George Graham Warren Kileff and Others v Tendai Kandawasvikwa and Others

The first and second applicants (G.G.W. Kileff and P.S.W. Kileff) were founding directors of Retreat Farm (Private) Limited. The third and fourth applicants were family trusts holding shares in the company. A company director change form (CR14) was filed with the Registrar of Companies on 18 December 2015, removing the first and second applicants as directors and appointing the first to fourth respondents as new directors. The applicants alleged this CR14 was fraudulently filed without their knowledge or consent, aimed at wresting control of the company and enabling claims for compensation for farms acquired by the State. The applicants claimed they never resigned as directors. The respondents contended that the applicants had resigned on 27 October 2009 pursuant to a resignation letter, and that the respondents' appointments were regular and consistent with the company's shareholding. The applicants only instituted proceedings in March 2023, despite allegedly being aware of the changes by October 2016.

• Whether the applicants' claim was prescribed under the Prescription Act [Chapter 8:11]
• Whether the deponent for the third and fourth applicants (trusts) had locus standi and authority to represent them
• Whether the affidavit deposed by Hazel Ellen Kileff on behalf of the second applicant was competent given her lack of personal knowledge
• Whether the application was properly founded with a valid cause of action
• Whether material disputes of fact precluded determination by motion proceedings
• Whether the CR14 filing was fraudulent and should be set aside on the merits

The application in Case No. HC 1347/23 was dismissed in its entirety. The applicants were ordered to pay the respondents' costs of suit on the ordinary party-and-party scale, jointly and severally.

The binding legal principles established are: (1) A claim to set aside a company director change form (CR14) and rectify the company register constitutes a 'debt' under the Prescription Act [Chapter 8:11] and is subject to the three-year prescription period under section 15(d), which begins to run when the claimant knows or ought reasonably to know of the facts giving rise to the claim. (2) An artificial person such as a trust can only institute litigation through properly authorized representatives, and the onus is on the party alleging representation to prove the authority by documentary evidence such as trust deeds or resolutions—a mere assertion of being a trustee is insufficient when challenged. (3) In motion proceedings, a founding or supporting affidavit must be deposed by a person with personal knowledge of the material facts; hearsay evidence is inadmissible unless falling within a recognized exception, and a power of attorney does not cure lack of personal knowledge. (4) An application must clearly plead a recognized cause of action in the founding papers; relief cannot be granted on a cause not pleaded. (5) Where material disputes of fact exist that cannot be resolved on affidavit, and the applicant should have foreseen such disputes, the application may be dismissed without referral to trial. (6) In applying the Plascon-Evans rule, where the respondent's version is not far-fetched or clearly untenable, the court must accept the respondent's version together with admitted or undisputed facts, and the applicant bears the onus to prove the case on a balance of probabilities.

The court made several non-binding observations: (1) The court noted that although any one of the preliminary points could have been dispositive, it addressed all points in limine for completeness. (2) The court observed that allegations of fraud are serious and usually demand strict proof, often requiring a full trial with oral testimony and cross-examination rather than affidavit evidence. (3) The court commented that the six-year delay between the alleged 2009 resignation and the 2015 CR14 filing was unusual but not necessarily indicative of fraud—plausible innocent explanations existed, such as the company being dormant or simple negligence/late compliance with filing requirements. (4) The court noted that while the respondents had requested attorney-client costs against Mr. Burr personally, it did not find this necessary in the circumstances. (5) The court observed that form should not be exalted over substance regarding the labelling of affidavits, but emphasized that substance itself—a clear cause of action and competent evidence—remained essential. (6) The court expressed the view that the applicants' long inaction (from 2016 knowledge to 2023 action) was not proof of acquiescence but was consistent with the suggestion that applicants had abandoned the company and only resurfaced when compensation became available, thereby weakening their credibility.

This case is significant in Zimbabwean company law and civil procedure for several reasons: (1) It clarifies that claims to set aside company register entries and rectify directorship are subject to prescription as 'debts' under the Prescription Act, with the prescriptive period running from when the claimant knew or ought reasonably to have known of the facts giving rise to the claim. (2) It emphasizes strict requirements for locus standi and authority when trusts or artificial persons institute litigation—trustees must prove their appointment and authorization through documentary evidence, not mere assertion. (3) It reinforces the hearsay rule in motion proceedings, holding that affidavits must be deposed by persons with personal knowledge of material facts; a power of attorney does not confer competence to testify about events outside the deponent's knowledge. (4) It applies the principle that applications must clearly plead a recognizable cause of action and that courts will not grant relief on unpleaded grounds. (5) It illustrates the Plascon-Evans rule for resolving disputes of fact on affidavit and the inappropriateness of motion proceedings where material factual disputes exist. The judgment serves as a reminder of procedural rigor required in company law disputes and the consequences of delay in asserting rights.