Sound Electrical Property (Pvt) Ltd v Hornfriskon Investments (Pvt) Ltd t/a Maicon Resources

The applicant (Sound Electrical Property) sued the respondent (Hornfriskon Investments) and two individuals in HC 1958/17 for payment of money, eviction, interest and costs. The respondent, acting on its own behalf without legal representation, entered an appearance to defend. The applicant's legal practitioners wrote to the respondent on 31 August 2017 requesting it to secure legal representation and file the appearance through a legal practitioner, but the respondent ignored this and proceeded to file a request for further particulars. The respondent's director Phil Lamola deposed to an opposing affidavit, relying on a board resolution dated 28 July 2017 authorizing him to represent the company. Lamola argued that the Constitution section 45(3) extends rights to juristic persons and section 9 of the Companies Act gives companies the capacity of natural persons, thus allowing him to represent the company.

• Whether a company can represent itself in the High Court without legal representation
• Whether a director or officer of a company can appear on behalf of the company in a superior court
• Whether section 45(3) of the Constitution of Zimbabwe altered the common law rule requiring companies to be represented by legal practitioners in superior courts
• What constitutes an exception to the rule requiring legal representation for companies (the alter ego doctrine)

The court ordered that: (1) The respondent must instruct registered legal practitioners to assume agency on its behalf in HC 1958/17 and file further legal process within 7 days of service; (2) The respondent is barred from filing any legal process on its own behalf in HC 1958/17; (3) If the respondent fails to comply with clause 1, it shall be deemed barred, its notice of appearance to defend and subsequent court process shall be struck out after the 7-day period, with the applicant given leave to apply for default judgment without further notice; (4) The respondent shall bear the costs of suit on an ordinary scale.

A company, being an artificial/fictitious person, cannot appear in person before the High Court and must be represented by a registered legal practitioner in possession of a valid practicing certificate. The exception to this rule is limited to situations where an individual is the alter ego of the company (typically in small one-man companies) and can demonstrate that they are the directing mind and will of the company with no real distinction between the individual and the company. Even in such exceptional cases, the individual must seek and be granted leave of the court to appear. Section 45(3) of the Constitution of Zimbabwe 2013, which extends rights to juristic persons, does not alter this common law rule as similar provisions existed in the previous constitution and were considered when the rule was established.

The court noted that the decision in Zimbank Ltd v Pindi Electrical & Hardware (Pvt) Ltd by Mubako J, which held that companies could act through directors or officers in their sole employment, was wrongly decided as it ignored the binding precedent in Agramac and the decision of two judges in Pumpkin Construction. The court observed that the respondent's authorization of Lamola through a board resolution signed by directors and shareholders suggested it was a fully-fledged company, not a one-man operation. The court also noted the distinction between the Magistrates Court Rules (Order 4 rule 1 of the 1980 Rules) which explicitly allow companies to be represented by nominated officers, and the High Court Rules which contain no such provision.

This case reaffirms the well-established principle in Zimbabwean law that companies must be represented by legal practitioners in superior courts, and confirms that the 2013 Constitution has not altered this position. It clarifies the limited scope of the alter ego exception established in Lees Import and Export (Pvt) Ltd v Zimbank, emphasizing that this exception applies only to small one-man companies where the individual is truly the directing mind and will of the company, and even then requires leave of the court. The case demonstrates the continuing relevance of pre-constitutional case law where constitutional provisions remain substantively similar.