Trots Investments (Pvt) Ltd and Schwegmann Family Trust v Mambiro Fibre (Pvt) Ltd

The first applicant commenced legal proceedings in June 2011 seeking ejectment of the respondent from premises at number 9 Welback Road, Thorngrove, Bulawayo. The respondent opposed and filed a counterclaim alleging a verbal right of first refusal over the property granted by the former trustee of the second applicant (since deceased). The respondent sought cancellation of the transfer of the property from the second applicant to the first applicant. While the main action was pending, the applicants purported to offer the respondent the option to exercise the right of first refusal through a letter dated 30 July 2014, offering the property at US$48,500. The applicants then brought this application seeking a declaratur that the respondent failed to exercise the option, that it had lapsed, and for leave to sell the property on the open market. The respondent raised a point in limine that the cited respondent "Mambiro Fibre (Pvt) Ltd" did not exist as a legal entity, and that the proper respondent should be Samuel Lazarus Mambiro trading as Mambiro Fibre and Timber Industries.

• Whether an application citing a non-existent legal entity as respondent can be amended to substitute the correct respondent
• Whether a summons issued against a non-existent entity is null and void ab initio and incapable of amendment
• Whether parties can unilaterally deal with property that is res litigiosa while the main action is pending
• Whether an offer of right of first refusal was validly made when the offeror's identity was unclear and the property ownership was in dispute

The application was dismissed with costs on the ordinary scale.

A court application that cites a non-existent legal entity as respondent is null and void ab initio and cannot be amended to substitute the correct party. When summons is issued against a non-existent being, the application has no legal force or effect. Property that is the subject of pending litigation (res litigiosa) cannot be dealt with unilaterally by either party until the main action has been disposed of by the court. An offer regarding property must be made by a clearly identifiable person or legal entity with proper legal standing to make such offer.

The court observed that even if the identity of the offeror was not critical, there appeared to be unequivocal acceptance of the US$48,500 offer as the respondent did not counter-offer but merely proposed how the amount would be liquidated. The court also noted that the applicants were attempting to 'have their cake and eat it' by trying to enforce a right of first refusal while simultaneously pursuing ejectment proceedings and without first withdrawing the main action or acceding to the counterclaim for reversal of the property transfer.

This case reinforces important principles of Zimbabwean civil procedure regarding the citation of parties in court applications. It establishes that when a non-existent legal entity is cited as a party, the application is null and void ab initio and cannot be saved by amendment. The case also clarifies the status of property as res litigiosa during pending litigation and the limitations on parties dealing with such property unilaterally. It demonstrates the court's strict approach to procedural requirements and the identification of parties in legal proceedings.