MAREBE and Another v CHIDAWU and Others (272 of 2025) [2025] ZWHHC 272 (22 April 2025)

8 HH 272-25 HC 622/24 GILBERT MAREBE and KUCHI HOLDINGS (PRIVATE) LIMITED versus ROPAFADZO SIBUSISO CHIDAWU and THAMUSANGA GIDEON NHAMOINESU and BITUMEN CONSTRUCTION SERVICES and BUOYANCY INVESTMENTS (PRIVATE) LIMITED and REGISTRAR OF COMPANIES N.O HIGH COURT OF ZIMBABWE MUSITHU J HARARE, 5 December 2024 & 22 April 2025 Opposed Application-Declaratur Directors’ Dispute Mr G. Maromo for the applicants Mr R T Mutero for the first to fourth respondents MUSITHU J: This is an application for a declaratur made in terms of s 14 of the High Court Act [Chapter 7:06]. The relief sought is set out in the draft order as follows: “IT IS ORDERED THAT The application is hereby granted.It is hereby declared that Ropafadzo Sibusiso Chidawu is not a director of Buoyancy Investments (Private) Limited.It is hereby declared that Thamusanga Gideon Nhamoinesu is not a director of Buoyancy Investments (Private) Limited.It is hereby declared that Thamusanga Gideon Nhamoinesu is not a director of Bitumen Construction Services (Private) Limited.It is hereby declared that all documents, instruments, forms, processes, proceedings or other deeds by whatever name called, which were filed or drafted or signed by Ropafadzo Sibusiso Chidawu or Gideon Thamusanga Nhamoinesu or their agents, assignees or representatives by whatever name called on behalf of or in respect of Buoyancy Investments (Private) Limited, are illegal, invalid and of no force or effect. It is hereby declared that all documents, instruments, forms, processes, proceedings or other deeds by whatever name called, which were filed or drafted or signed by Ropafadzo Sibusiso Chidawu or Gideon Thamusanga Nhamoinesu or their agents, assignees or representatives by whatever name called on behalf of or in respect of Bitumen Construction Services (Private) Limited, are illegal, invalid and of no force or effect. It is hereby further declared that Gilbert Marebe and Ropafadzo Sibusiso Chidawu are the only duly appointed directors of Bitumen Construction Services (Private) Limited until both or one of them shall resign or are otherwise removed according to law in which case that person shall cease to be a director.It is hereby further declared that Fanuel Murungani is the only company secretary for Bitumen Construction Services (Private) Limited.1st and 2nd Respondents are hereby ordered to bear the costs of this suit on the legal practitioner and client scale.” The application was opposed by the first to fourth respondents. Any reference to respondents hereafter shall mean the first to fourth respondents. The First Applicant’s Case The first applicant deposed to his founding affidavit, and his case was summarised as follows. He was a director of the third respondent, a company duly registered in terms of the laws Zimbabwe and was incorporated under the name Tarmacadam Services (Private) Limited at Bulawayo under company number 12/1956. Sometime in April 1982, the third respondent changed its name from Tarmacadam Services (Private) Limited to Bitumen Construction Services (Private) Limited by way of special resolution. Following the change of name, the former directors of the third respondent resigned and, in their place, the first applicant and the first respondent were appointed directors in the third respondent. Their appointment was duly registered with the fifth respondent by the company’s secretary, one Mr Onias Chakawa. The first applicant averred that from the date of his appointment up to the time of deposing to his founding affidavit, he did not file with the fifth respondent or third respondent any notice of his resignation or any instrument by which he terminated his directorship in the third respondent. He was therefore surprised to discover that he had been dismissed from his position as a director in the third respondent on the basis of a purported resolution that was passed on 9 January 2023. The first applicant further averred that on 12 October 2023, the first respondent filed with the fifth respondent a fraudulent form number C.R.6, by which she misrepresented to the fifth respondent that the first applicant had resigned from his position as a director in the third respondent. The first applicant averred that the document was fake in both form and substance. The document misrepresented the fact that he had resigned from his position as director, and that the second respondent had been appointed in his place and stead. The first applicant also averred that prior to the filing of the fraudulent C.R. 6, the first respondent with another unidentified person purported to pass a resolution on 9 January 2023, in terms of which he was dismissed from his position as director of the third respondent. That resolution was illegal because it was not precipitated by a duly convened meeting of the of the third respondent’s shareholder. There was also no notice of a meeting of the shareholders stating as one of its agenda items, notice that a vote was going to be undertaken to remove the first applicant from the board of directors of the third respondent. The first applicant averred that the first and second respondents were not the lawful representatives of the fourth respondent. They were neither the shareholders nor directors of that entity. The first respondent allegedly filed a fraudulent form C.R. 6 with the fifth respondent in terms of which they purported to appoint themselves as directors in the fourth respondent. Such self-appointment was fraudulent and unlawful and of no force or effect in that the fourth respondent’s sole shareholder was Kuchi Holdings (Private) Limited, a company registered in terms of the law, and the second applicant in these proceedings. The second applicant never appointed the first and second respondents to the fourth respondent’s board of directors and their actions purporting to be the directors of the fourth respondent were null and void for want of authority. The first applicant also averred that no motion was ever moved for his removal from the third respondent’s board of directors and no vote was undertaken. The purported resolution was a product of the first respondent’s fraudulent activities. On 18 November 2023, the first respondent acting in collusion with the second respondent purportedly passed another resolution in terms of which the applicant was dismissed from his position as director with effect from the same date. There was no valid meeting of the third respondent’s shareholders in the sense that no valid notice calling for the meeting was given in terms of which the agenda was that a vote was to be undertaken on the question of the first applicant’s removal from the third respondent’s board of directors. Further, no such motion was ever moved, and no vote was conducted on the question of the first applicant’s removal from his position as director. The resolution of 18 November 2023 was also fraudulent in that it misrepresented that the applicant had resigned from his position as director when in fact he had never evinced an intention to resign from his position as director of the third respondent. The first applicant contended that the fourth respondent, which happens to be the sole shareholder of the third respondent never, since the time of his appointment, held any meeting by whatever description nor file any instrument by whatever name called, in terms of which it removed the applicant from his position as director of the third respondent. It was the first respondent who arrogated to herself the role of deciding who was to be appointed as director of the third respondent. Those self-appointed powers were without any basis at law. The first respondent was no more than an appointed director in the third respondent serving at the pleasure of the fourth respondent just like the first applicant. She had no authority at law to cause the removal of the first applicant from his directorship in the third respondent. The first applicant submitted that the second respondent’s appointment to the third respondent’s board of directors was tainted with illegality and the absence of lawful authority. That appointment was made to replace the first applicant at a time when he had not resigned or ceased to be a director in the third respondent. That appointment was made without a duly convened meeting of the third respondent’s members. It was also made without the input of the third respondent’s shareholders or directors. On various dates following the first applicant’s removal, the first respondent filed an additional form C.R. 6 in the fifth respondent’s offices at Bulawayo where the third respondent was registered. That document misrepresented the fact that the first applicant had resigned from the third respondent’s board of directors. The document was false and improper in that it did not emanate from any decision of the third respondent and neither did it originate from the first applicant’s voluntary resignation. The first applicant also averred that since his appointment as a director of the third respondent, the third and fourth respondents did not convene any elective meetings to appoint new directors in the third respondent. The first applicant averred that his appointment on 1 March 2021 remained extant until such time when he resigned or was removed by lawful instrument. The first applicant petitioned the court to grant the application with a special order of costs on the punitive scale against the first and second respondents. This was because the litigation had been necessitated by the fraudulent conduct of the said respondents acting in common purpose. It was because of their deceitful acts that the first applicant was compelled to approach the courts for declaratory relief. The Second Applicant’s Case The second applicant’s founding affidavit was deposed to Muchadeyi Ashton Masunda in his capacity as director of the second applicant and a registered legal practitioner and officer of this court. According to the deponent, the second applicant was seeking an order declaring that the first and second respondents were not directors in the fourth respondent and that any instruments and documents filed or actions undertaken by the said respondents and or their nominees, agents or other representatives by whatever description called, which purported to appoint either one or both of them to the fourth respondent’s board of directors were null and void and of no legal effect. Consequent to the declaration, the second applicant also sought an order declaring that Fanuel Murugani was the fourth respondent’s company secretary and would remain so appointed until removed by the fourth respondent according to law. Also sought was consequential relief to the effect that all actions, decisions or other instruments by whatever description, done by the first and second respondents in respect of the fourth respondent were invalid and of no force or effect. The relevant facts, germane to the second applicant’s claim were as follows. The second applicant was incorporated according to the laws of Zimbabwe on 12 October 1993. The fourth respondent’s paid-up share capital as of 26 June 1995, was 2 290 000 shares. As of the same date, the second respondent acquired 2 289 998 shares in the fourth respondent. The second respondent’s shareholding was recorded by the fourth respondent’s share certificate number 5 representing ownership of shares number 3 to 2 290 000. Thereafter, the second applicant acquired the remaining 2 ordinary shares in the fourth respondent and thus became 100% shareholder. On 16 May 1994, the fourth respondent’s shareholders had appointed the now deceased Oliver Mandishona Chidawu to the fourth respondent’s board of directors. That appointment subsisted until the time of his death on 19 July 2022. On 12 June 2007, the fourth respondent’s shareholders appointed Mr Phineas Solomon Whata as director to serve together with Mr Chidawu. On the same day, Mr Fanuel Murugani was appointed the fourth respondent’s company secretary. The second applicant claimed that following the death of Mr Chidawu, the first and second respondents acting in collusion, decided to unlawfully appoint themselves as the directors of the fourth respondent. The second applicant further claimed that he became aware of these developments through documents filed in a pending matter at the Magistrates Court under HRE C-CD844/23, that on 25 August 2022, a certain document purporting to be a resolution of the board of directors of a company called Broadway Investments (Private) Limited, was signed by certain persons one of whom was the first respondent. In terms of that purported resolution, the signatories misrepresented that the fourth respondent had no representation on its board of directors, and therefore it was necessary to appoint the first respondent as director and she was duly appointed. On 16 May 2023, a fraudulent form number C.R. 6 was filed by the first respondent in the offices of the fifth respondent. That document represented that Mr Phineas Whata was removed from the position of director and that Mr Chidawu was deceased. The document misrepresented that the first respondent was appointed director in place of the late Mr Chidawu, while the second respondent was appointed in place of the removed Mr Whata. On or about 17 and 18 November 2023, the first and second respondents purported to convene a meeting of the fourth respondent’s board of directors and to pass certain resolutions. One such resolution was the increase of the fourth respondent’s share capital from an alleged four million ordinary shares to ninety-six million ordinary shares. Ninety-two million shares were allocated to a Trust named Bella Rosa Family Trust in which the first respondent was the sole beneficiary. In terms of the resolution, the first applicant was said to have been removed from the board of directors of the third respondent and several other actions were said to have been taken. The second applicant, as the holder of 100% of the paid up share capital in the fourth respondent never at any stage appointed the first or second respondents as directors of the fourth respondent. The second applicant’s directors were therefore shocked to learn in November 2023 that the first and second respondents were holding themselves as directors of the fourth respondent. This discovery led to the lodging of a criminal complaint of fraud on 11 November 2023 under reference IR 110 670 and the complaint was still pending. The second applicant claimed that the first and second respondents purported to derive their appointment to the fourth respondent’s board of directors from the powers that they had arrogated to themselves while purporting to be directors of Broadway Investments (Private) Limited. The applicant averred that the two could not lawfully derive their appointment from that source for two reasons: firstly, there was an extant order of this court per Manzunzu J in HCH 429/22 which declared all the actions of the first and second respondents in so far as they purported to be directors of Broadway Investments to be illegal and invalid. Secondly, Broadway Investments was not a shareholder in the fourth respondent and therefore it could not lawfully appoint the first and second respondents to the fourth respondent’s board of directors. The first and second respondents were therefore not directors of the fourth respondent and their self-appointment had to be set aside. As regards costs of suit, the second applicant averred that the circumstances of the case warranted that in the event of the application succeeding, the costs of suit ought to be borne by the first and second respondents in their personal capacities for the reason that they connived and acted in cahoots to usurp the second applicant’s directorship in contempt of the law and that they filed various fraudulent documents which necessitated the present application. The court was urged to frown at such conduct. First, Second, Third and Fourth Respondents’ Case The first respondent deposed to the opposing affidavit on behalf of herself and the second to fourth respondents. The opposing affidavit raised two preliminary points. The first was that the application was defective for want of a draft order. The respondents had been served with an application which was not accompanied by a draft order as required by r 58(3) of the High Court rules, 2021 (the Rules). It was therefore difficult for the respondents to understand what relief was being sought against them. That made the application fatally defective, and it ought to be struck off the roll. The second preliminary point was that there was a misjoinder of actions. The application was a joinder of unrelated parties, there being no relationship between the applicants in the matter. There was no relationship between the first applicant and the fourth respondent. There was no need for the fourth respondent to go through the trouble of reading first applicant’s affidavit and supporting documentation when the cause of action raised therein did not concern it. Further, the relationship between the second applicant and the third respondent had not been established. The confusion created by the applicants was so material that the application could not be allowed to proceed in the manner it had been filed. It was averred that the applicants ought to have filed their applications separate of each other as the two matters were unrelated and mutually exclusive. For that reason, it was prayed that the application be struck off the roll with costs. Concerning the merits of the application, the deponent dealt with the merits of the first applicant’s founding affidavit as follows. The deponent denied that the first applicant had the requisite locus standi to claim any relief on behalf of the fourth respondent. The first applicant had failed to establish authority to speak on behalf of the fourth respondent. It was also contended that the first applicant had not established his locus standi to litigate in favour of the second applicant. No averments were made in the first applicant’s founding affidavit linking him to the second applicant. The deponent also averred that there were certain decisions that had been made which could not be reversed as these involved contracts with third parties, payments to government institutions and other third parties with no interest in the present proceedings. It was averred that the first applicant abrogated his directorship in the third respondent and communicated his position with the first respondent through email. It was further averred that the first applicant never attended any directors’ meeting of the third respondent. Following the first applicant’s resignation, the board sat and appointed his replacement for purposes of continuity of business of the third respondent. There was therefore nothing fraudulent about the appointment of the second respondent and the amendment of the third respondent’s CR 6 to reflect the true state of affairs. Concerning the allegation that the first and second respondents passed a resolution which dismissed the first applicant from his position as a director of the third respondent, the deponent averred that the first applicant was not a shareholder in the third respondent and for that reason he could not make allegations which did not relate to him. His only interest was to the extent that he was a director, and the moment he resigned he lost his rights in the company. The deponent also averred that a resignation was a unilateral act by the employee which took effect as soon it was communicated. What the first applicant was therefore seeking to do was to rescind his resignation through the back door. The deponent denied that the respondents were liable to pay costs on the punitive scale if the application succeeded. Rather, it was the first applicant who ought to be slapped with costs on the punitive scale because the application was a clear abuse of court process as it was convoluted. The deponent responded to the second applicant’s founding affidavit as follows. A preliminary point was raised to the effect that the founding affidavit by Muchadeyi Ashton Masunda was defective for want of compliance with r 58 (1) (b) of the Rules. The rules required that an affidavit be divided into paragraphs, numbered consecutively, each paragraph containing, wherever possible, a separate allegation. The second applicant’s founding affidavit was numbered from para 6 to para 8; from para 9 to para 11; from para 13 to a sentence starting from the middle of a missing paragraph then para 15; from para 23 which was incomplete to para 22 under costs and lastly to para 23. It was further averred that the tardiness of the founding affidavit from someone identifying himself as a registered legal practitioner and an officer of the court was inexcusable. The respondents were embarrassed in that it was difficult to figure out what the second applicant was trying to communicate. The court was urged to strike the matter off the roll with costs on the punitive scale. As regards the merits, it was averred that the citation of the parties ought to have reflected that the first respondent was cited as N.O. (Nomine Officio), to show that she was being sued in her official capacity as a Trustee. There was also no justification why one Trustee of the Bella Rosa Family Trust was cited instead of all the Trustees. The deponent denied that the resolutions by Broadway Investments were not procedurally and lawfully made. In any case, Broadway Investments was not a party to the present proceedings and the applicants had not established its relevance herein. The deponent dismissed as baseless, the allegations that on 16 May 2023 she filed a fraudulent form C.R. 6 at the offices of the fifth respondent. Further, it was argued that the second applicant had not clearly spelt out what it is that was done fraudulently. The deponent also dismissed the alleged criminal complaint as an extortionate act by the first applicant and Mrs Spiwe Chidawu which was intended to coerce the first and second respondents to resign from their positions as directors. They had expressed their desire to withdraw the criminal complaint if the first and second respondents resigned from their positions. The deponent also dismissed as irrelevant the judgment by Manzunzu J as it was the subject of an appeal. An appeal automatically suspended the decision appealed against. Further, the second applicant was not a party to the litigation that gave birth to the judgment by Manzunzu J. I must pause here to remark that the appeal against the judgment by Manzunzu J was dismissed with costs by the Supreme Court on 26 February 2024, under SC 16/24. The order confirming the dismissal was attached as an annexure to the second applicant’s answering affidavit. The submission that the judgment by Manzunzu was suspended by the said appeal becomes inconsequential. The court was urged to dismiss the application with costs on the punitive scale as it was convoluted, incoherent and marred with tardiness. The First Applicant’s Answering Affidavit It was averred that there was no valid opposition from the second respondent. There was no instrument authorising the first respondent to oppose the matter on his behalf. The first respondent did not explain why the second respondent could not give evidence on his own, especially concerning matters that were within his personal knowledge. On that basis the application ought to be treated as unopposed as far as it related to the second respondent. As far as the third and fourth respondents were concerned, it was averred that the first respondent did not have authority to represent them in the present proceedings. While acknowledging the resolutions attached to the first respondent’s opposing affidavit, the first applicant contended that it was the ability of the first respondent to act for the third and fourth respondents that was at the heart of these proceedings. At any rate, the third and fourth respondents were only cited as nominal respondents since no substantive relief was sought against them. In response to the first respondent’s first preliminary point, the first applicant contented that the application that was filed in the Integrated Electronic Case Management System (IECMS) was indeed accompanied by a draft order and so was the application served on the respondents. As regards the second preliminary point, the first applicant denied that there was a misjoinder of unrelated matters. The application was being made against the same respondents in respect of the same applicants. The relationship between the applicant and the respondents allowed the application to be filed in the manner it had been filed. It was further averred that the cause of action was the same in respect of both applicants and the wrongdoers were also the same. As regards the merits, the first applicant denied that he ever resigned from his position as director. The email communication attached did not relate to his directorship in the third respondent. The first applicant claimed that the email was concerned with meetings in Gombe Holdings (Private) Limited, where the first respondent was the Group Chief Executive Officer and the applicant was the General Manager. The Second Applicant’s Answering Affidavit The deponent dismissed the alleged failure to comply with the rules of Court in connection with the formatting and the numbering of the application, arguing that the rules of court made it clear that no objection shall be taken against any pleading for want of form. If the first respondent had any genuine complaint, then the proper procedure would have been to make an application to strike out the offending affidavit. On the merits, the second applicant denied that there were third parties who were being denied an opportunity to be heard in the matter. At any rate, no legitimate interest would be affected by a declaration of invalidity of actions that were invalid. Submissions and analysis It is critical to dispose of the preliminary points that were raised in the first respondent’s opposing affidavit. I pause to note that two preliminary points raised in the first respondent’s opposing affidavit were not pursued during oral submissions. The first preliminary point was concerned with the absence of a draft order. That point was not pursued in the oral submissions by counsel, and I considered it abandoned. At any rate, the application that was lodged in the IECMS was accompanied by a draft order and for that reason the point was clearly without merit. There was also the preliminary point raised in connection with the founding affidavit filed on behalf of the second applicant. It was submitted that the founding affidavit by Muchadeyi Ashton Masunda was defective for want of compliance with r 58(1)(b) of the Rules. The point being made was that the affidavit was not properly formatted as required by the rules. That point was also not pursued in oral submissions, and I also considered it abandoned. In any event, the alleged non compliance was not material to warrant the striking off of the matter on that basis. The remaining preliminary points were dealt with as follows. Whether there was a misjoinder of actions The first preliminary point was concerned with the misjoinder of actions. Mr Mutero for the respondents submitted that the first applicant purported to deal with issues involving the second applicant, which he could not do. Two separate founding affidavits were filed on behalf of the applicants. The existence of two distinct affidavits meant that there were two distinct matters which ought to stand alone. There could not be two founding affidavits in the same matter. The causes of action were not related. The first applicant had nothing to do with the fourth respondent. There was also no connection between the affidavits of the two applicants. The court was urged to strike off the application for being defective. In response, Mr Maromo for the applicant dismissed the objection as flawed. He argued that both applicants were complaining against the actions of the same respondents. The same question of law arose in respect of both cases. Further according to counsel, the central question was whether the respondents acted lawfully in seeking to remove the first applicant. That same question also arose in respect of the second applicant. Mr Maromo further submitted that such a course was permitted in terms of r 32(1)(a) as read with r 32(11) of the rules. He further submitted that the parties to the application were interconnected in that the second applicant was a shareholder in the third respondent. The fourth respondent was the sole shareholder in the third respondent. The first applicant was complaining about his removal as director of the third respondent by people who purported to be directors of the third and fourth respondents. The starting point in resolving this issue is to consider the provisions of r 32(1)(a) as read together with r 32(11) of the rules. These state that: “32. Joinder of parties and causes of action (1) Subject to sub rule (4) any number of persons, each of whom has a claim, whether jointly, jointly and severally, separately or in the alternative, may join as plaintiffs in one action against the same defendant or defendants whether in convention or in reconvention where— (a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and…..” (Underlining mine for emphasis) Rule 32 (11) states as follows: “(11) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.” My interpretation of r 32(1)(a) is that parties with separate claims may join forces as plaintiffs or applicants against the same defendants or respondents provided, they are able to demonstrate that there is some common question of law or fact in respect of their claims. It is not necessary that the parties in the position of plaintiffs or applicants be in some kind of special relationship with each other. Their only universal characteristic is that there is a common question of law or fact which the court must determine in their claims against the same defendants or respondents. Rule 32 (11) provides that the misjoinder of a party shall not in itself be fatal, and the court shall be at large to determine the issues or questions in dispute to the extent that they affect the rights and interests of the parties before it. Further, my reading of the above provision is that it applies to both action and motion proceedings even though there is no specific reference to an applicant or respondent. This is because the rules of court composite as they are, apply to both action and motion proceedings. It stands to reason in my view that if several persons may join as plaintiffs in one action against the same defendant or defendants, then nothing precludes several applicants with a common interest to bring proceedings against the same respondents or respondents under the same application. Although the factual or legal questions to be interrogated are the same, the foundational basis of the respective claims maybe different thus necessitating the filing of separate founding affidavits under the same case number. Taking a cue from the wording of the r 32(1)(a) as read with r 32(11), I find nothing irregular about filing two founding affidavits under the same case number. In my view, the fundamental reason for that provision is that claims from different persons which give rise to similar issues, be they of a legal or factual nature, must be heard together if they are made against the same defendants or respondents. This brings in efficiency and convenience in the disposal of litigation cases. It also acts as a hedge against the unnecessary proliferation of the same questions of fact and law before the same court which may lead to conflicting judgments by the same court. The first applicant’s complaint herein was his purported dismissal from his position as a director of the third respondent. The resolution which led to his dismissal was passed by the first respondent and some other unidentified person. The first applicant accused the first and second respondents of fraudulently appointing themselves as directors of the fourth respondent. The point is also made that the second applicant is the fourth respondent’s sole shareholder. The fourth respondent is in turn the third respondent’s shareholder. In removing the first applicant from his position as director of the third respondent, the first and second respondents are accused of having conducted themselves as lawful representatives of the fourth respondent when in fact they were not. The second applicant’s complaint was that the first and second respondents, acting in collusion, unlawfully appointed themselves as the directors of the fourth respondent. The erstwhile directors of that company were the late Mr Chidawu and Mr Whata. The first respondent was appointed as a replacement of the late Mr Chidawu, while the second respondent replaced Mr Whata who was unlawfully removed from his position as director. The questions of fact that the court is required to resolve are the same in respect of both applicants’ claims. The court therefore finds that there was no misjoinder of actions, and the preliminary point must be dismissed for lack of merit. That the applicants were seeking a declaratur on questions of fact and not law The second preliminary point was that the application was defective to the extent that it sought a declaratur on questions of fact and not law. Reference was made to paras 8 and 9 of both the first and second applicants’ founding affidavits which summarised the relief sought. The question was whether the first and second respondents were directors of the fourth respondent. Mr Mutero submitted that the question whether the first applicant was a director or whether he resigned from his position as director was a factual issue. Whether or not the first applicant lost employment in the third respondent was a labour question. Labour laws also applied to directors who were employees. Such labour issues had to be resolved through labour laws and not by way of approach to this court. The application for the declaratur was consequently defective. In response, Mr Maromo submitted that what the first applicant sought was a declaration of nullity, the argument being that the process by which he was removed as director was unlawful. The second applicant on the other hand sought that the process by which the respondents proclaimed themselves to be directors of the third and fourth respondents be declared to be a nullity. The second applicant was the fourth respondent’s sole shareholder. The question to be answered therefore was if the second applicant as the fourth respondent’s shareholder denied appointing the first and second respondents as directors in the fourth respondent, so who appointed them to those positions. Counsel further submitted that even the consequential relief sought was not based on fact. Concerning the related argument that the applicant’s complaint was partly labour related, counsel for the applicant submitted that directors of the company were not necessarily employees of the company. The first applicant had never alleged that he was an employee of the third respondent. The first applicant’s complaint was that he was unlawfully removed as a director of the third respondent. His position was therefore regulated by the Companies and Other Business Entities Act [Chapter 24:31] (the COBE). Section 14 of the High Court Act [Chapter 7:07], in terms of which the present application was launched states as follows: “14 High Court may determine future or contingent rights The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.” (Underlining mine for emphasis) To succeed in an application of this nature, the applicant must establish: an interest in the cause and the existence of a dispute in connection with an existing, future or contingent right or obligation. In simple terms and in the context of s 14 of the High Court Act above, one can conceive of a right as an entitlement, privilege or power recognised and protected by the law. The holder of that right is allowed to have or enjoy that right by virtue of some underlying legal framework. In the case of Tapatapa v Rydale Ridge Park (Private) Limited1, an authority cited by Mr Mutero, the point was made that a declaratur is not invoked to resolve factual disputes, but rights which may arise from a contractual setting. It is in the context of the above legal position that the nature and essence of the applicants’ claims must be interrogated. The first applicant’s complaint arose from his unlawful removal as a director of the third respondent by the first respondent. He challenges the resolution that led to his removal as director in the third respondent on the basis that it was illegal as it was not sanctioned by a duly convened meeting of the third respondent’s shareholder. As already observed, the fourth respondent is the third respondent’s shareholder. In response to the first applicant’s allegations that he was unlawfully removed from his position as director of the third respondent, the first respondent claimed that the first applicant abrogated his directorship through an email that he sent to the first respondent. That email was attached as Annexure C to the first respondent’s opposing affidavit. It was also averred that the first applicant never attended any directors’ meeting of the third respondent. The email of 1 August 2021 which was addressed to the first respondent by the first applicant in which the first applicant is alleged to have resigned as director of the third respondent reads as follows: “Good day Thank you for the invitation to participate in the projects meeting on Monday 02 August 2021. I request that I be excused from the meeting until my contractual position with the company is clarified. Kindest Regards Gilbert Marebe” There is nothing in that email that suggests to me that the first applicant resigned from his position as director of the third respondent. The first applicant requested to be excused from the projects meeting to which he had been invited. It was not disputed by the respondents that the applicant was a director of the third respondent. It was also not disputed that the first applicant was no longer a director of the third respondent. The parties only differed on the way the first applicant ceased to be a director of the third respondent. The first applicant claimed that he was unlawfully removed, while the first respondent claimed that he abrogated his directorship through the above email. From the foregoing, there exists a dispute concerning the alleged cessation of the first applicant’s directorship in the third respondent. Nowhere in the communication was it alleged that the first applicant was an employee of the third respondent. The status of the first applicant as an employee of the third respondent or any other entity is not of concern in these proceedings. As already noted, the first respondent did not dispute that the first applicant was appointed a director of the third respondent on 1 March 2021. It is therefore clear that the first applicant has a legitimate interest and a right to challenge the lawfulness of his removal from his position as a director of the third respondent by the first respondent if he contends that he did not resign from that position. In the court’s view, the lawfulness of the first applicant’s removal from his position as director of the third respondent is not a question of fact, but one of law. It speaks to the third respondent’s constitutive documents as read together with the COBE. The same reasoning applies to the second applicant’s claim herein. It was not disputed that the second applicant was the fourth respondent’s sole shareholder. The fourth respondent was in turn the third respondent’s shareholder. The second applicant seeks the nullification of the of the first and second respondents’ appointments as directors of the fourth respondent. The declaratur sought seeks to engage the lawfulness of the appointments of the two respondents as directors of the fourth respondent, which the second applicant as the sole shareholder of the fourth respondent disputed. The declaratur sought clearly speaks to the legality of the appointment of the two respondents to the directorship of the fourth respondent. It is not a factual question but a legal one. The court determines that there is no merit in the second preliminary point, and it stands to be dismissed. That the application does not state the law in terms of which it was made The third preliminary point was that the application did not state the rule in terms of which it was launched. There was therefore no application before the court. The court was referred to the case of Minister of Mines and Mining Development & Anor v Fidelity Printers & Refiners (Private) Limited & Ano2, in which an application for condonation for the late filing of an application for leave to appeal conjoined with the application for leave to appeal, was struck of the roll for having been made in terms of the wrong provision of the Constitutional Court rules. In reply, counsel for the applicant submitted that the present application referred to s 14 of the High Court Act as the provision in terms of which it was made. It was different from an applicant who just approached the court without stating the basis of their approach. The objection is clearly without merit because the Notice of Application made it clear that it was one for a declaratur in terms of s 14 of the High Court Act. Para 8 of the first applicant’s founding affidavit also made it clear that the application was premised on s 14 of the High Court Act as read together with the applicable common law principles. Similarly, para 8 of the second applicant’s founding affidavit made it clear that the application was being made in terms of s 14 of the High Court Act. The remedy of a declaratur is provided for in s 14 of the High Court Act. There is no concomitant provision in the High Court rules, save to observe that such an application must comply with r 59 of the said rules. I find nothing irregular with the way the application was formulated and placed before the court. The case of Minister of Mines and Mining Development & Anor v Fidelity Printers & Refiners (Private) Limited & Ano cited by the respondents’ counsel is distinguishable in that it was concerned with an application that cited the wrong provision of the Constitutional Court rules. This was not the case herein. The preliminary point is devoid of merit and must be dismissed. THE MERITS At the conclusion of the oral submissions on the preliminaries, counsels agreed to abide by their papers concerning the merits of the matter. This was rightly so because in addressing the court on the preliminaries, counsels inevitably strayed into the merits of the matter considering the very nature of the preliminary points that arose for determination. In their heads of argument, the parties agreed that the primary issue for determination centred on whether the first applicant resigned from his position as director of the third respondent. The first respondent averred that the first applicant resigned from his position as director through an email attached to her opposing affidavit as annexure C. I have already alluded to that email of 1 August 2021 in the disposal of the second preliminary point. In his answering affidavit, the first applicant submitted that the email pertained to meetings involving Gombe Holdings (Private) Limited in which the first respondent was employed as the Group Chief Executive Officer, while the first applicant was the General Manager. To confirm this position, the first applicant attached to his answering affidavits correspondence confirming his employment by Gombe Holdings. In my disposal of the second preliminary point, I concluded that the email of 1 August 2021 did not mention the first applicant’s resignation from the third respondent. The email did not even refer to the third respondent by name. The argument that the first applicant abrogated his directorship in the third respondent and communicated this position through the said email is clearly without merit. The second applicant’s claim is clearly unassailable and apart from the preliminary points, no attempt was made to deal with the claim in the respondents’ heads of argument. The second applicant’s claim was simple. It was the fourth respondent’s sole shareholder. The fourth respondent was the third respondent’s shareholder. The deponent to the second applicant’s founding affidavit was also a director of the second applicant. These averments were not disputed by the respondents. Being the sole shareholder in the fourth respondent, the second applicant disowned the first and second respondents to be directors of the fourth respondents. If the second applicant disowned the first and second respondents, then under whose authority were they elevated to the positions of directors in the fourth respondent? This is the question that the first and second respondents failed to deal with satisfactorily in their papers. Having considered the documentary evidence and the submissions by counsel, the court was satisfied that the respondents did not sufficiently refute the claims made by the applicants that they conducted themselves unlawfully in removing the first applicant as a director of the third respondent and conducting themselves in the manner complained about by the applicants. COSTS OF SUIT The court was urged to grant the application with costs on the punitive scale because of the reprehensible way in which the respondents conducted themselves. The matter raised some important legal questions and for that reason I find it more appropriate to order that costs be borne by the respondents on the ordinary scale. Resultantly it is ordered that: The application is hereby granted.It is hereby declared that Ropafadzo Sibusiso Chidawu is not a director of Buoyancy Investments (Private) Limited.It is hereby declared that Thamusanga Gideon Nhamoinesu is not a director of Buoyancy Investments (Private) Limited.It is hereby declared that Thamusanga Gideon Nhamoinesu is not a director of Bitumen Construction Services (Private) Limited.It is hereby declared that all documents, instruments, forms, processes, proceedings or other deeds by whatever name called, which were filed or drafted or signed by Ropafadzo Sibusiso Chidawu or Gideon Thamusanga Nhamoinesu or their agents, assignees or representatives by whatever name called on behalf of or in respect of Buoyancy Investments (Private) Limited, are illegal, invalid and of no force or effect. It is hereby declared that all documents, instruments, forms, processes, proceedings or other deeds by whatever name called, which were filed or drafted or signed by Ropafadzo Sibusiso Chidawu or Gideon Thamusanga Nhamoinesu or their agents, assignees or representatives by whatever name called on behalf of or in respect of Bitumen Construction Services (Private) Limited, are illegal, invalid and of no force or effect. It is hereby further declared that Gilbert Marebe and Ropafadzo Sibusiso Chidawu are the only duly appointed directors of Bitumen Construction Services (Private) Limited until both or one of them shall resign or are otherwise removed according to law in which case that person shall cease to be a director.It is hereby further declared that Fanuel Murungani is the only company secretary for Bitumen Construction Services (Private) Limited.The first and second respondents shall bear the applicants’ costs of suit on the ordinary scale. MUSITHU J……………………………………………………………………………………………………………………………… Hogwe Nyengedza, legal practitioners for the applicants Lunga Mazikana Attorneys, legal practitioners for the 1st -4th respondents 1 HH 486/21 at p 4 2 CCZ 9/ 22 8 HH 272-25 HC 622/24 8 HH 272-25 HC 622/24 GILBERT MAREBE and KUCHI HOLDINGS (PRIVATE) LIMITED versus ROPAFADZO SIBUSISO CHIDAWU and THAMUSANGA GIDEON NHAMOINESU and BITUMEN CONSTRUCTION SERVICES and BUOYANCY INVESTMENTS (PRIVATE) LIMITED and REGISTRAR OF COMPANIES N.O HIGH COURT OF ZIMBABWE MUSITHU J HARARE, 5 December 2024 & 22 April 2025 Opposed Application-Declaratur Directors’ Dispute Mr G. Maromo for the applicants Mr R T Mutero for the first to fourth respondents MUSITHU J: This is an application for a declaratur made in terms of s 14 of the High Court Act [Chapter 7:06]. The relief sought is set out in the draft order as follows: “IT IS ORDERED THAT The application is hereby granted. It is hereby declared that Ropafadzo Sibusiso Chidawu is not a director of Buoyancy Investments (Private) Limited. It is hereby declared that Thamusanga Gideon Nhamoinesu is not a director of Buoyancy Investments (Private) Limited. It is hereby declared that Thamusanga Gideon Nhamoinesu is not a director of Bitumen Construction Services (Private) Limited. It is hereby declared that all documents, instruments, forms, processes, proceedings or other deeds by whatever name called, which were filed or drafted or signed by Ropafadzo Sibusiso Chidawu or Gideon Thamusanga Nhamoinesu or their agents, assignees or representatives by whatever name called on behalf of or in respect of Buoyancy Investments (Private) Limited, are illegal, invalid and of no force or effect. It is hereby declared that all documents, instruments, forms, processes, proceedings or other deeds by whatever name called, which were filed or drafted or signed by Ropafadzo Sibusiso Chidawu or Gideon Thamusanga Nhamoinesu or their agents, assignees or representatives by whatever name called on behalf of or in respect of Bitumen Construction Services (Private) Limited, are illegal, invalid and of no force or effect. It is hereby further declared that Gilbert Marebe and Ropafadzo Sibusiso Chidawu are the only duly appointed directors of Bitumen Construction Services (Private) Limited until both or one of them shall resign or are otherwise removed according to law in which case that person shall cease to be a director. It is hereby further declared that Fanuel Murungani is the only company secretary for Bitumen Construction Services (Private) Limited. 1st and 2nd Respondents are hereby ordered to bear the costs of this suit on the legal practitioner and client scale.” The application was opposed by the first to fourth respondents. Any reference to respondents hereafter shall mean the first to fourth respondents. The First Applicant’s Case The first applicant deposed to his founding affidavit, and his case was summarised as follows. He was a director of the third respondent, a company duly registered in terms of the laws Zimbabwe and was incorporated under the name Tarmacadam Services (Private) Limited at Bulawayo under company number 12/1956. Sometime in April 1982, the third respondent changed its name from Tarmacadam Services (Private) Limited to Bitumen Construction Services (Private) Limited by way of special resolution. Following the change of name, the former directors of the third respondent resigned and, in their place, the first applicant and the first respondent were appointed directors in the third respondent. Their appointment was duly registered with the fifth respondent by the company’s secretary, one Mr Onias Chakawa. The first applicant averred that from the date of his appointment up to the time of deposing to his founding affidavit, he did not file with the fifth respondent or third respondent any notice of his resignation or any instrument by which he terminated his directorship in the third respondent. He was therefore surprised to discover that he had been dismissed from his position as a director in the third respondent on the basis of a purported resolution that was passed on 9 January 2023. The first applicant further averred that on 12 October 2023, the first respondent filed with the fifth respondent a fraudulent form number C.R.6, by which she misrepresented to the fifth respondent that the first applicant had resigned from his position as a director in the third respondent. The first applicant averred that the document was fake in both form and substance. The document misrepresented the fact that he had resigned from his position as director, and that the second respondent had been appointed in his place and stead. The first applicant also averred that prior to the filing of the fraudulent C.R. 6, the first respondent with another unidentified person purported to pass a resolution on 9 January 2023, in terms of which he was dismissed from his position as director of the third respondent. That resolution was illegal because it was not precipitated by a duly convened meeting of the of the third respondent’s shareholder. There was also no notice of a meeting of the shareholders stating as one of its agenda items, notice that a vote was going to be undertaken to remove the first applicant from the board of directors of the third respondent. The first applicant averred that the first and second respondents were not the lawful representatives of the fourth respondent. They were neither the shareholders nor directors of that entity. The first respondent allegedly filed a fraudulent form C.R. 6 with the fifth respondent in terms of which they purported to appoint themselves as directors in the fourth respondent. Such self-appointment was fraudulent and unlawful and of no force or effect in that the fourth respondent’s sole shareholder was Kuchi Holdings (Private) Limited, a company registered in terms of the law, and the second applicant in these proceedings. The second applicant never appointed the first and second respondents to the fourth respondent’s board of directors and their actions purporting to be the directors of the fourth respondent were null and void for want of authority. The first applicant also averred that no motion was ever moved for his removal from the third respondent’s board of directors and no vote was undertaken. The purported resolution was a product of the first respondent’s fraudulent activities. On 18 November 2023, the first respondent acting in collusion with the second respondent purportedly passed another resolution in terms of which the applicant was dismissed from his position as director with effect from the same date. There was no valid meeting of the third respondent’s shareholders in the sense that no valid notice calling for the meeting was given in terms of which the agenda was that a vote was to be undertaken on the question of the first applicant’s removal from the third respondent’s board of directors. Further, no such motion was ever moved, and no vote was conducted on the question of the first applicant’s removal from his position as director. The resolution of 18 November 2023 was also fraudulent in that it misrepresented that the applicant had resigned from his position as director when in fact he had never evinced an intention to resign from his position as director of the third respondent. The first applicant contended that the fourth respondent, which happens to be the sole shareholder of the third respondent never, since the time of his appointment, held any meeting by whatever description nor file any instrument by whatever name called, in terms of which it removed the applicant from his position as director of the third respondent. It was the first respondent who arrogated to herself the role of deciding who was to be appointed as director of the third respondent. Those self-appointed powers were without any basis at law. The first respondent was no more than an appointed director in the third respondent serving at the pleasure of the fourth respondent just like the first applicant. She had no authority at law to cause the removal of the first applicant from his directorship in the third respondent. The first applicant submitted that the second respondent’s appointment to the third respondent’s board of directors was tainted with illegality and the absence of lawful authority. That appointment was made to replace the first applicant at a time when he had not resigned or ceased to be a director in the third respondent. That appointment was made without a duly convened meeting of the third respondent’s members. It was also made without the input of the third respondent’s shareholders or directors. On various dates following the first applicant’s removal, the first respondent filed an additional form C.R. 6 in the fifth respondent’s offices at Bulawayo where the third respondent was registered. That document misrepresented the fact that the first applicant had resigned from the third respondent’s board of directors. The document was false and improper in that it did not emanate from any decision of the third respondent and neither did it originate from the first applicant’s voluntary resignation. The first applicant also averred that since his appointment as a director of the third respondent, the third and fourth respondents did not convene any elective meetings to appoint new directors in the third respondent. The first applicant averred that his appointment on 1 March 2021 remained extant until such time when he resigned or was removed by lawful instrument. The first applicant petitioned the court to grant the application with a special order of costs on the punitive scale against the first and second respondents. This was because the litigation had been necessitated by the fraudulent conduct of the said respondents acting in common purpose. It was because of their deceitful acts that the first applicant was compelled to approach the courts for declaratory relief. The Second Applicant’s Case The second applicant’s founding affidavit was deposed to Muchadeyi Ashton Masunda in his capacity as director of the second applicant and a registered legal practitioner and officer of this court. According to the deponent, the second applicant was seeking an order declaring that the first and second respondents were not directors in the fourth respondent and that any instruments and documents filed or actions undertaken by the said respondents and or their nominees, agents or other representatives by whatever description called, which purported to appoint either one or both of them to the fourth respondent’s board of directors were null and void and of no legal effect. Consequent to the declaration, the second applicant also sought an order declaring that Fanuel Murugani was the fourth respondent’s company secretary and would remain so appointed until removed by the fourth respondent according to law. Also sought was consequential relief to the effect that all actions, decisions or other instruments by whatever description, done by the first and second respondents in respect of the fourth respondent were invalid and of no force or effect. The relevant facts, germane to the second applicant’s claim were as follows. The second applicant was incorporated according to the laws of Zimbabwe on 12 October 1993. The fourth respondent’s paid-up share capital as of 26 June 1995, was 2 290 000 shares. As of the same date, the second respondent acquired 2 289 998 shares in the fourth respondent. The second respondent’s shareholding was recorded by the fourth respondent’s share certificate number 5 representing ownership of shares number 3 to 2 290 000. Thereafter, the second applicant acquired the remaining 2 ordinary shares in the fourth respondent and thus became 100% shareholder. On 16 May 1994, the fourth respondent’s shareholders had appointed the now deceased Oliver Mandishona Chidawu to the fourth respondent’s board of directors. That appointment subsisted until the time of his death on 19 July 2022. On 12 June 2007, the fourth respondent’s shareholders appointed Mr Phineas Solomon Whata as director to serve together with Mr Chidawu. On the same day, Mr Fanuel Murugani was appointed the fourth respondent’s company secretary. The second applicant claimed that following the death of Mr Chidawu, the first and second respondents acting in collusion, decided to unlawfully appoint themselves as the directors of the fourth respondent. The second applicant further claimed that he became aware of these developments through documents filed in a pending matter at the Magistrates Court under HRE C-CD844/23, that on 25 August 2022, a certain document purporting to be a resolution of the board of directors of a company called Broadway Investments (Private) Limited, was signed by certain persons one of whom was the first respondent. In terms of that purported resolution, the signatories misrepresented that the fourth respondent had no representation on its board of directors, and therefore it was necessary to appoint the first respondent as director and she was duly appointed. On 16 May 2023, a fraudulent form number C.R. 6 was filed by the first respondent in the offices of the fifth respondent. That document represented that Mr Phineas Whata was removed from the position of director and that Mr Chidawu was deceased. The document misrepresented that the first respondent was appointed director in place of the late Mr Chidawu, while the second respondent was appointed in place of the removed Mr Whata. On or about 17 and 18 November 2023, the first and second respondents purported to convene a meeting of the fourth respondent’s board of directors and to pass certain resolutions. One such resolution was the increase of the fourth respondent’s share capital from an alleged four million ordinary shares to ninety-six million ordinary shares. Ninety-two million shares were allocated to a Trust named Bella Rosa Family Trust in which the first respondent was the sole beneficiary. In terms of the resolution, the first applicant was said to have been removed from the board of directors of the third respondent and several other actions were said to have been taken. The second applicant, as the holder of 100% of the paid up share capital in the fourth respondent never at any stage appointed the first or second respondents as directors of the fourth respondent. The second applicant’s directors were therefore shocked to learn in November 2023 that the first and second respondents were holding themselves as directors of the fourth respondent. This discovery led to the lodging of a criminal complaint of fraud on 11 November 2023 under reference IR 110 670 and the complaint was still pending. The second applicant claimed that the first and second respondents purported to derive their appointment to the fourth respondent’s board of directors from the powers that they had arrogated to themselves while purporting to be directors of Broadway Investments (Private) Limited. The applicant averred that the two could not lawfully derive their appointment from that source for two reasons: firstly, there was an extant order of this court per Manzunzu J in HCH 429/22 which declared all the actions of the first and second respondents in so far as they purported to be directors of Broadway Investments to be illegal and invalid. Secondly, Broadway Investments was not a shareholder in the fourth respondent and therefore it could not lawfully appoint the first and second respondents to the fourth respondent’s board of directors. The first and second respondents were therefore not directors of the fourth respondent and their self-appointment had to be set aside. As regards costs of suit, the second applicant averred that the circumstances of the case warranted that in the event of the application succeeding, the costs of suit ought to be borne by the first and second respondents in their personal capacities for the reason that they connived and acted in cahoots to usurp the second applicant’s directorship in contempt of the law and that they filed various fraudulent documents which necessitated the present application. The court was urged to frown at such conduct. First, Second, Third and Fourth Respondents’ Case The first respondent deposed to the opposing affidavit on behalf of herself and the second to fourth respondents. The opposing affidavit raised two preliminary points. The first was that the application was defective for want of a draft order. The respondents had been served with an application which was not accompanied by a draft order as required by r 58(3) of the High Court rules, 2021 (the Rules). It was therefore difficult for the respondents to understand what relief was being sought against them. That made the application fatally defective, and it ought to be struck off the roll. The second preliminary point was that there was a misjoinder of actions. The application was a joinder of unrelated parties, there being no relationship between the applicants in the matter. There was no relationship between the first applicant and the fourth respondent. There was no need for the fourth respondent to go through the trouble of reading first applicant’s affidavit and supporting documentation when the cause of action raised therein did not concern it. Further, the relationship between the second applicant and the third respondent had not been established. The confusion created by the applicants was so material that the application could not be allowed to proceed in the manner it had been filed. It was averred that the applicants ought to have filed their applications separate of each other as the two matters were unrelated and mutually exclusive. For that reason, it was prayed that the application be struck off the roll with costs. Concerning the merits of the application, the deponent dealt with the merits of the first applicant’s founding affidavit as follows. The deponent denied that the first applicant had the requisite locus standi to claim any relief on behalf of the fourth respondent. The first applicant had failed to establish authority to speak on behalf of the fourth respondent. It was also contended that the first applicant had not established his locus standi to litigate in favour of the second applicant. No averments were made in the first applicant’s founding affidavit linking him to the second applicant. The deponent also averred that there were certain decisions that had been made which could not be reversed as these involved contracts with third parties, payments to government institutions and other third parties with no interest in the present proceedings. It was averred that the first applicant abrogated his directorship in the third respondent and communicated his position with the first respondent through email. It was further averred that the first applicant never attended any directors’ meeting of the third respondent. Following the first applicant’s resignation, the board sat and appointed his replacement for purposes of continuity of business of the third respondent. There was therefore nothing fraudulent about the appointment of the second respondent and the amendment of the third respondent’s CR 6 to reflect the true state of affairs. Concerning the allegation that the first and second respondents passed a resolution which dismissed the first applicant from his position as a director of the third respondent, the deponent averred that the first applicant was not a shareholder in the third respondent and for that reason he could not make allegations which did not relate to him. His only interest was to the extent that he was a director, and the moment he resigned he lost his rights in the company. The deponent also averred that a resignation was a unilateral act by the employee which took effect as soon it was communicated. What the first applicant was therefore seeking to do was to rescind his resignation through the back door. The deponent denied that the respondents were liable to pay costs on the punitive scale if the application succeeded. Rather, it was the first applicant who ought to be slapped with costs on the punitive scale because the application was a clear abuse of court process as it was convoluted. The deponent responded to the second applicant’s founding affidavit as follows. A preliminary point was raised to the effect that the founding affidavit by Muchadeyi Ashton Masunda was defective for want of compliance with r 58 (1) (b) of the Rules. The rules required that an affidavit be divided into paragraphs, numbered consecutively, each paragraph containing, wherever possible, a separate allegation. The second applicant’s founding affidavit was numbered from para 6 to para 8; from para 9 to para 11; from para 13 to a sentence starting from the middle of a missing paragraph then para 15; from para 23 which was incomplete to para 22 under costs and lastly to para 23. It was further averred that the tardiness of the founding affidavit from someone identifying himself as a registered legal practitioner and an officer of the court was inexcusable. The respondents were embarrassed in that it was difficult to figure out what the second applicant was trying to communicate. The court was urged to strike the matter off the roll with costs on the punitive scale. As regards the merits, it was averred that the citation of the parties ought to have reflected that the first respondent was cited as N.O. (Nomine Officio), to show that she was being sued in her official capacity as a Trustee. There was also no justification why one Trustee of the Bella Rosa Family Trust was cited instead of all the Trustees. The deponent denied that the resolutions by Broadway Investments were not procedurally and lawfully made. In any case, Broadway Investments was not a party to the present proceedings and the applicants had not established its relevance herein. The deponent dismissed as baseless, the allegations that on 16 May 2023 she filed a fraudulent form C.R. 6 at the offices of the fifth respondent. Further, it was argued that the second applicant had not clearly spelt out what it is that was done fraudulently. The deponent also dismissed the alleged criminal complaint as an extortionate act by the first applicant and Mrs Spiwe Chidawu which was intended to coerce the first and second respondents to resign from their positions as directors. They had expressed their desire to withdraw the criminal complaint if the first and second respondents resigned from their positions. The deponent also dismissed as irrelevant the judgment by Manzunzu J as it was the subject of an appeal. An appeal automatically suspended the decision appealed against. Further, the second applicant was not a party to the litigation that gave birth to the judgment by Manzunzu J. I must pause here to remark that the appeal against the judgment by Manzunzu J was dismissed with costs by the Supreme Court on 26 February 2024, under SC 16/24. The order confirming the dismissal was attached as an annexure to the second applicant’s answering affidavit. The submission that the judgment by Manzunzu was suspended by the said appeal becomes inconsequential. The court was urged to dismiss the application with costs on the punitive scale as it was convoluted, incoherent and marred with tardiness. The First Applicant’s Answering Affidavit It was averred that there was no valid opposition from the second respondent. There was no instrument authorising the first respondent to oppose the matter on his behalf. The first respondent did not explain why the second respondent could not give evidence on his own, especially concerning matters that were within his personal knowledge. On that basis the application ought to be treated as unopposed as far as it related to the second respondent. As far as the third and fourth respondents were concerned, it was averred that the first respondent did not have authority to represent them in the present proceedings. While acknowledging the resolutions attached to the first respondent’s opposing affidavit, the first applicant contended that it was the ability of the first respondent to act for the third and fourth respondents that was at the heart of these proceedings. At any rate, the third and fourth respondents were only cited as nominal respondents since no substantive relief was sought against them. In response to the first respondent’s first preliminary point, the first applicant contented that the application that was filed in the Integrated Electronic Case Management System (IECMS) was indeed accompanied by a draft order and so was the application served on the respondents. As regards the second preliminary point, the first applicant denied that there was a misjoinder of unrelated matters. The application was being made against the same respondents in respect of the same applicants. The relationship between the applicant and the respondents allowed the application to be filed in the manner it had been filed. It was further averred that the cause of action was the same in respect of both applicants and the wrongdoers were also the same. As regards the merits, the first applicant denied that he ever resigned from his position as director. The email communication attached did not relate to his directorship in the third respondent. The first applicant claimed that the email was concerned with meetings in Gombe Holdings (Private) Limited, where the first respondent was the Group Chief Executive Officer and the applicant was the General Manager. The Second Applicant’s Answering Affidavit The deponent dismissed the alleged failure to comply with the rules of Court in connection with the formatting and the numbering of the application, arguing that the rules of court made it clear that no objection shall be taken against any pleading for want of form. If the first respondent had any genuine complaint, then the proper procedure would have been to make an application to strike out the offending affidavit. On the merits, the second applicant denied that there were third parties who were being denied an opportunity to be heard in the matter. At any rate, no legitimate interest would be affected by a declaration of invalidity of actions that were invalid. Submissions and analysis It is critical to dispose of the preliminary points that were raised in the first respondent’s opposing affidavit. I pause to note that two preliminary points raised in the first respondent’s opposing affidavit were not pursued during oral submissions. The first preliminary point was concerned with the absence of a draft order. That point was not pursued in the oral submissions by counsel, and I considered it abandoned. At any rate, the application that was lodged in the IECMS was accompanied by a draft order and for that reason the point was clearly without merit. There was also the preliminary point raised in connection with the founding affidavit filed on behalf of the second applicant. It was submitted that the founding affidavit by Muchadeyi Ashton Masunda was defective for want of compliance with r 58(1)(b) of the Rules. The point being made was that the affidavit was not properly formatted as required by the rules. That point was also not pursued in oral submissions, and I also considered it abandoned. In any event, the alleged non compliance was not material to warrant the striking off of the matter on that basis. The remaining preliminary points were dealt with as follows. Whether there was a misjoinder of actions The first preliminary point was concerned with the misjoinder of actions. Mr Mutero for the respondents submitted that the first applicant purported to deal with issues involving the second applicant, which he could not do. Two separate founding affidavits were filed on behalf of the applicants. The existence of two distinct affidavits meant that there were two distinct matters which ought to stand alone. There could not be two founding affidavits in the same matter. The causes of action were not related. The first applicant had nothing to do with the fourth respondent. There was also no connection between the affidavits of the two applicants. The court was urged to strike off the application for being defective. In response, Mr Maromo for the applicant dismissed the objection as flawed. He argued that both applicants were complaining against the actions of the same respondents. The same question of law arose in respect of both cases. Further according to counsel, the central question was whether the respondents acted lawfully in seeking to remove the first applicant. That same question also arose in respect of the second applicant. Mr Maromo further submitted that such a course was permitted in terms of r 32(1)(a) as read with r 32(11) of the rules. He further submitted that the parties to the application were interconnected in that the second applicant was a shareholder in the third respondent. The fourth respondent was the sole shareholder in the third respondent. The first applicant was complaining about his removal as director of the third respondent by people who purported to be directors of the third and fourth respondents. The starting point in resolving this issue is to consider the provisions of r 32(1)(a) as read together with r 32(11) of the rules. These state that: “32. Joinder of parties and causes of action (1) Subject to sub rule (4) any number of persons, each of whom has a claim, whether jointly, jointly and severally, separately or in the alternative, may join as plaintiffs in one action against the same defendant or defendants whether in convention or in reconvention where— (a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and…..” (Underlining mine for emphasis) Rule 32 (11) states as follows: “(11) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.” My interpretation of r 32(1)(a) is that parties with separate claims may join forces as plaintiffs or applicants against the same defendants or respondents provided, they are able to demonstrate that there is some common question of law or fact in respect of their claims. It is not necessary that the parties in the position of plaintiffs or applicants be in some kind of special relationship with each other. Their only universal characteristic is that there is a common question of law or fact which the court must determine in their claims against the same defendants or respondents. Rule 32 (11) provides that the misjoinder of a party shall not in itself be fatal, and the court shall be at large to determine the issues or questions in dispute to the extent that they affect the rights and interests of the parties before it. Further, my reading of the above provision is that it applies to both action and motion proceedings even though there is no specific reference to an applicant or respondent. This is because the rules of court composite as they are, apply to both action and motion proceedings. It stands to reason in my view that if several persons may join as plaintiffs in one action against the same defendant or defendants, then nothing precludes several applicants with a common interest to bring proceedings against the same respondents or respondents under the same application. Although the factual or legal questions to be interrogated are the same, the foundational basis of the respective claims maybe different thus necessitating the filing of separate founding affidavits under the same case number. Taking a cue from the wording of the r 32(1)(a) as read with r 32(11), I find nothing irregular about filing two founding affidavits under the same case number. In my view, the fundamental reason for that provision is that claims from different persons which give rise to similar issues, be they of a legal or factual nature, must be heard together if they are made against the same defendants or respondents. This brings in efficiency and convenience in the disposal of litigation cases. It also acts as a hedge against the unnecessary proliferation of the same questions of fact and law before the same court which may lead to conflicting judgments by the same court. The first applicant’s complaint herein was his purported dismissal from his position as a director of the third respondent. The resolution which led to his dismissal was passed by the first respondent and some other unidentified person. The first applicant accused the first and second respondents of fraudulently appointing themselves as directors of the fourth respondent. The point is also made that the second applicant is the fourth respondent’s sole shareholder. The fourth respondent is in turn the third respondent’s shareholder. In removing the first applicant from his position as director of the third respondent, the first and second respondents are accused of having conducted themselves as lawful representatives of the fourth respondent when in fact they were not. The second applicant’s complaint was that the first and second respondents, acting in collusion, unlawfully appointed themselves as the directors of the fourth respondent. The erstwhile directors of that company were the late Mr Chidawu and Mr Whata. The first respondent was appointed as a replacement of the late Mr Chidawu, while the second respondent replaced Mr Whata who was unlawfully removed from his position as director. The questions of fact that the court is required to resolve are the same in respect of both applicants’ claims. The court therefore finds that there was no misjoinder of actions, and the preliminary point must be dismissed for lack of merit. That the applicants were seeking a declaratur on questions of fact and not law The second preliminary point was that the application was defective to the extent that it sought a declaratur on questions of fact and not law. Reference was made to paras 8 and 9 of both the first and second applicants’ founding affidavits which summarised the relief sought. The question was whether the first and second respondents were directors of the fourth respondent. Mr Mutero submitted that the question whether the first applicant was a director or whether he resigned from his position as director was a factual issue. Whether or not the first applicant lost employment in the third respondent was a labour question. Labour laws also applied to directors who were employees. Such labour issues had to be resolved through labour laws and not by way of approach to this court. The application for the declaratur was consequently defective. In response, Mr Maromo submitted that what the first applicant sought was a declaration of nullity, the argument being that the process by which he was removed as director was unlawful. The second applicant on the other hand sought that the process by which the respondents proclaimed themselves to be directors of the third and fourth respondents be declared to be a nullity. The second applicant was the fourth respondent’s sole shareholder. The question to be answered therefore was if the second applicant as the fourth respondent’s shareholder denied appointing the first and second respondents as directors in the fourth respondent, so who appointed them to those positions. Counsel further submitted that even the consequential relief sought was not based on fact. Concerning the related argument that the applicant’s complaint was partly labour related, counsel for the applicant submitted that directors of the company were not necessarily employees of the company. The first applicant had never alleged that he was an employee of the third respondent. The first applicant’s complaint was that he was unlawfully removed as a director of the third respondent. His position was therefore regulated by the Companies and Other Business Entities Act [Chapter 24:31] (the COBE). Section 14 of the High Court Act [Chapter 7:07], in terms of which the present application was launched states as follows: “14 High Court may determine future or contingent rights The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.” (Underlining mine for emphasis) To succeed in an application of this nature, the applicant must establish: an interest in the cause and the existence of a dispute in connection with an existing, future or contingent right or obligation. In simple terms and in the context of s 14 of the High Court Act above, one can conceive of a right as an entitlement, privilege or power recognised and protected by the law. The holder of that right is allowed to have or enjoy that right by virtue of some underlying legal framework. In the case of Tapatapa v Rydale Ridge Park (Private) Limited1, an authority cited by Mr Mutero, the point was made that a declaratur is not invoked to resolve factual disputes, but rights which may arise from a contractual setting. It is in the context of the above legal position that the nature and essence of the applicants’ claims must be interrogated. The first applicant’s complaint arose from his unlawful removal as a director of the third respondent by the first respondent. He challenges the resolution that led to his removal as director in the third respondent on the basis that it was illegal as it was not sanctioned by a duly convened meeting of the third respondent’s shareholder. As already observed, the fourth respondent is the third respondent’s shareholder. In response to the first applicant’s allegations that he was unlawfully removed from his position as director of the third respondent, the first respondent claimed that the first applicant abrogated his directorship through an email that he sent to the first respondent. That email was attached as Annexure C to the first respondent’s opposing affidavit. It was also averred that the first applicant never attended any directors’ meeting of the third respondent. The email of 1 August 2021 which was addressed to the first respondent by the first applicant in which the first applicant is alleged to have resigned as director of the third respondent reads as follows: “Good day Thank you for the invitation to participate in the projects meeting on Monday 02 August 2021. I request that I be excused from the meeting until my contractual position with the company is clarified. Kindest Regards Gilbert Marebe” There is nothing in that email that suggests to me that the first applicant resigned from his position as director of the third respondent. The first applicant requested to be excused from the projects meeting to which he had been invited. It was not disputed by the respondents that the applicant was a director of the third respondent. It was also not disputed that the first applicant was no longer a director of the third respondent. The parties only differed on the way the first applicant ceased to be a director of the third respondent. The first applicant claimed that he was unlawfully removed, while the first respondent claimed that he abrogated his directorship through the above email. From the foregoing, there exists a dispute concerning the alleged cessation of the first applicant’s directorship in the third respondent. Nowhere in the communication was it alleged that the first applicant was an employee of the third respondent. The status of the first applicant as an employee of the third respondent or any other entity is not of concern in these proceedings. As already noted, the first respondent did not dispute that the first applicant was appointed a director of the third respondent on 1 March 2021. It is therefore clear that the first applicant has a legitimate interest and a right to challenge the lawfulness of his removal from his position as a director of the third respondent by the first respondent if he contends that he did not resign from that position. In the court’s view, the lawfulness of the first applicant’s removal from his position as director of the third respondent is not a question of fact, but one of law. It speaks to the third respondent’s constitutive documents as read together with the COBE. The same reasoning applies to the second applicant’s claim herein. It was not disputed that the second applicant was the fourth respondent’s sole shareholder. The fourth respondent was in turn the third respondent’s shareholder. The second applicant seeks the nullification of the of the first and second respondents’ appointments as directors of the fourth respondent. The declaratur sought seeks to engage the lawfulness of the appointments of the two respondents as directors of the fourth respondent, which the second applicant as the sole shareholder of the fourth respondent disputed. The declaratur sought clearly speaks to the legality of the appointment of the two respondents to the directorship of the fourth respondent. It is not a factual question but a legal one. The court determines that there is no merit in the second preliminary point, and it stands to be dismissed. That the application does not state the law in terms of which it was made The third preliminary point was that the application did not state the rule in terms of which it was launched. There was therefore no application before the court. The court was referred to the case of Minister of Mines and Mining Development & Anor v Fidelity Printers & Refiners (Private) Limited & Ano2, in which an application for condonation for the late filing of an application for leave to appeal conjoined with the application for leave to appeal, was struck of the roll for having been made in terms of the wrong provision of the Constitutional Court rules. In reply, counsel for the applicant submitted that the present application referred to s 14 of the High Court Act as the provision in terms of which it was made. It was different from an applicant who just approached the court without stating the basis of their approach. The objection is clearly without merit because the Notice of Application made it clear that it was one for a declaratur in terms of s 14 of the High Court Act. Para 8 of the first applicant’s founding affidavit also made it clear that the application was premised on s 14 of the High Court Act as read together with the applicable common law principles. Similarly, para 8 of the second applicant’s founding affidavit made it clear that the application was being made in terms of s 14 of the High Court Act. The remedy of a declaratur is provided for in s 14 of the High Court Act. There is no concomitant provision in the High Court rules, save to observe that such an application must comply with r 59 of the said rules. I find nothing irregular with the way the application was formulated and placed before the court. The case of Minister of Mines and Mining Development & Anor v Fidelity Printers & Refiners (Private) Limited & Ano cited by the respondents’ counsel is distinguishable in that it was concerned with an application that cited the wrong provision of the Constitutional Court rules. This was not the case herein. The preliminary point is devoid of merit and must be dismissed. THE MERITS At the conclusion of the oral submissions on the preliminaries, counsels agreed to abide by their papers concerning the merits of the matter. This was rightly so because in addressing the court on the preliminaries, counsels inevitably strayed into the merits of the matter considering the very nature of the preliminary points that arose for determination. In their heads of argument, the parties agreed that the primary issue for determination centred on whether the first applicant resigned from his position as director of the third respondent. The first respondent averred that the first applicant resigned from his position as director through an email attached to her opposing affidavit as annexure C. I have already alluded to that email of 1 August 2021 in the disposal of the second preliminary point. In his answering affidavit, the first applicant submitted that the email pertained to meetings involving Gombe Holdings (Private) Limited in which the first respondent was employed as the Group Chief Executive Officer, while the first applicant was the General Manager. To confirm this position, the first applicant attached to his answering affidavits correspondence confirming his employment by Gombe Holdings. In my disposal of the second preliminary point, I concluded that the email of 1 August 2021 did not mention the first applicant’s resignation from the third respondent. The email did not even refer to the third respondent by name. The argument that the first applicant abrogated his directorship in the third respondent and communicated this position through the said email is clearly without merit. The second applicant’s claim is clearly unassailable and apart from the preliminary points, no attempt was made to deal with the claim in the respondents’ heads of argument. The second applicant’s claim was simple. It was the fourth respondent’s sole shareholder. The fourth respondent was the third respondent’s shareholder. The deponent to the second applicant’s founding affidavit was also a director of the second applicant. These averments were not disputed by the respondents. Being the sole shareholder in the fourth respondent, the second applicant disowned the first and second respondents to be directors of the fourth respondents. If the second applicant disowned the first and second respondents, then under whose authority were they elevated to the positions of directors in the fourth respondent? This is the question that the first and second respondents failed to deal with satisfactorily in their papers. Having considered the documentary evidence and the submissions by counsel, the court was satisfied that the respondents did not sufficiently refute the claims made by the applicants that they conducted themselves unlawfully in removing the first applicant as a director of the third respondent and conducting themselves in the manner complained about by the applicants. COSTS OF SUIT The court was urged to grant the application with costs on the punitive scale because of the reprehensible way in which the respondents conducted themselves. The matter raised some important legal questions and for that reason I find it more appropriate to order that costs be borne by the respondents on the ordinary scale. Resultantly it is ordered that: The application is hereby granted. It is hereby declared that Ropafadzo Sibusiso Chidawu is not a director of Buoyancy Investments (Private) Limited. It is hereby declared that Thamusanga Gideon Nhamoinesu is not a director of Buoyancy Investments (Private) Limited. It is hereby declared that Thamusanga Gideon Nhamoinesu is not a director of Bitumen Construction Services (Private) Limited. It is hereby declared that all documents, instruments, forms, processes, proceedings or other deeds by whatever name called, which were filed or drafted or signed by Ropafadzo Sibusiso Chidawu or Gideon Thamusanga Nhamoinesu or their agents, assignees or representatives by whatever name called on behalf of or in respect of Buoyancy Investments (Private) Limited, are illegal, invalid and of no force or effect. It is hereby declared that all documents, instruments, forms, processes, proceedings or other deeds by whatever name called, which were filed or drafted or signed by Ropafadzo Sibusiso Chidawu or Gideon Thamusanga Nhamoinesu or their agents, assignees or representatives by whatever name called on behalf of or in respect of Bitumen Construction Services (Private) Limited, are illegal, invalid and of no force or effect. It is hereby further declared that Gilbert Marebe and Ropafadzo Sibusiso Chidawu are the only duly appointed directors of Bitumen Construction Services (Private) Limited until both or one of them shall resign or are otherwise removed according to law in which case that person shall cease to be a director. It is hereby further declared that Fanuel Murungani is the only company secretary for Bitumen Construction Services (Private) Limited. The first and second respondents shall bear the applicants’ costs of suit on the ordinary scale. MUSITHU J……………………………………………………………………………………………………………………………… Hogwe Nyengedza, legal practitioners for the applicants Lunga Mazikana Attorneys, legal practitioners for the 1st -4th respondents 1 HH 486/21 at p 4 1 HH 486/21 at p 4 2 CCZ 9/ 22 2 CCZ 9/ 22