THE TRUSTEES FOR THE TIME BEING OF OLIVER MANDISHONA CHIDAWU TRUST v BROADWAY INVESTMENTS PRIVATE LIMITED (SC 09 of 2026) [2025] ZWSC 130 (24 October 2025)

Judgement No. SC 09/26 Civil Appeal No. SC 618/24 4 REPORTABLE (09) THE TRUSTEES FOR THE TIME BEING OF OLIVER MANDISHONA CHIDAWU TRUST v BROADWAY INVESTMENTS PRIVATE LIMITED SUPREME COURT OF ZIMBABWE GUVAVA JA, CHIWESHE JA & MUSAKWA JA HARARE: 24 OCTOBER 2025 T. L. Mapuranga with Ms V. P. Mutseyami, for the appellant Ms A. S. Ndlovu, for the respondent MUSAKWA JA: INTRODUCTION This is an appeal against the judgment of the High Court (“the court a quo”) handed down on 1 October 2024, per Chilimbe J under case number HCHC 492/23, judgment number HH 427/24 which declared that the appellant was not a shareholder of the respondent. After hearing the parties, this Court allowed the appeal with costs, set aside the judgment of the court a quo and substituted it with an order striking the matter off the roll. The reasons for that order now follow. BACKGROUND FACTS The dispute between the parties arises from protracted contestation regarding the directorship and shareholding of Broadway Investments (Pvt) Ltd (“the respondent”). The appellant, the Trustees for the time being of the Oliver Mandishona Chidawu Trust, has long asserted that it is the rightful shareholder of the respondent, tracing its claim to share transfers allegedly executed by the late Mr Oliver Mandishona Chidawu and his widow, Mrs Spiwe Chidawu. The respondent, on the other hand, approached the High Court seeking a declaratur that the appellant was not its shareholder. The application was authorised on the strength of a resolution signed by Ms Ropafadzo Chidawu and Mr Thamusanqa Nhamoinesu, who purported to act as the respondent’s directors. The court a quo granted the declaratur, holding that the share register reflected “Chidawu Family Trust” as the shareholder, and not the appellant. It further held that if the appellant alleged a misnomer, it ought to have sought rectification of the register through a counter-application, something it failed to do. PROCEEDINGS BEFORE THE COURT A QUO Before the High Court, the respondent submitted that the proceedings were validly authorised because the CR6 of 13 October 2022 had not been set aside by any court order that existed at the time the application was heard. It argued that the earlier order only invalidated the CR6s of May and August 2022. The respondent further submitted that it was entitled to seek clarification of its shareholding structure, especially given regulatory requirements in another company in which it held shares and that the appellant’s continued assertion of shareholder rights had caused corporate confusion. The respondent argued that the share certificates clearly reflected the Chidawu Family Trust as the shareholder and that if the appellant was asserting a misnomer, it needed to follow proper procedures to rectify the share register. Mere assertions in opposition, it argued, were insufficient for the court to accept a de facto shareholder in the face of a de jure register. The appellant’s submissions before the court a quo centred primarily on the lack of the respondent’s authority to institute the proceedings. It argued that the individuals who purported to authorise the litigation were not validly appointed directors and that their actions were null and void. It relied on earlier High Court judgments as well as the common-law principle that actions taken without proper corporate authority are void ab initio. On the merits, the appellant submitted that the share certificates and transfer forms evidenced the intention of the original shareholders to vest shares in the appellant trust, and that the reference to the Chidawu Family Trust was merely a clerical mistake. It argued that the alleged discrepancy could not be used to defeat the substantive rights created by the share transfers. The court a quo accepted the respondent’s argument that it was entitled to run its corporate affairs in a manner that corrected perceived anomalies in its records. It found that the Chidawu Family Trust, not the appellant trust, appeared on the register and that the appellant had not taken steps to rectify this. The court a quo thus granted the declaratur in favour of the respondent after holding that the appellant was not a shareholder. However, it refused to invalidate all past acts of the appellant as a shareholder, deeming such relief overbroad and inadequately supported by the record. The court a quo found that the respondent's legal proceedings were properly authorised, as the directors who instituted the case were validly appointed according to a CR6 form that was operative at the time. On the substantive issue, it held that the appellant was not a shareholder because the company's share register and certificates documented a different legal entity, the "Chidawu Family Trust," and the appellant had failed to take any formal steps to rectify this alleged misnomer. Finally, the court a quo granted the declaratory order sought, finding it was not the court's role to identify the correct shareholder as this was not pleaded, thereby limiting its ruling to the specific relief requested. Aggrieved, the appellant noted the present appeal on the following grounds: “GROUNDS OF APPEAL The court a quo erred at law by: “1.Finding that the respondent was properly litigating before it when it had been established that the only indisputable director of the respondent, Ms Spiwe Chidawu, had not been given notice, and was unaware of any, meeting being called to authorise the institution of the proceedings a quo. 2. The finding that the respondent was properly litigating before it when it had been established that Ropafadzo Sibusiso Chidawu and Thamusanqa Gideon Nhamoinesu who had purported to authorise the institution of the proceedings a quo were not directors of the respondent such that the company’s board of directors had not authorised any such litigation. Finding that the appellant was not a shareholder of the respondent on the basis of a mere spelling error on its share certificates despite the evidence of the only persons with full knowledge of the facts proving that the appellant was the entity referred to on the share certificates. Arriving at a conclusion which would result in the respondent being a company without a shareholder as it found that the appellant was not the shareholder on the company’s papers in circumstances where the entity appearing on the company’s papers– Chidawu Family Trust– did not exist.” RELIEF SOUGHT The appellant prays for the following relief: The appeal be allowed with costs. The judgment of the court a quo be set aside and substituted with the following: ‘The matter is struck off the roll with costs’ Alternative to para 2 above The judgment of the court a quo be set aside and substituted with the following: “The application is dismissed, with costs.” SUBMISSIONS BEFORE THIS COURT When the matter came before this Court, Mr Mapuranga, for the appellant, abandoned the first ground of appeal and advanced submissions on grounds two, three and four. He argued that the proceedings in the court a quo under case number HCHC 492/23 were not properly authorised because the individuals who purported to authorise the litigation had never been directors. He referred the Court to the two key judgments, particularly HCH 307/22 and HH 668/23 which were later confirmed by this Court under case number SC 16/24, which conclusively declared that the two individuals (Ropafadzo Sibusiso Chidawu and Thamusanqa Nhamoinesu) were not directors. He contended that any resolution signed by them was a nullity incapable of founding valid proceedings. He further argued that the court a quo’s acceptance of their authority was based on incomplete information and that, in law, the later judgments merely disclosed what had always been the true legal position. He therefore submitted that the application before the court a quo was a nullity from inception. Mr Mapuranga maintained that the later judgment did not change the legal position; rather, it merely declared what had always been the case. The individuals who authorised the litigation were never directors at any time and could not have issued valid authority. In response, Ms Ndlovu, for the respondent, submitted that the court a quo acted reasonably on the basis of the material before it at the time. She conceded that the later judgments (HCH 307/22 and HH 668/23) had declared the purported directors to have been invalidly appointed, but maintained that this development occurred after the matter had already been heard in the court a quo. She argued that the court a quo could not be faulted for acting on an unchallenged CR6. ISSUE FOR DETERMINATION Whether or not the proceedings before the court a quo were validly instituted by persons with proper authority. THE LAW In our law, it is clear what a nullity is. In the case of Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 at 1172 lord Denning held that:- “If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court, for it to be set aside. It is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” See also Jimbata (Pvt) Ltd v Zimbabwe Mining Development and Anor SC 2/23. APPLICATION OF THE LAW TO THE FACTS The law is clear and uncompromising that acts done without lawful authority are void ab initio and are, in law, nullities. In Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514 (S) at 516 B-E, Cheda ja said: “It is clear from the above that a company, being a separate legal persona from its directors, cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle, which the courts cannot ignore. It does not depend on the pleadings by either party. The fact that the first appellant is the managing director of the fourth appellant does not clothe him with the authority to sue on behalf of the company in the absence of any resolution authorising him to do so. In Burstein v Yale 1958 (1) SA 768(W), it was held that the general rule is that directors of a company can only act validly when assembled at a board meeting.” As can be noted from the case of Madzivire & Ors v Zvarivadza & Ors supra, where a company institutes proceedings through persons who are not lawfully empowered to act on its behalf, any instrument they purport to make, and any proceedings founded upon it, lack legal existence. This is not a technicality; it is a fundamental rule of corporate and procedural law that protects the integrity of corporate decision-making and the courts themselves. Applying that principle to the facts, the judgment in HH 668/23, and the confirmation in SC 16/24, establishes that the two individuals who authorised the application in the court a quo under case number HCHC 492/23 were not, and never had been, directors of the company. The purported board resolution relied upon to confer authority therefore possessed no legal effect from the moment of its creation. It was not merely voidable or irregular but it was incurably bad and therefore a nullity because it was issued by persons who had no capacity to act for the company. Under these circumstances there was nothing in law for the court a quo to receive or act upon as a court cannot, by ignorance or oversight, supply the missing element of authority and thereby breathe life into an otherwise meaningless instrument. See Macfoy v United Africa Co. Ltd (supra). The consequences of that foundational defect are immediate and categorical. Once it is shown that the application was instituted without lawful authority, the entire proceedings collapse. The rule that “you cannot put something on nothing and expect it to stay there” is particularly apposite, every step taken in reliance on the invalid resolution is itself tainted and incapable of producing valid judicial outcomes. The court a quo’s failure to decline jurisdiction or to strike the matter off the roll upon the clear challenge to authority therefore constituted a misdirection of law. By entertaining and adjudicating the application, the court a quo effectively permitted the fruits of an unlawful act to be litigated, an approach the law does not allow. Having regard to these principles and the uncontroverted factual matrix, the correct and only competent judicial response was to treat the proceedings as a nullity and to strike the matter from the court’s roll. The appeal was allowed for that reason alone. It was unnecessary and improper for this Court to consider any other issues once it became clear that the application had been filed without lawful authority. That defect alone disposed of the matter. Striking the matter off the roll with costs simply returned the parties to the position they would have been in had the invalid application never been made and upheld the basic rule that no legal process can stand where there is no proper authority to institute it. DISPOSITION In the result we ordered as follows: The appeal be and is hereby allowed with costs. The judgment of the court a quo be and is hereby set aside and substituted with the following: “The matter be and is hereby struck off the roll with costs.” GUVAVA JA : I agree CHIWESHE JA : I agree Gwaunza & Mapota, appellant’s legal practitioners. Lunga Mazikana Attorneys, respondent’s legal practitioners. Judgement No. SC 09/26 Civil Appeal No. SC 618/24 4 Judgement No. SC 09/26 Civil Appeal No. SC 618/24 4 REPORTABLE (09) THE TRUSTEES FOR THE TIME BEING OF OLIVER MANDISHONA CHIDAWU TRUST v BROADWAY INVESTMENTS PRIVATE LIMITED SUPREME COURT OF ZIMBABWE GUVAVA JA, CHIWESHE JA & MUSAKWA JA HARARE: 24 OCTOBER 2025 T. L. Mapuranga with Ms V. P. Mutseyami, for the appellant Ms A. S. Ndlovu, for the respondent MUSAKWA JA: INTRODUCTION This is an appeal against the judgment of the High Court (“the court a quo”) handed down on 1 October 2024, per Chilimbe J under case number HCHC 492/23, judgment number HH 427/24 which declared that the appellant was not a shareholder of the respondent. After hearing the parties, this Court allowed the appeal with costs, set aside the judgment of the court a quo and substituted it with an order striking the matter off the roll. The reasons for that order now follow. BACKGROUND FACTS The dispute between the parties arises from protracted contestation regarding the directorship and shareholding of Broadway Investments (Pvt) Ltd (“the respondent”). The appellant, the Trustees for the time being of the Oliver Mandishona Chidawu Trust, has long asserted that it is the rightful shareholder of the respondent, tracing its claim to share transfers allegedly executed by the late Mr Oliver Mandishona Chidawu and his widow, Mrs Spiwe Chidawu. The respondent, on the other hand, approached the High Court seeking a declaratur that the appellant was not its shareholder. The application was authorised on the strength of a resolution signed by Ms Ropafadzo Chidawu and Mr Thamusanqa Nhamoinesu, who purported to act as the respondent’s directors. The court a quo granted the declaratur, holding that the share register reflected “Chidawu Family Trust” as the shareholder, and not the appellant. It further held that if the appellant alleged a misnomer, it ought to have sought rectification of the register through a counter-application, something it failed to do. PROCEEDINGS BEFORE THE COURT A QUO Before the High Court, the respondent submitted that the proceedings were validly authorised because the CR6 of 13 October 2022 had not been set aside by any court order that existed at the time the application was heard. It argued that the earlier order only invalidated the CR6s of May and August 2022. The respondent further submitted that it was entitled to seek clarification of its shareholding structure, especially given regulatory requirements in another company in which it held shares and that the appellant’s continued assertion of shareholder rights had caused corporate confusion. The respondent argued that the share certificates clearly reflected the Chidawu Family Trust as the shareholder and that if the appellant was asserting a misnomer, it needed to follow proper procedures to rectify the share register. Mere assertions in opposition, it argued, were insufficient for the court to accept a de facto shareholder in the face of a de jure register. The appellant’s submissions before the court a quo centred primarily on the lack of the respondent’s authority to institute the proceedings. It argued that the individuals who purported to authorise the litigation were not validly appointed directors and that their actions were null and void. It relied on earlier High Court judgments as well as the common-law principle that actions taken without proper corporate authority are void ab initio. On the merits, the appellant submitted that the share certificates and transfer forms evidenced the intention of the original shareholders to vest shares in the appellant trust, and that the reference to the Chidawu Family Trust was merely a clerical mistake. It argued that the alleged discrepancy could not be used to defeat the substantive rights created by the share transfers. The court a quo accepted the respondent’s argument that it was entitled to run its corporate affairs in a manner that corrected perceived anomalies in its records. It found that the Chidawu Family Trust, not the appellant trust, appeared on the register and that the appellant had not taken steps to rectify this. The court a quo thus granted the declaratur in favour of the respondent after holding that the appellant was not a shareholder. However, it refused to invalidate all past acts of the appellant as a shareholder, deeming such relief overbroad and inadequately supported by the record. The court a quo found that the respondent's legal proceedings were properly authorised, as the directors who instituted the case were validly appointed according to a CR6 form that was operative at the time. On the substantive issue, it held that the appellant was not a shareholder because the company's share register and certificates documented a different legal entity, the "Chidawu Family Trust," and the appellant had failed to take any formal steps to rectify this alleged misnomer. Finally, the court a quo granted the declaratory order sought, finding it was not the court's role to identify the correct shareholder as this was not pleaded, thereby limiting its ruling to the specific relief requested. Aggrieved, the appellant noted the present appeal on the following grounds: “GROUNDS OF APPEAL The court a quo erred at law by: “1.Finding that the respondent was properly litigating before it when it had been established that the only indisputable director of the respondent, Ms Spiwe Chidawu, had not been given notice, and was unaware of any, meeting being called to authorise the institution of the proceedings a quo. 2. The finding that the respondent was properly litigating before it when it had been established that Ropafadzo Sibusiso Chidawu and Thamusanqa Gideon Nhamoinesu who had purported to authorise the institution of the proceedings a quo were not directors of the respondent such that the company’s board of directors had not authorised any such litigation. Finding that the appellant was not a shareholder of the respondent on the basis of a mere spelling error on its share certificates despite the evidence of the only persons with full knowledge of the facts proving that the appellant was the entity referred to on the share certificates. Arriving at a conclusion which would result in the respondent being a company without a shareholder as it found that the appellant was not the shareholder on the company’s papers in circumstances where the entity appearing on the company’s papers– Chidawu Family Trust– did not exist.” RELIEF SOUGHT The appellant prays for the following relief: The appeal be allowed with costs. The judgment of the court a quo be set aside and substituted with the following: ‘The matter is struck off the roll with costs’ Alternative to para 2 above The judgment of the court a quo be set aside and substituted with the following: “The application is dismissed, with costs.” SUBMISSIONS BEFORE THIS COURT When the matter came before this Court, Mr Mapuranga, for the appellant, abandoned the first ground of appeal and advanced submissions on grounds two, three and four. He argued that the proceedings in the court a quo under case number HCHC 492/23 were not properly authorised because the individuals who purported to authorise the litigation had never been directors. He referred the Court to the two key judgments, particularly HCH 307/22 and HH 668/23 which were later confirmed by this Court under case number SC 16/24, which conclusively declared that the two individuals (Ropafadzo Sibusiso Chidawu and Thamusanqa Nhamoinesu) were not directors. He contended that any resolution signed by them was a nullity incapable of founding valid proceedings. He further argued that the court a quo’s acceptance of their authority was based on incomplete information and that, in law, the later judgments merely disclosed what had always been the true legal position. He therefore submitted that the application before the court a quo was a nullity from inception. Mr Mapuranga maintained that the later judgment did not change the legal position; rather, it merely declared what had always been the case. The individuals who authorised the litigation were never directors at any time and could not have issued valid authority. In response, Ms Ndlovu, for the respondent, submitted that the court a quo acted reasonably on the basis of the material before it at the time. She conceded that the later judgments (HCH 307/22 and HH 668/23) had declared the purported directors to have been invalidly appointed, but maintained that this development occurred after the matter had already been heard in the court a quo. She argued that the court a quo could not be faulted for acting on an unchallenged CR6. ISSUE FOR DETERMINATION Whether or not the proceedings before the court a quo were validly instituted by persons with proper authority. THE LAW In our law, it is clear what a nullity is. In the case of Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 at 1172 lord Denning held that:- “If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court, for it to be set aside. It is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” See also Jimbata (Pvt) Ltd v Zimbabwe Mining Development and Anor SC 2/23. APPLICATION OF THE LAW TO THE FACTS The law is clear and uncompromising that acts done without lawful authority are void ab initio and are, in law, nullities. In Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514 (S) at 516 B-E, Cheda ja said: “It is clear from the above that a company, being a separate legal persona from its directors, cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle, which the courts cannot ignore. It does not depend on the pleadings by either party. The fact that the first appellant is the managing director of the fourth appellant does not clothe him with the authority to sue on behalf of the company in the absence of any resolution authorising him to do so. In Burstein v Yale 1958 (1) SA 768(W), it was held that the general rule is that directors of a company can only act validly when assembled at a board meeting.” As can be noted from the case of Madzivire & Ors v Zvarivadza & Ors supra, where a company institutes proceedings through persons who are not lawfully empowered to act on its behalf, any instrument they purport to make, and any proceedings founded upon it, lack legal existence. This is not a technicality; it is a fundamental rule of corporate and procedural law that protects the integrity of corporate decision-making and the courts themselves. Applying that principle to the facts, the judgment in HH 668/23, and the confirmation in SC 16/24, establishes that the two individuals who authorised the application in the court a quo under case number HCHC 492/23 were not, and never had been, directors of the company. The purported board resolution relied upon to confer authority therefore possessed no legal effect from the moment of its creation. It was not merely voidable or irregular but it was incurably bad and therefore a nullity because it was issued by persons who had no capacity to act for the company. Under these circumstances there was nothing in law for the court a quo to receive or act upon as a court cannot, by ignorance or oversight, supply the missing element of authority and thereby breathe life into an otherwise meaningless instrument. See Macfoy v United Africa Co. Ltd (supra). The consequences of that foundational defect are immediate and categorical. Once it is shown that the application was instituted without lawful authority, the entire proceedings collapse. The rule that “you cannot put something on nothing and expect it to stay there” is particularly apposite, every step taken in reliance on the invalid resolution is itself tainted and incapable of producing valid judicial outcomes. The court a quo’s failure to decline jurisdiction or to strike the matter off the roll upon the clear challenge to authority therefore constituted a misdirection of law. By entertaining and adjudicating the application, the court a quo effectively permitted the fruits of an unlawful act to be litigated, an approach the law does not allow. Having regard to these principles and the uncontroverted factual matrix, the correct and only competent judicial response was to treat the proceedings as a nullity and to strike the matter from the court’s roll. The appeal was allowed for that reason alone. It was unnecessary and improper for this Court to consider any other issues once it became clear that the application had been filed without lawful authority. That defect alone disposed of the matter. Striking the matter off the roll with costs simply returned the parties to the position they would have been in had the invalid application never been made and upheld the basic rule that no legal process can stand where there is no proper authority to institute it. DISPOSITION In the result we ordered as follows: The appeal be and is hereby allowed with costs. The judgment of the court a quo be and is hereby set aside and substituted with the following: “The matter be and is hereby struck off the roll with costs.” GUVAVA JA : I agree CHIWESHE JA : I agree Gwaunza & Mapota, appellant’s legal practitioners. Lunga Mazikana Attorneys, respondent’s legal practitioners.