The plaintiff is a duly registered company trading under the name Borrowdale Motor Sales. As the trade name suggests, it, the plaintiff, trades in motor vehicles.

On 6 June 2006, the plaintiff entered into an agreement with the defendant, in terms of which the plaintiff agreed to purchase a vehicle owned by the defendant, to wit, a Ford Taurus registration number 720-532L. A copy of the agreement, which is attached as Annexure A to the summons, reveals that the purchase price of the vehicle was $700,000= (revalued) payable as to a deposit of $300,000= and the balance payable in two installments of $200,000= each within a further period of five months.

In its declaration, the plaintiff avers that it paid the deposit of $300,000 and a further sum of $200,000 being the first instalment. The plaintiff further avers that on tendering the remaining instalment to the defendant, he, instead, made a verbal offer to buy back the vehicle from the plaintiff and that as a result a verbal agreement was concluded for the defendant to buy back the vehicle for the price of $3 million. The plaintiff avers, further, that the defendant breached the verbal agreement by paying a total amount of $570,000 instead of the agreed sum.

The plaintiff has therefore claimed for an order cancelling the verbal agreement with the defendant, and, further to that, for an order that it pay back the sum of $770,000 to the defendant being a reimbursement of the $570,000.00 paid under the verbal agreement by the defendant and the sum of $200,000 being the balance of the purchase price of the vehicle in terms of the written agreement concluded by the parties on 6 June 2006.

The defendant, in his plea, denied that the plaintiff was entitled to the relief being sought, and, instead, averred that the plaintiff had not performed its obligations in terms of the written agreement and has averred that the plaintiff breached the written agreement by failing to pay any of the installments due under the written agreement. Due to such breach, the defendant avers that the parties agreed to terminate the agreement on condition that the defendant would pay back to the plaintiff the sum of $570,000 and the latter would return the vehicle to the defendant.

The defendant further avers that he duly paid the agreed amount to the plaintiff but that the plaintiff refuses to return the vehicle. The defendant therefore has filed a counter-claim in which he prays for the return of the vehicle and payment of damages for unjustified enrichment in the sum of $800,000 for use of the vehicle and for the value lost on the use of the $570,000.

The plaintiff purchased the vehicle from the defendant and paid a deposit of $300,000 upon signature of the agreement. Subsequently, additional other sums, which the plaintiff puts at $200,000, were paid. The defendant puts the amount at $100,000 which amount he states is the first breach by the plaintiff of the terms of the written agreement.

The plaintiff has produced vouchers which bear the signature of the defendant and states that the defendant did receive the amount of $200,000. The defendant denies that he signed the vouchers although admitting the signature to be his.

The plaintiff then claims the existence of a verbal agreement in terms of which the defendant would repurchase the vehicle at a stipulated price. The plaintiff claims that the defendant breached the agreement and therefore prays for its cancellation and payment to the defendant of monies not paid under the first agreement and a refund to the defendant of monies paid under the second agreement.

Most of the facts are common cause. The dispute relates to the payment of the instalments by the plaintiff due on the written agreement.

It is common cause that the parties entered into a verbal agreement in respect to the vehicle, and the question for determination is what the terms of that verbal agreement were. Each of the parties has a version which differs from the version rendered by the other.

At the commencement of the trial the parties agreed to some of the issues agreed to at the pre-trial conference and captured in a joint pre-trial conference minute filed by them. The only issues left for determination at the trial were the following therefore:

(a) What were the material terms of the verbal agreement between the parties?

(b) Whether the defendant breached the verbal agreement by failing to pay the deposit timeously?

(c) Whether the defendant is entitled to the return of the motor vehicle?

(d) Whether the defendant has suffered any damages and whether the plaintiff is liable to the defendant in the amount claimed or any other sum at all?

There were no issues to be decided on the written agreement, but, in the presentation of their evidence, it would seem as if the parties were focused on issues mainly to do with the written agreement.

The defendant, in its counter claim, alleges breach of the agreement by the plaintiff and denies the existence of a verbal agreement involving a buy back of the vehicle. The plaintiff, in turn, claims ownership of the vehicle based on the written agreement.

If the plaintiff premises its claim on the written agreement, the dispute, it appears to me, cannot be resolved without an examination, at the outset, of what the terms of the written agreement were and what rights the parties retained in the vehicle pursuant thereto.

It is clear, therefore, that the terms of the written agreement then are an issue for determination as to whether the defendant is entitled to a return of the vehicle or if ownership, by virtue of the agreement, vested in the plaintiff....,.

The defendant has submitted that the court should tell the parties the nature of the agreement that they entered into. I take that to mean that the court is being asked to interpret the agreement placed before it. It cannot mean that the court should, in such exercise, rewrite the contract for the parties.

The court a quo, correctly in my view, found that, in interpreting the contract, it was duty bound to give effect to the intention of the parties at the time of concluding the contract.

The learned Judge in the court a quo found that from the facts, the parties were agreed from the onset that time was of essence. Initially, the respondent, the defendant in the court a quo, had wanted payment upon transfer but the parties negotiated and compromised on payment being effected after 14 days from signing the Agreement of Sale. The learned Judge found that having regard to the prevailing economic circumstances it would have amounted to an absurdity for the defendant to have given the plaintiff the freedom to pay at any time when the circumstances clearly established that time was of the essence. He found that in terms of the Agreement, the applicant was required to pay the balance of the purchase price within 14 days from the date of signature. 

His reasoning cannot be faulted.

I have been invited to look at the conditions of the agreement by Gomo, which conditions he contends were not performed by Agro Chem. It was contended, further, that the court in casu could not ignore the Agreement of Sale as it recorded the intention of the parties vis-à-vis the transfer….,.

I also find that the suggestion that the court look at the intention of the parties to the contract is ill-conceived. A party who was not privy to a contract which is the subject matter of a dispute cannot make submissions in relation to the intention of the parties to the contract with any conviction. Any suggestion of what the parties thereto may have intended can, at best, be described as conjecture. Only the parties to the contract can speak to the terms and conditions thereof and whether or not such terms accord with the intentions of the parties at the time the contract was concluded.

In cross examination, John Chagaresango was directed to specific clauses of the agreement which were apparently not complied with by the defendant, and all John Chagaresango could do was to repeat that this agreement was not based on what the defendant and himself and others (as witnesses) had signed for but on other verbal assurances by Ms Elizabeth Chidavaenzi….,.

Surely, if the agreement was to be based on some other verbal assurances by Ms Chidavaenzi, would it have been prudent for a man in the mould of John Chagaresango to encourage his aunt to sign an agreement which was in sharp contrast with such verbal assurances. An inevitable question would then arise, why sign the agreement if one desires not to be bound by the terms above one's signature?

On 26 August 2004, the plaintiff instituted proceedings in the High Court wherein it sued for $60,000,000= being the sum assured in terms of a motor vehicle comprehensive policy it held with the second defendant. The first defendants were the insurance brokers who facilitated the policy.

On 21 December 2006, and before the pre-trial conference, the plaintiff amended its claim by the addition of paragraph 10 which is a claim for consequential damages in the sum of $100,000,000= being the replacement value of the vehicle.

The first defendant pleaded that it first acted as the second defendant's agent and its obligation ended as soon as the policy was in place and that the premium had not been paid at the time of the accident hence the policy was revoked.

The second defendant, in its plea, pleaded ignorance of the policy and put the plaintiff to the proof thereof.

At the commencement of the trial, the second defendant applied for, and was granted an amendment to its plea. The amendment was a withdrawal of the initial plea and its substitution with a plea to the effect that;

1. The first defendant, as agent of plaintiff, entered into an agreement with the second defendant that the plaintiff should pay the insurance policy premium of $3,524=26 in equal installments over a period of 3 months as from 25 February 2004.

2. That the plaintiff did not comply with this agreement, and, as at the date of the accident the plaintiff had not performed its obligations to pay the instalments.

3. In any event, the plaintiff is covered for a total of $60,000= in terms of the policy and is contractually precluded from claiming more.

The plaintiff gave evidence through its Managing Director, Mr. Zisengwe. Mr. Gideon Muchakwa gave evidence for the first defendant after which Mr. Moses T. Chakaringa and Mr. Member Murasiranwa gave evidence for the second defendant.

From the evidence adduced in court the following are common cause.

The plaintiff entered into an insurance contract with the second defendant. This was done through the first defendant who acted as broker. The premium was put at $3,524,259=. The insured value was put at $60,000,000= (old currency). On 10 February 2004, the plaintiff paid $200= (revalued) towards the premium. The plaintiff was then issued with a policy document dated 18 February 2004. The period of insurance was stated as 'From 10/02/ 04 to 31/01/05 (both dates inclusive)'.

On 23 March 2004 the motor vehicle so insured was involved in an accident and was declared a write off. As at the time of the accident, the plaintiff had not paid the balance of the premium. Such balance was only paid on 7 April 2004 to the first defendant. When the plaintiff attempted to make a claim on the policy the second defendant refused to honor the claim on the basis that the plaintiff had not paid the premium as per policy.

The testimony by Mr. Zisengwe was to the effect that the plaintiff had been asked to pay the premium in three months. It was never stated that the instalments had to be equal. At the time of the accident the three months period had not lapsed. When the accident occurred the plaintiff was asked to pay the balance in order that its claim can be sent to the second defendant - and it did so. In this regard he tendered two receipts as exhibits 1 and 2 for the payments.

The first defendant's evidence, on the other hand, was to the effect that when Mrs. Zisengwe came to insure the plaintiff's motor vehicle she was told the premium that had to be paid. As she did not have the full amount she was allowed to pay $200= on her undertaking to pay the balance in two weeks time. She was warned of the consequences of not paying the full premium. After failing to pay within that period the first defendant extended the period to three (3) months. According to Mr Muchakwa, this extension was at the plaintiff's risk.

At the pre-trial conference, the issues were viewed as;

“1. The interpretation of clause 1 of the contractual document. It being admitted that plaintiff paid its premium on 25 February 2004; and

2. The quantum of damages.”

After hearing evidence from the witnesses, it was apparent that the parties were not agreed that the premium was paid on 25 February, 2004. The receipts tendered showed the initial payment was on 10 February 2004 and the second payment was on 7 April 2004.

The main issues would thus be;

1. Whether or not the plaintiff had paid the premium in terms of the policy;

2. Whether or not the defendants are liable to the plaintiff as per claim;

3. Whether or not the plaintiff is entitled to payment of the sum of $100,000,000= in respect of its claim for the loss of its motor vehicle in terms of the policy agreement; and

4. Who between the defendants is liable to pay the plaintiff.

PAYMENT IN TERMS OF THE POLICY

The policy document, in its preamble, states that “whereas the insured, by a proposal and declaration which shall be the basis of this contract and deemed to be incorporated herein, has applied to the company for the insurance and has paid the premium as consideration for such insurance in respect of accident loss or damage occurring during the period of insurance.”

That preamble presupposes the applicant has paid the premium.

I did not hear any party to interpret that paragraph in any way as pre-supposing that premium would not have been paid. It is in that light that the issue of payment of the premium is important.

The plaintiff's case was that in spite of this there was a premium payment plan in place which was agreed with the first defendant at the time the policy was agreed in terms of which the premium was payable over a period of three months. Mr. Zisengwe tendered exhibit 3 as proof of the arrangement.

Paragraph 2 thereof states that;

“We hasten to add that a premium payment plan had been agreed to spread payment over three months and initial payment had been effected on receipt of policy before the accident, which we take cognizance of.”

This letter is from the first defendant to the plaintiff. The first paragraph thereof shows clearly that the second defendant was refusing to pay on the premise that premium payment was done after the loss which aspect they contended vitiates the terms and conditions of the policy.

In his evidence Mr. Muchakwa did not deny this.

The first defendant having allowed the plaintiff to pay in instalments found itself in difficulties to persuade the second defendant to pay.

In both its plea and in evidence the first defendant acknowledged that it had no authority to allow the plaintiff to pay its premium in installments. It is because of that lack of authority that it asked the plaintiff to pay up before they could file their claim. It is clear beyond doubt that the payment arrangement was initially as between the plaintiff and the first defendant. That arrangement was apparently not in terms of the policy document. It was an arrangement the first defendant agreed to for the convenience of the plaintiff and not because there was express authority from the second defendant for the first defendant to grant such payment terms.

The second defendant's evidence was to the effect that the insurance policy the plaintiff took out required a one off payment. In the instance case no such payment was made hence it declined the plaintiff's claim. However, in its amended plea, the second defendant stated that “first defendant, acting in its capacity as agent for plaintiff entered into an agreement with second defendant that plaintiff should pay the insurance policy premium of $3,524= 26 in equal installments over a period of 3 months as from 25 February 2004.”

There was thus contradiction between the second defendant's plea and evidence by its witnesses. The witnesses could not explain away the contradiction.

Mr Muchakwa who should have been better placed to testify on this was a ball of confusion and contradictions. For instance, whilst being categorical that the policy was of a one off payment at inception he was, at some stage, heard to say the second defendant should nevertheless have honored the claim. He found it difficult to admit the first defendant's negligence in not advising the plaintiff of the consequences of partial payment and also in not advising the second defendant about the credit arrangement with the plaintiff.

The second defendant, through Mr Murasiranwa, indicated that upon receipt of $200 towards payment of the premium they questioned the first defendant about it. The first defendant was reminded that a failure to pay the full premium would lead to the invalidity of the policy for non-remittance. When asked why the second defendant had not advised the first defendant of the invalidity of the policy in view of non payment of the premium Mr Murasiranwa said that events took over as the accident took place. In terms of clause 8 of the General Conditions of the policy document the second defendant could have cancelled the policy.

Despite not receiving full premium the second defendant issued the policy document and had not cancelled it by the time of the accident.

The amended plea acknowledges the arrangement to pay in instalments. If therefore the second defendant wishes to rely on a breach of contract the burden of proof is on it. See Brightside Enterprises (Pvt) Ltd v Zimnat Insurance Co. Ltd 1998 1 ZLR 117....,.

If the second defendant had rejected the arrangement it should not have issued the policy document, or, at least, it should have cancelled the contract as soon as it became aware of the credit arrangement if such had not been known to it when it issued the policy document.

Instead of cancelling the contract, the second defendant opted to merely warn the first defendant, who, by then, had become its agent of the risk of non-payment of the full premium yet the contract provides that the second defendant could have cancelled the contract. Paragraph 8 of the General Conditions states that;

“The Company may cancel this policy by sending seven days notice by registered letter to the insured at his last known address, and, in such event, will return to the insured the premium paid pro-rata portion thereof for the period the policy has been in force…,.”

The second defendant gave an impression to the plaintiff that the arrangement was acceptable. If the second defendant now wishes to rely on such breach, which was there from inception, the onus is on it to prove such breach and to show that such vitiated the contract in spite of its own conduct.

The plaintiff sought to rely on deductive reasoning rather than hard facts of the lived traditions as practiced by his clan.

The first defendant was able to link these lived and practiced traditions to the disputes at hand than did the plaintiff and his witnesses who seemed to rely on platitudes....,.

The plaintiff, through TD Muskwe, opined that one swallow does not make a summer. Indeed, counsel for the plaintiff conceded that one incident neither makes a tradition nor a custom.

Repetition of the incident is what turns it into a custom and a tradition.

This matter was initially placed before me under a certificate of urgency. As the final and interim relief sought on the provisional order were the same, I wrote an endorsement on the face of the application querying the manner in which the relief had been framed.

The letter of explanation was not placed before me and it was not until after some months that the matter was then brought to my attention. In the event, it was set down before me in chambers to be argued as an urgent application.

The respondents indicated a desire to file affidavits in opposition and it was agreed between the parties that the best way was for the matter to be dealt with as an opposed application. The parties thereafter filed their documents, including heads of argument, and the matter was then argued in court.

On the date of hearing, counsel for the applicants made reference to a number of authorities to which I had no access. He promised to avail them to me shortly thereafter, but, it was not until 31 May 2007 that this request was complied with. It was, as a consequence, virtually impossible to render a judgment soon after the hearing as I then was heavily committed in other duties.

I turn now to the application before me.

The applicants are unions representing members in the employ of the second respondent. The first respondent is a medical aid society set up for the benefit of the employees of the second respondent and would appear to have been set up by virtue of a Collective Bargaining Agreement between the second respondent and its employees.

It is common cause that the first respondent was collecting subscriptions from the employees and the second respondent. Benefits which the employees received were not related to the level of payment by the beneficiary and it was, consequently, a fact that the second respondent was operating as a welfarist society with its members being afforded the same benefits.

In August 2006, the second respondent put into effect a three-tier system where benefits were structured according to the level of contributions paid by respective members.

Following representations made to the second respondent, the changes were not put into effect immediately as the parties attempted to find a common position. However, at the end of August 2006, the second respondent gave notice of its intention to put the changes into effect at the beginning of October 2006. The changes were put into effect and the system is now operational.

In view of the reasons I alluded to earlier, an attempt to have a temporary interdict stopping the implementation was still-born. It therefore only leaves the final relief for determination.

The terms of the final relief are in the following terms:

1. That the implementation and execution of the tiered system by the first respondent, effected on 1 October 2006, be and is hereby set aside.

2. That the first respondent be and is hereby ordered to cease/stop and be inducted from implementing the tiered system introduced on 1 October 2006.

3. That the first respondent pays the costs of suit.

Extensive heads of argument were filed on behalf of the parties. In addition, both counsel addressed the court orally.

Counsel for the applicants argued that there were three issues for determination:

(i) The first issue was whether or not the first respondent had powers, in terms of its Constitution, to alter the medical aid scheme in existence since its inception. Counsel invited me to look at the narrow positivist meaning of clause 11(2) as well as the context of the agreement.

(ii) The second issue was whether or not the Board of the third respondent had issued a directive to the first respondent following upon a meeting held on 20 October 2006; and

(iii) The last issue was whether or not the applicants had a legitimate interest to be heard before a decision was made to link benefits to subscriptions.

Counsel for the respondents argued almost on the same premise as counsel for the applicants viz whether the second respondent had the power to introduce the benefit structure that it did.

His argument was that the applicants had considered the structure of the third respondent in isolation of the statute. He submitted that the first respondent had the power to alter the benefits accorded to its members. In so far as the third respondent was concerned it was his contention that it had not issued a directive to the first respondent to stop implementing the alteration in the benefit structure. Lastly, it was argued, on behalf of the first respondent, that, the provision of medical services by the first respondent to members of the applicants was not a condition of service and that therefore there was no need for the applicants' members to be consulted prior to the implementation of the changes.

I think the logical place to start in this matter is the examination of the relationship between the applicants and the first respondent.

The first respondent was established by the National Industrial Council for the Railway Industry in 1970. One of its objects was to afford members the facility of obtaining medical and surgical treatment for themselves, and their dependants, including the provision of drugs and medicines.

According to the Constitution in terms of which the first respondent was set up, its members comprised of the following; employees of Railways, employees of National Railways of Zimbabwe, Railmed, National Railways of Zimbabwe Pension Fund, RAE, RAU, RAYOS, REC, RMS, and Z.A.R.W.U. who are entitled to membership in terms of their conditions of employment.

Also included in the list of people entitled to be members are pensioners of the various institutions described above and the widows or widowers of those persons who had been in employment in the same and were members of the first respondent.

The applicants, being unions, are representing the persons employed by the various bodies I have referred to. Except for those employed by the first respondent, none of the members of the applicants can say that they are employees of the same. The greater number of the applicants' members therefore are employed by the other bodies.

Going by the objects of the Constitution of the first respondent, the applicants' members have a relationship with the first respondent whereby the latter has undertaken to afford the members facility for the provision of medical and surgical treatment as well as drugs and medication. Nowhere in their papers have the applicants' alluded to any other contract with the first respondent except for the provision of the services I have described above.

Yet, in addressing the question of the first respondent's actions in altering the benefit structure being offered to their members, the applicants contend that the actions of the first respondent are in fact an alteration of their conditions of service.

In order to dispose of the issue of the relationship between the applicants and the first respondent, it then becomes necessary to arrive at a decision as to the meaning to be ascribed to the phrase “conditions of service.”

When one is in service, one is in employment, and, therefore, conditions of service are the same as conditions of employment. In the case of OK Bazaars (1929) Ltd v Madeley NO & Anor 1943 TPD392, conditions of employment were described as:

“Conditions of employment in the present context means simply the terms, either express or implied, contained in a contract of employment.”

The terms and conditions of the employment contracts of the applicants' members are not in the purview of the first respondent. In my view, conditions of service can only exist where services of a personal nature are rendered, the one being the employer the other the employee.

We do not have services of a personal nature being rendered by the applicants' members to and on behalf of the first respondent.

I presume that the contracts of employment provide for contributions by the employer for subscriptions to a medical aid society. Beyond that, I refuse to go as the contracts are not before me and any further comments on my part would be mere speculation....,.

I have already found that the medical benefit is not a condition of service, but that what was a condition of service was the entitlement to membership and the concomitant contribution by the employer on behalf of the employee.

It is pertinent to note that the contracts of employment where the conditions are spelt out were not displayed to the court as much of the argument is based on the alteration of the same....,.

Given that the applicants wish to enforce rights arising out of a contract between their members and the first respondent, such rights have to be given effect to in accordance with the terms of the contract the parties concluded.

The court is not permitted to go outside the terms of the contract, which, however, has not been exhibited to the court.

The brief background facts to this matter are largely common cause. I set them out as follows:

In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).

The lease agreement was constantly renewed over the years with the last renewal being agreed upon on 20 June 2007 for a further three years. Thus, the lease agreement between the parties is due to expire by effluxion of time on 31 March 2010.

It was a specific term of the agreement between the applicant and the first respondent that the applicant would not sublet the premises without the written consent of the lessor.

In 2008, the applicant and the second respondent reached an understanding in terms of which the second respondent moved onto and took occupation of part of the premises….,.

In January 2009, the first respondent wrote to the applicant, summarily terminating the lease agreement and seeking the ejectment of the applicant from the premises. This was on the allegation that the applicant was subletting the premises to the second respondent without the prior written consent of the lessor and in breach of the specific term of the lease agreement against sub-letting.

When the applicant tendered rentals for the month of February 2009, these were rejected on the basis that the lease agreement had been cancelled.

This, in turn, prompted the applicant to approach this court seeking;

(i) Firstly, an order holding the first respondent to the lease agreement on the basis that it was not sub letting to the second respondent as alleged; and

(ii) Secondly, an order ejecting the second respondent from the premises.

The application was opposed by both respondents.

In opposing the application, the first respondent contended that it had proceeded in terms of the lease agreement to summarily cancel the lease agreement as the applicant was in breach. It justified its action by relying on clause 21 of the lease agreement which provides that:

“If the lessees shall fail to pay the rent on the due date or at the latest within ten days thereafter or if the lessees shall commit any other breach of the terms or conditions of this lease then the Municipality shall have the right, in its discretion, summarily to terminate this lease and retake possession of the Stand without payment of any compensation whatsoever and without prejudice to any claim which it may have against the lessees for rent already due or for any damages which it may suffer by reason of such breach or termination.”...,.

It is trite that even where a lease agreement grants the lessor the right to cancel the lease on account of breach and to re-take possession of the leased premises, as was the position between the applicant and the first respondent, such cancellation is always subject to the control of and confirmation by the court.

The lessor has to approach court for the confirmation of its cancellation of the agreement and for the eviction of the tenant. The right to summary termination of the lease agreement, no matter how clearly worded, does not oust the jurisdiction of the court to grant the eviction order.

The existence of the grounds for and the validity of the cancellation of the lease agreement are always subject to validation and confirmation by the court which alone can order the eviction of the defaulting tenant.

The lessor cannot exercise self-help and retake possession of the property without a court order - even where the agreement specifically provides so: see Livingstone v Solomon 1924 SR 117; Joubert v Bester 1977 (2) SA 641 (T); Towers v Chipata 1996 (2) ZLR 261 (HC): and Bater and Another v Muchengeti 1995 (1) ZLR 80 (SC)…,.

As the trial progressed, it became apparent that the first issue that I have to determine in this matter is which Agreement between the parties is binding.

The plaintiffs contend that it is the first one, while the defendant contends to the contrary.

It is common cause that the parties negotiated the terms of the first agreement and reached consensus thereon before requesting the defendant's legal practitioner to reduce the agreement to writing. The parties, thereafter, signed the written document embodying the terms of the agreement they had reached. They all had the necessary intention to be bound by the terms of the agreement when they signed the Agreement. Thus, on the basis of formalities, there is no blemish to this Agreement.

On the other hand, the second Agreement lacks one vital ingredient.

The plaintiffs did not intend it to be binding. They lacked animus contrahendi, and executed the Agreement simply as an instrument to facilitate cession of rights but not to govern their relationship with the defendant.

It thus cannot be binding as between the parties.

This is an opposed application where the applicant seeks the following relief:-

“1. Applicant shall deposit $10,000,000,000= into the Registrar of High Court's temporary deposit account the outstanding balance towards the purchase price of Stand No.3519, Dzivaguru Crescent, Ruwa, for first respondent.

2. Thereafter, first respondent shall proceed to cede his rights, interests and title in Stand No.3519, Dzivaguru Crescent, Ruwa, into applicant's name within ten (10) days of service of this order on him failure of which the Deputy Sheriff, Harare, be and is hereby authorised to sign all relevant cession papers for purpose of ceding first respondent's rights interests and title in Stand No.3519, Dzivaguru Crescent, Ruwa, into the applicant's name.

3. First respondent shall be evicted forthwith from Stand No.3519 Dzavaguru Crescent, Ruwa.

4. First respondent shall pay the costs of this application on client legal practitioners.”

In seeking the above relief, the applicant alleges that the respondent breached a contract relating to his purchase of Stand No.3519 Dzivaguru Crescent, Ruwa, (the property).

It is common cause that on 15 February 2008 the applicant and the first respondent entered into a written agreement whereby the first respondent would sell his rights in the property to the applicant for a sum of ZW$20,000,000,000= (twenty billion Zimbabwe dollars). The applicant paid ZW$10,000,000,000= (ten billion Zimbabwe dollars) upon the signing of the agreement. It was then agreed that the balance of ZW$10,000,000,000= would be paid over a period of three months.

On 21 April 2008 (i.e. 66 days after paying the deposit) the applicant tendered payment of the balance of ZW$10,000,000,000= but the first respondent refused to accept the payment arguing that he had since cancelled the agreement after the applicant refused to pay $3,300,000,000= on 15 March 2009, which payment, according to the first respondent, would have constituted the first instalment.

On 9 May 2008, the applicant filed this application praying for specific performance in terms of the draft order (relief) quoted in full herein…,.

On 9 July 2008, the applicant obtained a default judgment against the first respondent from this court, and, on the basis of that judgment, he caused the registration of the property into his name. However, the default judgment was later rescinded on 7 May 2009.

In opposing the application, the first respondent argued that the purchase agreement was not enforceable because it did not carry the consent of the lessor, namely, the Minister of Local Government and National Housing (the Minister) who was not even cited in the proceedings.

The first respondent based his argument on clause 12 of the lease agreement between himself as the lessee and the Minister as the lessor. The said clause provides as follows:

“That the lessee shall not cede or assign this lease or sublet or part with the possession of the stand/stands, or any part thereof, or alienate, mortgage, donate or otherwise dispose of the same, or cede or assign any right acquired by him/it hereunder without the previous consent in writing of the Lessor, or until title to the stand/stands shall have been granted to him/it as hereafter mentioned.”

The first respondent conceded that, although he, as the seller, had not complied with the above condition, the agreement between him and the applicant was not null and void. It was only unenforceable and would remain so until the Minister (lessor) placed him in a position to pass title. He, however, correctly argued that the Minister, who was not a party to the proceedings, could not be compelled to pass title to either of the two parties.

The first respondent argued that Ruwa Local Board, cited in the case as second respondent, was merely an administrative entity and could not take the place of the lessor who could pass title. It was further submitted that the second respondent had indeed confirmed that it would require authority from the Minister for it to pass title. The second respondent was not therefore compellable to pass title to the applicant.

The first respondent further submitted that when the parties concluded the contract their main intention was that the balance of $10,000,000,000= would be payable in three equal instalments over a period of three months. However, in breach of that arrangement, the applicant had, on 15 March 2008, upon demand, refused to pay the first instalment of $3,300,000,000=. The applicant had indicated that he would pay the whole balance at the end of the three months' period. That refusal to pay led to the cancellation of the agreement by the first respondent. The first respondent regarded refusal to pay the first instalment as a breach of contract justifying cancellation of the same.

On his part, the applicant submitted that upon payment of the balance of $10,000,000,000=, through the High Court, following the rescinded court order granted on 9 July 2008, he had fully discharged his obligations under the contract. He had initially tendered the payment on 21 April 2008 but the first respondent had rejected the same.

It should, however, be noted that notwithstanding the rescission of the court's order of 9 July 2008, on 7 May 2009, the applicant went ahead to register the property into his name.

The applicant averred that the refusal by the first respondent to accept the balance was due to the fact that he (the first respondent) wanted to fetch a higher price from an unnamed third party. He said the agreement did not spell out any specific instalments for the three months period. The first respondent could not therefore resile from a contract that was entered into freely and voluntarily. Payment had been made within the confines of the agreement and that payment was subsequently paid through the court.

The applicant agreed that although the agreement in question was legal it did not bind the lessor (Minister). See Jangara v Nyajuyamba 1998 (2) ZLR 475 (H) and Chanda v Mutandadzi and Anor SC74-94.

He said clause 12 of the lease agreement merely enunciated general policy. In the main, however, the City Councils/Local Boards are, on behalf of the Minister, the ones who approve of persons who are eligible to purchase or occupy any piece of land. The City Council(s) or local board(s), with authority from the Minister, can ratify what the parties will have concluded outside the non-cession clause. To that end, it was argued, it is the city councils/local boards that obtain the necessary authority for cession(s) from the lessor (in casu: the Minister). He said authority to cede would only be withheld where public policy would be injured.

In the premises, and because the applicant had fully discharged his obligations under the contract, it was argued, it would be unjust and inequitable for the court not to order specific performance. He urged the court to find the agreement legal and enforceable – hence his cry for specific performance.

In dealing with this matter, I want to take judicial notice of the fact that, generally, State land in municipalities is administered by local councils through delegated authority from the Minister. The lessee, for all practical purposes, dealt with the Ruwa Local Board which was mandated by the lessor (Minister) to approve developments on the Stand or property that was the subject of purchase. Ruwa Local Board was therefore the authorized agent of the Minister.

To that end, I do not see any prejudice in the non-citation of the Minister who appears in the lease agreement as the lessor.

Pursuing that argument, in any case, is now academic in the sense that, at the time of the hearing of this of matter, the second respondent had already exercised its delegated authority by effecting cession to the applicant.

It is important to note that the court order that was later rescinded was never challenged by the lessor. That, alone, is testimony to the fact that Ruwa Local Board is the authorized agent of the lessor.

The problem faced by both parties regarding their contractual relationship is the interpretation of the phrase “balance over three months from date of sale.”

There is no mention of what would be paid per each month. However, in his opposing affidavit, the respondent states the following:-

“5.4 Reference to payments “over three moths” was clear reference to the monthly instalments which were agreed by the parties.

5.5 I recall that on or about the 15^th of March 2008, I demanded payment of the first instalment Zimbabwean dollars. The applicant refused to pay the amount and indicated that he was to going to pay the amount at the end of three months period together with the subsequent instalments. I advised him that because of loss of value for money, I was not prepared to accept the full payment of 10,000,000,000= (ten billion) Zimbabwean dollars at the end of the three months period. I accordingly insisted on the payment of instalment. The applicant refused. As a result, I advised him that I was cancelling the agreement of sale.….,.

5.6 On or about the 15^th of April 2008, some two months after the cancellation of the agreement of sale, the applicant came to my residence and tendered the payment of the sum of $10,000,000,000= (ten billion) Zimbabwean dollars. I rejected the payment indicating that I had already cancelled the agreement of sale to his knowledge. That resulted in him writing the letter, which is attached to the applicant's founding affidavit papers, to the Ruwa Local Board. The said letter was however not copied to me.

5.7 I wish to point out that, originally, I had indicated to the applicant that the purchase of the property should have been made on cash basis. He negotiated with me and pleaded with me to accept a deposit in the sum of $15,000,000,000= (fifteen billion) Zimbabwean dollars. However, on the appointed day when the agreement was drafted, he came up with the sum of $10,000,000,000= (ten billion) Zimbabwean dollars. Initially, I had insisted that the balance which would have remained, in the sum of $5,000,000,000= (five billion) Zimbabwean dollars should have been paid within a month of the agreement of sale, that is by the 15^th of March 2008. On the date when the agreement was drawn up, it was after pleading of the applicant that I asked him to pay the balance spread over three months.”

As can be seen, the above statements attempt to introduce new terms to the agreement that the parties signed on 15 February 2008.

The statements, being outside the contract, are denied by the applicant. The applicant's position is that he would only be in breach if he failed to pay the balance within the three months period.

I agree.

The failure by the parties to incorporate the issue of instalments in the agreement, in my view, suggests that what was most important is that the balance should have been cleared within the three months period. The applicant could have paid any amount, even the total balance, before the expiry of the three months period. What the applicant could not do, however, was to effect payment outside the three months period.

That view is consistent with the need to restrict the interpretation of the intentions of the parties to the contents of the agreed document ie within the four corners of the contract.

Accordingly, my view is that the respondent lacked competence to cancel the contract on 15 March 2008 before the expiry of the three months period.

As regards the merits of the application, it is obvious that when the Deed of Settlement was negotiated, and agreed to by the parties, it was in the contemplation of the parties, whatever their appellation, that there was need for the building to be renovated. Although inelegantly worded, the theme running through the Deed of Settlement is that of the parties accommodating each other to achieve this goal.

The plaintiff in this matter seeks:-

“1. An order to declare that the sale agreement executed between him and first defendant on the 30th of September 2001 on Stand 378, Gorebridge Road, Killarney, Bulawayo is still binding and effectual as between the parties;

2. An order to compel the first defendant to transfer all her rights, title and interests in Stand Number 378 Gorebridge Road, Killarney, Bulawayo to plaintiff.

3. An order authorizing the Deputy Sheriff of Bulawayo to sign all the transfer documents for and on behalf of the first defendant in order to effect transfer of Stand 378 Gorebridge Road, Killarney, Bulawayo to plaintiff.

Alternative to 1, 2 and 3 above -

Plaintiff seeks an order:

4(a) To be refunded by first defendant $1,500,000 plus interest a tempore morae at the prescribed rate, effective from the 31st of October 2001; and

(b) To be compensated by first defendant in the sum of $2,500,000.

5. That the first defendant pays all costs of this action on an attorney and client scale.”

When the parties appeared before a judge for a pre-trial conference it was agreed that the issues to be determined by the trial court be as follows:-

“(1) Did plaintiff advise first defendant that plaintiff was no longer prepared to be held to the contract of sale, and, as a result thereof, did plaintiff cancel the contract of sale?

(2) Was the contract of sale perfected?

(3) Is the plaintiff entitled to tender $3,800,000 plus interest, and, in that event, at what rate is the interest to be calculated?

(3) In the alternative, is plaintiff entitled to:-

(a) A refund of $1,500,000 plus interest calculated from the 31st October 2001; and

(b) Compensation for improvements effects (sic) by plaintiff.”

Each party had the onus to prove two of the above issues. The plaintiff had to prove issues 3 and 4 while the defendant had to prove issues 1 and 2.

The plaintiff gave evidence himself and called two witnesses to support him.

The plaintiff's story was that he was a businessman in Bulawayo. Mr Thokozani Khumalo was his business partner who needed a house. Thokozani Khumalo (“Khumalo”) had been initially leasing House Number 378 Gorebridge Road, Killarney, Bulawayo. The house belonged to Ronnah Mafurirano, the first defendant.

The husband of the first defendant, Mr Davis Sunganayi Mafurirano, was the plaintiff's business associate. They knew each other from the time Davis Sunganayi Mafurirano used to work for CBZ Bank.

After Thokozani Khumalo had expressed his wish to purchase the house he was renting, the plaintiff conveyed the message to Davis Sunganayi Mafurirano who asked the plaintiff to make an offer to him.

When the plaintiff made an offer of $2.5 million, Davis Sunganayi Mafurirano said he needed time to go and discuss with his wife, the owner, and would come back to them.

Davis Sunganayi Mafurirano came back with a figure of $5.3 million which the parties agreed on.

Although the house was being purchased for Thokozani Khumalo, the negotiations were being done by the plaintiff, Naran, while Davis Sunganayi Mafurirano represented his wife, the first defendant.

The parties then had a memorandum of agreement of sale reduced to writing which reads in part:

“Purchase Price and Payment

The purchase price payable to the seller by the purchaser for the said Stand shall be the sum of $5,300,000 (five million three hundred thousand dollars). A deposit of $2,500,000 (two million five hundred thousand dollars) shall be paid upon signing of this agreement and the balance of $2,800,000, (two million eight hundred thousand dollars) shall be paid in monthly instalments of $1,500,000 with effect from on/or before the 31st of October 2001 finishing with the balance of $1,300,000. 30% per month interest shall be paid on $2,300,000.”

The plaintiff engaged Sibusiso Ndlovu to represent him.

The seller signed the agreement on 12 September 2001 while the buyer signed it on 30 September 2001.

The plaintiff conceded that he had failed to pay the deposit as stipulated in the agreement. He should have paid $2,500,000 when he signed the agreement on 30 September 2001, but he, instead, paid the sum of $1,500,000 on 26 October 2001.

The plaintiff was clearly in breach of what the parties had agreed on not so long back.

He however seems to take solace in his belief that the $1,500,000 was not rejected by the buyer despite the fact that it was less than what the parties had agreed and was even paid late. He said the money was never sent back to him or his lawyers.

It was his evidence, that, as a business associate in relation to the buying of paper he had given Davis Sunganayi Mafurirano the sum of one million dollars to import paper. That, however, did not materialize but Davis Sunganayi Mafurirano never returned the $1 million.

The plaintiff seemed to suggest that that amount replaced the shortfall of one million he was supposed to pay as a deposit....,.

The paper project involved Naran and the defendant's husband and had nothing to do with the defendant herself. Hence the $1 million could not have been treated as part of the price for the house.

Blazio Nyariri referred the court to the quotation of 31 May 2006.

It is noted that although the quotation did not specifically state that the underground storage tanks were to be manufactured using 6mm mild steel plate thickness, both the defendant and the plaintiff were agreed that such material was to be used. This is confirmed by the subsequent correspondence between the parties which consistently made reference to the use of this material as well as the difficulties the defendant encountered in sourcing this material.

At the hearing of the matter counsel for the applicant invited me to take a robust approach and find, on the basis of the papers filed of record, that the Agreement between Everisto Marenga and the first respondent had no bearing on the Agreement between the applicant and the first respondent. He further invited me to hold that the written Agreement of Sale between the parties was the only agreement between them as provided for in clause 7 of the Agreement. Finally, he urged me to compel the first respondent to pass transfer of the property to the applicant as the applicant had performed all her obligations under the Agreement. He cited to me clause 7 of the Agreement of Sale which provides-

“The terms of this Agreement shall constitute the sole record of the agreement between the parties and supersedes all prior and contemporaneous communications, representations, promises, warranties or agreements (whether oral or written) with respect to the subject matter hereof and no such communications, representations, promises, warranties or agreements shall suspend the operation of, vary, add to the terms of, or otherwise affect the validity or interpretation of this Agreement.”

In addition to clause 7 of the Agreement, counsel for the applicant also relied on clause 8 which provides that any alterations or variations to the Agreement of Sale have to be in writing and signed for by both parties.

While he did not refer to the legal principle that he was relying on by name, it appears to me that counsel for the applicant was trying to bar the introduction of any other evidence extrinsic to the written document between the parties. In essence, counsel for the applicant was inviting me to make recourse only to the document between the parties embodying the Agreement of Sale and to hold as inadmissible the averments by the first respondent that there was a condition precedent to the Agreement which was not fulfilled, and, further, that there was an ancillary agreement between the applicant and Everisto Marenga which the applicant breached.

In my view, and as correctly pointed out by counsel for the first respondent, he could only have been relying on the parole evidence rule for the exclusion of such evidence.

The issue that has exercised my mind in this matter is whether the parole evidence rule applies in the circumstances of this matter to resolve all conflicts of facts that are arising.

The parole evidence rule, also known as the integration rule, has been a part of our law for decades and holds that when a contract has been reduced to writing, the written document, in general, is regarded as the exclusive memorial of the terms of the transaction between the parties and any evidence extrinsic to the document is inadmissible. (See Union Government v Vianini Ferro Concerete Pipes (Pty) Ltd 1941 AD 43).

It is trite that the parole evidence rule is not of automatic application to all written contracts, even where the parties have stipulated that the written agreement constitutes the entire agreement between them as happened in casu. The authorities are quite clear that it is a general rule. As a general rule it is subject to exceptions. The rule is based on the presumed intention of the parties that the written documents embody their entire contract. In my view, it is in this regard that counsel for the applicant heavily relied on clause 7 of the agreement. It follows, in my further view, that where evidence shows that the parties did not so intend, the rule cannot apply.

According to Harrison Shumbamhini it is a practice in the panel beating business for clients to be asked to sign documents showing their satisfaction with the repairs done.

It is my view that all the issues raised in the founding affidavit were dealt with in MAKARAU J's judgment (HH123-04). That judgment remains extant. It will therefore be unnecessary to revisit the same issues in this judgment. That judgment, in part, reads as follows -

“In or about June 1997, the applicants intended to lease a jet airliner from a company in the United States. A deposit was required for the lease. The deposit was to be paid in foreign currency. The applicants approached the respondent for a loan of the foreign currency. The respondent did not have the foreign currency that the respondent required. It purchased the foreign currency from the bank, which in turn made the payment directly to the applicants' creditor in the United States of America. The respondent utilised the sum of $6,200,000= to purchase the sum of foreign currency that the applicants needed. The loan agreement was reduced to writing and it indicated that the capital amount borrowed was the sum of “$6,200,000= in foreign currency.” When the applicants defaulted, the respondent sued for with interest, the sum of US$590,470=68 as representing the capital debt.

It is trite that this court, in an appropriate case, may grant a judgment expressed in foreign currency, provided the amount of the judgment debt is converted to local currency on the date of execution of the judgment. The position has been settled since 1988 when the Supreme Court established it for the first time in Makwindi Oil Procurement (Pvt) Ltd v National Oil Co. of Zimbabwe 1988 (2) ZLR 482 (S). See also AMI Zimbabwe (Pvt) Ltd v Casalee Holdings (Successors) (Pvt) Ltd 1997 (2) ZLR 77 (S).

The applicants argue that this was not a proper case in which to grant a judgment expressed in foreign currency. In support of this argument, the applicants raise three main arguments. Firstly, it is argued that the loan agreement expressed the amount borrowed in local currency. Secondly, it is argued that the repayments, to be deducted from the applicants' account, by way of a stop order, were to be made in local currency. Thirdly, it has been argued that the surety bond executed as security for the loan was denominated in local currency.

In raising these three arguments, it is my view that the applicants are playing on form and not relying on the substance of the agreement between the parties. The substance of the agreement between the parties is to be ascertained from the common intention of the parties as embodied in the agreement. It appears to me that the common intention of the parties was to enter into a loan agreement for the sum of the foreign currency that the applicant required to pay a deposit to its creditor in the United States of America. The respondent purchased this money for the applicant, using the sum of $6,200,000=. There is no doubt in my mind that the amount of the foreign currency is what the applicants borrowed from the respondent. The loan agreement was inelegantly drafted and referred to the capital debt as “$6,200,000=00 in foreign currency.” The intention of the parties was, however, quite clear as to what had been borrowed and was to be repaid. That this was the common intention of the parties is further shown in the statement of account that was sent to the applicants, showing the reduced balance of both the local currency and its equivalent in foreign currency. What was being paid was the local currency but what was being reduced was the debt in foreign currency.

On the basis of the foregoing, the applicants do not have a defence to the respondent's claim. This court did not err in granting the judgment in foreign currency as the applicants' obligation to the respondent was to be measured in foreign currency while the discharge of the obligation was to be through payment in local currency. See Mawere v Mukuna 1997 (2) ZLR 361 (HC).”

In response to the first issue, Godwin Dingwiza maintained that the “rough scrap of paper”, as it was termed by Mr Morgan, was a quotation.

Godwin Dingwiza had dealt with the city office branch of the defendant in question in his capacity as the Managing Director of the plaintiff and its sister company, Selfex Investments, and had received standard quotations on special printed documents which were dissimilar to the “rough scrap of paper.”

It seemed to me that the rough scrap of paper was a quotation notwithstanding that it was not on the standard quotation paper. This was because he requested for a quotation from Collin Chakupa. Collin Chakupa then wrote out a quotation which bore the defendant's name, date stamp and his signature in addition to the specifications of the order and price per unit which was then added up to one grand total….,.

Again, after Godwin Dingwiza wrote a letter of complaint, the Branch Manager, Mrs Jennifer Anne Jayne responded to the letter by hand - on a bond paper- and not on the official letter head of the defendant.

It would appear to me that the defendant did not have any difficulties in communicating with its customer on rough scraps of paper. I am satisfied that Godwin Dingwiza told the truth that he was given a quotation by the sales representative Collin Chakupa.

On the second factual dispute, Godwin Dingwiza produced other invoices by the defendant, dated 25 June 2008, 21 July 2008 and 23 September 2008, which demonstrated that he used to pay high value cheques for battery purchases for which he received a refund. The originals of the copies he produced were produced by the defendant.

The evidence led shows that the parties did indeed enter into a written Agreement of Sale in respect of the property whose provisions were generally not enforced by the parties and on the whole they allowed the Agreement to exist on paper when they continued negotiating every step of the way. This explains why the plaintiff was allowed to pay exactly 4 instalments to Fingold Real Estate which totaled $17,200,000= towards the deposit - even before the Agreement of Sale was signed.

Those payments were made despite the fact that the Sale Agreement provided that the deposit was to be paid within 48 hours from the signing and not to Fingold Real Estate but directly to the defendant. Those provisions were ignored.

Although the parties had adopted the approach which is not in the written Agreement that the deposit was to be paid in full before signing the Agreement, they still signed that Agreement when a sum of $720,000= had not been paid. That amount was only paid in the instalment of 6 November 2006 in the sum of $10,800,000=, a day after the expiration of the 48 hour period which existed on paper. It was still accepted.

While the written Agreement provided that all payments, including the deposit, were to be made directly to the defendant, all but 2 instalments were paid to Fingold Real Estate which transmitted them to the defendant. The defendant gladly accepted that payment method disregarding the provisions of the Agreement.

The evidence also shows that the provision of the Agreement requiring the balance of the purchase price to be paid by 15 November 2006 was wholly disregarded. By that date, a sum of $534,000= remained unpaid and by her own admission, Elizabeth Chidavaenzi took the trouble to contact the plaintiff's representative much later, demanding payment. Therefore, although she was aware of the outstanding money, she was willing to accept it outside the timeframe set in the Agreement without even invoking any of the provisions in the Agreement relating to remedies available to the defendant for such delayed payment.

I therefore make a finding that the intention of the parties was to forge ahead with the payments due by the plaintiff and the construction of the house as long as the plaintiff was paying money for such construction - which she did. This explains why up to now the defendant has not cancelled the Agreement or invoked any of the remedies available to it in the written Agreement.

I now turn to resolve the issues placed before me for trial.

Whether the plaintiff paid the deposit and purchase price in full

The deposit for the property was agreed as $19,150,000=. The evidence shows that a sum of $17,200,000= had been paid by 23 October 2006.  When the plaintiff paid a further $10,800,000=, on 6 November 2006, that accounted for the deposit in full.

It has also been established that by 14 November 2006, the plaintiff had paid, in 3 instalments, a total of $22,816,000= towards the balance of the purchase price leaving a balance of $534,000= outstanding.  A further sum of $4,600,000= was paid in instalments of $1,400,000= on 22 February 2007 and $3,200,000= on 6 March 2007. These payments obliterated the balance.

I therefore conclude that, indeed, the purchase price was paid in full….,.

Whether the plaintiff has an obligation in terms of the Agreement between the parties to supply the fragile building materials listed in clause 2(viii) of the Agreement

This issue presents some difficulty because not only is the evidence led clearly contradictory, it also is the issue which broke down the relationship between the parties.

In her replication, while insisting on enforcing clause 2(viii) of the written Sale Agreement, the plaintiff concludes by saying:

“The plaintiff is prepared to meet the excess costs when the defendant advises her of the quantum of the same.”

Although Gloria Gondozai was a credible witness, her testimony regarding this issue is not clear. In her evidence-in-chief she stated that she had offered, on behalf of the plaintiff, to purchase the fragile building material to enable the defendant to complete construction but the defendant had refused insisting on being paid cash saying it was the only one able to purchase that material because it knew the material suitable for the area where the house is located.  She later stated that the cash payment of $1,400,000=, that she made directly to the defendant had been demanded by the latter for the purchase of the fragile material.

This suggests that the plaintiff acknowledged that the cost of the fragile material was never factored into the purchase price. In fact, under cross examination by counsel for the defendant, Gloria Gondozai affirmed that the plaintiff did agree to pay for that material separately. It is apparent that the plaintiff wanted the defendant to purchase and fit the fragile material and then claim compensation. This was not acceptable to the defendant which wanted payment upfront. This was made clear by Elizabeth Chidavaenzi in her evidence. I have quoted clause 2(viii) of the Agreement…,. Its wording is not helpful at all because not only is it long and winding it also lacks clarity. It, however, suggests that there was a general acceptance by the parties that the plaintiff would be required to pay more money for the fragile material.

In determining what the intent of the parties in this regard was, the court is not gifted with magical crystal balls but must find the answer from the conduct of the parties; PG Industries (Zimbabwe) Ltd v Machawira HH255-12…,. It must decide the state of mind of the parties as manifested by word or deed; Levy v Banket Holdings (Pvt) Ltd 1956 R & N 98 (S)…,.

I have already made a finding that the parties may have had a written Sale Agreement but they did not pay much attention to it electing to negotiate their way through. It is in that light that clause 2(viii) must be viewed. However, what comes out is that the parties intended that the plaintiff was to pay for the fragile material separately. I have also found that Gloria Gondozai's testimony in that regard is not useful except to the extent that she recognised that the plaintiff would pay for the fragiles once the defendant had brought them on site. Once the plaintiff had taken that stance, it is unlikely that it would have paid $1,400,000= towards the fragiles.

I conclude, therefore, that the plaintiff has an obligation to supply the fragile building material listed in clause 2(viii) and she still has to provide it.

On 30 March 2006, the parties entered into a written contract. The respondent, under the contract, gave the applicant the right to conduct hunting safaris for elephants and other species on land under control of the respondent. The dispute between the parties relates to prices for elephant trophies and not for any other species. The terms of the contract were that the applicant would pay trophy fees to the respondent, 50% of such fees would be paid 30 days prior to an elephant hunt, and the other 50%, 30 days after a successful hunt – Clause 4(a) and (b). 

In respect of elephants, the amounts payable in trophy fees would be “pegged on the National Parks recommended rates” – Clause 4(e).

The applicant's servants, agents and invitees would enter the land through the offices of the respondent and would be required to acquire written permits for any hunts. The applicant would, each year, be entitled to hunt elephant and other species in such numbers as would be advised by the National Parks through the latter's quota list and the latter would have the right to determine the charges – Clause 7.

In March 2011, following a stakeholders meeting attended by the applicant's representative, and the deponent to its founding affidavit, the respondent set new trophy fees in respect of elephants to prevail in the year 2011. 

The applicant disputed liability to pay these charges and as a result filed the current application. 

The terms of the contract between the parties does not spell out the exact trophy prices payable by the applicant for the duration of the contract. Clause 4…, simply lays down a method of determining the trophy fees that will be payable by the applicant, rather than the exact amount.

According to the above-mentioned terms of the contract the parties left the trophy fees to be determined on the basis of some pre-arranged method. It is also evident that the National Parks recommended rates would guide the parties in settling upon the trophies fees to be paid by the applicant. The parties also agreed that the National Parks would have the right to determine not only annual quotas in respect of each year but also the charges. Pursuant to clauses 4 and 7 of the contract, the parties met every year to determine the trophy fees that would be payable by the applicant for the year. The respondent has shown, in its papers, that there were meetings held in the year 2006, 2008 and 2009. The applicant has not denied that such meetings were held to set the trophy fees for each year. What the applicant has disputed is that there was a variation of the fees during these years. It is beyond dispute that annual meetings were held to deliberate on the issue of trophy fees each year. This was in terms of the contract. Therefore, the March 2011 meeting (of the revision of the trophy fees) was not a new event, but a continuation of an established course of dealing between the parties. The applicant did make representations at the first meeting in March 2011, after which the respondent gave the applicant and other representatives a chance to make further representations. The meeting was adjourned for this purpose. When the meeting resumed, the applicant did not avail itself of the second chance. The other stakeholders made representations. The respondent then made, and conveyed to the applicant, its decision. The respondent, therefore, did not take its decision unilaterally but acted after affording the applicant a chance to be heard. Other hunters are paying the respondent as per this decision. An annexure filed by the applicant…, clearly shows that the price of the elephant was deleted and substituted in longhand under the title “Elephant male – above 60lb $11,000=.” The date is 2005. So in 2005 the price of the elephant trophy was variable depending on the weight. In its papers, the applicant concedes that there have been trophy price reviews from 2005 and the last review shown is 2008. A letter authored by an official of the National Parks also advises the stakeholders to negotiate the price of the elephant trophy depending on weight. The applicant's case seems to be that the National Parks recommended prices, as set in 2006, be applied slavishly and without variation. 

This is not the correct position. 

A close look of Clause 4 and 7 of the agreement, as well as the course of dealings between the parties, evinces that the National Parks recommended rates would be just that, recommended rates. Such rates would be used as a guide when setting the fees for each year.

It is trite that when interpreting a contract, words should be given their natural meaning or the meaning most commonly understood in relation to the subject matter and circumstances and reasonable construction is preferred to one that is unreasonable. S v Masivira 1990 (1) ZLR 373 (H); S v Robinson 1975 (4) SA 438 (RA) and Cape Provincial Administration v Clifford Harris (Pty) Ltd 1997 (1) SA 439 (SCA). The natural meaning of the words employed by the parties in Clause 4 of the agreement is that the prices to be set would be guided by the National Parks prices, which, in terms of Clause 7, and, indeed, in terms of established custom and practice in the hunting industry is that the National Parks were at liberty to set prices annually. The intention of the parties was that the National Parks recommended rates, as set annually, would guide the parties in setting the trophy fees annually.

The founding affidavit of the application was deposed to by Collette Andrew Rajah who claims to be a Director of the applicant. He said the applicant has an agreement with the first respondent for conducting elephant hunts in Tsholotsho South. He referred to an agreement signed by the parties on 30^th March 2006.

He said the renewal of that agreement was the subject of contention between the parties because whereas the first respondent contended that the agreement terminated on 28 February 2012, the applicant disputes that. It is therefore necessary to look into the specific provision in the agreement to establish what the parties provided and intended in it. The particular part, clause 3, provides as follows:-

“Period of agreement

3. Notwithstanding the date of this agreement which commenced on 1^st March 2002 with a duration of nine years and eleven months, terminating on 28^th February 2012 and shall be renewable under similar terms.”

The applicant says the agreement states that the agreement of the parties “SHALL” be renewed. 

The change of the word renewable to renewed is a clear attempt by the applicant to mislead. There is a clear difference between the two words. To try to change the words in the applicant's affidavit is simply unacceptable. Even his submission that he got advice from his legal practitioners on that point does not assist. No legal practitioner can change a written word to a different one to assist his or her client.

In their heads of argument on this point, his legal practitioners refer to the correct word “renewable” and they say they advised the respondents of their interpretation of the agreement but the “respondents did not do otherwise and applicant continued with its business of hunting unabated through the year 2012.” The meaning of the above remains unclear. They contend that the intention of the parties was that the agreement was to continue and not discontinue. The respondent, on the other hand, says it could never have been the intention of the parties to enter into a contract that would exist in perpetuity. It was for that reason that a date of termination was agreed, with a provision that the agreement was renewable, but the applicant never made use of the option to renew as provided in the agreement.

3. Whether the defendant entered into a contract with Hwange Colliery Company on Wednesday 25^th January 2012 for hire of another crane in order to mitigate the damages

The facts show that when the plaintiff's crane driver arrived at Hwange the alternative crane had not commenced work. The Hwange Colliery Company crane only commenced work on the 26^th January 2012 when the plaintiff's driver was already on site. The defendant opted for the Hwange Colliery Company crane because it turned out to be cheaper. I am persuaded to agree with Donovan Jones when he testified that the defendant was playing both the plaintiff and Hwange Colliery Company. He chose the crane that arrived on site first and that turned out to be much cheaper. 

At the request of the parties to these two (2) applications, I agreed to hear both of them simultaneously given that the matters are related and arise from the same issue.

In the first application, namely, HC3020/13, the applicant seeks to join the 15^th respondent, the Eastern and Southern African Trade and Development (PTA) Bank (“the PTA Bank”) as a party to the proceedings brought by the first respondent (“Capital Bank”) in HC999/13. In the second application, namely, HC3114/14, the same applicant seeks leave to serve process in HC999/13 upon the PTA Bank at Chaussee du Prince Loise Rwangasore, Bujumbura in Burundi, by edictal citation.

This judgment therefore disposes of both applications….,.

For completeness, I must mention that the action in HC999/13 is still to be set down for trial.

Capital Bank sued the applicant and 13 others on the basis of agreements entered into on 19 July 2010, 2 September 2010 and 9 December 2010 in terms of which the applicant was loaned sums of money, the balance of which allegedly stood at US$2,575,038=70 as at 31 March 2012. The other defendants in that matter, who are also respondents herein, were sued as sureties and co-principal debtors in that action.

The defendants contested that suit, and, in due course, the applicant, who is the first defendant in that action, filed a plea in which, pleading rectification, prayed that the action be stayed pending the determination of its counterclaim for the rectification of the contract upon which Capital Bank sued as well as the determination of another matter, being HC5427/12, in which it had sued Capital Bank and others for certain damages.

The applicant then filed a counterclaim in that matter wherein it cited the PTA Bank as the 15^th defendant. It averred that itself and Capital Bank had executed the loan agreements I have already referred to but that such agreements do not correctly record the agreement of the parties in that it records Capital Bank as the lender, when, in actual fact, the lender was the PTA Bank which granted the applicant a loan facility of US$2.5 million. It averred, further, that the PTA Bank could not register the loan in its books because Munyaradzi Kereke, who is the 13^th defendant in that matter, and is associated with the applicant, was on the European Union sanctions list. The PTA Bank had then appointed Capital Bank's predecessor, Renaisance Merchant Bank Limited, as its escrow or disbursement agent as a sanctions bursting measure.

The applicant then sought an order rectifying the contracts by the substitution of the PTA Bank in the place of Renaisance Merchant Bank and costs of suit on the legal practitioner and client scale….,.

Meanwhile, the applicant has brought these two (2) applications. In HC3020/13, Munyaradzi Kereke reiterated what is contained in the plea in HC999/13 in his founding affidavit; that the applicant applied to the PTA Bank for an offshore line of credit of US$2.5 million. He attached a copy of the application which is headed “PTA Bank, $2.5 Million Loan Application” dated 21 July 2010. He deposed that the PTA Bank granted the facility, and, as proof of that, he attached what is termed “Indicative Term Sheet; Proposed Structured Amortized Medium Term Import Financing Facility for Fairdrop Trading (Private) Limited Trading as Rock Foundation Medical Centre July 2010.”

Munyaradzi Kereke stated that although Capital Bank has issued summons as the principal lender, there is no privity of contract between the parties. As the applicant has pleaded rectification and counterclaimed for it and cited the PTA Bank as a defendant, leave was being sought to join the PTA Bank in the proceedings. In the event of the counterclaim being granted, the dispute in the claim in convention cannot be decided without the PTA Bank. For that reason, the applicant sought to invoke third party procedure to join the PTA Bank as a party.

The application is strongly opposed by Capital Bank, and, in the opposing affidavit of Lawrence Tamayi, its Managing Director, it denied the allegation that it was the escrow or disbursing agent of the PTA Bank. He stated that Clause 19 of the credit facility letters specifically excludes any other terms or conditions or agreements which are not recorded in the credit facility letters. The said clause reads:

“This offer, once accepted, constitutes the entire agreement between the parties who acknowledge that there are no other oral or written undertakings or agreements between them relating to the subject matter of this agreement. No amendment, consensual cancellation or other modification of this agreement shall be valid or binding on a party hereto unless reduced to writing and executed by both parties hereto.”

As Munyaradzi Kereke signed the agreement on behalf of the applicant, he, being an accomplished Banker, he knew the import of that provision and it bound the applicant to the agreement and nothing else. Lawrence Tamayi vehemently denied that the application form to the PTA Bank, relied upon by the applicant, is a binding contract between the applicant and the PTA Bank as it makes it clear that the PTA Bank was not making any undertaking to legally bind itself to lend on the terms set out therein and that any agreement reached would be subject to the written approval of the PTA Bank.

In any event, Lawrence Tamayi argued, the document the applicant relies on makes it clear that it is governed by the laws of England.

In addition, the applicant and sureties provided security to Capital Bank in the form of mortgage bonds, notarial bonds and unlimited guarantees. These securities were not given in favour of the PTA Bank. Significantly, the applicant made loan payments amounting to US$634,794=95 to Capital Bank and not the PTA Bank. According to Capital Bank, the application is designed to delay the finalisation of the action and nothing else. It accessed funds from the PTA Bank by a separate arrangement and lent the funds to its clients, including the applicant, which explains why its predecessor made reference to the “PTA Bank credit facility” in correspondence…..,.

Notwithstanding the sole ground of appeal (as raised in the grounds of appeal) being the issue of  the existence of a custom entitling the appellant to retain the vehicle, counsel for the appellant, in his submissions before us, contended that the appellant was entitled to hold on to the vehicle because of exceptions to the rei vindicatio which exceptions he stated to be 'a legitimate expectation, an enforceable right, estoppel, and a right of retention or contractual right' - what appears to me to be a hotchpotch of legal terms none of which was meaningful or applicable in this appeal except for the contractual right which I discuss below.

It was submitted by counsel for the respondent that none of the 'defences' raised by the appellant constitute defences at law. In particular, the sole defence relied upon in the grounds of appeal, namely, the existence of a custom entitling the appellant to retain the vehicle is not, at law, a defence to the rei vindicatio. He submitted that the judgment in Van Breda & Ors v Jacobs 1921 AD 330, on which counsel for the appellant relied for this curious submission, is authority for the proposition that one of the sources of law is custom and that no amount of stretching the meaning of that judgment could lead to the conclusion urged by counsel for the appellant that a custom or practice creates a contract.

I agree with counsel for the respondent that the existence of custom, as a form of law, has no application in this matter. The concept of custom as a form of law has been explained (See WILLE'S Principles of South African Law 7^th ed by J T R GIBSON…,) as follows:

“Customary law is the oldest form of law known to man. In primitive communities, almost the whole of the law existed in the shape of customs. The people regulated their conduct according to rules which they and their ancestors had been accustomed to observe in the past. These rules were not recorded in writing, nor were they enacted by any Sovereign, but they became binding in the course of ages through their observance by the community itself…,.

The requisites to make a custom legally binding are four in number, namely, that the custom is;

(a) Reasonable;

(b) Has been long established;

(c) Has been uniformly observed; and

(d) Is certain.

See WILLE'S Principles of South African Law 7^th ed by J T R GIBSON at p9 and the authorities cited at footnotes 37-42.”

Van Breda & Ors v Jacobs 1921 AD 330 was concerned with whether or not these four requisites had been established by the respondents (plaintiffs in the court a quo) in that matter. It certainly is not authority for the proposition contended for by counsel for the appellant that a custom can be a defence to an actio rei vindicatio.

In any event, even if for argument's sake there existed a custom or practice that retiring Chairpersons were allowed to purchase their vehicles on terms set by the respondent, it was never alleged, let alone established, that the vehicle had been offered to the appellant for purchase, and, if so, on what terms. In the absence of an offer by the respondent, which was accepted by the appellant, no contract came into existence. 

Whether the court a quo misdirected itself in applying the parole evidence rule?

The appellant signed the two promissory notes as the borrower. The loan amount was deposited into his personal account in Mauritius. His attempt to bring in evidence of the subsequent involvement of third parties is against the parole evidence rule.

Subject to the exceptions to the parole evidence rule, which are not applicable in this case, where an agreement, has been reduced to writing, whether as required by the law or at the instance of the parties, the only admissible evidence about the terms of the agreement is the written document. No evidence of other agreements may be adduced to indicate that the agreement was different, or to explain precisely what the parties intended.

In the case of Union Government v Vianini Fero Concrete Pipes (Pty) Ltd 1941 AD 43…, WATERMAYER JA said:

“This court has accepted the rule that when a contract has been reduced to writing, the writing is, in general, regarded as the exclusive memorial of the transaction and in a suit between the parties no evidence to prove its terms may be given save the document or secondary evidence of its contents nor may the contents of such a document be contradicted, altered, added to or varied by parole evidence.”

TRADE USAGE

In respect of terms implied by trade usage, the case of Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd 1973 (2) SA (C) 642, is authority for the proposition that the parties to a contract would be bound by, and the contract in question would be subject to, an alleged trade usage:

“Provided that it is shown to be universally and uniformly observed within the particular trade concerned, long-established, notorious, reasonable and certain, and does not conflict with positive law (in the sense of endeavouring to alter a rule of law which the parties could not alter by their agreement) or with the clear provisions of the contract.”…,.

The above case further emphasized the need for the person alleging a usage to prove it. At p 646, the court cited with approval remarks in Crook v Pedersen Ltd 1927 WLD 62, 70 that:

“The evidence must amount to something more than mere opinion; it must establish the fact of the existence of the usage, and provide instances of the usage having been acted upon, otherwise the testimony will be of little weight.”

English law adopts a similar approach.

The Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd 1973 (2) SA (C) case…, cites HALSBURY, vol. II, secs. 367 and 369. HALSBURY states:-

“A usage is proved by the oral evidence of persons who become cognizant of its existence by reason of their occupation, trade, or position. The evidence must be clear and convincing; it must also be consistent…,. The evidence of witnesses, in order to prove the existence of a usage, must amount to something more than mere opinion; it must establish the fact of the existence of the usage, and provide instances of the usage having been acted upon…,.”…,.

In Hoffmann & Carvalho v Minister of Agriculture 1947 (2) SA 855 (J)…, PRICE J stated that;

It is my finding there was never intended to be a swop of the properties.

That this was the parties' clear intention is borne out by their subsequent conduct.

The court was referred to the case of Sullivan v Constable 48 T.L.R. 267, where it was held that:

“It seems to me that the defendant, by his conduct and that of his agent, has so acted that the plaintiff was reasonably entitled to believe that the defendant was assenting to the position which he so plainly asserted in the correspondence; and, consequently, that the rule in Freeman v Cooke, 2Ex.254, governs this case. This rule is stated in Smith v Hughes, L.R. 6 Q.B. 597 @ p607, as follows;-

If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party, upon that belief, enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.”

The court was also referred to S.A. Railways & Harbours v National Bank of SA Ltd 1924 AD 704.., where it was held that:

“The law does not concern itself with the workings of the minds of parties to a contract but with the external manifestation of their minds. Even, therefore, if from a philosophical standpoint the minds of the parties do not meet, the law will, when fraud is not alleged, look at their acts and assume that their minds did meet and that they contracted in accordance with what the parties purport to accept as a record of their agreement. This is the only practical way in which courts of law can determine the terms of a contract.”

In CGEE Alshthom Equipments et Enterprises South African Division v GNK Sankey (Pvt) Ltd 1987 (1) SA 81 (A)…, COOBELT JA said;

“Whether in a particular case the initial agreement acquires contractual force or not depends upon the intention of the parties, which is to be gathered from their conduct, the terms of the agreement, and the surrounding circumstances.”

In its founding affidavit, the applicant has laid bare claims of right in the fixtures and fittings.

There is no documentary proof in the applicant's papers asserting a clear right. The mere production of a list of fixtures and fitting does not in any way prove any right of ownership in the property in question.

The lease agreement entered into between the applicant and the second respondent stipulates, in clause 4(iii), that the fixtures and fittings belonged to the lessee and that on termination the fixtures and fitting were to be removed.

There is no ambiguity in the terms of the lease agreements as to whom the fittings and fixtures belong to….,.

The applicant is prevented by the parole evidence rule which prohibits a party to a contract that has been integrated into a single and complete document from introducing extrinsic evidence which has the effect of contradicting, adding to or modifying the written terms. See the cases of Johnson v Leal 1980 (3) SA 927 and Union Government v Vianini Ferro Concrete Pipes (Pty) Ltd 1941 AD 43.

Where there are business relations between the parties after a disputed contract has been concluded, stemming from it, it is incumbent upon the court to have regard to the conduct of the parties after the contract was entered into in order to determine the state of mind of the parties.

In Levy v Banket Holdings (Pvt) Ltd R&N 98, TREDGOLD CJ relied on the remarks of CENTLIVRES JA in Collen v Rietfontein Engineering Works 1948 (1) SA 413 (AD) and said the following;

“In considering whether a contract is concluded between two parties, a court is not interested in the state of mind of the parties considered in the abstract. It must decide the issue on the state of mind of the parties as manifested by word or deed. It is idle for a party to avow mental reservations or unspoken qualifications if these are inconsistent with what is said or done.”…,.

In Powerspeed Electrical Ltd v Enfield Zimbabwe HH107-13, this court discussed the need to consider the conduct of the warring parties, especially that of the one challenging the contract, where there is evidence of continued association.

The next question is whether a binding contract was entered into.

The final demand that the plaintiff relies on is not the ordinary contract where both parties append their signatures to an agreement. It is signed and agreed to by the defendant and is not signed by a representative of the plaintiff. It originates from the plaintiff's Credit Department.

The fact that the final demand was on the plaintiff's letterhead should not be an issue but rather the import of the contents of the letter of demand and the intention of the parties when the contract was signed. The arrangement between the parties is recorded in clear and unequivocal terms. Mr Wallbridge appended his signature thereby acknowledging the terms of the contract. The fact that the plaintiff's representative did not append its signature is inconsequential. The acknowledgement by the defendant that it owes the plaintiff constitutes concurrence to pay interest on the outstanding balance at the rate of 4%.

Another consideration is the conduct of the parties after the signing of the final demand.

The approach that this court will adopt is the one followed in Levy v Banket Holdings (Pvt) Ltd R&N 98 where TREDGOLD CJ, in relying on the remarks of CENTLIVRES JA in Collen v Rietfontein Engineering Works 1948 (1) SA 413 (AD) F, said the following;

“In considering whether a contract is concluded between two parties, a court is not interested in the state of mind of the parties considered in the abstract. It must decide the issue on the state of mind of the parties as manifested by word or deed. It is idle for a party to avow mental reservations or unspoken qualifications if these are inconsistent with what is said or done.”

After the signing of the final demand, supply of goods resumed.

What can be inferred is that credit facilities resumed because the defendant agreed to pay interest. The defendant continued to service the debt. A credit guarantee arrangement was also put in place. The defendant did not express any disquiet about the charges. The final demand amounts to an acknowledgement by the defendant that it owes and is an agreement to pay interest. There is no doubt in my mind that a binding contract was entered into between the parties.

It is not uncommon for parties to enter into disguised transactions where, as happened in the instant case, property which is given as security is disguised as the subject of a sale. In the case of Hoffmeyer v Gous (1893) 10 SC 115…, the court remarked as follows:

“There is not a more common device than that by which a pledge is disguised as a sale.”

In such transactions the approach of the Court is settled. The court looks at the substance and not the form of a transaction. See Zandberg v Van Zyl 1910 AD 302…,.; MacAdams v Fiandies' Trustees 1919 AD 207. The rationale for that approach is easy to fathom. Court proceedings are not a game of chess. They are a serious inquiry into and determination of the rights of the participants in the proceedings.

In Magodora v Care International 2014 (1) ZLR 397 (S) and UZ-UCSF Collaborative Research Programme in Women's Health v Shamuyarira 2010 (1) ZLR 127 (S), the point is made that the terms of a contract are relevant in the determination of whether non-renewal of a fixed term contract constitutes a dismissal. That is so because the contract itself indicates the intention of the parties. In the case of a fixed-term contract, the intention of the parties is that the contract and employment relationship terminates on the date mentioned therein.

In addition, GROGAN J, in Workplace Law, 11^th edition, Juta and Co (Pty) Ltd, 2014…, makes reference to Foster v Steward Inc (1997) ILJ 367 (LAC) where the South African Labour Appeal Court held that when establishing whether the non-renewal of a fixed term contract constitutes a dismissal, the terms of the contract remain relevant. The contract itself is an important indication that the parties in fact intended the contract relationship to terminate on the date mentioned.

Reference is also made to the case of Swissport (Pty) Ltd v Smith NO (2003) 24 ILJ 618 (LC) where the point is made that it is a fundamental principle of the law of contract, that, once parties have decided to reduce a contract to writing, the document that they produce will be accepted as the sole evidence of the terms of the contract.

It seems to me that the appellant could only have escaped liability if, having realized that he had signed a document on behalf of someone he had not intended, he had sought to rectify the surety document. The remedy for persons who find themselves in a position that the appellant purports to have been, that of signing a document thinking that it is meant for one thing when in actual fact it means another, is the defence of rectification. According to CANEY LR, FORSYTH CF and PRETORIOUS JT, Caney's The Law of Suretyship in South Africa, (Juta and Co, 2010)…, “extrinsic evidence…, in regard to the central issue of consensus may be admissible when one of the parties seeks rectification of the suretyship document.”

In the case of Northern Cape Co-operative Livestock Agency Ltd v John Roderick and Co Ltd 1965 (2) SA 64 (O) it was stated that, with rectification, the party seeking to have the contract rectified claims that the contract does not reflect what the parties agreed on and seeks to have the matter put right.

Clearly, this is a matter of evidence….,.

The appellant could have led evidence in order to rectify the agreement but chose not to do so….,.

In the case of Langeveld v Union Finance Holdings (Pty) Ltd 2007 (4) SA 572 (W), the court held that the onus was on a surety to prove that he was not aware that he was signing a document as a surety. The court further held that there was a strong praesumptio hominis that anyone who has signed a document has the animus to enter into the transaction and this person was burdened with the onus of convincing the court that he or she had not in fact entered the transaction.

It is common cause that the defendant signed and made all endorsements on the Deed of Suretyship except for the date and the portion where Mr Mawire signed. There is a marketing licence agreement signed between SM Tyres (Pvt) Ltd and Mr Mawire of SM Tyres trading as Nyamapanda Service Station.

The issue for determination is for whom the deed of surety was signed….,.

All the essentials of a valid contract of suretyship are present in this deed. A valid contract of suretyship was entered into by the parties to the surety agreement…,.

The defendant is the one who endorsed most of the details on the document. The words Nyamapanda Service Station were endorsed by the defendant. He also endorsed Mr Mawire's name as co-surety. He endorsed his own name together with his telephone details and signed the document….,.

The defendant testified that he appreciated the implications of the surety agreement. The defended is not illiterate. He is a former telecommunications specialist and holds a Diploma in Telecommunications….,.

Where a person has signed a document to enter into a transaction which he later challenges, he is required to explain to the court why he asserts that he did not intend to enter into the transaction. The defendant failed to explain, under cross examination, why he did not endorse the name of Limpopo Investments on the deed, choosing to say that this was through an oversight. He knew the implications of the document that he had drawn up and signed….,.

The defendant is bound by what he gave out and signed for.

A man, who signs a contract is taken to be bound by the ordinary meaning and effect of the words which appear over his signature. There is a presumption that a person who authors and signs a document does so after he has acquainted himself with the contents thereof and that any person who enters into a contract has the intention to enter into it and be bound by the terms of the agreement.

A surety who endorses all the essential details of a surety deed on the deed document cannot turn around and say that he did not understand the import of the deed. He is taken to have acquainted himself with the contents of the document and is bound by its contents….,.

A litigant who challenges a surety deed on the premise that he signed it for a different entity or person can only discharge the onus resting upon him to show that he never intended to sign the document on behalf of the plaintiff and be bound by it by calling evidence to support that assertion. He is required to call direct and conclusive evidence in support of his assertion. He is required to do more than make a bare denial of the surety deed or simply make a challenge to the surety deed and leave it there.

This is an appeal against the entire judgement of the High Court handed down on 11 May 2016.

The factual background to the matter is as follows.

Kingdom Bank Limited advanced overdraft and loan facilities to an entity referred to as Stir Crazy Group of Companies ('the Stir Crazy Group'). This was done through a series of offer letters. In acceptance of the facilities offered, the offer letters were signed on behalf of 'Stir Crazy Group of Companies' by Ronald John Coumbis and Phillipa Ann Coumbis (third respondent in casu), whose designations were given as 'Director.' On 28 January 2010, 23 February 2010 and 4 May 2009, the first to the third respondents respectively bound themselves as sureties and co-principal debtors for the repayment of all the sums advanced to the Stir Crazy Group. The court a quo aptly elaborated on all the agreements entered into between the parties, as well as related documents as follows:

“(a) Loan agreements:

They were all in the name Stir Crazy Group of SA Companies.

(b) Unlimited guarantees:

There is none by the first defendant. Second defendant's is in favour of Stir Crazy Investments (Pvt) Ltd. Third defendant's is in favour of Stir Crazy Group of Companies.

(c) Surety Mortgage Bonds:

They are all in favour of Stir Crazy Investments (Pvt) Ltd.

(d) Company Resolutions to take up the plaintiff's loan offers:

They were all on behalf Stir Crazy Group of Companies.

(e) Powers of Attorney to pass security mortgage bonds:

They were all in favour of securing the loans advanced to Stir Crazy Group of Companies.”

The respondents failed to honour the guarantees in question, and, on 9 January 2014, Kingdom Bank Limited issued summons against them, as sureties and co -principal debtors, for the repayment of the outstanding capital and interest arising out of the advances made to the Stir Crazy Group.

The first and second respondents, in their plea, raised a preliminary point to the effect that the appellant had no cause of action against them. The third respondent also defended the claim on the ground that the unlimited guarantee that she purportedly signed was not enforceable against her because the facility or loan in question was advanced to a non-existent entity.

It is not in dispute that Stir Crazy Group of Companies does not exist.

This circumstance having been brought to its attention in the respondents' pleas, Kingdom Bank Limited, in its replication, did not deny the erroneous citation of the Stir Crazy Group as the principal debtor. It however averred that the defect was a non-material error common to the parties, which did not vitiate the various agreements entered into between them. Without attending to the rectification of the principal loan documents that cited the Stir Crazy Group, Kingdom Bank submitted that, as a matter of fact, Stir Crazy Investments (Pvt) Ltd (“Stir Crazy Investments”) was the principal debtor with respect to all the agreements in terms of which it had extended overdraft and loan facilities. On this basis, the Bank took the position that the respondents had effectively bound themselves as sureties and co-principal debtors in respect of the loans and facilities advanced, in reality, to Stir Crazy Investments (Pvt) Ltd.

After the commencement of litigation, Kingdom Bank Limited was taken over and substituted as the appellant, by Afrasia Bank Limited which was subsequently placed under liquidation. The respondents also filed a notice of intention to amend their plea as they wished to incorporate the plea of prescription. The respondents aver, correctly, that the amendment sought was granted without opposition from the appellant.

At the pre-trial conference, the parties agreed that the issues that fell for determination in the court a quo were the following:

(i) Whether the appellant's claims against the first and second respondents had prescribed;

(ii) Whether the appellant had locus standi to continue with proceedings in view of the fact that it went into liquidation after the close of pleadings; and

(iii) Whether the appellant had a cause of action against the respondents in view of the fact that the guarantees and surety mortgage bonds that it relied on were premised on loan agreements with Stir Crazy Group of Companies - a non-existent entity.

The court a quo found in favour of the respondents on the last two issues.

In relation to locus standi, the court relied on the case of Allied Bank Limited v Caleb Dengu and Anor HH583-15, and held that the appellant lacked the requisite locus standi because it did not seek the leave of the court to continue with the proceedings after it went into liquidation.

On the issue of whether the appellant had a cause of action against the respondents, the court a quo held that since the specified principal debtor (Stir Crazy Group) did not exist, the principal debt could not be enforced against any alleged surety and co-principal debtor thereto. The court further found that the guarantee, and any security mortgage bond based thereon, were invalid. Further, that the mistake common to the parties, as alleged by the appellant, had not been established.

On the issue of prescription, the court a quo held that the respondents had not proved to its satisfaction that the appellant's claims had prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11].

The appellant was aggrieved by the whole decision of the court a quo and noted this appeal on grounds that, in the court's view, raise two issues for determination, viz:-

(a) Whether the plaintiff had a cause of action against the respondents, and, if so;

(b) Whether the issue of prescription was properly raised and considered….,.

WHETHER OR NOT THE APPELLANT HAD A CAUSE OF ACTION AGAINST THE RESPONDENTS

Of the two main issues for determination before this Court, the court a quo dealt, first, with the question of whether or not the appellant had a cause of action against the respondents.

The record of proceedings a quo shows that the court heard argument on this and the other issues listed for determination from counsel representing the parties, considered the evidence contained in the papers before it, and found against the appellant. The appellant charges, in light of this, that the court a quo misdirected itself in fact and law in not recognising that the point in limine relating to the cause of action, was actually an exception subject to its own procedural strictures (this is according to the appellant's grounds of appeal. In elaborating on this ground, in its Heads of Argument, however, the appellant refers to the special defence in question as a special plea and argues on that basis. The court will consider the reference to 'exception' as an error).

It is the appellant's further contention that in a special defence such as one pertaining to cause of action and prescription, the party raising such defence is regarded as the claimant 'quoad that defence' and bears the onus to prove its case on a balance of probabilities. Authority for this is cited as MB Investments (Pvt) Ltd v Oliver 1974 (1) RLR 169.

The appellant avers that the objection relating to the absence of a cause of action on the basis that the relevant loan documentation referred to the Stir Crazy Group, a non-existent entity, was essentially a special plea requiring evidence. In its view, that evidence would have led to a rectification of its pleadings and the documentation concerned based on the error it says was common to all parties.

The appellant argues, on the basis of a number of authorities, that special pleas involve the averment of a new fact, and, therefore, were susceptible of replication and of a hearing at which evidence on this new fact alone may be led. See for instance Doelcam v Pichanick & Others 1999 (1) ZLR 390 H; HERBSTEIN and Van WINSEN's 'Civil Practice of the Superior Courts of South Africa', 3^rd Ed…,.

The appellant submits, in view of this, that the court a quo, by determining the matter otherwise than by trial, had deprived it of the opportunity to “amend and rectify” as necessary.

The respondents dispute that the appellant was not afforded the opportunity to submit evidence in rebuttal of the special defence that they raised. They argue, essentially, that the special plea regarding cause of action was taken “initio litis” since it was raised in the respondents' plea by consent, replicated to by the appellant and included among the issues for determination as set out in the joint Pre-trial Conference Minute. Further, that the facts relied upon appeared ex facie the pleadings and were therefore common cause and not open to any challenge.

The third respondent refers specifically to the fact that the appellant itself had attached to its papers copies of the principal loan agreements that cited the principal debtor as the Stir Crazy Group.

For their contentions, the respondents relied on the following dictum taken from a decision of this Court in National Employment Council for the Construction Industry v Zimbabwe Nantong International (Pvt) Ltd SC59-15: -

“There are instances where the defence relied upon is not evident ex facie the declaration and involves the averment of some new fact or facts to be proved with fresh matter. The procedure by way of special plea enables the plaintiff to rebut the defence raised by replication and the adduction of further evidence where necessary. In exceptional cases, however, where the special defence in question is apparent ex facie the declaration itself, the court may allow the matter to be decided on exception. This is subject to the qualification that the plaintiff has nothing to adduce in rebuttal and will not be prejudiced by a decision being taken on exception.”…,.

I am persuaded by the respondents' contentions, as outlined, and find that the remarks of PATEL JA in National Employment Council for the Construction Industry v Zimbabwe Nantong International (Pvt) Ltd SC59-15 are fully applicable to the circumstances of this case.

The remarks clearly articulate an exception to the general rule regarding special pleas and the adduction of fresh evidence, that the appellant argued for. The special defence regarding the appellant's lack of a cause of action against the respondents was apparent ex facie the appellant's declaration a quo to the extent that the appellant attached to it copies of the founding loan documents as well as the sureties and guarantees relied on. These cited the principal debtor as the Stir Crazy Group - a non-existent entity.

The special defence, in my view, therefore, did not require the averment, by the respondents, of some new fact or facts needing to be proved with fresh evidence. The appellant, in my view, properly took the opportunity, in its replication, to advance argument aimed at rebutting the special defence.

It is significant that the appellant did not suggest it wished to adduce new evidence to prove that the Stir Crazy Group existed and had been properly cited in the founding loan agreements as well as some of the guarantees signed by the respondents. Rather, the appellant's aim was to itself adduce what could only have been new evidence aimed at persuading the court to allow it to amend its pleadings or to rectify the loan agreements and guarantees so as to cite Stir Crazy Investments (Pvt) Ltd as the principal debtor.

This would, in my view, be irregular.

As the appellant itself correctly submitted, the party that raises a special defence is in that respect regarded as the claimant and bears the burden of proving it on a balance of probabilities. This would place the other party, in this case the appellant, in a position akin to that of a respondent. The latter, is, in terms of civil law and procedure, expected to adduce evidence in rebuttal of the claimant's special defence.

He would not be expected to adduce evidence constituting a new case against the claimant. The appellant, in my view, accordingly sought to improperly and un-procedurally initiate a claim for rectification of the founding loan agreements and guarantees under the guise of rebutting the respondent's special defence. On this basis, the court a quo cannot be faulted for assuming the attitude that the appellant had nothing to adduce in rebuttal of the respondent's special defence regarding its lack of a cause action against them.

The court a quo was, in any case, and, in my view, quite correctly, dis-inclined to rectify the loan documentation and guarantees in question, for the reasons it set out, as follows:

“My disinclination to amend the loan agreements, and all subsequent security documents to guarantee these loans, are further influenced by the fact that neither Stir Crazy Group of Companies nor Stir Crazy Investments (Pvt) Ltd are before me. Therefore, for me to interfere in agreements wherein I have not heard some of the parties involved is not, in my view, proper.”…,.

The court also expressed itself on the salutary principle of our law to the effect that a court cannot correct an agreement between the parties as if it were pleadings as that would amount to making a contract for the parties. See Ballantyne Butchery (Pvt) Ltd v Chisvinga and Others SC06-15; CHRISTIE, The Law of Contract in South Africa (5th ed)…,.

Clearly, the appellant could not have properly moved for an amendment to its pleadings, nor to the relevant loan and security guarantees, without the joinder of Stir Crazy Investments (Pvt) Ltd to the proceedings a quo. There is no doubt that the company had substantial interest in the subject matter of the dispute and was therefore entitled to be heard before a decision affecting it could be considered.

I am satisfied, in the light of all this, that the court a quo properly allowed the matter to be determined on evidence and facts that were evident ex facie the pleadings before it. It falls to reason, given that the appellant's intended evidence would not have rebutted the special defence in question, that no prejudice to it could have ensued based on the procedure adopted by the court a quo in its determination of the matter.

I find, accordingly, that there is no merit in the appellant's ground of appeal in that respect.

The appellant's two grounds of appeal against the court a quo's finding on cause of action read as follows:

“1. The court a quo misdirected itself in fact and in law in determining the matter on the points in limine rather than by trial, thereby depriving the appellant of the opportunity to amend or rectify as necessary; and

2. The court a quo misdirected itself in fact and law in not recognising that the point in limine relating to the cause of action was actually an exception subject to its own procedural strictures.”

It is evident that these grounds of appeal confine themselves to impugning the procedural aspects of the court's determination on the special defence raised by the respondents rather than its substance. This is despite the appellant's assertion, in its heads of argument, that it had, a quo, filed a replication on the merits of the special defence itself.

The appellant seeks an order setting aside the judgment of the court a quo and substituting it with one dismissing the “points in limine” and allowing the trial to continue.

Given the relief sought by it, one would have expected the appellant to have articulated and motivated grounds of appeal that challenged the lower court's decision on the merits. Despite not having done so in both its ground of appeal and heads of argument, the appellant nevertheless implores this Court to set aside a fully reasoned and considered decision of the court a quo on the point in question. Quite evidently this is not the manner that appeals, by their nature, are meant to be determined. The relief sought by the appellant is, on that score, incompetent.

Accordingly, the court a quo's judgment, to the effect that the appellant had no cause of action against the respondents, not having been challenged on appeal, remains extant….,.

DISPOSITION

The appellant in this appeal restricted itself to challenging the procedure followed by the court a quo in determining the respondents' special defence of lack of a cause of action against them. The court having found against the appellant on this issue, their appeal is devoid of merit and stands to be dismissed.

It is in the result ordered as follows:

The appeal be and is hereby dismissed with costs.

The plaintiff, through a series of offer letters commencing 30 March 2009 to 25 July 2011, advanced overdraft and loan facilities to Stir Crazy Group of Companies (Annexures D, E, G, H, J and L to its particulars of claim refers).

It is an undisputed fact that Stir Crazy Group of Companies does not exist.

It was not put into contention that the benefits of these overdraft and loan facilities were in fact enjoyed by Stir Crazy Investments (Private) Limited (the principal debtor insofar as the plaintiff is concerned). As a consequence of these loan agreements;

1. Third defendant purportedly provided security to the plaintiff, through an unlimited guarantee dated 4 May 2009, in favour of Stir Crazy Group of Companies, for the loan advances.

2. Second defendant provided similar security, but with respect to Stir Crazy Investments (Private) Limited, a legal entity, on 23 February 2010.

3. On 23 February 2010, the second defendant gave power of attorney to any duly authorised employee of the plaintiff to pass a surety mortgage bond over its property, being Stand 2729 Salisbury Township Lands, held under Deed of Transfer number 11285/2002 dated 04 October 2002 in favour of the plaintiff as security for facilities granted to Stir Crazy Group of Companies (Private) Limited - the non-existent entity aforesaid.

4. Under power of attorney in favour of the plaintiff dated 31 March 2009, the plaintiff registered a surety mortgage bond on 5 November 2010 against both the third and second defendants to secure Stir Crazy Investments (Private) Limited's indebtedness to the plaintiff in the amount of $300,000=…,.

5. First defendant also provided security, passed under power of attorney dated 28 January 2010, amounting to $1,050,000=, by way of a Surety Mortgage Bond registered against Stand 9064 Salisbury Township Lands held under Deed of Transfer number 8776/03 dated 31 October 2003, with respect to Stir Crazy Investments (Private) Limited.

The plaintiff issued summons on 9 January 2014 against the defendants, as sureties and co-principal debtors, for payment of outstanding capital and interest arising out of advances made on 30 March 2009, 22 February 2010, 27 October 2010 and 3 August 2011, to Stir Crazy Investments (Private) Limited, which had gone into voluntary liquidation. The summons was served on 17 January 2014. The plaintiff itself was subsequently taken over by Afrasia Bank Limited which has, after the commencement of this litigation, also since gone into liquidation. A notice of substitution in these proceedings was filed for Afrasia Bank Limited (in liquidation).

Three preliminary points of law arising out of these facts were raised and argued before me as follows:

1. Whether the plaintiff's claims have prescribed.

2. Whether the plaintiff has locus standi in view of the fact that it went into liquidation after the close of pleadings viz-a-vis the provisions of section 221(2) of the Companies Act [Chapter 24:03].

3. Whether the plaintiff has a cause of action in view of the fact that of the guarantees and surety mortgage bonds that it relies on are premised on loan agreements with Stir Crazy Group of Companies; a non-legal entity.

To its credit, the plaintiff did not contest that these points were properly taken. Rather, it confined its arguments to the fact that they lacked merit. Indeed, it is trite that points of law can be raised at any stage of the proceedings, provided that they go to the root of the matter and were not required to be specifically pleaded. See Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S)…,; Muskwe v Nyajina & Ors SC17-12; and Gold Driven Investments (Private) Limited v Telone (Private) Limited & Anor SC09-13….,.

DOES PLAINTIFF HAVE A CAUSE OF ACTION?

In the event that I am wrong in finding that the plaintiff lacks the locus standi to be before the court, it is necessary to consider the second point of law: that the plaintiff does not have a cause of action.

The first and second defendants asserted that:

“The allegations apparent throughout the pleadings are that the guarantee upon which the Plaintiff sued was executed by and on behalf of a non-existent entity who is not before the Court.” (See paragraph 7 of their heads of argument).

The third defendant, on her part, submitted that:

“…, the plaintiff must, in any event, fail on the merits because it bases its claim against her on an invalid guarantee.” (See paragraph 6 of her heads of argument).

The defendants base their positions on the fact that the plaintiff asserts that the principal debtor is Stir Crazy Investments (Private) Limited, in circumstances where the loan agreements and some of the guarantees upon which the plaintiff's claims are based are all in favour or in the name of Stir Crazy Group of Companies.

The factual position with these documents is as follows:

(a) Loan Agreements:

They are all in the name of Stir Crazy Group of Companies.

(b) Unlimited guarantees:

There is none by the first defendant. The second defendant's is in favour of Stir Crazy Investments (Private) Limited. The third defendant's is in favour of Stir Crazy Group of Companies.

(c) Surety Mortgage Bonds:

They are all in favour of Stir Crazy Investments (Private) Limited.

(d) Company Resolutions to take up the plaintiff's loan offers:

They were all on behalf of Stir Crazy Group of Companies.

(e) Powers of Attorney to pass security mortgage bonds:

They were all in favour of securing the loans advanced to Stir Crazy Group of Companies.

The plaintiff does not deny that all the loan agreements state that the principal debtor is Stir Crazy Group of Companies but avers that this was a non-material error common to the parties and which does not vitiate their consensus. Further, the defendants are the authors of the error and cannot use it to their own benefit, and, in any event, one Ronald John Coumbis, who signed the agreements, had the express authority of Stir Crazy Investments (Private) Limited to do so. Except by extension of its argument that this was a mistake common to all the parties, the plaintiff does not advance any explanation why the guarantee by the third defendant was in favour of Stir Crazy Group of Companies, or why surety mortgage bonds were registered on behalf of Stir Crazy Investments (Private) Limited on the strength of resolutions and powers of attorney in favour of Stir Crazy Group of Companies.

It is trite that a party must have a cause of action against the party it seeks judgment against.

Case law has settled that cause of action pertains to those facts that a plaintiff must prove to support its right to judgment by the court. See Peebles v Dairibord Zimbabwe (Private) Limited 1999 (1) ZLR 41 (H).

I must point out that the first and second defendants are obviously wrong, on the facts, when they assert that “the guarantee upon which the plaintiff sued was executed by and on behalf of a non-existent entity who is not before the Court.” The first defendant did not, in fact, execute any guarantee at all, and the second defendant executed a guarantee against an existing entity - Stir Crazy Investments (Pvt) Ltd.

However, the plaintiff's cause of action is still fraught with challenges.

Firstly, it arises out of the loan agreements it entered into with Stir Crazy Group of Companies, an entity which does not exist. It then executed guarantees and surety mortgage bonds to secure its cause as circumscribed by those loan agreements. Some of the guarantees are in favour of the non-existent entity (for the third defendant). Other guarantees (for the second defendant) are in favour of an existing legal person which is not party to the loan agreements. And the security mortgage bonds are in favour of an existing legal person which is not party to the loan agreements. All these issues raise real questions as to the validity of these security documents. If a principal debtor does not exist or has never existed, the principle debt cannot arise as against the surety. In my view, therefore, the guarantee and any security mortgage bond based thereon is invalid. See Muchabaiwa v Grab Enterprises (Pvt) Ltd 1996 (2) ZLR 691 (S). See also CF FORSYTH and JT PRETORIUS, Caney's Law of Suretyship (4ed)…,.

It cannot be denied that, on the face of the documents in the record, the loan agreements were between the plaintiff and the non-existent Stir Crazy Group of Companies. I did not see, on the record, or hear a denial, by the plaintiff, that it was not solely responsible for drawing up all the documents pertaining to these loan agreements. This was therefore not a matter of an innocent misrepresentation by the directors of Stir Crazy Investments (Pvt) Ltd. Now, the plaintiff has sued on a principal debt it alleges is owed by Stir Crazy Investments (Pvt) Ltd, contending that, by an error common to the parties, the loan agreements and all security documents referring to Stir Crazy Group of Companies, ought, instead, to have referred to Stir Crazy Investments (Pvt) Ltd.

In my view, what the plaintiff seeks this court to do is to amend the agreements between itself and Stir Crazy Group of Companies to refer to Stir Crazy Investments (Pvt) Ltd.

CHRISTIE: The Law of Contract in South Africa (5ed)…, has this to say on the powers of a court to amend contracts between parties:

“The fundamental rule that the court may not make a contract for the parties is a salutary one, the principle of which has probably never been seriously questioned. It is unthinkable that the courts should not only tell the parties what they ought to have done but then makes them do it by enforcing the court's idea of what the contract ought to have been.”

The question then is whether the court should tell the parties that the loan agreements ought to have been between the plaintiff and Stir Crazy Investments (Pvt) Ltd, and all the security documents also ought to have referred to that company, and order the parties to so change the documents.

The plaintiff seems to suggest so, while the defendants say no.

I am inclined to agree with the defendants, as ordering such correction of the documents would, in my view, amount to making of a contract for the parties. It would seem to me the defendants were presented with papers by the plaintiff and instructed where to sign, which they did. For all the court knows, the defendants may have intended to group all their companies under a yet to be formed Stir Crazy Group of Companies. Nor is it far-fetched, even, to consider that they may have noticed the plaintiff's error and decided to go ahead with a view to doing exactly what they are doing now - claim that the plaintiff had no cause of action against them as it dealt with a non-existent company. In either case, I do not think that this is a case where I can safely agree that there was a mistake common to the parties and amend the various loan agreements the plaintiff entered into.

In reaching this conclusion, I am mindful of the settled principle that the court cannot correct an agreement between parties as if it were pleadings, as that would amount to making a contract for the parties. See also Dr Jane Mutasa v Telecel International and Anor HH331-14; Delta Operations (Private) Limited v Origen Corp (Private) Limited 2007 (2) ZLR 81 (S)…,; Ballantyne Butchery (Private) Limited v Chisvinga & Ors SC06-15.

Rather, it seems to me that the plaintiff was grossly negligent in the manner that it prepared its documentation for the loans it advanced. My disinclination to amend the loan agreements, and all subsequent security documents to guarantee these loans is further influenced by the fact that neither Stir Crazy Group of Companies nor Stir Crazy Investments (Pvt) Ltd are before me. Therefore, for me to interfere in agreements wherein I have not heard some of the parties involved is not, in my view, proper.

I do not find that the fact that Stir Crazy Investments (Pvt) Ltd is suing the plaintiff on the same agreements, in HC10569/14, is a bar to the sureties and guarantors to raise the defences that they have, particularly, since the defendants in this case are not party to the action between the plaintiff and Stir Crazy Investments (Pvt) Ltd. These are separate legal entities mandated to protect their separate interests. In any event, that Stir Crazy Investments (Pvt) Ltd may have established a cause of action against the plaintiff does not directly translate to a cause of action by the plaintiff against the defendants in this case. The plaintiff must establish its own cause of action against the defendants, which, in my view, it has failed to do….,.

DISPOSITION

In the result, it is ordered that:

1….,.

2. The plaintiff's claim is, in any event, dismissed for want of a cause of action against the defendants;

3….,.

4. The plaintiff shall pay the defendants' costs of suit.

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.

The plaintiff issued summons on 25 March 2011 for the payment of a sum of USD$8,936=56, being the balance due to him from the defendant in terms of an agreed early retirement package.

The defendant adopted the stance that it had paid all the amounts due to the plaintiff in terms of the parties' agreement.

The issue that the court must determine is whether the amounts paid to the plaintiff by the defendant for October, November and December 2010 constituted notice pay in terms of the early retirement package; and whether the additional payment of cash in lieu of leave and other benefits paid during October -December 2010 also formed part of the early retirement package. If they did not, then the plaintiff's claim must succeed....,.

From the evidence adduced during the trial, the pleadings, and the documentary evidence submitted to the court, the following facts are common cause;

The plaintiff is a former employee of the defendant who requested that he be given an early retirement package, three months before the date on which he was due to reach retirement age. In October 2010, in response to the plaintiff's request, a retirement package was negotiated between the parties. It was agreed that the plaintiff would be paid a sum of USD$25,873=12 by 31 December 2010.

On 5 October 2010, the parties signed an agreement which was titled 'Innocent Chitiki: Early Retirement Package'. Under 'statutory benefits', the plaintiff was to be paid a total of USD$11,148=, which was made up of three (3) units of notice pay, cash in lieu of leave, leave bonus, housing benefits during notice plus one month up to 31 October, full benefits except business allowances during notice period, telephone allowances. 'Other' benefits totaling USD14,725=12 included a vehicle, annual bonus, fuel up to one month after notice, Term 1 school fees, service pay, and additional gratuities such as relocation to Gokwe rural home at the defendant's expense.

It is common cause that it was part of the early retirement package that; all salaries and monthly benefits were to be paid as and when due up to 31 December 2010; all other benefits were to be paid in December 2010; the vehicle was to be released immediately.

It is common cause that the defendant was told to stay at home during the notice period and that the fact that he was not required to report for duty was the defendant's standard practice for retiring employees who worked in sensitive areas that were vulnerable to security breaches.

It is common cause that the plaintiff wrote a letter to the defendant asking for payment of his package to be deferred until after 31 December 2010, the date when he officially reached retirement age, in order to avoid incurring punitive tax obligations. It is common cause that the plaintiff initially wanted to be paid a package of USD$50,000= and that he felt shortchanged by the final sum of the negotiated package.

The plaintiff's claim appears to be premised on the supposition that he ought to have been paid notice pay as well as his monthly salary and benefits for the three month notice period during which he did not report for duty at the defendant's specific instance and request. The plaintiff understood that he would be paid the 'full package' on 31 December 2010. The monthly salary that he received in September, October, and November 2010 was not part of his three month notice pay, in his view.

Is this claim supported by the evidence or by the agreement between the parties? If it is, the plaintiff is entitled to be paid the sum of USD$8,936=56 which he is claiming from the defendant.

The plaintiff told the court that his contract of employment with the defendant terminated on 31 December 2010 and that the payments made to him prior to that were his normal monthly salaries and benefits and did not form part of the retirement package.

This evidence was directly controverted by the evidence of the two defence witnesses, Cindirella Masimbe and Effort Lungu.

The defendant's witnesses told the court that it was the defendant's policy to pay cash in lieu of service of the notice period especially for senior executives, such as the plaintiff, who worked in sensitive positions. They explained the payments made to the plaintiff in terms of exhibit 7, the gross amounts, and the net amounts paid. Their evidence was that the plaintiff was paid a slight excess of the agreed sum in the early retirement package.

Mr. Lungu was emphatic that the entire retirement package was reduced to writing and signed on the 5^th of October 2010, and pointed to the notes on exhibit 7 which clearly stated that; “…, all elements that were outstanding from previous meetings have been resolved and agreed…,.;” and “…, all salaries and monthly benefits to be paid as and when due up to 31 December 2010.”…,. This referred to the notice pay, which, according to the defendant, was to be paid in monthly installments to avoid the punitive tax regime prejudicing the plaintiff who only attained the retirement age in December 2010.

In a civil case, the plaintiff must prove its case on a balance of probabilities. This has been interpreted to mean that:

“It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged; but if the probabilities are equal it is not.”

See Milner v Minister of Pensions 1947 2 All ER 372…,. and Thulisani Dube Nyamambi v Bongani Ncube HB82-15.

In the case of Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (SC),the court said that:

“…, in a civil case, the standard of proof is never anything other than proof on the balance of probabilities. The reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party, and the test for that justice is to balance their competing claims. In a criminal matter, on the other hand, the trial is an attack by the State, representing society, on the integrity of an individual. The main concern is to do justice to the accused. If the prosecution fails, the State does not lose.”

The learned authors, HOFFMAN & ZEFFERTT, in their book SA Law of Evidence, 4ed…, state that;

“There are no exceptions to the rule that all issues in a civil action are decided upon a preponderance of probabilities.”

In JOUBERT, The Law of South Africa, vol 9…, the learned author says that:

“In civil proceedings, proof is furnished upon a preponderance of probability and this is the case even when allegations of criminal or immoral conduct are to be proved.”

Accordingly, we must balance the plaintiff's claim against the defendant's defence, and, in so doing, decide which of their versions is more likely to be true. In other words, which version is more believable or most likely to have transpired than the other.

The preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's or vice versa. In making this decision we look at the pleadings, at the documentary evidence, and at what the parties' representatives said and did while they were in the witness stand.

The plaintiff did not come across as a person who deliberately set out to mislead the court. What was clear was that he felt that the defendant had misled him into accepting less money than what was due to him, what he was entitled to, and what he wanted - which was USD$50,000=. What was equally clear was that the plaintiff was under the mistaken impression that the word 'package' referred to a lump sum - one off payment.

Operating under that misapprehension, he happily accepted the equivalent of his monthly salary for September - December 2010, while carefully planning how he would spend his 'package' once he got to his rural home in Gokwe. He suffered a rude awakening when he was paid his 'package' less three months cash in lieu of notice.

He was angry and confused.

The defendant told him that because he did not report for duty during those three months he was not entitled to a monthly salary, only cash in lieu of notice – but, it was the defendant's policy not to allow senior executives to report for duty during the notice period.

The defendant may have been crafty, or devious, in its negotiations with the plaintiff. But, if the unwittingly plaintiff agreed to be short-changed, is it our place, in these proceedings, to make that right when he agreed and signed for what he believed he was entitled to?

The evidence supports the fact that the plaintiff asked the defendant to defer payment of his package until January 2011 after he had reached the official retirement age to avoid paying punitive tax. There is no evidence that the parties agreed that the 'full package' would be paid in January 2011. The payment plan which appears on page 9 of exhibit 7 supports the contention made on behalf of the defendant that the cash in lieu of notice pay and the cash in lieu of leave were to be paid to the plaintiff on a monthly basis in October, November and December 2010. Although in terms of exhibit 1 the plaintiff made it clear that it was his intention to serve notice from October – December 2011, in reality that is not what transpired. The plaintiff did not report for duty during that period. He was aware of the defendant's policy. His evidence that other senior executives who did not report for duty during the notice period were paid their full salaries as well as cash in lieu of notice was bald, and unsubstantiated.

There is no evidence that the parties agreed that the whole package would be paid in December 2011 when the early retirement agreement itself contains contrary evidence.

The plaintiff failed to discharge the onus on him to prove his case on a balance of probabilities.

The probabilities raised by the evidence, coupled with the facts which are common cause, do not support the plaintiff's version of events and do not entitle him to the relief that he seeks. On the contrary, the probabilities support the defendant's version especially on the crucial point of whether there was ever any agreement between the parties that the package be paid as a whole at the end of January 2011 and whether the plaintiff had been given assurances that, despite not being required to report for duty, he would be paid his normal salaries and benefits until December.

For these reasons, the plaintiff's claim is dismissed with costs.