THREE companies which sought to be included in the estate of General Solomon Mujuru have successfully applied to be joined in the case, after the High Court ruled that they have a real and substantial interest in the matter.
The former commander died in August 2011 in an inferno at
his farm in Beatrice, leaving behind an empire ranging from real estate,
pharmaceutical, farming, to diamond mining
sparking a legal confrontation battle between his widow Dr Joice Mujuru
and some of the intended beneficiaries.
The ruling comes after one of the daughters Maidei Mujuru
sought an order under case Number HC2370/20, declaring that the immovable
properties, Kalmic Investments, Athienitis Properties and Rylance Farms were
part of the estate on the grounds that they were the national hero’s alter
egos.
Alter-ego refers to a legal principle preventing
shareholders being treated as the owners of companies to prevent fraudulent
activities.
The court applies alter-ego rule to ignore the corporate
status of a group of stockholders, officers and directors of a corporation with
respect to their limited liability. Under the alter-ego rule, a corporate veil
of an individual is lifted and makes him or her personally liable for his/her
unjustifiable activities.
In this case, the executor of the estate Mr Stern Mufara
opposed the application for joinder by Kalmic Investments, Athienitis
Properties and Rylance Farms, arguing that the persons purporting to represent
the three companies had no right or capacity to do so. He argued that there was
no CR14 appointing them as directors or shareholders of the companies attached
to the founding affidavit.
It was argued that the decision of the Master of the High
Court, which is in existence, that the three purported representatives of the
companies in question failed to support their allegations that they were
directors of the companies.
But in her ruling Justice Jester Charewa found that there
was no legal requirement that in instituting proceedings a company should attach
CR14 to its founding documents to prove that its representatives were duly
authorised.
She said what was indispensable was a resolution by the
company that it has resolved to institute or defend legal proceedings and
identifying the person that has been tasked with being the mouth-piece.
The court also noted that it was not in dispute that the
three companies were the registered and beneficial owners of the properties
sought to be included in the estate.
In her ruling, Justice Charewa took into account the
agreement on the business partnership between the deceased and businessman Mr
James Makamba for the Thurlow Group of Companies.
“It follows that as registered and beneficial owners of the
properties which are sought to be included in the deceased’s estate, applicants
have real and substantial interests which, if they are able to show that they
are not deceased’s alter egos, they are entitled to protect,” said Justice
Charewa, finding that the applicants had proved on a balance of probabilities
that they were entitled to the relief they prayed for.
“And to enable them to protect such interest, they must be
joined to the proceedings seeking to include the properties in the deceased’s
estate.”
After the dissolution of their partnership, Gen Mujuru and
Mr Makamba entered into an agreement wherein they shared between themselves
certain immovable properties registered in the companies under Thurlow Group.
To give effect to
the agreement on the division of the immovable property, the business partners
agreed to sign share transfer forms for the respective companies, as well as
resignation letters as directors, secretaries and public officers for the
respective companies which owned the properties allocated to each other.
By virtue of that agreement, the properties registered
under Kalmic, Athienitis Properties and Rylance Farms were allocated to Gen
Mujuru.
Mr Makamba surrendered his shareholding and resigned his
directorship and public office positions in the three companies. Herald
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