Robert Dow v Pomelo Mining (Private) Limited

On 14 May 2015, the applicant (Robert Dow), a resident of Wokingham, England, entered into a facility agreement with the respondent (Pomelo Mining (Private) Limited) whereby he advanced USD 200,000 to the respondent for placing in a gold trading account with CABS in Harare. The loan was to be repaid within twelve months by May 2016. On 17 May, the applicant wrote to the respondent advising they were in default and demanding immediate repayment, which was not made. On 6 September 2018, the applicant instituted summons under HC 8115/2018 for payment of USD 200,000 plus interest. The main matter proceeded beyond Pre-Trial Conference and was set down for trial on 24-25 January 2022. Upon receiving notice of set down, the applicant highlighted practical challenges attending trial in person, as he was outside the jurisdiction. The respondent refused consent to admit evidence on affidavit in place of oral evidence. The applicant then approached the court for an order to place his evidence on affidavit. Edward Holme filed a Notice of Opposition on behalf of the respondent, which the applicant challenged via a point in limine, arguing that Holme did not establish his authority to represent the company nor state he could swear to the facts.

• Whether Edward Holme had the proper authority to depose to an opposing affidavit on behalf of the respondent company without a board resolution
• Whether the opposing affidavit complied with Rule 58(4) of the High Court Rules, 2021, which requires the deponent to swear positively to the facts or averments
• Whether there were sufficient grounds under Rule 53(14) of the High Court Rules, 2021, to dispense with viva voce evidence and allow the applicant to lead evidence by affidavit
• Whether an affidavit and interrogatories would be sufficient to place the required evidence before the court
• Whether the respondent genuinely and sincerely desired the production of the witness for cross-examination

The court granted the application and made the following orders: (1) The application for the applicant to lead evidence on affidavit in HC 8115/18 was granted; (2) The applicant shall file a notarized affidavit within 10 days; (3) The respondent shall cross-examine through interrogatories within 5 days; (4) The applicant shall respond within 10 days, closing his case; (5) The applicant may file clarification affidavit within further 5 days; (6) Respondent shall file affidavit(s) of evidence within 10 days of applicant closing case; (7) Applicant shall cross-examine respondent's evidence through interrogatories within 5 days; (8) Respondent shall respond within 10 days, closing its case, with option to file clarification within further 5 days; (9) Any party may file closing submissions within 10 days of respondent closing case; (10) Each party to bear its own costs for this application, with costs in HC 8115/2018 to be in the cause.

A company, being a separate legal persona, cannot be represented in legal proceedings by a person who has not been authorized by board resolution to do so. A deponent to an affidavit on behalf of a company must plead and establish the basis of their authority to represent the company and must state that they can swear positively to the facts and averments. Under Rule 53(14) of the High Court Rules, 2021, a court may dispense with viva voce evidence where: (a) there is sufficient cause for dispensing with the witness's attendance at court; (b) the facts sought to be proved can be competently proved through an affidavit; and (c) provided that where the other party genuinely and sincerely desires production of a witness for cross-examination and such witness can be produced, such order shall not be made. Sufficient cause includes circumstances where a party is a peregrinus facing travel restrictions (such as COVID-19 quarantine requirements), short notice of trial, and where the matter is straightforward based on documentary evidence with no genuine material disputes of fact. Affidavits and interrogatories may be sufficient to place all necessary evidence before the court for fair and just determination.

The court observed that the loan agreement in this case was conducted virtually and there was never a need for the parties to meet, as it was accepted that this is the most efficient manner of doing business. The court noted that if the applicant had defaulted in appearing in court, a default judgment would have been granted against him, and reverting back to the status quo after such default judgment would be costly and proceedings would be protracted. The court also noted that the respondent would not suffer any prejudice should the court dispense with hearing viva voce evidence, and that the matter was straightforward based on a liquid document with no evident disputes of fact beyond bald allegations by the respondent that the agreement was novated or varied. The court mentioned that Rule 53(14) was meant to provide for situations where a party is unable to attend trial.

This case is significant for establishing the procedural requirements for corporate representation in Zimbabwean civil proceedings, particularly the necessity of board resolutions authorizing individuals to depose to affidavits on behalf of companies. It reinforces the strict application of Rule 58(4) of the High Court Rules, 2021, requiring deponents to establish their authority and ability to swear to facts. The case also provides important guidance on the application of Rule 53(14) regarding dispensing with viva voce evidence, particularly in circumstances involving foreign litigants, COVID-19 travel restrictions, and cases based on documentary evidence. It demonstrates judicial flexibility in accommodating practical difficulties faced by peregrinus litigants while ensuring procedural fairness through the interrogatories mechanism. The judgment affirms that affidavits and interrogatories can be sufficient for trial where there are no genuine material disputes of fact.