With the consent of all the parties, I consolidated the hearings of the above three matters as they involve the same dispute between Ashanti Goldfields Zimbabwe Limited and three of its former workers.

Again, with the consent of the parties, I agreed that the three former workers give their combined evidence first even though the third worker is a defendant under HC3793/08. For convenience, I shall refer to the three former employees as the plaintiffs and to Ashanti Goldfields Zimbabwe Limited as the defendant.

The dispute between the parties revolve around two agreements that were concluded between the defendant and its former workers in respect of certain properties that the workers were occupying during the subsistence of their employment with the defendant. On 1 December 2003, an agreement headed “Memorandum of Agreement between Ashanti Goldfields Management and Employees” was signed by the defendant's General Manager and Finance Director, on one hand, and by three employees who were members of the Workers Committee, representing the defendant's employees.

In the agreement, the defendant agreed to dispose of its housing units situated in Chiwaridzo, Grey Line Flats and Low density to its employees who were sitting tenants. An agreed price list was attached to the agreement. On various dates thereafter, but commencing around 9 December 2003, the defendant and its employees entered into several lease agreements in respect of the housing units that the employees were occupying. Deductions were thereafter effected against the salaries of the employees. The employees contend that such were in fulfillment of the Agreement of Sale concluded on 1 December 2003.

The defendant, on the other hand, contends that these were rentals deducted in fulfillment of the lease agreements concluded by each of the employees in respect of the housing unit they were occupying.

Failing to reach agreement on whether the employees had purchased the housing units or were renting same from the defendant, a number of suits were filed in this court - including the above three.

In the first suit, the plaintiff issued summons on 20 August 2007, seeking an order declaring binding the Sale Agreement between the parties and compelling the defendant to transfer certain immovable property, described in the summons, to the plaintiff. The suit was defended. In a separate suit, the defendant counter-claimed for an order evicting the plaintiff from the property.

In the second matter, the plaintiff filed a court application seeking an order compelling the defendant to transfer to him certain immovable property described in the papers. In the application, the plaintiff averred that he had purchased the immovable property from the defendant in terms of the Agreement of Sale of 1 December 2003 and that he had paid the full purchase price through deduction effected against his salary.

The application was opposed, and, in the opposing affidavit, the defendant denied the Agreement of Sale and averred that the second plaintiff was occupying the property in terms of a lease agreement which he had breached.

At the hearing of the application, the matter was referred to trial with the papers filed of record standing as pleadings.

In the third matter, the defendant sued for the eviction of the plaintiff from certain immovable property described in the summons. In the declaration filed with the summons, the defendant alleged that the third plaintiff was a tenant in respect of the property and that by terminating his employment with the defendant, he had breached the lease. In defending the suit, the third plaintiff averred that he was not occupying the property in terms of a lease agreement but had purchased same from the defendant in terms of the Agreement of Sale of 1 December 2003.

Thus, the issues arising from the above three matters are similar and call for an interpretation of the two agreements that the parties concluded in respect of the properties in dispute.

In support of their cases, the three employees gave evidence. Again, for convenience, I shall refer to them as first to third plaintiffs. The first to testify was Simbarashe Antonio. He resides in Bindura and was employed by the defendant up to June 2007.

During the subsistence of his employment with the defendant, he occupied many roles. He was a trained electrical technician and would act as a consultant electrical technician on a need to need basis. On a daily basis, he was employed in the Finance Department where he was the Financial Assistant Accountant, responsible for banking, investments, debtors and gold sales. He also represented the lower levels of the employees on the Board of the defendant and was thus a Board member. Due to his position on the Board, he was appointed into a committee that spearheaded and shepherded the alleged disposal of the housing units by the defendant to its employees. His testimony was as follows.

In or about 1998, the defendant, then under different shareholding and management, expressed a desire to dispose of its housing units to its employees. This was driven by reports that the ore reserves at the mine would be depleted in five years and the disposal of the housing units was viewed as a way of recouping some of its investments, and, at the same time, as a way of keeping essential skills until the mine closed.

Initially, the defendant wanted to hand over all the housing units to a Building Society for it to oversee the disposal. The defendant failed to raise the deposit required by building societies for such an exercise and the matter returned to the Board for further discussion. Negotiations were opened between the workers and management and the witness was tasked to speed up the process. The Board empowered him to ensure that management did not slacken on the process. As part of the process, a committee was set up called the Housing Committee. It comprised the General Manager, the Finance Director and a Mr Musarira as representing management and thus the defendant, and the witness and two others as representing the workers.

In 2002, the Board met in Ghana and the issue came up for discussion. It was followed up at a subsequent Board meeting held in Johannesburg where it was resolved that the matter should now be concluded. The sticking point that was disclosed to the Board was the inability of the workers to pay in cash for the properties. The Committee was tasked to come up with a financing method that was acceptable to both sides.

Consultations between the two sides continued up to late 2003. A legal practitioner was retained to draft a document that would capture and protect the interest of both parties. The Board had indicated that it required evidence at its meeting of 1 December to show that the issue had been put to rest. The Housing Committee, in its wisdom, decided to come up with the Memorandum of Agreement on 1 December 2003 in which it is recorded that the defendant had agreed to dispose of its housing units to its employees.

During negotiations, the committee had agreed that each housing unit be valued and three evaluations were carried out in respect of each unit and a value was assigned to each unit. The sitting tenant in respect of each unit was also identified and all this was agreed upon by members of the Committee in a schedule they attached to the Agreement.

The witness understood the document to be the Agreement of Sale between the defendant and its workers. The document was taken to the Board and was accepted by the Board as having put the matter to rest. The Board also understood it to be an Agreement of Sale.

The employees were informed that the Board had now agreed to sell the properties. Since the employees had no money with which to finance the purchases, they decided to sell their shares in the defendant. A sum of $5 million was raised from the exercise and this was distributed to the workers. The witness then paid for his particular unit in full.

Another method of paying for the properties was agreed upon.

The defendant had, on a previous occasion, disposed of motor vehicles through a finance lease arrangement. This would entail periodic payments deducted from the employees' salary and the document for so doing was a lease agreement. The witness entered into a lease agreement with the defendant in respect of his unit which is the document he used to effect payment of the purchase price to the defendant.

An accounting system was created for this particular exercise. The employees' pay slips would reflect a rent to buy deduction. After each deduction, the balance due in respect of the property being purchased would be reflected on the pay slip.

All appeared to be going well until 2006 when the defendant was sold to Mwana Africa.

The workers went on strike. They were apprehensive as to their welfare, and, in particular, as to whether the new owners of the mine would honour the agreements that had been concluded with the previous owners. They were assured that nothing would change and they returned to work. Later, the employees heard that the new Board of Directors was not going to honour the agreements of sale. Employees pressing with the issue were victimized and subsequently dismissed or retrenched.

The witness was suspended from employment in April 2007. On 27 June, he resigned….,.

He however admitted that in terms of the lease agreement, he had to remain in the employment of the defendant for five (5) years before he could purchase the property and that he left employment before that period had lapsed.

The witness was cross-examined at great length in connection with a memo that was addressed to all the workers on 2 December 2003 by the Chairman of the Workers' Committee giving them up to February 2004 to decide whether or not they wanted to buy the house allocated to them. It was suggested to him that this memo indicated that there had been no agreement of sale on 1 December 2003 as he had testified.

The witness remained firm in his belief that on 1 December 2003, the defendant had bound itself to sell the housing units to its employees….,.

Next to testify in the matter was Kingstone Fungai Mujati. He also resides in Bindura and was employed by the defendant from 1997…,.

He is one of the signatories to the agreement of 1 December 2003. He represented the workers when he signed the document. His understanding of the document was that the defendant was agreeing to dispose of its properties to its employees who were sitting tenants in respect of those properties. The prices of the properties were attached to the agreement. His own property was listed on the attachment as Number 1287 and the agreed price was the sum of $2,140,000=.

In his testimony, the witness testified that he paid in full the purchase price in respect of the property that was allocated to him. The purchase price was deducted from his salary on a monthly basis. In 2005, he then made a lump sum payment to clear the balance that was due. He identified the pay slips from which the various deductions had been made. After he had made the final payment, the defendant wrote to the local authority and to the Zimbabwe Electricity Supply Authority advising the two that the defendant was no longer responsible for rates and electricity charges, respectively, for the property. All utility bills were now coming in his name….,.

Kwadzanai Bonde also gave evidence. He also resides in Bindura and was employed by the defendant as an Accounts Clerk. He joined the defendant in 1995 and left employment in November 2007. His evidence was similar in material respects to the evidence of the first and second witnesses. Unlike the second witness, he signed a lease agreement in respect of the property. The lease agreement was explained to him by members of the Housing Committee as a document that would assist him to finance the purchase of the property.

He concluded his evidence by maintaining that he had purchased the house he was occupying and the defendant had no right to evict him therefrom.

The testimony of this witness was largely similar to that of the first witness. He however testified that while others signed a finance-lease agreement in respect of their properties, he did not….,.

The defendant called the evidence of one Agasi Wala. He is its Human Resources Manager. He was employed by the defendant in 1996. He initially was a Welfare Officer and rose through the ranks to his current position. The matter relating to the alleged disposal of the properties to staff were matters that fell under the purview of the Human Resources Department where he worked as his department co-ordinated all the meetings with staff.

He confirmed that the three plaintiffs were all once employed by the defendant. He also confirmed that there were negotiations at Works Council level between the management and the employees of the defendant in 2002 regarding the disposal of the properties that the defendant had allocated to its workers. These were protracted until December 2003 when the memorandum of agreement was signed. It was his understanding that the Memorandum of Agreement between the parties signified that, with effect from 1 December 2003, sitting tenants in company houses were to be offered their units to purchase. To him, this was a statement that these properties would be disposed of to the workers at a later date. There was going to be a separate agreement of sale at a later date. After this agreement, the parties concluded a lease agreement.

Regarding the contention by the plaintiffs that the agreement of 1 December 2003 was an Agreement of Sale, the witness was of the view that it was not. He was of the further view that the price list attached to the agreement for each unit was meant to assist in assessing a rental for each.

He confirmed that on 5 December 2003, following the first agreement, a notice was put up on the notice board inviting all employees interested in participating in the scheme to make their choices known. He was of the view that if the first agreement was an Agreement of Sale, this notice to the workers would have been unnecessary and may not have come out in that form. The employees responded to that notice by filling in lease agreement forms.

The witness confirmed that deductions were effected against the salaries of the workers who had responded to the notice of 5 December 2003. These were only effected after the workers had signed the lease agreements. A worker who was not participating in the scheme would be in mine accommodation and would pay subsidized rentals. All those against whose salary were deducted payments were to purchase their properties after five (5) years. The amount they would have paid in advance would be taken into account in assessing the purchase price of the property after the five year period.

In respect of the second plaintiff, he was adamant that Kingstone Mujati signed a lease agreement that he removed from his file before he left employment. All employees participating in the scheme had signed the lease agreements.

Regarding the letters written to the Zimbabwe Electricity Supply Authority and to Bindura Municiaplity in connection with Kwadzanayi Bonde's property, he testified that the letters did not state that the employee had bought the property. It simply transferred responsibility for the payment of bills to the employee who had left employment with the defendant.

Under cross examination, the witness testified that he did not attend the meeting at Works Council level where the issue of the disposal of houses was discussed. He kept track of what was being discussed there from feedbacks he got from the Housing Committee and from some of the records of the transactions that were kept by the defendant. He did not have any access to the minutes of the Board of the defendant….,.

The difference between his testimony and that of the plaintiffs was in the interpretation that each side gave to each of the two agreements. While he obtained his information from the Housing Committee, he was of the view that the two documents should speak for themselves….,.

The defendant did not call any other witness and closed its case after the testimony of Agasi Wala…,.

In my view, the first issue that I have to determine in this matter is whether or not the agreement of 1 December constituted an Agreement of Sale between the defendant and its employees.

As indicated…, the agreement of 1 December 2003 was a terse document whose operative part read:

“Ashanti Goldfields agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats and Low Density to its employees who are sitting tenants effective 1 December 2003. Find the agreed prices attached.”

I am in agreement with counsel for the defendant that the above was an agreement by the defendant to dispose of its properties to its employees who were sitting tenants and that the agreement would be with effect from 1 December 2003 and that this agreement was not the Agreement of Sale itself.

In my view, the agreement of 1 December 2003 is no more than an agreement by the defendant to bind itself to sell its housing units, described in the schedule, to the employee named against each unit and at the price given as the market value of each unit on the date of the agreement. It was thus an agreement giving the employees an option to purchase the housing units on the terms and conditions stipulated in the agreement.

To the limited extent that the defendant bound itself to offer the housing units for sale to its employees on the terms stipulated in the agreement, an agreement came into being. It would be binding on the defendant but not on the employees. The true nature of that agreement was an option granted to the employees to purchase the housing units.

In my view, the agreement could also be viewed as an irrevocable offer by the defendant to sell its housing units on the terms and conditions stipulated in the agreement.

It is not in dispute between the parties that once the terms and conditions of the agreement of 1 December were met, a vinculum juris would be formed between the parties and a binding contract would come into being. Thus, the option granted the employees to purchase the housing units was also an offer by the defendant to each and every employee named in the schedule to purchase the unit allocated to him or her at the agreed price.

An offer has been described as a proposal by the offeree made with the intention that by its mere acceptance, a contract shall form. (See R. H. CHRISTIE: The Law of Contract in South Africa 3^rd Ed…,.).

In other words, 'the proposal, objectively construed, must be intended to create binding legal relations and must have so appeared to the offeree'. D T ZEFFERTT, 'Payments In Full Settlement' (1972) 89 SALJ 35…,.

The next issue that falls for determination is whether the offer, as contained in the agreement, was ever accepted by the above three plaintiffs.

It is trite that, as a general rule, a contract is not concluded until the offeree has not only decided in his mind to accept the offer, but has communicated his acceptance to the offeror.

In each case, it is necessary to consider the terms of the offer to determine the mode of acceptance required. Where, in my view, the offer is silent as to how the offer is to be accepted, any conduct on the part of the offeree, by deed or by word is, in my view, that is consistent with acceptance of the offer and which conduct or word is brought to the attention of the offeree and is also understood by the offeree as an acceptance of the offer, is sufficient to create the requisite vinculum juris between the parties.

In casu, it is not in dispute that the agreement of 1 December 2003 was silent as to what the employees needed to do to accept the offer. In my view, after the agreement of 1 December 2003, if each and every employee named in the agreement had tendered the full purchase price of their respective unit to the defendant, a binding agreement of sale would have been created. The three plaintiffs contend that they accepted the offer to purchase their respective housing units by completing the lease agreements which they understood to be vehicles to finance the payment of the purchase price in instalments.

Two issues arise from the execution of the lease agreements between the parties.

(i) Firstly, I have the testimony of the plaintiffs as to how the lease agreements came into being.

This testimony, in my view, cannot be assailed at the instance of the defendant. It is common cause that at the time the lease agreements were executed, there was no dispute between the parties as to which employee was in occupation of which unit and what rental the employee had to pay. The parties had not been negotiating lease agreements at any level and there was thus no factual or legal dispute that required the parties to enter into lease agreements. In other words, there was no need for the lease agreements either on the part of management or on the part of the employees.

(ii) On the other hand, the parties had been negotiating the disposal of the housing units by management to the employees. The negotiations had spanned a period of over five (5) years and days before the lease agreements were executed, the defendant had finally bound itself to dispose of the houses to the employees in a written document. Thus, the dispute between the parties was in connection with the disposal of the housing units and thus, the understanding by the employees that the lease agreements were part of the process was, in the circumstances, more probable than the defendant contention that this was a new stand alone agreement.

Thus, on a balance of probabilities, I would hold that that lease agreements were not separate from the exercise of the disposal of the houses to the plaintiffs.

What emerges from the testimony of the parties regarding the lease agreements, if I were to accept the defendant's testimony, is that parties were not ad idem concerning the true nature of the agreement. The employees regarded the agreement as a vehicle to offset the purchase price of the housing units, when, on the other hand, the defendant viewed the agreement as a stand alone lease agreement, creating fresh obligations for the parties.

In any event, I have…, expressed my reservations about accepting the views of Agasi Wala as representing the intention of the defendant when it concluded the lease agreements with the first and third plaintiffs….,.

The major defect of the defendant's defence is that no one appropriately placed in the corporate governance structures of the defendant came to testify on behalf of the defendant.

Thus, the lease agreement between the parties was not meant to be in replacement of the first agreement. It was not executed with the necessary animus contrahendi by the employees and is therefore not binding on all the parties.

The issue remains as to whether the plaintiffs accepted the option granted them by the defendant.

In my view, they did.

It is common cause that the plaintiffs made various monthly payments to the defendant in reduction of the agreed purchase price of their respective units. This was sufficient communication of the acceptance of the offer. It is further not in dispute that the representatives of the defendant then accepted the deductions as part payment of the purchase price.

The opinions of Agasi Wala as to what these payments constituted cannot be ascribed to the defendant for the reasons I have given…,.

It is therefore my finding that the plaintiffs did conclude binding agreements of sale with the defendant in respect of each of their units. The offer to purchase was made on 1 December 2003. The acceptance was by each employee when he or she communicated their intention to the management of the day that they were going to participate in the scheme and made arrangements to pay off the purchase price. The offer from the defendant did not stipulate how acceptance was to be communicated and any conduct consistent with being bound by the defendant's terms, communicated to the defendant's representatives, was sufficient.

From a perusal of the judgment of the court..., against which the respondent's appeal lies, it is clear that no evidence was placed before the court to show that the appellant's offer was accepted. Rather, what clearly emerged on the evidence before the court was that the respondent's offer was never accepted. At page..., of the judgment the following appears:

"The evidence led for the plaintiff (respondent in casu) proves he made an offer. He was asked to wait while his offer was being considered. He was to check after seven days. When he inquired with the seller's agent, he was told not to panic as his offer was still being considered. It is, in my view, not possible to say a reasonable man would make a mistake and find for the plaintiff that a contract of sale had been concluded between the plaintiff and the first defendant when it is clear that the seller had not accepted the plaintiff's offer. The plaintiff's evidence established that his offer was being considered. The order form confirms that the offer was not accepted. It was only signed by the buyer, while the seller's part remained uncompleted."      

 ..., it is immaterial what the respondent believed. The issue before the court..., was whether there had been an offer and acceptance and that the court's finding that there was no acceptance of the respondent's offer is supported by the evidence on record.

The first respondent...., contended that it did not see the applicant's irrevocable offer letter and acceptance, and it, therefore, did not accept his offer.

On whether the first respondent accepted the offer by the applicant, it is common cause that the first respondent nominated, and appointed, Nandi Properties (Private) Limited as its agent in disposing the property in question.

It is not disputed that Mr. Michael Hanyani was given mandate to convey the nomination, and appointment of Nandi Properties (Private) Limited as its agent in disposing the property in question. He duly did so.

Nandi Properties (Private) Limited advertised the property, and upon receipt of the applicant's offer, sent the same to Kwekwe, fax number..., attention Mr. Hanyani.

It is apparent that the offer and acceptance was signed, and re-faxed to Harare, as confirmation that the first respondent had accepted the offer. Soon after that, the first respondent's Mr. Michael Hanyani signed a special power of attorney in favour of Messrs. Magwaliba & Kwirira Legal Practitioners, authorising them to sign all documents for the sale and transfer of the property.

On 30 October 2008, the plaintiff issued summons against the defendants claiming delivery of certain specified railway sleeper furniture.

In his declaration, the plaintiff alleged that he and the defendants entered into an agreement in December 2007, in terms of which the defendants agreed to manufacture for him certain specified items of furniture. He further alleged that whilst he had performed his side of the bargain, by paying the agreed price, the defendants, in breach of the agreement, had failed to deliver all the items contracted for leaving the items forming the subject matter of this suit outstanding. In particular, the plaintiff averred that, in terms of the agreement between the parties, the defendants would manufacture and deliver a 7 piece dinning room suite, a side serve, a 3 piece coffee table set, a 2 piece side board, a 3 piece room divider and a wall mirror. In breach of the agreement, the defendants failed to deliver the side board, the room divider and the wall mirror.

The suit was defended.

In its plea, the first defendant averred that the plaintiff made inquiries about the cost of items he required and was given a quotation which was valid for a limited time. He then made payment on the quotation outside the lifetime of the quotation, and without first making reference to the defendant, with the result that the amount he paid was only sufficient for the manufacture of the items that were delivered to him.

At the pre-trial conference of the matter, the parties agreed that the issues for determination at the trial of the matter were;

(a) Whether the plaintiff is owed the outstanding items of furniture; and

(b) Whether the parties varied the agreement between them to the effect that the defendant would only manufacture the items that it delivered.

The matter was thus set down for trial before me.

At the trial, the plaintiff gave evidence. His evidence was as follows. He is a businessman. In December 2007, he visited the first defendant's factory. He was taken around the place and was shown other items that the defendant had manufactured. He requested the manager to tailor-make the items that he required. To that end, he arranged for the manager to visit his flat and take some measurements.

This was duly done.

The manager left him with catalogues from which he and his wife could select what they thought was suitable. He was given a quotation upon which he successfully negotiated a discount. He was also given a Bank account into which he was to deposit the amount reflected on the quotation. He told the defendants that he was going to dispose of some shares and that this would take some time. The second defendant assured him that this would not pose any problems. As soon as his shares were sold, he deposited the amount reflected on the quotation into the defendant's Bank account. He paid the deposit a week or two after the date appearing on the quotation. When his shares were sold, he told the defendant that he was going to make the transfer and wanted to know whether there had been any changes to the prices. The second defendant assured him that there had been no changes and there would be no problem with his deposit.

Apart from the quotation, nothing else was reduced to writing as between the parties. The witness was shown a copy of the quotation which he identified. Same was adduced into evidence.

The plaintiff proceeded to testify that, after some arguments, the defendant delivered part of the ordered furniture leaving the items in dispute outstanding. He demanded for the delivery of the remaining items, firstly, by word of mouth and then by a letter of demand.

In conclusion, the plaintiff testified that at not time did he discuss the issue of revisiting the pricing of the order as suggested by the defendants. He insisted that, after paying the amount reflected on the quotation, he was entitled to delivery of the outstanding items even if he paid outside the lifetime of the quotation as he had advised the defendants that he needed time to sell his shares.

The witness impressed me as an articulate and confident man. He was very clear as to what the defendants were obliged to do under the contract and was keen to see them held strictly to the written terms of the contract, an attitude that evoked in me memories of passages in the Shakespearian play; Merchant of Venice.

The witness was wordy in his responses to questions put to him under cross-examination and would at all times maintain his stance that he performed his side of the bargain by paying the contract price in full.

In my view, the factual issue that falls for determination in this suit is whether the parties varied the written terms of the quotation to allow the plaintiff to make payment of the quoted price outside the lifetime of the quotation.

On this point, the plaintiff did not testify with his characteristic clarity and confidence. His evidence, as detailed above, was to the effect that that he spoke to the second defendant when his shares had been sold and asked him if there were any changes to the quotation. He was told that there were none.

I did not believe the plaintiff in this regard.

Firstly, I did not believe him when he testified that he telephoned the second defendant as he alleges. He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He is very precise though not always concise. He knows the date when he made the payment. He simply chose not to tell me the date. I surmise that he chose not to disclose the date because he thought it would detract from his case by corroborating the evidence of the defendants that he made his payment some three to four weeks after the quotation had lapsed.

Secondly, it is highly unlikely that the second defendant, when and if telephoned, would have advised the plaintiff that there were no changes in the price especially in the environment during which the contract was concluded. The defendants testified that their quotations were now valid for 3 days only as prices were constantly changing. It is therefore highly improbable that, after two or three weeks, prices on the quotation had remained static.

After testifying, the plaintiff called one Custon Muchepa (“Custon”). Custon used to work for the defendants and was the first defendant's manager at the time. He is the one who prepared and issued the plaintiff with the quotation. On a date he did not give, the plaintiff telephoned him to advise that he had made payment on the quotation. He then received a call from the workshop requesting him to prepare a bill of materials for work on the plaintiff's order to begin. He confirmed that part of the plaintiff's order was delivered and the balance was promised. The balance of the order was never delivered. Out of frustration and other misunderstandings, he left the first defendant's employment before delivery of the remaining items had been made.

On the material dispute of fact between the parties, Custon Muchepa did not have any personal knowledge as to whether the parties agreed to vary the lifetime or validity period of the quotation. He was not present when the plaintiff allegedly telephoned the second defendant to establish whether there were any changes to the prices before he, the plaintiff, made payment. He was simply advised by both that payment had been made.

The witness gave his evidence generally well. He however could not testify on the material fact in dispute in this matter as he was not present when the two allegedly discussed the issue. Further, whilst he could give quotations, he was not in charge of the finance department and would not know why work on the plaintiff's items was stopped.

In my view, the evidence of this witness, did not take the plaintiff's case further than where the plaintiff himself left it.

After the evidence of this witness, the plaintiff closed his case.

The second defendant gave evidence on his own behalf and on behalf of the first defendant. His evidence was as follows;

He is a Director of the first defendant. He recalls that the plaintiff came to the defendant's workshop where he was given a quotation. The quotation was supposed to be valid for three days. The plaintiff was also given the first defendant's account number for the purposes of making payment. Prior to the parties concluding the transaction, the plaintiff informed him that he had funds that were maturing sometime which he would use to fund the contract. He then left his manager to prepare the quotation. After three weeks, he received a report from his manager that the plaintiff had made payment, by direct deposit, into the first defendant's account. He checked the account and confirmed the deposit. He then telephoned the plaintiff and confirmed the deposit. He however advised the plaintiff that the deposit was now insufficient to cover the order. The plaintiff, in turn, advised him that he had no further funds and that the parties should re-negotiate. The first defendant started manufacturing the items of furniture that the parties had agreed were equivalent to the deposit. When the plaintiff was advised of this, he said the parties should discuss the issue further. The defendants delivered the items that were equivalent to the deposit. After delivery, he telephoned the plaintiff for a meeting. The plaintiff insisted that he had paid for the entire order and demanded delivery of the remaining items.

The witness gave his evidence well. He did not seek to exaggerate. He was forthright in his responses to questions put to him under cross-examination. He impressed me a being honest and truthful.

I particularly believed him when he testified that he only received the report that payment had been made from Custon Muchepa, meaning that he did not speak to the plaintiff before the plaintiff made the deposit. He thus did not agree to extend the validity of the quotation before payment was made. His evidence in this regard gains corroboration from the testimony of Ronald Mpopoma who testified after him.

Ronald Mpopoma's evidence was to the following effect;

He is son to the last witness and works for the first defendant as Clerk. He confirmed that ordinarily, the defendants were giving quotations valid for only three days. He thus expected the plaintiff to make a payment after three days of obtaining the quotation. Instead, he received a report, after three weeks, that the plaintiff had made payment on the quotation. The report was made to him by Custon Muchepa. He then telephoned the plaintiff to come and discuss the issue. At the meeting, the plaintiff was advised that his deposit was insufficient to meet his order. It is at that stage that the parties agreed that the defendants would only manufacture those items that were equivalent to the amount of the deposit. The parties were to further agree on the remaining items. On that understanding, the witness gave the word for work to commence on the plaintiff's order.

Regarding Custon Muchepa, the witness testified that he fired him after he realized that there was an unhealthy relationship between him and the plaintiff and that the two may have diverted the defendants' jobs to the competition.

In my view, the witness gave evidence that was largely common cause save for the information on how Custon Muchepa left employment. Regarding the material issue in dispute, he was clear that the plaintiff was made aware of the insufficiency of his deposit when such was made. In this regard, he corroborates the evidence of the second defendant in a material respect.

After this witness, the defendants closed their case.

In his closing submissions, counsel for the plaintiff correctly submitted, in my view, that the first issue I have to determine is whether or not the parties had a contract, and, if so, what the terms of the contract were.

In answer to the questions posed by the first issue, he submitted that the parties had a verbal contract for the manufacture of the furniture items specified in the quotation and for the price stipulated in the quotation.

I am unable to agree that the parties unconditionally entered into a contract for the manufacture of the furniture items listed in the quotation. In my view, the quotation that was issued to the plaintiff by the defendants was an invitation to treat. It was the offer to do business with the plaintiff. The terms of the offer were endorsed on the face of the quotation.

It may be pertinent, at this stage, to observe that while the defendants testified that at the time they were issuing quotations valid for only three days, in casu, the quotation clearly stated on its face that it would hold for a week. Thus, notwithstanding their policy in this regard, they were bound by the period given on the face of the quotation.

In my view, the plaintiff could have validly made payment within one week of the quotation and such payment would have bound the defendants.

The plaintiff however did not make payment within one week. It is not clear when he made payment. As observed above, he has chosen not to take the court into his confidence to reveal the actual date on which he made payment. He has given the period as between 7 and 14 days. The defendants have given it as between three and four weeks. I am none the wiser as to when payment was made.

The onus lies squarely with the plaintiff to show that payment was made in terms of the offer made to him. The confusion as to when he accepted the offer can only be fatal to his claim and not to the defence.

The plaintiff has approached the court ex contractu. He alleges that he had a binding contract with the defendants. He further alleges that while he performed his side of the bargain, the defendants are in breach and should be compelled to perform.

The foundation of any contact is agreement between the parties. To establish this agreement, one looks for an offer and the acceptance of that offer.

In casu, it is common cause that the quotation given to the plaintiff constitutes the offer that was made by the defendants.

It is the settled position in the law of contract that an offer can lapse through the effluxion of time. This means that after the time set in the offer for acceptance has expired, the offer is no longer open to acceptance for the birthing of a valid contract. The point was settled in Laws v Rutherford 1924 AD 261 and has held since. At 262, INNES CJ had this to say:

“Speaking generally, when the acceptance of an offer is conditioned to be made within a time limit or in a manner prescribed by the offeror, then the prescribed time limit and manner should be adhered to.”

In casu, the offer was valid for one week. The one week lapsed before the plaintiff had accepted it. His purported acceptance of the offer, after the one week, was of no force and effect.

Put differently and conversely, acceptance of an offer must always correspond to the offer. If it does not, it constitutes a counter offer and no valid contract is birthed on the original offer.

The plaintiff has not, like the appellant in Laws v Rutherford 1924 AD 261 pleaded that the defendants waived their rights to insist on payment within the week. He, instead, sought to argue that the defendants extended the time within which the offer could be accepted. I have found above that I do not believe his testimony in this regard. There was no such variation. His offer of the defendant's offer had to be within a week of the offer. It was not.

Further, he has not sought to argue that the defendants accepted his counter-offer to pay the price at his own time.

In the circumstances, it is my finding that the plaintiff has failed to establish the contract that he seeks to rely on for an order compelling the defendants to deliver the remaining items of furniture. Payment of the price on the quotation made when the offer was no longer open could not bring about an enforceable contract between the parties.

Counsel for the applicant further submitted that clause 7.1 of Special Notice 2313, which set out procedures for taking advantage of the first respondent's offer of houses for sale was a mere formality to enable transfers.

Counsel for the first respondent argued that as a non-employee of the first respondent, the applicant was not covered under Special Notice 2313. He said the applicant could only be covered by Special Notice 2313 as a member of the public, whereby houses not sold to the first respondent's employees could be sold to the public upon application.

The first respondent never offered to sell the property to the applicant for any price in terms of Special Notice 2313 (clause 2.1.4), and the applicant, as a member of the public, never made an offer which was accepted by the first respondent.

There was, therefore, no contract between the parties, and this court cannot force a contract on them. That, as submitted by the first respondent's counsel, would be contrary to the freedom of contract.

Courts cannot create contracts for litigants. Courts can only interpret, enforce, or decline to enforce, litigants' contracts in terms of law.

In the main, therefore, the facts of this case do not, at all, disclose the existence of a clear offer and acceptance as required in the law of contract.

There was, therefore, never any agreement of sale between the applicant and the first respondent. The court cannot create one for the parties, and, in the circumstances, the court is disabled from granting the relief sought.

The fact that the first respondent unilaterally made a mistake about the purchase price, by reason of miscalculation in view of the prevailing inflationary environment is not a legal reason which can justify his resiling from this contract.

This principle was clearly laid down in University of Zimbabwe v Gudza 1996 (1) ZLR (S)…, quoted with approval in Smith v Zesa 2003 (1) ZLR 158 where PARADZA J stated:

“Where an offeror mistakenly makes an offer that is accepted by the offeree, the offeror will only be able to rescind the contract if -

(a) The offer was induced by fraudulent misrepresentation by the offeree; or

(b) The mistake was a material one the offeree knew or ought to have known that the offer had been made in error.”

This was not the position in the present case.

It seems as if the second respondent already had buyers on its books for a property such as the first respondent had on offer, because on 26 August 2008 an offer was received from the applicant for the purchase of the property. The offer, which was in writing, was for the sum of $225,000,000= Zimbabwe dollars. The applicant signed the offer form.

The first respondent's signature does not appear on the document.

The applicant contends that his offer was accepted by the first respondent and that an oral agreement was thereby concluded between the parties, which agreement was subsequently reduced to writing and that he had signed it but the first respondent had not.

The applicant further contends that notwithstanding the refusal by the first respondent to sign the written agreement, the parties did conclude an agreement, and he wished for the terms to be put into effect by the first respondent being ordered to effect transfer of the property to himself.

The first respondent denies the existence of an agreement between him and the applicant and consequently prays for a dismissal of the application.

The applicant contends that he had initially made an offer of $150,000,000= for the property which had subsequently been increased to $225,000,000=. On 26 August 2008, subsequent to the second offer, he and the first respondent had met and concluded an oral agreement for the sale of the property at a price of $225,000,000=. A written agreement was prepared but the first respondent refused to sign it alleging that the purchase price had been hit by inflation. The first respondent had apparently wished to purchase an amount of US dollars from the purchase price. Despite that attitude of the first respondent to the agreement, it would appear that the applicant had no misgivings about the contract and proceeded to make a payment for the purchase of the property.

The first issue for determination is whether, in fact, an Agreement of Sale was concluded between the parties.

There is no dispute that the first respondent gave a mandate to the second respondent to sell his immovable property. The applicant made two written offers, which he signed. The first respondent did not sign either. The two offers were made a day within each other, with both being made within twenty four hours of the property having been placed on the market. On the same day that the second written offer was made an amount of money corresponding to the offer made by the applicant is alleged to have been paid as the purchase price for the property. It is also the same day that a written agreement was allegedly drawn up for signature by the parties. The agreement was signed by the applicant and one other as purchasers - but it is not dated. It is not disputed that the first respondent refused to sign the agreement. Although the written agreement is part of the documentation produced by the applicant it is the alleged oral agreement that the applicant wishes the court to uphold, and issue, in consequence, an order for specific performance against the first respondent.

It is a general principle of our law that for a contract to be said to exist, there must be a true agreement, a meeting of the minds by the parties, which is a position arrived at after acceptance by one party of the other party's offer. Where an offer has been made the acceptance must be clear and unequivocal so as to leave no reasonable doubt in the offeror's mind that his offer has been accepted. See Christie Business Law in Zimbabwe 2^nd...,.

It is submitted, on behalf of the first respondent that for a court to decide whether there was a meeting of the minds the court must decide the state of mind of the parties as manifested by word or deed and not in the abstract.

I think this is a correct statement of the law. In order to decide on whether there was a meeting of the minds I have to examine the documents produced by the parties in the application in relation to the conduct of the parties as regards the alleged agreement. It is therefore necessary to examine the manner in which the alleged Agreement was made.

The first is the offer made by the applicant, which bears the signature of the applicant only. Although the applicant alluded to an initial offer of $150,000= that offer has not been produced herein. The only one produced is that one for $225,000=. It is, however, common cause that an offer was made. The second offer is the one which is the subject matter of this dispute. The offer would appear to have been made on 26 August 2008, which is the day when all the events seem to have occurred. According to the applicant, the parties had met at the offices of the second respondent and the agreement reached on the purchase price. The suggestion by the applicant is that he made the written offer after he and the first respondent had met and agreed on the purchase price. One would assume then that the first respondent would have signed the offer form in acceptance of the offer. He did not. A payment was then made on the same day. There is no explanation from the applicant as to when precisely the payment was made; when regard is had to the events unfolding on the day in question doubt is cast as to where precisely the parties were when the offer was made and accepted. An offer was made which the applicant signed but the first respondent did not. It seems then that a written agreement was prepared, again on the same day, but the first respondent, again, refused to sign on the basis that the money had been eroded by inflation.

It is difficult to accept that the first respondent would accept an oral offer of $225,000,000=, refuse to accept the formal offer by signing, and then on the same day refuse to accept the written offer, and, again, refuse to sign the Agreement of Sale on that day on the grounds that the money would have been eroded by inflationary forces. Yet, if the applicant is to be believed, the parties had met at the second respondent's offices where agreement was reached on the purchase price resulting in the written Agreement being prepared. Even in an inflationary environment as existed then, it would be hard to imagine the value of money being so subjected by inflation within a few hours as to render a business transaction unattractive. The first respondent had put up his house for sale and if he received an offer he thought worthwhile one would naturally assume he would accept, especially as payment in this instance appeared to be instant. If they were both at the second respondent's offices as events unfolded why would the first respondent refuse to sign the offer form or the Agreement of Sale? The applicant's answering affidavit appears to shed light on the actual circumstances of the alleged agreement. In paragraph 6 thereof the applicant avers that he had sat down with the second respondent and had agreed on a purchase price and the mode of payment. He had then paid to the second respondent as agent for the first respondent. He avers that the agreement was brokered by the second respondent at his offices.

This, in my view, lends credence to the denial by the first respondent of the existence of an Agreement of Sale in respect of the immovable property in question.

This is an appeal from a judgment of the High Court in which it granted an application for an eviction order against the appellant on the basis that the respondent was the owner of the property known as Stand number 3182 of Subdivision A of 159 of Prospect, Harare. The appellant was found not to have a right of occupation.

The appellant had challenged the vindicatory action instituted by the respondent on the basis that she had a right of occupation derived from an agreement of sale of the property entered into between her and a company called Champion Constructors (Pvt) Ltd, duly represented by one of its directors and a shareholder, Ms Elizabeth Chidavaenzi.

After hearing argument from counsel for both parties, the appeal was dismissed. It was indicated then that reasons for the decision would follow in due course.

It was not in dispute that the respondent was the registered owner of Stand number 3182 of subdivision A of 159 of Prospect, Harare. The issue before the court a quo was whether there was a binding agreement of sale which gave the appellant the right of occupation.

The court a quo found against the appellant.

The question before this Court is whether the decision of the court a quo is correct on the evidence placed before it by the parties.

The facts of this case are as follows.

The respondent issued summons for the ejectment of the appellant from Stand number 3182 of Subdivision A of Stand 159 Prospect in Harare on 9 June 2008. In her plea, the appellant sought the dismissal of the claim on the basis that she was a legitimate possessor and occupier of the property. The contention was that the right, title and interest in the property was lawfully transferred to her by a declaratory order issued by the High Court in case No. HC7594A/06.

The appellant contended that she was in occupation of the property pursuant to an agreement of sale entered into between herself and a company called Champion Constructors (Pvt) Ltd. The appellant contended that, alternatively, the respondent was estopped from denying that Champion Constructors (Pvt) Ltd was the holder of rights, title and interest in the property and was entitled to dispose of the property as it did.

The respondent, through its managing director, Mrs Elizabeth Chidavaenzi, tendered various documentary exhibits in support of its position. She denied that Champion Constructors (Pvt) Ltd had ever been authorised to dispose of the property in the manner alleged or at all.

The appellant relied on her own testimony and on the evidence of two former workers of Fingold Real Estate, which had allegedly been mandated by Champion Constructors (Pvt) Ltd to dispose of the property to her.

The court a quo accepted that the respondent was the registered owner of the property in question on the basis of irrefutable evidence - the title deeds to the property. The court also accepted that Mrs Elizabeth Chidavaenzi was the managing director and controlling shareholder of the respondent. The evidence placed before the court a quo pertaining to the relationship between the respondent and Champion Constructors (Pvt) Ltd was that the respondent company had contracted Champion Constructors (Pvt) Ltd to service the land and develop residential houses on the subdivisions. The agreement between the parties was that Champion Constructors (Pvt) Ltd would be paid in kind for its services or in the form of completed houses which it would, in turn, sell to prospective home-owners in order to recoup its expenses.

Mrs Elizabeth Chidavaenzi told the court a quo that, in the past, the respondent had mandated Fingold Real Estate to sell two of its properties but it did not sanction the sale of the property in issue. She testified, further, that this is the reason why the agreement of sale was not signed by the seller. Her testimony was to the effect that the appellant was involved in a fraudulent sale which had been masterminded by John Chagaresango of Finhold Real Estate, a close relative of the appellant.

Ms Chidavaenzi said that the first time she became aware of the purported agreement of sale of 26 September 2006, between the appellant and Champion Constructors (Pvt) Ltd, was in November 2006 when lawyers for the appellant began pestering her with demands that she sign the document. She also told the court a quo that on the two occasions that she had mandated Fingold Real Estate to sell properties on the respondent's behalf, she had given them instructions in writing, which she denied doing in this case.

The appellant admitted before the court a quo that John Chagaresango of Fingold Real Estate was a close relation of hers, her elder sister's son. She testified that she signed the agreement of sale before John Chagaresango, Mr Phiri and Faith Muzungu on 26 September 2006. Thereafter, she paid Z$32,500,000= on 28 September 2006, 9 October 2006 and 3 November 2006. The appellant's evidence before the court a quo was that the terms of the agreement of sale were not fully explained to her. She admitted that Ms Chidavaenzi had never authorised her to make improvements to the property.

The court a quo found that, despite being a major shareholder in both the respondent and Champion Constructors (Pvt) Ltd, Ms Chidavaenzi was a “focused, confident and convincing” witness whose “evidence proclaimed loudly and boldly that there was no contract to talk about between Champion Constructors and the appellant.”

The court found, further, that, Fingold Real Estate could not possibly have been mandated to sell the property in question to the appellant by Champion Constructors (Pvt) Ltd or anyone else. The estate agent failed to produce proof of its mandate to sell that particular property.

On the effect of the High Court order relied upon by the appellant as bestowing or confirming that the appellant had acquired the rights, title and interest in the property, the court a quo found that the order was made in default and was against Champion Constructors (Pvt) Ltd and Elizabeth Chidavaenzi. The court's view was that the order was not binding on Drawing Services (Pvt) Ltd or enforceable against it, because, despite being the registered owner of the property, it had also not been cited as a party to the proceedings.

According to the appellant's testimony before the court a quo, John Chagaresango, who worked for Fingold Real Estate, advised her that the property in question was for sale. Accompanied by John Chagaresango, she went to view the property. The property was in the care of Champion Constructors (Pvt) Ltd, which, together with Drawing Services (Pvt) Ltd, the respondent, were under the directorship and shareholding of Elizabeth Chidavaenzi and Keroni Tevera (according to form CR14 produced before the court a quo).

Elizabeth Chidavaenzi testified that Keroni Tevera was a passive participant in the management of the affairs of Champion Constructors (Pvt) Ltd. According to the evidence before the court a quo, after the visit to the Stand, John Chagaresango contacted Elizabeth Chidavaenzi and advised her that the appellant wished to purchase the Stand. It would appear that, upon instruction, Fingold Real Estate drew up a draft agreement, in terms of which the seller, Champion Constructors (Pvt) Ltd, held itself out as being the holder of the rights, title and interest in the property, and as agreeing to sell to the purchaser, the appellant, its right, title and interest on some of the following conditions:

1. The purchase price of the property of Z$32,000,000= (thirty two million Zimbabwe dollars) plus 15% value added tax be paid.

2. A deposit of Z$21,000,000= (twenty one million Zimbabwe dollars) to be paid in full within 48 hours of signing the agreement of sale, failing which the seller shall be entitled to cancel the agreement without further notice.

3. A cash deposit was to be paid by Bank cash transfer to Champion Constructors (Pvt) Ltd.

Clause 8 of the document of sale provided that there would be no variation of the conditions of the agreement unless the variation was in writing and signed by the parties.

In Clause 14, the parties acknowledged that the written agreement between them would be the only agreement and that no other conditions, stipulations, warranties or guarantees would be valid unless included in the agreement.

The appellant signed the proposed agreement on 26 September 2006 before two witnesses. The respondent did not sign. Champion Constructors (Pvt) Ltd did not sign. Elizabeth Chidavaenzi alleges that the estate agents drafted the document without her knowledge and consent. The appellant paid the deposit before the respondent signed the agreement of sale.

Her first instalment was paid on 28 September 2006. It took her up to 3 November to pay the deposit in full, contrary to the provisions of clause 1 of the alleged agreement of sale which stipulated that the deposit must be paid in full within 48 hours of the date of the signature of the agreement. If the appellant signed the alleged agreement on 26 September, and assumed that the seller had done the same, the deposit ought to have been fully paid by 28 September 2006.

It is not in dispute that the appellant subsequently paid the purchase price in full to Champion Constructors (Pvt) Ltd. When she sought to take occupation she was prevented from doing so by the respondent. The appellant applied to the High Court seeking an order declaring that the document she signed on 26 September 2006 constituted a valid and binding agreement of sale between herself and Champion Constructors (Pvt) Ltd. On 19 September 2007, the High Court issued an order on the following terms:

1. The provisional order in case number HC7594A/06 be and is hereby confirmed on the following terms:

(a) That the agreement of sale between the applicant and the first respondent, signed on 26 September 2006, in respect of Stand 3182 of Subdivision A of 159 Prospect be and is hereby declared to be legally binding and enforceable against the first respondent.

Armed with the order, the appellant took occupation of the property against protestation by Elizabeth Chidavaenzi. On 9 June 2008 the respondent issued summons out of the High Court claiming, by vindicatory action, ejectment of the appellant from Stand 3182 of Subdivision A of Stand 159 of Prospect Harare. It alleged that it was the owner of the property in terms of Deed of Transfer DT5668/72.

The respondent alleged that the appellant had no right to occupy the property as she had not entered into an agreement of sale with the registered owner of the property. The respondent alleged that there was no privity of contract between the appellant and the respondent.

In resisting the action, the appellant raised three points:

1. She denied that the respondent was the owner of the property and argued that the right, title, and interest in the property had been lawfully transferred to her by virtue of the declaratory order issued in her favour by the High Court order of 19 September 2007.

2. The appellant alleged that she had a right of occupation to the property by virtue of the agreement of sale with Champion Constructors (Pvt) Ltd.

3. The appellant denied that there was no privity of contract between the respondent and Champion Constructors (Pvt) Ltd as they were both under the directorship of Ms Chidavaenzi, who, according to the appellant, knew about the agreement of sale.

After hearing the evidence of the parties relating to the issues, the court a quo found that the appellant was not a credible witness. The court was not assisted by the evidence of the witnesses called by the appellant to bolster her case. It found Evis Monica Mutodi to have given “a hopelessly confusing piece of evidence”, which, under cross examination, was not consistent with that of the appellant even on the purchase price.

The court found that the appellant said that the purchase price was pegged at $32,000,000= while Evis Monica Mutodi said the purchase price was $32,000,500=. While Evis Monica Mutodi told the court that she had discussed the clauses of the alleged agreement of sale with her, the alleged appellant denied this and testified that she only discussed the agreement of sale with John Chagaresango.

On the veracity of the evidence of John Chagaresango, the court found that he testified to being given a mandate by Elizabeth Chidavaenzi to sell certain of her properties, including what he constantly referred to as Stand 1382, which, in reality, was Stand 3182. The court found his evidence at variance with that of Evis Monica Mutodi when he said that Ms Chidavaenzi had visited the site prior to the appellant doing so. The court also found that when directed to clauses that the appellant had not complied with, all John Chagaresango could say was that the agreement was not based on what the appellant and the witnesses had signed, but other verbal assurances by Ms Chidavaenzi.

In contrast, the court found the evidence of Ms Chidavaenzi to be precise and to the point. It found that the evidence was consistent with her plea and summary of evidence; and, in her evidence-in-chief, and under cross-examination, she maintained the denial that she gave Fingold Real Estate, or anyone, a mandate to dispose of the property.

Having dismissed the defence by the appellant, the court granted the eviction order. It is against the order that the appeal was instituted on the following grounds:

1. The court misdirected itself in concluding that Elizabeth Chidavaenzi was a credible witness, yet her demeanour and the inconsistencies and improbabilities in her evidence justified a finding that she lacked credibility.

2. The Judge misdirected himself by relying on what he considered as not having been put to the plaintiff's witness in cross-examination, yet, those matters related to areas where the evidence of the witnesses was mutually destructive.

3. The court misdirected itself by failing to determine that Elizabeth Chidavaenzi represented both the plaintiff and Champion Constructors (Pvt) Ltd when she sold the property in dispute to the defendant.

4. The Judge misdirected himself in his conclusion that Evis Monica Mutodi's evidence was “hopelessly confusing.”

5. The court misdirected itself in accepting, without criticism, the evidence of Elizabeth Chidavaenzi to the effect that she did not mandate Fingold Real Estate to sell the property in dispute.

6. The court misdirected itself by coming to a contrary conclusion in respect of a fact which was issue estoppel.

7. The court misdirected itself by relying on principles applicable to a lessee to conclude that the defendant, a bona fide possessor, had no right of retention pending compensation for improvements.

8. The Judge misdirected himself by failing to consider that the right of retention arises by operation of law upon the defendant showing that she is a bona fide possessor, and not upon the defendant instituting proceedings to enforce the agreement of sale.

The question whether the respondent, Drawing Services (Private) Limited, was a party to the proposed agreement of sale with the appellant must be answered in the negative. This means that there was simply no privity of contract between the appellant and the respondent. The appellant purported to contract with Champion Constructors (Pvt) Limited - a separate legal entity from the respondent....,.

There was no agreement between the appellant and the respondent in this case as evidenced by the fact that the respondent did not sign the proposed agreement of sale. In fact, the respondent denies offering the property for sale to the appellant....,.

The appellant accordingly paid her cash deposit when there was no obligation on her to pay. Only one party had signed the document on the dates that she paid.

In light of the evidence that there was no agreement of sale between the appellant and the respondent, the fact that both companies are under the directorship of Elizabeth Chidavaenzi does not assist the appellant's case.

An order for the consolidation of these two matters was granted by UCHENA J, by consent, with no order as to costs, on 2 June 2006, for hearing before me on 7 June 2006 in Case Number 3157/06.

The first application, Case No. HC5186/05, concerns an order for specific performance while the second one, Case No.5264/05 seeks an order for the provisional liquidation of Zambezi Paddle Steamer (Pvt) Ltd (hereinafter called ZPS).

On 7 June 2006, at the request of the parties, I postponed the hearing to 13 July 2006.

When the hearing resumed, Mrs Wood, for Turner and Sons (Pvt) Ltd, applied for the forced recusal of Mr de Bourbon, for Dobrock (Pvt) Ltd, on the basis that he had been an arbitrator between these parties in 1994.

She referred to Pertisilis v Calaterra & Anor 1999 (1) ZLR 70 (H) as authority for the proposition that the legal practitioner who acted for a former client is precluded from representing a different client in circumstances where a conflict of interest is likely to arise between the former and present client. SMITH J set out the basis of the rule…, as being that:

“A legal practitioner who represents the adversary of his own client in litigation would clearly be violating his or her duty of loyalty and the common law rules against conflict of interest.”

He proceeded to survey American, English, South Africa, and Zimbabwean decided cases on the point at pages 74C–77F.

While he held that neither a partner nor his employee could represent an opponent of a former client in order to fulfill the adage that justice must not only be done but that it must manifestly and undoubtedly be seen to be done, he nevertheless permitted a partner to represent the opponent on the basis that there was no allegation that the other partner had acquired information from the papers in the possession of his firm which could be used to the former client's disadvantage.

Mrs Wood contended, that, justice will not be seen to be done if Mr de Bourbon was allowed to represent Dobrock (Pvt) Ltd, especially on the liquidation case, where Turner and Sons allege a deadlock has manifested itself between the joint shareholders, a fact found by Mr de Bourbon, as arbitrator, to exist in his 25 June 1994 ruling.

She further foresaw a need to call Mr de Bourbon on the deadlock issue in the liquidation case.

Mr de Bourbon countered by contending that he did not represent either Dobrock (Pvt) Ltd or Turner and Sons (Pvt) Ltd but acted in a quasi-judicial capacity.

He knew of no law which debarred him from representing either party as long as he had not possessed confidential information which could be used to the detriment of his client's adversary. He referred to Benmac Manufacturing (Pvt) Ltd v Angelique Enterprises (Pvt) Ltd 1988 (2) ZLR 52 (H).

In that case, Mr de Bourbon accepted a general retainer from Angelique Enterprises in a matter in which that company was involved in a dispute with Albco. He was, at that time, already seized with a retainer for Benmac Manufacturing in its contest with Angelique Enterprises, supra. He had accepted the retainer in the matter against Albco after assurance from his instructing attorney that there would be no conflict of interest.

It was accepted, in that case, by that attorney, that, he had not come into contact with any confidential information which would prejudice Angelique Enterprises in its contest with Benmac. The Law Society, and two other counsel, had absolved him of any impropriety, but, the Managing Director of Angelique Enterprise, Mr Holland, was not satisfied with their findings and advice.

REYNOLDS J held, that, Angelique Enterprises had not shown that Mr de Bourbon had in fact become acquainted with information that could be used to its detriment which would result in real mischief and real prejudice if he continued to act for Benmac Manufacturing. He did express his reservation on a legal practitioner acting for and against his client in the same or different matters.

Mr de Bourbon submitted that he had not acquired any information that he could possibly utilize to the prejudice of Turner and Sons (Pvt) Ltd and that his impartiality in 1994 had not been impugned by any of the parties.

I went through the arbitral award.

It concerned and dealt with the share of each joint shareholder in the extra costs, which were above the original cost of construction of the large commercial houseboat which Zambezi Paddle Steamer (Pvt) Ltd (ZPS) was to own.

Turner and Sons (Pvt) Ltd was not able to show what information Mr de Bourbon accessed which could prejudice its present defence and claim. If anything, I was satisfied that the arbitral award stands on its own and there would be no need to call the arbitrator to testify on it.

I accordingly dismissed the application for the forced withdrawal of Dobrock (Pvt) Ltd's counsel.

I also postponed the hearing sine die and granted, by consent, authority to Turner and Sons (Pvt) Ltd to file a further affidavit in response to Dobrock (Pvt) Ltd's supplementary affidavit.

I further reserved the question of costs in the provisional liquidation claim to which these additional affidavits pertained.

I eventually set down the matter for hearing on 1 November 2006. I directed that the parties argue the specific performance case first and thereafter proceed to argue the liquidation case.

On 12 October 2005, Dobrock (Pvt) Ltd filed the court application for specific performance against Turner and Sons (Pvt) Ltd and two others. It sought the following order:

“1. That, the respondents, jointly as well as severally, the one paying the other to be absolved shall forthwith undertake all that is necessary and required, including making all payments and completion and signing all documents required in order to procure transfer, without delay, by first respondent to applicant of first respondent's entire shareholding in Zambezi Paddle Steamer (Pvt) Ltd.

2. That, immediately upon registration of transfer in the share register of Zambezi Paddle Steamer (Pvt) Ltd (ZPS) applicant shall pay to first respondent the balance of the purchase price for the said shares; such balance being the sum of $138 million.

3. That, the respondents, jointly as well as severally, the one paying the other to be absolved, shall pay the costs of this application on the scale of legal practitioner and own client.”

The application was served on the three respondents on 13 October 2005 (see Peter Dobson's opposing affidavit of 9 November 2005 for which this averment was accepted by Antony Turner on 2 December 2005).

The three respondents filed their opposition papers on 27 October 2005 and prayed for the dismissal of the applicant's case with costs on the higher scale and made reference to the liquidation claim, case number HC5264/2005.

Case number 5264/05 is a court application brought on 17 October 2005 by Turner and Sons (Pvt) Ltd against Zambezi Paddle Steamer (Pvt) Ltd and Dobrock (Pvt) Ltd. It prayed for the winding up of Zambezi Paddle Steamer (Pvt) Ltd and that a liquidator be appointed in the following terms:

“1. That, first respondent, Zimbabwe Paddle Steamers (Pvt) Ltd be provisionally wound up pending the granting of an order in terms of paragraph 3 hereof or the discharge of this order.

2. That, Mrs Theresa Grimmel, of KPMG Chartered Accountants, Mutual Gardens, 100 The Chase, Emerald Hill, Harare be appointed as provisional liquidator of first respondent company with the powers set out in section 221 of the Act.

3. Any interested party appear before this court sitting at Harare on (a date sixty days from the date of the order) to show cause why an order should not be made placing first respondent's company in liquidation and order that the costs of these proceedings all be costs of the liquidation.

4. That, this order shall be published once in the Government Gazette and once in the Herald Newspaper. Publication shall be in the short form annexed to this order.

5. Any person intending to oppose or support the application on the return day of this order shall:

5.1. Give due notice to the applicant at Messrs Byron Venturas & Partners, 2nd Floor Tanganyika House, Corner 3rd Street/Kwame Nkrumah Avenue, Harare.

5.2. Serve on the applicant, at the address given above, a copy of any affidavit which he files with the Registrar of the High Court.”

The application for provisional liquidation was served on the respondents on 17 October 2005, who entered opposition on 31 October 2005 and filed, on that day, their opposing affidavit by fascimile. The actual opposing affidavit was filed on 9 November 2005.

These two applications were consolidated on the bases that the principal parties were the same and that the fundamental issue in each matter related to the ownership and management control of Zambezi Paddle Steamer (Pvt) Ltd (ZPS).

The pleadings in these consolidated matters are voluminous.

The founding, opposing, answering and supplementary affidavits are reinforced by an assortment of attachments which consists of the Memorandum of Association of Zambezi Paddle Steamer (Pvt) Ltd, electronic mail between the parties, and other documents raised by various people who worked for the parties in various capacities.

I have read all these documents.

It is apparent from these documents that there are areas in which the parties agree and others where they are at variance.

It is appropriate that I first deal with the facts as I have determined them to be from the wealth of information that is set out in the pleadings in both these cases.

The preliminary details on the formation of Zambezi Paddle Steamer (Pvt) Ltd (ZPS), on 3 April 1989, are set out in detail by Anthony Turner (Antony) in his founding affidavit in the liquidation matter, case HC5264/05 (Case No.2). Those details were admitted to by Peter Jameson Dobson (Peter) in his opposing affidavit in that case.

Turner and Sons (Pvt) Ltd agreed with Dobrock (Pvt) Ltd, in 1988, on a joint venture to construct and thereafter operate a 'Mississippi River Boat' for commercial use on Lake Kariba.

The concept of the “Southern Belle” was created by Turner and Sons (Pvt) Ltd who approached Dobrock (Pvt) Ltd.

Dobrock (Pvt) Ltd agreed to become its joint partner in the venture and to provide working capital and investment in the project.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated as the special purpose vehicle through which the large commercial houseboat, MV Southern Belle, would be owned and operated.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated in terms of the Companies Act [Chapter 24:03] with an issued share capital of $30,000 divided into 30,000 shares of $1 each fully paid up. Each of the two joint partners subscribed to 15,000 shares of $1 each in Zambezi Paddle Steamer (Pvt) Ltd.

The joint shareholders agreed that Turner and Sons (Pvt) Ltd would first build a model of the craft, and, thereafter, carryout the necessary construction work and interior design of the vessel at a contracted price. Dobrock (Pvt) Ltd would source both local and foreign raw materials for this construction. The total costs of both these operations would be the total cost of the vessel and would be met equally by the joint shareholders.

The agreement was reduced to writing and signed on 31 May 1991.

The arbitral award, of 15 June 1994, indicated that the vessel was completed in 1994. The original construction price was set at $5,950,000.

The issue before the arbitrator centred on the amount by which the original contract price increased, which issue he resolved.

Zambezi Paddle Steamer (Pvt) Ltd was run for 18 months, from the completion of the vessel in 1994, by Turner and Sons (Pvt) Ltd. Dobrock (Pvt) Ltd thereafter took over the management control of Zambezi Paddle Steamer (Pvt) Ltd and appointed a Managing Director, Adamson, to run it.

It was common cause, that, from 2000, the tourism industry went into decline and this affected the bottom line of the MV Southern Belle operations of Zambezi Paddle Steamer (Pvt) Ltd.

There is evidence, in the form of electronic mail exchanged between Peter Jameson Dobson and Anthony Turner, the principal shareholders in Dobrock (Pvt) Ltd and Turner and Sons (Pvt) Ltd, respectively, between 19 January 2003 and 7 April 2004, that, the joint shareholders were prepared to sell their respective shareholdings in Zambezi Paddle Steamer (Pvt) Ltd to the right suitor - if one came along.

On 4 May 2004, Zambezi Paddle Steamer (Pvt) Ltd Managing Director presented a report which highlighted the difficult circumstances the commercial houseboat operations were in. It required urgent maintenance and refurbishment to attain its former glittering glory.

On 6 June 2004, Anthony Turner indicated his decision to sell his shares in the commercial houseboat to Peter Jameson Dobson. This was a clear pointer to his unwillingness to inject funds for maintenance and refurbishment of the houseboat.

On 18 June 2004, Peter Jameson Dobson indicated his willingness to inject $250 million, for this purpose, provided his shareholding in Zambezi Paddle Steamer (Pvt) Ltd increased by 10% while that of Anthony Turner was reduced by the same percentage. He suggested that the houseboat was valued at approximately $3.5 billion. He followed up this by another e-mail of 25 June 2004.

He received a response on that same day (contained in an email wrongly dated as 6 June 2004) from Anthony Turner in which he offered him his shareholding in Zambezi Paddle Steamer (Pvt) Ltd for the sum of $250 million.

Peter Jameson Dobson duly accepted the offer.

He came to Harare, and, during the period 28 June to 14 July 2004, discussed with Anthony Turner on the terms of payment of Antony's entire shareholding.

He agreed to procure payment where and when Anthony Turner wanted.

The purchase price was agreed at $250 million. It was to be paid by Peter Jameson Dobson into the account of Antony's daughter, Jenny, in the United Kingdom, the bank account details of which he received.

The following day, after the terms of payment had been agreed, Anthony Turner requested part payment of the purchase price in local currency.

Peter Jameson Dobson alleged that he made out cheque payments to Chitekeshe of $115 million and to Vretto of $25 million, as part payment, a total of $140 million which Anthony Turner used to buy a pick-up truck.

This averment was not disputed by Anthony Turner, yet, he maintained, in his other affidavits, that, he was paid $138 million and $112 million remained outstanding.

Peter Jameson Dobson, in his prayer, and in Mr de Bourbon's submissions on behalf of Peter's company, accepted that the outstanding purchase price was $112 million.

No cheques or proof of payment in the sum of $140 million was produced.

I am therefore prepared to hold, that, Peter Jameson Dobson paid $138 million and had an outstanding balance of $112 million.

Anthony Turner averred, in his opposing affidavit, that, he required £12,000 to import a new engine for the craft that he was building, known as the “Zambezi Trader”. This craft would not be in competition with the houseboat at all and he was building it for his own account with the moral support and blessing of Peter Jameson Dobson.

Peter Jameson Dobson agreed to pay this amount into his daughter's bank account in the United Kingdom.

He repeated this allegation in paragraphs 31 and 32 of his founding affidavit in Case No. HC5264/05.

This was to be in lieu of the balance of the purchase price of $112 million.

In Case No. 5264/05, in paragraphs 26 and 27 of his opposing affidavit, Peter Jameson Dobson did not respond to these averments in so far as they refer to the alleged mode of payment in foreign currency.

That payment was to be in foreign currency is clear from Peter Jameson Dobson's own founding affidavit.

In paragraph 18, he averred, that, even when he met Anthony Turner, per chance, at the Borrowdale Race Course, in November 2004, he reassured him, that, notwithstanding the fall in the value of the Zimbabwean dollar against the Pound Sterling, the amount outstanding as the purchase price remained £12,000 being the amount in pounds in July 2004.

The two gentlemen agreed, that, the accountant and company secretary of Zambezi Paddle Steamer (Pvt) Ltd, Paul Turner (Paul), a partner in Ernst and Young Chartered Accountants, would effect the share transfer and receive Anthony Turner's letter of resignation as a director therein.

There was a delay in the transfer of the shares which was occasioned by Paul Turner's attempts to structure a tax avoidance scheme for the benefit and at the insistence of Antony Turner.

I make this finding based on Antony Turner's deliberate failure to respond to Paul Turner's affidavit, which was filed in support of Peter Jameson Dobson's founding affidavit.

It was agreed, that, on 3 August 2004 and 21 August 2004, Peter Jameson Dobson wrote to Anthony Turner enquiring whether or not he had signed the necessary transfer documents and resigned as a director of Zambezi Paddle Steamer (Pvt) Ltd - the two factors which would trigger the payment of the balance of the purchase price by Peter.

It also appears, that, even on 5 November 2004, a date disputed by Athony Turner, who put it as being sometime in September 2004, when the two met at Borrowdale Race Course, Antony intimated that he had been too busy to visit Paul Turner. The parties re-affirmed, that, despite an adverse movement of the Zimbabwe dollar since July 2004, the balance of the purchase price would be paid into Antony's daughter's account in the United Kingdom at the exchange rate agreed in July 2004.

On 17 January 2005, Antony Turner proceeded to appoint Peter Drummond and Martin King as directors of Turner & Sons (Pvt) Ltd, in his stead, who were charged with the responsibility of overseeing Turner & Sons (Pvt) Ltd's interests in the Southern Belle.

A flurry of e-mails followed which attempted to resolve the issue of the sale of Antony Turner's shares in Zambezi Paddle Steamer (Pvt) Ltd, who was claiming, that, the failure by Peter Jameson Dobson to pay the balance of the purchase price timeously amounted to repudiation of the contract.

He therefore regarded himself released from the contract.

The negotiations by the parties culminated in a letter of 23 August 2004 by Turner & Sons (Pvt) Ltd's erstwhile legal practitioners to Dobrock (Pvt) Ltd's legal practitioners which set out the history of their association.

In that letter, Turner & Sons (Pvt) Ltd indicated that it would seek an order to wind up the company in terms of section 206(g) of the Companies Act [Chapter 24:03].

Dobrock (Pvt) Ltd held the firm belief that it had purchased Turner & Sons shareholding and was therefore the sole shareholder in Zambezi Paddle Steamer (Pvt) Ltd.

These disagreements resulted in the two applications, for specific performance and liquidation, that are now before me.

The first issue for determination is whether or not a binding contract of sale was reached between Dobrock (Pvt) Ltd and Turner & Sons (Pvt) Ltd.

It is, I believe, common cause that an agreement of sale was entered into.

In its opposing affidavit, in paragraph 17, Turner & Sons (Pvt) Ltd acknowledges that the parties had a loose gentleman's agreement. Antony Turner concludes that paragraph by stating that "I believe, with respect, that the only explanation that is reasonable in the circumstances is that applicant repudiated the contract."

Paragraph 49(iii), in Case No. HC5264/05, by Turner & Sons (Pvt) Ltd, is to the same effect....,.

Indeed, Mrs Wood, for Turner & Sons (Pvt) Ltd, in paragraph 2 of her written heads of argument, wrote:

"It is apparent from the applicant's own case that the agreement in question was very loose even if it was binding between the parties."

The court was referred to PG Industries (Zim) Ltd v Machawira 2012 (1) ZLR 552 (H), which quoted with approval from R.H. CHRISTIE, Business Law in Zimbabwe, 2^nd ed…, as follows:

“To be effective in creating a contract, acceptance must be so clear and unequivocal as to leave no reasonable doubt in the offeror's mind that his offer has been accepted: Selected Mines & Marketing (Rhodesia) Ltd v Trees Asbestos Mining Co. Ltd 1952 SR 5. The reason for requiring a higher degree of certainty than the standard proof on the preponderance of probability that is universally accepted in civil as opposed to criminal cases is that the offeror is entitled to expect an answer on which he can immediately act without interrupting his business while he weighs up conflicting probabilities in order to decide whether he has a contract or not. A purported acceptance in the form of 'Yes, but…, will not do, because by seeking to add or subtract from the terms of the offer it does not create the necessary agreement but leaves negotiations open.”…,.

VAN DER MERWE, VAN HUYSSTEEN, REINECKE and LUBBER in their book Contract: General Principle, defines on offer as follows;

“An offer is an expression of will, made with the intention of creating an obligatory relationship on certain or ascertainable terms with another, and brought to the attention of the addressee, so as to enable him to establish a contract by accepting the offer as it was made. See Bourbon-Leftley v WPK (Londboul Bpk 1999 (1) SA 902 C; Ideal Fastener Corporation CC v Book Vision (Pty) Ltd t/a Colour, Curaphic 2001 (3) SA 1028 (D)…,.”

LENY J in Wasmuth v Jacobs 1987 (3) SA 629 (SWA)…, had this to say on offers;

“The rules applicable to the interpretation of an offer, or…, are not necessarily the same as the rules which are applicable in the interpretation of contracts. In Borene v Harris 1949 (1) SA 793 (A) at 799, after stating the aforesaid position, GREENBERG JA added:

'Thus, although a contract, even if it be ambiguous, may be and generally is binding,…, the offer itself must be unequivocal, i.e. positive and unambiguous.'”

An offer ought to be definite and complete. If there is no certainty in what was promised or offered and when it was to be fulfilled – there can be no valid offer. See Nestows v Innscor Africa Ltd 2007 (20) ZLR 267 (H).

These are twelve cases, which were consolidated into two matters, which were heard at the same time.

For easy reference, the one matter involved what may be called the ZimSun houses (five (5) defendants under HC2224/08). The five defendants being Alice Ndlovu, Sivumo Ndlovu, Kambarachi Zex Raura, Freda Khumalo and Simolita Maseko.

The other matter involved what may be called the National Housing Fund (“NHF”) houses ((seven (7) defendants under HC2225/08). The seven defendants being Loida Nyathi, Everson Ndebele, Collen Ndebele, Phindile Ncube, Sihlobo Sibanda, Shadreck Ndlovu and Stephen Ndlovu.

The trial lasted twelve days, which is understandable, considering that there were two witnesses for the plaintiff and twelve (12) witnesses for the defendants i.e. all the defendants.

Two of the defendants had died by the time the trial commenced, and they were substituted by the executrix of their estates.

There was a bundle of documents with slightly over four hundred (400) pages as well as some more documents which were later introduced during the course of the trial. However, a closer analysis will show that the issues are fairly simple, and are similar in the seven National Housing Fund (NHF) houses and the five ZimSun houses.

Basically, it boils down to this:

(a) Is the plaintiff the owner of the twelve houses in question, or are the defendants the owners?

(b) If the plaintiff is the owner, then the plaintiff is entitled to an order for:-

(i) Evicting the defendants.

(ii) Damages.

(iii) Costs of suit.

(c) If the defendants are the owners, then they are entitled to transfer of these houses into their names with an order for costs against the plaintiff.

In essence, the defendants have to prove that there were valid contracts of purchase in respect of each of the houses in dispute. The houses concerned are the following:

Loida Nyathi - House 4251
Everson Ndebele - House 4255
Collen Ndebele - House 4247
Phindile Ncube - House 4242
Sihlobo Sibanda - House 4246
Shadreck Ndlovu - House 4241
Stephen Mpofu - House 4244
Alice Ndlovu - House 4403
Sivumo Ndlovu - House 4401
Smolita Maseko - House 4408
Kambashu Zex Raura - House 4407
Fred Khumalo - House 4400

All these properties are at Chinotimba, Victoria Falls.

Cut to the bone, in all instances, the plaintiff claims that these are pool houses for use by plaintiff employees. The plaintiff contends that the defendants were given these pool houses by virtue of their employment with the plaintiff. It further being contended that upon termination of such employment, each individual defendant will cease to occupy the property in issue.

This position does not apply to one of the defendants, Stephen Mpofu, who was never employed by the plaintiff. His case is different but the bottom line is that he was granted occupation through a lease.

Of the twelve defendants, only two, namely, Sihlobo Sibanda and Smolita Maseko are still in the employ of the plaintiff.

As alluded to above, the defendants' counter claim is for an order directing the plaintiff to take all necessary steps to transfer the various stands to each defendant on the basis that the defendants purchased the Stands on a rent-to-buy scheme.

This is denied by the plaintiff.

It is beyond dispute that these properties in issue are registered in the name of the plaintiff. The plaintiff is the registered owner of these twelve Stands. This point is admitted in paragraph 2.3 of each of the defendants' plea under HC2225/08 and paragraph 2.5 in each defendants' plea under HC2224/08.

There are documents from the Ministry of Local Government (“Ministry”) dated 20 July 2000 (pages 45 and 55 of the bundle of documents) which evince the transfer from the Ministry to the plaintiff.

This creates a problem for the defendants who contend the Stands still belong to the Ministry.

They, however, did not take any legal action against the Ministry to prevent the transfer of the Stands from the Ministry to the plaintiff. Be that as it may, I propose to consider the evidence adduced by the parties in turn.

Phillip Ndlovu

He testified on behalf of the plaintiff. He evinced that he has been the Chamber Secretary of the plaintiff since 2006. Whilst he was not employed by the plaintiff in the 1980s or 1990–1992, when most of the events occurred, from the official records available to him, and from his own investigations, the plaintiff was the legitimate owner of the houses in dispute.

He said that the defendants obtained the houses in question from the plaintiff, because of their employment with the plaintiff or because they were quasi-employees of the plaintiff such as Government teachers working at the plaintiff's schools.

In the case of Stephen Mpofu, he obtained the house because the plaintiff had previously made available accommodation to him. It is his testimony that there was a shortage of houses in Victoria Falls during the 1980s, 1990s and to date. This is evinced by documents like the minute from the parent Ministry dated 15 September 1997 produced as evidence. There are various Council deliberations and resolutions captured in the minutes filed of record which confirm the shortage. Such deliberations and resolutions centered around the necessity to provide the plaintiff's employees with accommodation.

There is a memorandum which goes further to explain that some employees were living in toilets on account of the shortage of houses. The National Housing Policy Frameworks for Zimbabwe: A Review of the Policies and Strategies, confirms the shortage.

The defendants also confirm the shortage and concede that they had to wait for some years before they were allocated the houses.

He said there must have been a connection between the defendants' employment with the plaintiff and the allocation of the houses.

This is an independent witness who spoke of matters which related to his professional responsibilities. He was expounding to the court what he knew and observed from the official records. He has no personal interest to pursue and no hidden agenda.

This is in stark contrast to the defendants who had an obvious massive financial interest in the outcome of this case, namely, to retain the houses which they had been informed, as early as 1993, were not theirs, but were in fact pool houses of the plaintiff.

This witness confirmed that all these disputed houses were registered in the name of the plaintiff. This is important as such registration is matter of substance and not form.

He explained that there were attempts to assist the plaintiff employees to acquire houses through CABS finance. These initiatives came to naught because they required the plaintiff to pay cash deposits on behalf of its employees. As the plaintiff is a creature of the Urban Councils Act, section 148 of the Act made such initiatives impossible.

The plaintiff could only act as a guarantor to the employees and not pay cash deposits on their behalf. In such an event, the plaintiff would still require ministerial approval. There is no record of such approval.

He also significantly testified that none of the defendants has written agreement evincing that they have become owners of these houses.

According to the plaintiff's record, there is nothing that shows that ownership of the houses was passed to the defendants. The defendants paid security deposits and monthly rentals and allied charges but not purchase prices for the houses.

The records clearly show that these are pool houses for use by those in the plaintiff's employ.

All the defendants were given notice to vacate these pool houses after they were allocated residential Stands of their own and they refused to do so. They have defiantly remained in occupation of the plaintiff's houses even when most of them have left the plaintiff's employ save for the two defendants still in the plaintiff's employ. They have not exhibited any contract of sale to the plaintiff.

In brief, they have not shown the legal basis upon which they claim the plaintiff sold them the houses. There is no record produced by the defendants that they acquired the houses on rent-to-buy contracts.

He also indicated that other plaintiff employees did not claim these pool houses and moved out.

This witness was subjected to lengthy, tactful, and determined cross-examination. At the end of the day I find that he is a credible witness. He made several concessions favourable to the defendants' case. He is a truthful witness.

Thembinkosi Khumalo

He has been employed by the plaintiff for nineteen (19) years. He is the acting Town Treasurer for the plaintiff. He started in the plaintiff's employ as a Senior Accounting Officer in the Treasury Department.

He mainly corroborated what the first witness said in a material way.

As far as the ZimSun houses are concerned, he said, in 1992, ZimSun had built 160 houses for its staff. These houses were built at the time when the plaintiff was facing acute shortage of accommodation for its staff. The plaintiff approached ZimSun who offered them twelve (12) houses including the five (5) subject of these proceedings as stated above. The plaintiff paid for these houses using Stands on which ZimSun built their staff houses plus an additional amount of Z$68,000.

After acquiring these ZimSun houses, they put in the plaintiff staff and quasi-plaintiff staff.

He confirmed that there were initiatives to sell these houses to staff through CABS, but, as stated by the previous witness, all these came to naught on account of the low salaries of staff and statutory limitations as the plaintiff is a local government.

He said some of the defendants stopped paying rentals in 2007 whereas two, who are still plaintiff employees, have continued paying. These two defendants, who are still plaintiff employees, are Smolita Maseko and Sihlobo Sibanda.

He evinced that if council property is being sold, Treasury Department would be served with an Agreement of Sale. The Agreement of Sale must state the tenure of the loan (if it is not a cash sale), the instalment payable by the beneficiary, and the interest on the loan amount.

He categorically stated that none of the defendants had any Agreement of Sale with the plaintiff.

He said that the Z$500 paid by each defendant was Z$250 for rent and Z$250 for security deposit (good tenancy deposit). He also said when the plaintiff's employees wanted to carry out repairs in these houses, such repairs must first be certified as necessary by the Town Engineer. This is a pre-condition of reimbursement of the tenant by the plaintiff.

As far as defendant Steven Mpofu is concerned, he was not employed by the plaintiff. He was employed by ZimSun. He was renting the plaintiff's guest house. They decided to accommodate him in one of the pool houses on a lease basis.

He was adamant that the plaintiff made a decision to allocate these houses to its employees to attract and retain them. The houses were, however, to remain as pool houses.

He further stated that when houses were allocated by the plaintiff to individuals, whether employees or not, the plaintiff ensured that there were documents which showed the various costs centres such as for the sewer, education levy, etc. This is reflected in receipts such as on pages 250, 251 and 356 of the bundle of documents. This was because the houses in question were being rented.

The defendants had rent cards where credits were entered when payments were made and the payments credited to the appropriate costs centres.

He said Treasury had agreements of sale (rent-to-buy) for other properties allocated to the defendants, but did not have that in respect of the twelve (12) houses in issue. What the defendants had, even on their own admissions, were rent cards. He said a rent card is self-evident and cannot be stretched to mean rent-to-buy.

As far as the letter written by a Mr Lucas M M Sibanda, the former Chief Executive Officer of the plaintiff, he said this individual was dismissed by the plaintiff on account of documented acts of misconduct. He said his letter of support of the defendants is untrustworthy and devious.

On the question of damages, he said rentals for the houses in question were US$150 per month at the lowest rate to US$200 per month for the more expensive ones. He said damages in the sum of US$150 per month in respect of each of the defendants would be appropriate.

This witness was extensively cross-examined by the defendants' counsel. I am satisfied that he gave his evidence well. I find that he is a credible witness. He is very familiar with the financial operations of the plaintiff, and, in particular, he is very familiar with the acquisition of the houses in issue and how the defendants ended up in occupation.

Coming to the defendants' case, I also propose to consider the evidence adduced in turn.

Phindile Ncube

He was employed by the plaintiff between 11 May 1987 and February 2009. He had joined the plaintiff as Revenue Clerk responsible for housing. In 1988 he was elevated to the position of Senior Housing Clerk responsible for the supervision of housing clerks and the computation of the home ownership scheme. He gave a detailed account of the Government Housing policy.

Most of the evidence is not relevant for the determination of the legal issues before me. I will only focus on the relevant part of the testimony.

In relation to the house in dispute, between him and the plaintiff, he says he placed his name on the Housing Waiting List as he was staying with his parents at the time at 3133 Chinotimba. He was allocated the disputed Stand number 4242 Chinotimba. After the allocation, he made improvements on the property as evidence that he considered that the plaintiff allocated the property to him on a rent-to-buy basis. Such improvements comprise of installing burglar bars, fencing of the property, and sharing of the walling costs with the neighbour.

He conceded that he has another property, being Stand 4222 Chinotimba allocated to him by the plaintiff. He said that he, like the other defendants, was sold Stand 4242 because he was on the waiting list. He, however, did not have a single document to prove the purported sale.

Despite the fact that he alleged that he was virtually running the Housing Department of the plaintiff at the relevant time, he could not produce any document to prove his claim. All he had is a rent card.

It is quite clear that the rent card is a tenant's card, not a card to prove ownership. Even his erstwhile legal practitioners conceded this fact on pages 94-95 of the bundle of documents.

He could not explain why he and the other defendants did not sue the Minister responsible for National Housing to transfer the houses in dispute to them, but adopted an attitude of supine indifference, when the said Minister transferred the said houses into the plaintiff's name.

He tried to suggest that during the early 1990s there were no rent-to-buy agreements, and that is why he and other defendants had no documents to support their version of events.

Unfortunately for him, the documents from pages 279 to 415 on the bundle of documents proved otherwise.

In pages 279–285 is a rent-to-buy entered into in 1994 in respect of Stand 5053 Chinotimba. On page 299, the sale agreement was entered into in 1997. His own Agreement of Sale, in respect of Stand 4222, supra, was entered into around 1994. He said that the document by Mr Sibindi, on page 76 of the bundle of documents, was the source of all the defendants' problems.

This is patently untrue because the document was authored in 2007 and yet, at least 14 years earlier, the plaintiff had already said that the houses in question were pool houses and belonged to it.

The plaintiff even has the support of the Workers' Committee in this regard.

This witness held himself out as an expert and the spokesperson for all the twelve defendants. He confidently described himself as a “local government practitioner”. He did this to try to speak with an authoritative voice that brooked no contradiction.

Regrettably, he failed dismally in this endeavour. He was an extremely poor witness. He was not credible as alluded to above. Further, he was a witness with an interest, not only in retaining Stand 4242 Chinotimba, but also because he had obviously misled the other defendants and given them the impression that he was the authoritative voice in respect of the twelve houses in question.

There was the difficulty in that as early as 1991, 1992 and 1993 onwards, the plaintiff had made it clear that the twelve in question belonged to the plaintiff and the plaintiff wanted them back. This is clear in the letters from legal practitioners and also minutes of the seven National Housing Fund houses.

He tried to assert that Central Government gave directives to Councils, such as the plaintiff and thus the plaintiff was obliged to obey these directives which had the force of law. In other words, the local authorities were only agents, or implementing arms of the Central Government.

This assertion was clearly flawed.

The witness was unable to point to any such legislation which made suggestions by Central Government law binding upon Council.

It is clear that the National Housing policies were guidelines. In fact, on page 208 of the bundle of documents, it is made clear that these were guidelines. In any event, the Central Government transferred these houses into the plaintiff's name.

The defendants did not challenge the said transfer before the court.

When he was cross-examined, and asked how it was that all twelve defendants had other Stands in breach of the Central Government policy which he appeared to champion so enthusiastically because it was convenient to him, he made a volte face and said that this policy on the prohibition against multiple ownership of houses in the high density suburbs, was relaxed by the plaintiff.

However, he was unable to provide documentary evidence of such relaxation of the policy. He was unable to do so because he was misleading this court.

Further, he was unable to give the agreed purchase price for the house in dispute. The purchase price is an essential element of the agreement of sale.

He tried to get around by stating that he expected to pay rentals for the house over thirty (30) years and after that the house would be his. He then changed and said that he had fully paid for the house in issue because of inflation.

He ran into great difficulty when he referred to the ZimSun houses, where, again, he tried in vain to hold himself out as an authority on these houses.

He said the purchase price of these houses was $35,000. This figure is not supported by any documentation.

He went on to say that these houses were supposed to be paid for over twenty-five (25) years. But, $35,000 divided by 25 years, then by twelve months to arrive at the monthly payments, gives a figure of $116,67 which is nowhere near the $25,977 purchase price referred to on page 9 of the bundle of documents.

To compound his already difficult situation, he then changed and said that initially the ZimSun houses were paid for by way of a deposit of $250, the monthly rentals of $250 for 25 years.

Simple mathematics shows that the purchase price at $250x12 months x 25 years =$75,000. This figure had no relation to what he was talking about.

He then said that the plaintiff decided to reduce the purchase price to $180.

Still $180x12 months x 25 years = $54,000. This is so because he said the deduction from employees' salaries to pay for the house should not exceed 27% of the employee's salary.

This again was not supported by any documentation.

He further explained that of the $180, $20 would be utilized for service charges and $160 towards the purchase price, still the figure would be almost double the purchase price stated above.

There was no explanation forthcoming from him when the policy to reduce the price from $250 to $180 monthly was effected.

All along, it was the defendants' case that in respect of the ZimSun houses, they had paid a deposit of $250 and monthly instalments of $250. They had paid the full purchase price for the houses in question.

This was their case in their pleadings and synopsis of evidence.

There is no mention in the pleadings of the change to $180 per months or $160 plus $20 service charges per month.

It is highly improbable that if the defendants' erstwhile legal practitioners had been given instructions, they would not have mentioned it in both the pleas and synopsis of evidence.

This was something which was crucial to their case, as it relates to the alleged purchase price.

The fact that this was never mentioned in the pleadings shows that this witness made it up.

These contradictions and changes simply demonstrate a desperate witness who could not tell the truth.

In any event, the issue of the alleged change in the monthly instalments was never put in cross-examination to Mr Khumalo. This shows that it is an after-thought by the witness.

The only inference to be drawn is that the witness was untruthful, and so to the other defendants who supported him in making this assertion.

It is also significant that nowhere in the five defendants' pleas and synopsis of evidence is the alleged purchase price mentioned.

All in all, this witness was totally unreliable and his testimony is not worthy of any belief.

Collen Ndebele

He, like the other defendants, gave similar evidence, which was not supported by any documentation, but in fact contradicted by documentation before the court.

He had no documentation to support his assertion that he entered into an agreement to rent-to-buy the house he was claiming. All he relied upon was a rent card which in fact showed that he was a tenant. He said he believed that he had paid for the house in dispute in full, yet, on his own version he paid just over 20 years. His rent card showed nothing of ownership. His testimony suffers the same weakness as that of the previous witness. He was as un-impressive as the last witness. He was equally evasive on the purchase price and the lack of Agreement of Sale.

Sihlobo Sibanda

He was equally not impressive as a witness. The documents showed that he was allocated the disputed house because of his position as a Bursar, but he made a valiant attempt to deny this.

In his case, he was aware of the problem regarding the houses because he took minutes at Council meetings when the issue was discussed as far back as November 1997. He had no purchase price for the house, but said that he was supposed to pay over thirty (30) years. He said that his waiting list card was taken at the time he was allocated the house in issue, but, somehow, he was allocated another Stand.

The waiting list card must have been taken when he was allocated the latter Stand and not the house in issue.

It is significant to note that in the latter application he used a misleading address i.e. 2512. This was misleading to disguise the fact that he already had another house, 4246 Chinotimba.

In his own version he would have been sold two residential Stands in a space of three years contrary to Government policy. It is clear that he was never sold the house in issue. He is, however, still in the plaintiff's employ and continues to pay rentals through deductions. In this regard, his position is different from other defendants.

Shadreck Ndlovu

Like the previous witnesses, he said a lot but had no documentation to support his assertion that the plaintiff sold him the house in issue.

He had no idea of the purchase price of the house, he was not sure if he paid in full for the house: he was just swimming in a sea of uncertainty.

He said that despite the fact that his waiting list card was taken away when he was allocated the house in dispute, he was allocated Stand 4237 simply because he was a war veteran. He was unable to show anything in the housing policy document to illustrate that war veterans were entitled to be allocated more than one Stand in the high density suburbs.

In any event, in respect of Stand 4237, there were proper documents to show that he entered into a rent-to-buy agreement and yet for the house in dispute such documents were conspicuous by their absence.

Stephen Mpofu

Like other defendants he had no documentation to support his story that he owned the house in question. He had no idea of the purchase price and he did not know how long he was supposed to take to pay for the house. He appeared confused and did not know what was happening.

Everson Ndebele

Like other defendants, he had no documentation for the alleged purchase of the Stand in dispute. His testimony is equally incredible. He received documentation for the other Stand, 4817, but not for the disputed Stand.

Osina Nyathi

She testified on behalf of her late mother who was the original defendant. She tried as much as possible to give the impression that she knew how the house in question was allocated to her late mother. She sadly failed to do so.

Alice Ndlovu

Whereas, Phindile Ncube wanted to be the spokesman in respect of all the twelve houses, this witness attempted to be the spokesperson for the defendants relating to the ZimSun houses.

She made a valiant attempt to use the rent card as proof of ownership.

She was generally an untruthful witness.

She tried to give the impression that she had no connection with Stand 5048 and that that Stand was her husband's. The application papers, on page 405 of the bundle of documents, clearly show that both her and her husband applied for Stand 5044 and correspondence was copied to both of them. She could not give a purchase price. She associated herself with the explanation given by Phindile Ncube in this regard. She said a lot but failed to give a credible account of the alleged purchase of the Stand in dispute.

Smolitha Maseko

Like the previous witness, Sihlobo Sibanda, she is still in the plaintiff's employ and rentals are being deducted from her salary, according to the testimony of the plaintiff's witness Thembinkosi Khumalo.

Like other defendants, she failed to establish that the house in dispute was sold to her. Although, unlike the other defendants, she and Sihlobo Sibanda may not be evicted in terms of the cause of action in casu and ordered to pay damages, suffice to say that they are in occupation of their respective properties on account of their continued employment by the plaintiff and not on account of a sale agreement.

Kambarashe Zex Raura

Like other defendants, he had no agreement of sale to establish that he purchased the house in dispute.

His untruthfulness is evinced by the fact, that, in his application for Stand 5049 he stated that he did not own any other Stand as at 1996, when, in his own version, in 1991, he had been allocated Stand 4407.

This is either a deliberate lie or a confirmation that he was aware that Stand 4407 was a pool house.

He further said he was never told the purchase price, but was advised that he was to pay $250 as deposit and $250 per month. He said there was vague talk of paying $250 per month for 25 years but he was never informed of the purchase price and he could not answer questions on the issue of the purchase price.

I am satisfied he is equally an un-impressive witness.

Sivumo Ndlovu

Like other defendants, she had no documentation to prove that she had entered a lease to buy agreement in respect of the property in issue. This is in stark contrast to the documents which clearly set out the rights and obligations of the respective parties of Stand 5053. She also had no purchase price on the house she claimed she had bought.

Ruth Khumalo

Her testimony is characterized by hearsay. But, the bottom line is that she was unable to produce any documentation to show that she purchased the Stand in dispute.

Having made the above findings of facts, I proceed to consider the effect of these findings and the law applicable.

I have to determine whether there were contracts of purchase and sale between the protagonists in these two matters. I have to determine whether the essentials of a purchase and sale contract are present.

In casu, there is no dispute that there is more than one party to the alleged contracts – Barnhoorn v Duvenage 1964 (2) SA 486 (A)…,.

The crucial issue is whether there was true agreement between the parties.

It is trite that agreement by consent is the foundation of contract – Salisbury Municipality Employees Association v Salisbury City Council 1957 (2) SA (SR) 557; Cinema City (Pty) Ltd v Margenstern Family Estates (Pty) Ltd 1980 (1) SA 796 (A)…, and The Law of Contract in South Africa, R H CHRISTIE 3rd Ed…,.

In order to decide whether a contract exists, one looks first for the true agreement of two or more parties, and, because such agreement can only be revealed by external manifestations, one's approach must of necessity be generally objective.

The court can only judge from external facts whether the minds of the parties have come together – Jordaan v Trollip 1960 IPH A25 (T) and Allen v Sixteen Stirling Investments (Pty) Ltd 1974 (4) 164 (D)…,.

Looking at the evidence led by the plaintiff, there was no meeting of minds that these houses were being sold to the defendants.

It is trite that the most helpful way of determining whether there has been agreement, true or based on quasi-mutual assent, is to look for an offer and an acceptance of that offer. A binding contract is, as a rule, constituted by acceptance of an offer: Reid Bros (SA) Ltd v Fisher Bearing Co Ltd 1943 AD 232…,.

But, offer and acceptance must never be sought for their own sake but as aids in deciding whether an agreement has been reached.

A true offer means an express or implied intention to be bound by the offeree's acceptance – the animus contrahendi: Sambou-Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A)…, and Spes Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd 1983 (1) SA 978 (A).

In casu, there was no such offer to the defendants.

The rent cards produced do not constitute an offer made with the requisite animus contrahendi. There were no unequivocal offers of sale made to the defendants. The offer must be unequivocal i.e. positive and unambiguous: Boernie v Harris 1949 (1) SA 793 (A)…, and Wasmuth v Jacobs 1987 (3) SA 629 (SWA)…,.

Accordingly, from the evidence, there was no agreement by consent or true agreement, or a meeting of minds, or a coincidence of wills, or consensus ad idem between the parties and the only credible explanation is that these houses were pool houses for use at the discretion of the plaintiff.

On this point alone the plaintiff's claims must succeed and the defendants' counter-claims fail.

The distortions caused by the galloping inflation currently characterizing our economy are graphically shown, in part, by the claims that are being brought before the courts. The above, in my view, is one such example.

While inflation is a fact that they must take judicial note of, courts must, in my view, be wary that the distortions caused by inflation in the economy are not transported wholesale into the law thereby causing distortions of legal principles.

The plaintiff operates a butchery from Muzarabani Business Centre in Mashonaland Central. In 2003, he thought of adding to his assets by having a freezer room installed at the butchery. He approached the defendant, who, in or about September 2003, gave him a quotation for installing a 6x8x8 cubic metre cold room for $13 million. In terms of the written quotation, the plaintiff was required to pay 50% of the total cost as a deposit and to show confirmation of the order. A deposit in the sum of $5,4 million was duly paid on 29 September 2003 and installation was to be done in a week's time. On 17 October 2003, the defendant delivered the cold-room, ready to install and commission it. Upon realizing the error, the plaintiff declined to accept delivery and installation of the coldroom whereupon the defendant returned to Harare with the cold room. Efforts to get the defendant to return and install a freezer room were in vain, prompting the plaintiff to approach his legal practitioners for assistance.

In April 2004, the defendant refunded the sum of $1,955,000= to the plaintiff, retaining the sum of $3,445,000= as necessary expenses incurred in manufacturing and attempting to deliver the cold room to the plaintiff. Unhappy with this development, the plaintiff issued summons claiming a payment of the sum of “$13,000,000= of $2,480,000= which is current $657,200,000=, with room to in increase it to match the current costs of installing a freezer room at trial”…., together with interest at the prescribed rate from date of the deposit to date of payment in full and costs of suit.

At the trial of the matter, the claim was amended to $53 billion.

The matter was defended.

In its plea, the defendant denied that it ever quoted the plaintiff for the supply and installation of a freezer room and averred that it quoted it for the supply and installation of a cold room.

At the trial of the matter, the defendant was in default, and, in terms of Rules 59A and 60 of the High Court Rules, 1972 I called upon the plaintiff to lead evidence on the amount of his claim.

The plaintiff's evidence was largely a rehash of the facts of the matter as I have detailed above. In addition, the plaintiff adduced into evidence a quotation that he obtained from a company called Commercial Refrigeration in the sum of $202 billion. The date of the quotation is not given on the handwritten quotation which also includes a component of foreign currency.

When asked to explain his claim in the sum of $53 billion, the plaintiff had the following to say, in part:

“I am claiming an amount that has the same value as the amount that I paid to the defendant in 2003.”

He went on, further, to explain that the amount he is claiming is one quarter of the total amount of the quotation from Commercial Refrigeration just as the amount that the defendant retained was a quarter of the quotation it had given him.

At the commencement of the trial I was under the impression that the plaintiff's claim was one of damages.

It was with this response that it appeared to me that he is simply claiming a refund of the amount that the defendant retained as expenses of manufacturing the cold room and travelling to and from Muzarabani with the wrong refrigeration unit, not at its nominal value, but, at its appreciated value, taking into account the impact of inflation.

His claim appears to me to be one for a debt and not for damages arising ex contractu.

The plaintiff's evidence was to the effect that the sum of $3,445,000= that was retained by the defendant in 2004 now has the same value as $53 billion which he claims. It became clear to me, from this response, that the plaintiff is raising inflation as the basis of his claim.

The plaintiff's stance was re-affirmed by counsel for the plaintiff when he addressed me on the issue.

His argument was to the effect that the plaintiff is entitled to claim the same percentage of the amount that it will now cost to supply and install a freezer room as was the percentage of the amount that the defendant retained in 2004 to the cost of installing a cold room in 2004.

Judges have often used telling adjectives to describe submissions they did not expect from legal practitioners such as “startling” or “ingenious”. Neither term aptly describes my sentiments at being presented with this submission.

I hasten to remark that the matter before me, although set down for trial, proceeded as an application for default judgment.

Ordinarily, a request for default judgment is hardly denied, as, by his default, the defendant is taken to have admitted all the averments made by the plaintiff. I am also aware of the school of thought that holds the view that it is not for a judge or the court determining an application for default judgment to act as the unpaid and un-briefed counsel for the defendant who is in default and deny a plaintiff judgment on issues that the defendant may not have raised if in attendance. Thus, a court dealing with an application for default judgment is perfectly within its rights to enter a default judgment not on the merits of the matter but on the technical basis that the defendant is in default even in cases where it is of the opinion that a defence may have been available to the defendant.

There is, in my view, however, a limit to the non-participatory role that a court may play in an application for default judgment. In my view, where a claim is clearly not well founded in law, a court may not give judgment on such a claim simply on the basis that the defendant is in default. Similarly, where damages have not been adequately proved to the satisfaction of the court, judgment may not be entered in the claimed sum; again, simply on the basis that the defendant is in default.

The basis for drawing the limit to the non-participatory role of the court, in my view, is the fundamental principle that after the parties have made their submissions to the court, the decision or order that is made is solely that of the court and such decision or order must find a basis in law at all times.

In my view, the claim before me is a case compelling me to abandon my non-participatory role for two reasons;

(i) Firstly, I take the view that the plaintiff's claim, being a claim in which the alleged debt has been appreciated to take into account inflation, is badly founded in law. Courts will take inflation into account when assessing damages in certain delictual claims but inflation, on its own, cannot be a cause of action.

In Edward Marume and Another v Todd Muranganwa HH27-07, I had occasion to deal with the issue of inflation in another application for default judgment. The following were my views on the matter:

“In my view, the issue involves a detailed discussion of 'currency nominalism' and 'revalorization' and the place of such concepts in Zimbabwean Law.”

The concept of currency nominalism has been held to be applicable in all aspects of South African Law. See SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833. In view of the provisions of the Prescribed Rate of Interest Act, there is a strong case for arguing that the concept also underlies all aspects of Zimbabwean law and that revalorisation, or the appreciation of debts to take into account inflation has no place in our law.

Again, like in Edward Marume and Another v Todd Muranganwa HH27-07, I have not been adequately addressed on the issue.

I hold the view that the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.

Assuming that I have erred in classifying the plaintiff's claim as one based on inflation, and that properly it is one seeking damages for an alleged breach of contract, then, in my view, two other issues arise;

(i) Firstly, it has not been proved that the retention of the sum of $3,455,000= was wrongful in any way or that it constituted breach of the contract between the parties. In fact, it would appear to me that the parties were not ad idem as the plaintiff requested for a freezer room and the defendant supplied a cold room. The offer and the acceptance did not coincide and the parties never had a contract in my view.

Even if one were to be generous and hold that there was a contract that the defendant breached by supplying the wrong refrigeration unit, the damages suffered by the plaintiff for the alleged breach have not been adequately proved.

It cannot be said that the quotation from Commercial refrigeration in any way represents the correct loss of value in money between 2004 and the date of the hearing. It has also not been proved that the quotation by Commercial Refrigeration has any relationship to the quotation given by the defendant in 2003. One was quoting for a cold room of different dimensions and the other was quoting for a freezer room of entirely different dimensions.

How the one can be tendered as proof of the value of the other was not argued before me.

Despite much effort, I cannot figure out a possible argument on the relationship myself.

For the above reasons, I cannot accede to the prayer for default judgment in the matter in the amount prayed.

I have anxiously considered whether I can grant judgment in the sum of $3,455= that was retained by the defendant in 2004 together with interest thereon at the prescribed rate from the date of the retention to date of payment. The amount involved, even with interest, is so pitiful, in my view, as to make a mockery of the justice delivery system where I to order its payment. In m view, the plaintiff is best served by the order that I make below.

In the result, I make the following order:

1. The defendant is granted absolution from the instance.

2. The plaintiff is hereby granted leave, after effecting necessary amendments to his claim, and upon service of such on the defendant, to set the matter down for judgment in terms of Rule 58 of the High Court Rules, 1972.

3. There shall be no order as to costs.

This was an opposed court application that I heard on 16 September 2013. Soon after argument I issued the following order:

“1. The Respondent's objections in limine are dismissed.

2. The Applicant's application to delete “(Private)” in the name of the Respondent [and] in its place to substitute “(Zimbabwe)” is granted.

3. It is hereby declared that the Applicant is entitled to purchase [the] motor vehicle, namely, a Mazda Familia Registration number AAM 7769 at 10% of its market value.

4. The Respondent is directed to cause an evaluation of the said motor vehicle to establish its open market value and to sell to the Applicant the vehicle at 10% of the market value so established.

5. The Respondent shall pay the costs of suit.”...,.

In this matter the applicant sought an order declaring, in the main, that she was entitled to purchase a certain Mazda Familia motor vehicle, registration no. AAM 7769 (hereafter referred to as “the motor vehicle” or “the vehicle”), at 10% of the market value. The facts were largely common cause. They were these;

The applicant had just resigned from employment with the respondent after five years. The motor vehicle had been a company car issued to her in terms of the respondent's motor vehicle policy. She applied to buy it. Initially, the sole dispute was whether the applicant was entitled to buy the vehicle at 10% of the market value as she contended, or at the market value, less 10%, as the respondent contended. The applicant based her claim on a document that she said was the relevant motor vehicle policy that governed her employment.

The respondent based its contention on another document that it said was the amended policy that had been introduced during the applicant's tenure of employment and which, allegedly, had replaced the applicant's document.

With time, the dispute escalated to include the argument that the sale of any company vehicle to incumbent holders was at the discretion of the respondent as the employer and owner of such vehicles and that in the applicant's case, the respondent had decided against selling. It was also argued that when initially the respondent had communicated its offer to her the applicant had purported to accept something else which had not been in the respondent's offer....,.

The crux of the matter before me was which of the two documents touted by the parties as the motor vehicle policy governed the applicant's employment at the relevant time?

Two other issues raised, somewhat belatedly, were;

(1) Whether or not the respondent had agreed to sell the motor vehicle to the applicant; and

(2) If it had, at what price?...,.

The respondent's argument was also developed to say that even if I found that it had agreed to sell to the applicant, the sale was not perfecta, allegedly because what the respondent had offered is not what the applicant had accepted. It was put this way in the respondent's heads of argument:

“6.2 Further, for a contract to be formed it is necessary that the offeree must, in agreeing, accept the exact terms offered by the offeror. Where the offeree makes a counter-offer or signifies a qualified acceptance of the offer, the offer is taken to have been refused and no contract is formed – see Orion Investments (Private) Limited v Ujaama (sic) Investments (Private) Limited 1987 (1) ZLR (sic).

6.3 The Applicant was made an offer to purchase the vehicle, the Applicant accepted an offer that was not made to her, and, as such, no contract came into existence.”...,.

In the present case, my decision to grant the applicant the relief that she sought was predicated on a finding that not only had it been the position that the conditions precedent to the right or obligation to sell the vehicle had come to pass, which was common cause, but also that the respondent, as a matter of fact, had sold the vehicle to the applicant. 

In other words, contrary to the argument that the offer that the respondent had made was not the one the applicant had accepted, I found that there had been an acceptance of the terms offered and in the mode prescribed. 

The formula for arriving at the purchase price, namely, 10% of the market price, was known. It was common cause. That the respondent sought to clutter that position with irrelevancy, or that its own calculation of the actual amount payable in dollars and cents, was skewed, could not deprive the applicant of her right to buy the vehicle at 10% of the market price. This appears crisply from the relevant correspondence between the parties. On 30 June 2011 the applicant wrote to the respondent's Group Chief Executive Officer tendering her resignation from employment. She also applied, or offered to buy, the vehicle. The relevant portion of her letter was as follows:

“I am also in possession of two company assets, my company car which I have offered to buy as guided by the motor vehicle policy and your good office, and my laptop which I'd also be prepared to buy if the company allows.”

On 10 August 2011 the respondent's Group Chief Executive Officer responded as follows:

“Dear Gladys,

RE: PURCHASE OF COMPANY VEHICLE

Reference is made to our conversation regarding the above matter. We have taken due consideration to your request to purchase certain company assets allocated to you during your employment with us. We are pleased to inform you that, in terms of the PGIZ Motor Vehicle Policy, you may purchase the motor vehicle that is currently in your possession for 10% of market value less 10% or at Net Book Value, whichever is he (sic) lesser. In your case, the average market value for the vehicle, Mazda Familiar (sic) Registration Number AAM 7769, is $3,500 while the depreciated net book value is $3,990. Therefore, in line with the new vehicle policy above, you may purchase the vehicle for $3,150. Please note that you are required to pay this purchase price in full at the time of your departure. However, your offer to purchase the laptop computer allocated to you for work purposes has not been accepted. It will be re-allocated to another member of staff in the Department.”…,.

There can be no question that the respondent, through its Group Chief Executive Officer, had offered to sell the vehicle to the applicant.

The method of fixing the purchase price had all been set out in the policy in advance. Therefore, once the market price had been established it was all rather superfluous for the respondent's Group Chief Executive Officer to have gone to mention the actual figure. Unfortunately, he got entangled in the process. But he had correctly recited the formula, namely, 10% of the market price. But his mind had undoubtedly been clouded by the illegitimate new clause 11.0. He had also purported to recite the new illegitimate formula, namely, the market price less 10%, and to fix an amount on that basis.

That was wrong. The applicant was not bound by that.

There was no question of the applicant having accepted terms that were different from those of the offer, or of her having made a counter offer, as argued by the respondent. The material portion of her letter of response, on 16 August 2011, was as follows:

“Dear Mr. H. M. Munyati

RE: Purchase of Mazda 323 Familia Registration Number AAM 7769

Reference is made to your letter dated 10 August 2011, reference number HM/CM10082011 regarding the above matter. With reference to paragraph 2, lines 2 to line 4 where you state; 'We are pleased to inform you that in terms of the PGIZ Motor Vehicle Policy, you may purchase the motor vehicle that is currently in your possession for 10% of market value less 10%…,' I have accepted this offer and have paid the sum in full into the PG Stanbic account number 0222020998050 as per your instructions in paragraph 3 where you say the purchase price is to be paid in full at the time of my departure. Copies of deposit slip number 522141 and cash deposit advice number 1879264 are attached…,.”

The applicant then went on to tabulate and show that 10% of US$3,500 would be US$350 and that 10% less of that amount would be US$35. She had then gone on to deduct the US$35 from the US$350 to remain with a net figure of US$315. That is what she said she had deposited into the respondent's Bank account. The applicant concluded her letter by requesting the respondent to facilitate the change of ownership of the vehicle into her name.

The respondent stated that where a mode of communication of the acceptance of an offer is prescribed, the offeree is bound to accept in the mode so prescribed.

To me, that is what the applicant did.

The respondent had directed her to pay the purchase price in full at the time of her departure. Of course, to the respondent that amount was US$3,150 not US$315. But, I have already shown that the Chief Executive Officer had been mistaken or wrong on that score. However, the applicant having correctly adverted to the correct formula for arriving at the purchase price, as set out in the genuine motor vehicle policy, was, in my view, and with all due respect to her, mischievous in going further to deduct US$35 from the US$350. It was plainly a typing error by the respondent's Chief Executive Officer to have said, in his letter of 10 August 2011 “…, for 10% of market value less 10% or…,.” The applicant could not reasonably have understood that as anything else other than a patent mistake. Such a formula was not provided for anywhere else. The applicant could not seek to bind the respondent to such a mistake, which was, in the scheme of things, manifestly harmless.

It was on the basis of the foregoing reasons that I granted the relief sought.