Atricepts (Pvt) Ltd v Byron Sengweni N.O. and Others

Atricepts (Pvt) Ltd (applicant) sought an order compelling the 1st respondent, Byron Sengweni N.O., who was trustee of Security Mills (Pvt) Ltd (2nd respondent) under a scheme of arrangement granted under HC 2839/18, to release funds due to the applicant to operationalize the business of Security Mills. The 1st respondent claimed he had already instructed his legal practitioners (Joel Pincus, Konson and Wolhuter) to release US$40,000 to the applicant via email dated 30 October 2020, and stated the only delay was due to a disagreement between Stephanie Zlattner (3rd respondent) and her son Lawrence Eugene Zlattner, both suspended members of the 2nd respondent company. The 3rd respondent sought to be joined and filed opposition papers, claiming to be a beneficiary/trustee of a trust that held shares in the 2nd respondent company. Security Mills had been financially distressed since 1994 and had been subject to various insolvency measures, with the most recent being a scheme of arrangement under HC 565/17.

• Whether the 3rd respondent's opposing papers were properly before the court given they were initially unsigned and unnotarised
• Whether the 3rd respondent had the legal standing to oppose the application
• Whether the applicant was entitled to an order compelling release of funds under the scheme of arrangement
• Whether the scheme of arrangement was valid and enforceable
• The procedural requirements for filing affidavits in court applications

The court ordered: (1) The 1st respondent is hereby ordered to release to the applicant the amount of US$40,000.00 within forty-eight (48) hours of granting of this order; (2) No order for costs.

A party cannot file an unsigned and unnotarised founding affidavit in a court application without consent from other parties and leave of the court, even with a promise to file a properly executed version later. Documents cannot be improperly withdrawn from or inserted into the court record without proper procedure and notice. A party must establish clear legal standing and capacity when opposing an application, and cannot use interchangeable capacities (beneficiary, shareholder, trustee) without proper legal foundation. A litigant cannot approbate and reprobate (blow hot and cold) by taking contradictory positions on material facts such as the existence of a scheme of arrangement or the status of a trustee. Where opposing papers are improperly before the court and raise issues irrelevant to the application, they constitute no valid opposition and the relief sought should be granted where agreed by the remaining parties.

The court observed that whatever concerns and queries the 3rd respondent may have had regarding the trust, her son Lawrence, or Byron Sengweni could and should be raised in a different forum and different proceedings. She could not take advantage of this application to divert the court's focus to deal with those unrelated issues. The court noted that the 3rd respondent appeared to have thrown in a "cocktail of issues" including requirements for an interdict when the application was not for an interdict at all, in the hope that one ground might succeed. The court commented that a person cannot legally be both a beneficiary and a trustee at the same time under the same trust deed. The court also remarked on the impropriety of the 3rd respondent filing an unreadable, faintly photocopied trust deed as evidence.

This case is significant for establishing procedural requirements in Zimbabwean court applications, particularly regarding the filing of affidavits. It confirms that parties cannot file unsigned and unnotarised affidavits with promises to file proper versions later, and that parties cannot improperly remove and replace documents in the court record. The case also illustrates the principle against approbation and reprobation, and clarifies that parties must establish clear legal standing when opposing applications. It demonstrates the court's approach to schemes of arrangement and the enforcement of trustees' obligations under such schemes. The case reinforces that opposition papers must be properly filed and that opposing parties cannot raise irrelevant issues to divert the court's attention from the main application.