Job Sibanda v Dowood Services (Pvt) Ltd and Bulawayo City Council

The applicant, a legal practitioner, provided legal services to the 1st respondent and its director, Mr. Dave Luwo, from around 2010. On 24 November 2010, the parties entered into a written Agreement of Sale whereby the 1st respondent sold Stand 15324 Kelvin West, Bulawayo to the applicant for US$10,000.00, payable via a US$2,000.00 deposit and monthly installments of US$1,000.00. The applicant paid the full purchase price in cash to the 1st respondent's manager and Luwo, took vacant possession of the stand, installed a locked gate, and changed the postal address. For approximately 13 years, the applicant remained in undisturbed possession. In April 2023, Luwo contacted the applicant, broke the lock, and installed a tenant. After discussions, Luwo allegedly acknowledged the applicant's ownership. However, on 4 September 2023, the 1st respondent's legal practitioners purported to terminate the Agreement of Sale. The applicant disputed the validity of this termination and sought declaratory relief. The 1st respondent opposed the application through papers signed by Luwo, a director, rather than by a registered legal practitioner. The 2nd respondent did not oppose.

• Whether the Notice of Opposition filed on behalf of a corporate entity by its director, rather than a legal practitioner, is valid
• Whether a company as a juristic person can be represented in the High Court by a director without legal representation or leave of court
• Whether the failure to be properly represented constitutes a procedural irregularity or a fundamental nullity
• Whether subsequent conduct by the opposing party can waive the defect of improper representation
• Whether the Agreement of Sale is valid and binding between the parties
• Whether the purported cancellation of the Agreement of Sale is valid

1. The Agreement of Sale entered into between the applicant and the 1st respondent on 24 November 2010 in respect of Stand 15324 Kelvin West, Bulawayo, is declared to be valid and binding between the parties. 2. The purported cancellation of the said Agreement of Sale by the 1st respondent is declared null and void. 3. The 1st respondent is ordered to sign all necessary documents and take all necessary steps, within fourteen (14) days of this order, to give effect to the transfer of all rights, title, and interest in Stand 15324 Kelvin West, Bulawayo, to the applicant. 4. In the event that the 1st respondent fails or refuses to comply with paragraph 3, the Sheriff of the High Court, Bulawayo, is authorised and directed to sign all such necessary transfer documents on behalf of the 1st respondent. 5. The 2nd respondent, Bulawayo City Council, is ordered to register the right, title, and interest in Stand 15324 Kelvin West, Bulawayo, in the applicant's name upon the applicant fulfilling all of the 2nd respondent's requirements for such a transfer. 6. The 1st respondent shall pay the costs of this application on an ordinary scale.

A company, as a juristic person, has no automatic right to be represented by a director or shareholder in proceedings before the High Court. Unless rules of court or statute provide otherwise, or unless leave of court is obtained, a juristic person can only be represented by a legal practitioner. The failure of a corporate entity to be properly represented by a legal practitioner is not a procedural irregularity that can be waived, but a fundamental defect that renders the proceedings a nullity. This defect goes to the very capacity of the party to appear and be heard by the court and is a fundamental issue of legality. A nullity begets nullity—proceedings founded on a nullity are incurably bad and cannot be validated by subsequent conduct of the opposing party. Even if a director is the alter ego of a company, the director must seek and obtain leave from the court to represent the company in superior courts.

The court noted that in the spirit of the Constitution, where every party is entitled to defend their rights and interests without fear or favour, punitive costs were not warranted despite the 1st respondent's counsel ignoring warnings about the irregularity. The court observed that the distinction between an irregular step under Rule 43 of the High Court Rules, 2021 and a fundamental defect rendering process void ab initio was fairly arguable, justifying the exercise of discretion against punitive costs. The court also made passing observations about the validity of the underlying sale agreement and the soundness of legal arguments regarding the sale of rights in property held under suspensive sale from a municipality and the invalidity of purported cancellation not complying with the Contractual Penalties Act [Chapter 8:04], though these were not central to the determination of the preliminary point.

This case reinforces fundamental principles of company law and civil procedure in Zimbabwe. It confirms that a company, as a juristic person, cannot be represented in the High Court by a director or shareholder but must be represented by a legal practitioner unless otherwise provided by statute or court rules, or unless the director obtains leave of court (typically where the director is the alter ego of the company). The case clearly distinguishes between procedural irregularities that are voidable and can be waived, and fundamental defects that render proceedings void ab initio and incurably bad. It reaffirms that proceedings founded on a nullity are themselves null and cannot be validated by subsequent conduct of the opposing party. The judgment serves as an important reminder to corporate litigants of the strict requirements for proper legal representation in superior courts and the consequences of non-compliance.