Consensus Ad Idem re: Fraud or Fraudum Legis, Duress, Undue Influence and Misrepresentation

HH38-12 : PAUL CHIONISO MAWACHA AND CECILIA MAWACHA vs STERBY NHAMO AND INNOCENT NHAMO AN ANOTHER
Ruled By: KUDYA J

The plaintiffs sold their property freely and voluntarily without any undue influence. The evidence led does not reveal that they were deceived, defrauded or acted on any misrepresentation...they were the ones who firmly drove the deal.

HB12-12 : KENNEDY GWAMURE vs DINGANI TSHUMA
Ruled By: NDOU J

On the issue that the respondent was forced by his girlfriend and her father to sell the house.the respondent does not allege that the applicant in any manner forced him into the agreement or that the applicant acted in any manner that could cause the contract to be said to be void or voidable. ...

HH08-09 : TARUVA TARUVA vs DEVEN ENGINEERING P/L and MOTEC HOLDINGS P/L and REGISTERING OFFICER, CENTRAL VEHICLE REGISTRY
Ruled By: MAKARAU JP

The plaintiff joined the first defendant on 1 July 2006. He was employed by the first defendant as its Financial Controller and Company Secretary. It was a specific term of his employment that the plaintiff would be entitled to the use of a motor vehicle and to participate in the Group motor vehicle scheme. In ...

On 31 July 2007, the plaintiff left the employment of the first defendant. He took the motor vehicle with him. On 10 August, he was recalled to the offices of the second defendant, the holding company for the first defendant, to discuss the issue of the motor vehicle. After discussions, the plaintiff swore to an affidavit in which he deposed that he had sold the motor vehicle to the first defendant. He then surrendered possession of the vehicle to the first defendant but retained the registration book of the motor vehicle and the spare keys to the vehicle.

On 7 September 2007, the plaintiff issued summons against the defendants, claiming the following orders:

“1. Declaring that the purported sale of the Mazda 3 Registration Number AAV 8577; Engine No. LF614706; Chasis No. JMZBK12F201323749, non-existent, null and void ab initio;

2. Declaring that the affidavit issued and authoured by defendants and signed by plaintiff which confirms the purported sale is null and void ab initio because of having been induced by duress and moreso for lack of compliance with lawful and proper laws of authentication and commissioning (notarial practice).

3. Compelling the 1^st and 2^nd defendants to restore possession of the vehicle, Mazda 3 registration Number AAV 8577; Engine No. LF614706; Chasis No. JMZBK12F201323749 to the plaintiff within 24 hours of this order; and, in the event that the 1^st and 2^nd defendant have failed to do so, the Deputy Sheriff is and hereby ordered to effect restoration of possession and ownership of the vehicle to plaintiff from 1^st and 2^nd defendants by whatever means available to his disposal;

OR, ALTERNATIVELY

4. In the event that the 1^st and 2^nd defendants having changed ownership of the vehicle referred to in paragraph 1, all defendants are hereby ordered to reverse the ownership into the names of the plaintiff within seven days of this order and the event of failure to do so, the Deputy Sheriff is hereby ordered to reverse ownership into the name of the plaintiff.”

The suit was defended.

In the main, the defendants contended that the plaintiff had compromised any alleged rights that he had to the motor vehicle under the scheme and his contract of employment when he voluntarily agreed to pay for the motor vehicle at its market value before he could claim it as his.

At the trial of the matter, the plaintiff gave the following evidence.

He was employed by the first defendant as Financial Controller and Company Secretary on 1 July 2006. In terms of the contract of employment, he was entitled to the use of a vehicle. A new motor vehicle scheme was then introduced in September 2006. As he was in the requisite grade, he was entitled to participate in the new scheme. In April 2007, he was informed by the Human Resources Executive that the scheme was now operational. A couple of emails were exchanged between the parties in this regard. He was given a loan agreement whereby the first defendant was loaning to him a sum equivalent to the cost price of the vehicle. The amount of the loan was agreed in the sum of $5,304,200=. He duly signed the loan agreement, and, in due course, the deductions specified in the agreement to offset the loan were made against his salary.

At some stage, he discussed the issue of the change of ownership of the motor vehicle into his name with the first defendant's Managing Director, who then facilitated such.

In July 2007, he tendered a letter indicating his intention to resign from the first defendant. After discussing the issue with his Managing Director, he paid up the balance outstanding on the loan. On July 31, he terminated his employment with the first defendant and took the motor vehicle with him.

On 1 August he was invited to a farewell party at which his Managing Director intimated that the motor vehicle scheme would be varied. This was soon followed by a request that he attends a meeting at the offices of the second defendant. The request and the meeting were on August 10, 2007. Present at the meeting were the Group Managing Director, Mr B Kumalo; the Group Commercial Director, Mr Morris Chinyani. He was advised that the defendants were going to revalue the vehicle. Mr Kumalo then gave him an affidavit to sign. In giving him the affidavit, he said if he did not sign it, he, Kumalo, was going to incarcerate him. At the time, he had an aunt who was not feeling well. He intended to travel and attend to her. Kumalo forced him to sign the affidavit, which he did. Had he not been forced to sign the affidavit, he would have prepared it himself and supplied all the details missing from the affidavit.

The defendants withheld the motor vehicle.

On the same day of the meeting, Kumalo wrote a letter confirming that he would have the vehicle revalued. He followed this, on 20 August, with another letter, advising the plaintiff the amount that he had to pay. The plaintiff got the impression that Kumalo was now revaluing the loan and sought the advice of his legal practitioners.

He denied that the parties reached any agreement and that he compromised his claim to the vehicle.

Under cross–examination, the plaintiff testified that he was only threatened with incarceration by Kumalo after he had brought the motor vehicle back. In this regard, he testified that two meetings were actually held on the same day even though he would not refer to the second one as a meeting. The threat came after the inspection of the vehicle.

The plaintiff did not impress as a witness. I gained the impression that he was not telling me the truth about the circumstances, nature, and the time when he was allegedly threatened and coerced against his will into signing the affidavit. He was clearly inconsistent on this point.

Firstly, he testified that he was coerced into signing the affidavit during the course of the meeting. When he was asked why he did not report the extortion to the police when he went to his house to pick up the motor vehicle, he realized the inadequacy of his testimony and altered it to allege that he was only threatened after he had brought the vehicle to the defendant' premises.

He was not detailed or clear as to the nature of the threat and how this may have broken his will and made him do what Kumalo requested of him. His alleged fear of incarceration was most unreasonable in the circumstances where he had not committed any offence and no allegation of criminality was being levelled against him. No police were in attendance at the meeting and no evidence was adduced to the effect that a report had been made against him to the local police.

The sick aunt, who later sadly passed on, was not mentioned during the meeting and there was no evidence adduced that Kumalo was aware of her and her condition and used this to bend the will of the plaintiff to his purposes.

All in all, I find the evidence of the plaintiff on this issue most unreliable especially when I compare it with the evidence of the defendants' witnesses as to what transpired at the all important meeting of 10 August 2007.

In my view, having found the evidence of the plaintiff unreliable on the above issue, this marks the end of the inquiry into the matter as the plaintiff has failed to prove, on a balance of probabilities, that he was coerced into parting with possession of the motor vehicle and was further coerced into entering into a new arrangement regarding the motor vehicle.

HH120-09 : EDSON MUDZIVO AND EMILY MUDZIVO vs NOREST NYAMAKOPE
Ruled By: MAKARAU JP

The facts of this application are common cause. I summarise them as follows. On 17 October, 2008, the parties concluded a written Agreement of Sale. In terms of the Agreement, the respondent sold to the applicants a piece of land called 414 Manresa Park, Harare. The land was sold for the sum of US$18,000=. The purchase ...

HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.

The plaintiff asserted that he entered into the agreement with the first and second defendants on the other hand through the agency of PMA Real Estate Agency (Pvt) Ltd.

The first defendant denied that he ever entered into an agreement of sale with the plaintiff. He denied authorising PMA Real Estate Agency to sell his rights and interests in House No.5706 Muroro Crescent Glen Norah B, Harare.

The first defendant, Zondai Chimbwanda, and the second defendant, Givemore Karimazondo, are joint holders of certain personal rights and interests in the property known as No.5706 Muroro Crescent, Glen Norah B, Harare in equal shares. As holders of equal shares in the said property they agreed between themselves to dispose of their rights and interests in the property. Pursuant to this understanding, the second defendant approached PMA Real Estate and granted them a mandate to sell the said rights and interests.

At the material time, the first respondent was out of the country in Botswana.

In completing the mandate to sell form, the second defendant endorsed both the first and second defendants names as holders of rights and interests in the property.

That form was however signed by the second defendant only.

PMA Real Estate Agency proceeded to advertise the property and the plaintiff expressed interest. On 16 August 2005, the plaintiff executed an irrevocable offer and acceptance form in which he offered a purchase price of $220 million. On 17 August 2005, the second defendant appended his signature to that form in acceptance of the offer as seller.

Thereafter, on 18 August 2005, an agreement of sale was drawn up by PMA Real Estate Agency. The agreement of sale was executed by the plaintiff and the second defendant.

The plaintiff paid a deposit of $214 million to PMA Real Estate and the balance was to be paid in instalments.

The purchase price was subsequently revised upwards to Z$260 million.

The plaintiff paid the balance of the purchase price to PMA Real Estate Agency. The agreement of sale was amended to reflect the new purchase price of Z$260 million (see exb. 5).

It is common cause that when the parties entered into the agreement of sale they knew that the agreement was conditional on the first defendant ratifying the agreement upon his return from Botswana.

The first and second defendants subsequently sold the same rights and interests in the property in question to the third defendant, in September 2005, for the price of Z$350 million.

The third defendant duly paid the purchase price and has since taken occupation of the property.

His effort at obtaining cession was stalled when PMA Real Estate Agency advised the fourth respondent that the same property had been sold to the plaintiff and so no cession should be effected.

The plaintiff therefore brought this suit against the first and second defendants seeking:-

(1) Cession of Stand No.5706 Muroro Crescent, Glen Norah B, Harare into his name, alternatively;

(2) The sum of Z$15 billion being the cost of a house similar to Stand 5706, as at the date of the summons, being 14 November 2007.

The first defendant denied that he had ever agreed to the purchase price purportedly paid to PMA Real Estate by the plaintiff and he also contended that he never ratified the agreement of sale.

The second defendant, in his plea, conceded that he had entered into that agreement conditional on the first defendant ratifying it.

The issues for determination were essentially three, namely:-

(1) Whether there was a binding agreement of sale between the plaintiff and first and second defendants or not;

(2) If the answer to the above is in the affirmative, whether the third defendant was himself an innocent third party purchaser.

(3) If so, who between the two purchasers has dominant rights over the property in dispute.

It is pertinent to note that a conditional sale can only be valid/binding where the condition precedent has been fulfilled.

It is the fulfilment of the condition that gives life to such an agreement.

In casu, the plaintiff and PMA Real Estate were made aware that whatever they were entering into with the second defendant was conditional upon the second defendant ratifying such agreement.

In this regard, it may be noted that ratification is the act of adopting a contract or other transaction by a person who was not bound by it originally: see Osborne's Concise Law Dictionary, 6th Edition, by J. BURKE.

The prerequisite of ratification may be stated as follows:-

“1. The contract must be professedly made on behalf of the principal.

2. There must be a competent principal at the time of the contract.

3. The contract must not be void.

See CHESHIRE, FIFOOT and FURMSTAN's Law of Contract, 11th Edition…,.

Ratification may be express or tacit. Ratification may be implied from an act or conduct showing an interest to adopt the contract.

In casu, the plaintiff alleged that the first defendant ratified the agreement of sale that had been entered on his behalf as joint-holder of rights and interest by the second defendant.

In support of his case, the plaintiff gave evidence and called two witnesses from PMA Real Estate Agency, namely, Simon Mukondo and Jerry Ndemera.

The first defendant gave evidence. The second defendant did not avail himself for trial though he had participated in the proceedings up to the pre-trial conference stage.

In his evidence, the plaintiff alluded to the fact that he himself never came into contact with the first defendant. His assertion that the first defendant ratified the agreement of sale was based on reports he received from PMA Real Estate Agency. He thus could not vouch for certainty that the first defendant, either by word of mouth or in writing, ratified the agreement.

All the documentary exhibits he tendered in support of his case did not have the first defendant's signature.

The conduct that he could only refer to was again based on reports he received from PMA Real Estate that the first defendant had given his consent to the agreement of sale subject to an upward increase in the purchase price.

He had no direct evidence of the first defendant ratifying the Agreement of Sale.

Mr Simon Mukondo gave evidence next. He is a co-shareholder in PMA Real Estate Agency. He is also the Principal Registered Agent of PMA Real Estate Agency.

His evidence was to the effect that PMA Real Estate Agency was given mandate to sell by the second defendant. The second defendant had made it clear the rights and interests were jointly held. That mandate to sell was signed by the second defendant as seller. The co-holder of rights and interests, the first defendant, did not sign the mandate to sell and did not, in his own right, give such mandate.

The second defendant did not provide a power of attorney, or some other written authority, from the first defendant, for him to dispose the first defendant's rights and interests in the property in question.

Despite this omission, PMA Real Estate Agency proceeded to advertise and sell the rights and interests as instructed by the second defendant. This, PMA Real Estate did on the second defendant's word that he had such mandate and that the first defendant would ratify the agreement of sale upon his return from Botswana.

The agreement of sale was executed on 18 August 2005.

It was Mr Mukondo's evidence that on the next day after execution, Mr Jerry Ndemera and the second defendant approached him in his office. They advised him that the two of them had been in touch with the first defendant on the phone who was still in Botswana. They advised that the first defendant had dictated terms for them to re-do the agreement. They had the dictated terms on a piece of paper. That piece of paper was tendered into evidence as part of the plaintiff's bundle of documents. The document in question is on page 7 of the said bundle. The terms on the document were that:

1. That the selling price should be increased to Z$260 million;

2. That the payment would be strictly cash of Z$220 million and balance of Z$40 million would be paid in two instalments in the months of September and October; and

3. That the seller who was present tenant would vacate when schools calendar for 3rd term 2005 ended;

4. The last point was that once the last payment was done, in October, the seller would become a tenant paying rent.

As at that stage, when these terms were brought to his attention, Mr Mukondo had not seen or spoken to the first defendant.

Mr Mukondo said that he saw the first defendant for the first time when the first defendant came with the second defendant in the company of a woman he thought/believed was the first defendant's wife.

When this trio came, the first defendant demanded to be paid the purchase price. They refused to release the money to him contending that they could not do so before cession. The first defendant had then offered that cession be done that same day but this was not done. The first defendant had then said that if he was not paid on that day then the purchase price would go up.

The first defendant was not made to sign the Agreement of Sale or any other document relating to the Agreement of Sale of his rights and interests in the property in question.

The next witness was Mr Jerry Ndemera. At the material time he was employed by PMA Real Estate Agency as Sales Manager.

In his evidence, Mr Ndemera confirmed that PMA Real Estate Agency dealt with the second defendant upon the second defendant's word that he had the mandate to sell from the co-holder of rights and interests in the property.

There was no request or insistence on the second defendant furnishing the requisite power of attorney or and other written authority from the first defendant.

PMA Real Estate Agency were spurred to act simply on the second defendant's assurance.

It was not till after the Agreement of Sale had been concluded that he saw the first defendant.

On his first meeting with the first defendant, the first defendant did not agree with what had been entered into. According to Mr Ndemera, the first defendant came to see him on the day page 7 of the plaintiff's bundle of documents was written.

Mr Ndemera contradicted Mr Mukondo's evidence on how this document came to be.

His evidence was to the effect that this document was written by the first defendant on the day the first defendant came to their offices. He is the one who in fact provided the first defendant with the piece of paper to write on when the first defendant indicated there were some terms to be changed.

The contradiction was in that Mr Mukondo had said Mr Ndemera had indicated to him that the first defendant had dictated those terms on the phone from Botswana and not that the first defendant had come to their offices.

Despite Mr Ndemera's contention that this document was written by the first defendant, he was unable to explain why the first defendant did not append his signature thereto. Instead, the signature thereon is that of Mr Ndemera, just as he had signed for the second seller in exhibit. 1, the Agreement of Sale.

If indeed the first defendant had, on this occasion, ratified the Agreement of Sale, albeit with an increased purchase price and additional terms, he would at least have signed on this document to signify his approval of the transaction, if those terms were accepted by the plaintiff.

It was Mr Ndemera's evidence that the first defendant must have come to their offices on 2 or 3 times. Somehow, he was not made to sign the Agreement of Sale which the plaintiff says he had ratified.

It may also be noted that both Mr Mukondo and Mr Ndemera indicated that when the first defendant came to PMA Real Estate offices he demanded payment. When asked to sign the Agreement of Sale, the first defendant said he wanted to be paid before he could sign.

This, in my view, is inconsistent with a party who had ratified the agreement and had assumed his obligations as contained in the Agreement of Sale.

Further, both Mr Mukondo and Mr Ndemera admitted, that, when the first defendant came in the company of his wife, this was after a PMA Real Estate employee had been to the first defendant's residence with an armed police officer. At that residence, they had forced the first defendant's mother to append her signature to a document tendered in as exhibit. 8.

That document invited the first and second defendants to come and activate the process of transfer.

The visit by the first defendant and his wife was therefore to complain about that visit by a PMA Real Estate employee and the armed police officer. This is the visit Mr Mukondo apparently recalled.

HH145-09 : TAKAVADA MAPFUMO vs PREMIER SERVICE MEDICAL INVESTMENTS (PVT) LTD AND DEPUTY SHERIFF AND RANGANAYI CHARLES MUBVUMBI
Ruled By: UCHENA J

The following facts are common cause. 1. That the applicant did not join the motor vehicle scheme when he took employment with the first respondent on 1 August 2005. 2. That he therefore did not make monthly contributions towards the purchase of a motor vehicle as required by the motor vehicle scheme. 3. That the agreement signed by the ...

HH156-10 : STEPHEN HUDSON vs JOSEPH V. SITHOLE
Ruled By: MTSHIYA J

The applicant's declaration reveals that the claim is based on an acknowledgement of debt signed by the respondent on 9 September 2009. The acknowledgment of debt reads as follows:- “I, Joseph V Sithole, ID number 70-041987T13, of 66 McChlery Avenue, Eastlea, Harare, hereby acknowledge indebtedness of US$11,000= as capital to Steven Hudson of Skinners Autobody Repairs, Manchester Road ...

The applicant's declaration reveals that the claim is based on an acknowledgement of debt signed by the respondent on 9 September 2009. The acknowledgment of debt reads as follows:-

“I, Joseph V Sithole, ID number 70-041987T13, of 66 McChlery Avenue, Eastlea, Harare, hereby acknowledge indebtedness of US$11,000= as capital to Steven Hudson of Skinners Autobody Repairs, Manchester Road Southerton, Harare. Over and above that, an interest accrual of US$2,145=98 was levied as at October 2009.

I undertake to liquidate part of the said by October 15, 2009 with the balance having to be negotiated for a future date to settle.

This acknowledgment of debt is covered under the jurisdiction and laws of Zimbabwe.”…,.

The respondent…, declares that he refused to honour the acknowledgement of debt because the amount claimed was not correct. He goes on to say he had only signed the document under duress because the applicant:-

“1…., caused a scene at my workplace in barricading my vehicle so that I could not go home.

2…., declined to get out of my office to an extend (sic) that I signed the 'paper' to let the applicant get out off (sic) my offices.”…,.

The applicant submitted that there was no evidence of threats or intimidation to show that the respondent signed the acknowledgement of debt under duress. There was nothing to show for the respondent's reaction to the alleged coercion….,.

The respondent has, without convincing reasons, tried to disown the acknowledgement of debt. The alleged coercion/duress would, in my view, have called for the need, on the part of the respondent, to report the matter to the police immediately as the alleged act of the applicant would amount to extortion. There is nothing in the papers before me to show that the respondent took any steps to ensure that the truth (i.e. alleged coercion) about the acknowledgement of debt signed on 9 September 2009 was known. This application was filed on 2 March 2010 and only on 8 March 2010 did the respondent then find it necessary to tell the world that on 9 September 2009 he was forced to sign a “piece of paper”.

HH213-10 : CEPRAT FARMING (PVT) LTD vs BRIGHTLAND FARMING (PVT) LTD
Ruled By: MTSHIYA J

The respondent also alleged that the Pledge Agreement was not signed freely and voluntarily. The Managing Director of the respondent, who signed the Agreement, states the following in the opposing affidavit - “i) While it is admitted that there was a document that was signed, I need to highlight that the document was not signed freely ...

“i) While it is admitted that there was a document that was signed, I need to highlight that the document was not signed freely and voluntarily as I was under a great deal of undue influence and pressure. This becomes vividly apparent if one looks at paragraph 4 of the which literally ousts the jurisdiction of this Honourable Court and it gives the Applicant power to resort to self-help by allowing him to “attach and sell” immediately the pledged property. I am advised by my legal practitioners that such an agreement which outs the jurisdiction of the courts is unlawful and I believe the advise to be correct. The agreement is therefore not enforceable.

(ii) In the normal circumstances, I could not accept to sign a document in terms of which I had actually contracted out of my rights. The reason was that the Applicant's officials had come to my place of business and made a lot of threats and in fear of my life and limb, I ended up succumbing to their demands that I should sign the document. I signed it against my will. It was signed at the police station with the threat of incarceration.

(iii) There being no judgement, the Deputy Sheriff and not the Messenger of Court cannot make an attachment and thus the application should fail on an attorney scale because it is misconceived and a waste of this court's time.”

In casu, if the order sought were to be granted, the court will have accepted that the respondent indeed owed the plaintiff the sum of USD7,500=. This court can only arrive at that conclusion by way of accepting the Pledge Agreement as having been entered into freely and voluntarily. Once the court takes that position then there would be no reason for it to deny the applicant the relief it seeks.

In its submissions, the respondent correctly states that “an application should stand or fall on the basis of its founding affidavit”.

Apart from what I quoted …, as having been said by the respondent's Managing Director in the opposing affidavit, there is nothing more before me to support the allegation that the Pledge Agreement was not signed freely and voluntarily. It is alleged that threats were made at the respondent's place of work and at the police station. One would have expected independent evidence in the form of supporting affidavits. None were submitted. The alleged threats were supposedly made on or before 22 January 2010. The respondent only found it necessary to reveal the threats three months later i.e on 28 April 2010. If there were indeed any threats the same would have long been reported to the police. The respondent knew where the police station was. He says he had been there.

Accordingly, my finding is that it is most improbable that any undue influence and threats were ever used to force the respondent to sign the detailed Pledge Agreement.

HH251-10 : STEPHEN PASIPANODYA (In his capacity as the executor in the estate of the late Edna Pasipanodya) vs TRACY RUWIZHI and THE DIRECTOR OF HOUSING MUNICPALITY OF CHITUNGWIZA
Ruled By: BHUNU J

In respect of the allegation of duress all what the first defendant could say was that the plaintiff kept on bothering her by constantly phoning and prodding her to agree to the settlement terms. I am certain that in the absence of illegitimate force or pressure that much cannot amount to duress.

HB72-10 : ETTAH NCUBE and CAIN MOYO vs JOEL NCUBE and JULIUS SIBANDA and DEPUTY SHERIFF
Ruled By: NDOU J

The single issue which falls for decision is whether, on the facts, the cession of the Stand known as Number 30161, Entumbane, Bulawayo by the first plaintiff into the names of the first defendant was done of the first plaintiff's free will and volition. The plaintiff testified that she is 78 years old. She said that at the ...

The plaintiff testified that she is 78 years old.

She said that at the time of the acquisition of the property she was staying at a widows' hostel in Harare's Lochinvar suburb. Her son, Reggy Mkandla, realizing the miserable life that she was leading, approached her and advised of his intention to buy her a property in Bulawayo. Reggy Mkandla then bought her the property in dispute and had her name registered against the property. She said she regarded the property as hers. She said at some stage a woman known as Violah came to see her in Harare claiming to have bought the same property from the second defendant. She came to Bulawayo to see the second defendant whereupon she discovered that there were other people who had already taken occupation of the said property with the blessing of the second defendant. These people, she said, were in occupation at the instance of Cain Moyo. Cain Moyo, too, claimed to have bought the same property from the second defendant. When Cain Moyo realized that she was indeed the registered owner of the rights in the property he then opened negotiations with her about the sale of the said property. She said that was the beginning of her troubles with the second defendant. She later sold the property to Cain Moyo and received the full purchase price of $144,000=. The second defendant would, therefore, incessantly visit her in Harare to fight over the property. She said eventually she was worn out of the troubles and decided to relocate to Bulawayo but the second defendant would not relent. He visited her at her Pelandaba house now and again demanding that she cedes the property into his name. She said at some stage he threatened to take her to his legal practitioners, to which she agreed, knowing that she had nothing to fear. She said the dispute eventually spilled into the offices of Messrs Cheda and Partners where legal practitioners, Mr B. Ndove and G. Nyoni, were representing the second defendant and Cain Moyo respectively. She said meetings were arranged where attempts were made to resolve the impasse about who between Cain Moyo and the second defendant would legally be entitled to claim cession of the property. In one of these meetings, she alleged her son, Reggy Mkandla, also attended to clear the question of ownership of the property. She said pursuant to a series of events she was later called to the offices of Cheda and Partners where she was made to sign a document. She said she would later learn of the documents as being an Agreement of Sale dated 7 January 2000 between her and the first defendant. She said she got to know of this development after a secretary with the said legal practitioners asked her whether she was the seller in the papers drawn up for signing. She said upon realizing that she had been made to sign, unknowingly, an Agreement of Sale she then took the legal practitioners concerned to task about the feasibility of a double sale since she had already sold the same property to Cain Moyo and had no reason to cancel the earlier sale. She said she was told that once signed by her, the deal was done and that was the end of the matter. Thereupon, she said she proceeded to the offices of Mr G. Nyoni, who was representing Cain Moyo, to relate her ordeal of having been made to sign an Agreement of Sale in favour of the first defendant without being aware of that fact. She said on the last date of her agony at the hands of the second defendant certain words were uttered which compelled her to accompany the second defendant to the Bulawayo City Council offices with a subdued mind. She narrated that the threatening utterance were to the effect that the second defendant would “take a woman and be intimate with her in front of the plaintiff.” This, he is alleged to have said whilst drawing a sign of a cross on his forehead. She said this scared her to such an extent that she signed the cession of the disputed property in favour of the first defendant. She said at the Bulawayo City Council Housing Office she was virtually a passenger in the unfolding process. It was the second defendant who in fact answered questions put to, and meant for her, in the affirmative. She said she was at that stage weary of the second defendant's threats. She said she wanted it to pass.

Under cross-examination, she said she did not report the second defendant's threats to the police or bring them to the attention of Bulawayo City Council Housing Officers because she had referred the matter to her legal practitioners…..,. She said she was coerced by the second defendant and misled by his legal practitioners to sign the documents ceding the disputed property into the names of the first defendant.

I find the allegations by the plaintiff not credible.

First, the alleged duress took place over a long period of time thus giving her an opportunity to bring it to the attention of the law enforcement agents. She would have made a report to the police or her own legal practitioner at the time of the alleged threats and not after she had squandered the purchase price from Cain Moyo. Second, her two adult sons, Reggy Mkandla and Precious Mkandla, were involved at some of these meetings and were well aware of the second defendant's position throughout. When she was first collected from Harare to come to sign the cession in Bulawayo, she was collected by her own son, Peggy and the second defendant's agent, Forget Nkomo. This is not consistent with someone being coerced unless if she claims her own son was also coercing her. The involvement of Reggy Mkandla is consistent with him having sold the property to the second defendant. Further, she would have refused to come to Bulawayo a year later when Forget Nkomo went to collect her for the same purpose….,. Further, on a separate date she accompanied the defendants to the Housing Office to sign consent papers to cede the disputed property into the names of the first defendants. Before they went to the Housing Office, they first went to see her son, Reggy Mkandla, at his plot in Lockview.

This is not the conduct of people who were coercing her.

The second defendant testified. He said he bought the property from Reggy Mkandla and sold it to the first defendant. In his evidence, he points out the following pertinent points. He sent and financed Reggy Mkandla and Forget Nkomo to travel to Harare to collect the plaintiff to come and sign cession papers. He also attended the meeting at Cheda and Partners where the Agreement of Sale was signed. He also collected the plaintiff from her home and took her to Reggy Mkandla's plot and then to the Housing Office to effect the cession. He vehemently denied any implications of duress. Under cross-examination, he said that at all times, before contacting or dealing with plaintiff, he would contact her son Reggy Mkandla. He said at all times the plaintiff never indicated that she was an unwilling party to the process. He denied ever threatening to bed a woman in front of the plaintiff and indicated that he treated the plaintiff as his own grandmother.

I find that the second defendant is a credible witness. His conduct throughout is not consistent with someone placing another under duress.

As alluded to…, the merx, Stand Number 30161 Entumbane, Bulawayo is currently registered under the names of the first defendant. The plaintiff has to prove that the cession was done with duress. If she fails, the cession is confirmed, if she succeeds, the cession would be reversed. To discharge the onus, the plaintiff has to show that:

(a) The threats were directed towards her and/or her family;

(b) The threats must be directed towards the formation of the contract, that is the conclusion of the contract must be induced by fear or threat of harm;

(c) The threats must be ongoing, that is, performance should be done whilst still under pressure, not when the pressure has ceased;

(d) The threats must pose imminent danger to the threatened; and

(e) The threats must be exercised unlawfully or contra-bonos mores.

AJ KERR -The General Principles of the Law of Contract (4th Ed) (1989)…,.

The law is that a contract which is induced by duress, metus, is not void ab initio but is voidable at the option of the coerced party – R.H. CHRISTIE – The Law of Contract in South Africa (2nd Ed)….,.; Smith v Smith 1948 (4) SA 61 (N)….,.; and Broodryk v Smuts 1942 TPD 47…,.

The onus…., is on the plaintiff to prove that the improper pressure is of a kind and severity recognised by law in this context – Savvides v Savvides & Ors 1986 (2) SA 325 (T); Dr Fergusson & Partners v Zimbabwe Federation of Trade Unions & Ors HB57-04.

From my above findings, the plaintiff has dismally failed to discharge the onus. She failed to prove that the cession was induced by duress or mistake.

Accordingly, the plaintiff's claim is dismissed with costs.

HB145-10 : JANE NYIKA vs THEMBANI MOYO and ALPHEUS NCUBE and REGISTRAR OF DEEDS and CITY OF BULAWAYO
Ruled By: MATHONSI J

The plaintiff instituted proceedings against the four defendants seeking an order, inter alia, nullifying the transfer from herself to the first defendant of Stand 6638 Nketa 9 Bulawayo. In her declaration, filed with the summons, the plaintiff averred that sometime in 2007, the second defendant had called a meeting of widows in the township of Nketa ...

The plaintiff instituted proceedings against the four defendants seeking an order, inter alia, nullifying the transfer from herself to the first defendant of Stand 6638 Nketa 9 Bulawayo.

In her declaration, filed with the summons, the plaintiff averred that sometime in 2007, the second defendant had called a meeting of widows in the township of Nketa in Bulawayo, which she attended, during which he told them that he was assisting widows with money and food, but, as security for such assistance their houses were required.

Title Deeds for the houses would have to be surrendered.

The plaintiff further averred in the declaration that she later held a meeting with the first and second defendants during which she was made to sign a document she did not know - which later turned out to be an Agreement of Sale of Stand 6638 Nketa 9 Bulawayo to the first defendant. She went on to aver that she received money but that the second defendant had told her the money was the widows' assistance referred to at the initial meeting.

She went on to allege, in the declaration, that her house was fraudulently transferred from her to the first defendant through the use of a power of attorney she had no knowledge of and never signed. She therefore prayed for the reversal of that transfer and the nullification of the power of attorney given to Munyaradzi Nzarayapenga and Simbarashe Chivaura of the law firm of Dube-Banda, Nzarayapenga and Partners.

The action was strongly contested by the first defendant who also filed a counter claim seeking an order for the eviction of the plaintiff and those claiming through her from the premises.

The first defendant averred that he had lawfully entered into a Sale Agreement involving the said premises with the plaintiff in October 2007. The plaintiff was being assisted by the second defendant who acted as her agent and the full purchase price was paid to the plaintiff in the presence of witnesses. The first defendant further alleged that he was given receipts for the three instalments he paid, and, in addition to that, the plaintiff signed at the back of the Agreement in acknowledgement that the full purchase price had been paid.

The first defendant further averred in his plea and counter claim that immediately after payment of the last instalment he took the plaintiff to his legal practitioners Messrs Dube-Banda, Nzarayapenga and Partners where she signed the power of attorney to pass transfer and the declaration by the Seller to facilitate the conveyancing process. It is this power of attorney which the plaintiff is disputing.

In her replication to the first defendant's plea, the plaintiff alleged that she is illiterate which exposed her to the trickery of the first and second defendants.

The first defendant's case is simply that his father wanted to buy him a house and played an active part in hunting for such house, negotiating the sale and paying the purchase price. His role was limited to signing the requisite documents.

The first defendant's father, Minlot Moyo, testified that after discovering that the plaintiff's house was on sale, he and his wife went to view it. They met the plaintiff who readily confirmed the house was on sale and showed them around. After they had agreed on the purchase price, the plaintiff insisted that they should go and conclude the sale at the offices of her agent, the second defendant. Minlot Moyo and his group met the plaintiff at the offices of the second defendant the following day, the 11^th October 2007. They concluded the sale even though the plaintiff had increased the price alleging that this was to take care of the agent's commission. In the presence of witnesses, the parties signed the Agreement of Sale after it had been read out. He then paid the first instalment of $2,7 billion (Zimbabwean currency) which money was handed over to the plaintiff and counted in the presence of all concerned. On that day, he also paid the costs of preparation of the Agreement. He was given the Deed of Transfer by which the plaintiff held the house. The same formula was employed when the second and third instalments were paid on the 26^th October 2007 and 9^th November 2007. Minlot Moyo confirmed that he was issued with receipts in the first defendant's name by the plaintiff's agent in the name of Deflant Hardware and Construction. Each time payment was made money was handed over to the plaintiff who counted it before passing it on to his agent. On the 9^th November 2007, when the last instalment was paid, the plaintiff was made to sign behind the Agreement acknowledging that payment had been made in full….,.

The same day, Minlot Moyo says he insisted on taking the plaintiff to Messrs Dube-Banda, Nzarayapenga and Partners Legal Practitioners he had consulted earlier for her to sign documents to pass transfer and this was done.

HH36-11 : GENESIS VENTURES (PRIVATE) LIMITED vs ROLMAY TRADING (PRIVATE) LIMITED and LARDFAIR TRADING (PRIVATE) LIMITED
Ruled By: BERE J

The position taken by Mr Mahuni, on behalf of the first defendant, cannot be looked at in isolation. The witness's evidence must be put under scrutiny in the light of the evidence of the other witnesses to see if indeed he signed the settlement under duress….,. It is this same man, Mr Mahuni, who has ...

It is this same man, Mr Mahuni, who has soiled his credibility in the eyes of the court, who alleges that when he signed the Settlement Agreement, in the comfort of his legal practitioner's office, he did so either under duress or undue influence.

It is necessary at this stage to closely examine the circumstances under which the Settlement Agreement was drafted and eventually signed by the plaintiff's representative and Mr Mahuni himself.

By his own admission, Mr Mahuni was trained as a prosecutor and subsequently worked as a public prosecutor. He is the Chief Executive Officer and Chairman of the first defendant. He is certainly not an unsophisticated man.

The witness told the court that he was telephoned by Detective Inspector Tuwe who invited him to C.I.D. Headquarters at Morris Depot which place he visited the following day. Upon seeing Detective Inspector Tuwe he was advised of the issue relating to the subject matter of these proceedings. Mr Mahuni went on to say that he was advised that if he did not deliver the diesel he would be detained. Commenting on the arrival of Mr Musengi (the plaintiff's representative) at the police station, after Mr Mahuni himself had invited him, this is what he said:-

“Mr Musengi eventually came to where I was seated and the policeman told him I had come and wanted to talk. We talked and I asked Mr Musengi that if they wanted the diesel they should cede the security they were holding from Mr Muswere to me and he declined saying they would have problems. I asked what we could do to resolve the matter and he suggested a settlement plan and I said I preferred my lawyers to do the draft settlement plan. He left for his office on the understanding that I would be calling him later to peruse the settlement plan. ….,.

Mr Gahadzikwa (first defendant's legal practitioners) came to C.I.D. Headquarters, Morris Depot and duly asked if it was in order for me to leave the police station to prepare the Settlement Agreement at his offices which permission was granted. I gave instructions to Mr Gahadzikwa to prepare the Settlement Agreement. The document was forwarded to Genesis for the attention of Mr Musengi. The same was returned with material alterations to both the text and content. I am sure Mr Gahadzikwa will have the altered document when he comes.

We then debated on the way forward; that is myself and Mr Gahadzikwa. What we weighed was the possibility of allowing the threat and arrest to go through and facing it in court and also the threat of publicity in the light of the fabricated story earlier told by the police. In my own experience, I was sure at the request for remand the police could allege anything, true or false, but it was my wish that particular damage be by all means avoided. I also gave Mr Gahadzikwa the peace of information I had gathered about the involvement of a senior police officer to junior officers handling the matter to detain me. He (Mr Gahadzikwa) advised me we would take the risk of signing but would also then make the necessary complaint against the conduct of the particular senior officer and to see that the matter would be completed without bad publicity that would affect my business.”…,.

In his evidence-in-chief, Mr Musengi, for the plaintiff, expressed total surprise that Mr Mahuni was alleging that he had been coerced into signing the Agreement. As far as Mr Musengi was concerned, the Agreement was entered into when Mr Mahuni was out of custody and going about his business after Mr Mahuni himself had taken the initiative to have such settlement put in place. The witness further emphasized that he did not draft the Settlement Agreement but that it was drafted by Mr Mahuni's lawyer on the specific instructions of Mr Mahuni who was better positioned to know the time required to effect delivery of the diesel which he proposed in the Agreement stretching from 18 January 2008 to 8 February 2008. The witness denied any form of coercion on his party or on the party of the police in bringing about the Settlement Agreement.

The position of Mr Musengi on this issue is firmly supported by the cross-examination of Mr Mahuni himself which tended to exonerate the police and Mr Musengi himself of any wrongdoing. The cross-examination of Mr Mahuni in this regard went along the following:-

“Q. You called Mr Musengi to the police station?

A. Yes.

Q. That was your volition?

A. It was put to me the complainant was willing to listen to my settlement proposals.

Q. Did you do it at your own volition?

A. Yes.

Q. When he came to station where did you and Mr Musengi carry out your discussion?

A. In one of the offices at C.I.D. Headquarters.

Q. Was your discussion carried out in the presence of the Investigation Officer?

A. No.

Q. Was there any police officer in that room?

A. No. …,.

Q. How do you know about publicity?

A. I knew it would – the police are in the habit of inviting the press. My fear was not speculative.”

It is very clear to the court that Mr Mahuni was not subjected to any form of threat into signing the Settlement Agreement. Even if one were to accept everything Mr Mahuni said about the manner in which the Settlement Agreement was signed one would still find it impossible to conclude that the Settlement Agreement was a product of duress.

The duress that is sufficient to vitiate a contract must not be fanciful or imagined. It must be some real and serious threat and the totality of the evidence put forward by Mr Mahuni and his counsel, Mr Gahadzikwa, did not come anywhere nearer to this.

On his own party, Mr Gahadzikwa did not hear any police officer or Mr Musengi threatening to cause the incarceration of Mr Mahuni in the event of failing to reach a settlement. The lawyer relied on the instructions given by Mr Mahuni, whose fear, in the court's view, was merely fanciful and unsupported by the circumstances under which the Settlement Agreement was prepared and signed.

HH113-11 : ALSHAMS BUILDING MATERIAL t/a LLC (a company incorporated in the United Arab Emirates) vs TAPERA NYEMBA and CHRISTOPHER GOROMONZI and JOSPHAT SACHIKONYE
Ruled By: KUDYA J

Josphat Sachikonye disputed knowingly signing the Deed of Suretyship. He averred that he was tricked by Christopher Goromonzi to sign the document on 22 December 2003 at a time when he was rushing for a Board meeting. His story that he was tricked does not make sense. He admitted that before he signed the document ...

Josphat Sachikonye disputed knowingly signing the Deed of Suretyship.

He averred that he was tricked by Christopher Goromonzi to sign the document on 22 December 2003 at a time when he was rushing for a Board meeting.

His story that he was tricked does not make sense. He admitted that before he signed the document in his office Christopher Goromonzi intimated to him that it concerned the transfer of Blantyre Asset Management Company (Pvt) Ltd shares to its new shareholder. He stated that he had joined the Board of Blantyre Asset Management Company (Pvt) Ltd in 2002 and he believed that he was signing a round robin resolution.

Under cross examination, he alleged that Christopher Goromonzi intimated that he was signing the share transfer form of the Ariston Holdings Limited shares held by Barato Holdings Limited.

Christopher Goromonzi disputed tricking him.

In any event, the surety is a two-paged document headed in bold print Deed of Suretyship. Josphat Sachikonye is a literate gentleman, accountant, who sits on the Board of big corporates - including some multinational companies. He knew the nature and purpose of the document he was signing. His foreknowledge is clearly spelt out in his second letter of resignation of 29 October 2004 addressed to Alshams in which he sought to be discharged from the suretyship. That letter also contradicted the assertion he made in his evidence in chief that he became aware of the existence of the loan agreement in his legal practitioner's office after the summons was served. He further contradicted himself on when he first saw Jayesh Shah. In one vein he averred that he only saw him after the present case had commenced and in another vein he alleged that he first saw him on 29 October 2004 when he directed him to write the letter of resignation to a specific person. Josphat Sachikonye further contradicted himself on whether his first letter of resignation was written at the instigation of Jayesh Shah or not. In his main testimony he said he was requested by Jayesh Shah to resign and he went on to advise his co-defendants. Under cross examination he stated that his co-defendants were the ones who requested him to write the first letter. In his plea and summary of evidence he averred that Jayesh Shah assured him that his resignation discharged the surety, yet in his evidence in chief he stated that Jayesh Shah simply indicated that he had noted the contents of his letter.

The plethora of contradictions undermined his credibility.

HB06-13 : PATSON MAKHIWA vs MINISTER OF EDUCATION, SPORT & CULTURE and BULAWAYO ADVENTIST SECONDARY SCHOOL and THE HEADMASTER, MR MARANDURE N.O.
Ruled By: CHEDA AJ

In Boudtich v Peel and Magill 1921 AD 561 (a case originating from the High Court of Southern Rhodesia) it was held that a person who has been induced to contract by material and fraudulent misrepresentation of the other part may either stand by the contract or claim rescission. See also Glaston House (Pvt) Ltd v Inag ...

HB48-11 : FORT GROUP ENTERPRISES (PVT) LTD vs BRIGHT INVESTMENTS (PVT) LTD
Ruled By: CHEDA J

The facts and background of this matter are that both parties are registered companies in terms of the laws of Zimbabwe. On the 1st of September 2009, the plaintiff leased out its property, being No.44 Lobengula Street to the defendant for the payment of R11,000= being rent per month. The defendant's defence was that the ...

The facts and background of this matter are that both parties are registered companies in terms of the laws of Zimbabwe. On the 1^st of September 2009, the plaintiff leased out its property, being No.44 Lobengula Street to the defendant for the payment of R11,000= being rent per month.

The defendant's defence was that the agreement is not valid as the plaintiff used undue influence over it which resulted in it agreeing to pay rentals of R11,000= per month. It was further its argument that the said agreement was a ploy to unlawfully increase rent.

The plaintiff led evidence from Mr Simbarashe Nopi who is the Administration Manager.

His evidence was that the two parties entered into a lease agreement which was due to expire on the 31^st of December 2009 and he signed on behalf of the plaintiff while Mrs Phillipa Toriro signed on behalf of the defendant. It was his evidence that rent was agreed to at R11,000= per month and no duress or influence was made to bear on the defendant. It was further his evidence that the defendant only paid a full payment for the month of September 2009. The said payment was as per the lease agreement the parties had signed, but, thereafter its payments were less and far between. In other words, the rentals were erratic. The plaintiff had asked for $200= per month but it was negotiated and the parties finally agreed on the figure of R11,000= which was agreed to amicably. The defendant's payment pattern, to them, was a breach of the agreement and they handed them over to their legal practitioners for the recovery of rent and cancellation of the lease agreement. Before their legal practitioners had acted on their instructions, they were summoned to appear before the Rent Board. The parties appeared and were advised to attempt an out of court settlement. This was after the Rent Board was advised by the plaintiff that the rentals issue had been referred to their legal practitioners…,.

The plaintiff then closed its case.

The defendant opened its case by calling its Chief Executive Officer, Mrs Phillipa Toriro. Her evidence was that prior to the signing of the lease agreement, the property was being leased by Tip-Top Fish & Chips which was being operated by her mother. Both the plaintiff and Tip Top Fish & Chips' Directors are the same people and they are family members - including Mrs Toriro. This business ran into financial problems in paying rent which resulted in the plaintiff cancelling the then lease agreement and the defendant then took it over. It was her evidence that, indeed, she, on behalf of the defendant entered into a lease agreement with the plaintiff, but, it was not freely entered into as the plaintiff had insisted that in order for them to open the premises they should sign a new lease agreement. It is this pre-condition, which, according to her, was undue pressure on the defendant. It is further her evidence that when she went to sign the lease agreement her object was to take it to the Rent Board as evidence that the plaintiff had illegally increased rent. She admitted that the defendant had been erratic in its payment and even to date they were five months in arrears. Asked by the plaintiff's legal representative why the defendant was not paying rent, her explanation was that its Chinese client had not paid them for the November and December 2010 services….,.

The question that falls for determination is:

1) Whether or not the lease agreement is valid or not; and

2) If it is valid, whether or not defendant had breached it.

According to the plaintiff, the lease agreement was reached after negotiations and the defendant then made its first payment in fullfilment of the Agreement. This payment was not made without prejudice, in my view, it was, therefore, made in fulment of one of the terms of conditions of the Agreement….,.

When initially asked why she signed the agreement Mrs Phillipa Toriro's answer was that she did so under duress, but, later, on she changed her mind and told the court that she signed in order to take the Agreement to the Rent Board in order for them to take appropriate action against the plaintiff.

While giving evidence, she unwittingly revealed that she took one, a Mr Ndlovu, who is a former employee at the Rent Board as her ''legal adviser.''

I find that the parties entered into a valid agreement as there was no undue influence being made to bear on the defendant. In fact, the former leasee, i.e Tip Top Fish & Chips, of which she was also a Director and/or shareholder was erratic in its payments. This led to the defendant taking over the premises.

SC68-14 : DANIEL MUDENDA vs LION MATCH LIMITED
Ruled By: MALABA DCJ

In Broodryk v Smuts 1942 TPD 47…, the elements necessary to set aside a contract on the grounds of duress were expressed as follows: “(1) Actual violence or reasonable fear. (2) The fear must be caused by the threat of some considerable evil to the party or his family. (3) It must be the threat of an imminent or ...

HH711-15 : GOLDSEARCH TECHNICAL SERVICES (PRIVATE) LIMITED vs TAONGA MUKONOWESHURO and SHERRIFF OF ZIMBAWE
Ruled By: TSANGA J

The first respondent also argues that a party wishing to rely on duress must prove a threat of considerable evil to the person concerned or his family; that the fear was reasonable; that the threat was imminent of inevitable evil; that the threat or intimidation was unlawful or contra bonos mores; and that the contract was concluded ...

HB147-16 : SAWA SECURITY (PVT) LTD t/a MALIGREEN MINE vs RESOURCES AND INVESTMENT (PVT) LTD
Ruled By: BERE J

I find the issue of duress being raised by the respondent in this case to be unsustainable for the following reasons. The contract which the respondent says it signed under duress was signed on 19th December 2013. It is inconceivable, in my view, that if there was any duress, the deponent to the respondent would have signed ...

HB236-16 : MERCY MAZVITA NYAMANHINDI vs GIFT CHIVHURAWA
Ruled By: BERE J and MATHONSI J

The appellant is relying upon duress in order to impugn an acknowledgment of debt that she signed. As stated by the learned author R. H. CHRISTE, Business Law in Zimbabwe, 2nd edition, Juta Co Ltd…,: “The threat must be of an imminent or inevitable evil, meaning that it cannot be averted otherwise than by agreeing to the contract.” Unfortunately, that ...

HH394-13 : SAMUEL MUGANO vs FINTRAC and ZFC LIMITED and ROYAL BANK OF ZIMBABWE
Ruled By: TSANGA J

In our context, NGOs and charitable Trusts, such as the first respondent, have come to play various types of developmental roles in their work with rural communities. The facts alleged by the applicant, in my view, can be said to exemplify difficulties that arise when such developmental initiatives and projects are seen by the recipient communities as ...

Appealed
SC17-19 : ECONET WIRELESS (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL
Ruled By: MALABA DCJ, GOWORA JA and MAVANGIRA JA

For the appellant to succeed in proving estoppel, it has to prove, and the authority for this proposition is the case of Andrew Phillips (Pvt) Ltd v GDR Pneumatics (Pvt) Ltd 1986 (2) ZLR 65 (SC) 67, that the respondents or their officers made a representation in word or deed which might have reasonably misled the appellant; ...

View Appeal
HH964-15 : ECONET WIRELESS (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL and STEWARD BANK LTD and CBZ BANK LTD and NMB BANK LTD and STANBIC BANK LTD
Ruled By: MUSAKWA J

The defence of estoppel was explained by McNALLY JA in Mashave v Standard Bank of SA Ltd 1998 (1) ZLR 436 (SC)…, as follows: “The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him as against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 ...

HH654-14 : JAMES GUMBI vs MANDY MARGARET MAJONI
Ruled By: CHIGUMBA J

The defendant avers…, that she refused to sign the acknowledgment of debt on the basis that the lender was the Zimbabwe Rural District Council Workers' Union (ZRDCWU), not the plaintiff, but changed her mind when her friend, Collin Maworerea, threatened to commit suicide by taking poison if she refused to sign the document. The defendant did ...

In addition, the plaintiff allegedly threatened to press charges of fraud against her if she did not sign the acknowledgment of debt….,.

The defendant has not placed any evidence before the court in support of her allegations of threats of arrest or duress. She did not report the threats to the police; if she had, and there was evidence of this threat, the offence of extortion could be established. She did not immediately take steps to have the acknowledgment of debt declared a nullity. She waited until the plaintiff sought to recover the debt, then confirmed signing it, but denied doing so voluntarily. It is circumstances such as these that the caveat subscriptor maxim were designed to regulate, in my view. In the case of Nelson Mujeri Muza v Agricultural Bank of Zimbabwe Limited SC70-03the Chief Justice said that:

“The evidence in this case simply does not support the allegation that exhibit 2 was void ab initio and therefore a nullity by reason of duress. Contracts that are void ab initio by reason of duress are very rare as the duress required to render an agreement void ab initio has to be extremely severe. It has to be so severe as to negative any element of voluntariness such as where a stronger person physically overcomes a weaker person and puts a pen in his hand and physically forces his hand to write his signature on a written contract; The Law of Contract in South Africa, 3^rd ed, R.H. Christie 337; Grotious 3.48. Van Leewan C.F. 1.4.41; Voet 4.2.2. Smith v Smith 1948 (4) S 61 (N) @ 67-8.

The evidence adduced by the appellant fell far short of this requirement.”…,.

There is insufficient evidence that the defendant was subjected to duress when she signed the acknowledgment of debt. She is bound by her signature and by the contents of the acknowledgment of debt….,.

The defendant is a respected and sophisticated businesswoman of many years standing. It is highly improbable that she would sign a document acknowledging indebtedness in a sum that is four times what she actually owes, because she is subjected to duress, then to simply keep quiet and not seek to discredit that document in a court of law once the alleged duress had passed.

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

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 ...

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

One morning, in February 2009, Zimbabweans woke up and found themselves subjected to a 'multi-currency system'. The Zimbabwean dollar was no longer accepted as legal tender. A basket of other currencies, such as the United States dollar and the South African Rand, were introduced into our society. The truth of the matter is that these currencies had ...

The truth of the matter is that these currencies had been circulating on what had been dubbed a 'parallel market' for quite some time. There are those who welcomed the formal adoption of those currencies as legal tender in this country which had been ravaged by the knock-on effects of super hyper inflation. Others bemoaned the symbolic annihilation of our currency which they associated with a corresponding perception of the annihilation of our national sovereignty. The majority of the people were perturbed by the effect of the introduction of the multi-currency system on their pensions, insurance policies, and life savings.

This case is about a group of workers who, between them, gave more than twenty years of loyal service to their employer. In terms of the pension policy that was in operation at the outset both employer and employees diligently contributed monthly to a pension fund.

The issue that falls for determination, put simply, is whether all sixty seven employees are entitled to challenge the determination by the employer as to what constitutes their basic annual salary for purposes of calculating their pension benefits. Depending on the answer to this question, the court will have to determine, further, whether these employees are entitled to demand further payments by the employer towards their eventual pensions.

At the heart of these issues lies the contentious issue of the effect of the introduction of the 'multi currency' system on the calculation of pension contributions which had previously been based on our local currency, and were now set to be calculated on the basis of the United States dollars, the currency that the employees were now remunerated in.

Some would say that the question ought to be holistically and definitively addressed by Parliament as a matter of policy. Others feel that it is simply a question of implementing the provisions set out in the relevant pension fund.

We have been asked to issue an interdict and a declaratur as to the parties' rights and obligations in terms of the rules of their pension fund.

The application before the court was filed of record on 16 December 2013. The founding affidavit was deposed to by G. Chiparaushe in a personal capacity and as the duly authorized representative of the sixty six other applicants who attached supporting affidavits authorizing him to represent them.

The first respondent is a sugar cane growing and processing company duly registered in accordance with the laws of this country and the employer of the sixty-seven applicants.

To avoid confusion, the first respondent shall be referred to as TRIANGLE. The second respondent is the Triangle Senior Staff Pension Fund (to be referred to as TSSPF), a properly constituted pension fund, duly registered with the Commissioner of Insurance, Pension and Provident Funds Act (IPEC), in terms of section 6 of the Pension and Provident Funds Act [Chapter 24:09]. The Triangle Senior Staff Pension Fund (TSSPF) is governed by its rules (the Fund Rules).

The first applicant averred that the application before the court was brought in accordance with Rule 9 of the Triangle Senior Staff Pension Fund Rules which provides that a member or any person whose claim is derived from a member shall have the right to refer a dispute to a court of law in this country for determination.

The applicants had previously approached an arbitrator, Honourable J.T Mawire, in terms of the Labour Act [Chapter 28:01] to determine the dispute, and, on or about the 5^th of September 2013, the arbitrator found that he did not have the jurisdiction to determine the dispute between the parties.

It was submitted, on behalf of the applicants, that they had a clear right to the interdict and declaratur that they sought.

The first applicant averred that he became an employee of TRIANGLE on the 1^st of April 1980, and a member of the Triangle Senior Staff Pension Fund (TSSPF) on the 1^st of July 1996. As from the date of his membership to the Triangle Senior Staff Pension Fund, TRIANGLE commenced deducting his share of pension contributions from his basic salary. The applicant remains a member of the Triangle Senior Staff Pension Fund to date.

The first applicant averred, further, that in terms of clause 11 of his contract of employment, membership to the Triangle Senior Staff Pension Fund (TSSPF) became compulsory on the date of his appointment, and his contribution of 7% of his basic monthly salary was automatically deducted and forwarded to the Triangle Senior Staff Pension Fund (TSSPF), by TRIANGLE, every month. According to the Terms and Conditions of the employment of C Band staff (Loss Control Manager), as at 1 July 1996 the basic salary was pegged at ZW$90,948=. The pension contribution of 13% came to ZW$11,823=. Under the heading “remuneration” was a note to the effect that:

“The basic salary is pensionable and the company currently contributes 13% to the Triangle Senior Staff Pension Fund.”

After the basic salary was a list of benefits which were to be paid on behalf of the employee on a 50% contribution basis, such as CIMAS medical aid and a drug scheme. Further benefits included an education allowance which was expressly qualified as being taxable.

The first applicant averred that, currently, in terms of Rule 19 of the Triangle Senior Staff Pension Fund Rules, TRIANGLE is obliged to make a corresponding monthly contribution to the Triangle Senior Staff Pension Fund of 13.5% of the first applicant's basic monthly salary. On the basis of the aforesaid, the first applicant averred that he and his fellow applicants have a clear right to have a deduction of 7% of his basic monthly salary made and to have a corresponding 13.5% of his basic monthly salary contributed by TRIANGLE. Failure to match the first applicant's contribution would be a failure by TRIANGLE to abide by the Triangle Senior Staff Pension Fund Rules.

It was submitted that, in or about October 2000, the Managing Director of TRIANGLE, Mr. J. M. Cleasby, advised members of the Triangle Senior Staff Pension Fund (TSSPF) that it was closed to new entrants on the basis that its existing members would be given an option to transfer to a different pension fund, the Triangle Pension Plan (hereinafter referred to as The Money Plan). In November 2000, Mr. Cleasby wrote a letter to the members of the Triangle Senior Staff Pension Fund and advised them that the date of transfer to The Money Plan was the 1^st of January 2001. Paragraph 3 of the letter stated that:

“To assist you in making a decision please find enclosed;

(a) Comparison booklet.

(b) Illustration letter.

It was submitted, on behalf of the applicants that, TRIANGLE caused a booklet called 'Defined Benefit Triangle Senior Staff Pension Fund or Defined Contribution The Money Plan', which compared the two schemes to be published. All sixty seven applicants opted to remain members of the Triangle Senior Staff Pension Fund (TSSPF).

The first applicant averred that the applicants suffered an injury and/or that, alternatively, an injury is reasonably apprehended by them. In support of this contention is the averment found in paragraph 18 of the first applicant's founding affidavit, that TRIANGLE has unilaterally decided to refuse to make its share of contributions to the Triangle Senior Staff Pension Fund and/or to deduct their 7% contributions from their basic monthly salaries. The allegation against TRIANGLE is that, by refusing to recognize most of the earnings of members of the Triangle Senior Staff Pension Fund (TSSF) as 'pensionable', it has, by its conduct, breached the terms of the Triangle Senior Staff Pension Fund Rules and interfered with the accrual of pension benefits.

In support of this averment, the first applicant referred to a letter to the trustees of the Triangle Senior Staff Pension Fund (TSSPF), dated 1 April 2009, written by the TRIANGLE managing director, Mr. S. D. Mutsambiwa. The letter was entitled “Pensionability of US$ Salaries”. It reads as follows:

“Kindly note that the January 2009, February 2009 and March 2009 salaries have been paid in USD$ to employees who are members of the Triangle Senior Staff Pension Fund (TSSPF). These salaries were paid in USD$ without any confirmation by the employer whether or to what extent the salaries would constitute pensionable emoluments. A decision in this regard is still to be made pending a review of the 'dollarisation' of the Zimbabwean economy and the bearing this will have, amongst other things, on the functioning of the Fund. The company will be arranging a meeting with the Board of Trustees in the near future to consider the way forward both in relation to existing pensioners and active member. In the meantime, and until further notice, contributions will be remitted to the Fund Administrators as an interim measure pending final decisions regarding the way forward in respect of the Triangle Senior Staff Pension Fund (TSSPF). This interim arrangement should under no circumstances be regarded as an implied decision having been taken that current USD$ salaries are indeed classified as pensionable emoluments.”…,.

On 8 July 2009, TRIANGLE introduced the “guaranteed package” to employees in the Executive grade, backdated to June 2009….,.

In paragraph 24 of his founding affidavit, the first applicant avers that all the applicants were forced to sign the acceptance letter in unilateral variation of their conditions of employment.

To prove this claim, he referred to an electronic mail communication dated 15 December 2009, addressed to Mr, Eston, in which Fred Nyangwe advised that Mr. Eston's failure to sign the letter which contained the new conditions of service, meant that, with effect from 1 December 2009, his salary, as set out in the letter, would be discontinued and he would go back to earning his old salary as at 31 May 2009. He was also advised that the difference between the two salaries, which he had been paid, would be deducted from his old salary until it had been recovered in full....,.

It is common cause that TRIANGLE put in place an arrangement whereby each of its employees received a payment in United States dollars after dollarization in 2009. The arrangement was that each of its employees would receive payment in United States dollars, and, in respect of members of the Triangle Senior Staff Pension Fund who opted to remain with the Triangle Senior Staff Pension Fund, the question of the extent to which any payment or portion of payment in United States dollars was to be treated as a basic salary, and therefore pensionable, remained open.

TRIANGLE then purported to 'restructure' the conditions of employment of its employees, starting with the E Band employees. After negotiations with senior employees, the final restructured package was set out in a letter dated 31 July 2009. The letter carried a caveat that the employees would be advised, in due course, of the extent to which the current cash package would be pensionable. It is common cause that 11 of the E Band employees signed the letter. It was contended on behalf of TRIANGLE that, by accepting the revised remuneration offered each month thereafter 31 July 2009, the employees accepted this position by their conduct.

On 19 January 2009, a similar letter was dispatched to middle management employees, D Band. The letter was prepared by some of the E Band employees. 21 out of the 22 D Band employees signed the letter in acceptance of the 'restructured package'. Thereafter, restructuring of the salaries and other terms of employment of supervisory and skilled staff, C Band employees, was dealt with by way of a letter dated 24 August 2010. 29 out of the 34 C Band employees signed the letter and indicated acceptance of the revised terms.

The applicants contended that these changes to the conditions of employment were imposed unilaterally. It was submitted on behalf of TRIANGLE that the evidence does not support this contention.

I find myself in agreement with the position adopted by TRIANGLE, that the 'restructuring' of the remuneration packages was done in consultation with senior staff, E Band employees. It is common cause that 61 out of the 66 applicants signed acceptance of the new conditions of employment. Subsequently, the employees who had signed the letters received increases in their monthly cash packages which indicate further acceptance of the changes in their contracts. The letter of 16 August 2010 repeated the assertion that the review of the status of Defined Benefit Funds and of the Triangle Senior Staff Pension Fund was still in progress. The applicants continued to accept payment of their 'restructured cash package' on that basis.

Are the applicants bound by an issue estoppel?

In the celebrated case of Ais Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd1981 (3) SA 274 (A)…, the court had this to say:

“The essence of the doctrine of estoppels by representation is that a person is precluded, i.e. stopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, Vol 9 para 367 and the authorities there-cited). The representation may be made in words, ie. expressly, or it may be made by conduct, including silence or inaction, i.e. tacitly (ibid para 371); and in general it must relate to an existing fact (ibid para 372).”...,.

The court finds that the applicants are estopped from enforcing their existing interests in the Triangle Senior Staff Pension Fund in the sense of recouping arrear contributions from TRIANGLE.

HH217-15 : GODFREY GURIRA and ESTATE LATE OBERT NDAWI and HILTON CHIKUYA and LAZARUS NEMBAWARE vs ZIMBABWE COUNCIL FOR HIGHER EDUCATION (ZIMCHE) and ROSELINE NHAMO and MASTER OF THE HIGH COURT
Ruled By: ZHOU J

This is an application for the setting aside of an arbitral award rendered by the second respondent in a contractual dispute between the applicants and the first respondent. The application is being made in terms of Article 34(2)(b)(ii) of the Schedule to the Arbitration Act [Chapter 7:15].

The application is opposed by the first respondent.

The first, third and fourth applicants are employees of the first respondent, a statutory body constituted in terms of the Zimbabwe Council for Higher Education Act [Chapter 25:27]. The now deceased, Professor Obert Ndawi, whose deceased estate is cited as the second applicant, was also an employee of the first respondent prior to his death.

The applicants were employed in terms of written contracts of fixed duration which terminated by effluxion of time at the end of December 2012 and January 2013 for that of the third applicant. The contracts were signed in 2008. After the termination of their employment contacts the applicants remained in employment on the same terms and conditions as the expired contracts. They were assured that their employment would be extended and that they would be made to sign new contracts of employment. A letter addressed to the first applicant, dated 9 January 2013, stated the following:

“Dear Mr Gurira

RENEWAL OF CONTRACT

It is with great pleasure that I write to inform you that your application for the renewal of your contract has been approved.

This is very good news for ZIMCHE, and we will do our best to ensure that the signing of the new contract is expedited.”

The letter was signed on behalf of the first respondent by Professor Emmanuel Ngara in his capacity as the Chief Executive Officer.

The other three applicants received the same letter.

By letter dated 29 April 2013 the first respondent advised the applicants that as a consequence of a directive addressed to the Ministry of Higher and Tertiary Education by the Ministry of State Enterprises and Parastatals the salaries of Principal Directors and Directors were to be reviewed as illustrated in the schedule attached to the letter addressed to the applicants.

The applicants were given up to 10 o'clock in the morning of the following day to choose one of two options presented to them.

(a) The first option was for a four-year employment contract based on amended packages with the effective date being 1 January 2013. An assurance was given that remuneration already received from 1 January 2013 to 30 April 2013 would not be deducted from the applicants' packages.

(b) The second option was a contract for a period of one year up to 31 December 2013 on the same terms and conditions which prevailed then. Upon termination of the contract the positions would be advertised and the applicants would be entitled to apply for them together with any other persons who might be interested in the same positions.

The applicants chose the first option which was for four-year contracts.

New contracts were signed by the applicants in June 2013. The contracts signed in June contained less favourable conditions than the expired ones. The applicants allege that they signed the new contracts under duress.

According to them, a Mrs Muguti, from the Ministry of Higher and Tertiary Education, had given information to the Chief Executive Officer of the first respondent to the effect that if the applicants did not sign the written contracts presented to them in June then they would be without employment the following Monday.

That statement, according to the applicants, was repeated by Mrs Muguti to the first respondent's Deputy Chief Executive Officer at Gwanda. The applicants stated that some of them “overhead” the conversation between Mrs Muguti and the first respondent's Deputy Chief Executive Officer. The applicants alleged that they attempted to resolve the issue of the contracts internally before they signed the contracts. They subsequently signed the agreements.

The arbitrator rejected the applicants' contention that they signed the contracts in June 2013 under duress.

That is the conclusion which the applicants contest on the basis that it is in conflict with the public policy of Zimbabwe.

In terms of Article 34(2) of the Schedule to the Arbitration Act:

“An arbitral award may be set aside by the High Court only if –

(a)…,.

(b) The High Court finds that –

(i)…,.

(ii) The award is in conflict with the public policy of Zimbabwe.”

Article 34(5) provides as follows:

“For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this Article, it is declared that an award is in conflict with the public policy of Zimbabwe if –

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

The public policy provisions referred to above must be interpreted restrictively consistent with the need for finality in arbitration proceedings; see Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S)…,.; Beezley NO v Kabell & Anor 2003 (2) ZLR 198 (S); City of Harare v Harare Municipal Workers Union 2006 (1) ZLR 491 (H)…,.

This court is mindful of the fact that it is not sitting as an Appellate Court to consider the merits of the decision of the arbitrator. The mere fact that the decision of the arbitrator is incorrect in some respects does not, per se, justify the setting aside of the award in terms of Article 34.

The authorities have consistently held that it is only when “the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or acceptable moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award” that this court would set aside the award on the grounds contained in Article 34.

See Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S)…,.; Delta Operations (Pvt) Ltd v Origen Corp (Pvt) Ltd 2007 (2) ZLR 81 (S)…,.; Beezley NO v Kabell & Anor 2003 (2) ZLR 198 (S)…,.; Muchaka v Zhanje & Anor 2009 (2) ZLR 9 (H)…,.

Put in other words, the incorrectness must not only be serious; it must constitute an affront to our conception of justice and fairness....,.

Turning to the merits of the application, the arbitrator came to the conclusion that no duress had been established by the applicants to warrant the setting aside of the contracts which they signed in June 2013.

The arbitrator noted that the alleged threats were not communicated to the applicants by Mrs Muguti but by a third party, and, in another instance, some of the applicants stated that they had simply overheard a conversation between Mrs Muguti and some other person.

Also, the applicants unreservedly signed the contracts. They did not sign the contracts under protest because of the pressure which they alleged had been put to bear upon them.

The arbitrator noted, too, that the applicants were aware, as long ago as January 2013, that they would be required to sign new contracts. Even the option that they chose, on 29 April 2013, already contained terms and conditions which were less favourable than the earlier contracts which had terminated. They were therefore aware that the contracts that they would be signing in due course had terms and conditions different from their first contracts.

I do not believe that the above conclusions can be characterised as manifestly wrong to the extent of constituting a palpable inequity.

The contracts may have been prejudicial to the applicants but the arbitral award is not wrong in its conclusions on the facts and evidence presented. The applicants are not ordinary persons but highly educated professionals. The first applicant is a Principal Director, Human Resources and Administration. He would be the first person to appreciate the implication of signing a contract of employment without reservations. It does not follow that whenever a person is not happy about the terms of a contract which he or she is signing then the conclusion must be that the person is signing the contract under duress or undue influence.

If that approach was to be adopted then most contracts would be invalidated as they, in most cases, follow negotiations in which the parties do not always get everything that they would want to get out of the contracts.

Nothing is said about who Mrs Muguti is in relation to the contracts of the applicants such that they would not be able to inquire directly from her as to the situation surrounding their contracts.

There is also no explanation as to why the applicants did not approach the court on an urgent basis to protect their interests if they genuinely believed that they were being unduly pressured to sign unfair or oppressive contracts.

The issue of legitimate expectation does not arise as the applicants were notified, in January, that renewal of their employment contracts had been approved. They had no legitimate expectation to have their contracts renewed on the same terms as the expired one as they were told that they would be signing new contracts.

In fact, in April, they were even told, and they accepted, that those contracts would have less favourable terms in terms of remuneration than their first contracts.

The arbitrator adequately considered the principles of law applicable to cases of duress in the context of contracts, and came to the correct conclusion that the contracts signed by the applicants could not be impeached on the ground of duress.

Every other argument which the applicants raised depended upon a determination on the question of the validity of the contracts which they signed in June 2013. Once the arbitrator concluded that the contracts were validly signed the issue of whether the letter of 9 January 2013 constituted an offer became irrelevant.

For the above reasons, I find no ground for the award rendered by the second respondent to be set aside. The application must accordingly fail. No submissions were made as to why the costs should not follow the result.

In the result, IT IS ORDERED THAT:

1. The application be and is hereby dismissed.

2. The applicants shall pay the costs jointly and severally the one paying the others to be absolved.

HH352-18 : N.R BARBER (PRIVATE) LIMITED vs ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED
Ruled By: MUZENDA J

The defendant voluntarily wrote to the plaintiff confirming its indebtedness, and, in terms of exhibit 2, the defendant outlines the estimated period of settlement of the debt until the whole sum is liquidated.

SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

The crime of fraud is defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23) (the Code) in the following terms:“Any person who makes a misrepresentation –(a) Intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; ...

View Appeal
HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA
Ruled By: MUZOFA J

The plaintiff issued summons against the defendants claiming payment of US$13,868=90 for car rental charges due to the plaintiff and interest thereon at the rate of 3.5% from 1 April 2016 to date of full payment.

The undisputed facts are that the first defendant entered into a car hire agreement with the plaintiff in October 2015. In terms of the agreement, he was issued with a motor vehicle, a Ford Everest, that he used and was expected to make payments. He failed to do so until the motor vehicle was withdrawn from him.

The plaintiff had to seek the services of the police for the first defendant to return the motor vehicle. The plaintiff laid criminal charges against the first defendant. The second defendant, a sister to the first defendant, offered to settle the debt and the criminal charges were withdrawn.

In due course, the second defendant withdrew the offer to settle the debt. It is then that the summons was issued. The second defendant applied for the appointment of a curator ad litem over the first defendant.

On 17 March 2017 a provisional order was granted. No final order was sought by the second defendant.

As a result of the appointment of the curator ad litem persona the plaintiff withdrew its claim against the first defendant.

This trial therefore relates to the second defendant only.

At the pre-trial conference meeting held after the withdrawal of charges against the first defendant the parties agreed that the following issues would determine the case;

1. Whether or not the agreement entered into between the first defendant and the plaintiff was valid.

2. Whether the obligation assumed by the second defendant in an acknowledgement of debt and payment plan dated 2 March 2016 is valid and binding.

The plaintiff led evidence through two witnesses.

Trevor Chakawata “Trevor” gave evidence first; he is the Operation Manager at plaintiff company.

He said the first defendant,, Bernard, entered into a monthly rental contract of a motor vehicle in October 2015 with the plaintiff. Payments were done on a monthly basis. Bernard went to Binga in December 2015. He wanted to make a pre-payment but the network was down; no payment was made. While in Binga, Bernard was reminded of the unpaid bill; he advised Trevor to use his credit card he had left with the plaintiff to pay off the amount due, however, the credit card was blocked. Trevor said he communicated with Bernard on the phone by voice calls and text messages. When the payment was not made, Trevor advised Bernard to return the car. Bernard promised to do so but did not return the car. He then reported the matter to the police. He advised Bernard of the police report; Bernard was surprised at this turn of events as he questioned why the matter was reported yet he was a reliable customer.

The police communicated with Bernard who promised to return the car in a week's time. He did not. The police then opened a docket.

Trevor then advised Bernard that the matter had been handed over to the police. Bernard came to Harare in February 2016. He advised the police that he had returned the car and promised to settle the bill the following day. On the following day he did not turn up at the police station where Bernard and Trevor were supposed to meet. Trevor and the policeman went to his residence where they were referred to Mr Chanakira, who also referred them to Mrs Chanakira. They called Mrs Chanakira who agreed to meet them in Eastlea. At the meeting, after being told about the case, Mrs Chanakira, the second defendant, advised them that Bernard had a mental problem. When the policeman advised her of the criminal charges against Bernard and how the police deal with mentally ill accused persons, Mrs Chanakira offered to settle the bill.

Trevor said he advised her to put the offer in writing. This was done. In terms of that offer, she was to pay $1,000 a month from March 2016 until the debt was fully paid. She did not pay anything.

Initially, on being asked about the payment, she said she was in South Africa. However, later, Mr Chanakira called Trevor and said they should leave Mrs Chanakira but pursue Bernard who was well and was selling cell phones in town. Eventually, Mrs Chanakira withdrew the offer to settle the bill.

Trevor denied that at the time of contracting, Bernard was mentally incapacitated. He said Bernard knew that every month end he was supposed to pay - and he did. The car that he hired, a Ford Everest, is a unique car such that if one is of an unsound mind he could not drive it - but he did. In December, he was double billed and he was able to pick it; this cannot be done by a mentally incapacitated person.

He also said the acknowledgement of debt by Mrs Chanakira was valid because she offered to pay the debt. The acknowledgement of debt was drafted by her lawyers.

Mrs Chanakira asked them to leave Bernard she would pay the debt. The police could not confirm Bernard's mental capacity through their processes because Mrs Chanakira undertook to pay the debt.

Under cross examination, he said he saw Bernard when he signed the initial agreement and he looked normal. He also said a report from Parirenyatwa Annex Hospital indicated that Bernard had a history of mental disorder. He was not sure why the matter was withdrawn against Bernard. He confirmed that the undertaking was made on the understanding that Bernard was mentally unstable.

The second witness was Constable Nelson Mungati whose evidence was to the following effect;

He is a member of the Zimbabwe Republic Police with fifteen years in service stationed at R.G. Mugabe Airport. He received a report in this case and opened a docket. He phoned Bernard who indicated he was stuck in Gokwe but will return the car. On 7 February 2016 Bernard phoned him advising that he had returned the car. This was confirmed by Trevor Chakawata (Trevor).

When the bill remained unsettled he proceeded to Bernard's residence in the company of Trevor. They were referred to Mr Chanakira who referred them to Mrs Chanakira. They arranged to meet. When they met, he advised Mrs Chanakira about the investigations. She advised him that Bernard was of an unsound mind and offered to settle the bill. It took some time for the acknowledgment of debt to be drawn up; when it was submitted he advised his superiors. He was advised to check at Parirenyatwa Annex Hospital if the history is documented. He made a formal request for the report; he did not get it but was given a record that showed that Bernard was detained some time at the hospital.

Under cross examination he said, from his physical appearance, Bernard did not exhibit signs of mental incapacity. He said after explaining the process of dealing with mentally incapacitated persons to Mrs Chanakira, Mrs Chanakira offered to settle the bill to save Bernard from incarceration. He then summarised the docket and closed it.

Eventually, he learnt that Bernard had been hospitalized. The plaintiff then closed its case.

The second defendant, 'Shaillon' (Mrs Chanakira), called two witnesses in evidence. She gave evidence first.

She is Bernard's brother and she was staying with him. On a date she cannot remember she was phoned by a police officer looking for Bernard. She was advised that Bernard was wanted for a car rental matter. She agreed to meet the police officer and Trevor. The police officer explained that Bernard would be arrested and detained at Chikurubi until the investigations were over. She did not want to see her brother detained; she had lost another brother who had a similar mental condition. He advised the officer that Bernard had a mental disorder. She then offered to settle the bill to avoid the incarceration of Bernard.

They came to an understanding; an acknowledgment of debt was prepared and signed leading to the release of Bernard.

She said his mental condition caused him to think that he had a lot of money and he became irresponsible with money. At one time she met Bernard at the South African border with an agreement of sale to buy a house and an agreement to buy a Mercedes Benz in South Africa. He said he was to pay the money after the British government paid him his millions of pounds that it owed him.

She said his mental condition started when he was about 20-22 years, and, at the time, he was 33 years. He is a Parirenyatwa Annex patient.

She confirmed that she signed the acknowledgement of debt, but it was under pressure from the police officer....,.

It was clear that the second defendant was untruthful when she said she was under pressure from the police to sign the acknowledgement of debt.

This is because, in her evidence, she set out her love and concern for her brother, Bernard; she did not want him arrested. In fact, it turns out now that she did not want the brother to even go through this court process that is why she applied for the appointment of a curator which process she did not pursue to its logical conclusion when the claim was withdrawn against him. It is therefore unbelievable that the police forced her to sign the acknowledgement of debt.

It is my view that she freely took over the obligation to pay off the debt so that Bernard would not be held liable.

Indeed, this happened, because Bernard was not prosecuted to establish his liability and was not even before this court.

HH688-15 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA and LALAPANZI PROPERTIES PL and FRANK BUYANGA and REGISTRAR OF DEEDS N.O. and GILDASTONE HOLDINGS PL
Ruled By: CHITAKUNYE J

Fraud generally consists in knowingly making a false representation of fact with the intention to defraud the party to whom it is made, and such false representation actually causes prejudice or is potentially prejudicial to another.

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

This is an appeal against a judgment of the Labour Court which set aside an arbitral award made in favour of the appellant.

The background facts may be tabulated conveniently as follows:

1. The appellant (“Vimbai”) was employed by the respondent (“the Hotel”) as a supervisor.

2. On 18 January 2005 the Hotel wrote to Vimbai informing him that his contract of employment had been terminated. The letter reads as follows:

“Please be advised that effective 1 January 2005 your employment contract with Sheraton Harare Hotel and Towers has been terminated. You are no longer required to register for duty physically, on standby, or in any other form.

The decision has been taken by management as a last resort after futile attempts to resolve the matter amicably and through further attempts to settle the matter through arbitration. Management and yourself are of the opinion that the employment relationship has deteriorated to non-productive levels.

As a way forward, Sheraton Harare Hotel is willing to resolve the matter through arbitration provided both parties agree on terms of reference to be presented before the arbitrator.”

3. Vimbai took the letter to his trade union, the Zimbabwe Catering and Hotel Workers Union (“the Union”) which, on 20 January 2005, wrote to the Hotel indicating that Vimbai's dismissal would be challenged.

4. On 21 January 2005, the Hotel wrote to the Union as follows:

“Vimbai Mbisva's contract of employment has been terminated due to deterioration in the working relationship between Sheraton Harare Hotel and himself. As stated in our previous correspondence, we are willing and able to engage in dialogue that will result in the resolution of this matter. We are, in addition, willing to accept a determination from a body with appropriate authority to settle the matter.

The hotel welcomes intervention from the Zimbabwe Catering and Hotel Workers Union provided such intervention assists in a settlement of the above matter.”

5. Thereafter, the Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected that proposal.

6. Subsequently, the Union and the Hotel entered into negotiations on the best way forward, but, the negotiations did not yield any positive results.

7. Then, on 25 January 2005, Vimbai went to the Hotel where he signed a Memorandum of Agreement (“the MOA”) which reads as follows:

“I, Vimbai Mbisva, hereby acknowledge that I have entered into an agreement with Sheraton Harare Hotel, under the following terms of which I have agreed:

1. To accept payment of the sum of Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) as full and final settlement of all claims that I have against Sheraton Hotel Harare, its directors, subsidiaries, associated companies, and operations. I acknowledge that I have received Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) in full.

2. To withdraw all claims, complaints, and statements made (by) me relating to Sheraton Hotel Harare, whether with my legal advisors, any legal advisors, any Government body, any court, tribunal or to (sic) any other organisation.

I acknowledge that I have no further claims against Sheraton Hotel Harare, its directors, subsidiaries, associated companies and operations, whether for damages or otherwise. I have entered into this agreement of my own free will and I confirm that my signature appears on this agreement. I undertake to file a copy of this agreement with my legal advisors and any other organisation whose assistance I had sought.”

8. On 2 February 2005, Vimbai's legal practitioners referred the issue of Vimbai's unlawful dismissal to a Labour Officer for conciliation. The Labour Officer failed to settle the dispute, and, accordingly, on 15 April 2005, issued a Certificate of No Settlement.

9. On 9 May 2005, the Labour Officer referred the dispute to compulsory arbitration, and identified the issues for arbitration as:

“(1) Whether the agreement of 25 January 2005, between V Mbisva and Sheraton Hotel, is valid or not.

(2) If not, what damages are payable to Mr Mbisva.”

10. On 3 June 2005, Vimbai and the Hotel's Human Resources Director (“Makoni”) appeared before the arbitrator with their legal practitioners. Both Vimbai and Makoni gave oral evidence and were cross-examined. After addresses by the legal practitioners, the arbitrator reserved his decision.

11. On 18 July 2005 the arbitrator gave his decision, which was that the MOA signed by Vimbai on 25 January 2005 was not binding on the parties because it was not an agreement in the legal sense.

12. Aggrieved by that decision, the Hotel appealed to the Labour Court in terms of section 98(10) of the Labour Act [Chapter 28:01] (“the Act”).

13. On 5 April 2007, the Labour Court allowed the appeal and set aside the arbitral award granted on 18 July 2005.

14. Dissatisfied with that result, Vimbai appealed to this Court, leave to appeal having been granted in terms of section 92F(2) of the Labour Act [Chapter 28:01].

The grounds of appeal set out in the Notice of Appeal are as follows:

“1. The court a quo grossly erred as a question of law overturning the decision of the arbitrator on ordinary common law (principles) and not on the (principles) of public policies (enunciated) and captured in Article (34) of the UNCITRAL Model Law as incorporated in our Arbitration Act [Cap 11:15]. Put simply, (in) overturning the decision of the arbitrator, the court was obliged to consider whether the award in itself offended public policy.

2. Even assuming that the matter had to be determined purely and squarely on the basis of section 98(10) of the Labour Act [Cap 28:01], the court a quo grossly erred (in) overturning (a) finding of fact by the arbitrator. Put simply, there (were) no questions of law in the appeal pending before the Labour Court, and, for that reason, the Labour Court had no good reason to interfere with the finding of fact that (had) been made by the arbitrator.

3. Put simply, the Labour Court grossly misunderstood its functions, the court dealing specifically with questions of law under section 98(10) of the Labour Act [Cap 28:01].

4. Even assuming, without conceding, that (there were) questions of law in the appeal before the Labour Court, the Labour Court itself grossly erred in holding that (the) document executed on the 25th of January 2005 was binding, and ignored that the same had been executed under protest. In any event, to show that the appellant was not agreeing with the same he had left a settlement cheque with the respondent.”...,.

WAS THE MEMORANDUM OF AGREEMENT BINDING ON VIMBAI?

In the fourth ground of appeal, it is submitted that the Labour Court erred in holding that the Memorandum of Agreement (MOA) was binding on Vimbai, and ignored the fact that it was signed under duress.

However, this ground of appeal was not dealt with in the heads of argument filed on behalf of Vimbai. Nevertheless, I will deal with it.

The issue raised in this ground of appeal is whether the Memorandum of Agreement (MOA) was signed under duress.

As already stated, both Makoni and Vimbai gave evidence before the arbitrator and were cross-examined. After consideration of that evidence, the arbitrator said the following:

“In one way or the other, after the dismissal of the claimant, the parties contacted each other, resulting in the claimant and Mr Makoni (from Sheraton) meeting to 'finalise' the matter. At this penultimate meeting, the employer presented a document that would put the matter to rest. The claimant knew that if he continued to challenge his dismissal, he would get nothing from the employer. He therefore pretended to be accepting his terminal benefits, but requested that they be split into two parts, with the first part incorporating largely the January salary and (the) other part the rest of the other terminal benefits.

The claimant then wrote “U.P.” after his signature to signify that he was accepting the benefits 'Under Pressure'.

This was not explained to the employer.

The employer acknowledges that he (it?) was not aware that the claimant had signed the document under pressure.

The claimant hoodwinked the employer into believing that he was consenting to the termination of employment and to the acceptance of terminal benefits. This was done with the sole aim of accessing the January salary.

The claimant's conduct is deplorable.

He was understandably desperate for cash but he used unorthodox methods to get what he wanted.

He lied that he was accepting the benefits of his own free will, and that his acceptance was in full and final settlement of (the) claims that he had against the respondent.

No wonder the respondent's agent kept referring to him as a trickster.

Had it not been for my findings regarding the Memorandum of Agreement (MOA) I would have ruled that the claimant be bound by (his) signature, never mind the invented 'U.P'.”

It is quite clear, from what the arbitrator said, that, he was satisfied that Vimbai had not signed the Memorandum of Agreement (MOA) under duress.

The Labour Court was of the same view and said the following:

“It may very well be true that he was under financial pressure which forced him to accept a deal that he did not like. But, the fact remains that he need not have accepted the deal. It is not like his will was overborne by (the) appellant's to the extent that he had no choice in the matter. He had a choice. He could have rejected the whole deal and pursued other remedies. The fact that he now feels that he should have got more than the deal offered is no ground for breaking the deal.”

The finding by the Labour Court, that Vimbai did not sign the Memorandum of Agreement (MOA) under duress, is a finding of fact, which is not appealable unless it can be said to be irrational in the sense set out in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, where this Court said:

“The general rule of law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: Bitcon v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA) at 671E-H; CCSU v Minister for the Civil Service [1984] 3 All ER 935 (HL) at 951A-B; PF-ZAPU v Minister of Justice (2) 1985 (1) ZLR 305 (S) at 326E-G.”

In the present case, I am not prepared to say, that, having regard to the evidence placed before the arbitrator and the Labour Court the finding complained of is irrational in the sense set out above.

Consequently, the finding that Vimbai did not sign the Memorandum of Agreement (MOA) under duress is not appealable, and the fourth ground of appeal, therefore, falls away.

In my view, the Labour Court correctly determined the matter.

The Memorandum of Agreement (MOA) was a declaration by Vimbai that the dispute between him and the Hotel had been settled on the terms and conditions set out in the Memorandum of Agreement (MOA).

That conclusion is logically consistent with what happened in this case before 25 January 2005.

Vimbai was dismissed by the Hotel. He reported the matter to the Union and a labour dispute ensued. Negotiations aimed at settling the dispute commenced between the Union and the Hotel. The Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected the proposal. As he badly needed some money, Vimbai went to the Hotel, on 25 January 2005, and signed the Memorandum of Agreement (MOA), declaring that the
labour dispute had been settled on the terms and conditions set out therein.

In my view, that declaration is binding on him.

In the circumstances, the appeal is dismissed with costs.

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

On 28 February 2008, under case no. HC1239/08, the appellant caused summons to be issued against the respondents seeking an order for the cancellation of a lease, and, consequent thereto, the eviction of the respondents from the leased premises.

On 10 December 2008, a second summons was issued by the appellant under case no.6969/08 wherein it sought the eviction of the respondents due to the expiry of the lease.

The High Court dismissed the claims with costs.

The appellant was aggrieved by the dismissal and has noted this appeal....,.

The basic facts surrounding the dispute are the following:

The appellant (hereinafter referred to as “Indium”) is the registered owner of certain immovable property, being Stand 450 Avondale West Township of Stand 390 Avondale West, also known as 108 West Road, Strathaven, Harare, (hereinafter referred to as “the premises”). The first respondent (hereinafter referred to as “Kingshaven”) is a private company registered as such under the laws of Zimbabwe. The second respondent (hereinafter referred to as “Shumba” and the third respondent, his wife, are the only shareholders of and directors in Kingshaven.

Kingshaven carries on business in the hospitality sector and is in occupation of the premises by virtue of a lease concluded on 14 December 2007 with Indium. Notwithstanding the date of signing, the agreement was to come into force on 10 December 2007 and was to endure for a period of 365 days, terminating automatically on 9 December 2008.

Shumba and his wife are shareholders in a Close Corporation, ERF Bryanstan Cc, which is duly registered as such under the laws of South Africa.

ERF Bryanstan is the registered owner of an immovable property, being Portion 2 of ERF 825 Bryanstan Township also known as 17 Portman Road, Bryanstan Sandton, Johannesburg.

In 2007, ABSA Bank, in whose favour ERF Bryanstan had registered a mortgage against the property, called up the mortgage and executed against the same.

In an effort to save the property, Shumba approached Jayesh Shah (hereinafter referred to as “Shah”) for financial assistance, and this culminated in a number of agreements.

The first agreement consists of a loan between Shah, on the one part, as lender, and Shumba and ERF Bryanstan Cc, on the other, as borrowers. The loan amount is UD$500,000.

The second agreement is for the sale of the entire shareholding in Indium concluded by Shumba and his wife, on the one part, as sellers, and Jayesh Shah and Shaleetha Mahabeer, on the other, as purchasers.

The last agreement is the lease agreement concluded between Indium, as lessor, and Kingshaven, as lessee on 14 December 2007.

The two matters instituted by Indium were, by consent of the parties, consolidated for trial before the High Court.

In dismissing the claims, the court a quo stated:

“He intended to secure a windfall by all means legally possible. His legal practitioner advised a web of agreements to ensure he remained within the realms of the law. A loan here, a purchase of shares there and a lease with a buy-back option to crown it all, was all it took to secure apparent control of the debtor's immovable property in Zimbabwe without any reference to its true value.

Clearly, whatever the parties decided to call it, the agreement to take over control of the plaintiff company from Shumba, without paying for it, amounted, in my view, to a pactum commissorium.

It is the substance, not the form, to which the court looks when deciding the true nature of an agreement.

Consequently, therefore, the second issue, whether annexure “C” amounts to a pactum commissorium is determined in defendants' favour.

I have already found that the payment, in South Africa, by Shah, was intended as a loan, as pleaded by plaintiff; therefore, there is no evidence to suggest that the same payment doubled as payment for shares in Indium Investments (Private) Limited.

That issue is resolved in favour of the defendants as well.

The transactions were clearly in fraudum legis. The law in this jurisdiction is clear. Where the contract which is in fraudum legis is performed, the court cannot come to either party's assistance.”

The appeal is premised on the following grounds:

1. That, the court a quo erred in not finding, that, in the absence of a plea for rectification of a contract, the parole evidence rule operates to exclude extrinsic evidence to disprove the contents of a written contract. (sic)

2. The court a quo erred in not finding, that, returns lodged with the Registrar of Companies are prima facie proof of the correctness thereof, and the same cannot be impugned without the joinder of the Registrar of Companies.

3. Consequently, and for the stronger reason in view of grounds of appeal 1 and 2 above, the court a quo erred in holding that the respondents had discharged the onus of justifying possession of the appellant's property within the context of the actio rei vindicatio.

4. The court a quo erred in fact and in law in holding that the agreements in question were simulated agreements which “mimicked” the South African agreements.

5. The court a quo erred in any event in holding, that, the agreements the subject of the litigation were in fraudem legis in that they sought to evade the exchange control legislation, in view of the fact that free funds were paid to the credit of a South African resident, and in not finding, that, the fact that such South African resident was a citizen of Zimbabwe and did not give rise to the need for exchange control approval.(sic)

6. The court a quo erred in fact and in law in holding, that, the agreements the subject of the litigation a quo were a pactum commissorium.

Counsel for the appellant urged us to find, that, the learned judge in the court a quo had not dealt with the case that was placed before him.

It was his contention, that, the matter before the court was principally for the cancellation of the lease agreement between Indium and Kingshaven and consequential relief. He argued that it was essentially a rei vindicatio.

What the court a quo did, however, it is argued, was to turn its focus on a completely different issue which it could not competently determine and made findings which cannot be supported.

It is contended, that, the court thereby misdirected itself.

In my view, the dispute can be resolved by this court having regard to the manner in which the court a quo dealt with what it referred to as the simulated agreements, and, secondly, dealing with the actio rei vindicatio in accordance with the claims in the summons....,.

In answer to the claim for the eviction of Kingshaven from the premises, the respondents raised various defences, namely, that Shumba and his wife had borrowed a specified sum of money from Shah, and that, as security for their due performance thereon, the latter had demanded security in Zimbabwe in the form of shares in Indium. They pleaded, further, that the parties entered into a simulated agreement for the sale of shares in Indium which ultimately resulted in the lease agreement providing for a buy-back option in favour of Shumba and his wife.

There is no suggestion on the papers that Indium participated in any of the agreements except the lease.

It then begs the question which parties the court a quo referred to when it concluded that the agreements were fraudum legis.

It is common cause, that, the loan agreement was between ERF 825 Bryanston Cc, in which Shumba and his wife owned shares, and Shah.

ERF Byanston Cc was not cited as a party to the proceedings before the court a quo.

Shah only appeared in the proceedings in the court a quo as a witness on behalf of Indium.

In the circumstances, the court could not have properly considered the loan agreement, or its legality, in the absence of the parties thereto.

I turn next to the “share sale” agreement in relation to the shares in Indium.

The parties to the sale of the shares were, on the one part, Shumba and his wife, as sellers, and, on the other part, Jayesh Shah and Shaleetha Mahabeer.

The last two were never before the court as parties and the agreement for the sale of shares could therefore not be scrutinised to any extent by a court in their absence.

Consequently, the determination by the court of the issues related to the lease agreement concluded by Indium and all the respondents in reference to the share sale agreement was highly irregular.

It follows, therefore, that, any issues referred to the trial court for determination in relation thereto would be irregular. It is therefore logical to conclude that the court a quo dealt with matters and issues that were not before it.

This leaves Indium, Kingshaven, Shumba and his wife.

They were parties to a document, being the lease agreement, which is the only document properly before the court.

Those were the parties that were before the court, and, therefore, the only dispute for determination was that arising from the lease agreement in respect of which the court had to determine the respective rights and obligations of the parties before it.

In the absence of a counter-claim for declarations of invalidity in respect of the agreements discussed above, the court could not grant relief to the effect that the agreements were invalid. At best, it was argued, the court ought to have granted absolution from the instance.

I think the criticism is well taken.

At p8 of the cyclostyled judgment, the learned judge in the court a quo stated:

“In my view of the facts, the defendants have adduced sufficient evidence to rebut the presumption of legality of the transactions described above. Generally, one of the most common forms of tax avoidance is where the parties to a contract attempt to disguise its true nature in order to qualify for a tax benefit that would not be available if the true contract between them were revealed. The courts require no statutory powers to ignore pretence of this kind and the law will always give effect to the real transaction between the parties.”

The court a quo then went on to consider the agreements in question, and, at p11 of the judgment, concluded:

“In my view, the true nature of the Zimbabwean agreements was that they were additional securities to the South African loan despite the fact that they in effect apparently passed ownership and control to Shah. The buy-back option as well as the fact that the loan had been secured by a mortgage bond gave Shumba the belief (that) these agreements will be respected by the parties as pledged to the underlying loan agreement. I therefore find for the defendant in respect of the first issue.

As to whether annexure “C” amounts to a pactum commissorium, it follows from my reasoning, that, once the interpretation given by the defendant is upheld, the court must find in his favour on this point as well.

I do so for the following reasons:

A pactum commissorium has been defined as a 'pact by which the parties agree that if the debtor does not, within a certain time, release the thing given in pledge by paying the entire debt, after the lapse of the time fixed, the full ownership in the thing will invariably pass to the creditor in payment of the debt:' see Chimutanda Motor Spares (Pvt) Ltd v Musare & Another 1994 (1) ZLR 310; Van Rensberg v Wieblen 1916 OPD 247 at 252.”

Undoubtedly, the court was correct in its statement of the principle of a pactum commissorium.

However, it was incorrect in applying that principle to the facts of this case.

It gave the respondents far reaching relief which they had neither sought nor prayed for....,.

It is common cause, that, in their plea to the claim for eviction, the respondents raised the issue related to the loan between Shah and Shumba and his wife, the agreement for the sale of shares in respect of Indium, and the lease agreement in terms of which Kingshaven, and through it, Shumba and his wife occupied the premises.

A plea is a defence, and, as such, can be likened to a shield. It is not a weapon or a sword. No relief can attach to a party through a plea.

In the same plea, the respondents averred, that, by separate process, Shumba and his wife would approach the High Court for a declaration of invalidity of the two Zimbabwean agreements.

No such process was ever launched.

Clearly, the court a quo misdirected itself in that it resolved a dispute that was not before it.

Some of the parties to the dispute in question were not before it and they were denied the right to be heard in their own cause.

The ratio of the decision of the court strikes at the rights of Jayesh Shah and Shaleetha Mahabeer without affording them the right to be heard.

I say so for the reason, that, a judgment in which the court stated that the acquisition of shares by the two was a nullity could not be made in their absence and in proceedings in which they have not been cited as parties.

The question that arises for determination is whether such a judgment can be said to be valid and binding as against Jayesh Shah and Shaleetha Mahabeer.

In Hundah v Murauro 1993 (2) ZLR 401, the point was made, that, for a party who has a real interest in the matter in dispute before a court to be bound by a judgment of the court, such party should be cited. At p404E-G the court stated:

“We have drawn attention to this point previously on a number of occasions: see e.g. Munemo v Muswera 1987 (1) ZLR 20 (S) at 21G-H; often in conjunction with the other important point that the local authority should be cited in proceedings of this kind since it has real interest in the property in dispute: see e.g. Ncube v Mkandla SC123-89. If it indicates, in writing, beforehand, that, it is happy to accept whatever the court decides, well and good. But, otherwise, it should be cited, if only to ensure that it is bound by whatever judgment is given. Such an order does not bind it if it was not a party.”

Additionally, the court only had regard to the Zimbabwean agreements.

In the event that its conclusion, that the lease agreement was a simulation and that the “share sale” agreement was security for the loan, such finding could not be arrived at without considering the South African agreements.

The court declined to have regard to them on the basis that the order sought did not depend upon their validity.

This was despite the fact that the pactum commissorium depended on the loan agreement, which was a South African agreement, and which the court had properly declined to consider.

The contradiction is obvious and the misdirection can thus not be in dispute.

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter so that what they plead is what the law requires their clients to prove to sustain the remedy they seek.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

HH78-02 : CONSTANCE PANGETI vs THE GRAIN MARKETING BOARD
Ruled By: MAKARAU J

This is an application for review brought in terms of Order 33 of the High Court Rules. The facts of the matter are not in dispute. They are as follows:

The applicant joined the respondent in 1990 as a typist. This appears to have been on a temporal basis, for, in 1992, she was confirmed as a permanent employee of the respondent. On some date in 1991, the applicant, or someone purporting to be her, filled out an employment form in which it was represented that the applicant had attended Lord Malvern High School between 1977 and 1980 and had passed three subjects at "O" Level. The form was not signed nor dated.

It is pertinent to note here, that, the applicant did not deny the respondent's averment that it was the applicant herself who filled out the form.

On 18 November 1999, the respondent's Personnel Manager requested the applicant to furnish proof of her qualifications. This, the applicant failed to do. She was then charged with misconduct before a disciplinary committee. The charges that were preferred against her were communicated to her by a letter dated 15 June 2000 that read, in part, as follows:

"RE MISCONDUCT CHARGES

1. Insubordination - wilful and unreasonable disobedience of a lawful order from a superior. Category I section I.

2. Theft, fraud, forgery, involvement in bribery, misappropriation, falsification of documents. Category I section 3.

3. Incitement, intimidation, indulging in disorderly behaviour or activities inconsistent with the express or implied conditions of his/her contract of employment. Category 1 section 5.

In the letter dated 18th November 1999, from the Human Resources Manager, you were advised that the Chief Executive had requested that you submit proof of the 3 "O" Level passes that you had claimed to possess on joining the Board in 1991, and also in the interviews of 1996, by 26th November 1999. You, however did not submit these or offer an explanation by the due date.

The Regional Personnel Officer (Northern) then wrote to you on 4th January 2000, reminding you to respond in writing to the Chief Executive's request by 12th January 2000; which she set as the new deadline. However, you did not respond in writing as had been required. Your failure to respond as required is considered to be insubordination."

The Disciplinary Committee found her guilty of the alleged act of misconduct and recommended that her employment be terminated.

The applicant appealed against this decision.

In accordance with the provisions of the respondent's Code of Conduct, her appeal was noted to the Chief Executive in accordance with the respondent's Code of Conduct who dismissed the appeal.

The applicant then filed the above application for review.

The applicant alleged, as her grounds for review:

(i)...,.

(ii) Secondly, that the decision of the respondent to dismiss her is grossly unreasonable.

The application was duly opposed....,.

The applicant has alleged, as one of the grounds for review, that, the decision of the respondent was grossly unreasonable. This, in my view, brings under the spotlight the content of the decision of the respondent to dismiss the applicant.

The powers of the High Court, on review, have been extensively discussed: see Fikilini v Attorney General 1990 (1) ZLR 105 (S); Secretary of Transport v Makwavara 1991 (1) ZLR 18 (S).

In the matter of Secretary of Transport v Makwavara 1991 (1) ZLR 18 (S), the Supreme Court accepted as correct the concession by both counsel that administrative action is subject to control by judicial review under three heads: illegality, irrationality, and procedural impropriety.

It is with the first ground that we are concerned with in these proceedings.

In my view, the respondent made an error in law in arriving at its decision.

According to the facts of the application, it is not in dispute that the applicant did not furnish the respondent with proof of her qualifications. It is further not in dispute that she obtained her employment with the respondent on the strength of the alleged qualifications.

In my view, it cannot be disputed, that, if the respondent had known, way back in 1991, that the applicant was not possessed of the qualifications she purported to hold, she would not have been employed. The misrepresentation by the applicant therefore induced the contract between the two parties.

This point has not escaped the respondent's legal practitioner. He correctly notes, in his supplementary heads of argument, that, the question of the applicant's qualifications was a pre-requisite to employment.

In the circumstances of this matter, the remedy pursued by the respondent, in charging the applicant with an act of misconduct, was, in my view, ill-conceived.

By charging the applicant with an act of misconduct, the respondent has pushed itself into a legal conundrum. It is this:

The applicant is either an employee of the respondent or she is not. If she is an employee, then the question of her qualifications falls away. But, only employees of the respondent can be charged with misconduct. Therefore, by charging the applicant with an act of misconduct, the respondent has elected to clothe the applicant with the status of an employee.

However, once it has accepted that the applicant as an employee, the effect of any misrepresentations inducing the contract of employment falls away. In other words, the respondent, in my view, can only use the misrepresentation to terminate the contract of employment and not to discipline the applicant....,.

In my view, failing to produce educational certificates should rightfully result in no contract at all and cannot found ground for dismissal once the contract has come into being.

HHH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

Both accused persons are charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 09:23]. They are alleged to have, on various occasions, during the period extending from 29 March 2009 to 14 August 2009, defrauded the Government of Zimbabwe of two billion United States Dollars.

The charge sheet is framed as follows:

“Accused are guilty of FRAUD as defined in s136 of the Criminal Law (Codification and Reform) Act [Cap 09:23].

In that on various separate occasions, but during a period beginning 29 March 2009 to 14 August 2009, and at the ministry of Mines and Mining Development and at Zimbabwe Mining Development Corporation's Offices in Harare, both accused persons, and in common purpose, unlawfully and fraudulently made misrepresentations with intent to defraud the Government of Zimbabwe; that is to say, Lovemore Kurotwi misrepresented to the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation that Core-mining and Mineral Resources (Pty) Limited (a shelf company in South Africa) was a special purpose vehicle of a company known as Benny Steinmeitz Group Resources (BSGR) (which was supposed to be the Guarantor in a Joint Venture Agreement between Core-Mining and ZMDC) in common purpose with Dominic Mubaiwa who later joined in the criminal enterprise and unlawfully prepared and entered into an unapproved and uncirculated memorandum of Agreement between Marange Resources (Pty) Ltd signed on 24 July 2009 and later acquired a cabinet authority to proceed to South Africa to conduct a due diligence exercise on Co-Mining (a mere shelf company) which both accused persons purported to be a Special Purpose Vehicle of Benny Steimeitz Group (BSGR) thereby ending up concluding a Shareholder Agreement between Zimbabwe Mining Development Corporation and Core-Mining and Mineral Resources (Pty) Limited instead of Benny Steinmeitz Group (BSGR) which all along had been held out by both accused persons as the Guarantor of Core-Mining thereby causing an actual prejudice of two billion United States Dollars to the Government of Zimbabwe.”

Both accused persons pleaded not guilty, and, thereafter, proceeded to except to the charge.

Their main complaint is that although the charge makes allegations of misrepresentation to the Ministry of Mines and the Zimbabwe Mining Development Corporation, none of the papers indicate to which natural person the misrepresentation was made. It was argued that both entities, being artificial persons, could only act though natural persons. It was therefore necessary to specify the natural person to whom the misrepresentation was made otherwise the accused will be prejudiced in their defence if they were left in the dark or to speculate as to which natural person they are alleged to have made the misrepresentation.

The accused's second complaint is that although the State alleges actual prejudice of two billion United States Dollars, it does not inform them as to how the prejudice came about.

In light of such objections, the accused requested the Court to order the delivery of the relevant particulars in terms of section 177 of the Criminal Procedure and Evidence Act [Chapter 09:07] to enable them to prepare their defence. That section reads:

“177 Court may order delivery of particulars

(1) The court may either before or at the trial, in any case if it thinks fit, direct that particulars be delivered to the accused of any matter alleged in the indictment, summons or charge, and may, if necessary, adjourn the trial for the purpose of the delivery of such particulars.

(2) Such particulars shall be delivered to the accused, or to his legal representative, without charge, and shall be entered in the record, and the trial shall proceed in all respects as if the indictment, summons or charge had been amended in conformity with such particulars.

(3)…,.”

Section 146 of the Criminal Procedure and Evidence Act prescribes the essentials of a valid and competent charge. It states that:

“146 Essentials of indictment, summons, or charge

(1) Subject to this Act, and except as otherwise provided in any other enactment, each count of the indictment, summons, or charge shall set forth the offence with which the accused is charged in such manner, and with such particulars as to the alleged time and place of committing the offence and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.”

Thus, the State is under an obligation to frame a charge among other things so as to inform the accused person of the offence he is facing together with the particulars or essential elements of that offence. The section also requires the State to inform the accused of the person against whom the offence was committed and the nature of the property involved, if any.

Failure to give such particulars would render the charge defective and exceptiable.

It is therefore necessary to examine and see if the charge complies with the essentials laid down in section 146 of the Criminal Procedure and Evidence Act.

It is common cause that the accused were informed that the offence they were facing is fraud committed against the Government of Zimbabwe in the sum of two billion United States Dollars. In short, they are being accused of defrauding the Government of Zimbabwe of two billion United States Dollars.

It is trite that the Government of Zimbabwe is a legal entity with full legal persona capable of suing and being sued in its own name. It has a separate legal existence from its officials and servants. The Government of Zimbabwe, duly constituted by the Constitution of Zimbabwe, is, therefore, undoubtedly a juristic person.

HALO's South African Company Law through the cases, 6th ed 1999 defines a juristic person as:

“A body corporate or association, other than a natural person, that is endowed by law with the capacity to have rights and duties apart from its members.”

The State, being a juristic person, ought to be treated like any other juristic person. TETT and CHADWICK, Zimbabwe Company Law, 2nd ed…, states that:

“The effect of a company having separate legal personality is that it can engage in any activity and is entitled to the same rights and remedies as any other juristic person.”

The law, therefore, makes no distinction between the framing of charges involving natural persons and artificial persons. Thus, the Government of Zimbabwe, like any other juristic person, has the full locus standi in judicio to appear and be heard as the complainant in any Court without being carried on the back of any natural person. Thus, it is sufficient for the State to allege that the misrepresentation was made to a juristic or artificial person without naming any natural person.

It is instructive to note that section 146 of the Criminal Procedure and Evidence Act does not make it a requirement that where the complainant is a juristic person the charge must specify the natural person to whom the misrepresentation was made.

The failure to mention or specify the natural person to whom the alleged misrepresentation was made cannot possibly prejudice the accused in their defence because the State elaborated, in its summary, that the misrepresentation was made to the juristic persons through written letters which will be produced in court through named competent witnesses, including the Permanent Secretary in the Ministry of Mines.

Written documents, which the accused can interrogate, speak for themselves in the normal run of things; letters disclose their author, addressee, and the communication conveyed from one party to the other.

I can therefore perceive no prejudice to the accused if they have been provided with access to the relevant documents upon which the alleged misrepresentations are founded.

As regards the quantum of prejudice, the State elaborated that the amount of prejudice was occasioned in one capital sum arising from the misrepresentation. In the light of that explanation, it will be illogical to order the State to provide a non-existent breakdown when it alleges that the prejudice was not incurred in instalments.

The purpose of an indictment is to inform the accused of the case he is going to meet in Court without necessarily providing the evidence required to prove the allegations. The summary of the State case provides a precis of the evidence upon which the State intends to rely on in proving its case.

Viva voce evidence, documents, exhibits and any other evidence constitute the actual poof of the allegations against the accused as alleged in the indictment and summarized in the outline of the State case.

It is important not to confuse one stage from the other.

Having carefully perused the charge sheet and the State's response, it appears to me that the particulars required by the accused person in respect of the indictment are properly contained in the summary of the State case that is yet to be read in open Court. For that reason alone both the exception and application for further particulars cannot succeed.

Both objections are accordingly dismissed.

View Appeal
HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

Chikwavadombo Mastick Marange [“Chikwavadombo”] died on 8 September 2005. He was the substantive Chief Marange. Two persons acted in his place and stead, each in turn, after his death. These were one Ringisai Noah Marange and one Gilbert Marange.

The first respondent eventually succeeded him as Chief Marange.

The process of selecting Chikwavadombo's successor was long and arduous. It commenced at about the time of Chikwavadombo's funeral. It remained in place for some eleven (11) years running. It ended with the installation of the first respondent as Chief Marange. The installation took place on 27 October 2016.

The installation of the first respondent triggered the present application.

The applicant alleged that the first respondent was irregularly and improperly appointed to the position of Chief Marange. He said the incumbent Chief [“incumbent”] was imposed upon the people of Marange. The incumbent was, according to him, not the people's preferred candidate for the position. He stated that the people had chosen him, and not the incumbent, to be their Chief. He averred that the second respondent hand-picked the first respondent and imposed him on the people against the latter's wishes.

He moved the court to review the work of the second respondent and set the same aside, and, by implication, remove the first respondent from his position of Chief for the people of Marange.

The respondents opposed the application.

They agreed with the first respondent's in limine matter. They submitted that the court lacked jurisdiction to hear and determine the application. They anchored their argument on section 283 of the Constitution of Zimbabwe.

They stated that disputes which related to the appointment, removal, and suspension of a Chief should be resolved by the third respondent on the recommendations of the Provincial Assembly of Chiefs through the second respondent. They insisted that the applicant should have taken that route instead of approaching the court. He should, they said, have referred his grievance to the Provincial Assembly of Chiefs for dealing.

They moved the court to dismiss the application.

The application is, in my view, against the second, more that it is against the third respondent. The third respondent was not involved in the selection process which culminated in the nomination of the first respondent as the substantive Chief Marange. He was, in fact, presented with a fait accompli. The second respondent, who commenced the selection process and drove it through to the nomination stage of the first respondent, presented the third respondent with a recommendation upon which the latter had to, and did actually, act. He had no choice but to endorse his signature upon the recommendation of the second respondent. The third respondent operated upon the premise that the second respondent, to whom he assigned the Traditional Leaders Act, would not mislead him....,.

On the merits, the applicant gave a clear and concise narration of the events which led to the appointment of the first respondent to the position of Chief Marange. His version was easy to follow. He made every effort to show that he was the preferred candidate for the position of Chief Marange.

He attached to his application the supporting affidavits of nine (9) persons....,.

The supporting affidavits of the nine persons were deposed to on 1 November 2016.

Four (4) of the nine (9) persons did, on 10 January 2017, depose to affidavits in which they denied having ever deposed to affidavits in support of the application. They stated that the signatures which appeared on the supporting affidavits of 1 November, 2016 did not belong to them. They denied having ever appeared before any Commissioner of Oaths to sign the affidavits.

Two (2) of the four (4) did, on 26 February 2017, depose to affidavits stating that their depositions to the affidavits of 10 January 2017 were made by them under duress. They said they were taken from their rural home to Harare where they were accused by an unidentified, physically-imposing man, of undermining the authority of the Government by supporting the applicant. They said they were told to make amends and were given drafted affidavits which they were made to sign and they signed those.

Three (3) of the four (4) did, on 14 March 2017, depose to affidavits in which they dissociated themselves from the applicant's case and cause.

It is evident, from the foregoing, that the deponents were used as a means to an end. They were, no doubt, at the mercy of the applicant and the first respondent. They went along with whoever approached and sought their support.

No weight can be attached to affidavits of persons who swang from one party to the other like a pendilum. The affidavits told a lie about themselves. In telling the lie as they did, they revealed the pressure to which the deponents were subjected in the parties' respective effort to ascend to the throne.

The supporting affidavits which the applicant attached to the application do not, therefore, support anything let alone his case.

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

This matter was initiated as a court application by the present plaintiff. Upon hearing argument, the court ordered that the papers filed in the court application stand as pleadings and the matter proceed to discovery in the normal way.

The papers show that, at the pre-trial conference stage, four issues were identified for trial. These are:

(a) Whether or not the respondent obtained possession of the Toyota Hi-lux motor vehicle registration number 424-562E from the applicant without authority or permission;

(b) Whether or not the respondent promised to return this motor vehicle to the applicant by delivering it to the offices of the Zimbabwe Mining Development Corporation as alleged on behalf of the applicant;

(c) Whether or not there was a sale of the Toyota Hilux motor vehicle, and, if so, whether the sale was to the respondent or to a company called Hoeramar Enterprises;

(d) Whether the aforesaid Toyota Hilux motor vehicle is no longer in the possession of the defendant;

(e) The value of the aforesaid Toyota Hilux motor vehicle at the time the defendant obtained possession of it.

At the commencement of trial, the respondent took four points in limine;

(i) The first point was whether the Chairperson of the Zimbabwe Mining Development Corporation (“ZMDC”) Board of Directors has the authority or jurisdiction to act on her own initiative without a board resolution to set up a commission of inquiry to look at the affairs of a separate and different entity altogether.

(ii) The second point was a challenge to the authority by virtue of which the present action was launched, since, according to the respondent, the applicant had not authorised the launching of the inquiry and therefore there was no authority for the launching of these proceedings.

(iii) Thirdly, the respondent queried the powers of a commission of inquiry to operate outside its terms of reference. Since the terms of reference did not empower the commission of inquiry to delve into the disposal of motor vehicles, then, if it considered that as within its terms of reference, that commission of inquiry acted ultra vires its terms of reference.

(iv) Finally, the respondent took the point, that, where correspondence had been ruled “without prejudice” it cannot be relied upon in subsequent proceedings.

After hearing the respondent as well as counsel for the plaintiff on the preliminary points, I directed that the matter proceeded to trial and my ruling on these points will be made apparent in the judgment.

I wish now to set out the reasons for the order which I gave then....,.

Trial proceeded on the basis that the supporting and answering affidavit filed in the court application stood as pleadings. Dominic Mubaiwa, who deposed to same, adopted these as his evidence-in-chief before he was cross-examined.

In these, he points out that he is the Group Chief Executive Officer of ZMDC. The plaintiff company is a subsidiary of ZMDC.

As the Group Chief Executive Officer of the ZMDC, he is a non-executive director and member of the Board at the plaintiff company.

The executive director at the plaintiff is appointed by the ZMDC board as the holding company. In that capacity he is authorised to depose to the affidavits in connection with the present matter.

The records of the applicant show that the defendant (respondent) obtained possession of a Toyota Hilux motor vehicle, registration number 424-562E, from the plaintiff (applicant) when he was the non-executive Chairman of the applicant without permission or authority.

Sometime in December 2004, the respondent had promised, orally and in writing, to return this motor vehicle by delivering it to the offices of ZMDC in Harare.

By the time the court application was launched, he had not done so, pleading that the motor vehicle was now a non-runner and needed tyres and that he had no resources to tow it to Harare.

The respondent has no excuse for not handing over the motor vehicle.

The applicant therefore seeks an order compelling him to restore the motor vehicle into its possession.

Dominic Mubaiwa particularly relied on correspondence addressed to the respondent by the applicant's legal practitioners dated 24 December 2004 in which the following appears;

“We confirm having discussed the entire matter with you and indicated to you that in our view the application is without merit, but, more importantly, that, any public debate of the contents of the application and the response of our clients to it, particularly at the High Court, would be most damaging to your reputation and is to be avoided. With this in mind we have discussed with yourself the settlement of this matter on the following basis:

“1. That you will withdraw your Court Application, and, if such a withdrawal occurs before our clients file any opposing papers, we will advise our clients not to seek any costs from yourself;

2. That you will undertake to pay repairs for the T35 truck, which, as you have accepted, was utilised by yourself at least on one occasion without the permission of Mhangura Copper Mines Limited. In this connection, you have queried the estimated cost of repairs, but, of course, the quantum will only be known once the repairs are completed. If you are unhappy with the amount then a court will have to settle any dispute arising therefrom.

3. That you will return the Toyota Hilux motor vehicle in the view of our client was acquired by yourself, as opposed to a company in which you have an interest, irregularly and without the observance of any appropriate tender system. In this connection, you have stated that you are prepared to return the motor vehicle in question but have carried out certain repairs to it and had vehicle parts affixed which you would like to remove. As indicated to you, Mhangura Copper Mines remains the owner of this motor vehicle and it must be returned to it either in the condition in which it was when you removed it (which we believe will be almost impossible) or its current condition and then be examined by an independent repairer to determine the extent to which its value has been enhanced by any repair work undertaken by you or on your behalf.”

Subsequent to this correspondence, the applicant's legal practitioner penned yet another communication to the respondent on 7 January 2005 in the following terms:

“We refer to the above matter and to our letter to you of 24th December 2004 and also to our telephone discussion this morning.

We confirm that you have now agreed to deliver to the offices of the Zimbabwe Mining Development Corporation in Harare the Toyota Hilux motor vehicle, registration number 424-562E, in its current condition. Delivery will be effected no later than Wednesday the 12th January 2005. Our client will then have it examined by an independent third party in order to determine the issues previously discussed with you.”

The respondent replied to these two letters by way of a letter dated 12th January 2005.

In it, he claims that he never freely agreed to return this motor vehicle. He had, however, been threatened with incarceration by the applicant's legal practitioner, Mr Mahlangu, over this particular motor vehicle out of sheer malice. This had induced him to make undertakings regarding the vehicle.

At the time of the alleged telephone conversations with Mr Mahlangu, the respondent's father had been sick. Under threat of arrest and incarceration, he had proceeded to the premises of the company which held the motor vehicle and forcefully took possession of it to avoid imprisonment. He had however failed to deliver it to the applicant since it had no tyres....,.

The claims against Mr Mahlangu forced counsel for the plaintiff to call him to refute the same after the respondent had closed his case.

Initially, Mr Mahlangu remained composed as he narrated the chronology of events leading to this trial. He was at pains to demonstrate how his concern for the need by the respondent to keep his integrity intact stretched his client's patience with him. He tried everything to avoid the matter go to court. The respondent would have none of that. He would make undertakings which he ignored at will. Despite the ease with which the matter could have been resolved, the respondent kept changing his position thereby forcing the applicant to seek recourse in the courts.

The respondent was a poor witness for his case.

Had he heeded Mr Mahlangu's advice, to engage another person to appear for him, he would have saved the little of his integrity that remained.

The respondent is a lawyer with several years of practice behind him. He runs his own law firm, and, I assume, supervises professional assistants under his charge.

This was not reflected in this case.

He behaved like the common and run of the mill lying litigants. Counsel for the plaintiff had a field day during cross examination.

He could not reconcile his own versions of the events. He ended up admitting that he could be the one lying rather than Mr Mahlangu.

From the beginning, the respondent did not maintain the ethical behaviour of a legal practitioner towards a fellow practitioner. Had he done so, he would have seen the need to reciprocate the goodwill shown him by Mr Mahlangu and avoided playing the victim of boardroom battles.

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

This is an appeal against the whole judgment of the Labour Court upholding the National Employment Council - Tobacco Grievance and Disciplinary Committee's (NEC GDC Committee) finding that the appellant tacitly renewed the respondents' contracts of employment.FACTUAL BACKGROUNDThe following facts are common cause. The respondents were employed by the appellant ...

FACTUAL BACKGROUND

The following facts are common cause. The respondents were employed by the appellant on two-year fixed contracts beginning 1 May 2011 to 30 April 2013.

After the expiry of their contracts of employment, they continued to work for the appellant for eleven months following which the appellant offered them new contracts with the same terms as the expired ones.

The respondents signed the new contract which effectively regularised their employment in retrospect for the period of 1 May 2013 to 30 April 2015.

Upon expiry of the contracts, on 30 April 2015, the appellant retained the respondents until 22 June 2015 on the same terms as the expired contracts. It then offered them one-year fixed term contracts. The proposed contracts had a two-months probation clause and other less favourable conditions.

The respondents rejected the appellant's offer.

The appellant terminated their contracts of employment by letter dated 7 July 2015 on the basis that the negotiations between the parties had collapsed.

Aggrieved by the termination of their employment, the respondents noted a grievance of unfair dismissal with the appellant's Works Council.

The Works Council upheld the decision by the appellant's Human Resources department to offer the appellants one year contracts after the expiry of the two year contracts. It reasoned that there was no legal impediment to the appellant replacing the expired two-year contracts with other contracts which had different terms and conditions from the expired contracts.

The Work's Council further found that the respondents suffered no prejudice as they were paid for the period they worked whilst the parties were negotiating.

Thereafter, the respondents appealed to the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC).

They submitted, that, in instances where an employer allows an employee to work after a fixed-term contract had expired, the contract is deemed to have been tacitly relocated on the same terms and conditions. Therefore, they submitted, there was no basis for the new contracts as there had been tacit renewal. They also averred, that, the alleged negotiations were inconsequential as they ensued after the tacit renewal.

In response, the appellant submitted, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) had no power to interfere with the findings of facts made by the lower tribunal unless the findings were outrageous in their defiance of logic. The appellant contended that the two-month delay in notifying the respondents of the new offer could not be inferred to mean there was tacit renewal.

It did not intend to renew the two year contracts.

The National Employment Council - Tobacco Grievance and Disciplinary Committee ruled in favour of the respondents.

It held, that, tacit relocation could be safely presumed since the appellant did not communicate its intention to change the terms of the respondents' contracts before their termination and that the respondents were engaged on the same terms and conditions as before. It accordingly ordered the reinstatement of the respondents for the unexpired period of their contracts without loss of pay and benefits or payment of their salaries and benefits up to 30 April 2017.

Aggrieved by this decision, the appellant appealed to the Labour Court (the court a quo) on the ground, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) grossly misdirected itself when it made a finding that there was a tacit renewal of the respondents' two year employment contracts simply because the appellant allowed the respondents to continue reporting for duty after the expiry of their contracts.

It argued, that, where there are clear indications that the other party did not intend to be bound by the old contract, there could not be tacit relocation of a contract that extended beyond the contractual period.

The appellant submitted, that, tacit relocation could not occur where the parties are engaged in negotiations over a new agreement. It contended that the respondents were allowed to work and were paid for the period when their new contracts were being attended to.

To the contrary, the respondents argued that there was tacit relocation in that the appellant allowed them to continue working on the same conditions from 1 May 2015 to 22 June 2015 notwithstanding that their contracts expired on 30 April 2015.

They also emphasized that the parties did not agree on a new arrangement.

The respondents further indicated that the appellant had the option of terminating their contracts of employment but allowed them to render their services and subsequently introduced unfavourable conditions. It was submitted that a finding against tacit relocation in the circumstances of the case would be contrary to social justice and fair labour standards of equity and fairness in the workplace.

DETERMINATION OF THE COURT A QUO

The court dealt with the issue of whether or not the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) erred in finding that the contracts of employment had been tacitly relocated.

In doing so, it considered the employment status of the respondents at the time their contracts were terminated. The court a quo found that there was no evidence to the effect that the new contracts were as a result of any negotiation process as no negotiations were done from 1 May to 22 June 2015.

It reasoned, that, the old contracts were tacitly relocated in that the appellant had allowed the respondents to continue working on the same terms and conditions as before, and did not communicate any intention to change the terms and conditions of the employment.

The court a quo also had regard to the precedent that the appellant did not immediately terminate or renew the respondent's contracts but allowed them to continue working, for some period, on the same terms and conditions of the expired contracts.

It reasoned, that, had the appellant not wished to be bound by the old expired contracts, it would have expressed that intention.

The court accordingly concluded, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee's decision did not constitute an outrageous defiance of logic since the facts indicated that there was tacit relocation of the two year contracts.

Aggrieved by that decision, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. Having accepted that the fixed term contracts between appellant and each of the various respondents had come to an end and that new fixed term contracts have been offered, within two months of the expiry of respondent's contracts, the court a quo erred in finding notwithstanding those agreed facts, that the old contracts had been relocated.

2. The court a quo erred in not coming to the conclusion that the negotiation that took place after the expiry of the contracts were such as negated any finding that there was an extension of the contractual relationship between the parties by the quasi-mutual assent.

3. The court a quo erred in imposing upon appellant a contract it had not concluded to prejudice the clear terms it had actually offered. (sic)

4. Respondents, having rejected the terms of the contract offered by appellant, the court a quo erred in concluding that respondents had a contract to enforce.”

SUBMISSIONS BEFORE THIS COURT

At the hearing, counsel for the appellant submitted that the court a quo asked itself the wrong question, and, ultimately, gave itself the wrong answer.

The wrong question was whether it had been shown that there had been negotiations between the parties from 1 May 2015 to 22 June 2015, and, if not, what the effect of the absence of negotiations, during that period, would be.

The court a quo's ratio was that, upon the expiry of the contract, they only engaged in negotiations after a period of six weeks: because of that silence, there was tacit relocation of the contract.

He contended, that, the real dispute between the parties was not that the respondents' contracts had been relocated but that the respondents were aggrieved by the terms of the new contracts.

Counsel for the appellant submitted, that, the respondents admitted that there were negotiations and that they did not refuse to sign the one-year contracts but were looking forward to working under the old two-year contracts.

Counsel for the appellant further contended, that, a holistic analysis of the facts would show that relocation of contracts in 2015 could not have been the appellant's intention.

The parties knew of the need for a written contract at all material times as evidenced by the fact that in 2013 the respondents worked for eleven months without contracts and later signed contracts backdated to the period when they were without contracts.

The parties haggled over the terms of the one year contracts as the employees did not like the new terms of the contract. They did not argue that the old contracts had relocated.

To confirm the appellant's position some of the employees signed the one-year contracts.

He concluded by saying that tacit relocation cannot be inferred from the facts of this matter.

On being asked the date when the negotiations started, he was unable to pinpoint a date.

He however submitted that even if there were no negotiations between 1 May and 20 June 2015 a tacit relocation could not be inferred when the parties subsequently negotiated.

He further submitted, that, the fact that the parties were negotiating shows that there was no intention on the part of the appellant to revert to the old contract. He relied for that proposition on the case of Justin Kwangwari v Commercial Bank of Zimbabwe HH79-03....,.

It is the appellant's position that the engagements between the parties, after the expiration of the contract, are a clear indication that it had no intention of continuing on the old terms.

It relied on communication by the appellant's Human Resources Manager, dated 7 July 2015, informing the respondents that the negotiations had collapsed, thus, a new contract would not materialize and the Works Council determination to that effect.

Per contra, the respondents aver, that, negotiations regarding the new offer made by the appellant did not have any legal effect on tacit relocation as a new contract had already materialised.

In their written submissions, they aver that the purported negotiations were induced by duress as the appellant's Human Resources' Manager threatened to dismiss them if they did not abandon the claim for tacit relocation and dispense with the services of their legal practitioners.

As such, they submitted that the 'alleged collapse of negotiations' in the circumstances, could not be a basis for the termination of employment.

HB09-15 : LEAST SUPPLIES (PVT) LTD t/a L.S. CELLULAR and L.S. CAPITAL vs T.I.B. INSURANCE BROKERS and HERITAGE INSURANCE COMPANY
Ruled By: TAKUVA J

It was also submitted by the applicant, quoting MFB REINECRE and SWJ Van Der MERWE, General Principles of Insurance…, that:“An agent who is guilty of a misrepresentation is personally liable for the damage caused by him.”

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.

The second respondent did not file a notice of opposition, and, as a result, the court took it that he will abide by the decision rendered.

The applicants, through the urgent chamber application, seek an interdict, and, on the return date, a review.

Ordinarily, an application for review should be filed separately, but, given the prevailing COVID lockdown and Practice Direction Number 4, under which ordinary applications were not accepted for filing, I accepted the urgent application hence gave directives.

Let me hasten to say, that, this case is peculiar and should not be viewed as setting a precedent that review applications can be commenced through an urgent chamber application.

The first to the third applicants are, respectively, sister, father, and sister of one Genius Kadungure who passed away on the 8th of November 2020 (hereinafter the deceased).

The factual background to the application can be summarised as follows:

The deceased was a well to do person who had business interests in Zimbabwe, Botswana, and South Africa. The first respondent approached the family of the applicants, at the funeral, with a document that she purported was a Will of the deceased though it was not signed. Using undue influence, the applicants accepted the document as the last will and testament of the deceased and recommended the appointment of the first respondent as the executrix of the estate of the deceased.

The first respondent dissuaded the applicants from seeking legal advice indicating that she was also their lawyer.

The second respondent accepted the document as the last Will and testament of the deceased in terms of the Wills Act and also appointed the first respondent as the executor. This was followed by the issuance of Letters of Administration to the first respondent dated the first of December 2020.

The applicants reluctantly worked with the first respondent though they had questions over the will - a copy of which was never furnished to them.

After seeking legal advice, they approached the first respondent who refused to furnish them with a copy of the Will and minutes of a meeting held on the 25th of November 2020. They only managed to obtain copies from the second respondent.

To note is that the Will, which was drafted by the first respondent, confers executorship on her.

She, during the lock down period, attended to disposal of the deceased's Lamborghini motor vehicle in what they term 'hazy' circumstances. This was despite the fact, that, there was no detailed inventory and there was no confirmed distribution account.

FNB Bank in Botswana, where the deceased held an account for his company called Quick Gases (Pvt) Ltd, had extended a loan that had been unpaid since the demise of the deceased. He also left assets in South Africa, in the form of trucks, that were in danger of disappearing if the issues of executorship remained unresolved.

The first respondent had, on the 5th of February 2021, advertised an interim distribution account stating, falsely, that such was lying for inspection at the offices of the second respondent. The latter admonished the first respondent over her false claim.

There is litigation in Botswana over the legitimacy of the first respondent's executorship.

The applicants seek an interim interdict prohibiting any administration of the deceased's estate pending the return date upon which a review of the second respondent's decision to appoint the first applicant as the executrix, and to accept the document in question, will be sought.

The grounds for review are framed as illegality/absence of jurisdiction; fraud; speculation; malpractice; and gross irregularity.

The applicants are further concerned by the following acts which cast the authenticity of the Will in doubt:

(i) The haste with which the first respondent seeks to dispose of the Lamborghini without following due process;

(ii) The invitation by the first respondent for members of the public to inspect an estate account when she has already authorised disposal of the said vehicle;

(iii) The Will makes reference to some persons without stating their actual identities;

(iv) The vehicle arrived in Zimbabwe around the 30th of September 2020, and, its inconceivable that the deceased would have a Will drafted bequeathing it to a third party 23 days after its arrival;

(v) The deceased had a large fleet of vehicles and it is surprising that only the Lamborghini was mentioned in the will;

(vi) The first respondent falsely claimed that she is an attorney and she never wanted to avail the Will to the applicants.

The Will is therefore fake and the estate of the deceased should proceed under intestacy.

The matter is urgent and cannot wait because the applicants are the surviving blood relatives of the deceased and have a prima facie right to protect their interests.

The acceptance of the Will is a legal nullity and there is need to stop the first respondent in her tracks. She is already in the process of disposing of some assets of the deceased estate during the lock down period, more specifically, a Lamborghini motor vehicle, using a distribution account that was never availed nor approved by the second respondent.

Quick Gases (Pvt) Ltd, in which the deceased was the sole director, is in danger of being liquidated after F.N.B Bank in Botswana froze the company's bank account.

The applicants have been given up to the 31st of March 2021 to attend to issues relating to the appointment of the first applicant as executrix.

The first applicant is dissipating the deceased's estate to the permanent and irreparable harm of the applicants in circumstances when her appointment as executrix is a nullity; she has not furnished security to the second respondent for due administration of the estate; and she has not furnished the second respondent with a comprehensive inventory.

Waiting to prosecute a review application during the lockdown period without knowing when it will end will prejudice the applicants who are at risk of losing many assets.

The first respondent continues to take the law into her own hands to the detriment of the applicants.

There is no other alternative remedy to protect the rights of the applicants.

There is real risk that the first respondent, in the absence of a court order, will continue to alienate and dispose of the deceased's assets, and, accordingly, only an interdict will protect the rights of the applicants pending the return date.

The second and third applicants deposed to supporting affidavits in support of the first applicant's averments.

They thus seek a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The application is hereby granted.

2. The provisional order granted in this matter is hereby confirmed.

3. It be and is hereby declared that:

3.1 The document registered with the 2nd respondent on 25 November 2020 under DR. No.1771/20 as the will of the later Genius Kadungure ('the deceased') (who died on 8 November 2020) is null and void; and

3.2 The deceased died intestate.

4. The decision of the 2nd respondent, to register and accept the aforesaid document as the last will for purposes of administration of the estate of the deceased in terms of section 8(5) of the Wills Act (6:06) be and is hereby set aside.

5. The 2nd respondent's appointment of the 1st respondent, on 2 December 2020, as the testamentary executrix of the estate of the deceased, and all acts done by the 1st respondent (personally or by other persons at her direction) under and by virtue of such appointment be and are hereby declared null and void.

6. The letters of administration issued by the 2nd respondent, on 2 December 2020, in favour of the 1st respondent, under DR No.1771/20, appointing her as testamentary executrix, be and are hereby revoked.

7. The 2nd respondent shall convene another meeting to appoint an executor of the estate of the deceased which meeting shall be presided over by an official other than the official who presided over the meeting of the 25th of November 2020 or any of the officials who previously dealt with the estate of the deceased; and

8. The 1st respondent shall bear costs of suit on attorney-client scale (in the event that she opposes the application).

INTERIM RELIEF GRANTED

Pending the return date, the applicants are hereby granted the following interim relief:

1. Pending the return date, the 1st respondent is hereby interdicted from, in any way, administering, or dealing in the estate of Genius Kadungure ('the deceased') in Zimbabwe, Botswana or South Africa; and

2. The 2nd respondent, or any other person acting on his behalf, be and is hereby interdicted from (without the leave of this court) accepting for filing any document by, or acceding to any request from, the 1st respondent under DR. No.1771/20 save and except for the purposes of relinquishing the letters of administration issued hereunder.”

The first respondent strenuously opposes the application and raises several points in limine as follows:...,.

In heads of argument filed of record, the first respondent, through her legal practitioner, further raised a preliminary point that there was material non-disclosure.

The applicants did not inform the court that they signed affidavits, under oath, confirming that they had no objections to the unsigned document being taken as the deceased's last will and testament. Reference was made to the oft cited case of Graspeak Investments (Pvt) Ltd v Delta Ops (Pvt) Ltd and Anor 2001 (2) ZLR 551 (H).

The applicants, to the contrary, were very candid with the court that they accepted the document as a Will and recommended the appointment of the first respondent as executor. Their bone of contention is that they were unduly influenced by the first respondent.

The points in limine are therefore dismissed.

HHMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

Generally, undue influence entails anything repugnant to fairness...,.; and each case depends on its own facts.

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