This is a claim by the plaintiff against the defendant for ZAR17,353= for the repair, between 19 and 30 December 2008, of two fuel pumps. The plaintiff also seeks interest at the prescribed rate from 27 January 2010 to the date of payment in full. In the pleadings, the plaintiff sought costs on the ordinary scale but in his oral submissions counsel for the plaintiff applied for punitive costs.

The defendant disputed the entire debt.

While six issues were referred to trial, it seems to me that the only issue for determination is whether the defendant is indebted to the plaintiff in the sum claimed or in any amount.

The plaintiff led the evidence of two witnesses. These were its Managing Director, Michael John Brennan, and Manager, Feisal Suleman. In addition, it produced three documentary exhibits. The defendant called the evidence of its Managing Director, John Taurayi Mungwari.

It was common cause that on 19 December 2008 the defendant requested the plaintiff to repair two diesel pumps. The plaintiff's personnel opened a job card before stripping and examining each pump. The parts that were fitted on each pump are listed at the back of each job card…,. The pumps were repaired and collected by the defendant's employees on 30 December 2008.

There was a dispute between the parties as to who physically brought the pumps for repair. Mr Suleman stated that they were brought by Mr Mungwari. Mr Mungwari stated that it was too menial a function for the Managing Director. He, however, failed to identify who did so. Mr Suleman further stated that when Mr Mungwari brought the pumps he agreed to pay in rands at the rate of ZAR2,000= per week commencing from the date of collection. Mr Mungwari disputed the averment and stated that at that time the currency of account was the local currency and payment was due in that currency.

In a bid to demonstrate that the currency of account agreed between the parties was the rand, the plaintiff produced exhibit 3, the schedule of payments made by the plaintiff. Exhibit 3 shows that the defendant paid R240= on 14 January 2009; R300= on 2 February 2009; R1,745= on 19 September 2009; US$390=, converted at the cross rate of R7.5 to US$1, to give an amount of R2,945=, on 26 October 2011; and US$189=, again at the cross rate of R7.5, to give an amount R1,417=, on 31 December 2009. Mr Brennan and Mr Suleman collected the cash payments on different dates from the stores man at the defendant's offices and signed for the money in an A4 exercise book that was retained by the defendant. They each stated that the money was paid in United States dollars but was converted at the cross rate of the rand against the United States dollar prevailing on each date of payment. The defendant paid a total of R6,647= leaving an outstanding balance of R17,353=.

Mr Mungwari was adamant that he did not enter into any agreement to pay in foreign currency with the plaintiff. He prevaricated on whether or not the debt was paid out in local currency or in foreign currency. He exhibited confusion in some of his responses. In one vein he agreed that the debt was not fully paid and in another he maintained that it was fully paid out. It seemed to me that he confused other repairs that were paid in local currency before 19 December 2008 with the repairs to the two pumps in issue. His version that the debt was reduced by payment in local currency that was then converted into foreign currency by the plaintiff was incorrect. As he could not dispute the accuracy of the plaintiff's schedule, he admitted that as the legal tender in Zimbabwe, after 2 March 2009, was in multiple currencies, he could not pay the last three payments in local currency that had virtually been demonetized. He failed to lead any evidence to demonstrate the amounts paid in local currency that he alleged were converted by the plaintiff into rands. In the end, while maintaining that it was against company policy to honour local debts in foreign currency, he admitted that his subordinates may have paid out the amounts indicated in the plaintiff's schedule in foreign currency.

My assessment of the credibility of the witnesses is that the plaintiff's witnesses gave their evidence very well in regards to the schedule of payments found in exhibit 3. It was supported by the probabilities in regards to the payments made in exhibit 3. There was one area, however, that the plaintiff's witnesses, especially Mr Suleman, glossed over. His testimony suggested that he met Mr Mungwari once only on the date he delivered the pumps. I did not understand him to say that the pumps were stripped and examined whilst Mr Mungwari waited. It seems to me that the defendant would have known the actual costs of the repairs on or after the date of collection; being on or after 30 December 2008. It was not Mr Brennan or Mr Suleman's evidence that Mr Mungwari collected the pumps after the repairs. Mr Suleman did not clarify when Mr Mungwari agreed to liquidate ZAR24,000= at the rate of ZAR2,000= per week. The gaps in that testimony were not cured by the dismal performance of Mr Mungwari in the witness box. Mr Mungwari gave the impression that he was, by virtue of his office, divorced from the central payment activities for the repair of the two pumps. The probabilities did not support his version in regards to the payments in exhibit 3.

I believed the plaintiff's witnesses and disbelieved the defendant's witness in regards to exhibit 3.

It was common cause that in December 2008, the local currency was in a free fall and had lost its lustre to local residents. It was common cause that the defendant operated a transport passenger service between Harare and Johannesburg. It was further common cause that the pumps were for buses plying the Harare to Johannesburg route. It was further common cause that the plaintiff lawfully held a foreign currency account with its bank. It was further common cause that the spares required to repair the pump were sourced from Europe and South Africa. It seems to me that the buses could only rack in foreign currency for the defendant if they were operational. They could not be operational unless they were repaired. The motivations for both parties to earn foreign currency, and the loss of confidence by local residents in the local currency, are probabilities that favour the plaintiff's version that the defendant agreed to pay for the repairs in foreign currency.

Accordingly, I find that Mr Mungwari, on behalf of the defendant, agreed, on 19 December 2008, to pay for the repair of the pumps in rands.

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.

The first and second respondents are directors of the third respondent, which is also a safari operator.

The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for managing all safari operations in Zimbabwe.

Background

The applicants were granted two written concessions to operate hunting safaris in the Rifa Safari Area for a period of 10 years expiring on the 31st of December 2007.

Before this date, on the 18th of October 2007, the National Parks and Wildlife Management Authority (the Authority) conducted an auction for a new 5 year concession in respect of the applicants' concession area. At that auction, the applicants were prevented from bidding for the concession because they had failed to furnish the requisite Bank guarantee.

According to the first applicant, he then approached the first respondent who undertook to bid on behalf of the applicants after exhausting the respondents' own bidding limit.

The first respondent won the final bid for the sum of $750 billion.

The first applicant then thanked him and was congratulated by all present for having retained the concession.

Subsequently, on the 20th of October 2007, the respondents reneged on their arrangement and sought to retain the concession for themselves.

The respondents deny the applicants averments.

They contend, that, all bidders at the auction were fully aware of the Bank guarantee stipulation, as was clearly stated in the National Parks and Wildlife Management Authority's prospectus, and that there was no arrangement between the parties prior to the auction.

They did, subsequently, discuss the possibility of sub-letting part of the concession area to the applicants but nothing concrete materialised thereafter.

They further aver, that, if their Concession Agreement with the National Parks and Wildlife Management Authority (the Authority) were to be cancelled, they would suffer irreparable harm.

The National Parks and Wildlife Management Authority (the Authority) avers, that, the application is fatally defective in that it does not cite the Minister of Environment and Tourism (the Minister) as required by the Parks and Wildlife Act [Chapter 20:14].

Moreover, the Parks and Wildlife Act stipulates a maximum period of 10 years for hunting concessions and, therefore, the applicants cannot be granted any further extension.

On the 19th of February 2008, the applicants filed an urgent application to assert their rights, and, on the 22nd of February, they were granted a Provisional Order interdicting the respondents from evicting the applicants from the Rifa Safari Area and from interfering with the applicants' operations in that area.

They now seek a Final Order confirming the above relief, and, further interdicting the respondents from exercising any rights in the applicants' concession area pending the determination of Case No. HC891/08.

In that case, the applicants seek the setting aside of the written concession granted by the National Parks and Wildlife Management Authority (the Authority) to the respondents in November 2007. The Concession Agreement was signed by the Minister on the 10th of January 2008...,.

The issues for determination herein, as I perceive them, and as concurred by counsel, are as follows:

1....,. 

2....,. 

3. Whether there was a clear agreement between the applicants and the respondents whereby the first respondent was to bid on behalf of the applicants at the auction....,.

Agency Agreement between the Parties

The affidavit evidence filed by the parties is markedly conflicting as to what precisely transpired during the bidding process at the auction held in October 2007.

Nevertheless, the applicants' version of events is strongly supported by the affidavits deposed to by several independent individuals who were present on the day.

These corroborating affidavits (by Messrs. Evans, Jolliffe, Fundira, Townsend, Dziya and Duckworth) confirm, firstly, that, the first applicant and the first respondent had concluded some arrangement for the latter to bid on behalf of the former, and, secondly, that the first applicant was congratulated by those present for having retained his concession.

Having regard to the foregoing evidence, the applicants' version in this respect is more credible than that of the respondents.

Accordingly, on a balance of probabilities, it is reasonably clear, that, there was an agreement between the parties the effect of which was that the first respondent would act as agent for the applicants in the bidding process at the auction.

The cause of action in this case arises out of an alleged breach of contract by the defendant for the supply of 20 IBM A50 desktop computers (computers) to the plaintiff.

The plaintiff is suing the defendant for specific performance or payment of damages in lieu thereof.

At the commencement of the trial, the plaintiff applied to amend the damages figure or the summons to read $9,792,245,000 000 instead of $7,800,000,000. The amendment was meant to address the effect of inflation on the original figure. Counsel for the defendant did not oppose the application for amendment. I granted the application for amendment, and, consequently, the plaintiff's claim herein is for:

“(a) An order that the defendant supply and deliver to the plaintiff a total of twenty (20) IBM A50 desktop computers forthwith alternatively an order that defendant pays to plaintiff a total of $9,792,245,000,000 representing the current value of the said computers.

(b) Interest on the amount representing the value of the computers from the date of summons to the date of payment; and

(c) Costs of suit.”

It is common cause, that, on 23 February 2005 the plaintiff ordered from the defendant a total of thirty (30) computers. Each computer was quoted at a price of $9,860,400, bringing the total cost, including V.A.T. payment, to $340,183,800. This amount was then paid in full on 28 February 2005. The defendant, however, only managed to deliver ten (10) computers on 2 March 2005. This left a balance of twenty (20) computers.

It is the non-delivery of these twenty (20) computers that has led to this court action.

The defendant explains non-delivery by citing the failure to obtain the requisite foreign currency allocation from the Reserve Bank of Zimbabwe through the auction system which was then in operation. It is the defendant's position that both parties were fully aware that the amount paid by the plaintiff would be utilised for the purchase of foreign currency in order to meet the requirements of the defendant's foreign supplier, namely, a company called 'TriContinental Limited' (Tri-Continental).

However, the plaintiff's position is that delivery was to be effected soon after payment and the total amount paid represented the full payment for the thirty (30) computers ordered.

In view of the different positions taken by the parties, it was agreed that the issues for determination in this trial would be:-

“(1) What were the terms of the Agreement between the parties?

(2) Whether it was agreed, as between the parties, that the defendant would supply the computers upon receiving foreign currency allocation by the Reserve Bank of Zimbabwe.

(3) Whether the plaintiff is entitled to the order sought.

(4) Whether the defendant is liable to the plaintiff in damages.”

The plaintiff called two witnesses to support its case, and, through the witnesses, it submitted a total of nine (9) exhibits.

The first witness called by the plaintiff was Mr Patrick Gwara (“Mr Gwara”) who said he is currently employed by the plaintiff as a Stores Supervisor with the main responsibility of taking care of the plaintiff's stocks.

Mr Gwara testified that upon an evaluation of quotations the defendant was awarded the contract/tender to supply the plaintiff with thirty (30) computers. He said upon being paid the sum of $340,180,800 to cover the total cost of the computers, the defendant delivered ten (10) computers. The ten (10) computers were received by the plaintiff on 2 March 2005. That left a balance of twenty (20) computers already paid for.

It was Mr Gwara's evidence that at the time of placing the order with it, the defendant had indicated that it had twenty-five (25) computers in stock and 'it would get the other five (5)'.

He said, apart from paying the requisite purchase price for the computers, the plaintiff was not aware of the financial arrangements between the defendant and its suppliers.

He went further to say if the plaintiff had known that the defendant would face supply problems, it (plaintiff) would not have placed the order with the defendant. This was so because the computers were needed urgently for its Harare and Bulawayo offices.

Under cross-examination, Mr Gwara said he was not aware that his seniors had moved the delivery date to 1 July 2005 as indicted in the replication. He however maintained, that, as far as he was concerned, delivery was to be made soon after payment. He said that although the plaintiff had in the past accepted long delivery periods with respect to other contracts, this was not the case with respect to the thirty (30) computers because they were needed urgently.

The contract/tender had been awarded to the defendant on the basis that it had the computers in stock.

Mr Gwara denied knowledge of the offer by the defendant to refund the plaintiff. He said as far as he was concerned the plaintiff wanted delivery of the twenty (20) computers.

The second witness called by the plaintiff was Mr Mischeck Chigatse (“Mr Chigatse”). He said he is employed by the plaintiff as a Procurement Officer.

Mr Chigatse was, in that capacity, responsible for the procurement of goods and services for the plaintiff. He was, however, not aware of the issue of the thirty (30) computers since the contract had been entered into before he was employed by the plaintiff.

The witness, however, gave evidence on current prices of computers such as those forming the subject of the dispute herein. He said the prices ranged from $300 billion to $700 billion. His evidence was based on three (3) quotations obtained by the plaintiff. He said based on the quotations, the current price of a similar computer to the one that had been ordered by the plaintiff would be $489 billion.

The defendant called only one witness to support its case.

It called Mrs Doreen Nyamusara (“Mrs Nyamusara”). She said she joined the employ of the defendant in April 2005 as a Finance Manager but was, as from January 2008, promoted to the position of General Manager. She told the court that she was unaware of the details of the contract in issue since she joined the employ of the defendant when the contract had already been concluded. She was, however, involved in negotiations with the defendant's suppliers for the delivery of the remaining twenty (20) computers.

Mrs Nyamusara testified, that, at one stage the defendant had asked the plaintiff to participate in the auctions(s) for foreign currency. The plaintiff had refused to do so. She said after all efforts to obtain foreign currency had failed to produce results, the defendant had offered to refund the plaintiff. The plaintiff had, however, declined the offer, insisting that it wanted delivery of the computers.

Mrs Nyamusara also stated that the parties failed to resolve the matter amicably largely due to differences in the calculation(s) of interest. As a result of the differences, the matter was never resolved amicably. This was notwithstanding the fact that the defendant made a payment of $1,392,000 through the plaintiff's legal practitioners – which payment was still being held by the plaintiff's legal practitioners.

Under cross-examination, she agreed that the sum of $1,392,000 was too little to pay for the twenty (20) computers.

Also admitting that the type of computers originally ordered by the plaintiff had been phased out, Mrs Myamusara said a similar computer (ie A55 Lenovo) would, as per exhibit 24, cost $143,750,000,000.

Counsel for the plaintiff submitted that there was no doubt that delivery was to be effected immediately upon payment of the full purchase price. He said the issue of foreign exchange was only brought up in an effort to justify a clear breach of contract by the defendant. He said, that, in concluding the contract the issue of foreign exchange was never raised. He said the quotations which resulted in the award of the contract were in local currency – with the foreign exchange element having been taken into account. It was his view that if indeed the issue of foreign exchange had been a factor, the parties would have said so upon executing the contract.

He urged the court to dismiss the defendant's defence based on the shortage of foreign currency because it came as an afterthought.

Relying on RH CHRISTIE's The Law of Contract in South Africa 3ed, counsel for the plaintiff submitted that 'an impossibility to perform must be absolute'.

He argued that, in casu, that defence was not available, and, as such, the defendant was clearly in breach and was liable for the prejudice suffered by the plaintiff. To that end, counsel for the plaintiff prayed either for the delivery of the twenty (20) computers or payment of damages representing the current market value of the computers.

Counsel for the plaintiff submitted, that, if payment of damages were to be ordered, the sum of $9,792,245,000,000 would be reasonable because it would enable the plaintiff to procure the computers on its own. That value, he argued, had not been challenged.

The primary aim in asking for damages was to put the plaintiff to where it should have been were it not for the breach of contract by the defendant.

Counsel for the plaintiff further submitted that the issue of money paid to the plaintiff's legal practitioners should not be allowed to cloud the issues before the court. That money could still be recovered.

Counsel for the defendant submitted that the dispute was mainly on the issue of the delivery dates.

She said that the parties were not agreed on what was the delivery date. She, however, agreed that the defendant's only witness could not testify to the terms of the contract since it was concluded before she joined the defendant's employ.

Counsel for the defendant submitted, that, as per the plaintiff's replication, the delivery date in terms of the contract should have been 1 July 2005. That, according to her, meant there was no question of immediate delivery in line with the parties' conduct on previous supply contracts. She went further to suggest that the failure by Mr Gwara to explain the averment in the replication referring to 1 July 2005 supported the defendant's case in the sense that a delay of some four months after payment meant that the computers would be delivered only after the defendant had paid its supplier, namely, Tri-Continental. Payment involved foreign currency.

It was therefore counsel for the defendant's submission that the plaintiff, despite denial, was aware from inception that delivery of the computers would only be effected after the procurement of foreign exchange by the defendant. Accordingly, when that became impossible, it meant the defendant could no longer deliver as had been agreed.

The failure to obtain foreign currency was, in her view, a supervening impossibility which served to extinguish the defendant's obligations under the contract.

She said according to JOUBERT's General Principles of the Law of Contract, the defence of a supervening impossibility was available to the defendant. To that end, she quoted JOUBERT's General Principles of the Law of Contract …,where he states:-

“Performance may become either absolutely or relatively impossible after the conclusion of the contract. In the case of absolute or objective impossibility of performance the rule is undoubtedly that the duty of the debtor to perform is extinguished….,.”

On the basis of the above, counsel for the defendant submitted that it was improper for the plaintiff to insist on specific performance. In so doing, she argued, the plaintiff had contributed to its own loss.

She said the loss would have been mitigated if the plaintiff had accepted the refund offered in May 2005.

The defendant had, all the same, gone ahead to refund the plaintiff with a sum of $1,362,980=32. That money was still being held in trust by the plaintiff's legal practitioners. The amount, it was argued, had been calculated properly, and, therefore, the defendant's view was that the plaintiff had been refunded in full. There was therefore no basis for this action.

On the possibility of the court finding in favour of the plaintiff and ordering payment of damages, counsel for the defendant submitted that the figures quoted by the plaintiff were excessive and did not accurately reflect the current prices for the originally ordered computers.

She said although there was no case for damages, the defendant's own quotation of $143,750,000, would represent a reasonable figure.

The fact that the plaintiff's loss would have been mitigated if it had participated in foreign currency auctions or had accepted the refund as offered in May 2005 could not be ignored. Accordingly damages payable, if any, should be reduced, she argued.

Counsel for the defendant also urged the court to be cautious when evaluating Mr Gwara's evidence. She said this was so because Mr Gwara had denied knowledge of the refund issue yet there was evidence that correspondence on the issue was copied to him.

I shall, taking into account evidence from both parties' witnesses and submissions by their legal practitioners, now deal with the agreed issues for determination….,.

In dealing with this matter, I believe that a finding of whether or not delivery of the computers was subject to the availability of foreign currency to meet the defendant's suppliers' financial requirements will greatly narrow issues for consideration.

In order for that argument to succeed, the court has to be convinced, that, in paying the sum of $340,183,800 the plaintiff was fully aware that this was merely part payment which would go towards the purchase of foreign currency.

There must be evidence that the defendant made it clear to the plaintiff that delivery would be dictated by the availability of foreign currency to meet the requirement of Tri-Continental, its supplier. This is clearly so, because, apart from quotations and payment confirmations, the contract terms were not reduced to writing.

In casu, the evidence from papers and that led in court leads me to the conclusion that the defendant cannot avail itself to the defence of a supervening impossibility.

This is so because it is clear to me that the plaintiff gave the contract/tender to the defendant on the understanding that the computers were in stock and readily available. All what the plaintiff was required to do was to effect full payment and then delivery would follow immediately.

The defendant had indeed indicated to the plaintiff that it had the computers in stock - at least twenty-five (25) of them.

The plaintiff effected full payment on 28 February 2005. Payment was in accordance with the defendant's quotation for the delivery of thirty (30) computers.

Contrary to the defendant's legal practitioner's perception of Patrick Gwara, I found him to be a credible witness who knew exactly what took place when the contract was entered into between the two parties. His failure to know subsequent details of discussions between the plaintiff's senior management and the defendant's representatives, on the issue of delivery times and the refund, should not be allowed to carve a dent into his evidence.

The witness, Patrick Gwara, was adamant that the issue of foreign currency was never raised when the contract was granted to the defendant. He pointed out that if at all the plaintiff knew there would be problems of foreign currency the contract would not have been granted to the defendant. The plaintiff needed the computers urgently and the defendant had indicated that it had twenty-five (25) in stock and would look for the other five (5).

That evidence was never satisfactorily challenged in court.

All the defendant could say was that the computers were in stock at Tri-Continental.

Clearly, if that detail was necessary, the defendant could have revealed it to the plaintiff at the time of concluding the contract.

That was not done, and, as submitted by the plaintiff's legal practitioner, I hold the view that the price quoted in Zimbabwean dollars included the foreign exchange component.

Indeed, even upon the speedy delivery of ten (10) computers, there was no mention of a possible top up to cater for the foreign currency element required for the remaining twenty (20) computers.

It is also significant to note that full payment was made on 28 February 2005, and, within a few days (ie. 2 March 2005) ten (10) computers were delivered.

That reinforces the issue of immediate delivery upon full payment and the availability of computers in stock in Zimbabwe.

As already indicated, the defendant has also argued that failure to procure foreign currency rendered performance impossible, and, hence, the defence of a supervening impossibility.

As correctly argued by the plaintiff's legal practitioner, that defence is not available to the defendant.

Right from the inception of the contract, the defendant made the plaintiff believe the computers were in stock in Zimbabwe. That is why within three (3) days the defendant was able to deliver ten (10) computers.

The issue of foreign currency only came up as an excuse for failure to deliver.

I am, therefore, on a balance of probabilities, satisfied, that, upon making full payment on 28 February 2005, the plaintiff had fully discharged its obligation under the contract. That means, the issue of foreign currency was never raised when the contract was concluded and did not therefore form part of the contract terms.

Upon failure to reach an out of court settlement, the plaintiff remained ready to accept delivery. This remained the plaintiff's position up to the hearing of this matter.

To that end, I would reject the defence of a supervening impossibility because my finding is that, when the contract was made, the defendant assured the plaintiff of immediate delivery upon payment, as evidenced by the delivery of the first ten (10) computers. There was no basis for the plaintiff to ever think or imagine that the remaining twenty (20) computers were not in stock.

The contract was not subject to the defendant being availed foreign currency by the Reserve Bank of Zimbabwe. If indeed that were the case, the contract would have said so.

As was submitted by the plaintiff's legal practitioner, the issue of an agreement becoming impossible of performance is fully covered by R.H. CHRISTIE in his book 'The Law of Contract In South Africa 3ed…, where he writes:-

“The Roman law principle that a contract is a nullity if, at the time it was made, it was impossible of performance forms part of our law.

'By the Civil Law, a contract is void if at the time of its inception its performance is impossible: impossiblium nulla obligatio (D50.17.185).'

But, the principle thus stated may easily be misunderstood and requires immediate qualification in four respects:

(i) First, the impossibility must be absolute as opposed to probable. The mere likelihood that performance will prove impossible is not sufficient to destroy the contract.

(ii) Second, the impossibility must be absolute as opposed to relative. If I promise to do something which, in general, can be done, but which I cannot do, I am liable on the contract.

(iii) Third, the impossibility must not be the fault of either party. A party who has caused the impossibility cannot take advantage of it and so will be liable on the contract.

(iv) Fourth, the principle must give way to the contrary common intention of the parties. This intention may be expressed, as when a seller expressly represents or promises that the merx exists. If it is found not to have been in existence at the time the contract was made, he will be liable for damages for breach of his promises or for his false representation if fraudulent or negligent. Or the common intention of the parties may be implied, as in the case of the sale or lease of a res aliena. The seller or lessor impliedly undertakes to deliver the property or to pay damages if he is unable to do so.”

In casu, there is nothing to suggest impossibility at the time of contracting or to suggest any conditionalities.

There is also nothing to suggest that the issue of foreign currency led to a complete paralysis of the defendant's business. To date, it is still in the business of selling computers.

As already stated, it is my finding that the defendant clearly represented to the plaintiff that he had the computers in stock, and, since the plaintiff needed them urgently, he gave the contract/tender to the defendant.

In breach of contract, and without any fault on the part of the plaintiff, the defendant delivered ten (10) computers only, leaving a balance of twenty (20) computers.

Clearly, therefore, and in line with the principles of law enunciated by R.H. CHRISTIE in the above quoted passage, the defendant is liable for specific performance or damages: see Lupu v Lupu 2000 (1) ZLR 120 (S).

The plaintiff still insists on specific performance or payment of damages to cover the cost of similar computers at today's prices.

I also did not hear the defendant to say it cannot perform.

The defendant is still in the business of selling computers.

Quotations were produced to indicate current prices for similar computers. The defendant produced one quotation and argued that the plaintiff's prices were for superior machines. The defendant said that a computer similar to the one originally ordered would cost $143,750,000,000. The plaintiff, however, believes that, in order for it to be put back to where it would have been had the twenty (20) computers been delivered, a sum of $9,792,245,000,000 should be payable in the event of failure by the defendant to deliver. That amount is based on quotations for each similar computer on exhibits 8 ($382,455,561,600), 9 ($489,622,500,000) and 10 ($776,250,000). Given the effects of inflation, the plaintiff recommended the midway price of $489,622,500,000.

The defendant, on its part, and despite denying liability, insisted that it was possible to procure similar computers at the price it quoted (ie. $143,750,000,000).

Counsel for the plaintiff submitted that the matter of a refund should not be allowed to cloud the real issues before the court.

I agree.

I believe the payment of $1,392,000, through the plaintiff's legal practitioners, only serves to confirm a failed attempt to settle the matter out of court. In any case, Mrs Nyamusara, who testified for the defendant, agreed that the money was too little to cover the cost of twenty (20) computers.

I hold the view that a party that is in clear breach should not be allowed to dictate the amount of damages that should be paid to the party that is not at fault, and, moreso, an innocent party that will have fully met its obligations under a contract. To allow that would be to encourage parties to pull out of contracts on the strength of their capacity to pay damages.

In International Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H), addressing the issue of specific performance, the late ROBINSON J…, had this to say:

“I would wind up by saying, that, if the right of specific performance is to be shown to have real meaning to businessmen, then, the loud and clear message to go out from the courts is: businessmen beware. If you fail to honour your contracts, then, don't start crying, if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract.

In other words, businessmen who wrongfully break their contracts must not think they can count on the courts, when the matter eventually comes before them, simply to make an award of damages in money, the value of which has probably fallen drastically compared to its value at the time of breach. Businessmen at fault will, therefore, in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain, no matter how costly that may turn out to be for them….,.”

I fully endorse the above sentiments.

In view of the foregoing, and having determined all the issues raised…, in favour of the plaintiff, I believe that, in casu, the circumstances demand that the relief prayed for by the wronged party, the plaintiff, should be given favour by this court.

Accordingly, I order as follows:-

1. That the defendant be and is hereby ordered to supply and deliver to the plaintiff twenty (20) IBM A55 (Lenovo) desktop computers forthwith;

2. That, in the event of failure to deliver as indicated in 1 above, the defendant be and is hereby ordered to pay the plaintiff damages in the sum of $9,792,245,000,000 forthwith;

3. That the amount referred to in 2 above shall be payable with interest at the prescribed rate from the date of summons to the date of payment; and

4. That the defendant shall bear the costs of this suit.

This is an opposed application where the applicant seeks the following order:

“1. That the first respondent be and hereby ordered to sign all the necessary documents prepared by the applicant's conveyancers to effect transfer of ownership in Stand 111 Ridgemont Township of Stand 16A Ridgemont Township to Wilton Rensburg.

2. That in the event that the first respondent refuses and or neglects to sign such papers within seven (7) days from service of the order on him, that the second respondent be and is hereby authorised to sign all the necessary documents prepared by applicant's conveyancers to effect transfer of ownership of Stand 111 Ridgemont Township of Stand 16A Ridgemont Township to Wilton Rensburg.

3. That the third respondent be and is authorised to register such transfer of ownership.

4. That the first respondent only pays the costs of suit if he opposes the application.”

The facts of the case are briefly these.

The applicant alleges that in 1991, on the basis of a verbal agreement, he bought House Number 111 Johnstone Close, Ridgemont, Gweru, from Eliphanos Shumba, now deceased. He also states that in selling the property, the late Eliphanos Shumba also acted on behalf of his wife, Sarah Shumba, also now deceased.

The property was sold for $140,000= (old Zimbabwean currency).

The applicant, through a number of payments, completed payment of the purchase price and obtained title deeds from the late Eliphanos Shumba. He then took occupation of the property in 1992.

Transfer of title in the property was not effected until both Eliphanos Shumba and his wife, Sarah Shumba, died, on 29 September 1994 and 13 December 1994, respectively.

It must be understood that the main reason why parties prefer written and signed agreements like Exhibit 1 is that the parties desire that they be bound by such agreements, particularly in the event of a dispute like what has happened in this case.

The applicant relies on an oral agreement, and it is harder to establish agreed terms when relying on an oral agreement....,. Other conditions including vacant possession, transfer, and other requirements to the sale of an immovable property have not even been mentioned. If the parties concluded an oral agreement, as is averred by the applicant, then it was incumbent upon the applicant to establish the terms of that Agreement, and, further, that he, as purchaser, had complied with the terms agreed to by the parties.

The applicant has not established such terms.

The defendant claims that the deceased, Ralph Simon Lapin, verbally granted him such right in respect of the property in question. However, his evidence in this regard was generally nebulous as to the precise terms of the alleged agreement with Ralph Simon Lapin.

The salient facts of this case are the following.

On 19 October 2009, the applicant entered into a verbal contract with the first respondent (this is disputed) in terms of which the applicant undertook to construct a shopping mall for the first respondent.  The first respondent's case is that the applicant entered into this agreement with a company known as Trebo and Khays (Pvt) Ltd in which he is one of the Directors. Be that as it may, it is beyond dispute that between 19 October 2009 and 14 April 2010 the applicant performed construction work at the above-mentioned site. On 16 April 2010, the applicant's case is that the first respondent cancelled the verbal agreement; and without giving the applicant notice, chased the applicant out of the construction site and installed the second respondent. The applicant's case is that the first respondent's said conduct is unlawful and wrongful and has caused applicant financial prejudice.

In his plea, Justice Munyamana stated that the plaintiff did not have a marriage certificate and was not on the waiting list for a house in the Municipality of Bulawayo. He averred that after the plaintiff had purchased the house from Shadreck Hukuimwe, he was under pressure from Shadreck Hukuimwe who wanted to transfer the house to him. The plaintiff approached Joseph Mahlatini who personally knew Justice Munyamana. He had knowledge that Justice Munyamana had a marriage certificate and was on the waiting list for a house in the Municipality of Bulawayo.

Sometime in February 1988 the plaintiff, Joseph Mahlatini and Justice Munyamana met at Save The Nation where the following was verbally concluded:-

(a) Plaintiff made an offer to sell the House Number 30583 Entumbane, Bulawayo to the second defendant for the sum of $3,000=.

(b) Second defendant accepted the plaintiff's offer.

(c) The house was transferred to the second defendant's names.

The defendant alleged that he attempted to pay the purchase price to the plaintiff on numerous occasions but the plaintiff kept on postponing the dates for payment. He felt that the plaintiff was, in fact, bent on frustrating him and made it impossible for him to fulfill his contractual obligations. He concluded that the plaintiff was acting in bad faith but all the same he himself was willing to pay the purchase price together with interest at the prescribed rate.

He vowed to hold the plaintiff to the February 1988 verbal contract and that he would counter claim for an order for specific performance.

He denied that the meeting of 27 February 2006 was for discussing rentals. His story was that he had gone there to pay the purchase price to the plaintiff. To his surprise, the plaintiff sought to unilaterally cancel the verbal agreement.

The plaintiff did not end there, he even purported to treat the defendant as his tenant. The defendant, of course, refused to accept that.

He denied ever evicting Joseph Mahlatini and, instead, alleged that Joseph Mahlatini voluntarily vacated the house. He then lawfully occupied his own house. He was merely enforcing their verbal agreement which the plaintiff purported to unilaterally cancel.

He alleged that the issue of unjust enrichment did not arise at all as the property was lawfully his. He reiterated that his occupation of it was meant to enforce the verbal agreement between the parties.

In conclusion, he prayed that the plaintiff's claim be dismissed with costs and that the plaintiff be ordered to accept the purchase price together with interest at the prescribed rate.

The second issue is whether or not there was a verbal agreement that the respondent should lease the property for a further fifteen (15) years. 

He, however, does not tell the court the terms and conditions of the lease, namely the duration of the lease and the rent among other conditions. This, therefore, does not qualify as a valid lease. See Stewart v Vosloo 1965 (1) SA…, where it was stated that the parties must agree on;

1. The purpose of the contract, that the lessor is to give and the lessee to receive the use and enjoyment of the property;

2. The identity of the property; and

3. The rent.

Two of the essential elements are present.

I find that the respondent's argument is fraught with difficulties with regards to the third element as it is clear that the rent to be paid was not agreed upon.

The respondent also argued that to show his sincerity about the supposed 15-year lease with a view to purchase the property, he obtained a second mortgage bond. The bond in question was in 2005 yet the supposed verbal lease was in 2008. This is inconsistent, as there would not have been the issue of purchase in 2005 when he was purely a tenant without more. There is nothing to show that there was a verbal agreement - other than his mere say-so.

The common principle in our law is that the respondent, having asserted that there was a verbal agreement, the burden of proof shifted upon him which he has failed to do.

It was argued, on behalf of the respondent, that the averments of Jeremy Musgrave do not disclose the nature of the alleged transaction. He produced no written proof of the alleged transaction when a transaction of such a magnitude was reasonably expected to have been reduced to writing despite the fact that there is no law which mandates an agreement of sale of property to be reduced to writing.

Edwin Chimanye, like Jeremy Musgrave, had no written proof of the transaction but wanted the court to rely on the “so many pointers to the transactions.”

Vernon Lapham does not seem to assist the applicant as he wrote in his letter dated 3 August 2009, marked to the attention of Jeremy Musgrave: “Unfortunately I have not been able to locate detailed information relating to this transaction and hence this letter sets out my recollection and hence may be somewhat vague…,.”

Daphne Ritson was not of any assistance either as she stated in her e-mail to Jeremy Musgrave of Friday 28 August 2009:-

“I have been through my file and cannot find any written reference to the agreement to split the property.

I do however, remember hearing that it was part of the deal that you would keep the part of the Southerton property, at that stage occupied by NBL.”

While George Maulidi purported to instruct the respondent's legal practitioners, by letter dated 22 October 2003, to effect the split “soonest”, the legal practitioners addressed Mr Majoko by e-mail on 31 March 2009 wherein they said:

“Please also verify with your client what form this transfer will take, that is, if it is a sale, donation or scheme of reconstruction.”

Messrs Majoko & Majoko did not respond to the e-mail explaining the form the transfer would take.  Their clients seem to have been unable to provide evidence showing what form the transfer would take. No evidence was proffered to show whether it was a sale, donation or scheme of reconstruction.  That question remains unanswered as the evidence of Jeremy Musgrave does not disclose the nature of the alleged transaction.

When dealing with the letters of E Chivaura and George Maulidi, coupled with correspondence from Gill, Godlonton and Gerrans, it was submitted, on behalf of the respondent, that those documents only served to reflect a fraud on the respondent as the documents amounted to an attempt to transfer a property without the authority of the company i.e. no recorded company resolution….,. The respondent concluded that the fact that the alleged transaction was illegal probably explained the reason it was not included in the agreement of sale.

I pause to observe that the evidence placed before the court falls far short of proving the existence of the alleged transaction. This court has found that there was no written company resolution to authorize the alleged transaction. It is also the finding of this court that the applicant was unable to produce any recorded information relating to the alleged transaction. The court was being urged to rely on factors which pointed to the transaction having been entered into. Quite clearly, the applicant was ignoring the fact that Vernon Lapham and Daphne Ritson were unable to find any written reference to the agreement to split the property.

Under cross-examination, the defendant stated that the parties did not record the agreement and hence they had a verbal agreement. 

He said the terms of the verbal agreement were that after payment of “this” money he would then clear the balance in instalments until when he finished paying. As to the number of instalments, he said that the parties did not stipulate that. He said there was no agreement as to when he would start paying the instalments. He said they did not discuss as to how much the balance would be and when it would be paid. He further admitted that to date the unknown balance remains unpaid. The defendant himself was not able to state to the court:

(a) The specific date upon which an agreement of sale was entered between himself and the plaintiff.

(b) The precise terms and conditions of such an agreement of sale, that is, the price, the payment mode, and terms.

The defendant maintained having given the plaintiff the sum of ZAR15,000=. The rest was yet to be agreed upon.

This certainly would not make sense and would leave the plaintiff's version that is to the effect that there was no agreement of sale at all being the only correct version of events in this matter. It defies logic that a man would sell his bus for an unknown price, and would let somebody take it away then later be paid ZAR15,000=, with an undetermined balance remaining. This issue started in 2008 and to date the purchase price is yet to be determined according to the defendant. This is highly improbable. In any event, even if one were to accept that an agreement of sale was entered into, (which I find not to be the case), one would still have difficulty in ascertaining the terms of the agreement. An agreement of sale is valid only if it meets certain legal requirements; as per the definition of an agreement of sale in R.H CHRISTIE: Business Law in Zimbabwe,…., as;

“A contract in which one person promises to deliver a thing to another, who, on his part, promises to pay a certain price.” 

“There must be an agreement to exchange property for a price. If either of these two constituencies are lacking there is no sale.” Per R.H. CHRISTIE, Business Law in Zimbabwe…,.

It therefore follows that with the facts before me, wherein there was no agreement as to the price there cannot be a valid contract of sale….,.

I accordingly dismiss the defendant's claim in its entirety and I find in favour of the plaintiff.

I accordingly order as follows:

1) That the defendant be and is hereby ordered to deliver to the plaintiff a Nissan Civilian Bus registration number AAS 1066, or, alternatively, that if the plaintiff is not satisfied with the current condition of the said bus, that the defendant pays the plaintiff the sum of $19,700= (being the current replacement value of the said bus).

2) That the defendant pays interest on the sum of $19,700= at the prescribed rate with effect from the date of judgment to date of full payment.

3) That the defendant pays costs of suit at an attorney and client scale.

4) That the defendant's counterclaim is dismissed with costs at an attorney and client scale.

There is no material dispute of facts as most facts giving rise to the legal disputes on appeal are by and large common cause. The undisputed facts are that Mathonsi Family Enterprises (Pvt) Ltd, who was the second respondent in the court a quo, is the registered owner of a certain immovable piece of property commonly known as Number 9 Simon Mazorodze Road, being the Remainder of Subdivision B of Delft, Hopely.

Mathonsi Family Enterprises (Pvt) Ltd wished to subdivide and sell a portion of the property but apparently lacked the financial capacity to effect the necessary subdivision and related costs to facilitate the sale and transfer of the envisaged subdivision. Eventually, it negotiated and entered into a conditional verbal agreement, sometime in 2010, where the first respondent would finance the whole subdivision process, payment of capital gains tax and related costs to facilitate its purchase of the resultant subdivision. The verbal agreement culminated in Mathonsi Family Enterprises (Pvt) Ltd making the following resolution on 8 December 2010:

“RESOLVED

1. That the company applies for the subdivision of the property commonly known as No. 9 Simon Mazorodze, being the Remainder of subdivision B of Delft of Hopely into two properties.

2. THAT Mayor Logistics (Pvt) Ltd be and is hereby authorised to provide assistance and to make all such payments as may be necessary to facilitate the subdivision, all of which will be taken into account when disposing of the subdivision to it.

3. THAT once the subdivision is approved, half or the smaller of the two subdivided portions shall be sold to Mayor Logistics (Pvt) Ltd for not more than US$35,000= per acre of the prime portions and at a negotiated lower price for any swampy portions in recognition of assistance in the subdivision process.

4. THAT the payment terms be discussed with Mayor Logistics (Pvt) Ltd once the subdivision is approved.

5. THAT CLIFF Mathonsi be and is hereby authorised to sign any documents and to do all such things as may be necessary on behalf of the company to facilitate the subdivision and proposed disposal to Mayor Logistics (Pvt) Ltd.”

According to the first respondent, the parties eventually settled for the price of US$50,000= - which is yet to be paid. The sale was, however, subject to a suspensive condition that it would only come into effect upon the first respondent successfully facilitating the subdivision in terms of the above resolution. It is common cause that the first respondent financed and facilitated the acquisition of the necessary sub- divisional permit thereby partially fulfilling its part of the bargain.

Although a draft written agreement was prepared in terms of the verbal agreement and company resolution, Cliff Mathonsi refused to sign the draft on behalf of Mathonsi Family Enterprises (Pvt) Ltd claiming that his father wanted more money than previously agreed.

It is plain that the verbal agreement was lawful and binding. The intended reduction of the verbal agreement to writing was a mere formality not forming part of the contractual agreement….,.

Despite the verbal agreement and the first respondent having partially fulfilled its part of the bargain, Mathonsi Family Enterprises (Pvt) Ltd resold the disputed property at a higher price to the appellant, unbeknown to the first respondent, on 4 April 2011.

The above facts clearly establish beyond question that Mathonsi Family Enterprises (Pvt) Ltd Ltd sold the same property twice, firstly, to the first respondent, and, secondly, to the appellant.

The court a quo was therefore correct in treating the matter as a double sale dispute. There is absolutely no substance in the appellant's argument to the contrary.

A dispute having arisen, and in a bid to protect and enforce its contractual rights, the first respondent successfully sued Mathonsi Family Enterprises (Pvt) Ltd for specific performance in the High Court under case number HC218/12 in which it obtained the following default order on 5 June 2012:

“IT IS ORDERED THAT:

1. The defendant (Mathonsi Family Enterprises (Pvt) Ltd) be and is hereby directed to transfer Stand 102 Grobbie Township of subdivision B of Delft of Hopely to the plaintiff (1^st respondent) against payment of US$50,000=.

2. Should the defendant refuse or neglect or fail to sign the documents facilitating the said transfer the Deputy Sheriff be and is hereby authorised to sign them in defendant's stead.

3. The defendant shall pay the costs of suit on an attorney and client scale.”…,.

I now turn to consider the appeal on the merits.

It is trite that, save in special circumstances which do not concern us here, no appeal lies to this court against a default judgment which is normally reversed by rescission of judgment or a declaration of nullity. It therefore, follows that in the absence of special circumstances, no valid ground of appeal can be laid at the door of this court concerning the propriety or otherwise of a default judgment. Whether or not there was non-joinder or any other irregularity pertaining to the default judgment that is a complaint to be laid at the court a quo's door and not this court. There being no special circumstances pleaded in this case, this court will not entertain any argument calculated to impugn the validity of the default judgment at hand.

This is an appeal against the decision of the High Court upholding the judgment of the Magistrates' Court.

The case revolves around the difference between two computer terms “megabytes” and “megabits.”

On 12 April 2012, the respondent sought fibre internet services for its two premises, being No.34 Martin Drive, Msasa, and No.19 Manyonga Close, Glen Lorne Harare, from the appellant who is an internet service provider. The parties entered into some form of agreement that was both verbal and written. The written contract was not signed by both parties as there were some terms which needed to be clarified.

It is common cause that the parties agreed on the following:

1. That the appellant would install and provide internet service at No.34 Martin Drive, Masasa and No.19 Manyonga, Glen Lorne.

2. That the respondent would pay the installation costs and service fees.

Believing the above-mentioned terms and conditions to be valid, the respondent paid the appellant installation costs and service fees. The appellant installed internet services at the first premises (No.34 Martin Drive, Masasa) on or about 23 April 2012 and began digging trenches at the second premises (No.19 Manyonga Close, Glen Lorne) in preparation for laying fibre optic cables.

When internet service was installed at No.34 Martin Drive, the service speed of 5 megabytes per second was not achieved.

The respondent complained that in getting into the agreement, it wanted the appellant to provide internet services with a speed of 5 megabytes per second. The appellant argued, in return, that it had made it clear that the internet service it was providing had a speed of 5 megabits per second.

Emails were exchanged but the parties failed to agree.

The respondent cancelled the agreement and issued summons in the Magistrates' Court to recover part of the deposit it had paid in respect of installation of internet services at No.19 Manyonga Close, Glen Lorne, which was stopped due to the cancellation of the contract before the installation of internet services. It also claimed a proportionate share of the deposit for internet services which was not used at No.34 Martin Drive, Masasa due to the cancellation of the agreement.

The respondent argued that the appellant failed to adhere to its obligation under the agreement by providing internet service with a speed of less than 5 megabytes per second. The appellant entered appearance to defend and pleaded that it fulfilled all its obligations in terms of the agreement by providing internet service at a speed of 5 megabits per second as per the contract. The appellant went further and argued that in the event that the respondent wanted to terminate the contract, it was supposed to give the appellant three months' notice in terms of the contract. 

The matter went for trial before the Magistrates' Court.

The Magistrate's Court found that the parties' minds were not ad idem when they purported to have entered into the contract. It found the contract was void ab initio.  It came to this conclusion on the basis that there was confusion over the terms 'megabytes' and 'megabits' and as such there was no valid contract between the parties.The magistrate therefore found in favour of the respondent and granted its claim.

The appellant was aggrieved by that decision.

It appealed to the High Court, which dismissed the appeal. The High Court found that the magistrate had correctly found that there had been no consensus ad idem between the parties.

Aggrieved by that decision, the appellant appealed to this court. The appeal is premised on the following grounds:

“1. The High Court, like the Magistrates Court before it, erred in finding that the Appellant and the Respondent did not conclude a valid and binding contract when both parties in their pleadings admitted to a valid and binding contract.

2. The High Court further erred in failing to find that the Respondent's unilateral mistake in believing that the (sic) 5 megabits were the same as 5 megabytes, could not, in law, justify the cancellation of the contract at the instance of the Respondent.

3. The High Court further erred in failing to find that the Respondent admitted into entering (sic) a contract for the Appellant to supply internet services at the speed of 5 megabits per second which was achieved. Accordingly, therefore, the Respondent was not entitled to have cancelled the contract.

4. Consequently, the High Court erred in upholding the judgment of the Magistrates Court finding the Appellant liable to the Respondent for the sum of US$4,987=.”

ISSUES TO BE DETERMINED

Even though the notice of appeal is premised on four grounds of appeal, the sole issue for determination in this appeal is the question whether or not there was a valid contract between the parties.

It is trite that for a contract to be valid there must be a meeting of the minds of the parties. In short, the parties must have the same mental conception of what they are agreeing to.

That is called consensus ad idem.

In the absence of consensus ad idem there can be no valid contract. In the case of Household Fire and Carriage Accident Insurance Co. Ltd v Grant (1879) 4 Ex D 216, THESIGER LJ said:

“Now, whatever in abstract discussion may be said as to the legal notion of its being necessary, in order to the effecting of a valid and binding contract, that the minds of the parties should be brought together at one and the same moment, that notion is practically the foundation of English law upon the subject of the formation of contracts.”…,.

In Smith v Hughes (1871) LR 6 QB 597, BLACKBURN J put it as follows:

“I apprehend that if one of the parties intends to make a contract on one set of terms, and the other intends to make a contract on another set of terms, or, as it is sometimes expressed, if the parties are not ad idem, there is no contract, unless the circumstances are such as to preclude one of the parties from denying that he has agreed to the terms of the other.”…,.

Applying the above principles to the facts, I find that there can be no serious doubt that there was no meeting of minds in this matter.

Although counsel for the appellant sought to argue that there was a unilateral mistake on the part of the respondent, that argument is flawed. The evidence led by the parties does not prove unilateral mistake. The parties were clearly miles apart in their minds from the beginning. From the evidence, I find that there was confusion between the respondent's representatives and the appellant's sales representatives, headed by one Cleopatra Tshuma, the Sales and Marketing Officer. The testimony of Cleopatra Tshuma herself, in the Magistrates' Court, makes that patently obvious. At p 43 of the record, when she was being cross examined, the following exchange took place between her and the respondent's counsel in the Magistrates' Court:

“Q: Can you confirm this is the email my client wrote to you. Exhibit 5?

A: Yes.

Q: You will note the Plaintiff's representatives referred to megabytes.

A: Yes.

Q: Have a look at Exhibit 6. You agreed to the terms that were raised by the Plaintiff?

A: Yes.

Q: Its common cause that the plaintiff is a layman, should you not have raised an issue with the plaintiff to clarify the position?

A: As we had earlier discussed, I thought he also meant megabits not megabytes…..,. “

The confusion is obvious.

As if that was not enough, the testimony goes on, at p 45 of the record, where the following appears:

“Q: The Plaintiff was acting on the assumption that he was buying megabytes?

A: Probably, I do not know what they were thinking….,.“

If the appellant's representative did not know what the other party was agreeing to then it cannot be said there was a meeting of minds of the parties. In fact, the appellant's representative agrees that the respondent was most likely thinking that it would get 'megabytes while 'megabits' were what the appellant was offering.

An examination of the emails which were referred to in cross examination proves the absence of consensus ad idem between the parties. Exhibit 9, which…., contains the following email exchanges. The first is an email from the respondent's representative, Mr Vikram Singh, stating what the respondent required as the speed for the internet service.

“Dear Cleopatra

I have taken a look at your Service Level Agreement. There are quite a few things I would like to change about it….,.

Minimum speeds at both sites should be 5MB and the cost for both packages to be USD5,000=.”

Note the use of “MB” as opposed to “Mb”. According to the evidence on record, 'MB' stands for megabytes while 'Mb' stands for megabits.

Later, when problems had arisen and the respondent was complaining about internet speed, Cleopatra Tshuma wrote back to the respondent's representative, Mr Vikram Singh, as follows:

“Good day

How are you? I would like to clarify this. While we note that he wrote 5MB, we assumed an error on his part. I confirm that I meant the SLA.

Regards”

Indeed, Cleopatra Tshuma made it clear that while they noted that the respondent had written MB, the appellant had assumed it was an error and Mr Singh had intended to write Mb. Mr Vikram Singh responded as follows:

“Dear Cleo

There is no point at clarifying at this stage. We understood 5MB all along and hence went ahead with the contract. Besides the SLA was verbally discussed on several occasions with you and Chris.

Regards”

It is clear that the parties were miles apart as to what they thought they had agreed on. The respondent thought it had agreed to acquire an internet speed of 5 megabytes per second. The appellant noted this but chose to keep quiet, writing it off as a typographic mistake when it was clearly not. The appellant did not bother to clarify to the respondent the terminology used. The result was that both parties proceeded with a contract on diametrically opposite terms from what the other was thinking. This resulted in the confusion between the parties which is apparent on the record.

There was therefore no meeting of the minds and a contract could not have come into existence.

I am aware that the test for the meeting of the parties' minds should involve the effect of their conduct on whether or not a contract came into existence.

Consensus ad idem does not only take into account the subjective mental state of the parties, which has been discussed above; it also takes into consideration the actions of the parties to determine whether or not there was consensus ad idem. BLACKBURN J in Smith v Hughes (1871) LR 6 QB 597, set out his classic statement on the objective interpretation of people's conduct when entering into a contract. Rejecting that one should merely look at what people subjectively intended, he said:

“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 same sentiments were expressed by WESSELS JA  in South African Railways & Harbours v National Bank of South Africa Ltd 1924 AD 704…, where he said:

“The law does not concern itself with the working 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, yet, if by their acts their minds seem to have met, the law will, where fraud is not alleged, look to 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.”

Now, keeping in mind the above dicta, the question remains: Did the parties in this case, in particular the respondent, conduct itself in a manner that indicated that it had accepted the terms of the contract? 

The answer is in the negative. 

The respondent's conduct was clearly not to accept any speed of less than 5 megabytes.

When the Service Level Agreement was sent to the respondent for its signature, it did not sign because it did not state that an internet speed of 5 megabytes per second would be installed at each site. That conduct proves that the respondent's mind was set on acquiring an internet service speed of 5 megabytes per second at each site.

The moment the internet service was installed at No.34 Martin Drive, Masasa, the respondent immediately complained that it was not getting the speed of 5 megabytes per second it had contracted for. It cannot be said that this is the conduct of a party who had accepted to be bound by the contract. 

It, in fact, proves the opposite.

It is therefore established that there was no consensus ad idem between the parties. The court a quo therefore correctly upheld the decision of the Magistrates' Court. Its decision is unassailable.

In the result, the appeal is dismissed with costs.

The applicant, in the summons for eviction, holding over damages and costs, did not rely on the lease agreement which existed between the parties. He chose to found his cause of action on a non-existent sale agreement.

This means the respondent has a bona fide defence against the claim since there is no valid sale agreement between the parties.

Paragraph 4 of the plaintiff's declaration says;

“In January 2012, plaintiff and defendant entered into a verbal agreement of sale in terms of which defendant would purchase a portion of the plaintiff's undivided property in Tynwald.”

Paragraph 6 says;-

“A draft agreement was duly prepared by the plaintiff's legal practitioners but was never signed by the defendant.”

From the above two paragraphs, it is clear there was no agreement of sale between the parties. An agreement of sale of immovable property has to be in writing; but the plaintiff's was verbal. An attempt was made to reduce it into writing, and it was never signed. So there is no sale agreement to talk about.

The facts

Sometime in 1979, the late Jeffery Dhliwayo acquired the right to purchase a vacant Stand known as Stand 5389 in Glenview ('the Glenview Stand') through a cession agreement with the City of Harare. It is not in dispute that the person who ended up building a seven-roomed house on this Stand was the first defendant, Marshall Dhliwayo. According to the plaintiff, who is the deceased's daughter, this circumstance came about as a result of an alleged swop between the two brothers of their properties with the first defendant, Marshall Mwashoreni Dhliwayo, purportedly swopping his two-roomed house in Chitungwiza, namely, Stand 4362 Unit D, Chitungwiza (the Chitungwiza Stand), for the Glen View Stand.

According to the plaintiff, the swop was so that the first defendant in particular could be nearer his workplace. She stated that the verbal swop agreement took place sometime between 1979-1982 but was unable to say exactly when. The plaintiff could also not say exactly when her family moved to Chitungwiza but alleged it was some time in the 1980s and that her siblings, born in 1982, 1985 and 1992 were all born when they were staying in Chitungwiza. No evidence, however, was put forward in support of this claim. She however admitted that she herself was schooling in the rural areas when it was put to her that she only came into town in 1994.

It was also her testimony that the crystal evidence that there had been a swop was contained in an agreement authored by the first defendant himself in 1998 in which he stated his wish to swop his house with Jeffery Dhliwayo. It was her position that it was in 1998 when the purported swop was formalised with the Glen View Stand being ceded to the first defendant. However, the Chitungwiza cession, according to her testimony, was not finalised as the late Jeffery Dhliwayo, her father, did not have the requisite funds to complete the process – which was a sum of Z$300= that was needed to effect the cession. Thus, according to the plaintiff, instead of a cession of the Chitungwiza house what the late Jeffery Dhliwayo got was a lodger's card reflecting him as a tenant at the Chitungwiza Stand.

It was not disputed that by 1982/3 the first defendant had completed the construction of the house in Glenview and had moved onto the property. The plaintiff did not lay claim to this house. She agreed that the house on the Stand was built by the first defendant but insisted that the whole arrangement where one family lived in Glen View and the other in Chitungwiza had its origins in a swop. She had lodged a formal claim to the property in 2012 after registering her father's estate and being appointed executor. This followed the purported acquisition of the house by the first defendant's son, one Newman Dhliwayo, through a donation from the first defendant sometime in 2003 and his effecting extensive improvements to the said house. He successfully brought an action in the Magistrate's Court, in case No.17/13, against the first defendant to sign all relevant papers and to effect transfer in his name. The plaintiff was not a party to this matter.

The plaintiff was the only witness in her case.

In support of her claim that there was a swop, the plaintiff produced as exhibits the application for cession of Stand 5389 from Jeffrey Dhliwayo to Marshall Dhliwayo (exhibit 1); the City Council's Memorandum of Agreement regarding the cession of the Glen View property (exhibit No.2); and with regards to the Chitungwiza property she placed before the court the letter penned by the first defendant and his wife (exhibit No.3); and a lodgers card showing her father as a tenant to the Chitungwiza property which she said he had gotten in lieu when he was unable to pay the full cession fees required (exhibit No. 4). Her Letters of Administration were also produced (exhibit No. 5).

The first defendant, on the other hand, denied that there was ever a swop, and, instead, locates his taking over of the Stand in 1979 in the late Jeffery Dhliwayo's inability to pay for it himself. Rather than losing the opportunity to acquire the Stand, the late Jeffery Dhliwayo allowed his brother to take over the purchase of the Stand and to build on it. His version was that there could not have been a swop in 1979, as alleged by the plaintiff, since he only entered into an Agreement of Sale with Chitungwiza Town Council, with respect to the Chitungwiza Stand, in March 1981. He produced as exhibit No. D1 a copy of the Deed of Sale with the Council showing that the sale was in 1981.

His further testimony was that the late Jeffery Dhliwayo had moved to Chitungwiza in 1996 as his tenant and prior to that had been staying in Highfield as a lodger. His explanation of the 1998 events, in contrast to those alleged by the plaintiff, was that in May 1998, when it became evident that the late Jeffrey was critically ill, both brothers took action, in fear of his impending death, to transfer the property into the first defendant's name. However, in attempting to effect change of name, they encountered a hurdle in that in that the City of Harare refused to effect cession into his name by merely changing ownership. He said he was told that there had to be something in favour of Jeffery Dhliwayo and it was then that the parties, following some advice as to how they could get around the hurdle, put into motion the simulated swop using his Chitungwiza Stand. The intention he says was never to take the Chitungwiza cession to its logical conclusion which is his explanation as to why it was never concluded but it was every intention, according to him, to change over the Glenview property into his name.

Girlie Dhliwayo, the first defendant's wife, having been party to the process, also gave evidence with the leave of the court, after the first defendant, a stroke patient, could not be available due to illness to complete what remained of being cross examined and re-examined.

The gist of her testimony was that Jeffery Dhliwayo, whom she characterised as wayward and irresponsible in his family matters, was staying in Highfield, in a cabin, with his wife and children, in very crammed conditions. Having observed the very hard conditions his wife and children were living under after he had chased his wife from the rural home where she had been staying, her evidence was that it was her suggestion that they be offered their Chitungwiza home as a humane gesture.

She corroborated her husband's version that it was only in 1996 that the family of the late Jeffery Dhliwayo went to stay in Chitungwiza. She further confirmed that in 1998, when they went to the Harare offices to effect change of name, they were told by the officials that they needed a valid reason for the change of name. Their claim that they had bought the property could not hold since they were unable to produce an Agreement of Sale or any proof in the form of bank statements confirming that any money had changed hands. She reiterated that it was when they got outside that someone suggested that they do a swop and that it was then that they devised the plan to say they had swopped the Chitungwiza house. She said at the Chitungwiza Council offices, the officials had insisted on a letter pertaining to the purported swop and it was in that context that she says the letter was written. It was also her evidence that the reason why the late Jeffery Dhliwayo was given a lodgers card was in fact so that he could be allocated a Stand since lodgers were prioritised. It was her testimony that in fact a Stand had been allocated to Jeffery Dhliwayo - albeit after he had died.

Newman Dhliwayo, the first defendant's son to whom he is said to have donated the house to resulting in an order from the Chitungwiza Court that the first defendant should transfer the house to him, also gave evidence.

It was to the effect that following Jeffery Dhliwayo's death in 1999, bills at the Chitungwiza house mounted and remained unpaid. His father asked him to settle the bills if he had money; which he went on to do. Thereafter, his father said that he could take over the house if he wanted to as it was his and explained to him the context that had led to Jeffery Dhliwayo's family being on the property. He explained that he went on to install electricity in 2004 and in 2005 started building extensions on the house completing his seven-roomed project in 2011. His evidence was furthermore to the effect that it was in 2012, after he moved in, that conflicts started with the children of the late Jeffrey Dhliwayo who now claimed that he had come to take over their father's house. He said he explained the problems to his father and that he wanted the house to be put into his name for the avoidance of further problems. He took the matter to court as he was of the view that as his father was staying in Glen View he was not taking the matter seriously. It was in this context that the Chitungwiza Magistrate Court issued a document compelling the first defendant to transfer the property to his son.

Also produced as exhibits for the first defendant claim was the court order from the Magistrates Court ordering Marshall Dhliwayo to transfer the property to his son Newman Dhliwayo (exhibit D3); the Council of Chitungwiza's Building Inspector's report confirming that renovations to the house were being done as way back as 2005 (exhibit D2).

Therefore, in the context of all the above facts, this court is asked to decide, primarily, on the following issues:

1. Whether there was a Swop Agreement between the late Jeffrey Dhliwayo and the first defendant in respect of Stand 5389, 72 Crescent, Glen View and Stand 4362 Unit D, Seke, Chitungwiza owned by the first defendant.

2. Whether the first defendant can be compelled to transfer Stand 4362 Unit D, Seke, Chitungwiza into the Estate of the Late Jeffrey Dhliwayo.

3. Whether the first defendant can be compelled to transfer Stand 4362 Unit D, Seke, Chitungwiza in view of the judgement dated 18 January 2013 handed down by Chitungwiza Magistrates Court.

4. Whether the plaintiff's claim is prescribed in terms of the law.

While there was appearance by counsel for the second defendant, she did not make any submissions. Counsel for the third defendant…, also cited in an official capacity as custodians of the records of the property in dispute indicated that they would abide by the decision of the court with no order as to costs against it….,.

The issue of prescription as well as that of the Magistrate's Court decision obviously need to be dealt with first as both would dispose of the case…,.

Was there a swop?

The document dated 12 May 1998 that captures the purported swop with regard to the Chitungwiza property, and submitted as exhibit no.3 by the plaintiff, reads as follows:

“I, Marshall Mwashereni Dhliwayo, 63-1193020P13, wish to swop my house with Jeffrey Munyika Dhliwayo, Nr 63-199102R 13, for free.”

It is signed by the first defendant and his wife also signs giving her consent.

It is a vague document that does not detail which house is being swopped for what house and cannot be said to constitute any agreement between the parties to effect a swop. It is void for vagueness. Besides, there is no indication that the late Jeffrey Dhliwayo was party to it.

As stated, in resolving such disputes as these, much will of course rest on the facts of the particular case.

As regards the swop, if indeed the only thing that stalled the cession of the Chitungwiza property was lack of funds, there is no reason why payment could not have been subsequently made. Even accepting the death of Jeffrey Dhliwayo, in 1999, it still boggles the mind why, if the property was, in essence, that of the deceased by virtue of a swop, his late wife, who only died in 2003, almost five years later than him, never took any steps to register the property. The fact that there was no effort to assert a claim, in my view, bolsters the claim by the first defendant's wife that the reason was because it was always known to her, in no uncertain terms, that the property did not belong to her. The fact that the late Jeffrey Dhliwayo was given a lodger's card for allocation of a Stand also supports the first defendant's argument that the letter regarding the swop was never intended to have any real meaning as a basis of any swop.

Even more puzzling to the plaintiff's claim is why no concrete legal action was taken in the face of the improvements that were being effected by the first defendant's son to the property as way back as 2005 if she genuinely believed the property was her father's. Her argument that she registered her complaints with the first defendant, who took no action, cannot absolve her failure to take more stern action.

Counsel for plaintiff argued that the evidence of Girlie Dhliwayo should be discounted for its inconsistencies with her husband's with respect to whether the advice to simulate a swop had come from an outsider or from Chitungwiza Town Council.

Far from implying that the advice was that of Chitungwiza Town Council officials, her evidence stated that it was when they got outside, that in talking, someone suggested a swop. It was after that they had decided to use their Chitungwiza property that they had proceeded to Chitungwiza where they were advised to do the letter.

I saw no glaring inconsistencies that go to the root of the matter in her testimony.

Instead, there were many positive indicators from her testimony compared to that of the plaintiff and the first defendant who both encountered credibility pitfalls as a result of blatantly seeking to answer questions to suit a particular argument. For instance, in not pinning herself to an exact date of the alleged agreement, besides the fact that having been born in 1975, the plaintiff would have been too young to appreciate the events that took place at the time; the impression formed was that she was deliberately trying to evade the pitfall that there could not possibly have been any swop in 1979 since the record from the Chitungwiza Urban Council confirms that the Chitungwiza property was only acquired in 1981 consisting of the two-roomed core house.

The first defendant equally emerged as not being entirely truthful when asked if he had faced any impediments in seeking transfer of the Glenview property into his name or on who had advised him to swop. It may have been a bid to protect any Council officials who may have been party to facilitating the ruse of the simulated swop.

In my opinion, because of the straight forward factual nature of Girlie Dhliwayo's testimony, and its grounding in everyday realities in providing a picture of what really transpired in relation to the two properties, I found her testimony the most believable of the witnesses. It assisted the court greatly to understand the murky areas that appeared to have arisen as a result of clearly rehearsed responses.

I also had no difficulties with the testimony of Newton Dhliwayo as it was also of a straight forward factual nature.

Ultimately, the reality is that simulations such as these, within family contexts, to acquire property or facilitate transfers in instances where City Council officials may appear to be placing impediments, are not uncommon. It is not an unusual occurrence in our setting for parties to acquire property by navigating their way through the City Council's requirements.

See for instance, Kamanga v Estate Late Chikondo (as represented by Oswold Bute Chikondo in his capacity as executor) and Others 93/2011).

Also, disputes such as these often times in our context have their origins in some desire to maximise the opportunity to acquire property within an extended family context if one cannot take it up themselves, as opposed to letting the opportunity slip without helping one's own. Legal effects of property being registered in someone else's name when they are not entitled to it are often not appreciated. It cannot be said that lack of foresight to resultant problems amounts to breaking the law. In light of economic woes and the significance of having a roof over one's own head, the deceased's children in some such arrangements, as in this case, who may in some instances have been no more than toddlers at the time of the arrangement, nonetheless assert their claim to the property with the tenacity of those who were part of the contract at the time.

In reality, there had never been a sale of the Stand to or by Jeffrey Dhliwayo since from the outset it was Marshall Dhliwayo and his wife who had paid for the Glenview property and built on it. The impediment that they faced was getting it transferred into their name and it is in this context that the stimulated swop of the Chitungwiza property, which understandably was never taken to its logical conclusion, came into play.

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

It is equally my finding that the first defendant cannot be compelled to transfer Stand 4362 Unit D, Seke, Chitungwiza into the Estate of the Late Jeffrey Dhliwayo.

As summarised in the case of Page Automation (Pvt) Ltd v Profusa Properties t/a Homenet OR Tambo and Others 2013 (4) SA 37 (GSJ)…, the elements of a cession are as follows:

(a) An act of transfer;

(b) The subject matter of the transfer is a right in movable incorporeal thing;

(c) The transfer is effected by agreement between the cedent and the cessionary; and

(d) The agreement consists of the concurrence between the cedent's animus transferendi and the cessionary's corresponding animus acquirendi.

There was never intended to be a cession of rights which the first defendant held with the Chitungwiza Urban Council in relation to the Chitungwiza Stand. However, there was intended to be a cession of rights which the late Jeffrey Dhliwayo held with the City of Harare in relation to the Glen View Stand. The evidence suggests that there was a clear meeting of minds among the parties involved regarding what was intended.

As explained in the South African case of Hippo Quarries (TVL) (Pvt) Ltd v Eardley 1992 (1) SA 567 (A)…,;

“Cession, it is trite, is a particular method of transferring a right. The transfer is effected by means of agreement. The agreement consists of a concurrence between the cedent's animus transferendi of the right and the cessionary's corresponding animus acquirendi. If a complete surrender of a right is not intended, the transaction, however dressed up, is not an out and out cession. The aim is to discover the true intention of the parties to the disputed cession. That enquiry, like any enquiry into intention, is a purely factual one. If found to be feigned the simulation is disregarded.”

From an assessment of the facts placed before the court, the true intention of the parties was to complete the transfer of rights which Jeffrey Dhliwayo held with the City of Harare in the Glen View property from being held by himself to being held by the first defendant…,. This one was not a feigned cession. It was real. The parties were agreed and the complete surrender of rights was effected.

In casu, there was no animus transferendi in relation to the Chitungwiza property and there was equally no animus acquirendi.

Accordingly, the plaintiff's claim is hereby dismissed.

Levison Yohane was present when the sale took place…,.

From the evidence, it was apparent that the plaintiff is the one who approached the seller and paid the purchase price in the presence of a number of witnesses.

In Adleu v Elliot 1988 (2) ZLR 283 (S) GUBBAY JA…, recognised that in oral contracts the court had the power to determine whether the terms of that contract required exact performance or the performance of some equivalent act. He stated thus:

“The application of this broad principle [that it is not for the court to remake a contract of the parties in line with INNES CJ in Ambrose and Aitken v Johnson and Fletcher 1917 AD 327 at 343 and the remarks of BEADLE CJ in Holmes v Palley 1975 (2) RLR 98 (AD) at 105C that one party to a contract was not entitled to expect that it will be carried out in a different manner than agreed because of the absence of prejudice] does not, of course, preclude a court from determining whether the parties to an agreement intended that a particular term thereof was to be fulfilled in forma specifica, that is, in the exact manner agreed upon by the parties or per acquipollens, that is, by some equivalent act…,.

Where the agreement is in writing and the language employed is sufficiently clear, the common intention of the parties must be extracted from the agreement itself. But, if the language is ambiguous or where the agreement of the parties was oral, then the court is obliged to have regard to the surrounding circumstances, and to any other admissible evidence in order to ascertain whether the common intention of the parties was to be fulfilled in forma specifica or whether performance thereof by some equivalent act would suffice.”

In Adleu v Elliot 1988 (2) ZLR 283 (S), the parties entered into an agreement of sale in which part of the purchase price was payable abroad in foreign currency and the remainder at home in local currency. GUBBAY JA approved the four factors outlined by CLAASEN J in Diggelen v de Bruin and Another 1954 (1) SA 188 SWA…, that:

“1. If the surrounding circumstances and other admissible evidence afford no clue as to what was in the contemplation of the parties then there is a rebuttable presumption in favour of performance in forma specifica. But the presumption cannot be rebutted where it is clear from the terms of the contract that performance in forma specifica had been stipulated.

2. In case if doubt, the court will be more likely to find in favour of performance per acquipollens if the manner of performing the term is not material and also where performance in forma specifica is impossible through no serious fault on the promissors part.

3. The act or performance tendered per acquipollens, where such is permissible, must be an equivalent act to that stipulated for or be of such a nature that it can make no material difference to the promise.

4. Where the promissor succeeds in rebutting the presumption mentioned above, there may be circumstances falling short of impossibility and even where there may be some fault on the part of the promissor; a court may be justified in concluding that the promissor's perfomance or tendered performance amounted to substantial performance.”

It seems to me, as appears from Dobrock (Pvt) Ltd's averment, that the parties contemplated that payment would be in sterling pounds in England, into the account of Antony Turner's daughter, Jenny.

Dobrock (Pvt) Ltd was willing to pay “where and when” Turner & Sons desired it be made. The agreement was sealed when Dobrock (Pvt) Ltd agreed to make payment in foreign currency in England. The parties thus contemplated exact performance and not some substantial performance. That exact performance was, however, illegal. There is no room for the application of CLAASEN J's formulation in Diggelen v de Bruin and Another 1954 (1) SA 188 SWA in these circumstances….,.

I agree with counsel for Turner and Sons, that Dobrock (Pvt) Ltd's claim on specific performance and other subsequent relief related thereto should be dismissed.

The issue that rose for determination at the close of the plaintiff's case was whether the plaintiff had adduced enough evidence of the terms of the contract between the parties to enable a determination to be made as to what the plaintiff was entitled to be paid by the defendant.

The plaintiff filed summons on 8 January 2014 claiming payment of USD119,033=91 from the defendant for services rendered in terms of a sub-contracting agreement for work done, as well as interest thereon at the prescribed rate, and costs of suit. The plaintiff averred that the defendant undertook to pay for all plumbing work done upon receipt of payment from the principal for work specifically completed by the plaintiff. The plaintiff averred, further, that, despite being paid in full by the principal for the work done by the plaintiff, the defendant made a partial payment and has failed, refused, or neglected to pay the balance outstanding.

In its plea, filed of record on 26 February 2014, the defendant denied having any knowledge of the plaintiff and that any contractual relationship existed between it and the plaintiff. The defendant pleaded to having dealt with one Munyaradzi Chafa in his personal capacity and denied ever dealing with his company, the plaintiff. The defendant averred that it had paid Munyaradzi Chafa in full for all the plumbing work done in the construction of Gushungo Dairy. The defendant filed a counterclaim, a sum of USD29,603=38 in damages for the alleged malicious concealment of the drainage system by the plaintiff leading to a leakage and flooding which had to be rectified by the defendant.

At the hearing of the matter, the plaintiff led evidence through its Managing Director, Mr. Munyaradzi Chafa, who said that he has been working as a qualified Class 7 plumber for twenty one years, after undergoing training at the Polytechnic. He told the court that the plaintiff and the defendant have a contractual relationship, in terms of which the defendant subcontracted the plaintiff to do plumbing work, that is, all the piping, drainage, sewer and water reticulation at the factory.

Three interim payment certificates dated 14 June 2011, 14 October 2011, and 14 November 2011 were produced in support of the plaintiff's claim. The first one was addressed to Classic Project Managers, in connection with Gushungo Dairy Project, and headed “Plumbing Works I.P.C. number 1 for M & C Plumbers. The witness explained to the court that an I.P.C was an interim payment certificate. On I.P.C. number 1, it was certified that the plaintiff had completed plumbing works to the value of USD$44,333=54. The amount was due for ground floor drainage and extra drainage work done. Engineer T. Chitakara, of ProStruct Consulting Engineers, certified that he had checked and corrected the claim submitted by the plaintiff and recommended payment of the confirmed value of the work done. The I.P.C. included a detailed description of the measured work done by the plaintiff.

The second I.P.C. was dated 14 October 2011, and it was in regards to civil works, ground floor drainage and sewer reticulation. It certified that the amount provisionally payable was USD$43,669=87. It stated that I.P.C number 1 had been incorporated therein but that the work for ground floor drainage had been done twice because the pipes initially laid had to be changed from those originally used to stainless steel pipes. The last I.P.C. was dated 14 November 2011 and it was in regards to ground floor drainage and sewerage. It certified that the amount payable was USD$47,376=52 and that this sum excluded water reticulation.

The court noted that all the I.P.C's gave details of the material supplied by the plaintiff, and that they all stated that the plaintiff's submitted value for the work done had been checked and verified by ProStruct Engineers. The payment certificates all stated that the claim submitted by the plaintiff had been checked and corrected and recommended a certain sum for payment. The payment certificates also stated that the assistance of the quantity surveyor would be called for in coming up with the correct figure for final payment.

Mr. Chafa told the court that the total amount due to the plaintiff on the three I.P.C's was USD$135,000=. He produced a letter dated 3 July 2014. It is addressed to Classic Project Management, by ProStruct Consulting Enginers, and copied to the plaintiff and to Messrs Mahachi Gwaze & Partners, the quantity surveyors. ProStruct stated that it had been approached by the plaintiff, who had been a sub-contractor of the defendant, and that the total amount paid for all measured civil works at the Gushungo Dairy Project, i.e. roads and storm water, sewer reticulation, water reticulation and external drainage amounted to USD$1,044,954=12 (one million forty four thousand nine hundred and fifty four dollars and twenty four cents) Of that sum, the amount payable to the plaintiff for external drainage and sewer reticulation was USD$135,379=94 (one hundred and thirty five thousand three hundred and seventy nine dollars and ninety four cents). A breakdown of the total amount paid to the defendant was given which showed the sums paid for sewer reticulation, external drainage, water reticulation, bulk earthworks, roads and storm water drains. The sum for water reticulation was subject to certification by the water authority, ZINWA, or by the Quantity Surveyor.

The witness told the court that of the certified USD$135,379=94 due to it the defendant paid USD$59,095=67, leaving a balance outstanding of USD$119,033=91 which is claimed in the summons. Finally, the witness denied being responsible for the alleged malicious concealment of the drainage system and any resultant damages.

During cross examination, Mr. Chafa told the court that he had responded to an advertisement flighted by the defendant in a local newspaper and submitted the winning bid to be the defendant's subcontractor to plumbing works on the Gushungo Dairy project. He denied that he had initially worked for the defendant in a personal capacity and pointed out that the advertisement had specifically requested that registered companies only should apply for the sub-contract. He admitted to being paid allowances by the defendant for odd jobs which he did before the plumbing work started. He said that the project was delayed by five months initially.

Mr. Chafa told the court that his contract with the defendant was to do plumbing and to be paid everything minus five percent. He said that it was a fix and supply contract and that the agreement was oral.

The witness told the court that he had a cordial relationship with the previous management of the defendant and that they operated on trust and that trouble arose when the last manager of the defendant returned to China and the current manager took over. He denied the allegation of wrongdoing by allegedly conniving with the project engineers to procure certification of the value of the work done by the plaintiff, directly, which was an alleged anomaly due to the fact that payment could only correctly be certified as being due to the main contractor.

The court did not formulate the impression that this witness was incredible or that he was misleading it. Although he was a nervous witness and somewhat sarcastic at times, during cross examination, he did not change his testimony. The court believed him.

The plaintiff's second witness was Mr. Audily Chatora, the Project Manager of the Gushungo Dairy project.

He told the court that his role was to coordinate the functions of the main contractor and to approve and certify payments due to consultants and to the contractors. He said that the process of certification generally is that architects, engineers and quantity surveyors perform certain duties in the certification process. The role of the architect is to confirm that works done are fit and due for payment. The role of the engineer is to inspect, and certify as fit, and due for payment, works done by contractors. The role of quantity surveyors is to qualify and check the engineer's certificates and produce all encompassing certificates which are sent to the Project Manager, who checks and concurs or disagrees with the certified value of the work done. The Project Manager issues an approval certificate which the client relies on before paying.

The witness confirmed that ProStruct Engineers were the project engineers. He told the court that there was nothing inappropriate about the payment certificated which had been produced by the plaintiff as evidence in support of its claim. The fact that the plaintiff was mentioned by name on the payment certificate did not mean that the plaintiff would be paid directly for the value of the work done. The defendant would be paid directly, and was paid directly, and in full, for the total value of the work done, by the plaintiff and any other sub-contractors hired by the defendant. Mr. Chatora admitted that he authored the letter of 21 July 2014, addressed to Messrs Lawman Chimuriwo Legal Practitioners. In the letter, he stated that Classic Project Managers were not privy to the domestic arrangements between the plaintiff and the defendant. He did, however, confirm that the value of the work done by the plaintiff was USD$135,379=94 and that this valuation includes both materials and labour. The letter also states that any and all materials and plant which were procured and provided by the client on the ground cannot be credited to the plaintiff. Mr. Chatora told the court that the project managers did not have any queries regarding the interim payment certificates and that the penultimate certificate incorporated what had been certified previously in the interim certificates. He told the court that he was not privy to the quantum of remedial work allegedly done by the defendant. He confirmed that all the works that needed rectification had been drawn to the attention of the defendant.

During cross examination, Mr. Chatora told the court that he had certified the amount of money due to the plaintiff. He said that the I.P.C's were issued correctly because they were addressed to the project manager even though it was irregular that they referred to a subcontractor directly and by name. He pointed out that the penultimate certificate, number 10, which was admitted into evidence, showed that all payments due were to be paid directly to the defendant, the main contractor, and not to the plaintiff.

The witness stressed that the role of the engineer is to authenticate the work done, to design, monitor, inspect and certify work done, to quantify the work done, and to certify its value. On being asked how the engineer could possibly have known what rate to use in quantifying the work done by the plaintiff, not being privy to the terms of the contract between the plaintiff and the defendant, the witness told the court he was happy with the quantification because there are three levels of price checks and that the certification of the value of the plaintiff's works passed all three levels of checks so the project manager found no reason to query it. Finally, Mr. Chatora told the court that if the client had bought any material or supplied any plant and equipment, the value would have been automatically deducted when the I.P.C's were issued, because their accounting system was designed to be self-leveling, that is, to deduct value due to the client before a final valuation of work done is certified.

The plaintiff's second witness came across as a poised and confident professional who exhibited useful knowledge about the roles played by the different players to the certification process. The court was grateful to him for the insight that he provided. He did not exhibit bias towards any party.

The plaintiff then closed its case.

The defendant then applied for dismissal of the plaintiff's case on the basis that the plaintiff's claim, being based on contract, had not been established because insufficient evidence had been led to establish the terms of the contract, its operation, whether the contract had been breached, the amount due to the plaintiff, what had been paid to the plaintiff and the balance due - if any. It was submitted, on behalf of the defendant, that the question to ask at the close of the plaintiff's case is whether the plaintiff had established a prima facie case against the defendant.

The definition of prima facie is literally “at first glance”, or, “on the face of it”, which means, on initial examination or consideration. It means that the plaintiff's case must be clear from the first impression, legally sufficient, or sufficient in law to establish a case or a fact, unless disproved. In my view, establishing a case “at first glance” implies that the degree of scrutiny of the evidence adduced by the plaintiff is of a lower standard at this stage.

Let us turn to the law for guidance on what ought to happen when a defendant applies for discharge at the close of the plaintiff's case.

It is accepted that after a plaintiff has closed its case, a defendant, before commencing his own case, may apply for dismissal of the plaintiff's claim. Should the court accede to this application, the judgment will be one of 'absolution from the instance'. See HERBSTEIN and VAN WINSEN, The Civil Practice of the Supreme Court of South Africa 4th ed…,. A decree of absolution from the instance is derived from Roman Dutch law. It is the appropriate order to make when, after all the evidence, the plaintiff has not discharged the ordinary burden of proof. If, at the end of the plaintiff's case, there is insufficient evidence upon which a reasonable man could find for him, the defendant is entitled to absolution. See LH HOFFMAN, DT ZEFFERT, The South African Law of Evidence 4th ed…,.

It has also been said that the term 'absolution from the instance' is used to describe the finding that may be made at either of two distinct stages of trial. In both cases it means that the evidence is insufficient for a finding to be made against the defendant. The defendant will be 'absolved from the instance', if, upon an evaluation of the evidence as a whole, the plaintiff's burden of proof has not been discharged. See SCHWIKKARD VAN DER MERWE, Principles of Evidence 3rd ed…,.

Absolution from the instance means that the plaintiff has not proved a case against the defendant; and it is to be distinguished from a positive finding that no claim exists against the defendant.

Where a defendant has been absolved from the instance, the plaintiff may re-institute the action provided that it has not prescribed. The rationale behind absolving a defendant from the instance is that, due to the insufficiency of the plaintiff's evidence and failure to establish an essential element of its claim, the defendant should be spared the trouble and the expense of continuing to mount a defence to a hopeless claim.

In the case of Lourenco v Raja Dry Cleaners & Steam Laundry (Private) Limited 1984 (2) ZLR 151 (S)…, the Supreme Court had occasion to discuss the various cases which ought to be relied on in determining an application for absolution from the instance. The first case to be referred to be that of Mazibuko v Santam Insurance Co Ltd and Anor 1982 (3) SA 125 (AD)…, where the court said…,:

"In an application for absolution made by the defendant at the close of the plaintiff's case, the question to which the Court must address itself is whether the plaintiff has adduced evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff; in other words, whether the plaintiff has made out a prima facie case.”

The next case referred to by the Supreme Court is that of Gascoyne v Paul and Hunter 1917 TPD 170 where the court said…,:

"The question therefore is, at the close of the case…, was there a prima facie case against the defendant, Hunter; in other words, was there such evidence before the Court upon which a reasonable man might, not should, give judgment against Hunter?”…,..

The Supreme Court then discussed the celebrated case of Supreme Service Station (1969) (Private) Limited v Goodridge (Private) Limited 1971 (1) RLR 1…, as one of the leading cases on the question of when absolution from the instance ought to be granted at the close of the plaintiff's case - before the defence case is opened.

It is trite that the court cannot, meru motu, consider whether absolution must be granted. It is an option which is available to the defendant on application. It was held, in that case, that when an application for absolution from the instance is made at the end of the plaintiff's case the test is: what might a reasonable court do, i.e. is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff; if the application is made after the defendant has closed his case the test is: what ought a reasonable court do….,.

The difference in the two tests, in my view, is in the differing levels of proof required in order to discharge the onus on any party who will have made any allegation, be it in the plaintiff's claim, or in the defence proffered by the defendant. At the close of the plaintiff's case, the burden of proof on the plaintiff is to make a prima facie case (on the face of it). The standard of proof is lower (what might the court do - the court may or may not). At the close of the defendant's case, in my view, the standard of proof is higher. Having heard the plaintiff and the defendant's evidence, the court must decide what the balance of probabilities favors; it must decide what it ought to do - not what it may or may not do. In deciding what a court may or may not do, there is an implication that the court may make an incorrect decision because, at the close of the plaintiff's case, it will not have heard all the evidence.

Counsel for the plaintiff referred the court to two recent cases of the High Court which were instructive and persuasive. The first case, Nobert Katerere v Standard Chartered Bank Zimbabwe Limited HB51-08…, exhorted a court to be:

“…, chary of granting absolution at the close of the plaintiff's case. The court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not, at this stage, evaluate and reject the plaintiff's evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance at the close of the plaintiff's case may be granted if the plaintiff has failed to establish an essential element of his claim - Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A); Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26 (A); Sithole v PG Industries (Pvt) Ltd HB47-05.”

The second case that counsel for the plaintiff referred the court to was that of Jackson Muguti v Wilson Sunduza HH45-11.

It has been said that Judges should be loathe to decide upon questions of fact without hearing all the evidence on both sides. See Theron v Bher 1918 CPD 443, JUTA, J…,.

In the case of United Air Charters v Jarman 1994 (2) ZLR 341 (S), a Supreme court case, it was said that the test for determining whether a defendant should be absolved from the instance is now settled in this jurisdiction. The test was set out…, as follows:

“…,. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.”

My interpretation of the test to be applied to the question of whether to grant absolution from the instance to a defendant at the close of the plaintiff's case is as follows:

1. The first question to be considered is whether there is any evidence in, at the close of the plaintiff's case, upon which a court, directing its mind reasonably to such evidence could or might find for the plaintiff?

2. The second question to be asked is whether there is any special consideration or reason why the court should reject the evidence adduced on behalf of the plaintiff (for example glaring inconsistencies, or unacceptable variance with the pleadings filed of record)?

3. The third question that may be asked is whether the plaintiff has failed to adduce any evidence, or adduced insufficient evidence, to establish an essential element of its claim.

4. Lastly, whether, an overall assessment of all the evidence adduced on behalf of the plaintiff, the pleadings filed of record, the annexures, the exhibits, all the discovered documents, coupled with the viva voce evidence, falls short of establishing the plaintiff's case, on the face of it (prima facie).

On the question of the discharge of the burden of proof in a civil case, especially in an application for absolution from the instance, see Peter Lewis Bailey NO v Trinity Engineering (Private) Limited, Aguy Clement Georgias & Harry. P. Pilley HH181-02 (an application for absolution from the instance which quoted Supreme v Fox & Goodridge with approval); and Elfrolou (Private) Limited v Muringani HH122-13 (an application for absolution from the instance in which the applicable test is discussed at length).

It is my considered view that, in this case, there is evidence upon which this court, directing its mind reasonably to such evidence, could or might find for the plaintiff. The defendant's submission that the plaintiff failed to establish that there was a contract between the parties is belied by its own express admission to the nature and identity of the plaintiff and of the existence of a contractual relationship between the parties. The admission forms part of the joint pre-trial conference minute filed of record on 8 July 2014 and admitted into evidence at record pages 30-31 of the plaintiff's bundle of documents.

In my view, it cannot be said that there is no evidence of the terms of the contract between the parties. Mr. Chafa told the court that the contract was a verbal one to fix and supply and provide plumbing services of which the plaintiff would be paid the full value less five percent which would accrue to the defendant, the main contractor. That is evidence of the terms of a contract on which a court, directing its mind reasonably could or might find in favour of the plaintiff. It is therefore disingenuous, in my view, to aver that there was no evidence to establish what the parties agreed, what was to be paid to the plaintiff, whether anything was actually paid, and what the balance outstanding was. The plaintiff submitted Interim Payment Certificates, whose authenticity was not disputed by the defendant, and which show how the sum of approximately USD$136,000= is computed, including details of materials allegedly supplied and work done.

The evidence of Mr. Chatora was clear and unequivocal in regards to the certification of the value of the work done by the defendant as a whole and by the plaintiff in particular. The plaintiff admitted to being paid an approximate sum of USD$59,000= and stated that the balance due to it is USD$119,033=91 as claimed in the summons. I found no special consideration for rejecting the evidence adduced on behalf of the plaintiff. In my view, the plaintiff did not fail to establish any essential element of its claim. Both the plaintiffs' witnesses were found to be credible by the court. There is no reason why their evidence should not be believed by the court - on the face of it. There was no unacceptable variance with the pleadings or glaring inconsistencies. All in all, the court finds that the plaintiff established its claim on a prima facie basis.

The defendant's application for absolution from the instance is not sustainable. It is baseless and without foundation. It is dismissed. Costs shall remain in the cause.

Even assuming, as the plaintiff alleges, that the donation for the immovable property was orally made, there is no sufficient evidence to support this position.

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.

I propose to deal with the matter by examining each of the issues in turn based on the evidence adduced by the parties.

What were the terms of the written agreement?

The pertinent terms of the contract are contained in clause 2 of the written agreement. The clause is in the following terms;

“2. The parties have agreed on the following terms:

(i) The first agreed deposit payable on signing of this agreement shall be $300,000,000= (old currency) (Three Hundred Million Dollars) shall be paid in cash i.e.

(a) $192,000,000= directly to Legacy Financial Services, No.13 Van Praagh Avenue, Milton Park, Harare to clear a debt incurred with them by Mr Ndenda; and

(b) A cheque in favour of Old Mutual Properties for $50,000,000=. The balance of $58,000,000= shall be paid in cash to Mr Ndenda on the day of signature of this agreement.

(ii) The balance of $400,000,000= shall be paid at a rate of $200,000,000= (two hundred million dollars) after the first two weeks and the last payment from the third week of the second payment or at such time as shall be agreed by the parties and in a manner determinable and agreed and documented by the parties.

(iii) The parties to this agreement agree that ownership of the said vehicle shall pass on to the buyer on signing of this agreement of sale.”

The first two sub-clauses do not, in my view, require any examination as they are clear. They deal with the terms of the payment and it is obvious from the evidence of the parties that each of the parties understood the times within which the purchase price had to be paid by the plaintiff.

It is the clause providing for the passing of ownership that is at the root of the dispute.

Each of the parties is claiming the right of retention of the vehicle on the basis that it is the owner. Any rights that the plaintiff claims to ownership of the same can only have been acquired by virtue of the agreement of sale, and, specifically, clause 2(iii). The defendant, on the other hand, would claim that he owned the vehicle and that ownership of the same was not transferred to the plaintiff by virtue of the written agreement.

According to the plaintiff, the agreement in respect of the sale by the defendant of the vehicle to the plaintiff was a credit sale, and, as a result, bearing in mind the provisions of clause 2(iii), ownership passed when the agreement was signed and delivery made to the plaintiff.

In written submissions filed on its behalf, the plaintiff poses a further question as to whether, in the event that ownership passed on 6 June 2006, it would revert to the defendant assuming that the defendant has proved breach of the written agreement on the part of the plaintiff.

The defendant's view is however that the agreement was not a credit sale and that ownership did not pass to the plaintiff on delivery of the vehicle. It is accepted by the defendant that the agreement was not one for hire purchase. The stance by the defendant is that what was concluded was not a credit sale but a sale by installment and that, as such, ownership in the vehicle did not pass to the plaintiff until the full purchase price would have been paid. In his evidence, the defendant's stance was that ownership in the vehicle never passed to the plaintiff.

The defendant did not, in pleading to the summons and declaration filed and served upon him by the plaintiff, allege or aver that the agreement was an instalment sale governed by the provisions of the Act.

In the written submissions, the defendant accepts that ownership had passed to the plaintiff but that the agreement was cancelled due to breach on the part of the plaintiff.

This is one of those matters where the pleadings do not bring out clearly and concisely the facts upon which the cause of action is based.

It would have been appropriate for the plaintiff to have pleaded that ownership had passed in terms of the agreement of sale and the defendant would then have responded appropriately. The question of whether or not ownership had passed is central to the resolution of the dispute and should have been one of the issues extracted for trial. Unhappily it was not. However, with the defendant having accepted that ownership did pass, it then becomes necessary to determine if the agreement that was concluded was an instalment agreement as contended by the defendant.

In the written submission made on his behalf, it appears that a concession is made that ownership did pass but that the agreement, being an agreement of sale by installment, then, in the event of breach, the defendant would be entitled to the return of the vehicle.

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 defendant seeks reliance on a passage from WILLIE and MILLIN's Mercantile Law of South Africa 16ed…, which is as follows;

“If credit is given for part of the purchase price on condition that the balance is paid in cash, the sale is one for cash and delivery does not pass the ownership. It is otherwise if the sale is on credit for there the ownership of the goods passes to the buyer on delivery to him though he has not paid the price.”

The passages quoted by counsel for the defendant refers to the cases decided in South Africa but I have not been referred to any authorities in this jurisdiction dealing with installment sales other than those governed by the Hire Purchase Act in our jurisdiction. At page 164 of their book, WILLIE and MILLIN's Mercantile Law of South Africa 16ed, the learned authors state:

“Installment sale agreements are defined as agreements of sale where ownership passes on delivery and the price is to be paid in instalments, two or more of which are payable after delivery, and the buyer is prohibited from alienating or encumbering the goods sold until the purchase price has been paid in full, or, the full purchase price becomes payable if the buyer alienates or encumbers the goods sold, or the seller is entitled to return of the goods if the buyer fails to comply with any one or more of the provisions of the contract: section 1.”

A closer reading of that passage leads me to conclude that the learned authors were discussing a section of the South African Hire-Purchase Act.

That passage cannot have the meaning ascribed to it by counsel for the defendant that any agreement within this jurisdiction where payment has been provided for in instalments is an installment sale as provided for by the Hire Purchase Act of South Africa.

As I have mentioned earlier on, our own Hire Purchase Act [Chapter 14:09] makes reference to instalment sale agreements. These are defined, in section 3 of the Hire Purchase Act, as follows;

“Instalment sale agreement means any contract of sale under which -

(a) The ownership in the goods sold passes either before or upon delivery; and

(b) The purchase price is to be paid in installments of which one or more are payable after delivery; and

(c) The seller is entitled to the return of the goods sold if the purchaser fails to comply with any of the provisions thereof;

and includes any other contract which has, or contracts which together have the same import, whatever form such contract or contracts may take.”

A perusal of the Hire Purchase Act reveals that it is meant to apply to specified agreements whose provisions are regulated by the Act. A feature of these agreements is that there should be reservation about the passing of ownership to the buyer. Whereas in an agreement for Hire-Purchase the purchaser obtains ownership after payment in full of the purchase price, in an instalment sale agreement, the Hire Purchase Act provides that ownership passes to the purchaser on delivery whether or not an installment has been paid. In the event of breach on the part of the purchaser the seller is entitled to return of the goods that are the subject matter of the sale.

It is the submission of counsel for the defendant that in defending the claim, by implication, the defendant claimed the return of the vehicle when the plaintiff failed to pay the last instalment.

I do not think that the submission can stand scrutiny.

The agreement executed by the parties did not provide that in the event of breach on the part of the plaintiff ownership in the vehicle would revert to the seller. Instead, the plaintiff was granted unreserved right to ownership upon the signing of the agreement. No conditions were placed upon the passing of such ownership and it is my view that the conditions upon which the parties intended to perform their contract is different to the conditions or provisions governing an installment sale agreement as stipulated in the Hire Purchase Act. In an instalment sale, even if ownership passes, there is a reservation on the passing of such ownership and the Hire Purchase Act provides for the seller to be able to recover the property which is the subject of the contract upon breach by the purchaser. I do not regard the agreement as falling in the category or form of agreements that are described in the Hire Purchase Act as instalment sale agreements.

The next question is whether this agreement can be termed a credit agreement as claimed by the plaintiff.

Neither of the legal practitioners who appeared before me was able to point me to an authority in this country where the court had to decide what constitutes a credit sale. I have not been able myself to find one within this jurisdiction.

According to CHRISTIE, Business Law in Zimbabwe…, the contract for sale does not always state whether it is for cash or credit so the law presumes that the sale is for cash, which presumption is not rebutted by the mere fact that the seller has made delivery without receiving immediate payment.

In casu, ownership was to pass to the plaintiff upon the signing of the agreement. It was therefore not a cash sale. The agreement itself does not, despite that ownership is to pass to the plaintiff upon signature, state that the agreement is one for credit or that the plaintiff has been given credit for the payment of the purchase price. In the absence of the parties having made specific averment as to whether or not the contract is one for credit, the court would have to examine the contract and deduce what the intention of the parties was.

I was referred to a plethora of authorities from South Africa. It is clear from the South African authorities that I have had to consider that the courts have not always found it an easy task to decide whether or not an agreement is one for credit or when it is that ownership is said to have passed. It appears that the matter first received attention from the courts in South Africa in the cases of Daniels v Cooper (1 E.D.C. p. 174), Sadie v Standard Bank (7 J. 87), and Quirk's Trustees v Assignees of Liddle & Co (3 J. 322) which are referred to in Laing v South African Milling Co. Ltd 1921 AD 387.

I have not been able to access the earlier authorities. It would appear however that those cases are the ones that settled the law as regards sales on credit in South Africa according to the dicta in Laing v South African Milling Co. Ltd 1921 AD 387. JUTA JA…, summarized the law thus:

“The authorities in our law were fully considered in the cases of Daniels v Cooper (1 E.D.C. p.174), Quirk's Trustees v Assigness of Liddle & Co. (3.J.322.), and Sadie v Standard Bank (7 J.87), and are to this effect; that, on a sale of movables followed by delivery the property does not pass until the purchaser has paid the money or secured the seller for the same, or, unless the sale is on credit. And there is ample authority for the further proposition that in the case of a sale where nothing is said as to ready money or credit and the goods are delivered to and taken away by the purchaser, the property does not pass; in other words, delivery to the purchaser and his taking away of the goods raise no presumption of the sale being on credit. On the contrary, the presumption is that the sale was for cash.”

Laing v South African Milling Co. Ltd 1921 AD 387 was followed by the case of Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another 1973 (3) SA 685 AD, in which the court found that even though there had been delivery to the purchaser and payment had been made by cheque despite the fact that the seller was aware that the vehicle was being sold to another person by the purchaser, the sale was for cash and credit had not been given.

In a cash sale, payment of the purchase price is made against delivery of the merx and where payment is made by cheque, even where it is drawn against a Bank in a different town, it is a cash sale with payment being made only when the cheque has been cleared. Even in these circumstances if the cheque is not met the property does not pass.

On the other hand, a credit sale is one where the purchaser has been given time for payment of the purchase price, which time has been postponed for a substantial period. Where the period for payment has been postponed for an insubstantial period, the courts have held that the sale was for cash and not credit and that therefore ownership had not passed. The courts in South Africa have said that a period of ten days would be a reasonable period to hold that a sale is for cash where the seller has made no attempt to collect payment from the purchaser. A period in excess of that ten days is sufficient for the courts to find that credit had been afforded to the purchaser and that therefore the property had passed. The rule is based on the requirement in the Insolvency Act that an unpaid seller for cash must claim his goods within ten days of delivery.

In terms of our own Insolvency Act [Chapter 6:04] a seller who has not been paid in full after delivery, where the purchaser has gone insolvent, is allowed to reclaim his property if he has given notice within ten days of delivery to the insolvent or the trustee of his intent to reclaim his property.

The principles that have been stated by the courts, therefore, are to the effect that unless there is a specific provision to the contrary, every sale is presumed to be for cash - even where delivery has been made. Where the seller has not granted credit to the purchaser or has not accepted security for payment by the purchaser, the sale is for cash unless the seller has not given the purchaser a period which is not in-substantial for payment of the purchase price.

As to whether or not the seller wanted to pass ownership, the intention of the parties can be gathered from the facts.

Where the seller contracts for passing of the property to the buyer, where payment in full has not been made nor secured, then it is a sale on credit and ownership would pass upon delivery of the goods.

In an instalment sale, even if ownership passes, there is a reservation on the passing of such ownership and the Hire Purchase Act provides for the seller to be able to recover the property which is the subject of the contract upon breach by the purchaser.

In the instant case, the contract provided for the unreserved passing of the property to the purchaser upon the signing of the agreement by the parties. There can be no other meaning to be ascribed to the clause “that ownership shall pass to the plaintiff upon the signing of the agreement.” The wording is clear and unambiguous and this court cannot ascribe any other meaning to that clause. There was no provision for ownership to revert to the defendant in the event of any alleged breach on the part of the plaintiff. There was no provision for the seller to reclaim the vehicle in the event of breach on the part of the buyer. The features of the contract between the plaintiff and the defendant have all the hallmarks of a credit sale.

I can understand the difficulties that counsel for the defendant faced in trying to argue that it was a cash sale. It was not a cash sale.

As to whether it can be termed an instalment sale, I believe the onus was on the defendant to place before the court facts such as would make me conclude that what I had before me was such. That was not done.

Instead, what the facts show is an agreement where one of the parties sold his property to a buyer where the buyer was afforded an opportunity to pay the balance of the purchase over a period in excess of ten days. The only conclusion that the court can come to in such a situation is that the defendant wished to pass ownership to the plaintiff and I find that indeed ownership passed.

In so far as the first agreement is concerned, the defendant stated that he had not been paid for the second instalment.

The plaintiff has provided vouchers allegedly signed by the defendant when he was paid the $200,000 which was due under the second installment. The vouchers bear what the defendant confirms is his signature but he claims that the plaintiff superimposed his signature on a document which he had not signed. The documents that were tendered in evidence were all originals. The signature itself has not been disputed but the plaintiff did not adduce evidence to show how his signature was affixed to an original document.

I find that the documents are genuine and show that the defendant was paid in full for the second instalment.

In so far as the payment by the plaintiff of the balance of the purchase price is concerned, it is surprising that the defendant did not at any stage prior to the plaintiff bringing these proceedings ever call upon the plaintiff to rectify its breach - if it was in breach.

Despite such alleged breach, having delivered the vehicle to the plaintiff when the agreement was executed, the defendant never demanded the return of the vehicle until the plaintiff sued for the cancellation of the second agreement on the basis that the defendant was in breach thereof.

I turn now to the terms and conditions of the verbal agreement.

According to the plaintiff, the verbal agreement concerned the buy-back of the vehicle by the defendant. The defendant's position however is that because of the breach of the terms of the written agreement the parties agreed to cancel the written agreement and for the defendant to pay back the sum of $570,000 which was the total amount paid by the plaintiff and interest and for the return of the vehicle to him.

I have already found that there was no breach on the part of the plaintiff in paying the installments under the written agreement.

It would therefore make sense for the plaintiff to state that the defendant offered to buy back the vehicle from the plaintiff at the increased price of $3 million, and that, as a result, an oral agreement was concluded whereby the defendant had to pay a deposit of $700,000. This is the only explanation for the deposit of $570,000 in the plaintiff's account by the defendant. According to the plaintiff's witness the deposit of $700,000 should have been made by the 17 July 2006. The defendant was given until 31 July to pay the balance on the deposit and when he failed the plaintiff cancelled the agreement between the parties.

In my view, the probabilities of the case favour the plaintiff's version.

It was in the business of selling vehicles and it would have no problems to sell back to the defendant a vehicle that had belonged to him. All it wanted was to make a profit out of the process. The version by the defendant that the amount deposited into the plaintiff was repayment of the amount paid by the plaintiff under the failed agreement of sale did not ring true.

On the defendant's version, the amount constituted repayment of the initial $300,000 paid by the plaintiff when the agreement was signed and another $100,000 which was paid instead of $200,000 as had been agreed. The additional $170,000 would then constitute interest. The defendant was unable to say what the rate of interest agreed was. As a result, he was not able to state with any conviction what the amount he had deposited represented.

It also turned up in the evidence that the plaintiff had in fact had the vehicle repaired and serviced. The plaintiff had required the defendant to pay for the costs of such repairs under the verbal agreement. The defendant admitted that the vehicle was indeed repaired and he had not reimbursed the plaintiff for the costs thereof.

It would be inconceivable, in my view, for the plaintiff to agree to an arrangement where it returns the vehicle to the defendant against a payment of $570,000. It would, at the least, demand that it be reimbursed for the sums expended on the vehicle, which, according to the evidence of the plaintiff's witness, were far in excess of $570,000.

The only verbal agreement entered into, in my view, is the one that the plaintiff told the court and the terms of which it was able to explain. The defendant was unable to state with certainty the terms upon which he was to have the vehicle returned to him by the plaintiff. He was unable to prove the existence of the verbal contract that he alleged had been formed by the parties….,.

Overall, I find that the version rendered by the plaintiff is to be preferred to the evidence of the defendant and I find for the plaintiff on all the issues. This means that the plaintiff succeeds in its claim and the counter-claim fails.

In the premises I make an order in the following terms:

It is ordered as follows:

1. The verbal agreement concluded between the plaintiff and the defendant on 4 July 2006 be and is hereby cancelled.

2. The plaintiff shall pay to the defendant the sum of $770,000 being the balance due on the purchase price of the vehicle and reimbursement of the amount deposited into the plaintiff's account by the defendant in respect of the second agreement.

3. The defendant's counter claim is hereby dismissed.

4. The defendant shall pay the costs of suit.