8 Zimbabwe independent BUSINESS DIGEST September 15 to 21, 2023

NEW HORIZON

Kudakwashe Kambo
& Pamela Mafongoya
Locus standi: The right, ability
Lawyers
and capacity of a trust at law
IN this article, which forms part of a
series of articles on the law on family the name of the trust or in their official
trusts in Zimbabwe, we are discussing names as trustees, should not detract an-
yone from the legal position that a trust
the right, ability and capacity of a should be represented by its trustees in
trust to bring and or defend any court whom the trust’s assets and liabilities
proceedings in Zimbabwe. vest.

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 par-
ty’s locus standi involves a consideration of
two distinct legal concepts.
Firstly, the process involves an exami-
nation 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 capac-
ity to sue or be sued.
At common law, a prospective litigant
must have both these attributes of locus stan-
di when commencing court proceedings.
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 pre-
vious article titled Unpacking the Law on Fam-
ily 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 lo-
cus standi. It follows that a trust cannot sue
and be sued in its own name unless locus
Law on family trusts ... A trust has no locus standi to sue or be sued in its own name.
These rules modified trust law to per-
mit and create locus standi for a trust inde-
pendent 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 Mis-
check Tapomwa and Ors, Dube J opined
that “what is provided for in the rules is
contrary to accepted legal principles gov-
erning the law on locus standi. The rules cre-
ate an absurdity in the law which our courts
have no choice, but to embrace”.
Conclusion
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 trus-
tees. 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 forego-
ing 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
• 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 reso-
lutions will constitute evidence that the
person is duly authorised to act on behalf
of the trust. The purpose of such a resolu-
tion 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 Mali-
langwe 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 affida-
vit 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 represent-
ative of a company should do.
Disclaimer: This article represents the
views of the authors only and does not in-
tend 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 consult-
ant, managing consultant of Zawale Consultants
(Pvt) Ltd, past president of the Zimbabwe Eco-
nomics Society and past president of the
Chartered Governance & Accountancy Institute
in Zimbabwe (CGI Zimbabwe). — kadenge.zes@
gmail.com or +263 772 382 852.

standi or juristic personality is conferred

upon it by an Act of Parliament.
What this means is that it should be rep-
resented 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 proceed-
ings 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 representa-
tive 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 offi-
cial 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 Zim-
babwe 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 simi-
lar 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.