The Trustees Commercial Federation of Manicaland Trust v City of Mutare and Minister of Local Government and Public Works

On 15 September 2021, an application was filed by "The Trustees Manicaland Commercial Federation Trust" challenging the City of Mutare's 2020 supplementary budget and 2021 budget processes as being flawed and in contravention of s 219 of the Urban Councils Act. The application was supported by an affidavit from Phibion Ngorima who claimed to act under a resolution of the "Manicaland Commercial Federation Trust" dated 1 September 2021. However, the affidavit cited the registration number of the "Commercial Federation of Manicaland Trust". The first respondent raised a preliminary point that there was no valid applicant before the court as the applicant had not attached its own registered deed. On 28 October 2021, the applicant filed a notice of amendment seeking to substitute "The Trustees Commercial Federation of Manicaland Trust" in its place. The first respondent objected on grounds that the original applicant did not exist as a juristic person, the proceedings were void ab initio, and the amendment sought to introduce an entirely new party. On 25 January 2022, the applicant filed an application for leave to amend the citation.

• Whether an application can be amended when the original applicant does not exist as a legal person
• Whether proceedings instituted by a non-existent entity are null and void and incapable of amendment
• Whether there is a difference between correcting a mis-description and substituting a non-existent entity with a different entity
• Whether the deponent had locus standi to amend pleadings on behalf of a non-existent entity
• Whether costs on the higher scale are appropriate in circumstances of frivolous litigation

The application for leave to amend was dismissed. The applicant was ordered to pay the first respondent's costs on the scale of legal practitioner and client.

Legal proceedings instituted by a non-existent entity are null and void ab initio and cannot be cured by amendment. A non-existent applicant cannot validly institute legal proceedings, pass resolutions, or grant authority to anyone to act on its behalf. There is a material difference between the correction of a mis-description of a party (which may be permitted by amendment) and a situation where the party cited does not exist as a legal person at all. A nullity cannot be amended. An incurably bad application cannot be saved through amendment procedures. A party cannot have locus standi to amend pleadings which are themselves a nullity.

The court observed that Rule 41 of the High Court Rules has been interpreted as applying equally to actions and applications when seeking amendments of pleadings, though the court noted that Rule 41(1) does not entitle a party to amend a sworn statement. The court also expressed the view that once it was pointed out that the applicant was a non-existent entity, the reasonable approach would have been to seek withdrawal by consent with no order as to costs or with a tender of costs, rather than persisting with the application and belatedly seeking amendment. The court noted in passing that the application was poorly drafted, with incorrect references to non-existent rules (Order 41(4)) and a confusing and meaningless draft order.

This case reinforces fundamental principles of civil procedure in Zimbabwean law (which shares common law heritage with South African law) regarding the consequences of non-existent entities attempting to institute litigation. It emphasizes the distinction between correcting a mis-description of a party and attempting to substitute a non-existent entity with a different entity. The case is significant for establishing that proceedings instituted by a non-existent legal person are void ab initio and cannot be cured by amendment. It also demonstrates the courts' willingness to award punitive costs where litigants persist with applications that are clearly unsustainable after being informed of fatal defects, particularly where such conduct causes unnecessary expenditure of public funds.