Folitorn Investments (Private) Limited and Aretha Manase v FBC Bank Limited and The Sheriff

The first respondent (FBC Bank Limited) obtained a default judgment on 2 March 2016 against Folitorn Trading (Private) Limited in case HC 6497/15 for ejectment from premises at 9 Inverary Road, Pomona, Harare. The property had previously been owned by Folitorn Trading but was transferred to the first respondent pursuant to a sale in execution. The default judgment was granted when Folitorn Trading's representatives arrived late to a Pre-Trial Conference scheduled for 2 March 2016 at 10am. On 3 March 2016, an application for rescission of the default judgment was filed in case HC 2268/16. The first respondent advised by letter dated 7 March 2016 that it would oppose the rescission application. A Notice of Removal and Ejectment was served on 21 March 2016, stating execution would occur on 24 March 2016. This prompted the filing of the present urgent application for stay of execution on 21 March 2016 by Folitorn Investments (Private) Limited (not Folitorn Trading) as first applicant and Aretha Manase as second applicant.

• Whether the application was urgent
• Whether the first applicant (Folitorn Investments) had locus standi to seek a stay of execution of an order granted against a different legal entity (Folitorn Trading)
• Whether the certificate of urgency was defective
• Whether proceedings instituted by a non-existent legal entity are a nullity
• Whether a supporting affidavit can sustain an application when the founding affidavit is invalid

The application was removed from the roll. The applicants were ordered to pay costs.

1. An application instituted by a non-existent legal entity is null and void and cannot be validated by amendment or substitution of parties. The proceedings are invalid ab initio. 2. A founding affidavit deposed to on behalf of a non-existent entity is a nullity, and a supporting affidavit cannot sustain an application where the founding affidavit is invalid. 3. In applications for stay of execution, the need to act (and thus urgency) arises when the order is granted and becomes enforceable, not when the writ of execution is issued or served. The mere filing of an application for rescission does not suspend an order, and a diligent party must anticipate execution and take timeous measures to prevent it. 4. A certificate of urgency must explain any delay in bringing the application and not merely summarize the applicant's case. Failure to explain delay renders the certificate fatally defective.

The court observed that the proposition that an applicant who was not a party to proceedings culminating in an order lacks locus standi to seek a stay of execution is not entirely correct, as such a party can have locus standi if it is an interested party that was improperly omitted from the proceedings. However, the court found it unnecessary to determine this issue given the finding that the application was a nullity. The court also noted that a writ of execution does not create rights but is merely a mechanism to realize rights granted under an order of court. The court expressed sympathy for the first respondent's frustration with the applicants' conduct, noting that the applicants had made undertakings at a previous meeting but failed to follow through, leading the first respondent to view efforts to bar eviction as not bona fide.

This case reinforces important principles of South African and Zimbabwean civil procedure: (1) that proceedings instituted by or on behalf of a non-existent legal entity are void ab initio and cannot be cured by amendment or substitution; (2) that the distinction between legal entities must be strictly observed, and one company cannot institute proceedings in respect of a judgment granted against a different company without demonstrating proper locus standi; (3) that in urgent applications, the need to act arises when the order is granted (or when its execution becomes inevitable), not when execution actually commences - parties cannot create urgency by their own dilatory conduct; (4) that a supporting affidavit cannot sustain an application where the founding affidavit is a nullity; and (5) that certificates of urgency must adequately explain delays and not merely summarize the applicant's case. The case is a cautionary tale about the importance of proper citation of parties and timely action in litigation.