PSMAS’ Dube application granted
HIGH Court Judge Justice Philda Muzofa has concluded that a company is a fictional person created by the law and can only sue through a collective board resolution.
She said this in connection with a matter involving former Premier Service Medical Aid Society (PSMAS) Group Chief Executive Officer, Cuthbert Dube and the company after a long standing shareholding dispute ensued.
Dube had in March 2018, filed an application for a declaratory order against Premier Service Medical Investment (Pvt) LTD and PSMAS under HC 2821/18 where he argued that Jeremiah Bvirindi who swore to an affidavit on behalf of both companies as PSMAS chairperson, was not authorised by both parties to represent them in the matter.
He argued that in terms of corporate law a board of directors cannot authorise a shareholder to represent its views claiming that was not the case even during his tenure at the company.
However, Premier Service Medical Investment and PSMAS went further to file an application for dismissal of prosecution of Dube’s matter accusing him of not providing the court with the outstanding pleadings to substantiate his claim.
Dube in his defence challenged the relief sought by his former employers on the basis that he was ill and could not instruct his legal practitioners to provide the court with evidence.
However, Justice Muzofa ruled that; “The notion that PSMAS should have set the matter down instead of this application is ill advised. Dube’s main point in opposing the application is that he was ill, and he could not instruct counsel.
“I find the explanation bare and unsubstantiated. The opposing affidavit is evidence of the casual approach in Dube’s manner of dealing with his case. No further information was given in the affidavit,” ruled the judge.
According to the ruling, Dube did not take the court into his evidence to at least attach a doctor’s report on his condition therefore his former employers were justified to have the matter disposed of since he failed to file the required papers within a month before an application for dismissal was filed.
“An olive branch was extended to Dube but he did not fully embrace it. Dube wants a second bite of cherry to the applicant’s prejudice. It is trite that a litigant who leaves his affairs to chance and is not diligent has himself to blame because the law assists the diligent and not the sluggard.
“I find no excusable explanation. The fact of the illness was not confirmed by independent evidence. The respondent chose not to give the court adequate information.
“If indeed he was ill disposed there was no communication with the other party, he just kept the matter lying dormant, so it was within the applicant’s rights to file this application,” reads the judgment.
Justice Muzofa further ruled that: “In principle it is best that the real dispute between the parties be resolved.
“However, where a party drags the matter unnecessarily, the court rules have allowed the disposal of a matter on a technicality. In this case, Dube is his own worst enemy, he has literally stood in the way of the disposal of the matter on the merits.”
Muzofa said the filing of arguments and answering affidavit by Dube was clearly done to defeat the present application for dismissal of want of prosecution.
“In my view in such an application, the court must consider the pleadings up to the date of filing of the application for dismissal.
“Any pleadings filed thereafter are unnecessary in the determination of the application for dismissal. As already stated, I find no plausible explanation for the inaction.
“The application must be granted. The law protects the diligent not the sluggard.
“Accordingly, the application is granted. The matter under ahc2821/18 is dismissed for want of prosecution. The costs of this application and costs in the case shall be paid by Dube.”