IN this article, which forms part of a series of articles on the law on family trusts in Zimbabwe, we are discussing the right, ability and capacity of a trust to bring and or defend any court proceedings in Zimbabwe.
It is settled law that in order to be a party to any court case (litigant), a person must have locus standi in judicio.
Locus standi refers to one’s right, ability or capacity to bring legal proceedings in a court of law. One must justify such right by showing that he or she has a direct and substantial interest in the outcome of the case. Such an interest must be a legal one, which could be prejudicially affected by the judgment of the court. See Makarudze & Anor v Bungu & Ors 2015 (1) ZLR 15 (H).
Capacity, direct and interest
Our law is settled that an analysis of a party’s locus standi involves a consideration of two distinct legal concepts.
Firstly, the process involves an examination of whether the litigating party has a sufficient interest in the right, which is the subject matter of the court case.
Secondly, it involves an examination of whether the litigating party has the capacity to sue or be sued.
At common law, a prospective litigant must have both these attributes of locus standi when commencing court proceedings.
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As stated by Devenish: “This requires that a litigant should both be endowed with the necessary capacity to sue and have a legally recognised interest in the relevant action to seek relief.”
The common law position
Considering the foregoing, since a trust has no legal personality as indicated in our previous article titled Unpacking the Law on Family Trusts in Zimbabwe, it follows that it does not have the capacity to sue or be sued in its own name.
In other words, the common law does not allow a trust to be cited in its name in any court case. In this regard, the common law does not recognise a Trust as having locus standi. It follows that a trust cannot sue and be sued in its own name unless locus standi or juristic personality is conferred upon it by an Act of Parliament.
What this means is that it should be represented by its trustees in whom the trust’s assets and liabilities vest when it sues or is being sued. These remarks accentuate the requirement for trustees to bring proceedings and to be joined in actions where a trust sues or is being sued.
This also entails that the trustees must be cited in court cases in their representative capacity ie, nominee officio, for example, Gara Moyo N.O. (In his capacity as a trustee of the Gara Moyo Family Trust.)
Actions relating to trust affairs must be brought by the trustee in his or her official capacity as such and not in his or her private capacity. Further, all the trustees should join in bringing the case.
In other words, the names of the trustees must be mentioned. See Veritas v The Zimbabwe Electoral Commission (Zec) And Ors HH-353-18.
The position in the high court rules
However, trusts have been incorporated into the Rules of the High Court. In 1997, an amendment was made as Order 2A to the repealed High Court Rules, 1971 through Statutory Instrument 192 of 1997 and similar provisions found their way into the High Court Rules, 2021 under Rule 11.
The amendment equates an “associate” with a “trustee”. A trust was included in the definition of an association of persons. An “associate” may either be a natural or a juristic person like a company.
A trustee on the other hand is a natural person. The rules provide that a firm or an association may sue and be sued in its name. This means that a trustee can now sue and be sued in the name of the trust. These rules also clothe a trust with the power to sue and be sued in its own name.
These rules modified trust law to permit and create locus standi for a trust independent from its trustees. This position has been endorsed in Veritas v Zec and Ors case and confirmed by the Supreme Court in Sharadkumah Patel & Anor v The Cosmo Trust & Ors SC 165-21.
In Musemwa and Ors v Estate Late Mischeck Tapomwa and Ors, Dube J opined that “what is provided for in the rules is contrary to accepted legal principles governing the law on locus standi. The rules create an absurdity in the law which our courts have no choice, but to embrace”.
In conclusion, we noted that a trust has no locus standi to sue or be sued in its own name in terms of the common law since it has no legal personality. What this means is that it should be represented by its trustees in whom the trust’s assets and liabilities vest.
However, the rules of the High Court had modified trust law to permit and create locus standi for a trust independent from its trustees. What is provided for in these rules is an absurdity in the law, which is contrary to accepted legal principles governing the law on locus standi and the Superior Courts have since been forced to embrace it.
Be that as it may, arising from the foregoing discussion is the following current legal position:
A trust not being a legal persona, can only sue or be sued in its own name in terms of Rule 11 of the High Court Rules, 2021 which clothes it with locus standi, or it can sue or be sued in the official names of the trustees per the common law.
Whether the trustees choose to sue in the name of the trust or in their official names as trustees, should not detract anyone from the legal position that a trust should be represented by its trustees in whom the trust’s assets and liabilities vest.
Where the trustees choose one of them to sue on their behalf in the name of the trust, they should pass a resolution in terms of the Deed of Trust, which resolutions will constitute evidence that the person is duly authorised to act on behalf of the trust. The purpose of such a resolution is to indicate that the trustees have expressly appointed a deponent to the affidavit to represent and protect their interests.
An affidavit of a trust suing in its name must be deposed to by an authorized trustee and not by an employee of the trustee/s and not in the trade name of the trust to satisfy the requirement that it is the “trust” that is before the court. The affidavits of an application of such a trust must be deposed to by a trustee to render the application valid. See In Re the Malilangwe Trust SC 13-22.
An affidavit deposed to by a person who is not a trustee purportedly on behalf of a trust renders the entire application a nullity.
The trustee who deposes to an affidavit on behalf of the other trustees must speak to the authority to represent them. He or she should attach a resolution of trustees in the same manner a representative of a company should do.
Disclaimer: This article represents the views of the authors only and does not intend to give any kind of legal opinion on any matter.
Kambo and Mafongoya are legal practitioners. These weekly New Horizon articles, published in the Zimbabwe Independent, are co-ordinated by Lovemore Kadenge, an independent consultant, managing consultant of Zawale Consultants (Pvt) Ltd, past president of the Zimbabwe Economics Society and past president of the Chartered Governance & Accountancy Institute in Zimbabwe (CGI Zimbabwe). — [email protected] or +263 772 382 852.