One Union Avenue Owners Association v Midlands State University and Atlanta Drilling (Private) Limited

The applicant, One Union Avenue Owners Association, sought an urgent interdict to stop the 1st respondent (Midlands State University) and 2nd respondent (Atlanta Drilling (Private) Limited) from drilling and installing a borehole at Stand 16876 Salisbury Township. The property consists of 24 undivided shares owned by seven different entities with exclusive rights of occupation under a Notarial Deed. On 14 May 2021, Mr. Alan Ivor Cordner McCormick, the deponent and chairperson of Midmac Investments (Private) Limited, received a tip that 1st respondent intended to drill a borehole. On 16 May 2021, drilling commenced despite opposition from other co-owners. McCormick reported to police but was advised it was a civil matter. The urgent application was filed on 17 May 2021 at 1646 hours. McCormick deposed to the founding affidavit as chairperson of the applicant. He had sent an email to the Management Committee on 17 May 2021 at 7:24am stating he had already instructed his personal lawyer to obtain an injunction and sought the committee's support.

• Whether the deponent had authority to depose to the founding affidavit on behalf of a corporate entity without express authorization from the Management Committee or General Meeting
• Whether the order sought was a brutum fulmen given that the drilling had already been completed by the time the application was filed
• Whether non-compliance with Rule 241 regarding the use of the incorrect form rendered the application fatally defective

The application was struck off the roll of urgent matters. There was no order as to costs.

A deponent to a founding affidavit on behalf of a corporate entity must expressly state that they have authority to depose to the affidavit on behalf of that entity. It is insufficient to merely state one's position or office within the organization. Where a corporate entity has a management committee or constitutional framework requiring authorization for legal proceedings, a resolution or proper authorization must be obtained before instituting proceedings. An order seeking to prevent an action that has already been completed by the time the application is filed constitutes a brutum fulmen and is incapable of enforcement.

The court indicated that while the use of an incorrect form (Form 29B instead of Form 29 with appropriate modifications as required by Rule 241) constitutes non-compliance with the High Court Rules, such procedural irregularity is not necessarily fatal to an application. The court has discretion to condone such non-compliance, particularly where the respondent has had adequate opportunity to oppose the application and has not suffered material prejudice. The court also exercised its discretion regarding costs, declining to award costs against the applicant despite dismissing the application, suggesting that not all unsuccessful applications warrant cost orders.

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the strict requirement for deponents representing corporate entities to explicitly aver that they have authority to depose to affidavits on behalf of the entity, with mere statement of office or position being insufficient; (2) the application of the brutum fulmen principle where the harm sought to be prevented has already occurred before the application is heard, rendering the relief sought unenforceable; and (3) the court's discretion to condone procedural irregularities such as use of incorrect forms where no material prejudice results. The case emphasizes corporate governance requirements where owners associations have established management committees and constitutional frameworks governing their decision-making processes.