Dahaw (Private) Limited and Nyasha Noreen Nyorovai Del Campo (Nee Mujuru) v Willdale Limited and Others

The first applicant, Dahaw (Pvt) Ltd, held 39.55% shares in the first respondent, Willdale Limited. The second applicant, Nyasha Del Campo, claimed to be the sole shareholder and director of Dahaw, while the third to sixth respondents (her mother Dr. Joice Mujuru and siblings) claimed they were also shareholders and directors. This dispute was pending in HC 254/22 and SC 76/22. On 11 March 2022, Willdale wrote to the parties stating that at its AGM scheduled for 7 April 2022, it would not count votes cast by either party on behalf of Dahaw unless authorized by court order or settlement deed. The applicants sought urgent relief to allow them to vote at the AGM, bar the third to sixth respondents from acting for Dahaw, and set aside certain resolutions. The second applicant claimed to sue both as director of Dahaw and under a derivative action to protect the company's interests.

• Whether the first applicant (a company) was properly before the court without a resolution authorizing litigation and representation
• Whether a director can institute proceedings on behalf of a company without proper authorization
• Whether the circumstances met the requirements for a derivative action under section 61 of the Companies and Other Business Entities Act
• Whether the first respondent's deponent had proper authority to represent it in the proceedings
• Whether the fourth to sixth respondents were properly before the court without filing supporting affidavits

The matter was struck off the roll. The applicants were ordered to pay the first, second and third respondents' costs.

A company, being a separate legal persona, can only validly institute legal proceedings in its own name through duly authorized agents, and when challenged, must produce a resolution showing it authorized both the litigation and the person representing it. A director has no automatic authority by virtue of being a shareholder and director to represent a company in litigation. A derivative action under section 61 of the Companies and Other Business Entities Act is only available to members or shareholders suing on behalf of a company against insiders (managers, officers or directors) who have wronged the company and prevented it from taking action itself. If a company is able to sue in its own name, it cannot simultaneously claim to be suing under a derivative action, as this demonstrates it is not incapacitated. A derivative action is not available against outsiders - only against insiders who control the company and have wronged it.

The court noted that in the modern age of technology, documents can be prepared, scanned and sent within minutes from outside the country, so being out of the country is not a valid excuse for failing to file required affidavits. The court also observed that while meetings require chairing and signing by a chairperson, board resolutions passed under Article 118 (as interpreted) may be valid if signed by a majority of directors, though the specific Article was not tendered for the court's consideration. The court emphasized the principle that he who alleges must prove, particularly in relation to allegations of fraud which require proper evidentiary support.

This case clarifies important principles of company law in Zimbabwe regarding corporate representation in litigation and derivative actions. It reinforces that: (1) a company as a separate legal persona must provide proper authorization (board resolution) when challenged on its capacity to litigate; (2) directors have no automatic authority to represent companies in litigation merely by virtue of their directorship; (3) derivative actions under section 61 of the Companies and Other Business Entities Act have strict requirements - they are only available to members/shareholders suing on behalf of an incapacitated company against insiders (managers/directors) who have wronged the company, not against third parties; and (4) if a company appears as a party in its own name, it cannot simultaneously claim to be suing under a derivative action as this demonstrates it is not incapacitated. The judgment provides important guidance on procedural compliance in corporate litigation.