4) the requirements for obtaining declaratory relief. The judgment demonstrates the court's protective approach to ensuring proper parties are cited in litigation and that corporate entities maintain their separate legal personality.