Asswell Africa Gurupira and Jean Jane Gurupira v Earthmoving & Construction Company (Pvt) Ltd and Others

On 25 May 2007, the applicants (the Gurupiras) entered into an agreement with the second respondent (Muir) to purchase two issued shares in the first respondent company. The shares entitled the holder to exclusive right of occupation and use of property at 98 Churchill Avenue, Gunhill, Harare. The applicants paid the purchase price in instalments, with the final payment made on 13 February 2008 by cheque after they had to obtain a court order to compel Muir to provide banking details. On 11 December 2007, before final payment, Muir signed a shareholders agreement with the sixth respondent (Leggatte) allotting him 98 shares in the company. The Gurupiras instituted proceedings on 7 March 2008 seeking transfer of the property. Default judgment was granted on 21 May 2008, transfer occurred on 16 June 2008, and the Gurupiras evicted Muir and the company on 24 July 2008. The company applied for rescission of default judgment, which was granted by Mafusire J on 19 March, who set aside the default judgment, cancelled the deed of transfer, and referred residual issues back to the main application. The company was given leave to file opposing papers within 10 days.

• Whether the second respondent (Muir) was properly before the court given that she did not apply for rescission of the default judgment and had no proper legal representation with mandate
• Whether the applicants had discharged their obligations under the agreement of sale with Muir
• Whether the agreement between Muir and Leggatte constituted a valid transfer of shares or was a double sale
• Whether the applicants were entitled to transfer of the company's immovable property into their personal names
• Whether the applicants were lawfully occupying the property or should be evicted

1. Declaration that the 1st and 2nd applicants are the lawful shareholders of the entire shares in the 1st respondent company and any purported transfer or appointment of directors by the 6th respondent deemed null and void. 2. The 2nd respondent directed to sign all necessary documents to effect transfer of the shares. 3. Should the 2nd respondent fail to sign, the 4th respondent (Sheriff) is directed to sign all necessary documents to effect transfer of shares to applicants. 4. The 1st and 6th respondents to bear costs on attorney and client scale jointly and severally. 5. The 6th respondent's counter-application dismissed.

1. Where a default judgment is rescinded in favor of one respondent, other respondents who did not apply for rescission remain bound by the default judgment unless they obtain their own relief. 2. A legal practitioner must have proper authorization/mandate from a client to file a notice of opposition or affidavit on their behalf, and such authorization cannot be retrospectively validated after the fact. 3. Where a party is properly served at their domicilium citandi and fails to respond within the prescribed time, they become barred in terms of Rule 233(2) of the High Court Rules. 4. What is not denied in affidavits must be taken as admitted (applying Fawcett Security Operations). 5. Shareholders of a company are not automatically entitled to transfer of company property into their personal names; company assets must be dealt with in accordance with the Companies Act, not through simple transfer to shareholders.

The court observed that Mr Stevenson's affidavit contained factual errors (stating that Muir's husband signed the agreement with Leggatte on 27 May 2008 when the husband was already deceased and his share had been transferred to Muir in 2006), suggesting that the information provided was either mistaken or untruthful. The court also noted that even if interested parties thought Mr Stevenson's evidence would assist them, he should have deposed to an affidavit to be attached to their papers rather than filing in his own name without proper authorization. The court further observed that Mr Stevenson had no personal knowledge of critical matters such as whether the Gurupiras discharged their obligations or whether Muir cancelled the agreement, rendering his evidence hearsay and inadmissible.

This case is significant for establishing important principles regarding proper authorization of legal practitioners in Zimbabwean civil procedure, specifically that a legal practitioner must have proper mandate to file notices of opposition and affidavits on behalf of parties, and that such mandate cannot be retrospectively validated. The case also reinforces the principle that what is not denied in affidavits must be taken as admitted, and clarifies that rescission orders benefit only the parties who applied for them, not co-respondents who failed to take such steps. It also demonstrates the distinction between share ownership in a company and ownership of company assets, holding that shareholders cannot simply transfer company property into their personal names without following Companies Act procedures.