The Trustees for the Time Being of the Delta Trust v Autoworld Harare (Private) Limited and Paza Buster Commodity Brokers (Private) Limited

The applicant, purporting to act as trustees of the Delta Trust, sought to place Autoworld Harare (Private) Limited (the 1st respondent) under provisional liquidation and appoint a provisional liquidator. Daryl Eric Raine, a beneficiary of the Delta Trust and director of the 1st respondent, deposed to the founding affidavit. He claimed authorization by a resolution signed by Maxwell Tauya and Donald Mazwi Sibindi, who were described as trustees. However, the respondents produced a deed of trust showing that the actual trustees of the Delta Trust were Clive William Bishop, George McGhie, and Karl Delano Schoeman. These trustees swore affidavits denying any involvement in or authorization of the liquidation application. The applicant failed to attach the deed of trust or provide evidence of how Messrs Tauya and Sibindi became trustees. There was also confusion about two trust deeds - one established by Sean Christopher Waller in 2003 and another allegedly established by Raine in 2008.

• Whether the application was properly authorized by the trustees of the Delta Trust
• Whether there was a valid applicant before the court (locus standi)
• Whether there were material disputes of fact requiring oral evidence
• Whether there was compliance with the Companies (Winding Up) Rules
• Whether there was material non-disclosure and/or material falsehoods in the application

The application was struck off the roll with costs on the ordinary scale in favor of the respondents.

Where an application is brought in the name of a trust without proper authorization from the validly appointed trustees as identified in the trust deed, there is no valid applicant before the court. Proceedings instituted without proper authority are void ab initio. A party seeking to litigate on behalf of a trust must demonstrate compliance with the trust deed provisions regarding trustee appointment and must provide evidence of proper authorization by the correctly appointed trustees. What is not denied in affidavits must be taken to be admitted.

The court observed in parenthesis that, had it been necessary, it would have dismissed the application on the basis of material disputes of fact which could not be resolved on the papers without hearing viva voce evidence. The issue of which of the two trust deeds was authentic was a prominent dispute that would have required oral testimony. The court also noted that it did not need to make a formal finding of nullity regarding the resolution, as proceedings that are void ab initio require no pronouncement of nullity.

This case reinforces important principles in Zimbabwean law regarding the locus standi of trusts and the requirement for proper authorization when trusts institute legal proceedings. It emphasizes that trustees must strictly comply with trust deed provisions regarding appointment and resignation, and that parties bringing applications must have proper authority. The case confirms that proceedings instituted without proper authorization result in there being no valid applicant before the court, rendering the proceedings void ab initio. It also illustrates the court's intolerance of material non-disclosure and failure to provide adequate explanations regarding authority to litigate.