Edward Mukarakate and Irene Mukarakate v Elias Tony Rizk and Chiedza Mandizvidza

The applicants were business partners with Samir Ghattas (currently outside the country) in operating Sungano Motel in Shurugwi. The partnership experienced difficulties, leading to applicants obtaining a provisional order against Samir Ghattas in HC 374/12 on 6 February 2012, which interdicted him from interfering with the applicants' administrative and financial duties in running the motel and from proceeding with construction or renovations pending arbitration. Samir Ghattas subsequently granted the respondents a power of attorney to act on his behalf, specifically to follow up on the arbitration process. The applicants alleged that the respondents, acting under the power of attorney, came to the motel to interfere with employees and demand certain documents. The respondents denied this, stating that the first respondent only visited the premises with police to pursue criminal issues involving alleged fraud of $80,000.00, and that the second respondent had never set foot at the motel premises. The applicants became aware of the power of attorney through an email in September 2014.

• Whether the respondents, acting under a power of attorney from a person subject to a provisional interdict, can exercise powers that their principal has been specifically stripped of by court order
• Whether the application was urgent given the failure to specify the precise date of alleged interference and the delay since becoming aware of the power of attorney in September 2014
• Whether the second applicant's uncommissioned affidavit should be accepted
• Whether the applicants established a case for an interdict against the respondents

The court granted the provisional order interdicting the respondents from: (1) interfering with the running and conduct of business of Sungano Motel in Shurugwi until finalization of the arbitration process; (2) collecting company documents belonging to Sungano Motel, Shurugwi pending finalization of the arbitration process; and (3) accessing and disrupting the running of business at Sungano Motel, Shurugwi pending finalization of the arbitration process. The second applicant's uncommissioned affidavit was expunged from the record.

An agent acting under a power of attorney cannot exercise powers that their principal has been specifically stripped of by court order. If a principal is barred by a provisional order from interfering with certain activities (in this case, the administration and running of a business pending arbitration), the agent cannot circumvent that order by purporting to act under the authority of a power of attorney. The agent is bound by the same restrictions that apply to the principal. Following up on an arbitration process means liaising with the arbitrator and lawyers, not going to the business premises in a manner that would violate existing court orders. In determining urgency for interdict applications, failure to mention the specific date of alleged interference does not vitiate urgency on its own, unless it is shown that the interference occurred long ago. What triggers urgency is the actual interference or harm, not mere knowledge of a potential threat such as the existence of a power of attorney.

The court noted that the mandate given to the respondents in the power of attorney was specifically to follow up on the arbitration process, and the court observed that following up on arbitration certainly means being in contact with the arbitrator, lawyers, and the other party's lawyer in a bid to finalize the arbitration process - it does not extend to visiting the business premises or interfering with operations. The court also observed that even if the first respondent went to the motel with police to investigate fraud involving $80,000.00, this would still be beyond the scope of the power of attorney which was limited to following up on arbitration.

This case is significant in Zimbabwean commercial and partnership law as it establishes an important principle regarding the limitations of powers of attorney. The judgment clarifies that a power of attorney cannot be used to circumvent existing court orders, and that an agent acting under a power of attorney is bound by the same restrictions that apply to their principal. This protects the integrity of court orders and prevents parties from using legal representatives or agents to do indirectly what they are prohibited from doing directly. The case also provides guidance on urgency in interdict applications, confirming that it is the actual interference or threatened harm, not merely knowledge of potential threats, that triggers the need for urgent relief.