DISTRIBUTED BY VERITAS TRUST Tel: [263] [4] 794478 Fax & Messages [263] [4] 793592 E-mail: veritas@mango.zw Veritas makes every effort to ensure the provision of reliable information, but cannot take legal responsibility for information supplied. Judgment No. SC 34/18|9 Civil Appeal No. SC 165/16 I will consider and determine the first issue. Whether or not derivative action was available to the First Respondent. Mr Uriri for the first appellant challenged the first respondent’s right to institute the application in the court a quo on behalf of the second respondent, a company which in terms of the law is entitled to enforce its own rights. Mr Tsivama for the second, third, and fourth appellants agreed with Mr Uriri’s submissions. It was argued for the appellants that the first respondent did not have the right to institute action on behalf of the second respondent without evidence that the second respondent was unable to institute the proceedings to protect its interests. On the other hand Mr Mpofu for the first respondent argued that its right to institute the application arose from derivative action since the second respondent was not able to act on its own behalf. The issue is therefore on when a shareholder of a company can institute proceedings on behalf of a company. It is a trite principle of company law that a company should itself enforce its rights when it is wronged. This was considered as the rule in Foss v Harbottle [1843] 2 Hare 461, 67 ER 189. The rule in Foss v Harbottle is that, the proper plaintiff in an action in respect of a wrong alleged to be done against a company is prima facie the company itself. Thus as a general rule, where the company is wronged, the proper plaintiff to institute an action to remedy the wrong is the company itself. No other person has the right to institute an