Sakala Logistics (Private) Limited v Gatehill Enterprises (Private) Limited and Others

The applicant instituted proceedings cited as "Sakala Logistics (Private) Limited". At the commencement of the hearing, the applicant applied to amend its citation to "Swann Logistics (Pvt) Ltd formerly known as Sakala Logistics (Pvt) Ltd", relying on documentation at page 25 of the record allegedly showing a change of name. According to the respondents' argument supported by the record, "Sakala Logistics" had ceased to exist on 3 June 2016, while the main matter (HC 2634/25) was instituted in 2025, approximately eight years later. The first and fourth respondents opposed the amendment, arguing that the entity cited as applicant did not exist when proceedings were instituted, that the defect could not be cured by amendment as it constituted a nullity rather than a misdescription, and that there was inordinate delay without explanation. The objection regarding citation had been raised in the notice of opposition filed in April 2025, but the applicant only moved for amendment at the commencement of the hearing.

• Whether proceedings instituted by or against a non-existent entity can be cured by amendment
• Whether the proposed amendment constituted correction of a misdescription or impermissible substitution of parties
• The proper interpretation and application of sections 25(4) and 26 (particularly section 26(5)) of the Companies and Other Business Entities Act [Chapter 24:31]
• The requirements for granting an amendment, particularly where delay exists and the amendment affects the identity of the litigant
• Whether a court can exercise jurisdiction over proceedings instituted by a non-existent legal entity

The application to amend the citation of the applicant was dismissed. The applicant was ordered to pay the first and fourth respondents' costs of the application, jointly and severally, the one paying the other to be absolved.

Proceedings instituted by or against a non-existent legal entity are null and void ab initio and cannot be saved by amendment. There is a fundamental distinction between correcting the description of an existing litigant who is in truth before the court (misdescription) and attempting to substitute or introduce a different litigant where proceedings were instituted by or against a non-entity. Section 26(5) of the Companies and Other Business Entities Act [Chapter 24:31] preserves substantive rights and procedural continuity when a company changes its name, but it presupposes that proceedings are truly "by or against the entity" and does not authorize proceedings to be commenced under a former name that no longer existed at the time of institution. A party seeking to amend its citation following a change of name must demonstrate on oath and with clarity the continuity of the juristic person in whose name proceedings were instituted, and must provide adequate explanation for any delay. The court cannot speculate itself into jurisdiction; where a party fails to place before the court a coherent sworn explanation demonstrating that the litigant was always the same juristic person, the court cannot proceed on the footing that the matter is merely a harmless misnomer.

The court made several non-binding observations: (1) The phrase "formerly known as" is the appropriate descriptor where what is alleged is a statutory change of registered name and is consonant with a change-of-name scenario under the COBE Act. (2) Modern procedural approaches generally prefer correction over destruction where the identity of the true litigant is clear and no prejudice exists, as illustrated by South African authorities such as Four Tower Investments (Pty) Ltd v André's Motors. (3) The nullity doctrine is not a fetish but a safeguard that the coercive power of the court is invoked only by and against persons recognized by law. (4) Even where courts adopt a liberal approach to amendments, unexplained delay and tactical ambush weigh against indulgence. (5) The McFoy principle ("you cannot put something on nothing and expect it to stay there") remains apt in Zimbabwean procedural jurisprudence as an articulation of the nullity doctrine.

This case is significant in Zimbabwean procedural law as it clarifies the limits of the court's discretion to allow amendments, particularly in distinguishing between correcting a misdescription and substituting parties where a non-entity instituted proceedings. It authoritatively interprets section 26(5) of the Companies and Other Business Entities Act, holding that while the provision preserves substantive rights and procedural continuity following a change of company name, it does not permit proceedings to be instituted under a non-existent name and later corrected by amendment. The case reinforces the nullity doctrine and the principle that jurisdiction cannot be lawfully invoked at the instance of a non-existent party. It also emphasizes that parties seeking amendments must provide proper evidential foundation through sworn affidavits demonstrating continuity of legal identity, bona fides, and must provide adequate explanation for delay. The judgment balances the modern tendency to prefer substance over technicalities with the fundamental requirement that the coercive power of the court can only be invoked by and against persons recognized by law.