HARARE – The Supreme Court has ordered Forever African (Private) Limited, operator of the Iganyana Tented Camp in Hwange, to pay a United States-registered creditor US$418,950.69, overturning a High Court ruling that had let the company hide behind a related company it used to a acquire the debt.
In a judgement delivered on September 24 following an appeal heard in July, Justice Nicholas Mathonsi with Justices Alfas Chitakunye and Samuel Kudya concurring, found that Forever African and a Mauritius-registered company called Safari Connect Limited had acted “as a tug team, not only to transfer liability to one another but also to transfer funds between themselves while not servicing a debt,” leaving them “tied hand and foot to each other, which has consequences in law.”
The dispute traces back to April 2018, when Forever African borrowed US$515,000 from Vantage Travel Services Inc, a company registered in Delaware in the United States, to build and operate the Iganyana camp.
“The money was used exclusively for the benefit of Forever African which, after successfully completing the construction of the camp, commenced operating a safari business for a profit,” the judgement records.
A year later, in April 2019, a deed of novation and assignment restructured the arrangement: Forever African transferred its obligation to repay the loan to Safari Connect, a company set up to act as an international booking agent for the camp, while Vantage assigned its rights as lender to HRL Safari LLC Limited.
Rather than repay the debt, the judgement says, “certain gymnastics were resorted to” – a “tricky and strange novation and assignment agreement” whose “purpose… does not become apparent upon reading it and it certainly does not commend itself as an ordinary business transaction.”
That was because the deed was signed by a husband and wife on opposite sides of the transaction.
“Terry Anders, who is the husband of Sheona Anders, executed the agreement on behalf of Forever African transferring its liability to Safari Connect. At the same time, Sheona Anders executed the agreement on behalf of Safari Connect with her husband witnessing the occasion of his wife taking over a huge debt owed by the respondent,” Mathonsi JA wrote, calling it “a classic case of the husband offloading liability onto the wife (Safari Connect).”
Sheona Anders, the judgement notes, was a director of both companies.
Safari Connect defaulted, and in February 2025 HRL Safari obtained a consent arbitral award against it for the outstanding US$418,950.69 plus interest. Safari Connect was by then insolvent, leaving HRL Safari unable to recover anything from it.
HRL Safari then sued Forever African directly, arguing the two companies were in substance a single economic entity and that the corporate veil separating them should be lifted.
The High Court’s Commercial Division dismissed the claim in February, finding that Forever African did not own all of Safari Connect’s shares – those were held by an entity called BTG Management Services – and so could not be treated as its parent.
“I have not been given any cogent reason by HRL Safari to find that Forever African is Safari Connect’s parent company,” the High Court judge held. “I therefore find no basis to conclude that the defendant controlled every movement of Safari Connect and that the two entities were bound hand and foot.”
The Supreme Court held that approach was too narrow. Tracing the separate legal personality principle to the House of Lords’ 1897 ruling in Salomon v A Salomon & Co Ltd, Justice Mathonsi held that the exceptions allowing a court to lift the veil are “not confined to situations of total control of one entity by another or where one company owns 100 percent shareholding in a subsidiary company,” and extend to cases “where there is clear evidence that one entity is being used for the benefit of the other to such an extent that, realistically, the two are indivisible.”
The court found the arrangement did not end with the novation. After absorbing Forever African’s debt for no apparent consideration, Safari Connect went on to advance an interest-free, unsecured loan of roughly half a million US dollars back to Forever African, shortly before consenting to judgement in HRL Safari’s favour and collapsing into insolvency.
“It is not apparent from the papers, and indeed from submissions made, why a company assuming liability on behalf of another in such huge amounts would, also be advancing an interest-free loan to the same company whose liability it had assumed,” Justice Mathonsi observed. “Something simply does not add up.”
He was equally unimpressed by a memorandum of understanding the High Court had relied on to find Safari Connect received something in return for taking on the debt, describing it as “in essence an agreement to agree at a future date” that “does not show any rights attached to it.”
“There is merit in the appeal. It ought to succeed,” the judgement concludes.
The Supreme Court set aside the High Court’s dismissal of the claim and substituted an order directing Forever African to pay HRL Safari US$418,950.69, plus interest at 2 percent above the base rate applied by Barclays Bank Plc – currently about US$80.35 a day – running from July 1, 2024, until payment in full, along with the costs of both the appeal and the original suit.
Advocate Thabani Mpofu, instructed by Scanlen & Holderness, appeared for HRL Safari. Advocate Daniel Tivadar, instructed by Webb, Low & Barry, appeared for Forever African.
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