Francesco Marconati and Mark Andrew Hughes v DGL Investments Number Five (Pvt) Ltd and Others

The applicants were appointed as directors of the 1st respondent, a juristic person operating a mining plant in Matabeleland North. The 1st applicant was appointed on 26 January 2022 and the 2nd applicant on 22 February 2021. On or about 22 August 2024, the applicants discovered that a new CR6 return had been filed with the Registrar of Companies indicating that they had resigned as directors. The applicants denied resigning and alleged they were never invited to any meeting where such a decision could have been taken. The CR6 form dated 4 August 2024 was presented by the 2nd respondent and signed by the 3rd respondent. The applicants contended that their purported removal violated section 202 of the Companies and Other Business Entities Act and the articles of association of the 1st respondent. They reported the matter to police and sought declarations that their removal was null and void.

• Whether the applicants were lawfully removed as directors of the 1st respondent
• Whether the filing of the CR6 return indicating resignation without the applicants' consent and without a valid resolution was lawful
• Whether the requirements of section 202 of the Companies and Other Business Entities Act [Chapter 24:31] were complied with
• Whether the applicants satisfied the requirements for a declaratory order under section 14 of the High Court Act
• Whether an affidavit commissioned by a South African attorney and commissioner of oaths (not a notary public) was properly before the court

The court granted the relief sought by the applicants ex tempore on 30 May 2025, declaring: (1) the applicants are members and duly appointed directors of the 1st respondent; (2) their removal/resignation could only be done in terms of the memorandum and articles of association and section 202 of the Companies and Other Business Entities Act, and anything done to the contrary is null and void; (3) their removal/resignation could not be done in their absence without proper notice, and anything done to the contrary is null and void; (4) the applicants are reinstated to their positions as directors of the 1st respondent forthwith from the date of the order; and (5) costs of suit were awarded.

Where a decision to remove directors is made or an action is taken without following the mandatory legal procedures prescribed by section 202 of the Companies and Other Business Entities Act [Chapter 24:31] and the company's articles of association, that decision or action is void ab initio and has no legal force or effect. The removal of directors requires: (1) a properly convened meeting with adequate notice to all directors/shareholders; (2) the meeting agenda must clearly state that removal of a director will be considered; (3) compliance with principles of natural justice including the right to be heard; and (4) a valid resolution. A resignation must be voluntary and in writing. Filing a CR6 return indicating resignation without the directors' consent and without a valid resolution is a legal nullity.

The court made several observations: (1) that affidavits sworn before foreign legal practitioners who are commissioners of oaths but not notaries public do not comply with Rule 85(5) of the High Court Rules 2021, which requires commissioning by a "commissioner of the High Court" appointed by the High Court of Zimbabwe; (2) that the grant of a declaratory order under section 14 of the High Court Act, while discretionary, is appropriate where applicants have a direct and substantial interest in existing legal rights and where corporate governance has broken down; (3) that opposing affidavits must specifically address and deny allegations rather than contain generalizations and "murmurs"; and (4) that filing false documents with the Registrar of Companies indicating director resignations that never occurred is a serious matter warranting police investigation.

This case reinforces fundamental principles of corporate governance in Zimbabwe, particularly regarding the removal of directors. It emphasizes that compliance with statutory procedures under the Companies and Other Business Entities Act is mandatory, not directory. The case affirms that actions taken in violation of section 202 are void ab initio and have no legal effect. It clarifies the application of the MacFoy principle that invalid corporate actions are legal nullities upon which nothing can be built. The judgment also provides guidance on: (1) requirements for declaratory orders under section 14 of the High Court Act; (2) the importance of proper commissioning of affidavits from foreign jurisdictions; and (3) the duty of respondents to specifically deny allegations rather than making vague generalizations in opposing papers.