Consensus Ad Idem re: Inducements to Contract and the Doctrine of Consideration

HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

In Frazer NO v Ruwisi 1990 (2) ZLR 99 (SC)…, KORSAH JA said: “In Balzun v O'Hara Ors 1964 (3) SA 1 (T) at p4, Colman J quoted, with approval, the following words from the judgment of Lord Greene MR in Wragg v Lovett [1948] 2 All ER 968 (CA) at p969G: '…, we must not be understood as suggesting that when a ...

In Frazer NO v Ruwisi 1990 (2) ZLR 99 (SC)…, KORSAH JA said:

“In Balzun v O'Hara & Ors 1964 (3) SA 1 (T) at p4, Colman J quoted, with approval, the following words from the judgment of Lord Greene MR in Wragg v Lovett [1948] 2 All ER 968 (CA) at p969G:

'…, we must not be understood as suggesting that when a vendor merely authorises a house agent to 'sell' at a stated price he must be taken to be authorising the agent to do more than agree with an intending purchaser the essential (and, generally, the most essential) term, ie the price. The making of a contract is no part of an estate agent's business, and, although, on the facts of an individual case, the person who employs him may authorise him to make a contract, such an authorization is not lightly to be inferred from vague or ambiguous language.'

Relying on the above quoted words of Lord Greene MR, QUENET JP held, in Guest and Tanner (Pvt) Ltd v Lynch 1964 RLR 252 (A)…, that:

'.., the words 'go ahead and prepare the agreements to clinch the sale' are susceptible of the meaning, 'prepare the agreement so that a sale can be concluded', and do not necessarily, mean 'prepare the agreements and you conclude the sale'.

And CHRISTIE, in his book Business Law in Zimbabwe…, observes that:

'…, the presumption that the ordinary relationship (between an estate agent and his principal) is intended is so strong that instructions to 'sell' or to 'go ahead and prepare the agreements to clinch the sale' will not be interpreted as authorizing an estate agent to conclude the sale.'

It seems to me that the mere acceptance of a deposit by an estate agent, without more is not unequivocal evidence of a mandate to conclude a contract on behalf of his principal. It is susceptible to the inference that if the deposit and the proposed terms of the payment of the balance of the purchase price meet with the approval of his principal, then the seller and purchaser may conclude an agreement of sale. The doctrine of consideration has no place in the law of Zimbabwe, and I do not see that the only inference to be drawn from the acceptance of a deposit by an estate agent, without more, is that he has a mandate to conclude an agreement on behalf of his principal.…,.

I think this issue of a receipt of a deposit from a buyer was succinctly dealt with by WATERMEYER J in Earlie Homes Estates v Miller 1977 (4) SA 288 (C)…, where the learned judge said:

'In my view, the estate agent, unless he is the agent of the seller to receive the purchase price which, in the absence of express or implied authority, he is not (see Tank v Jacobs 1 SC 289; Wessels v De Villiers, 1 G 141 (1885 OFS 141); Field & Co v Marks & Co Ltd 12 EDC 13; Roberts v Bryer Bros 1931 OPD 197; Burt v Claude Cousins & Co Ltd [1971] 2 All ER 611 at pp615-618; and Sorrel v Finch [1976] 2 All ER 371) must hold the deposit for the would-be purchaser. Until such time as the contract of sale is completed the would-be purchaser can call upon the estate agent to return the money, but if the contract of sale is completed then the estate agent is bound to deal with the deposit in terms of the contract of sale.'

It seems clear from the authorities that, where an estate agent, before any binding contract is made, asks for and receives a deposit, giving the receipt in his own name without more, he does not receive as an agent for the vendor; for it that were so the estate agent would be under duty to pay the deposit to the vendor forthwith. Since, however, he can only pay it to the vendor against transfer of the property or return it to the purchaser if the contract is not concluded, he holds the deposit in trust for both to await the event. He is nothing more than a 'stakeholder' and not a mandated agent of the vendor.”…,..

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

This is an exception by the defendant to the plaintiff's summons and declaration, as amplified by further particulars, on the grounds that the plaintiff's claim does not disclose a cause of action.

The defendant further avers that the claim is bad in law.

The background to this case is that the plaintiff had sued for damages in the Magistrates' Court in an action he had stated as “trespass on person-battery”. As no appearance to defend was entered, he sought default judgement. The magistrate threw out his application, and, in doing so, stated that the plaintiff had sued for “trespass on land”.

The plaintiff appealed against the decision and the appeal is pending in this court.

Arising out of those circumstances, the plaintiff has, in this matter, instituted an action for damages against the defendant, being Secretary–Judicial Service Commission.

The plaintiff relies on vicarious liability, and is suing the defendant in a representative capacity as the employer of the magistrate who dismissed his case.

The action is defended.

The plaintiff's claim is couched as follows:

“The failure or omission to read accurately all the plaintiff's documents filed of record at court by the plaintiff in this matter, that has a cause of action of 'Trespass to the person-battery' which the magistrate read as 'Trespass to land'…, inexplicably.”

The plaintiff further states that he is suing the defendant in contract and delict in her representative capacity.

The defendant requested for further particulars; upon being furnished with same, the defendant raised an exception to the plaintiff's summons.

The exception is premised on the following grounds:

(i) The summons do not reveal a cause of action for its claim against the defendant thus does not comply with the peremptory provisions of Order 3 Rule 11(c) of this court's rules which specifically provides that a summons shall contain “a true concise statement of the nature, extent, and grounds of the cause of action and of relief or remedies sought in the action.”

(ii) The summons are vague and embarrassing in that it is not clear whether the plaintiff's claim is in contract or in delict. The plaintiff has not averred any of the elements required to succeed in a claim either in delict or contract.

(iii) There is no action known as “professional negligence for mental suffering” which further points to the fact that the claim is vague and embarrassing.

The defendant sought dismissal of the plaintiff's claim with costs at a higher scale.

After service of the exception on the plaintiff, he filed a document headed “Notice of Amendment” in which he sought to amend the claim indicating that at the hearing he was to apply to amend the summons.

No such application was made on the day of the hearing.

Suffice to say, the notice of amendment would not have changed the state of papers as nothing materially changed apart from creating further confusion.

Before the hearing, the plaintiff raised issue that the defendant had not filed her heads of argument on time since they were filed after the plaintiff had filed a response to the exception and filed a notice to amend summons, hence, the defendant was barred.

The defendant's counsel disputed that assertion insisting there was no bar in operation against the defendant.

The court found no merit in the plaintiff's assertion.

Clearly, the defendant filed heads of argument on 2 November 2015 and served same on plaintiff; the plaintiff filed his on the 12th November 2015, hence, there is no issue of delay in that aspect and no bar operated against the defendant.

The court proceeded to hear the matter on the merits.

Counsel for the defendant argued that the plaintiff's summons did not satisfy the mandatory requirements set out in Rule 11(c) of the High Court Rules; that omission rendered them a nullity. She referred the court to the case of Bank of Credit & Commerce Zimbabwe Ltd v Jani Investments (Private) Limited 1983 (2) ZLR 317 (H)…, where, faced with similarly defective summons, the court remarked:

“It will be immediately realised, of course, by someone who runs very quickly as he reads, that the summons is wholly invalid since it discloses no cause of action whatever. Any exception to such summons can only succeed instantly and completely.”

She further argued that the summons was vague and embarrassing as it did not disclose whether the claim was based in delict or contract law.

In response, the plaintiff maintained that a reading of the summons and declaration, which documents were complimentary, made issues clear. Further, he had filed a notice of amendment.

The heads of argument filed by the plaintiff were not helpful as they contained a lot of historical evidence and did not further his case.

I agree with the submissions made by the defence counsel regarding the non-compliance and the inadequacy of the summons and declaration.

A reading of the summons, declaration, and further particulars, clearly reveals that these documents contain long winding explanations duly tainted with allegations of bribery, corruption, and political interference against different court officials.

There is no true and concise statement of the nature, extent, and grounds of the cause of action.

Facts and evidence are all mixed up and one gets to pains as to determine the facts upon which, at law, one can rely on to sustain a claim.

In ODGERS Principles of Pleading and Practice in Civil Actions in the High Court of Justice, 2nd Ed…, it is stated as follows;

“The object of pleadings is to ascertain, definitely, what is the question at issue between the parties and this object can only be attained when each party states his case with precision.”

It is this precision that, in my view, Rule 11(c) of this court's rules advocates for.

The reason behind Rule 11(c) is to ensure that a summons be a document that clearly and concisely sets out the facts that the plaintiff relies on which establish a cause at law for which specific relief can be sought. Compliance with the requirement would create or bring out a case to which the defendant is able to answer. It must be clear, to the defendant, what it is he is alleged to have done giving rise to the plaintiff, at law, to claim the relief sought.

Rule 99(c) of the High Court Rules, although not referred to by the defendant, comes to play. It states that;

“A pleading shall -

(c) Contain a statement, in summary form, of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.”

There has to be a summary of allegations of fact which, in law, give rise to a claim or justify the relief sought.

In casu, facts in the summons and declaration are so mixed up so as to cloud the case to which the defendant has to answer. In essence, they are vague and embarrassing so as to go to the root of the claim.

The court further agrees with the defendant's submissions that it is not clear under which branch of law the plaintiff is suing.

Be it in delict or contract, the plaintiff has failed to satisfy the elements that sustain a claim under either of the branches.

In purporting to claim delictual damages, the plaintiff's declaration reads as follows:

“(i) There was damage of mental suffering directly arising out of the magistrate's ruling to the plaintiff which is actionable under negligence law.

The plaintiff bases this averment on what he considers to be failure by the defendant to recruit a competent magistrate.”

The issue is: there is no cause of action like 'damage of mental suffering'.

Even if one can sue for mental distress, the facts alleged do not support liability.

The plaintiff appealed against the judgment granted in the Magistrates' Court.

Further, one cannot sue a magistrate for damages when he/she is acting in their professional capacity for mis-interpreting the law or the facts, hence the appeal and review processes.

Of note is the fact that the defendant in this matter is the Secretary–Judicial Service Commission; apart from not being the employer of Ms Dzikiti, the alleged magistrate (the employer being the Judicial Service Commission) the sitting magistrate herself was not cited.

Most important, as the defendant is not an employer in the circumstances no vicarious liability can attach to her.

The contractual claim is stated as follows:

“The plaintiff is suing in contract because the plaintiff paid court fees being in consideration for a competent (a fit and proper ruling).”

The question is; in paying for court fees, did the plaintiff enter into a contract with the sitting magistrate?

This is not so, as court fees are meant for processing of papers and never for the judgment.

HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL
Ruled By: BHUNU J

The applicant is a Trust duly registered in terms of the laws of this country whereas the fifth respondent is a limited liability company registered in terms of the laws of this country. The first to fourth respondents are sole shareholders and directors in the fifth respondent, Saltana Enterprises (Pvt) ...

The fifth respondent is currently under judicial management. Its judicial manager, Mr C Madondo, has, however, since filed a letter saying that he has no interest in this case and will abide by the decision of this Court and has sent a representative for an observation brief.

That being the case, the question of the fifth respondent's locus standi, that is to say, the right to stand and be heard in court, becomes a non-issue.

The first and second respondents are husband and wife. The same applies to the third and fourth respondents.

At the commencement of this hearing, the first and third respondents requested that their wives be excused from the hearing and that they be allowed to represent and speak on behalf of their respective wives to save costs.

There being no objection from counsel for the applicant, I granted the two respondents permission to represent and speak on behalf of their wives.

In any case, the two wives were already in default and would have had default judgments entered against them anyway. It is highly unlikely that they can successfully apply for rescission of judgment seeing that the defaults appear to be willful and deliberate. For that reason, I cannot perceive any prejudice which cannot be redressed by an appropriate order of costs if their husbands are allowed to speak on their behalf with the applicant's consent.

In this regard, I find the applicant's attitude commendable in that it is not trying to snatch at default judgement but to obtain judgment on the merits.

In granting this unusual request, I was alive to the peculiar relationship between husband and wife in that they normally have a common interest and household.

Generally speaking, at common law, the husband is the head of the family and has the marital power although the position has been somewhat altered by statute. In Christian parlance, they are said to become one flesh and blood at marriage.

That being the case, I could perceive no impediment or impropriety in a husband representing his wife in a case in which they are jointly being sued and there is no objection from the other party.

The respondents objected to the matter being placed before this Court arguing that the dispute ought to have been referred for arbitration in terms of clause 13 of the contract which provides as follows:

“In the event of a dispute or a claim arising as a result of a breach of this agreement or other cause arising from this agreement, then, the purchaser shall be entitled, after notifying the seller beforehand, to have the dispute or claim or other cause referred to arbitration.”

My reading of the above clause is that it does not compel the applicant to refer the matter for arbitration in the event of a dispute arising. It merely entitles, without directing, the applicant to refer the dispute for arbitration.

In other words, the clause merely confers a discretion on the applicant whether or not to refer the matter to arbitration without impeding its right to approach the Courts for redress.

For that reason, I hold that the applicant was within its rights in referring the dispute to court for resolution.

Having said that, I now turn to determine the matter on the merits.

The facts giving rise to this application are to a large extent common cause. The undisputed facts are that some time in March 2005 the first to fourth respondents (hereinafter referred to as the respondents) concluded a written contract in terms of which they sold to the applicant their entire shareholding in the fifth respondent to the applicant.

The written contract of sale was subject to various suspensive conditions in favour of the applicant. The contract however conferred upon the applicant the right to waive the suspensive conditions thereby bringing the terms of the contract into force.

The applicant subsequently waived its rights under the suspensive conditions sometime in June 2005 and demanded that the respondents perform their part of the bargain in terms of the written contract.

The respondents took exception and objected on the basis that they had already cancelled the contract on account of breach of contract. In particular, they objected on the basis that the applicant had not discharged its obligations under clause 1. 2.18 of the contract. That clause falls under the definition section of the agreement and it provides as follows:

“'Signature date' means the date of signature of this agreement by the party last signing.

As soon as possible thereafter the amount of $100 million shall be paid to the Sellers in equal portion of $25 million each in such consideration as the Purchaser shall determine at its sole discretion. A further amount of $100 million shall thereafter be paid to the Sellers on similar terms, on the Effective Date.”

The respondents acknowledged having been paid the initial $100 million dollars in terms of the above clause but denied having been paid the remaining $100 million dollars.

The alleged non-payment of that amount forms the basis of the respondents' refusal to perform their part of the bargain and purported cancellation of the contract.

The applicant denies that it breached any material terms of the contract as alleged or at all thereby entitling the respondents to cancel the contract.

Firstly, it denies that it failed to pay the remaining $100 million dollars as alleged by the respondents.

This is a factual dispute incapable of determination on the papers. Fortunately, it is not necessary to resolve that factual dispute for the purpose of determining this matter.

Apart from denying that it failed to pay the amounts stipulated in clause 1. 2. 18 of the contract, the applicant also argued that the clause was not a material term of the contract but merely constituted a sweetener.

A sweetener, in my view, is payment calculated to raise the other party's appetite so as to induce him to contact.

Clause 1.2.18 of the contact appears to have all the hallmarks of a sweetener in that it is tied up with the definition of the word “signature”. It refers to payment of “such consideration as the purchaser shall determine at its sole discretion.”

It is inconceivable that had the payment under this clause been intended to be a material term of the contract the parties could have left its payment to the sole discretion of the parties.

This provision is different from clause 4 which places an obligation on the applicant to pay on pain of cancellation and heavy penalties in the event of failure to pay.

For that reason, I come to the conclusion that clause 1.2.18 is not a material term of the contact the breach of which would entitle the aggrieved party to cancel the contract.

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Zimbabwe

Consensus Ad Idem re: Inducements to Contract and the Doctrine of Consideration

HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL
Ruled By: BHUNU J

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Law Portal Zimbabwe

Consensus Ad Idem re: Inducements to Contract and the Doctrine of Consideration

HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT Ruled By: MAVANGIRA J

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION Ruled By: MUNANGATI-MANONGWA J

HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL Ruled By: BHUNU J

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Law Portal
Zimbabwe

HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL
Ruled By: BHUNU J