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.