Clause 40.2 provides as follows-;

“40.2 This agreement constitutes the whole of the agreement between the parties and no variations or collateral agreements shall be of any force or effect unless and until recorded in writing in a document or series of letters signed by the parties.”

This means any variation or alteration of the terms of the agreement must be by agreement between the parties. The parties' agreement can be proved by each party signing the variation or collateral agreement or series of letters in which such an agreement can be found. In the absence of the above, the parties are bound by the terms of the original agreement.

The facts giving rise to this application are largely common cause. They are as follows:

The applicant is in the farming business, operating a farm in Chakari. In October 2006, it set out to acquire a centre pivot irrigation system for its farm. Its Managing Director, duly authorized to act on behalf of the applicant, approached one Douglas Chihuri (“Chihuri”) who was selling a center pivot system on behalf of the respondent.

An agreement of sale was concluded between the plaintiff and Douglas Chihuri, acting for his principal, regarding a 140HA center pivot system belonging to the respondent.

A purchase price in the sum of $12,000,000 and installation charges of $3,000,000 were agreed upon.

Pursuant to the agreement, an invoice was made out to the applicant giving the total amount payable as $15 million.

It was made clear to Douglas Chihuri that payment would be made through the African Banking Corporation and would take a few weeks to be processed.

A month later, payment was effected in the agreed sum. This was made in favour of Chartered Enterprises, Douglas Chihuri's trading mantle.

A week after payment had been made, the applicant met with the respondent to discuss the details of the delivery of the centre pivot. Douglas Chihuri was in attendance. At the meeting, the respondent unilaterally increased the purchase price of the centre pivot. Instead of holding the respondent to the agreed price, the applicant agreed to pay an additional $5million and executed an acknowledgement of debt to this effect.

The seller also appended his signature to the acknowledgement. So did Douglas Chihuri.

Payment of the $15 million was then made to the respondent according to his instructions. Still acting as the seller's agent, Douglas Chihuri agreed to have the centre pivot delivered to the applicant.

The respondent did not deliver the centre pivot, prompting the applicant to bring this application seeking an order compelling the respondent to deliver a 140HA center pivot to it.

In opposing the application, the respondent denies knowledge of what transpired between the applicant and Douglas Chihuri, but admits that he was, at that time, selling two centre pivots, the details of which he gave to Douglas Chihuri. He further confirmed, that, in time, Douglas Chihuri advised him that he had secured a buyer for one of the centre pivots. He also confirmed that he received the sum of $14 million dollars for the centre pivot that Douglas Chihuri had sold to the applicant on his behalf and that a balance in the sum of $5 million would be paid in due course.

It was also suggested to him that a further $15 million would be paid for the same pivot after the applicant had sold his beasts or that he could collect the beasts himself as further payment for the sold pivot. He however opted for a cash payment. He did not agree to the delivery of the pivot in the absence of full payment and did not deliver the center pivot because he did not receive the full purchase price of $35 million.

At the hearing of the application, it emerged that the respondent had sold the centre pivot, the subject of this dispute, after being served with this application but before the matter was determined.

This emerged from supplementary affidavits filed by both parties days before the hearing and which were filed with my leave. I granted leave to the parties to file the supplementary affidavits as, in my view, they air the full dispute between the parties and bring out the real issue for determination in this matter.

In his supplementary affidavit, the respondent deposed, that, after the filing of the above application, a director of the applicant caused his arrest on allegations of fraud. It was alleged, in the criminal proceedings, that the respondent had fraudulently misrepresented to the said director that the centre pivot was available for sale when he knew that it was not as it was to be sold to a third party. The respondent was duly prosecuted but was acquitted at the close of the trial.

In it own supplementary affidavit, the applicant admitted the facts given in the respondent's additional affidavit but urged me to find the contents of the affidavit inadmissible on the basis of irrelevancy.

Before proceeding further, I will dispose of the admissibility of the contents of the affidavit.

In my view, once a court grants leave to a party to file an additional affidavit, that grant of leave necessarily implies that the contents of the affidavit are admissible. Supplementary affidavits should only be filed if their contents are relevant to the dispute before the court.

It is a general rule of evidence that irrelevant evidence is inadmissible.

Section 26 of the Civil Evidence Act [Chapter 8.01] provides that evidence that is irrelevant or immaterial and cannot lead to the proving or disproving of any point in issue shall not be admissible.

This section is simply a codification of the position at common law which holds that all facts relevant to the issue in legal proceedings may be proved and where a legally recognized exception to this rule is not invoked, relevancy remains the fundamental rule governing the admissibility of evidence.

As indicated above, this is the rule that a court summarily employs before granting leave to file additional affidavits in motion proceedings.

In my view, the rule against admissibility of irrelevant evidence is rooted more in common sense than in a legal principle. It is a common sense approach by the court to govern that which it will accept or reject lest it be inundated by evidence of all facts surrounding a dispute and trials will take longer than is necessary to resolve if the parties were left at liberty to drag in all they wish or think is necessary.

It however remains clear that the rule against irrelevant evidence is against evidence of facts that have little to do with the issue in dispute.

In casu, I was of the view that the disposal of the centre pivot pending litigation is the issue in dispute and thus facts tending to prove the disposal cannot be irrelevant. Further, and in any event, the facts sought to be rendered inadmissible by the applicant are common cause and thus no party will be prejudiced by its admission into evidence.

It is on the basis of the above that I ruled admissible the contents of the two supplementary affidavits.

I now turn to consider the merits of the application.

The issues that fall for determination in this application are mainly two in my view:

(i) Firstly, I have to determine whether or not there was an agreement between the applicant and the respondent for the sale of the centre pivot for $20 million.

The respondent has sought to argue that the agreed purchase price was $35 million. He deposed in his opposing affidavit that after the applicant had paid the first $15 million and had promised a further $5 million, by way of the acknowledgement of debt; the parties agreed to a further payment of $15 million after the applicant had sold its beasts.

Relying on these averments by the respondent, counsel for the respondent argued that the correct purchase price of the center pivot cannot, in the circumstances, be ascertained without the leading of oral evidence and thus the application should fail on this basis.

It is common cause that Douglas Chihuri, acting as the agent of the respondent, agreed to sell the centre pivot to the applicant for $15 million. The parties agreed, later, to vary the purchase price to $20 million, when, after making payment of the initial purchase price, the applicant promised, by way of an acknowledgement of debt, to pay an additional $5 million.

The agency of Douglas Chihuri to represent the respondent, whilst challenged in the opposing affidavit, was not advanced in argument.

In my view, counsel for the respondent was well advised not to advance the argument in view of the affidavit by Douglas Chihuri and the fact that the respondent accepted the sum of $15 million paid by the applicant through Chihuri.

By his own conduct, of accepting the payment, the respondent put paid to whatever argument he may have had against the agency of Douglas Chihuri. By this conduct, he gave out and confirmed that Douglas Chihuri was indeed selling the centre pivot on his behalf and is thus bound not only by what Douglas Chihuri did but by what he also personally did.

If there was any doubt about the agency of Douglas Chihuri, the respondent personally removed that doubt by accepting the part payment of the purchase price and agreeing with the applicant that the balance now stood at $5 million, thereby putting beyond doubt that the purchase price was $20 million.

In my view, he is thus condemned by his own actions as revealed by the papers filed of record.

I am aware that the respondent has repeatedly and vehemently denied, in his affidavit, that the purchase price of the centre pivot was $20 million.

It is my view that it is not the number of times a denial is made or the vehemence with which a denial is made that will create a conflict of fact such as was referred to by McNALLY J…, in Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 (H) and in all the other cases that have followed.

A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.

In casu, I believe the papers filed of record present ready answers to the questions posed by the respondent. He argues that he wanted more than the $20 million that the applicant contends was the agreed purchase price.

(a) Firstly, the papers filed of record clearly show that the respondent's agent negotiated and agreed to the sum of $20 million.

At law, the actions of the agent bind the principal - even if the agent is breaching his own contract of agency with the principal.

There is thus no need to lead evidence to show what the terms of the agency contract were regarding the purchase price he had to seek. The respondent, through the agency of Douglas Chihuri, agreed to $20 million that the applicant has paid in full.

(b) Secondly, it is common cause that the respondent received the sum of $15 million dollars through his agent, and, thereafter, acknowledged, in writing, that the balance due was $5 million.

He did not, at that stage, query the fact that the balance was only $5 million instead of $20 million according to his assertions.

By appending his signature to the acknowledgement of debt, which clearly indicates the balance as $5million, he gave out to the applicant that he agreed with the applicant in this regard.

Thus, in my view, on the basis of the papers, it is clear that the total purchase price agreed to between parties was in the sum of $20 million which was paid in full.

I find nothing on the papers to indicate that the parties may have agreed to a price other than $20 million.

The only suggestion that this may be so is the averment by the respondent, in his opposing affidavit, to this effect. It is not backed up by any other evidence. It is contradicted by the facts that are common cause and is thus clearly simply meant to introduce an illusory conflict where none exists.

Aligned to the alleged conflict of fact on the agreed purchase price is whether the respondent agreed to deliver the centre pivot before payment of the purchase price in full.

Again, counsel for the respondent urged me to find that I could not resolve this dispute in the absence of oral evidence.

I am afraid I cannot agree.

Having found that the agreed purchase price was $20 million which was paid in full, it matters not, in my view, if the respondent agreed to deliver the centre pivot as delivery is a legal consequence following the conclusion of a sale agreement. It cannot be the subject of a separate agreement between the parties.

It is therefore my finding, that, there is no material conflict of fact in this application.

The parties concluded an agreement of sale of the centre pivot for the sum of $20 million which has since been paid in full. The respondent is bound by the law of sale to deliver the centre pivot to the applicant.

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

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

The suit was defended.

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

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

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

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

The matter was thus set down for trial before me.

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

This was duly done.

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

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

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

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

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

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

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

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

I did not believe the plaintiff in this regard.

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

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

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

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

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

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

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

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

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

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

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

Ronald Mpopoma's evidence was to the following effect;

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

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

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

After this witness, the defendants closed their case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the result, I make the following order:

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the defendants costs.

I wish to comment briefly on the alleged oral agreement between the applicant and the first respondent as claimed by the first respondent; she alleged that the applicant effectively sold the property back to her for $15,000,000 but that he frustrated her efforts to pay him the said amount. The applicant disputes that such an agreement was ever entered into. The second sentence in clause 5 of the agreement of 15 November 1996 reads:

“This is the only agreement the parties will go by and no other whatsoever unless this agreement is expressly and in writing otherwise amended or replaced.”

The first respondent cannot thus purport to rely on an alleged agreement that is expressly excluded on account of it not being in writing by the agreement of 15 November 1996.

Article 39 of the Vienna Convention on the Law of Treaties (1969) states the general rule regarding the amendment of treaties, as follows:

“A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide.”

Part II of the Vienna Convention on the Law of Treaties (1969) regulates the conclusion and entry into force of treaties, and, by dint of Article 39, it also governs the conclusion and entry into force of treaty amendments. Article 11 prescribes the means of expressing consent to be bound by a treaty and provides that:

“The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.”

Article 24 of the Vienna Convention on the Law of Treaties (1969) governs the entry into force of treaties and, in its relevant portions, stipulates that:

“1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.

2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States.”

Taken together, these provisions of the Vienna Convention on the Law of Treaties (1969) illustrate the flexibility inherent in the conclusion and entry into force of treaties as well as amendments thereto.

In particular, Article 11 makes it clear that the consent of States to be bound by a treaty may be expressed by signature, exchange of instruments, ratification or accession, or by any other means if so agreed.

Thus, the States concerned are at liberty to agree on the conclusion of a treaty by means other than the traditionally accepted procedure of signature followed by ratification or accession.

It is therefore perfectly possible for a treaty, or an amendment of the treaty, to be adopted and enter into force for all the adopting States instantly, without further ratification or any other formality, if that is the means of adhesion agreed to by those States: see AUST: Modern Treaty Law and Practice (2000)…,.

A brief resume of the broadly common facts in this case are as follows -

The plaintiff is a citizen of Zimbabwe residing in this country, and was the registered owner of a Toyota Hiace bearing registration number AAZ 7054. The defendant is a company duly registered in accordance with the company laws of this country, and carries out the business of, among other things, selling motor vehicles at Stand 3250 Kenneth Kaunda Avenue, Harare. On 10 October 2007 the plaintiff and the defendant entered into a written agreement..., wherein the latter undertook to sell, on behalf of the former, its motor vehicle, and undertook to pay the plaintiff a straight payment of USD14,000= from the proceeds of the sale.

It is not in dispute that the parties' written agreement was subsequently altered. Therein lies the point of divergence. Both parties were not in agreement as to the exact nature of the amendments to Exhibit 1.

According to the plaintiff, the amendment to Exhibit 1 was merely a reduction of the payment due to him from USD14,000= to USD12,000=. The defendant, on the other hand contended that the amendment was to the effect that the plaintiff would pocket the equivalent of USD12,000= which amount was pegged at Z$96 billion.

Following disagreement over the payment of the amount due to the plaintiff, the plaintiff issued summons out of this court for an order against the defendant as follows -

“(a) Payment in the sum of USD12,000= (twelve thousand United States Dollars).

(b) Interest on the aforesaid amount at the prevailing United States of America Treasury rate with effect from the 21^st of February 2008 to the date of final payment.

(c) Costs of suit.

Alternatively -

(a) Damages in the sum of USD12,000= (twelve thousand United States).

(b) Interest on the above sum at the prevailing United States of America Treasury rate with effect from the 21^st of February 2008 to the date of final payment.

On 11 May 2010, the respondent's then lawyers, Manase & Manase, wrote to the applicants' lawyer accepting payment in the in the amounts proposed by the applicants and considerately extending the due date of payment by a day from 10 May to 11 May 2010. The letter reads -  

“Dear Sir

COLLIN DUBE AND 129 OTHERS v TUNGPAL INVESTMENTS

Your letters of 6^th, 10^th and 11^th May refers. We write to confirm that our files reflect a different position but nonetheless for the sake of progress and finality in the matter we shall stick to the figures reflected in your letter with reference to one and two-bedroomed flats. However, we feel, as per your earlier discussions with our Mr. Pasipanodya in the morning that the bed-sitter rental should be at least raised to a nominal fee of USD60=.

In the premises, kindly advise what time we should expect payment today.”

A dispute has now arisen concerning whether or not the applicants have paid in terms of the Deed of Settlement.

The dispute can only be resolved by the applicants furnishing the respondents with proof of payment in the agreed amounts to Manase & Manase on or before the agreed due date of 11 May 2010.

The applicants have now produced three receipts showing block payments to Manase & Manase as follows –

Receipt No.   Date       Amount Paid

1. 3619          8/5/10             $10,250=

2. 3999          5/5/10             $ 5,000=

3. 3622        12/5/10             $29,480=

What is clear from the figures is that a total of $15,250= was paid in terms of the Deed of Settlement whereas $29,480= was paid when the applicants were already in breach of the Deed of Settlement in that payment was made on 12 May instead of 11 May 2010.

The defendant's representative sought to justify the non-compliance with the specifications, initially, on the basis that during manufacturing they had realised they had run out of 6mm steel plate in their stock. It was the defendant's evidence that having faced this challenge they approached Mr. Muzondiwa, an employee of Total Zimbabwe, who authorized them to use the available material in their stock, viz. 5mm steel plate.

This is an opposed application wherein the applicant seeks the following relief:

“1. The purported cancellation of the agreement of sale dated 17^th October 2006 between the applicants and the respondents be and is hereby set aside.

2. The respondent be and is hereby ordered to forthwith transfer the undivided share in a certain piece of land situate in the district of Salisbury being land share number 13 of Stand number 195 Monavale Cluster Homes, also known as subdivision A, portion of Mayfield Estate to the applicants upon respondent satisfying the minimum service requirements set out in its development permit.

3. The respondent shall bear costs of suit on a legal practitioner/client scale.”

It is common cause that on 17 October 2006 the parties entered into an Agreement of Sale. The respondent sold to the applicants its property known as an undivided share in a certain piece of land situate in district of Salisbury being land share number 13 of Stand number 195 Monavale Cluster Homes also known as Subdivision A, Portion of Meyfield Estate measuring 704 square metres (the property). The price for the property was $4,928,000= (old Zimbabwean currency) and the agreed mode of payment of the purchase price was:

“Deposit of $3,000,000= payable upon signing this agreement of sale of which an amount of $2,630,400= is payable to Bvekwa Legal Practice and an amount of $369,600= is payable to Maffack Properties representing 7.5% of the purchase price. The balance to be paid over 3 months in three (3) equal instalments. Any delays will attract an interest of 300% per annum.”

It is not in dispute that by 31 January 2007 the applicants had fully paid the agreed purchase price. However, on 27 February 2008 the respondent's legal practitioners addressed the following letter to the first applicant:

“WITHOUT PREJUDICE

Dear Sir/Madam

RE: PROPERTY: SHARE NO. 13 OF SUBDIVISION A, PORTION OF MAYFIELD ESTATE (MONAVALE CLUSTER HOMES): VARIATION OF AGREEMENT OF SALE

Our client has instructed us to communicate to you regarding the above issue as follows:

As you may be aware, the construction works at the Monavale Cluster Homes site has come to a halt. This has been caused by an order given by the Environmental Management Authority to stop the works pending the production of an Environmental Impact Assessment Report. This has since been complied with. However, in the interval, inflation has eroded the value of the amounts paid thus far. This has made it impossible for the further works to continue. Without the completion of the works, it is not possible for our client to transfer ownership of the property sold to you.

In these circumstance, our client makes the following without prejudice offer to you. It is that you enter into a variation of the agreement of sale entered into between yourselves and our client. In terms thereof, you would agree to an increase in the amount needed to complete the servicing works. This amount is in the sum of $36 billion dollars. This amount would be payable by the end of March 2008. In return, our client would begin a programme to complete servicing the property. This programme shall be completed within 90 days reckoned from the 1^st of April 2008.

The alternative to the above is the cancellation of the agreement of sale. You would be refunded 60% of the current market value of the property the subject of the agreement of sale, minus administrative expenses so far incurred e.g. agents commission and administration fees. The amount in question would be paid within a reasonable time of your acceptance of cancellation.

We have been requested to furnish you with up to 31^st of March 2008 to signify your election. This may be done by delivering, in writing, your response at our offices.

Should you fail to make an election or reject the above proposals, be advised that our client shall apply to court for an order of cancellation of the agreements entered into on the amount of the purchase price paid in the manner the court may deem fit.

We await your consideration.

Yours faithfully

___________________

Kawonde and Company”

On 1 July 2008, the applicants' legal practitioners responded to the above letter as follows:-

“Dear Sir

RE: PROPERTY: SHARE NO.13 SUBDIVISION & PORTION OF MAYFIELD ESTATE (OUR CLIENT MR & MRS HAMANDISHE)

The above two are our clients, who, from instructions, purchased the above property from yours. We have been shown the agreement of sale between the concerned parties together with your minute to our clients dated 27^th February 2008.

In the context of your said minute we felt that there may be need for us to get some clarifications viz issues raised therein.

(a) Is it your client's attitude that the delay in the completion of the project was occasioned by ours, and, if so, how?

(b) At what stage of development has the project reached and what are the minimum stages required before the properties may be transferred to the individual purchasers.

(c) On what grounds does your client believe that in the event of cancellation of the agreement ours can only get 60% of the paid purchase price?

(d) What guarantees are there that in the event of our client paying and the others refusing to do so, the project will still be completed within ninety days as suggested in your minute?

You will possibly appreciate the assistive extent of your client's responses to the above, and, more importantly, how such responses could enable us to cut a seemingly long story short.

We kindly wait to hear from you by return of post.

Yours faithfully

___________________

Mufadza and Associates”

On 8 July 2008, the respondents' legal practitioners again wrote to the applicants' legal practitioners in the following terms:-

“Dear Sir or Madam

RE: OUR CLIENT MAFFACK PROPERTIES (PVT) LTD: YOUR CLIENT MR AND MRS HAMANDISHE: SHARE NO. 13 OF SUBDIVISION 195 A, PORTION OF MAYFIELD ESTATE

We thank you for your letter of 1 July 2008.

We have been instructed to reply as follows:

The delay in the completion of the development was not occasioned by your client. At the time the project stalled, it was 60% complete. Our client believes that it is just and equitable that your client gets 60%, as the amount reflects the extent of the improvement of the property as of now.

Regrettably, your client declined to accept the offer by ours. Accordingly, the agreement is hereby cancelled. Our client offers to pay to yours the full amount he paid, adjusted for inflation using the CPI as at the date of payment, in full and final settlement of all its obligations in respect of the above transaction.

Yours faithfully

__________________

Kawonde & Company”

It is the attitude of the respondent, as emerges from correspondence quoted above, that caused the applicants to file this application on 30 July 2008 seeking the relief indicated on the first page of this judgment.

At the hearing of this matter the applicants abandoned clause 2 of their relief and persisted that they wanted the court to determine the status of the Agreement of Sale.

Counsel for the applicants submitted that the applicants had complied with their obligations arising out of the Agreement of Sale, and, as such, there was no basis for the agreement to be cancelled. He correctly submitted that the attempted variation of the Agreement of Sale did not comply with clause 12 thereof which provides as follows:

“12. WHOLE AGREEMENTS

This agreement constitutes the entire contract between the parties hereto otherwise than as may be recorded herein and:-

13.1 No warranty, representation, promise or undertaking has been given or made by either party to the other except as recorded in this Agreement;

13.2 There are no conditions precedents suspending the operation of this Agreement which is not referred to herein;

13.3 No variation in this Agreement shall be valid unless reduced to writing and signed by or on behalf of the parties hereto.”…,.

He also said the parties had categorically stated what was covered by the purchase price through clause 14 which provides as follows:

“14. SPECIAL CONDITIONS

14.1 It is agreed that the amounts so paid shall be used for purposes of servicing the land, administrative expenses, professional fees and any other incidental expenses since the Stand is being sold off-plan. For this purpose, the Purchaser has agreed and authorized the release of the money to the seller.

14.2 The purchase price of Z$4,928,000= includes the cost of architectural and structural designs.

14.3 The Seller undertakes to complete servicing, that is, provision of sewer and water reticulation, drainage and surface water management system on or before December, 2006 or any other date thereafter agreed between the parties.”

All in all, counsel for the applicants submitted it was the respondent who was in breach of the agreement of sale. He said, whilst claiming impossibility of performance due to inflation, the respondent had not taken the route of seeking formal liquidation and thereby protecting the interests of people such as the applicants. He therefore urged the court to declare the purported cancellation of the agreement as null and void.

Counsel for the respondent submitted that the relief sought (ie declaring the cancellation of the agreement of sale null and void) would not assist the applicants in any way, and, as such the applicants should have simply withdrawn the application. He said the property in question was not registered in the respondent's name. That aspect would certainly stand in the way of specific performance (i.e. transfer of property to applicants). In any case, he argued in his heads of argument:

“It is common cause that the respondent had to comply with regulatory conditions after it had commenced infrastructural works in terms of the permit. It is undeniable that hyperinflation gripped Zimbabwe and intensified with each succeeding year. The phenomenon of top ups is now known from school fees to ordinary purchases of goods and services. So notorious has this become that the monetary authorities have, in certain cases, allowed settlement of obligations in some other currency, say US dollar.”

Relying on WILLIE & MILLIN's Mecantile Law SA 15ed, counsel for the respondent quoted from page 69 of the edition as follows:

“When a contract has become impossible of performance after it has been entered into the position is the same as if it had been impossible from the beginning.”

He therefore did not see merit in the relief sought by the applicants and called for the dismissal of the application.

The papers in casu clearly confirm that as at 31 January 2007 the applicants had satisfied clause 2 of the Agreement of Sale as read together with the mode of payment already spelt out on first the page of this judgment. Apart from unilaterally creating new obligations for the applicants, the respondent does not dispute that by 27 February 2008, when it sought to vary the Agreement of Sale, the applicants had long fully discharged their obligations under the said Agreement of Sale. The purported variation, without the consent of the applicants who already had complied with the contract, and without court confirmation, was, in my view, clearly in violation of clause 12 of the agreement. The respondent had no basis upon which to justify cancellation of the agreement of sale. The best that the respondent could have done was to seek a legal route for confirmation of its inability to perform due to an intervening impossibility.

In its letter of 27 February 2008, the respondent had said:-

“Should you fail to make an election or reject the above proposals, be advised that our client shall apply to court for an order of cancellation of the agreements entered into on the amount of the purchase price paid in the manner the court may deem fit.”

That was never done.

The position is simply that the respondent is in breach of the Agreement of Sale, and, as a way out, now seeks to unilaterally cancel the agreement citing inflation and intervening impossibility. To allow such a move to succeed would certainly destroy the sanctity of contractual relationships. The purported cancellation is, in my view, clearly intended to avoid specific performance. However, economic hardships cannot be used as automatic weapons to defeat contracts.

In a similar situation, in International Trading (Pvt) Ltd 1993 (1) ZLR 21 (H), 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 as 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…,.”

Admittedly, the above sentiments were echoed specifically in relation to the issue of specific performance. However, I am here quoting the same because the respondent's action (ie unilateral cancellation of the Agreement of Sale) is clearly intended to avoid specific performance. The applicant in casu seeks a declaration which is meant to save the Agreement of Sale. The applicants can only proceed to demand specific performance if the purported cancellation is declared null and void. That explains the applicants' position in abandoning clause 2 of the original relief sought.

I have, in this judgment, made a finding that the applicants complied with the terms of the agreement and were therefore not in breach, if anything the respondent was in breach of the agreement. The applicants are therefore saying there is no justification on the part of the respondent to run away from the agreement and that any variation of the agreement can only be effected in terms clause 12 of the Agreement of Sale. I am unable to fault the applicants' reasoning and therefore I find merit in their application. I therefore find it proper to grant the relief sought.

I accordingly order as follows:-

It is ordered that:

1. The purported cancellation of the Agreement of Sale dated 17 October 2006, between the applicants and the respondent, be and is hereby declared null and void; and

2. The respondent shall pay costs of suit.

The thirteen applicants are members of Printers Housing Co-operative Limited. It is common cause that sometime around 2005 they concluded individual standard contracts of sale with the first respondent, Douglas Nyaude, a registered Estate Agent practicing under the style of Graham and Douglas Real Estate Agent. The contracts were in respect of the sale of certain pieces of immovable properties mentioned in the respective contracts.

Occupation was supposed to take place upon the completion of servicing of the properties.

The applicants proceeded to pay their respective deposits and instalments in terms of their Agreements.

In terms of the standard form of contract, the purchase price was to be paid in instalments. The relevant clause provided as follows:-

“MODE OF PAYMENT:

(i)  A deposit of..., payable as follows:-

-$..., upon signing thereof.

-$..., payable on...,

(ii) The balance of..., plus 30% interest per annum payable in monthly instalments of not less than $..., over a period of 24 months with the first instalment payable on....,”

Owing to rampart inflation, the Seller found it impossible to service the land from the proceeds of the sale.  As a result, the first respondent unilaterally increased the purchase price to cover the increased costs of servicing the stands.

That much is not in dispute.

The only written agreement between the parties is exhibit 2..., which states in clause 1:

“1. THE PURCHASE PRICE AND TERMS OF PAYMENT

The property is sold by the Seller to the Purchaser for the sum of $6,500,000= (six million five hundred thousand dollars) to be paid as follows:

(a) The purchaser pays cash in the sum of $6,500,000= (six million five hundred thousand dollars) after signing this agreement.

(b) The purchaser shall pay the agent's commission on the sale being $487,500 (four hundred and eighty seven thousand five hundred dollars) to be deducted from the purchase price.

(c) The cession of the property will be done by CITY OF HARARE.”...,.

Regarding the allegations made that the terms of the agreement were varied with the seller raising the purchase price to $10 million, note is made that Special Condition “A” in the Agreement of Sale provides:

“A. ENTIRE CONTRACT

The parties acknowledge that this agreement constitutes the entire contract between them and there shall be no variation of it save in writing signed by both parties.”

No proof of variation of the agreement in conformity with the requirements of Special Condition “A” was placed before the court.

Although accepting that the written contract was never varied in writing, it is suggested by the defendants that the parties communicated through correspondence which clearly established that there was an understanding between the parties that the defendants needed to source funds through the Reserve Bank of Zimbabwe in order to import the vehicles to be delivered to the plaintiff by the first defendant.

The defendants produced to court a number of letters written by the second defendant explaining, or seeking to explain, the delay in delivery of the vehicles. The first letter is dated 29 January 2007 which was a mere two days before the date scheduled for the delivery of the first batch and the explanation given for the anticipated delay in delivery is the late approval of the allocation of foreign currency. An assurance is given in the letter that everything was under control. The second letter, dated 15 February 2007, again speaks of the delays in obtaining foreign currency allocation (approval?). The writer goes further to state that arrangements had been made for the first batch of fifteen vehicles to be in the country by 28 February 2007. It was stated, further, that the supplier had refused to accept an advance payment that had been arranged due to the fact that it had come from a bank in South Africa. The last sentence in the letter is to the effect that correspondence from the Reserve Bank was being attached and the defendants were vigorously pushing for payment and the vehicles would be released 'soon.' Attached to the letter in question was a Reserve Bank approval for the defendants to pay for the vehicles through their bank. There was no allocation of funds on the certificate produced.

The letters addressed to the plaintiff were not responded to.

The plaintiff's witness, Mrs Chinodya, explained that when the defendants started coming up with excuses on the delivery of the vehicles they were requested to put their explanations in writing. The witness told the court that the position of the plaintiff was that the contract was for the supply and delivery of vehicles and not for the importation of the same. The plaintiff was hopeful that the endeavours by the defendants would succeed but when the contract was concluded it was never a term of the contract that the defendants would require an allocation of foreign currency from the Reserve Bank of Zimbabwe in order for them to perform their obligations on the contract.

It is idle for the respondents to dig in the ashes by claiming that Darlington Mujati verbally authorised the renovations by the respondents to be reimbursed later, or that McDonald Chinyoka verbally promised to rectify the issue of set off that had been omitted to be incorporated in the lease agreement when the same was signed on 31 August 2009.

Where the parties have elected to restrict their own power to vary or discharge their contract by subsequent conduct by a non-variation clause providing that no variation of any of the terms of the contract shall be valid unless it is in writing, the terms of the contract shall bind the parties unless varied in writing by them.

See R. H. CHRISTIE, Business Law in Zimbabwe, 2^nd edition, Juta & Co Ltd…,.; SA Centrale Ko-op Graanmaats Chappy Bpk v Shifren 1964 (4) SA 760 (A) (a judgment in Afrikaans whose ratio on non-variation clauses was adopted by this court in Fillanion v Esat & Another HB106-03).

The plaintiffs did not agree to purchase the property but now the defendant wanted to impose new conditions not contained in the initial undertaking - and unilaterally for that matter.

It could not lawfully do that.

In terms of paragraph 29 of the Lease Agreement:

“No variation or amendment of it is valid unless it is put in writing and signed by both parties.”

This means any variation…, must be in writing and signed by the acquiring authority and the respondent.

Waiver of the right to cancel was the fifth ground raised by the respondent.

The argument is that by accepting the payment of overdue rentals outside the stipulated time, the applicant waived its right to rely on the failure to pay rentals on time as a ground for termination of the lease….,.

Sub-clause 40.1 of the lease agreement reads as follows:

“The failure by the landlord to exercise any right shall not be deemed to be a waiver of any of his rights in terms of this agreement and the acceptance of any overdue rent shall not constitute a waiver of any right which the landlord has to cancel this lease arising out of such breach or late payment of rent.”…,.

The net effect of non-variation and non-waiver clauses is to negative the raising of such defences.

In Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 (SC), the court had occasion to consider the combined effect of non-variation and non-waiver clauses in a lease agreement which are similarly worded to sub-clauses 40.1 and 40.2 of the lease in casu. The court's decision is captured in the head note which reads as follows:

“A non-variation clause in a contract entrenches the requirement that any variation has to be in writing but does not prevent a party for whose it is inserted from waiving the requirement.

A non-waiver clause negatives any raising of a waiver or any estoppels in that it amounts to notice given in advance, acknowledged by the other party, that conduct which might otherwise be a waiver or give use to an estoppels may not be taken to be such conduct.

The combine effect the two clauses is that two parties to a written agreement containing carefully and extensively worded non-variation and non-waiver clauses cannot enter an enforceable oral agreement departing from the written terms, since, to the extent it is a variation of the contract, it is precluded by the non-variation clause; whereas, if it be said to be a waiver or conduct giving rise to an estoppels then the non-waiver clause provides the complete answer to the point.”…,.

The Mining Agreement contains a non-variation clause and a non-waiver clause…,. What is the combined effect of such clauses in a contract?

The headnote in Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 SC sums it all.

“A non-variation clause in a contract entrenches the requirement that any variation has to be in writing but does not prevent a party for whose benefit it is inserted from waiving the requirement.

A non waiver clause negatives any rising of a waiver or any estoppel in that it amounts to notice given in advance, acknowledged by the other party, that conduct which might otherwise be a waiver or give rise to an estoppel, may not be taken to be such conduct.

The combined effect of the two clauses is that two parties to a written agreement containing carefully and extensively worded non-variation and non-waiver clauses cannot enter an enforceable oral agreement departing from the written terms since to the extent it is a variation of the contract it is precluded by the non-variation clause whereas if it be said to be a waiver or conduct giving rise to an estoppel then the non-waiver clause provides the complete answer to the point.”

An application in which the applicant moves the court to declare him the sole owner of the property which he and another person jointly purchased from the seller is misplaced. A fortiori when the application excludes his co-purchaser whose views remain unknown to the court.

On 12 February 2004, the applicant and his former wife, one Virginia Pasipamire, purchased Stand Number 172 of Roughlands Estate “A” (“the property”) from the respondent. The property is situated in the district of Marondera formerly Marandellas. It is 2,346 square metres in extent.

The purchasers did not, for reasons known to them, move the seller to transfer the property into their joint names. They, therefore, have only personal rights against the respondent.

On 18 May 2011 the applicant obtained a decree of divorce against his wife. The divorce proceedings took place at Leicester County Court in the United Kingdom.

Pursuant to the dissolution of their mar