Luna Estates (Pvt) Ltd v Divine Aid Trust Company t/a Datco and The Registrar of Deeds N.O

Luna Estates (Pvt) Ltd applied for rescission of a default judgment granted in favour of Divine Aid Trust Company (DATCO) under Case No. HC 6802/16. In the main case, DATCO had applied to register a caveat on Luna Estates' property. The application was served at 1 Wynne Street, CFX Building, Harare, which was Luna Estates' chosen domicilium citandi as per their agreement. Luna Estates' founding affidavit was deposed to by its Managing Director, Mirriam Rehwai Kangai, on 29 September 2016, but she only attached a board resolution authorizing her to represent the company on 11 October 2016. Luna Estates claimed it was not served because it had relocated to Plot 25 Glen Forest Road since 2013 following a director's death, though it never notified DATCO of this change as required by clause 19.5 of their agreement.

• Whether Mirriam Rehwai Kangai had authority to depose to the founding affidavit on behalf of Luna Estates when no prior board resolution was attached
• Whether a board resolution dated after the founding affidavit was deposed to could retrospectively authorize the deponent
• Whether the default judgment was erroneously sought or granted under Rule 449(1)(a) of the High Court Rules, 1971
• Whether service at the domicilium citandi was valid when the applicant had changed premises without notifying the respondent
• Whether issues relating to arbitration and breach of contract were relevant to a rescission application under Rule 449

The application for rescission of the default judgment was dismissed with costs.

1. A managing director does not automatically have authority to represent a company in legal proceedings merely by virtue of their position; specific authorization from the board is required. 2. However, a board resolution passed after an affidavit was deposed to can retrospectively authorize the deponent where the purpose of requiring authority (ensuring the company itself is litigating) is satisfied. 3. Service at a domicilium citandi remains valid even if a party has actually relocated, where the party failed to give notice of the change of address as required by their contractual agreement. 4. In rescission applications under Rule 449(1)(a), issues going to the merits of the main case (such as whether arbitration should have been pursued or whether breach notices were required) are irrelevant; the court only considers whether the judgment was erroneously sought or granted in the absence of the party.

The court observed that being 'competent' simply means having the necessary ability or being able to do something successfully, while having 'authority' means having been given the power to do something. This linguistic distinction is important in corporate representation. The court also noted that whilst a managing director might be competent to depose to an affidavit, they will still need authority from the company to depose to it. The court further observed that the purpose of requiring authority is for the court to be satisfied that it is indeed the applicant which is litigating and not an unauthorized person.

This case clarifies the Zimbabwean law principles regarding: (1) the distinction between competence and authority in company representation in litigation; (2) the possibility of retrospective authorization by company resolutions; (3) the validity of service at domicilium citandi when no proper notice of change of address has been given; and (4) the limited scope of rescission applications under Rule 449, which do not require showing a bona fide defence as required under Rule 63. The case emphasizes the importance of companies complying with contractual notice provisions regarding changes of address and properly authorizing representatives in legal proceedings.