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Judgment

4 HH 416 - 25 HC 1347/23 GEORGE GRAHAM WARREN KILEFF and PETER SAMUEL WARREN KILEFF and GRAHAM KILEFF 1ST FAMILY TRUST and GRAHAM KILEFF 2ND FAMILY TRUST versus TENDAI KANDAWASVIKWA and ONIAS GUMBO and TINASHE KANDAWASVIKWA and TENDAI KANDAWASIKWA and THE REGISTRAR OF COMPANIES and MINISTER OF LANDS, AGRICULTURE, FISHERIES, WATER, CLIMATE AND RURAL RESETTLEMENT HIGH COURT OF ZIMBABWE KATIYO J HARARE; 15 April 2025 & 11 July 2025 Opposed Matter T. Manjengwa, for the applicants G. R. J Sithole, for the 1st – 4th respondents KATIYO J: Background This is an opposed application in which the four applicants seek to set aside a company director change form (Form CR14) filed with the fifth respondent (Registrar of Companies) in respect of Retreat Farm (Private) Limited (“the company”). The first and second applicants (Messrs. G.G.W. Kileff and P.S.W. Kileff) are the founding directors of the company. The third and fourth applicants are family trusts established to hold the shares in the company. The impugned CR14, lodged on 18 December 2015, removed the first and second applicants as directors and reflected the first to fourth respondents as the new directors of the company. The applicants allege that this CR14 was fraudulently filed without their knowledge or consent, in an effort to wrest control of the company (and, by extension, its assets) and enable the new directors to claim compensation for farms previously owned by the company that were acquired by the State under the Land Acquisition Act. They maintain that they never resigned as directors and that no valid appointment of the first to fourth respondents was ever made. The first to fourth respondents oppose the application and stand by the validity of the CR14. They contend that the first and second applicants had in fact resigned from the company’s board years earlier, pursuant to a letter dated 27 October 2009, and that the respondents’ appointments as directors were regular and consistent with the company’s shareholding and the applicants’ own actions. The respondents argue that the applicants’ belated challenge is not bona fide and is motivated by a desire to reclaim assets or compensation that had passed to the first respondent by arrangement. The fifth respondent (the Registrar) has been cited in his official capacity, and no specific relief beyond the rectification of the company register is sought against him. At the outset, the respondents raised several points in limine. These are: (1) that the application is prescribed in terms of the Prescription Act [Chapter 8:11]; (2) that Simon Burr, who deposed to an affidavit on behalf of the third and fourth applicants (the family trusts), lacked locus standi or authority to represent those applicants; (3) that the affidavit of Hazel Ellen Kileff (submitted for the second applicant) is fatally defective because she had no personal knowledge of the events preceding her appointment in 2017; and (4) that the application as a whole is not properly before the court due to the absence of a proper founding affidavit. The respondents further submit that the matter is replete with material disputes of fact which cannot be resolved on the papers, and that accordingly the application should be dismissed with costs. I will address each of the points in limine. Although any one of these points could be dispositive, I find it prudent to consider them in turn for completeness. I will then examine the material disputes of fact and the merits of the case, notwithstanding the conclusion I reach on the preliminary issues. Preliminary Points in Limine 1. Prescription The respondents argue that the applicants’ claim to set aside or rectify the company’s register (by expunging the 2015 CR14 and reinstating the applicants as directors) is a “debt” or obligation within the meaning of the Prescription Act [Chapter 8:11], which became due more than three years before this application was instituted. They contend that by September 2016 at the very latest, the applicants were aware or ought to have been aware that the first to fourth respondents were holding themselves out as the directors and shareholders of the company, as evidenced by correspondence on record. In particular, respondents aver that a letter from the Registrar of Companies dated 13 October 2016 (responding to an inquiry by the applicants) put the applicants on notice of the changes to the directorship, and that the applicants had themselves previously written to the first respondent acknowledging their resignation from the company (annexure “A” to the notice of opposition, being the letter of 27 October 2009). Thus, by late 2016 the applicants knew that the CR14 had been filed (or at least that respondents were asserting control of the company), yet they did not take legal action until March 2023 – well beyond the three-year prescription period. The respondents also assert that the relief sought is essentially an attempt to recover shares or other assets that were given to the first respondent years ago, which is a claim susceptible to prescription. The applicants, on the other hand, deny that their claim is a “debt” for purposes of prescription. They maintain that rectification of a companies register is a procedural or declaratory remedy not caught by the Prescription Act. In any event, they claim that they only discovered the existence of the disputed CR14 in January 2023, after being assured by the Registrar in October 2016 that no post-incorporation documents were on file – implying that prescription did not begin to run until the discovery of the “fraudulent” filing. They submit that if the Prescription Act does apply, the prescriptive period was delayed until they gained actual knowledge of the fraud (relying on the proviso to section 16(3) of the Act, that a debt is not deemed due until the creditor is aware of the identity of the debtor and the facts giving rise to the debt). Having considered the parties’ arguments and the evidence, I uphold the point of prescription. In my view, the applicants’ cause of action – effectively seeking to vindicate their alleged rights as directors/shareholders and to set aside what they call a fraudulent CR14 – indeed constitutes a “debt” or a claim under the Prescription Act. It is a claim for relief founded on an alleged wrong (fraudulent removal from office and records) and is thus subject to the general three-year prescription period in terms of section 15(d) of the Act. The Supreme Court has emphasized that the definition of “debt” in our law is broad, encompassing an obligation to do or not do something, or to pay or deliver something (including the restoration of rights). I am satisfied that the applicants’ claim falls into that broad category. The critical question is when prescription began to run. On the evidence presented, the applicants either knew, or by exercise of reasonable diligence ought to have known, of the essential facts giving rise to their claim by about October 2016. The letter of 13 October 2016 from the Registrar (fifth respondent) is revealing. While the applicants say this letter “assured” them that no documents had been filed, the respondents maintain that this letter was in response to an inquiry from the applicants and that, coupled with the applicants’ own prior correspondence, it shows the applicants were at least aware of the possibility that a CR14 had been lodged or that the respondents were holding themselves out as directors. Furthermore, the first respondent has produced a copy of a letter dated 27 October 2009 (addressed to him by the first and second applicants) wherein the applicants purportedly resigned and ceded their interests. The authenticity and effect of that letter are disputed by the applicants, but its existence (and the applicants’ knowledge of it in 2009) is significant. By September 2016, according to the respondents, the applicants had been made aware that the company’s directorship had been “updated” to include the respondents. Notably, in their answering papers the applicants did not squarely refute the respondents’ timeline of events on this point – they did not deny that they had notice in 2016 of the respondents’ roles, nor did they challenge the assertion that the claim is an attempt to reverse a long-completed share transfer. The applicants’ failure to specifically dispute these averments leads to the conclusion that those facts are effectively admitted. Our courts have repeatedly held that what is not denied in affidavit is taken to be admitted, especially on material issues of fact (see Daniel Shumba & Anor v Zimbabwe Electoral Commission & Anor SC 11/08; Fawcett Security Operations (Pvt) Ltd v Director of Customs & Excise 1993 (2) ZLR 121 (S) at 127F). Accepting, therefore, that the applicants were aware (or must be treated as having been aware) of the respondents’ claim to the directorship by late 2016, it follows that prescription commenced running at that time. The applicants did not institute these proceedings until early 2023, well beyond the three-year window. No application for condonation or extension of prescription was made, and there is no legal basis to pause or interrupt prescription on the facts before me. The applicants’ argument that the claim is not a “debt” is without merit – a similar contention was rejected in Brooker v Mudhanda & Anor (and a related matter) SC 5-18, where the Supreme Court found that claims aimed at recovering shares or undoing company transactions are subject to prescription. Even if one were to entertain the proposition that prescription only starts when the fraud was discovered, I am not convinced that the applicants were reasonably diligent. By their own admission, they inquired with the Registrar in 2016 about the company’s records, which implies they suspected something was amiss. They then waited over six years, until 2023, to follow up or take action, despite knowing that the first to fourth respondents were openly dealing with the company’s affairs in the interim. In light of section 16(3) of the Prescription Act, a creditor is deemed to have knowledge of the facts if, by exercising reasonable care, he could have acquired such knowledge. Here, reasonable care demanded that the applicants investigate further when the 2016 inquiry yielded no documents – for instance, by directly approaching the respondents or checking the company’s annual returns. Had they done so, the existence of the CR14 (filed in December 2015) would likely have come to light. Accordingly, I find that the applicants’ claim has prescribed. This point in limine is upheld. On this ground alone, the application falls to be dismissed. However, for completeness, I will examine the other preliminary points as well. 2. Locus Standi and Authority of the Deponent (Simon Burr) for 3rd and 4th Applicants The third and fourth applicants are trusts (the Graham Kileff 1st Family Trust and 2nd Family Trust). The founding papers include an affidavit deposed to by one Mr. Simon Burr, who describes himself as a trustee of these two trusts. The respondents argue that Mr. Burr has not established his authority to act for and bind the trusts in this litigation. In particular, they point out that no trust resolution or proof of consent by the other trustees (if any) was produced, and that Mr. Burr’s locus standi in judicio is not demonstrated. They contend that without proof that the trusts have duly authorized these proceedings, the trusts’ purported application is a nullity and should be struck off. In response, the applicants insist that a “witness” need not show locus standi, and that Mr. Burr, as a trustee conversant with the facts, is competent to give evidence on behalf of the trusts. They cite the principle that a person who can swear to the facts may depose to an affidavit even if he is not himself the applicant. They further submit that Mr. Burr’s averments were confirmed by the first applicant’s own affidavit, and thus any technical objection causes no prejudice. The law is clear that an artificial person (such as a company or a trust, which acts through trustees) can only sue or be sued through properly authorized agents. In the case of a trust, the proper parties are the trustees, and they must act jointly or authorize one of them to act on behalf of all. Our Supreme Court in Madzivire & Others v Zvarivadza & Others 2006 (1) ZLR 514 (S) underscored that a corporate entity or similar legal persona “cannot be represented in a legal suit by a person who has not been authorized to do so. This is a well-established legal principle, which the courts cannot ignore”. The onus is on the party alleging representation to prove the authority. In the present case, Mr. Burr alleges he is a trustee and purportedly acts for both the third and fourth applicants, yet there is no documentary proof of his appointment as trustee nor any resolution empowering him to institute these proceedings on the trusts’ behalf. The respondents have put Mr. Burr’s authority in issue, thereby obliging the applicants to “allay those fears by adducing proof of his appointment,” as noted in Madzivire (supra). The applicants failed to provide such proof. A mere assertion in an affidavit of being a trustee or being authorized is not enough when challenged – evidence such as a deed of trust showing his trusteeship, or a resolution signed by the other trustees (if more than one) should have been produced. Its absence is fatal. The applicants’ argument that locus standi is irrelevant for a deponent misses the point. While it is true that a witness may depose to an affidavit about facts within his knowledge even if he is not a party, that principle does not override the requirement that the legal proceedings themselves must be properly authorized by the real parties in interest. Here, the parties are the trusts. A trustee certainly may testify to facts, but instituting litigation in the name of a trust’s trusteeship requires proper authority. In Madzivire (supra), the court held that it does not depend on the pleadings of either party; the court must be satisfied that the entity itself has sanctioned the action. In this case, there is no evidence that the trusts (through all their trustees) decided to launch this application. Consequently, the third and fourth applicants are not properly before the court. To that extent, there is no valid application by those applicants, and their portion of the application must be struck off or treated as a nullity. In the result, I uphold the point in limine concerning Mr. Burr’s lack of locus standi/authority. The absence of proof of authorization means the third and fourth applicants’ claims cannot be entertained. (I note in passing that the costs of this preliminary objection were asked to be borne by Mr. Burr personally on a higher scale, but I will address costs at the end; for now it suffices that the trusts’ application is improperly before the court.) 3. Competency of Hazel Ellen Kileff’s Affidavit (Second Applicant’s Affidavit) The second applicant, Mr. Peter Samuel Warren Kileff, did not depose to an affidavit himself. Instead, an affidavit was filed by Mrs. Hazel Ellen Kileff, who is said to be his wife and who holds a general power of attorney executed in 2017 to act on his behalf in business affairs. Hazel Kileff’s affidavit attempts to support the second applicant’s case, but the respondents object that she lacked personal knowledge of the relevant events and thus her testimony is inadmissible hearsay. It is common cause that Mrs. Kileff only became involved in the affairs of the company (and the second applicant’s matters) in 2017, long after the critical events in question (the alleged 2009 resignation letter, the 2015 CR14 filing, etc.). The respondents argue that she is not a competent witness to those historical facts; her affidavit is accordingly “incompetent” and cannot constitute a proper founding affidavit for the second applicant. They point out that she is effectively relaying what she was told or what she gleaned from records, without any first hand involvement. In the absence of a confirmatory affidavit from the second applicant himself (or some other person with direct knowledge of the 2009–2015 events), the second applicant’s case rests entirely on hearsay. The applicants, for their part, contend that Hazel was duly authorized via the power of attorney and that her knowledge, albeit acquired from records and her husband’s briefings, is sufficient. They argue that a power of attorney permits an agent to depose to an affidavit on behalf of a principal, and they rely on Rule 227(4) of the old High Court Rules 1971 which allowed an affidavit to be made by a person who can swear to the facts on behalf of the applicant. They further cite TFS Management Co (Pvt) Ltd v Graspeak Investments (Pvt) Ltd & Anor 2005 (1) ZLR 333 (H) to suggest that an agent or legal practitioner with the requisite knowledge can validly depose to an affidavit in support of a client’s case. The general rule in motion proceedings is that the founding affidavit must be made by a person who has personal knowledge of the facts and is able to swear positively to those facts. If the deponent’s knowledge is only second-hand or hearsay, then, to the extent that she testifies to contested matters, her evidence is inadmissible and of no probative value (unless it falls within a recognized exception to the hearsay rule, which is not alleged here). Our courts have articulated this principle unequivocally: “the evidence on the affidavit of the applicant should be based on personal knowledge and not on hearsay”. Indeed, in Chiadzwa v Paulerer SC 116/91, a relative who was not present during the crucial dealings but only knew of them through documents and hearsay was found not to have the requisite personal knowledge – the court noted that a useful test is whether the deponent would be a competent viva voce witness to those facts. In this case, Hazel Kileff plainly would not be a competent witness to the events surrounding the disputed directorship changes, since she had no involvement with the company until 2017. She admits that her knowledge of earlier events comes from what her husband told her and from what she later discovered in company files. That is textbook hearsay. No doubt, Mrs. Kileff is bona fide and trying to assist her husband, but good faith cannot cure a lack of competence to testify to material facts. A power of attorney might authorize her to act on Mr. Kileff’s behalf in a representative capacity, but it cannot imbue her with personal knowledge she does not possess. As the respondents correctly submitted, “an incompetent witness cannot depose to a valid affidavit in respect of matters she is ignorant of. Only a person who can swear positively to the facts can make a valid deposition.” This principle was affirmed in cases such as Willoughby’s Investments (Pvt) Ltd v Peruke Investments (Pvt) Ltd & Anor HH 178-14 and Bubye Minerals (Pvt) Ltd & Anor v Rani International Ltd 2007 (1) ZLR 22 (S) at 25B, which the respondents cited. I find that Hazel Kileff’s affidavit, insofar as it purports to establish facts prior to 2017, is indeed invalid and inadmissible. It cannot support the second applicant’s cause. The consequence is that the second applicant has no proper founding affidavit of his own before the court. Just as the third and fourth applicants lack a valid initiator due to the authority issue, the second applicant’s case lacks a competent factual foundation. In the result, there is effectively “no valid application before the court in so far as the 2nd applicant is concerned” to quote the respondents’ submission. This preliminary point is therefore also upheld. 4. Absence of a Proper Founding Affidavit / Defective Application Building on the above issues, the respondents contend more broadly that the application as a whole is fatally defective for want of a proper founding affidavit setting out a cognizable cause of action. They note that three separate affidavits were filed (one by the first applicant, one by Hazel Kileff for the second applicant, and one by Simon Burr for the trusts) and argue that none of these, individually or collectively, clearly articulates the legal basis for the relief sought. The respondents complain that the applicants’ papers consist of a narrative of historical grievances without clearly pleading how those facts give rise to the specific relief in the draft order. In particular, they point out that the founding affidavits do not explicitly link the alleged fraud to any established cause of action (such as a delictual claim or a statutory remedy) – they simply assume that if the CR14 was “fraudulent” it must be set aside, without addressing, for example, the effect of the delay or the company law provisions for challenging the composition of a board. The respondents argue that it is not the role of the court to infer or construct a cause of action that the applicants have not properly pleaded. They invoke the principle that a case stands or falls on its founding papers, and that courts will not grant relief that has not been clearly pleaded. They cite the Supreme Court’s pronouncement in Mashonaland Tobacco Co (Pvt) Ltd v Mahem Farms (Pvt) Ltd & Anor SC 152/20 at p.9: “As a general rule, judgment cannot be granted on a cause of action that is not pleaded. The pleadings must clearly set out the precise parameters of the issues contested between the parties.”. According to the respondents, the applicants’ failure to label any specific legal cause (e.g. “rectification of register” under some section of the Companies Act, or a declaratur of directorship, or an order of mandamus) and their omission to explain the legal effect of the facts, means the application is so vague and defective that it should be dismissed on that ground alone. The applicants refute this, arguing that their affidavits (especially that of the first applicant) do set out the facts constituting the fraud and the prejudice to them, which in their view adequately grounds a cause of action for a declaratory order and consequential relief. They contend that the High Court Rules do not require an affidavit to be formally titled “Founding Affidavit,” as long as affidavits containing the facts are attached. They note that their application clearly stated that it was supported by the accompanying affidavits, thus complying with Rule 59(1) of the High Court Rules 2021 (formerly Rule 227 under 1971 rules). The applicants dismiss the respondents’ point as overly technical and without merit. In evaluating this issue, I am mindful that form should not be exalted over substance. It is true that multiple affidavits were filed, but the first applicant’s affidavit can be regarded as the primary founding affidavit (with the others being supporting or supplementary). The lack of a single document labelled “Founding Affidavit” is not per se fatal if the necessary allegations can be discerned from the totality of the papers. However, upon review of the applicants’ affidavits, I share some of the respondents’ concerns. The narrative provided by the applicants outlines a history of events (including the farm acquisitions, the suspected forgery of documents, and internal family or trust arrangements) but does not clearly state the legal right that has been infringed and the legal remedy that is sought. It leaves the court to infer that because the applicants say they were removed by a fraudulent CR14, the court should simply nullify that filing. The danger in such an approach is highlighted by the Supreme Court’s admonition in Mashonaland Tobacco Co v Mahem Farms (supra): a court should not grant relief on an unpleaded cause of action. Here, the applicants have not even explicitly pleaded a recognized cause of action such as fraudulent misrepresentation, forgery, ultra vires act, or breach of the Companies Act. The draft order seeks to “set aside” the CR14 and “rectify” the Registrar’s records, but no specific statute (e.g. section 319 of the Companies Act [Chapter 24:03] or the common-law grounds for review) is cited. The factual foundation is also lacking in critical respects – for example, if fraud is alleged, one would expect details of who perpetrated the fraud, in what manner, and when it was discovered. Instead, the applicants simply assert the CR14 is “fraudulent” without more. This is problematic because it fails to clearly inform the respondents and the court of the case they must meet in law. The purpose of pleadings (or founding affidavits in motion proceedings) is to define the issues, and relief not founded on the papers should not be granted. Nonetheless, given that I have already found the application is fatally flawed due to prescription and lack of proper affidavits for certain applicants, I need not belabour this point. Suffice it to say that the diffuse and imprecise manner in which the applicants’ case was presented is indeed a further defect. The case stands or falls on its founding affidavit, as the oft-cited adage goes, and here the founding affidavit(s) leave much to be desired. In my view, this provides an additional ground to decline granting the relief. I uphold the objection that the application is defective for want of a clearly pleaded cause of action in the founding papers. Material Disputes of Fact Even if the application were not already doomed by the preliminary points, it faces another fundamental hurdle: the presence of material disputes of fact which cannot be resolved on the papers. It is trite that motion proceedings are appropriate only where the facts are not in genuine dispute, or where any disputes are not material to the outcome. Where a real, substantial conflict of evidence on a material issue is apparent, the court has a few options: it may take a robust view and decide on affidavits if it is able to do so, or it may refer the matter to trial or to oral evidence, or it may dismiss the application outright if the applicant should have foreseen the dispute (Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (HC) at 235A). The classic rule (often called the Plascon-Evans rule after the South African case) is that final relief on notice of motion can only be granted if the facts stated by the respondents, together with the admitted facts in the applicants’ affidavits, justify such relief – unless the respondent’s version is so far-fetched or implausible that the court is justified in rejecting it on the papers. In our jurisdiction, this principle has been affirmed in cases like Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S) and Masukusa v National Foods (supra). McNally J’s admonition in Masukusa bears repeating: where the dispute of facts is glaringly obvious from the start, it is ill-advised to proceed by way of application – such a matter “cannot be resolved on papers”. In the present case, the core factual issue is whether the first and second applicants resigned from their positions as directors (and effectively handed over control of the company to the first respondent and others) or whether, as the applicants maintain, they never resigned and the respondents have simply fabricated documents to pretend otherwise. This is a stark dispute of fact. On one hand, the applicants flatly deny ever signing the alleged resignation letter of 27 October 2009 and insist they had no intention of relinquishing control of the company (especially to people they call “strangers” unrelated to the Kileff family). They imply that the letter and perhaps other supporting documents were forged or backdated. On the other hand, the respondents produce what appears to be a formally worded letter dated 27 October 2009, purportedly signed by the first and second applicants, which states that those applicants resign as directors with immediate effect and acknowledges certain new appointments. The respondents also reference corporate records and share certificates suggesting that the first respondent (and possibly some of the other respondents or the late Mr. Kandawasikwa) acquired shares or were appointed by the majority shareholder around that time. There are further disputes as to the motive behind these changes – the applicants allege the respondents’ appointments were done to hijack an anticipated government compensation payout for the company’s land, whereas the respondents suggest the Kileffs had effectively walked away from the company when the farm was acquired, and allowed others to step in. These are not trivial or ancillary disagreements; they go to the heart of the matter. Resolving them would require determining issues of credibility and potentially the authenticity of documents – tasks for which affidavit evidence is notoriously inadequate without the benefit of oral testimony and cross-examination. Notably, the applicants have alleged fraud, which is a serious accusation that usually demands strict proof and often a full trial to properly adjudicate. In this case, no expert evidence (such as handwriting analysis of the 2009 letter) has been presented to prove the alleged forgery, nor was a referral to trial formally sought by the applicants as an alternative prayer. They approached the court in application proceedings presumably expecting that no significant dispute would arise, or that the court would simply accept their version. That expectation was miscalculated. The respondents have squarely contradicted the applicants’ story on all material points, and have buttressed their version with documentary exhibits. We are thus left with two competing narratives: one side’s word against the other’s, with documents that could support either authenticity or deceit depending on how one views them. This is the quintessential scenario for a trial, not for final relief on paper. Counsel for the respondents argued that the applicants should have anticipated these disputes and that the application should be dismissed on that basis alone. I find merit in that argument. Given the long history and involvement of multiple parties, it was foreseeable that the respondents would not simply acquiesce to accusations of fraud and would produce their own evidence. The first and second applicants obviously knew of the 2009 resignation letter’s existence (if genuine, they signed it; if forged, they were aware someone had concocted it), so they could expect it to feature in the opposition. Thus, the applicants proceeded at their peril by way of application. As McNally J observed in Masukusa, where a serious dispute of fact is obvious, it is an abuse of court process to employ motion proceedings and the court is entitled to dismiss the application without resolving the factual conflicts. In this case, even if I were inclined to refer the matter to trial (which I am not, given the other fatal flaws already identified), doing so would be an academic exercise because the applicants have not surmounted the preliminary legal hurdles. Therefore, I conclude that the material disputes of fact present a further impediment to granting the relief sought. In line with the authorities, I take a robust approach and consider whether, on the papers as they stand (applying the Plascon-Evans test), the applicants have made out a case for relief. This essentially means I must take the facts averred by the respondents (to the extent they are not fanciful) together with those facts averred by the applicants that are admitted or not disputed, and then determine if on those facts the applicants are entitled to relief. When I do so, it becomes apparent that the applicants cannot succeed on the merits in any event, as discussed below. Merits of the Application Although the foregoing findings (prescription, lack of authority, hearsay affidavits, and material disputes) are each sufficient to dispose of this matter, for completeness I will briefly address the merits. I do so on the hypothetical premise that the application was properly before me and not time-barred – and I will consider whether, on the evidence presented, the applicants have shown a substantive right to the relief they seek. In applying the Plascon-Evans rule as stated, I will lean in favor of the respondents’ version where disputes arise, because I find no basis to reject their version out of hand. Indeed, as will be seen, the applicants’ evidence fails to rebut the respondents’ version in any material respect. The essential question on the merits is: Was the CR14 of December 2015 a result of fraud (an unlawful ouster of the applicants as directors), or was it the lawful recording of changes that the applicants themselves had agreed to and implemented years prior? The applicants bear the onus to prove that the CR14 is invalid, given that it is an official document filed with the Registrar and ostensibly regular on its face. The respondents’ case is that the first and second applicants voluntarily resigned from the company’s board on 27 October 2009 and ceded control to the first respondent (and to certain others) as part of a reorganization of the company’s affairs after the farm properties were acquired by the State. They have placed reliance on a letter of that date, which they attached as annexure “A” to their opposing affidavit. That letter, addressed to the first respondent, states that “we hereby resign as directors of Retreat Farm (Pvt) Ltd with effect from today’s date and appoint [first respondent] as director”, or words to that effect (the full text was not reproduced in the affidavits, but its gist is described). The letter is purportedly signed by both first and second applicants. The first respondent also asserts that he was issued shares in the company (or acquired the majority of shares) around the same time, through the trusts or otherwise, making him the controlling shareholder. Furthermore, one of the new directors appointed was the late Peter Kandawasikwa (since deceased, now represented by the second respondent as executrix). The respondents claim Mr. Kandawasikwa was an employee or associate who was brought on board to assist with the company’s affairs (particularly the pursuit of government compensation for the acquired farms). Supporting that, they point to company records and claim that Mr. Kandawasikwa’s inclusion as a director was known to the applicants. Although the applicants dispute his status, they have not provided evidence to counter the respondents’ narrative that he was involved with the company’s operations after 2009. The applicants, conversely, categorically deny ever signing the resignation letter or agreeing to hand over the company. They insist they “never resigned” and that any documents suggesting otherwise must be forgeries. They find it inherently implausible that they would have voluntarily appointed “strangers” (the respondents) as directors, especially when those individuals stood to gain financially (via compensation claims) from taking control of the company. The applicants emphasize the suspicious timing: if the resignation was in 2009, why was the CR14 only filed six years later, in December 2015? They argue that this long delay evidences a fraudulent scheme – essentially that the respondents waited until an opportune moment (perhaps when compensation funds became available) to lodge the false CR14. The applicants also highlight that the CR14 itself, filed in 2015, contained inaccuracies (for example, it allegedly listed the executrix Tendai Kandawasikwa as having been appointed company secretary, which the applicants say is incorrect). They suggest that if the respondents truly had a legitimate claim from 2009, they would not have waited so long to formalize it, nor would the paperwork be riddled with errors. Having weighed these competing positions, I find that the applicants have not provided sufficient evidence to overcome the respondents’ version. Several factors lead to this conclusion: Documentary Evidence of Resignation: The respondents rely on the 27 October 2009 letter. The applicants admit such a document exists but label it a forgery. However, they have not substantiated the allegation of forgery with any evidence beyond their say-so. No forensic report or affidavit from a handwriting expert is provided, nor is there any detailed explanation of circumstances that would indicate the letter is not genuine (such as the applicants being elsewhere on that date or the signatures being demonstrably fake). In motion proceedings, a bald allegation of forgery or fraud, unsupported by solid evidence, carries little weight – especially when made by a party who admittedly did nothing for years after learning of the document’s existence. The absence of a direct denial from the second applicant himself (recall, Hazel Kileff’s affidavit on his behalf is hearsay) further weakens the challenge to the document. In contrast, the letter appears on its face to be an authentic company record; it was produced as an annexure with no indication of tampering. On a balance of probabilities, I am inclined to accept that such a letter was indeed signed by the first and second applicants in 2009. At the very least, the applicants have not proven otherwise.Shareholding and Subsequent Conduct: It is telling that the applicants’ shareholding status is not clearly described in their papers. The involvement of the family trusts suggests that at some point the Kileffs’ shares may have been transferred into those trusts or elsewhere. The first respondent claims to have been given some shareholding interest, which the applicants did not explicitly deny in their answering affidavit. If the first respondent became a majority shareholder in or after 2009 (through the trusts or by allotment), he would have had the power to appoint directors and file a CR14 reflecting those changes. The applicants do not tackle this head-on; they focus on directorship but ignore the shareholding dimension. By failing to dispute the respondents’ averment that the first respondent’s assumption of control was consistent with share transfers or agreements (i.e. “given assets or shares”), the applicants again tacitly concede a crucial point. This strengthens the credibility of the respondents’ account that the changes were not a surreptitious coup but a result of some arrangement or acquiescence by the applicants themselves.Delay in Filing CR14: The six-year gap between the alleged resignation (2009) and the CR14 filing (2015) is indeed unusual. The applicants argue it proves foul play. The respondents did not directly explain this delay in their affidavits, which is a lapse on their part. However, several plausible inferences can be drawn that do not necessarily equate to fraud. It could be, for instance, that the company was essentially dormant after losing its land in 2009, and no one bothered to update the Registrar until it became necessary (perhaps when lodging a compensation claim required proof of directorship, prompting the filing in 2015). Another possibility is ignorance or oversight of the legal requirement to file the CR14 within one month – a requirement of the (now repealed) Companies Act [Chapter 24:03] s 187(5) which the applicants correctly cite. A late filing, while contravening the Act’s procedural timeline, does not automatically bespeak fraud; it might simply be a negligent or deliberate late compliance. The applicants seize on this delay as their smoking gun, but in the absence of other evidence of fraud, the delay alone is not sufficient to nullify an otherwise valid change. Moreover, if the applicants were truly unaware of any changes until 2016 or 2023, as they claim, then the delay did not prejudice them during 2009-2015 because they believed themselves still in control. In other words, the late filing’s prejudice (if any) is that it allowed the respondents to operate under the radar for a time. But that is as consistent with an innocent explanation (they simply didn’t file until necessary) as it is with nefarious intent.Third-Party Evidence and Conduct: We have little direct evidence from neutral third parties, but what there is tends to favor the respondents. For example, the Registrar’s letter of 2016 (which the applicants rely on) apparently responded to the applicants’ inquiry by saying no documents “since incorporation” were on file. If indeed a CR14 had been filed in Dec 2015, one wonders why the Registrar’s office did not see it by Oct 2016. It could be bureaucratic delay or misfiling. Regardless, after 2016, it appears the applicants did not follow up diligently. Meanwhile, the respondents assert that they engaged with the government for compensation and took other actions as directors. There is also mention that the late Mr. Kandawasikwa passed away and his estate is represented (second respondent), suggesting that even after his death, the respondents treated the directorships as legitimate enough to involve an executor. If this were a wholesale forgery, one might expect some glaring inconsistency or a whistle blower from within – yet none is presented.Applicants’ Own Inaction: The applicants’ long inaction until 2023, despite some knowledge in 2016, casts doubt on their claim of an urgent, clear-cut fraud. If they truly never resigned and suddenly discovered in 2016 that someone had filed a CR14, one would expect immediate legal action. Instead, they waited several more years. This inertia is not proof of acquiescence, but it is consistent with the respondents’ suggestion that the applicants had effectively abandoned the company and only resurfaced when it appeared value (compensation) might be realized. It weakens the applicants’ credibility and the cogency of their narrative. Applying the Plascon-Evans approach: the facts asserted by the respondents – that the Kileffs resigned in 2009, that new directors (including the respondents) were appointed with the Kileffs’ knowledge, and that the formal record was updated in 2015 to reflect what had long been the de facto position – have not been refuted by the applicants with any tangible evidence. Those facts, taken with such admissions or indisputable facts as exist (e.g. that the CR14 was indeed filed and signed in 2015, and that the applicants made inquiries in 2016 indicating they suspected changes), lead to the conclusion that the respondents’ version is more probable. The applicants have failed to discharge the onus on them to prove their case on a balance of probabilities. They ask the court to effectively declare that the respondents were never validly appointed and that the applicants remain the rightful directors. Yet all the objective indicators (the lodged CR14, the 2009 letter, and the lack of contrary documentation from applicants) point the other way. I therefore find on the merits that the applicants have not established any fraud or irregularity that would warrant setting aside the CR14. To the contrary, the weight of the evidence supports the respondents’ assertion that the first and second applicants resigned and that the appointments of the respondents were regular and in accordance with the company’s then shareholding and agreements. The relief sought by the applicants is thus unwarranted on the facts. Conclusion In summary, this application is fatally defective and cannot succeed. The preliminary points in limine raised by the respondents are upheld. The claim is prescribed under the Prescription Act and is time-barred. Moreover, the third and fourth applicants had no authority to institute the proceedings through the deponent (Mr. Burr), and the second applicant’s supporting affidavit is invalid for want of personal knowledge. The founding papers failed to clearly plead a cause of action, and the matter is beset by material disputes of fact which the applicants should not have attempted to resolve on affidavit. Even if one were to look past those procedural and technical issues, the applicants have not proven the merits of their case – they have not rebutted the respondents’ evidence that the changes in directorship were done with their prior resignation and consent. Accordingly, the application must be dismissed in its entirety. On the matter of costs, there is no reason to depart from the general rule that costs follow the result. The applicants have been unsuccessful and must bear the consequences. The respondents did not ask for any punitive costs (aside from a suggestion of attorney-client costs against Mr. Burr, but I do not find that necessary in the circumstances). I will therefore award costs on the ordinary party-and-party scale against the applicants, jointly and severally. Order In the result, IT IS ORDERED THAT: The application in Case No. HC 1347/23 be and is hereby dismissed in its entirety.The applicants, jointly and severally, shall pay the respondents’ costs of suit on the ordinary party-and-party scale. Katiyo J: …………………………………………………. Wintertons, applicants’ legal practitioners Paddington & Associates, 1st – 4th respondents’ legal practitioners Civil Division of The Attorney General, 6th respondent’s legal practitioners 4 HH 416 - 25 HC 1347/23 4 HH 416 - 25 HC 1347/23 GEORGE GRAHAM WARREN KILEFF and PETER SAMUEL WARREN KILEFF and GRAHAM KILEFF 1ST FAMILY TRUST and GRAHAM KILEFF 2ND FAMILY TRUST versus TENDAI KANDAWASVIKWA and ONIAS GUMBO and TINASHE KANDAWASVIKWA and TENDAI KANDAWASIKWA and THE REGISTRAR OF COMPANIES and MINISTER OF LANDS, AGRICULTURE, FISHERIES, WATER, CLIMATE AND RURAL RESETTLEMENT HIGH COURT OF ZIMBABWE KATIYO J HARARE; 15 April 2025 & 11 July 2025 Opposed Matter T. Manjengwa, for the applicants G. R. J Sithole, for the 1st – 4th respondents KATIYO J: Background This is an opposed application in which the four applicants seek to set aside a company director change form (Form CR14) filed with the fifth respondent (Registrar of Companies) in respect of Retreat Farm (Private) Limited (“the company”). The first and second applicants (Messrs. G.G.W. Kileff and P.S.W. Kileff) are the founding directors of the company. The third and fourth applicants are family trusts established to hold the shares in the company. The impugned CR14, lodged on 18 December 2015, removed the first and second applicants as directors and reflected the first to fourth respondents as the new directors of the company. The applicants allege that this CR14 was fraudulently filed without their knowledge or consent, in an effort to wrest control of the company (and, by extension, its assets) and enable the new directors to claim compensation for farms previously owned by the company that were acquired by the State under the Land Acquisition Act. They maintain that they never resigned as directors and that no valid appointment of the first to fourth respondents was ever made. The first to fourth respondents oppose the application and stand by the validity of the CR14. They contend that the first and second applicants had in fact resigned from the company’s board years earlier, pursuant to a letter dated 27 October 2009, and that the respondents’ appointments as directors were regular and consistent with the company’s shareholding and the applicants’ own actions. The respondents argue that the applicants’ belated challenge is not bona fide and is motivated by a desire to reclaim assets or compensation that had passed to the first respondent by arrangement. The fifth respondent (the Registrar) has been cited in his official capacity, and no specific relief beyond the rectification of the company register is sought against him. At the outset, the respondents raised several points in limine. These are: (1) that the application is prescribed in terms of the Prescription Act [Chapter 8:11]; (2) that Simon Burr, who deposed to an affidavit on behalf of the third and fourth applicants (the family trusts), lacked locus standi or authority to represent those applicants; (3) that the affidavit of Hazel Ellen Kileff (submitted for the second applicant) is fatally defective because she had no personal knowledge of the events preceding her appointment in 2017; and (4) that the application as a whole is not properly before the court due to the absence of a proper founding affidavit. The respondents further submit that the matter is replete with material disputes of fact which cannot be resolved on the papers, and that accordingly the application should be dismissed with costs. I will address each of the points in limine. Although any one of these points could be dispositive, I find it prudent to consider them in turn for completeness. I will then examine the material disputes of fact and the merits of the case, notwithstanding the conclusion I reach on the preliminary issues. Preliminary Points in Limine 1. Prescription The respondents argue that the applicants’ claim to set aside or rectify the company’s register (by expunging the 2015 CR14 and reinstating the applicants as directors) is a “debt” or obligation within the meaning of the Prescription Act [Chapter 8:11], which became due more than three years before this application was instituted. They contend that by September 2016 at the very latest, the applicants were aware or ought to have been aware that the first to fourth respondents were holding themselves out as the directors and shareholders of the company, as evidenced by correspondence on record. In particular, respondents aver that a letter from the Registrar of Companies dated 13 October 2016 (responding to an inquiry by the applicants) put the applicants on notice of the changes to the directorship, and that the applicants had themselves previously written to the first respondent acknowledging their resignation from the company (annexure “A” to the notice of opposition, being the letter of 27 October 2009). Thus, by late 2016 the applicants knew that the CR14 had been filed (or at least that respondents were asserting control of the company), yet they did not take legal action until March 2023 – well beyond the three-year prescription period. The respondents also assert that the relief sought is essentially an attempt to recover shares or other assets that were given to the first respondent years ago, which is a claim susceptible to prescription. The applicants, on the other hand, deny that their claim is a “debt” for purposes of prescription. They maintain that rectification of a companies register is a procedural or declaratory remedy not caught by the Prescription Act. In any event, they claim that they only discovered the existence of the disputed CR14 in January 2023, after being assured by the Registrar in October 2016 that no post-incorporation documents were on file – implying that prescription did not begin to run until the discovery of the “fraudulent” filing. They submit that if the Prescription Act does apply, the prescriptive period was delayed until they gained actual knowledge of the fraud (relying on the proviso to section 16(3) of the Act, that a debt is not deemed due until the creditor is aware of the identity of the debtor and the facts giving rise to the debt). Having considered the parties’ arguments and the evidence, I uphold the point of prescription. In my view, the applicants’ cause of action – effectively seeking to vindicate their alleged rights as directors/shareholders and to set aside what they call a fraudulent CR14 – indeed constitutes a “debt” or a claim under the Prescription Act. It is a claim for relief founded on an alleged wrong (fraudulent removal from office and records) and is thus subject to the general three-year prescription period in terms of section 15(d) of the Act. The Supreme Court has emphasized that the definition of “debt” in our law is broad, encompassing an obligation to do or not do something, or to pay or deliver something (including the restoration of rights). I am satisfied that the applicants’ claim falls into that broad category. The critical question is when prescription began to run. On the evidence presented, the applicants either knew, or by exercise of reasonable diligence ought to have known, of the essential facts giving rise to their claim by about October 2016. The letter of 13 October 2016 from the Registrar (fifth respondent) is revealing. While the applicants say this letter “assured” them that no documents had been filed, the respondents maintain that this letter was in response to an inquiry from the applicants and that, coupled with the applicants’ own prior correspondence, it shows the applicants were at least aware of the possibility that a CR14 had been lodged or that the respondents were holding themselves out as directors. Furthermore, the first respondent has produced a copy of a letter dated 27 October 2009 (addressed to him by the first and second applicants) wherein the applicants purportedly resigned and ceded their interests. The authenticity and effect of that letter are disputed by the applicants, but its existence (and the applicants’ knowledge of it in 2009) is significant. By September 2016, according to the respondents, the applicants had been made aware that the company’s directorship had been “updated” to include the respondents. Notably, in their answering papers the applicants did not squarely refute the respondents’ timeline of events on this point – they did not deny that they had notice in 2016 of the respondents’ roles, nor did they challenge the assertion that the claim is an attempt to reverse a long-completed share transfer. The applicants’ failure to specifically dispute these averments leads to the conclusion that those facts are effectively admitted. Our courts have repeatedly held that what is not denied in affidavit is taken to be admitted, especially on material issues of fact (see Daniel Shumba & Anor v Zimbabwe Electoral Commission & Anor SC 11/08; Fawcett Security Operations (Pvt) Ltd v Director of Customs & Excise 1993 (2) ZLR 121 (S) at 127F). Accepting, therefore, that the applicants were aware (or must be treated as having been aware) of the respondents’ claim to the directorship by late 2016, it follows that prescription commenced running at that time. The applicants did not institute these proceedings until early 2023, well beyond the three-year window. No application for condonation or extension of prescription was made, and there is no legal basis to pause or interrupt prescription on the facts before me. The applicants’ argument that the claim is not a “debt” is without merit – a similar contention was rejected in Brooker v Mudhanda & Anor (and a related matter) SC 5-18, where the Supreme Court found that claims aimed at recovering shares or undoing company transactions are subject to prescription. Even if one were to entertain the proposition that prescription only starts when the fraud was discovered, I am not convinced that the applicants were reasonably diligent. By their own admission, they inquired with the Registrar in 2016 about the company’s records, which implies they suspected something was amiss. They then waited over six years, until 2023, to follow up or take action, despite knowing that the first to fourth respondents were openly dealing with the company’s affairs in the interim. In light of section 16(3) of the Prescription Act, a creditor is deemed to have knowledge of the facts if, by exercising reasonable care, he could have acquired such knowledge. Here, reasonable care demanded that the applicants investigate further when the 2016 inquiry yielded no documents – for instance, by directly approaching the respondents or checking the company’s annual returns. Had they done so, the existence of the CR14 (filed in December 2015) would likely have come to light. Accordingly, I find that the applicants’ claim has prescribed. This point in limine is upheld. On this ground alone, the application falls to be dismissed. However, for completeness, I will examine the other preliminary points as well. 2. Locus Standi and Authority of the Deponent (Simon Burr) for 3rd and 4th Applicants The third and fourth applicants are trusts (the Graham Kileff 1st Family Trust and 2nd Family Trust). The founding papers include an affidavit deposed to by one Mr. Simon Burr, who describes himself as a trustee of these two trusts. The respondents argue that Mr. Burr has not established his authority to act for and bind the trusts in this litigation. In particular, they point out that no trust resolution or proof of consent by the other trustees (if any) was produced, and that Mr. Burr’s locus standi in judicio is not demonstrated. They contend that without proof that the trusts have duly authorized these proceedings, the trusts’ purported application is a nullity and should be struck off. In response, the applicants insist that a “witness” need not show locus standi, and that Mr. Burr, as a trustee conversant with the facts, is competent to give evidence on behalf of the trusts. They cite the principle that a person who can swear to the facts may depose to an affidavit even if he is not himself the applicant. They further submit that Mr. Burr’s averments were confirmed by the first applicant’s own affidavit, and thus any technical objection causes no prejudice. The law is clear that an artificial person (such as a company or a trust, which acts through trustees) can only sue or be sued through properly authorized agents. In the case of a trust, the proper parties are the trustees, and they must act jointly or authorize one of them to act on behalf of all. Our Supreme Court in Madzivire & Others v Zvarivadza & Others 2006 (1) ZLR 514 (S) underscored that a corporate entity or similar legal persona “cannot be represented in a legal suit by a person who has not been authorized to do so. This is a well-established legal principle, which the courts cannot ignore”. The onus is on the party alleging representation to prove the authority. In the present case, Mr. Burr alleges he is a trustee and purportedly acts for both the third and fourth applicants, yet there is no documentary proof of his appointment as trustee nor any resolution empowering him to institute these proceedings on the trusts’ behalf. The respondents have put Mr. Burr’s authority in issue, thereby obliging the applicants to “allay those fears by adducing proof of his appointment,” as noted in Madzivire (supra). The applicants failed to provide such proof. A mere assertion in an affidavit of being a trustee or being authorized is not enough when challenged – evidence such as a deed of trust showing his trusteeship, or a resolution signed by the other trustees (if more than one) should have been produced. Its absence is fatal. The applicants’ argument that locus standi is irrelevant for a deponent misses the point. While it is true that a witness may depose to an affidavit about facts within his knowledge even if he is not a party, that principle does not override the requirement that the legal proceedings themselves must be properly authorized by the real parties in interest. Here, the parties are the trusts. A trustee certainly may testify to facts, but instituting litigation in the name of a trust’s trusteeship requires proper authority. In Madzivire (supra), the court held that it does not depend on the pleadings of either party; the court must be satisfied that the entity itself has sanctioned the action. In this case, there is no evidence that the trusts (through all their trustees) decided to launch this application. Consequently, the third and fourth applicants are not properly before the court. To that extent, there is no valid application by those applicants, and their portion of the application must be struck off or treated as a nullity. In the result, I uphold the point in limine concerning Mr. Burr’s lack of locus standi/authority. The absence of proof of authorization means the third and fourth applicants’ claims cannot be entertained. (I note in passing that the costs of this preliminary objection were asked to be borne by Mr. Burr personally on a higher scale, but I will address costs at the end; for now it suffices that the trusts’ application is improperly before the court.) 3. Competency of Hazel Ellen Kileff’s Affidavit (Second Applicant’s Affidavit) The second applicant, Mr. Peter Samuel Warren Kileff, did not depose to an affidavit himself. Instead, an affidavit was filed by Mrs. Hazel Ellen Kileff, who is said to be his wife and who holds a general power of attorney executed in 2017 to act on his behalf in business affairs. Hazel Kileff’s affidavit attempts to support the second applicant’s case, but the respondents object that she lacked personal knowledge of the relevant events and thus her testimony is inadmissible hearsay. It is common cause that Mrs. Kileff only became involved in the affairs of the company (and the second applicant’s matters) in 2017, long after the critical events in question (the alleged 2009 resignation letter, the 2015 CR14 filing, etc.). The respondents argue that she is not a competent witness to those historical facts; her affidavit is accordingly “incompetent” and cannot constitute a proper founding affidavit for the second applicant. They point out that she is effectively relaying what she was told or what she gleaned from records, without any first hand involvement. In the absence of a confirmatory affidavit from the second applicant himself (or some other person with direct knowledge of the 2009–2015 events), the second applicant’s case rests entirely on hearsay. The applicants, for their part, contend that Hazel was duly authorized via the power of attorney and that her knowledge, albeit acquired from records and her husband’s briefings, is sufficient. They argue that a power of attorney permits an agent to depose to an affidavit on behalf of a principal, and they rely on Rule 227(4) of the old High Court Rules 1971 which allowed an affidavit to be made by a person who can swear to the facts on behalf of the applicant. They further cite TFS Management Co (Pvt) Ltd v Graspeak Investments (Pvt) Ltd & Anor 2005 (1) ZLR 333 (H) to suggest that an agent or legal practitioner with the requisite knowledge can validly depose to an affidavit in support of a client’s case. The general rule in motion proceedings is that the founding affidavit must be made by a person who has personal knowledge of the facts and is able to swear positively to those facts. If the deponent’s knowledge is only second-hand or hearsay, then, to the extent that she testifies to contested matters, her evidence is inadmissible and of no probative value (unless it falls within a recognized exception to the hearsay rule, which is not alleged here). Our courts have articulated this principle unequivocally: “the evidence on the affidavit of the applicant should be based on personal knowledge and not on hearsay”. Indeed, in Chiadzwa v Paulerer SC 116/91, a relative who was not present during the crucial dealings but only knew of them through documents and hearsay was found not to have the requisite personal knowledge – the court noted that a useful test is whether the deponent would be a competent viva voce witness to those facts. In this case, Hazel Kileff plainly would not be a competent witness to the events surrounding the disputed directorship changes, since she had no involvement with the company until 2017. She admits that her knowledge of earlier events comes from what her husband told her and from what she later discovered in company files. That is textbook hearsay. No doubt, Mrs. Kileff is bona fide and trying to assist her husband, but good faith cannot cure a lack of competence to testify to material facts. A power of attorney might authorize her to act on Mr. Kileff’s behalf in a representative capacity, but it cannot imbue her with personal knowledge she does not possess. As the respondents correctly submitted, “an incompetent witness cannot depose to a valid affidavit in respect of matters she is ignorant of. Only a person who can swear positively to the facts can make a valid deposition.” This principle was affirmed in cases such as Willoughby’s Investments (Pvt) Ltd v Peruke Investments (Pvt) Ltd & Anor HH 178-14 and Bubye Minerals (Pvt) Ltd & Anor v Rani International Ltd 2007 (1) ZLR 22 (S) at 25B, which the respondents cited. I find that Hazel Kileff’s affidavit, insofar as it purports to establish facts prior to 2017, is indeed invalid and inadmissible. It cannot support the second applicant’s cause. The consequence is that the second applicant has no proper founding affidavit of his own before the court. Just as the third and fourth applicants lack a valid initiator due to the authority issue, the second applicant’s case lacks a competent factual foundation. In the result, there is effectively “no valid application before the court in so far as the 2nd applicant is concerned” to quote the respondents’ submission. This preliminary point is therefore also upheld. 4. Absence of a Proper Founding Affidavit / Defective Application Building on the above issues, the respondents contend more broadly that the application as a whole is fatally defective for want of a proper founding affidavit setting out a cognizable cause of action. They note that three separate affidavits were filed (one by the first applicant, one by Hazel Kileff for the second applicant, and one by Simon Burr for the trusts) and argue that none of these, individually or collectively, clearly articulates the legal basis for the relief sought. The respondents complain that the applicants’ papers consist of a narrative of historical grievances without clearly pleading how those facts give rise to the specific relief in the draft order. In particular, they point out that the founding affidavits do not explicitly link the alleged fraud to any established cause of action (such as a delictual claim or a statutory remedy) – they simply assume that if the CR14 was “fraudulent” it must be set aside, without addressing, for example, the effect of the delay or the company law provisions for challenging the composition of a board. The respondents argue that it is not the role of the court to infer or construct a cause of action that the applicants have not properly pleaded. They invoke the principle that a case stands or falls on its founding papers, and that courts will not grant relief that has not been clearly pleaded. They cite the Supreme Court’s pronouncement in Mashonaland Tobacco Co (Pvt) Ltd v Mahem Farms (Pvt) Ltd & Anor SC 152/20 at p.9: “As a general rule, judgment cannot be granted on a cause of action that is not pleaded. The pleadings must clearly set out the precise parameters of the issues contested between the parties.”. According to the respondents, the applicants’ failure to label any specific legal cause (e.g. “rectification of register” under some section of the Companies Act, or a declaratur of directorship, or an order of mandamus) and their omission to explain the legal effect of the facts, means the application is so vague and defective that it should be dismissed on that ground alone. The applicants refute this, arguing that their affidavits (especially that of the first applicant) do set out the facts constituting the fraud and the prejudice to them, which in their view adequately grounds a cause of action for a declaratory order and consequential relief. They contend that the High Court Rules do not require an affidavit to be formally titled “Founding Affidavit,” as long as affidavits containing the facts are attached. They note that their application clearly stated that it was supported by the accompanying affidavits, thus complying with Rule 59(1) of the High Court Rules 2021 (formerly Rule 227 under 1971 rules). The applicants dismiss the respondents’ point as overly technical and without merit. In evaluating this issue, I am mindful that form should not be exalted over substance. It is true that multiple affidavits were filed, but the first applicant’s affidavit can be regarded as the primary founding affidavit (with the others being supporting or supplementary). The lack of a single document labelled “Founding Affidavit” is not per se fatal if the necessary allegations can be discerned from the totality of the papers. However, upon review of the applicants’ affidavits, I share some of the respondents’ concerns. The narrative provided by the applicants outlines a history of events (including the farm acquisitions, the suspected forgery of documents, and internal family or trust arrangements) but does not clearly state the legal right that has been infringed and the legal remedy that is sought. It leaves the court to infer that because the applicants say they were removed by a fraudulent CR14, the court should simply nullify that filing. The danger in such an approach is highlighted by the Supreme Court’s admonition in Mashonaland Tobacco Co v Mahem Farms (supra): a court should not grant relief on an unpleaded cause of action. Here, the applicants have not even explicitly pleaded a recognized cause of action such as fraudulent misrepresentation, forgery, ultra vires act, or breach of the Companies Act. The draft order seeks to “set aside” the CR14 and “rectify” the Registrar’s records, but no specific statute (e.g. section 319 of the Companies Act [Chapter 24:03] or the common-law grounds for review) is cited. The factual foundation is also lacking in critical respects – for example, if fraud is alleged, one would expect details of who perpetrated the fraud, in what manner, and when it was discovered. Instead, the applicants simply assert the CR14 is “fraudulent” without more. This is problematic because it fails to clearly inform the respondents and the court of the case they must meet in law. The purpose of pleadings (or founding affidavits in motion proceedings) is to define the issues, and relief not founded on the papers should not be granted. Nonetheless, given that I have already found the application is fatally flawed due to prescription and lack of proper affidavits for certain applicants, I need not belabour this point. Suffice it to say that the diffuse and imprecise manner in which the applicants’ case was presented is indeed a further defect. The case stands or falls on its founding affidavit, as the oft-cited adage goes, and here the founding affidavit(s) leave much to be desired. In my view, this provides an additional ground to decline granting the relief. I uphold the objection that the application is defective for want of a clearly pleaded cause of action in the founding papers. Material Disputes of Fact Even if the application were not already doomed by the preliminary points, it faces another fundamental hurdle: the presence of material disputes of fact which cannot be resolved on the papers. It is trite that motion proceedings are appropriate only where the facts are not in genuine dispute, or where any disputes are not material to the outcome. Where a real, substantial conflict of evidence on a material issue is apparent, the court has a few options: it may take a robust view and decide on affidavits if it is able to do so, or it may refer the matter to trial or to oral evidence, or it may dismiss the application outright if the applicant should have foreseen the dispute (Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (HC) at 235A). The classic rule (often called the Plascon-Evans rule after the South African case) is that final relief on notice of motion can only be granted if the facts stated by the respondents, together with the admitted facts in the applicants’ affidavits, justify such relief – unless the respondent’s version is so far-fetched or implausible that the court is justified in rejecting it on the papers. In our jurisdiction, this principle has been affirmed in cases like Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S) and Masukusa v National Foods (supra). McNally J’s admonition in Masukusa bears repeating: where the dispute of facts is glaringly obvious from the start, it is ill-advised to proceed by way of application – such a matter “cannot be resolved on papers”. In the present case, the core factual issue is whether the first and second applicants resigned from their positions as directors (and effectively handed over control of the company to the first respondent and others) or whether, as the applicants maintain, they never resigned and the respondents have simply fabricated documents to pretend otherwise. This is a stark dispute of fact. On one hand, the applicants flatly deny ever signing the alleged resignation letter of 27 October 2009 and insist they had no intention of relinquishing control of the company (especially to people they call “strangers” unrelated to the Kileff family). They imply that the letter and perhaps other supporting documents were forged or backdated. On the other hand, the respondents produce what appears to be a formally worded letter dated 27 October 2009, purportedly signed by the first and second applicants, which states that those applicants resign as directors with immediate effect and acknowledges certain new appointments. The respondents also reference corporate records and share certificates suggesting that the first respondent (and possibly some of the other respondents or the late Mr. Kandawasikwa) acquired shares or were appointed by the majority shareholder around that time. There are further disputes as to the motive behind these changes – the applicants allege the respondents’ appointments were done to hijack an anticipated government compensation payout for the company’s land, whereas the respondents suggest the Kileffs had effectively walked away from the company when the farm was acquired, and allowed others to step in. These are not trivial or ancillary disagreements; they go to the heart of the matter. Resolving them would require determining issues of credibility and potentially the authenticity of documents – tasks for which affidavit evidence is notoriously inadequate without the benefit of oral testimony and cross-examination. Notably, the applicants have alleged fraud, which is a serious accusation that usually demands strict proof and often a full trial to properly adjudicate. In this case, no expert evidence (such as handwriting analysis of the 2009 letter) has been presented to prove the alleged forgery, nor was a referral to trial formally sought by the applicants as an alternative prayer. They approached the court in application proceedings presumably expecting that no significant dispute would arise, or that the court would simply accept their version. That expectation was miscalculated. The respondents have squarely contradicted the applicants’ story on all material points, and have buttressed their version with documentary exhibits. We are thus left with two competing narratives: one side’s word against the other’s, with documents that could support either authenticity or deceit depending on how one views them. This is the quintessential scenario for a trial, not for final relief on paper. Counsel for the respondents argued that the applicants should have anticipated these disputes and that the application should be dismissed on that basis alone. I find merit in that argument. Given the long history and involvement of multiple parties, it was foreseeable that the respondents would not simply acquiesce to accusations of fraud and would produce their own evidence. The first and second applicants obviously knew of the 2009 resignation letter’s existence (if genuine, they signed it; if forged, they were aware someone had concocted it), so they could expect it to feature in the opposition. Thus, the applicants proceeded at their peril by way of application. As McNally J observed in Masukusa, where a serious dispute of fact is obvious, it is an abuse of court process to employ motion proceedings and the court is entitled to dismiss the application without resolving the factual conflicts. In this case, even if I were inclined to refer the matter to trial (which I am not, given the other fatal flaws already identified), doing so would be an academic exercise because the applicants have not surmounted the preliminary legal hurdles. Therefore, I conclude that the material disputes of fact present a further impediment to granting the relief sought. In line with the authorities, I take a robust approach and consider whether, on the papers as they stand (applying the Plascon-Evans test), the applicants have made out a case for relief. This essentially means I must take the facts averred by the respondents (to the extent they are not fanciful) together with those facts averred by the applicants that are admitted or not disputed, and then determine if on those facts the applicants are entitled to relief. When I do so, it becomes apparent that the applicants cannot succeed on the merits in any event, as discussed below. Merits of the Application Although the foregoing findings (prescription, lack of authority, hearsay affidavits, and material disputes) are each sufficient to dispose of this matter, for completeness I will briefly address the merits. I do so on the hypothetical premise that the application was properly before me and not time-barred – and I will consider whether, on the evidence presented, the applicants have shown a substantive right to the relief they seek. In applying the Plascon-Evans rule as stated, I will lean in favor of the respondents’ version where disputes arise, because I find no basis to reject their version out of hand. Indeed, as will be seen, the applicants’ evidence fails to rebut the respondents’ version in any material respect. The essential question on the merits is: Was the CR14 of December 2015 a result of fraud (an unlawful ouster of the applicants as directors), or was it the lawful recording of changes that the applicants themselves had agreed to and implemented years prior? The applicants bear the onus to prove that the CR14 is invalid, given that it is an official document filed with the Registrar and ostensibly regular on its face. The respondents’ case is that the first and second applicants voluntarily resigned from the company’s board on 27 October 2009 and ceded control to the first respondent (and to certain others) as part of a reorganization of the company’s affairs after the farm properties were acquired by the State. They have placed reliance on a letter of that date, which they attached as annexure “A” to their opposing affidavit. That letter, addressed to the first respondent, states that “we hereby resign as directors of Retreat Farm (Pvt) Ltd with effect from today’s date and appoint [first respondent] as director”, or words to that effect (the full text was not reproduced in the affidavits, but its gist is described). The letter is purportedly signed by both first and second applicants. The first respondent also asserts that he was issued shares in the company (or acquired the majority of shares) around the same time, through the trusts or otherwise, making him the controlling shareholder. Furthermore, one of the new directors appointed was the late Peter Kandawasikwa (since deceased, now represented by the second respondent as executrix). The respondents claim Mr. Kandawasikwa was an employee or associate who was brought on board to assist with the company’s affairs (particularly the pursuit of government compensation for the acquired farms). Supporting that, they point to company records and claim that Mr. Kandawasikwa’s inclusion as a director was known to the applicants. Although the applicants dispute his status, they have not provided evidence to counter the respondents’ narrative that he was involved with the company’s operations after 2009. The applicants, conversely, categorically deny ever signing the resignation letter or agreeing to hand over the company. They insist they “never resigned” and that any documents suggesting otherwise must be forgeries. They find it inherently implausible that they would have voluntarily appointed “strangers” (the respondents) as directors, especially when those individuals stood to gain financially (via compensation claims) from taking control of the company. The applicants emphasize the suspicious timing: if the resignation was in 2009, why was the CR14 only filed six years later, in December 2015? They argue that this long delay evidences a fraudulent scheme – essentially that the respondents waited until an opportune moment (perhaps when compensation funds became available) to lodge the false CR14. The applicants also highlight that the CR14 itself, filed in 2015, contained inaccuracies (for example, it allegedly listed the executrix Tendai Kandawasikwa as having been appointed company secretary, which the applicants say is incorrect). They suggest that if the respondents truly had a legitimate claim from 2009, they would not have waited so long to formalize it, nor would the paperwork be riddled with errors. Having weighed these competing positions, I find that the applicants have not provided sufficient evidence to overcome the respondents’ version. Several factors lead to this conclusion: Documentary Evidence of Resignation: The respondents rely on the 27 October 2009 letter. The applicants admit such a document exists but label it a forgery. However, they have not substantiated the allegation of forgery with any evidence beyond their say-so. No forensic report or affidavit from a handwriting expert is provided, nor is there any detailed explanation of circumstances that would indicate the letter is not genuine (such as the applicants being elsewhere on that date or the signatures being demonstrably fake). In motion proceedings, a bald allegation of forgery or fraud, unsupported by solid evidence, carries little weight – especially when made by a party who admittedly did nothing for years after learning of the document’s existence. The absence of a direct denial from the second applicant himself (recall, Hazel Kileff’s affidavit on his behalf is hearsay) further weakens the challenge to the document. In contrast, the letter appears on its face to be an authentic company record; it was produced as an annexure with no indication of tampering. On a balance of probabilities, I am inclined to accept that such a letter was indeed signed by the first and second applicants in 2009. At the very least, the applicants have not proven otherwise. Shareholding and Subsequent Conduct: It is telling that the applicants’ shareholding status is not clearly described in their papers. The involvement of the family trusts suggests that at some point the Kileffs’ shares may have been transferred into those trusts or elsewhere. The first respondent claims to have been given some shareholding interest, which the applicants did not explicitly deny in their answering affidavit. If the first respondent became a majority shareholder in or after 2009 (through the trusts or by allotment), he would have had the power to appoint directors and file a CR14 reflecting those changes. The applicants do not tackle this head-on; they focus on directorship but ignore the shareholding dimension. By failing to dispute the respondents’ averment that the first respondent’s assumption of control was consistent with share transfers or agreements (i.e. “given assets or shares”), the applicants again tacitly concede a crucial point. This strengthens the credibility of the respondents’ account that the changes were not a surreptitious coup but a result of some arrangement or acquiescence by the applicants themselves. Delay in Filing CR14: The six-year gap between the alleged resignation (2009) and the CR14 filing (2015) is indeed unusual. The applicants argue it proves foul play. The respondents did not directly explain this delay in their affidavits, which is a lapse on their part. However, several plausible inferences can be drawn that do not necessarily equate to fraud. It could be, for instance, that the company was essentially dormant after losing its land in 2009, and no one bothered to update the Registrar until it became necessary (perhaps when lodging a compensation claim required proof of directorship, prompting the filing in 2015). Another possibility is ignorance or oversight of the legal requirement to file the CR14 within one month – a requirement of the (now repealed) Companies Act [Chapter 24:03] s 187(5) which the applicants correctly cite. A late filing, while contravening the Act’s procedural timeline, does not automatically bespeak fraud; it might simply be a negligent or deliberate late compliance. The applicants seize on this delay as their smoking gun, but in the absence of other evidence of fraud, the delay alone is not sufficient to nullify an otherwise valid change. Moreover, if the applicants were truly unaware of any changes until 2016 or 2023, as they claim, then the delay did not prejudice them during 2009-2015 because they believed themselves still in control. In other words, the late filing’s prejudice (if any) is that it allowed the respondents to operate under the radar for a time. But that is as consistent with an innocent explanation (they simply didn’t file until necessary) as it is with nefarious intent. Third-Party Evidence and Conduct: We have little direct evidence from neutral third parties, but what there is tends to favor the respondents. For example, the Registrar’s letter of 2016 (which the applicants rely on) apparently responded to the applicants’ inquiry by saying no documents “since incorporation” were on file. If indeed a CR14 had been filed in Dec 2015, one wonders why the Registrar’s office did not see it by Oct 2016. It could be bureaucratic delay or misfiling. Regardless, after 2016, it appears the applicants did not follow up diligently. Meanwhile, the respondents assert that they engaged with the government for compensation and took other actions as directors. There is also mention that the late Mr. Kandawasikwa passed away and his estate is represented (second respondent), suggesting that even after his death, the respondents treated the directorships as legitimate enough to involve an executor. If this were a wholesale forgery, one might expect some glaring inconsistency or a whistle blower from within – yet none is presented. Applicants’ Own Inaction: The applicants’ long inaction until 2023, despite some knowledge in 2016, casts doubt on their claim of an urgent, clear-cut fraud. If they truly never resigned and suddenly discovered in 2016 that someone had filed a CR14, one would expect immediate legal action. Instead, they waited several more years. This inertia is not proof of acquiescence, but it is consistent with the respondents’ suggestion that the applicants had effectively abandoned the company and only resurfaced when it appeared value (compensation) might be realized. It weakens the applicants’ credibility and the cogency of their narrative. Applying the Plascon-Evans approach: the facts asserted by the respondents – that the Kileffs resigned in 2009, that new directors (including the respondents) were appointed with the Kileffs’ knowledge, and that the formal record was updated in 2015 to reflect what had long been the de facto position – have not been refuted by the applicants with any tangible evidence. Those facts, taken with such admissions or indisputable facts as exist (e.g. that the CR14 was indeed filed and signed in 2015, and that the applicants made inquiries in 2016 indicating they suspected changes), lead to the conclusion that the respondents’ version is more probable. The applicants have failed to discharge the onus on them to prove their case on a balance of probabilities. They ask the court to effectively declare that the respondents were never validly appointed and that the applicants remain the rightful directors. Yet all the objective indicators (the lodged CR14, the 2009 letter, and the lack of contrary documentation from applicants) point the other way. I therefore find on the merits that the applicants have not established any fraud or irregularity that would warrant setting aside the CR14. To the contrary, the weight of the evidence supports the respondents’ assertion that the first and second applicants resigned and that the appointments of the respondents were regular and in accordance with the company’s then shareholding and agreements. The relief sought by the applicants is thus unwarranted on the facts. Conclusion In summary, this application is fatally defective and cannot succeed. The preliminary points in limine raised by the respondents are upheld. The claim is prescribed under the Prescription Act and is time-barred. Moreover, the third and fourth applicants had no authority to institute the proceedings through the deponent (Mr. Burr), and the second applicant’s supporting affidavit is invalid for want of personal knowledge. The founding papers failed to clearly plead a cause of action, and the matter is beset by material disputes of fact which the applicants should not have attempted to resolve on affidavit. Even if one were to look past those procedural and technical issues, the applicants have not proven the merits of their case – they have not rebutted the respondents’ evidence that the changes in directorship were done with their prior resignation and consent. Accordingly, the application must be dismissed in its entirety. On the matter of costs, there is no reason to depart from the general rule that costs follow the result. The applicants have been unsuccessful and must bear the consequences. The respondents did not ask for any punitive costs (aside from a suggestion of attorney-client costs against Mr. Burr, but I do not find that necessary in the circumstances). I will therefore award costs on the ordinary party-and-party scale against the applicants, jointly and severally. Order In the result, IT IS ORDERED THAT: The application in Case No. HC 1347/23 be and is hereby dismissed in its entirety. The applicants, jointly and severally, shall pay the respondents’ costs of suit on the ordinary party-and-party scale. Katiyo J: …………………………………………………. Wintertons, applicants’ legal practitioners Paddington & Associates, 1st – 4th respondents’ legal practitioners Civil Division of The Attorney General, 6th respondent’s legal practitioners

Judgment

Warren Kileff and Others v Kandawasvika and Others (416 of 2025) [2025] ZWHHC 416 (11 July 2025)

Headnotes

Judgment

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Discussion

Warren Kileff and Others v Kandawasvika and Others (416 of 2025) [2025] ZWHHC 416 (11 July 2025)

Headnotes

Judgment

Similar Cases

Discussion