Motsi v Garizo & Others (22 of 2026) [2026] ZWHHC 13 (9 January 2026)

3 HH 22/26 R-HCHC 88/23 MUYENGWA E. MOTSI Versus RYAN ALEXANDER GARIZIO And M. GARIZIO PROPERTIES (PVT) LTD And ZIMBABWE SPRING STEEL (PVT) LTD And THE SHERIFF OF ZIMBABWE HIGH COURT OF ZIMBABWE V. NDLOVU J HARARE; 10 SEPTEMBER & 25 September 2025 & 09 JANUARY 2026 Application for Absolution from the Instance. T. Maanda, for the plaintiff Adv. T. Mpofu, for the 1st – 4th defendants V. NDLOVU J: This is an application for absolution from the instance at the close of the plaintiff’s case. The plaintiff issued a summons for payment of an outstanding debt in favour of EBC Mauritius Limited, which was ceded to M.E Motsi and Legal Practitioners & Associates (a law firm operated by him as a sole partner) in Mauritius on 2 June 2020 under an Agreement of Cession and Assignment. BACKGROUND The 1st defendant is the principal debtor to EBC Mauritius Limited, a company duly registered in Mauritius. The amount of the claim is US$830,776.61, which was lent and advanced to the 1st defendant at his special instance and request. The 2nd defendant allegedly entered into a suretyship agreement with the 1st defendant, thereby binding itself as a co-principal debtor and pledging immovable property better known as Stand No. 18115, Harare Township, known as 41 Plymouth Road, Southerton, Harare, Zimbabwe, as collateral. The 2nd defendant denies this allegation. The 3rd defendant denies any association with this claim. The 1st defendant acknowledges his indebtedness to the Cedent. THE DEFENCE. The defendants pleaded right from the onset that the Plaintiff’s claim had been extinguished by prescription. The present proceedings were instituted on 12 April 2023. The debt in issue was due on or before 15 January 2020; the proceedings were instituted more than three years after that date. They also pleaded and argued that the Plaintiff lacks locus standi to bring this action. PLAINTIFF’S CASE At the trial, the plaintiff was the only key witness. He testified to the nature of the debt and the cession of creditor rights to M. E. Motsi Legal Practitioners & Associates from EBC Bank Mauritius. He testified that the payments received from the defendants cleared the interest rather than reducing the principal debt. He asserted that the 1st Defendant had signed surety documents involving the property owned by a third party, R. Garizio, along with the 2nd Defendant's provision of additional security. ABSOLUTION FROM THE INSTANCE APPLICATION. After the plaintiff closed his case, the defendants moved to dismiss the action on the grounds of prescription, lack of locus standi, and other grounds. The plaintiff contended that the application for absolution should be dismissed. Competition and Tariff Commission v Iwayafrica Zimbabwe (Pvt) Ltd SC 58/19. The plaintiff argued that the defendants had previously abandoned key defences regarding prescription and exchange control and should be estopped from reinstating those arguments. Ad. Prescription. Defendants contended that the claim was prescribed because no summons was issued and served on or before 15 January 2023. This is a common cause fact. It is also a common cause fact that the plaintiff issued a summons on 06 February 2023 and served it at the premises known as Whatman & Stewart on 09 February 2023. That physical address is not the business address or domicilium citandi of any of the defendants. The plaintiff argued that the service done at Whatman & Stewart interrupted the running of the prescription. Ad. Locus Standi. The plaintiff initially testified that the claim was made in a representative capacity. However, under cross-examination, he conceded that he made the claim in his personal capacity. The plaintiff argued that partnerships do not possess separate legal entity status, thus allowing individual partners to sue or be sued on behalf of the firm. He admitted that M.E. Motsi & Associates Legal Practitioners is currently under curatorship due to his deregistration as a Legal Practitioner, which precludes him from being a partner, although he claimed he was a partner at the time the proceedings began. THE LAW In determining whether to grant the application for absolution from the instance, it is imperative to assess the legal requirements for such an order. The test for absolution at the conclusion of the plaintiff’s case was articulated in Gordon Lyod Page & Associates v Rivera & Another 2001 (1) SA 88 (SCA) at page 92, the Court said that, “The test for absolution to be applied by a trial court at the end of the plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G-H in these terms: ‘…when absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. Gascoyne and Hunter 1971 (TPD) 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (40 SA 307 (T)). This implies that a plaintiff has to make out a prima facie case –in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v van der Schyff 1972 (10 SA 26 (A) at 37G-38A; Schmidt Bewysreg 4 ed at 91-2).” RESOLUTION The summons issued and served at Whatman & Stewart in February 2023 was long after the matter had prescribed on 15 January 2023. It does not cure the fact that the claim had prescribed. When Mr Motsi was deregistered as a legal practitioner, he lost his right to practise law. He cannot operate a law firm when he is deregistered. It follows, therefore, that he cannot do that which a partner at M.E Motsi and Associates Legal Practitioners would ordinarily be allowed by law to do or represent. In his status, he cannot purport to exercise the rights of a partner at M.E Motsi and Associates Legal Practitioners. In light of the findings I have made regarding prescription and locus standi, it is unnecessary to address the other issues raised by the defendants, as the rulings I have made on those two points are sufficient to dispose of the case. Gwaradzimba N.O. v CJ Petron & Co. (Pty) Ltd SC 12/2026 at page 6, it was stated that, “In general, I agree with the respondent’s submission that, in a case where several issues are raised, it is not always incumbent upon the court to deal with each issue raised in argument by the parties. It is also correct that a court may well take the view that, in view of its finding on a particular issue, it may not be necessary to deal with the remaining issues raised. However, this is subject to the rider that the issue that is determined in these circumstances must be one capable of finally disposing of the matter.” DISPOSITION No court will grant a claim in favour of a Plaintiff who has no locus standi to bring the claim to court. Neither is there a court that will grant a claim that has prescribed. I accordingly uphold the points raised by the defendants and order as follows. ORDER 1. The application for absolution from the instance at the close of the Plaintiff’s case is hereby granted. 2. The Plaintiff’s claim is dismissed with costs. V Ndlovu J: Maunga Maanda and Associates, plaintiff’s legal practitioners Gill, Godlonton & Gerrans, defendants’ legal practitioners 3 HH 22/26 R-HCHC 88/23 3 HH 22/26 R-HCHC 88/23 MUYENGWA E. MOTSI Versus RYAN ALEXANDER GARIZIO And M. GARIZIO PROPERTIES (PVT) LTD And ZIMBABWE SPRING STEEL (PVT) LTD And THE SHERIFF OF ZIMBABWE HIGH COURT OF ZIMBABWE V. NDLOVU J HARARE; 10 SEPTEMBER & 25 September 2025 & 09 JANUARY 2026 Application for Absolution from the Instance. T. Maanda, for the plaintiff Adv. T. Mpofu, for the 1st – 4th defendants V. NDLOVU J: This is an application for absolution from the instance at the close of the plaintiff’s case. The plaintiff issued a summons for payment of an outstanding debt in favour of EBC Mauritius Limited, which was ceded to M.E Motsi and Legal Practitioners & Associates (a law firm operated by him as a sole partner) in Mauritius on 2 June 2020 under an Agreement of Cession and Assignment. BACKGROUND The 1st defendant is the principal debtor to EBC Mauritius Limited, a company duly registered in Mauritius. The amount of the claim is US$830,776.61, which was lent and advanced to the 1st defendant at his special instance and request. The 2nd defendant allegedly entered into a suretyship agreement with the 1st defendant, thereby binding itself as a co-principal debtor and pledging immovable property better known as Stand No. 18115, Harare Township, known as 41 Plymouth Road, Southerton, Harare, Zimbabwe, as collateral. The 2nd defendant denies this allegation. The 3rd defendant denies any association with this claim. The 1st defendant acknowledges his indebtedness to the Cedent. THE DEFENCE. The defendants pleaded right from the onset that the Plaintiff’s claim had been extinguished by prescription. The present proceedings were instituted on 12 April 2023. The debt in issue was due on or before 15 January 2020; the proceedings were instituted more than three years after that date. They also pleaded and argued that the Plaintiff lacks locus standi to bring this action. PLAINTIFF’S CASE At the trial, the plaintiff was the only key witness. He testified to the nature of the debt and the cession of creditor rights to M. E. Motsi Legal Practitioners & Associates from EBC Bank Mauritius. He testified that the payments received from the defendants cleared the interest rather than reducing the principal debt. He asserted that the 1st Defendant had signed surety documents involving the property owned by a third party, R. Garizio, along with the 2nd Defendant's provision of additional security. ABSOLUTION FROM THE INSTANCE APPLICATION. After the plaintiff closed his case, the defendants moved to dismiss the action on the grounds of prescription, lack of locus standi, and other grounds. The plaintiff contended that the application for absolution should be dismissed. Competition and Tariff Commission v Iwayafrica Zimbabwe (Pvt) Ltd SC 58/19. The plaintiff argued that the defendants had previously abandoned key defences regarding prescription and exchange control and should be estopped from reinstating those arguments. Ad. Prescription. Defendants contended that the claim was prescribed because no summons was issued and served on or before 15 January 2023. This is a common cause fact. It is also a common cause fact that the plaintiff issued a summons on 06 February 2023 and served it at the premises known as Whatman & Stewart on 09 February 2023. That physical address is not the business address or domicilium citandi of any of the defendants. The plaintiff argued that the service done at Whatman & Stewart interrupted the running of the prescription. Ad. Locus Standi. The plaintiff initially testified that the claim was made in a representative capacity. However, under cross-examination, he conceded that he made the claim in his personal capacity. The plaintiff argued that partnerships do not possess separate legal entity status, thus allowing individual partners to sue or be sued on behalf of the firm. He admitted that M.E. Motsi & Associates Legal Practitioners is currently under curatorship due to his deregistration as a Legal Practitioner, which precludes him from being a partner, although he claimed he was a partner at the time the proceedings began. THE LAW In determining whether to grant the application for absolution from the instance, it is imperative to assess the legal requirements for such an order. The test for absolution at the conclusion of the plaintiff’s case was articulated in Gordon Lyod Page & Associates v Rivera & Another 2001 (1) SA 88 (SCA) at page 92, the Court said that, “The test for absolution to be applied by a trial court at the end of the plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G-H in these terms: ‘…when absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. Gascoyne and Hunter 1971 (TPD) 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (40 SA 307 (T)). This implies that a plaintiff has to make out a prima facie case –in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v van der Schyff 1972 (10 SA 26 (A) at 37G-38A; Schmidt Bewysreg 4 ed at 91-2).” RESOLUTION The summons issued and served at Whatman & Stewart in February 2023 was long after the matter had prescribed on 15 January 2023. It does not cure the fact that the claim had prescribed. When Mr Motsi was deregistered as a legal practitioner, he lost his right to practise law. He cannot operate a law firm when he is deregistered. It follows, therefore, that he cannot do that which a partner at M.E Motsi and Associates Legal Practitioners would ordinarily be allowed by law to do or represent. In his status, he cannot purport to exercise the rights of a partner at M.E Motsi and Associates Legal Practitioners. In light of the findings I have made regarding prescription and locus standi, it is unnecessary to address the other issues raised by the defendants, as the rulings I have made on those two points are sufficient to dispose of the case. Gwaradzimba N.O. v CJ Petron & Co. (Pty) Ltd SC 12/2026 at page 6, it was stated that, “In general, I agree with the respondent’s submission that, in a case where several issues are raised, it is not always incumbent upon the court to deal with each issue raised in argument by the parties. It is also correct that a court may well take the view that, in view of its finding on a particular issue, it may not be necessary to deal with the remaining issues raised. However, this is subject to the rider that the issue that is determined in these circumstances must be one capable of finally disposing of the matter.” DISPOSITION No court will grant a claim in favour of a Plaintiff who has no locus standi to bring the claim to court. Neither is there a court that will grant a claim that has prescribed. I accordingly uphold the points raised by the defendants and order as follows. ORDER 1. The application for absolution from the instance at the close of the Plaintiff’s case is hereby granted. 2. The Plaintiff’s claim is dismissed with costs. V Ndlovu J: Maunga Maanda and Associates, plaintiff’s legal practitioners Gill, Godlonton & Gerrans, defendants’ legal practitioners