Ming Chang Sino-Africa Mining Investment (Pvt) Limited v Livingstone Mutatazha and Sheriff of Harare

The first respondent obtained a default judgment in the sum of $893,320.00 against the applicant (a gold mining concern) on 6 November 2013 for his alleged share of profits in respect of a mining operation conducted on mining claims situated in Mutawatawa, breach of contract and loss of income. The default judgment was granted after the applicant failed to appear at a pre-trial conference scheduled for 15 October 2013, resulting in the striking off of the applicant's defence. The applicant explained that it was not aware of the pre-trial conference date because the notice was served on its legal practitioners, but the lawyer dealing with the matter did not notify the applicant of the date as he had left the firm without handing over the file. The first respondent issued a writ and instructed the Sheriff to attach and remove the applicant's property in execution. The applicant filed an urgent application seeking a stay of execution pending determination of its rescission of judgment application.

• Whether the deponent of the founding affidavit had authority to represent the applicant company in the absence of a company resolution
• Whether the applicant's proposed amendment to its plea was improper and defeated the application
• Whether the legal practitioners' renunciation of agency constituted a renunciation of urgency
• Whether a stay of execution should be granted pending determination of the rescission of judgment application
• Whether the Sheriff was properly cited

The provisional order was granted with the following interim relief: (1) Execution of judgment in Case No. 9292/12 was stayed pending the outcome of the applicant's application for rescission of default judgment; (2) The Sheriff for Zimbabwe and any lawful deputies who had attached and removed any property in pursuance of the writ were directed to forthwith release such property to the applicant. Leave was granted to amend the citation of the second respondent to read "The Sheriff for Zimbabwe".

A company resolution is not necessary in every case to prove authority of a deponent to represent a company in legal proceedings. Where a deponent states he has authority and is demonstrably a director of the company (particularly where the company is named after him), the court is entitled to accept that authority absent evidence to the contrary. The omission of a company resolution is not fatal to an application. Where an applicant has provided a reasonable explanation for defaulting at a pre-trial conference (such as failure by legal practitioners to communicate the date) and has filed an application for rescission of judgment, execution of the default judgment should be stayed pending determination of the rescission application to ensure that justice is achieved and the claim is subjected to proper trial.

The court observed that the requirement for attachment of a company resolution has been "blown out of proportion and taken to ridiculous levels." The court also noted that the first respondent appeared overly intent on executing a default judgment without subjecting his claim to the test of trial, and stated that "justice cannot be achieved that way." The court commented that the application for rescission of judgment by the applicant "deserves consideration" and that it "cannot be said that the explanation given for the default is so devoid of merit as not to warrant a chance of a hearing."

This case is significant in Zimbabwean civil procedure for clarifying that the requirement for a company resolution authorizing a deponent to represent a company is not absolute and must be considered on a case-by-case basis. The court emphasized a practical approach where a director's statement of authority, particularly where the company is named after the director, should be accepted absent contrary evidence. The case also reaffirms the principle that courts should not allow default judgments to be executed hastily where there is a reasonable explanation for the default and a pending application for rescission, as this would undermine the administration of justice by denying parties their day in court.