Zimbabwe: ‘Sluggard’ Cuthbert Dube Loses Psmas Shareholding Battle

Former Premier Service Medical Aid Society (PSMAS) group chief executive Cuthbert Dube’s efforts hold on to the company’s shareholding hit a snag after the High Court threw out his application Thursday before hitting out at him, describing him as a lazy sluggish person.

Dube, who was also slapped with costs for the suit, initiated court proceedings against PSMAS following a shareholding dispute between the two parties.

In March 2018, as a disputed PSMAS shareholder, Dube filed an application for a declaratory order against his former employer challenging the company’s shareholding structure.

PSMAS responded and filed a notice of opposition in April 2018. However, Dube did not file any further responses thereafter.

On December 4, 2018, having noticed Dube’s inaction, PSMAS filed a chamber application seeking dismissal of the main application for lack of prosecution.

However, Dube filed a notice of opposition the same date, and the matter was set down for hearing in March 2019.

PSMAS also withdrew its responses on the understanding Dube would file outstanding pleadings in the main application within a fortnight.

However, when he failed to comply with the undertaking, the applicants filed the present application four months after the withdrawal of the matter. By then it was 15 months after the opposing papers had been filed.

PSMAS then filed a fresh application which has been upheld by the High Court this week.

In application, Dube had challenged the relief sought by PSMAS for dismissal of prosecution on the basis he failed to file a response because he was ill and could not instruct his legal practitioners.

He also bemoaned the undesirability of disposing the matter on a technicality because the main case related to property rights, and argued it should be disposed of on the merits.

However, High Court judge, Justice Philda Muzofa, in her ruling said a company is a fictional person created by the law and can only speak through the collective voice of its board.

She said even where two entities litigate, there must be two resolutions authorising the individual to represent the companies.

Dube had argued that the signatures of the company secretaries were nameless, but court ruled that this was verified in the answering affidavits by the applicants.

“The notion that applicant should have set the matter down instead of this application is ill-advised. The respondent’s main point in opposing the application is that he was ill, and he could not instruct counsel,” she said.

“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 disposition in the affidavit.”

According to judge’s ruling, Dube did not take the court into his evidence to at least attach a doctor’s affidavit or anyone who could confirm his position.

“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.

“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 Dube’s argument and affidavit was clearly done to defeat his application.

“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 HC2821/18 is dismissed for want of prosecution. The costs of this application and costs in the case shall be paid by Dube.”

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