Variation of Contracts re: Deed of Settlement, Compromise Agreement iro Waiver, the Presumption Against Waiver & Estoppel

Appealed
SC18-11 : RIO TINTO (AFRICA) PENSION FUND vs AFARAS M. GWARADZIMBA (in his capacity as Liquidator of Sagit Stockbrokers PL) and AFARAS M. GWARADZIMBA (in his personal capacity)
Ruled By: MALABA DCJ, SANDURA JA and GARWE JA

In the alternative, the appellant has argued that the first respondent had compromised the claim by offering to deliver the shares and should therefore be held to such a compromise. It is correct that in terms of section 221 of the Companies Act [Chapter 24:03], a liquidator has power to compromise or admit any claim. This ...

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

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

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

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

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

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

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

OR, ALTERNATIVELY

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

The suit was defended.

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

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

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

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

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

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

The defendants withheld the motor vehicle.

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

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

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

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

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

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

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

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

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

I shall, however, proceed to briefly summarize the evidence that was led on behalf of the defendants.

The defendants called four witnesses.

The first to testify was Morris Fortune Nhamo Chinyani. He is the Board Chairman of the first defendant, and, at the time of the meeting of 10 August 2007, he was the Group Commercial Director for the second defendant.

On 10 August 2007, he attended the meeting at which the plaintiff surrendered possession of the motor vehicle to the defendants. He recalls that at the meeting the position of the defendants was put to the plaintiff. This was to the effect that the motor vehicle scheme had been put in place to attract and retain executives and that in the opinion of the defendants, the plaintiff had not earned the vehicle as yet as had only served for ten months after the introduction of the scheme. The plaintiff agreed with the sentiments of the representatives of the defendants present and further agreed to return the vehicle to the first defendant pending its evaluation. It was also agreed in the meeting that the valuation would give him a figure to pay for the vehicle should he wish to purchase it. The meeting was cordial and the plaintiff was not threatened in any manner. He agreed that the first defendant could change back from his name the ownership of the vehicle in the event that he did not pay for the vehicle within a reasonable time. He then signed an affidavit that would allow the first defendant to effect the necessary changes.

The witness gave his evidence clearly and in measured tones. His understanding of the terms of the loan agreement and of the motor vehicle scheme may not have been legally correct, but that, in my view, does not detract from his credibility as a witness.

The defendant also called the evidence of Cannan Samkange. He is the Group Human Resources Executive for the holding company. He was in attendance at the meeting of 10 August 2007 when the plaintiff surrendered the motor vehicle to the defendants. At the meeting, he recalls that Kumalo asked the plaintiff whether by leaving the employment of the first defendant when he did, the plaintiff thought that it was fair and right that he takes the motor vehicle with him. After some hesitation, the plaintiff conceded that it was not. Regarding the way forward, the plaintiff asked the executives present to spell out what the defendants wanted. Kumalo advised the plaintiff that he wanted the vehicle returned or for the plaintiff to pay a fair price for it. The plaintiff opted to purchase the vehicle at a fair price.

The plaintiff then signed the affidavit that was prepared for him in the presence of the three executives who attended the meeting. In signing the affidavit, the plaintiff was not threatened at all. After some time, the vehicle was brought back by the driver who had been assigned to accompany the plaintiff to his residence to collect the vehicle. The witness went to inspect it and found all the accessories intact save for the registration book and the spare keys to the vehicle. The plaintiff invited him to pick these up later at his residence as they were locked up in the plaintiff's bedroom.

The witness came across as honest and reliable. He was forthright in his responses to questions put to him under cross-examination and was quite clear as to the policy of the defendants regarding the motor vehicles and why certain decisions were made and implemented. He was also clear on the relationship between the plaintiff and the defendant regarding ownership of the vehicle. He testified that while the plaintiff held the registration book, the vehicle belonged to the first defendant who had a say as to how it was used until ownership in the vehicle was transferred to the plaintiff.

I shall rely on the evidence of this witness.

The defendants also called Richard Nyatsoka. He is Managing Director of the first defendant. He was the plaintiff's immediate boss.

The witness testified as to the terms of the motor vehicle policies that the defendants had and how the plaintiff qualified under the second defendant's policy. He also confirmed that he had authorized the plaintiff to transfer registration of the vehicle into his name. Towards the end of July 2007, he discussed with the plaintiff the imminent departure of the plaintiff and how the defendants would treat the vehicle now that the plaintiff was leaving. At the time the plaintiff left employment, he was under the impression that the plaintiff would leave the vehicle behind. In accordance with proper corporate decorum, he did not repossess the motor vehicle from the plaintiff on the plaintiff's last day of service. He only learnt, on 7 August, that the plaintiff had failed to surrender the vehicle to the defendants. At this stage, he was on leave. He spoke to the plaintiff about the issue but did not attend the meeting of 10 August when the vehicle was surrendered. He returned from leave on 27 August to learn that the vehicle had been returned and the plaintiff had agreed to pay a fair price for it should he wish to purchase the vehicle.

Generally, the witness gave his evidence well and would make good eye contact, giving the impression that he was telling the truth and had nothing to hide. He was however not present at the all important meeting of 10 August, and, thus, in my view, his evidence is of marginal value.

Like the first witness, I find that the interpretation given to some of the clauses of the loan agreement and of the motor vehicle scheme by this witness may not be legally sound, but, again, in my view, this cannot detract from his generally favourable demeanor in the witness box.

The last witness to testify for the defendants was Benjamin Nkosentya Kumalo. He is the Group Managing Director of the second defendant. He called for the meeting held on 10 August 2007 to discuss the issue of the motor vehicle with the plaintiff. In attendance at the meeting were the plaintiff, the Group Human Resources Executive, and the Group Commercial Director and Chairman of the first defendant.

At the meeting, which the witness chaired, he asked the plaintiff how he had transferred registration of the motor vehicle and how much he had paid for the vehicle for the short period that the scheme had been operating before he terminated his services. He further asked the plaintiff whether, in the circumstances, his taking of the motor vehicle did not amount to unjust enrichment. The plaintiff agreed with the sentiments expressed on behalf of the defendants. The parties proceeded to determine a formula by which a fair price for the vehicle would be established and at which price the plaintiff would purchase the vehicle. The plaintiff requested for a letter from the witness confirming what the parties had agreed to so that he would be protected from any possible reneging by the defendants. The witness wrote a letter confirming that he would commission an evaluation of the motor vehicle and inform the plaintiff about the established value in due course. The meeting was quite amicable and he did not threaten the plaintiff in any manner. The plaintiff agreed to and voluntarily surrendered the motor vehicle. The parties also agreed that the plaintiff signs an affidavit that would assist the first defendant in re-registering the vehicle into its name in the event that the plaintiff did not pay a purchase price equivalent to the market price of the vehicle within a reasonable time.

The witness commissioned the affidavit as he is an ex officio Commissioner of Oaths.

He was present when the vehicle was brought to the premises although he did not go to inspect it. There was no subsequent meeting after the vehicle was brought to the premises. A few days later, he wrote to the plaintiff advising him of the fair market value of the vehicle.

The witness was impressive in the witness box. He gave his evidence well. He answered all questions put to him under cross–examination with forthright answers. His understanding of the terms of the loan scheme and of the loan agreements was, in my view, legally sound and he readily accepted that he had commissioned the affidavit by the plaintiff even though he had an interest in the matter as he was unaware that he could not do so.

I will rely on the evidence of this witness.

At the pre-trial conference of the matter, five issues were identified as falling due for determination at the trial of the matter. These were framed as follows:

1. Whether there is a valid and enforceable agreement of sale of the motor vehicle in dispute by the plaintiff to the defendant.

2. Whether the affidavit signed by the plaintiff is null and void by reason of duress and improper authentication and commissioning.

3. Whether the plaintiff is entitled to the motor vehicle in dispute in terms of the Motec Vehicle Scheme.

4. Whether the plaintiff is entitled to pay the sum of $4,5b to the first defendant and purchase the vehicle in dispute from the first defendant.

5. Whether if the first defendant has changed ownership of the vehicle in dispute, such change of ownership could be reversed.

At the hearing of the matter, the plaintiff abandoned his alternative prayer for the payment of the sum of $4,5b, thus leaving four issues for determination.

With respect, in my view, the four issues as settled at the pre-trial conference do not capture the essence of the dispute between the parties.

It is common cause that the plaintiff was entitled to possession of the motor vehicle during the course of his employment with the first defendant. It is further common cause that the plaintiff did not sell the motor vehicle back to the first defendant as captured in the affidavit that he swore to on 10 August 2007.

In my view, the dispute between the parties is whether the plaintiff is entitled to ownership of the motor vehicle in terms of his contract of employment, and, if so, whether he has waived or compromised his entitlements thereto.

The founding document in this dispute, in my view, is the second defendant's Group Management Vehicle Purchase Scheme. It is common cause that this is the scheme under which the plaintiff became entitled to the use of the motor vehicle in question. It is also common cause that this document has to be read together with the loan agreement between the parties.

While I accept that the loan was granted on paper, with no money actually changing hands, in my view, the importance of the loan agreement, as a document, lies in establishing the purchase price of the vehicle. It is in the loan agreement that the amount representing the purchase price of the vehicle is set. The motor vehicle scheme simply makes reference to the loan agreement in respect of the purchase price of each vehicle falling under the scheme.

In my view, the plaintiff, having qualified to participate in the motor vehicle scheme, was clearly entitled to the motor vehicle in terms of that scheme during the course of his employment with the first defendant and would have been entitled to the vehicle upon termination of his employment upon satisfying the terms of the scheme and of the loan agreement.

Richard Nyatsoka testified that it was a requirement of the loan agreement and of the motor vehicle scheme that the plaintiff had to approach him, as Managing Director of the first defendant, before he paid up the balance outstanding on the loan.

I read no such term in the scheme.

It may have been the practice that the defendants wished to obtain on the ground but it was not a specific term of either of the two governing documents. I further do not read into the scheme an implied term that the whole amount of the loan, which incidentally represented the purchase price of the motor vehicle in issue, had to be re-valued on the date of repayment, to take into account the appreciated value of the vehicle. This was the understanding of the defendants' witnesses. It is however not in the letter of the agreement.

I may add here, for the benefit of the defendants, that if it is their wish to dis-entitle employees who have not served the organization for the requisite number of years for each model of the qualifying vehicles, then this must be clearly spelt out in the motor vehicle scheme. Similarly, if it is their wish to reserve the right to the defendants to revalue vehicles on the date of disposal to the employee, again this is spelt out in clear language in the motor vehicle scheme. The letter of the scheme as it stands bears little, if any, bearing to their understanding of what the rights and obligations of the employees are under the scheme.

On the basis of the foregoing, I have no doubt in my mind that having paid for the balance outstanding on the loan agreement before his employment with the first defendant terminated, the plaintiff was entitled to claim ownership of the vehicle under the motor vehicle scheme.

However, as counsel for the defendants points out, and correctly so in my view, the parties reached another agreement on 10 August 2007, in terms of which the plaintiff surrendered his entitlement under the motor vehicle scheme and agreed that he would pay the market price of the vehicle if he desired to own it.

The issue is to determine the nature and effect of this subsequent agreement.

In his pleadings, the plaintiff seeks to avoid this second agreement by pleading that is not binding on the parties as it was induced by duress.

I have already found above that I do not believe the plaintiff's testimony that he was threatened at all during the meeting of 10 August to come to a position contrary to his volition. I note that counsel for the plaintiff, in his closing submissions, has not pressed me to find that the plaintiff was compelled by reasonable fear of any imminent evil to his person to agree to surrender the motor vehicle and to be able to acquire ownership of the vehicle by way of a purchase.

The issue that I now have to determine in this matter is whether there was an agreement reached on 10 August 2007 and whether the effect of that agreement was to supersede the obligations and rights that the parties had agreed to prior.

I have no doubt in my mind that the parties were in agreement on 10 August 2007. The essence of that agreement was that the plaintiff would return the vehicle to the first defendant, that the vehicle be re-valued and that if he wished to own the vehicle, the plaintiff had to pay its market value, as established by the evaluation.

I have indicated above that, in my view, the plaintiff was entitled to ownership of the vehicle upon the termination of his employment and after having paid off the balance outstanding in accordance with the provisions of the loan agreement as read with the motor vehicle scheme. The plaintiff may not have been confident of his rights in this regard, or may have been aware that the defendants held a different interpretation on the provisions of the two documents governing the issuance and ownership of motor vehicles between the parties. This is all now speculation on my part and is largely irrelevant in view of the new agreement that the parties concluded on 10 August 2007. I raise the issue simply to buttress my conclusion that by entering into the new arrangement, the plaintiff adversely affected his rights under the prior contract and may have done so ill-advisably. It is my view that the second agreement was ill advised but is nonetheless binding on the parties like any other bad bargain.

Our law of contract has for long recognized that a new agreement that settles a dispute operates as res judicata in respect of the old agreement and in itsself becomes a valid and binding contract between the parties. Not only can the original cause of action no longer be relied upon, but a defendant is not entitled to go behind the compromise and raise defences to the original cause of action when sued on the compromise. See Road Accident Fund v Ngubane 2008 (1) SA 432 (SCA); Lieberman v Santam Ltd 2000 (4) SA 321 (SCA)…,.; Hamilton v Van Zyl 1983 (4) SA 379 (E); and Majora v Kuwirirana Bus Service (Pvt) Ltd 1990 (1) ZLR 87 (SC).

This, in our law, is referred to as a compromise.

The courts in South Africa have even moved on to hold that a compromise need not necessarily, however, follow upon a disputed contractual claim. Any kind of doubtful right can be the subject of a compromise. A valid compromise may be entered into to avoid even on a clearly spurious claim.

Counsel for the plaintiff submitted that there was no dispute between the parties.

With respect, I do not agree.

The parties clearly had a dispute regarding the ownership of the motor vehicle. In any event, on the authority of the above authorities, even if the parties were not locked in a dispute, they could still validly conclude a compromise as to the possession and ownership of the vehicle, which, in my view, they proceeded to do.

In establishing whether a claim has been compromised, one is concerned simply with the principles of offer and acceptance. See E Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd 2008 (2) SA 327 (SCA).

In casu, I am satisfied that at the meeting of 10 August 2007, the parties reached a compromise.

In my view, at this meeting, the parties achieved consensus on all the relevant contractual requirements. They unequivocally intended to settle the dispute of the motor vehicle by this new consensus. In terms of this new consensus, I am satisfied that the defendants offered to sell the vehicle to the plaintiff for its market value and the plaintiff, in turn, accepted the offer. He asked the defendants to reduce the offer to writing, which Kumalo did in his letter of 10 August 2007. Thereafter, the plaintiff did not pay for the motor vehicle in terms of the agreement and is thus not entitled to claim possession and ownership of the vehicle. It is my further view that he showed his acceptance of the offer by surrendering the vehicle and demanding that the offer be put in writing so that the defendants would not backtrack on same.

In my view, the parties before me compromised the dispute of the motor vehicle on 10 August 2007. The effect of the compromise was to discharge the prior agreement embodied in the loan agreement and in the motor vehicle scheme. It established a new contract between the parties that is binding and enforceable. The new contract does not entitle the plaintiff to possess the motor vehicle. It entitled him to purchase the motor vehicle upon certain terms and conditions - which terms and conditions the plaintiff did not comply with.

On the basis of the foregoing, there is thus no basis upon which the plaintiff's claim can succeed. As is clear from the authorities, the plaintiff is not allowed to raise the old agreement to raise a cause of action against the defendants.

In the result, I make the following order:

The plaintiff's claim is dismissed with costs.

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MTSHIYA J

On 17 April 2007 the plaintiff issued summons against the defendants claiming the following: “(a) An order that the plaintiff be declared the owner of Stand Number 14826 Unit 'O', Seke, Chitungwiza; (b) An order that the third defendant be ordered to cede rights, title and interests in House Number 14826 Unit 'O', Seke, Chitungwiza to the plaintiff; and (c) Costs ...

On 17 April 2007 the plaintiff issued summons against the defendants claiming the following:

“(a) An order that the plaintiff be declared the owner of Stand Number 14826 Unit 'O', Seke, Chitungwiza;

(b) An order that the third defendant be ordered to cede rights, title and interests in House Number 14826 Unit 'O', Seke, Chitungwiza to the plaintiff; and

In these proceedings the first defendant, who is late, is represented by Herbert Muwirimi, the executor of her estate.

The brief facts leading to the above claim are these:

On 18 July 2005 the plaintiff and the first defendant entered into an Agreement of Sale whereby the plaintiff purchased from the first defendant Stand Number 14826 Unit 'O' Seke, Chitungwiza (“the property”) for $80,000,000= (Eighty million dollars). The amount was paid in instalments, and, as at 27 November 2005, the full amount had been paid. Transfer of property, however, remained outstanding.

Notwithstanding the above Agreement of Sale between the plaintiff and the first defendant, on 16 March 2006 the first defendant, through another Agreement of Sale, sold the same property to the second defendant for $500,000,000= (five hundred million).

The property was then immediately transferred to the second defendant without the plaintiff's knowledge.

The above facts are common cause.

The plaintiff gave evidence in support of his claim. He confirmed the Agreement of Sale between him and the first defendant and stated that following full payment of the purchase price he took vacant possession of the property on 1 February 2006. He remains in possession.

The plaintiff said apart from requesting the first defendant, on three occasions, to attend to the transfer of the property, he had actually visited her at her rural home where upon she had promised to come to Chitungwiza to attend to the transfer. It was the plaintiff's evidence that when the first defendant finally came to Chitungwiza, during the first week of March 2006, she indicated that she was no longer willing to proceed with the sale of the property. This was so because her family members had objected to the sale of the property for the reason that it was a 'family house'.

The plaintiff's reaction was that he could only move out of the property if the first defendant bought him a similar property. He said he never agreed to the cancellation of the agreement. He also said there was never any suggestion of a top up. The first defendant, he testified, never advised him of the second sale of the property to the second defendant. He only discovered that the property had been transferred into the name of the second defendant through water bills which bore her name.

The plaintiff said the first defendant, in the company of the second defendant and her husband, visited him at the property during the second week of March 2006. It was then that the second defendant had disclosed that she had bought the property and therefore wanted him to move out. He refused to move out.

The plaintiff denied that he ever agreed to pay rent to the second defendant. He had paid the full purchase price and the property was now his. All what remained was transfer of the property to him. He denied ever receiving any reimbursement.

After his testimony, the plaintiff closed his case.

Herbert Muwirimi, the executor of the first defendant's estate, gave evidence, which, in the main, was based on hearsay. He said that the late first defendant was his aunt and was the owner of the property in dispute. He, however, only became aware of the contract between the plaintiff and the first defendant when he came to court. He was not aware of the second sale to the second defendant. All what her aunt had told him was that the plaintiff had not paid the 'top up'. He trusted that his brother, Onismus Muwirimi (Onismus), had accounted for all the money that had been paid by the plaintiff through him. The money was for the first defendant (i.e payments towards the agreed purchase price of $80 million).

Onismus Muwirimi, who was called as the last witness for the first defendant, testified that he was involved in the negotiations that led to the purchase of the property by the plaintiff. He said the first defendant was his aunt. He confirmed that an Agreement of Sale was signed between the plaintiff and the first defendant. The full purchase price of $80 million, including a top up of $2.5 million, was paid by the plaintiff. He said the 'top up' had arisen as a result of complaints from the first defendant's brothers who felt the price of $80 million was low.

Onismus Muwirimi, who was a close friend of the plaintiff, testified that her aunt's first legal practitioners, Messrs C Mutsahuni, Chikore & Partners had paid a refund of $82.5 million to the plaintiff. A receipt (exhibit 5) was produced. He, however, said the plaintiff had refused to accept the refund. The witness said he had told the plaintiff that because of his failure to pay the top up price, of $50 million, his aunt, the first defendant, was considering selling the property to someone else. Furthermore, his aunt's brothers were accusing him of conniving with him (the plaintiff) in order for the plaintiff to purchase the property at a cheaper price. He said when the property was finally sold to the second defendant, he did not disclose the first sale to her (the second defendant).

The second defendant gave evidence in support of the second sale of the property to her and was supported by two other witnesses. She confirmed that through a Mr Chihota, she had, in terms of an agreement of sale dated 16 March 2006, purchased the property from the plaintiff for $500 million. She said upon checking on ownership details with the Council, she had, within five days, proceeded to have the property transferred into her name before paying the purchase price. She also said she had not viewed the property since she had a general knowledge of the types of houses in the area. She had to move fast because she had been advised that there was also a soldier who was keen to pay more money for the property. She said she only discovered that the property had also been sold to the plaintiff after she had already transferred ownership to herself. The first defendant had only told her that a relative of hers was staying at the property.

The second defendant said one of her main aims in buying the property was to build a bigger house. She said that upon proving her ownership of the property to the plaintiff, he had initially agreed to pay $10 million per month as rental pending his final departure from the property. She said the plaintiff had, however, reneged on the rental arrangement.

Mr Livingstone Chituriro Chihota testified that he had indeed facilitated the purchase of the property by the second defendant. He said all negotiations leading to the purchase of the property by the second defendant had been conducted at his house, which was about 300 metres away from the property in issue. He said it was, however, not his duty to show the second defendant the property that the first defendant was selling. He said that his only duty was to find a buyer for the first defendant. Once he had found a buyer he sent Onismus Muwirimi for the first defendant, with the second defendant paying for Onismus's transport to the rural area to fetch the first defendant.

Clement Nhau was called as the last witness for the second defendant. He said the second defendant was his wife and that he had been present at Livingstone Chituriro Chihota's house when the purchase of the property was discussed and concluded. Like the second defendant, he also confirmed that they had not seen or viewed the property. He and the second defendant had been told that there was a soldier who was also interested in buying the property. He said, as a result, moving with speed became necessary in order not to lose the property. In the main, his evidence corroborated that of the second defendant.

In order to put all the evidence and submissions from the parties' legal practitioners in proper prospective, I think, in the face of the evidence now before me, it is necessary to restate the issues identified for trial at the pre-trial conference. The agreed issues were:

“1. Whether or not plaintiff was in breach of the contract between him and first defendant.

2. Whether or not the Agreement of Sale between the plaintiff and the first defendant was ever cancelled.

3. Whether or not second defendant is an innocent third party.”

Upon restating and evaluating the evidence of the plaintiff, counsel for the plaintiff submitted that the double sale situation had arisen as a result of greed on the part of the first defendant. He submitted that the plaintiff had paid the full purchase price in terms of the agreement. There was no dispute that the sum of $80 million had been paid.

Relying on Chimponda v Rodgriques and Others 1997 (2) ZLR 63, counsel for the plaintiff correctly submitted that it is the primary right of a wronged first buyer to have the remedy of specific performance unless there is some equitable reason disqualifying him/her from obtaining such a relief. He said, in casu, there were no special reasons/circumstances militating against the plaintiff's right to specific performance.

Counsel for the plaintiff submitted that the second defendant had conducted herself in a suspicious and questionable manner and hence leaving room for one to conclude that she was aware of the first sale i.e the sale of the property to the plaintiff. That being the case, counsel for the plaintiff argued, the second defendant's remedy was in an action for damages against the estate of the first defendant i.e the seller of the property. All in all, counsel for the plaintiff's position was that the plaintiff's rights under the contract entered into between him and the first defendant should be enforced by this court.

Counsel for the first defendant also cited the case of Chimponda v Rodgriques and Others 1997 (2) ZLR 63 and submitted that in a double sale situation the basic rule is that, in the absence of special circumstances, the first purchaser should succeed. Also relying on Guga v Moyo and Others ZLR 2000 (2) 458 (S), she went on to state that the special circumstances to be looked at are:-

“(i) Who has paid more money than the other.

(ii) Who has taken possession of the property and expended considerable sums on the house.

(iii) Whether first purchaser took any action to protect his interest when he became aware that the seller was behaving dishonestly.”

Counsel for the first defendant submitted that in casu the second defendant had paid more money than the plaintiff i.e. $500 million as compared to $82,5 million paid by the plaintiff. She said the plaintiff had, in any case, failed to protect his interest after being told, in February 2006, by his wife, that the second defendant was inquiring about whether or not the house was still on sale. She went on to say the plaintiff had also not reacted swiftly when told by officers at Chitungwiza Municipality that the file had been taken to the Head Office. She argued that such information should have indicated to the plaintiff that something was happening to the house. The plaintiff, she argued, did not, however, take prompt action to protect his interest. She concluded her submissions by urging the court to regard the second defendant as an innocent purchaser in whose favour the special circumstances should lie so as for her to be awarded the property.

Counsel for the second defendant submitted that the important factor to consider in a double sale was whether or not the second purchaser was aware of the first purchase of the same house. He submitted that at the time of the agreement to purchase the property and also at cession of rights, title and interest in the property, the second defendant was not aware or had no knowledge of the first sale. He said that the fact that the second defendant went on to purchase the property without seeing or viewing it could not be construed as conduct confirming that she had known of the first sale. In any case, he argued, the second defendant had given adequate explanation for her conduct. He said whereas the second defendant had protected her interests by quickly seeking transfer of property, the plaintiff had done nothing to protect his interests despite the fact that he had become aware of the first defendant's reluctance to proceed with the sale (i.e. through asking for a 'top-up'). Furthermore, counsel for the second defendant argued, the second defendant had paid more money than the plaintiff. He therefore submitted that the second defendant's case should succeed. The plaintiff, he suggested, could seek damages from the estate of the first defendant.

The facts in casu, in my view, clearly establish the existence of a double sale.

The first sale was completed on 27 November 2005 when the last instalment towards the purchase price of $80 million was paid by the plaintiff to the first defendant. The payment was in terms of the Agreement of Sale dated 18 July 2005. The issue of a top up only came some three months after the plaintiff had fulfilled his obligation under the contract. What remained to be done under that agreement was cession of rights, title and interest in the property to the plaintiff. The purported reversal of the Agreement of Sale, in March 2006, does not, in my view, invalidate the first sale.

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

In the heads of argument, it is submitted that the local authority waived its rights to claim cancellation of the contract. According to CHRISTIE, The Law of Contract, 3ed…, there is a presumption against waiver of contractual rights even in some cases strongly suggesting the same. Thus, there is a heavy evidentiary burden on the party alleging ...

In the heads of argument, it is submitted that the local authority waived its rights to claim cancellation of the contract.

According to CHRISTIE, The Law of Contract, 3ed…, there is a presumption against waiver of contractual rights even in some cases strongly suggesting the same. Thus, there is a heavy evidentiary burden on the party alleging waiver to establish the same on a balance of probabilities.

In considering the question of waiver, I am reminded that the issue was brought up in written submissions and was not raised as an averment in the papers filed by the parties.

An examination of the facts, as presented on the papers, may throw some light as to whether, despite not having raised it on the papers, Agro Chem can rely on the issue of waiver as submitted in the heads of argument.

In the opposing affidavit filed on behalf of the local authority there is an acceptance that the property was transferred to Agro Chem and that demand of the Deed of Transfer was made by a letter dated 26 February 2008. This is the cancellation that is being relied on to defeat the claim for eviction. It seems to me that by transferring the Stand to Agro Chem the local authority elected to abide by the contract. The local authority in fact discharged its obligations in terms of the agreement between the parties. If the innocent party to the contract elects to abide by the contract, he cannot thereafter rescind it for the original breach, even though a subsequent breach may give rise to a fresh right to cancel. Thus, a tacit election to affirm the contract may be viewed as a form of waiver.

As to what amounts to an election this is what SANDURA JA said in Guardian Security Services (Pvt) Ltd v ZBC 2002 (1) ZLR 1 (S)…,.:

“…,. It is clear that election generally involves a waiver. One right is waived by choosing to exercise another right which is inconsistent with the former.”

What is referred to as the doctrine of election was discussed in the earlier case of Segal v Mazzur 1920 CPD 634…, by WATERMEYER AJ in the following terms:

“Now, when an event occurs which entitles one party to a contract to refuse to carry out his part of the contract, that party has the choice of two courses. He can either elect to take advantage of the event or he can elect not to do so. He is entitled to a reasonable time in which to make up his mind, but once he has made his election he is bound by that election and cannot afterwards change his mind. When he has made an election one way or another is a question of fact to be decided by the evidence. If, with knowledge of the breach, he does an unequivocal act which necessarily implies that he has made his election one way, he will be held to have made his election that way; this is, however, not a rule of law, but a necessary inference of fact from his conduct…,.”

The evidence I have to consider is none other than the Deed of Transfer in favour of Agro Chem as well as the Agreement of Sale itself, specifically the latter, the pertinent part of which is as follows:

“12 (a) THE PURCHASER shall effect or cause to be effected on the Stand principal buildings designed for industrial, manufacturing, factory, or other purposes permitted by the Municipality to the minimum value of $750,000=.

(b) Such buildings shall be commenced on the Stand within six months from the date of sale and shall be duly completed within twelve months from such date. If such buildings have not been commenced or completed as aforesaid then in either case the Municipality shall ipso facto be entitled to cancel the sale of the Stand or claim re-transfer as the case may be. If the sale of the Stand is cancelled or the Stand is claimed in terms of this clause for default in the payment of the balance of the purchase price or any interest thereon or by mutual consent then the Municipality shall refund to the purchaser the amount paid in respect of the purchase price of the Stand plus compensation for any buildings or other permanent improvements.”

The agreement was concluded on 29 March 1995. When regard is had to clause 12(a) and (b) therefore the building of improvements with a minimum value of $750,000= should have commenced within six months of the date of conclusion of the agreement. Transfer to Agro Chem was effected on 20 November 1995, which is a period just short of seven months after the agreement was concluded. It was obvious, at that date, that no improvements had been effected on the Stand and that the purchaser might be in mora in the performance of its obligations. There is no suggestion, on the papers, that it sought an extension of time within which to comply with that particular obligation; yet, notwithstanding this failure to abide by the conditions set in the contract, the property was transferred to the purchaser. This failure to build on the Stand is the reason that the local authority seeks to rely on in alleging cancellation of the contract. In my view, an event entitling the local authority to seek cancellation occurred before the transfer was effected yet the local authority elected to discharge the last of its obligations in terms of the contract….,.

It was decided, by SANDURA JA,inGuardian Security Services (Pvt) Ltd v ZBC2002 (1) ZLR 1 (S), that in determining whether or not the facts established an intention to waive a right in a contract a court had to apply the objective test. The learned judge of appeal had this to say…,.:

“I find support for my views in number of South African cases. In Palmer v Poulter 1983 (4) SA 11 (T) at 20C-D, ACKERMAN J, in delivering the judgment of the Full Bench, said:

'If the appellant, with full knowledge of the facts has so conducted herself that a reasonable person would conclude that she had waived her accrued right to cancel the agreement or had affirmed the agreement, a mental reservation as to the contrary will not avail her.'

The objective test therefore prevailed.

That decision was followed by the full bench of the Cape Provincial Division in Multilateral Motor Vehicle Accidents Fund v Meyerowitz 1995 (1) SA 23 at 27. Subsequently, in Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) (Ltd) 1996 (2) SA 537 (C) at 543J-544A, FRIEDMAN JP, in delivering the judgment of the full court, said:

'If the innocent party, with full knowledge of his rights, performs an unequivocal act from which a reasonable person would necessarily infer that he has elected to affirm the contract, he would be bound thereby, whatever subjective reservations he might have had. On the other hand, if the act on which it is sought to rely for the existence of an election is not unequivocal, regard must be had to the subjective considerations which motivated the party concerned in order to determine whether the act in question does in fact constitute an election or not.'”

Applying these principles to the facts of this matter, it leaps to the mind that the conduct displayed on the part of the local authority's officers an impression was created that not only was the latter affirming the contract, it was complying with all its obligations under the contract of sale.

A transfer to Agro Chem could not have been effected without the specific authorization of the seller. Documents necessary for such transfer would have been drawn up and signed by authorized signatories on behalf of the local authority. At the time the decision to transfer title to Agro Chem was made there must have been an awareness that there had been no compliance with the requirement to effect the minimum improvements on the Stand as required by the Agreement of Sale. Notwithstanding the knowledge that the conditions had not been complied with it took the local authority almost thirteen years before it called up the agreement. If such dilatoriness, in seeking to enforce a right in a contract, is not indicative of a waiver of a right to cancel it would be difficult to imagine what else such conduct constitutes….,.

From the facts established on the papers, it is my view that the local authority never reserved its rights in the contract, and that if it did those reservations were never communicated to the purchaser. It is my finding that it elected to abide by the agreement notwithstanding the default by Agro Chem to construct improvements as required by the agreement. I find, therefore, that there was waiver on the part of the local authority and it cannot now rely on cancellation to seek to prop up the defence proffered by Gomo to defend the claim mounted for his eviction from the Stand.

HH27-09 : ZIMRE PROPERTY INVESTMENTS LI MITED vs JOANDRISA ANIMAL FEEDS (PVT) LTD
Ruled By: UCHENA J

The applicant is the owner of premises known as Fidelity Life Towers. It bought the property from Fidelity Life Assurance of Zimbabwe Ltd, the previous owner. The respondent leased part of the 4th Floor of these premises from the previous owner. Clause 37 of the lease agreement provides for the termination of the lease agreement by ...

The applicant is the owner of premises known as Fidelity Life Towers. It bought the property from Fidelity Life Assurance of Zimbabwe Ltd, the previous owner. The respondent leased part of the 4^th Floor of these premises from the previous owner. Clause 37 of the lease agreement provides for the termination of the lease agreement by the new owner. It provides as follows;

“37(2) In the event of the Landlord disposing of the building, or the leased premises by sale, or if the building or the leased premises are owned by a company and the identity of the largest or majority shareholder changes, then, in such event, the Landlord or new Landlord as the case maybe, shall have the right to terminate the lease without compensation, on giving six months' written notice to the Tenant.”

The applicant bought the premises sometime in 2007. It therefore became the respondent's new landlord. It, in terms of clause 37.2, by letter dated 20 December 2007, gave the respondent notice to vacate the premises by 31 March 2008. The notice period was to run from 1 January 2008 to 31 March 2008. It specifically advised the respondent that it was giving it notice of three calendar months.

The respondent, by letter dated 27 March 2008, from its legal practitioners to the applicant, acknowledged the fact that the applicant had taken over the ownership and management of Fidelity Life Tower House. It pleaded with the applicant as follows;

“We have been instructed to plead with you for and on behalf of our client as we hereby do that you allow our client to remain in occupation of the building for a further period of six (6) months so that our client can secure alternative office space. Should our client be able to secure alternative space earlier our client would (sic) advise accordingly and vacate your premises.”

Note that the respondent's response came four days before the date on which the applicant had required it to vacate the premises. It required the premises for a further period and had to plead for the three months notice to be extended.

The applicant, by letter dated 25 April 2008, declined to extend the notice period by six months but extended it by a further period of two months, commencing 1 April 2008 to 31 May 2008.

The respondent did not respond to this letter till 20 May 2008, when, through its lawyers, it advised the applicant that it had failed to secure alternative accommodation and sought the extension of its tenancy to 30 September 2008. The applicant, by letter dated 5 June 2008, advised the respondent that it could not grant its request.

It is common cause that the applicant did not give the respondent six months notice as provided by clause 37.2 of the lease agreement. In the absence of any written agreement between the parties altering the provisions of clause 37.2 the notice given by the applicant is invalid and of no force or effect. This is because 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.

Counsel for the applicant submitted that the parties agreed to depart from the terms of clause 37.2. He submitted that proof of such an agreement having been reached can be found in the correspondence exchanged by the parties. Counsel for the respondent disputed the existence of such an agreement.

An examination of the correspondence which has already been referred to clearly proves that the parties did not reach a final agreement on anything but continued to negotiate until they disagreed. In its letter of 27 March 2008 the respondent did not agree with the applicant's three months notice, as it sought its extension by a further six months. This proves that the parties were still negotiating as to the appropriate notice period. The applicant's response, of 25 April, did not agree with the respondent's request for a further six months but offered the respondent a further two months. They did not agree as a counter offer to the six months suggested by the respondent was countered by an offer to extend the period to 31 May 2008. By letter dated 20 May 2008 the respondent made a further counter offer by asking that its tenancy be extended to 30 September 2008.

There is therefore no series of correspondence through which the terms of clause 37.2 can be said to have been varied. It is common cause that there is no variation agreement.

Counsel for the applicant also submitted that the original right to six months notice was compromised by the respondent's agreeing to vacate, but pleading to be allowed to stay for longer than the three months given by the applicant because it needed time to secure alternative accommodation.

It is true that the respondent did not challenge the applicant's right to give it notice and to require it to vacate on the basis of a three months notice. It merely pleaded for the extension of the stated period to enable it to find alternative office space. The issue is not on whether or not the respondent conceded the applicant's right to give it three months' notice, but whether that acceptance was with the full knowledge of its right to insist on being given the six months notice provided for in clause 37.2.

The respondent, in its opposing affidavit, said it did not have the lease agreement when it responded to the notice through its legal practitioners. It states that it was, at that time, not aware of its entitlement to six months notice.

The issue is therefore whether or not the alleged compromise or waiver was an informed one.

A compromise is an agreement by the parties to abandon litigation or a disputed position of their rights in favour of the agreement to compromise. Each party alters its claim, rights or defence to reach a compromise. It must do so fully appreciating the rights it will be compromising on. It cannot be arrived at in error.

Counsel for the applicant referred me to the case of Georgious and Another v Standard Chartered Finance Zimbabwe Limited 1998 (2) ZLR 488 (S)…, where GUBBAY CJ said;

“Compromise or transactio is the settlement, by agreement, of the disputed obligations, or of a lawsuit the issue of which is uncertain. The parties agree to regulate their intention in a particular way, each receding from his previous position and conceding something - either diminishing his claim or increasing his liability. See Achalia v Har berev & Company 1905 TS 457 at 462 in fine; Tauber v Von Abo 1984 (4) SA 482 @ 485 G-J; Karson v Minister of Public Works 1996 (1) SA 887 E 893 F-G.

The purpose of compromise is to end doubt and to avoid the inconvenience and risk inherent in resorting to the methods of resolving disputes. Its effect is the same as res judicata on a judgment given by consent. It extinguishes ipso jure any cause of action that previously may have existed between the parties, unless the right to rely thereon was reserved. See Nagar v Nagar 1982 (2) SA 263 (ZH) 268 E-H.

As it brings legal proceedings already instituted to an end, a party sued on a compromise is not entitled to raise defences to the original cause of action.”

Counsel for the applicant however stopped the quotation just before he got to the crucial part for the determination of the dispute between the parties. Immediately after the above, GUBBAY CJ said;

“See Hamilton v Van Zyl 1983 (4) SA 379 (E) at 383H. But, a compromise induced by fraud, duress, justus error, misrepresentation, or some other ground for rescission, is voidable at the instance of the aggrieved party - even if made an order of court.”

It is therefore clear from Georgious and Another v Standard Chartered Finance Zimbabwe Limited 1998 (2) ZLR 488 (S) that a compromise cannot be based on “justus error.”

Counsel for the respondent submitted that the respondent was not, at the time it negotiated for the extension of the three months notice, aware that it was entitled to six months notice as it did not have its copy of the lease agreement. He therefore argued that it neither compromised nor waived its right to six months notice. He therefore relied on the defence of justus error and referred the court to the case of Hepner v Roodepoort - Maraisburg Town Council 1962 (4) SA 772 (A)…, where STEYN CJ said;

“There is authority for the view that in the case of waiver by conduct, the conduct must leave no reasonable doubt as to the intention of surrendering the right in issue. (Smith v Mombery (1895) 12 SC 295 at 304; Victoria Falls and Transvaal Power (Pvt) Ltd v Consolidated Langflaagte Mines Ltd 1915 AD 1 at 62); but, in Martin v De Kock 1948 (2) SA 719 (AD) at p 733, this Court indicated that, that view may possibly require reconsideration. It sets, I think a higher standard than that adopted in Laws v Rutherford 1924 AD 261 at 263 where INNES CJ said;

'The onus is strictly on the appellant. He must show that the respondent, with full knowledge of her right, decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it.'

This accords with the test applied in Kenny's case and was followed in Collen v Rietfontein Engineering Works 1948 (1) SA 413 (AD) at 436, and Linton v Corser 1952 (3) SA 685 (AD) at p 695, (CF Ellis and Others v Laubscher 1956 (4) SA 692 (AD) at p 702).

In my opinion. the test is more correctly stated in these cases.”

I respectfully agree with STEYN CJ's observations, the applicant in this case must, on the balance of probabilities, show that the respondent knowingly abandoned its right to insist on six months notice.

Counsel for the respondent also referred the Court to the case of Ex parte Sussens 1941 TPD 15…, where MURRAY J said;

“The necessity for the full knowledge of the law in the case of waiver follows from the principle that waiver is a form of contract in which one party is taken, deliberately, to have surrendered his rights; there must therefore be proof of an intention so to surrender, which can only exist where there is knowledge both of the facts and the legal consequences thereof.”

It is therefore clear that for the applicant's claim, that the respondent compromised or waived its right to six months notice to succeed, it must prove that it did so expressly or by conduct well knowing the facts and the legal effect of such compromise or waiver.

The facts of this case clearly demonstrate that the respondent persistently wanted more time in the premises, to the extent, of having to plead with the applicant for extensions. If it was aware of its right to six months notice would it have resorted to pleading instead of demanding that it be given the notice provided for by clause 37.2?

In my view, the respondent was, as it alleges, not aware of the facts on its rights to six months notice. It did not therefore knowingly compromise or waive its right to six months notice. There was, therefore, no compromise or waiver of its right to six months notice. It simply responded erroneously believing the applicant's misleading notice to be in accordance with the lease agreement. There was therefore a common error between the parties. If the applicant could itself be in error as to the correct notice period, why should the respondent not be believed when it says it fell into the same error because it did not have a copy of its lease agreement.

I find the respondent's explanation consistent with a mistaken belief that it had been given adequate notice hence the plea for the extension of the notice period.

In the result, the applicant's application is dismissed with costs.

HH175-12 : VICTORIA FOODS (PVT) LTD vs TRINPAC INVESTMENTS (PVT) LTD and MEDWORTHS PROPERTIES (PVT) LTD
Ruled By: CHIWESHE JP

According to the applicant, the background facts to this matter are as follows: On 21 June 2010, the first respondent, represented by its Chief Executive Officer, signed an acknowledgment of debt in favour of the applicant in the sum of US$418,400=. The debt had arisen on account of the supplies of the applicant's products at the ...

According to the applicant, the background facts to this matter are as follows:

On 21 June 2010, the first respondent, represented by its Chief Executive Officer, signed an acknowledgment of debt in favour of the applicant in the sum of US$418,400=. The debt had arisen on account of the supplies of the applicant's products at the request of the first and second respondents. During the period 6 June 2010 and 1 September 2010 a further debt of US$267,260= was similarly incurred. The total debt then became US$685,659=98 (inclusive of the amount secured under the acknowledgment of debt).

The respondents made payments to the tune of US$195,494= leaving a balance of US$490,165=. A surety mortgage bond was then created to cover this debt in which the second respondent was the mortgagor and the applicant the mortgagee. In terms of clause 11 of the surety mortgage, should the mortgagor fail to pay the amount when due after demand and after seven days, the amount shall immediately become due and payable. It was also provided in the bond that any debt that would arise in future would still be subject to the security of the bond.

The debt has remained largely unpaid, and, despite demand, the respondent has failed to pay the money owed to the applicant. For this reason, the applicant has lodged this application seeking an order compelling the respondent to pay the sum of US$490,165= failing which the mortgaged property be declared specially executable. Further, the applicant seeks that the respondent be ordered to pay interest at the prescribed rate plus costs on the legal practitioner-client scale, including 10% collection commission.

The respondents agree that the facts are largely common cause. They do not dispute the fact and extent of their indebtedness.

The first respondent runs a bakery business. They aver that on 21 July 2010 it was agreed by the parties that the applicant would start providing the first respondent with flour so that it would be able to service its debt. The first respondent was expected, in terms of that agreement, to make weekly repayments of US$30,000=. The applicants then started supplying the first respondent with flour, confirmation, according to the respondents, that the parties had entered an acceptable arrangement. By this arrangement, the first respondent was servicing both the old debt and the new debt. However, the applicant stopped supplying flour as from 1 September 2010. As a result, the first respondent's weekly payments stopped on 14 September 2010. No explanation was proffered by the applicant as to why the flour supplies had been stopped. For this reason, argue the respondents, it was the applicant that breached the compromise and therefore the first respondent is not obliged to pay this claim until such time as the applicant would have purged its breach.

In its answering affidavit, the applicant denies any breach of any agreement with the respondents. It avers that it reached a compromise with the respondents in order to assist the respondents out of sympathy and the need to recover the debt by supplying the first respondent with flour with which to make its products. The compromise was made on condition the first respondent would repay the old and the new debts at the acceptable rate of US$30,000= per week. When the applicant made the first flour supply, the respondent did not pay anything within the agreed fourteen days period. That was a breach of the new agreement. The applicant avers that the respondents are not being truthful in their narration of the events leading to the cessation of flour supplies.

It is common cause that the parties entered into a compromise agreement in which the applicant would supply flour to the respondents and they would, in turn, repay their debts at the rate of US$30,000= per week. The US$30,000= was to be paid, at any rate, within fourteen days of delivery of each batch of flour. It is also common cause that although the offer of compromise was made in writing by the respondents the applicant's acceptance is implied by way of its conduct in resuming flour supplies along the lines and terms proposed by the respondents.

The applicant does not contend that it did not enter into a compromise arrangement – rather, it argues that the respondents breached the compromise arrangement.

According to FARLAM & HATHAWAY “A Case Book on the South African Law of Contract”…,:

“A compromise agreement, once entered into, precludes an action on the original debt, except where the compromise specifically, and by clear implication, provides that the original claim shall revive in the event of the non-performance of the terms of the compromise.”

See also Hamilton v Standard Chartered Finance 1998 (2) ZLR 488 (S).

It follows from the above that the parties are bound by the terms of the compromise agreement. Neither of them can resile from that agreement as the applicant tries to do by arguing that the compromise agreement was merely for the purposes of enabling the respondent to meet its commitments under a previous agreement, and that, in doing so, the applicant acted out of sympathy with the respondent. If that was what the applicant had in mind it should have responded to the applicant's offer of compromise accordingly. Instead, the applicant's conduct, in resuming flour supplies as proposed by the respondent in return for the US$30,000= per week repayment plan, bound itself to the compromise agreement. As a result, the applicant can only sue in terms of the compromise agreement and not in terms of the acknowledgement of debt or any other previous arrangement.

Did the respondents breach the compromise agreement?

The respondents say they failed to meet the repayment plan because the applicants had stopped (without notice) the flour supplies. The applicant says it stopped supplies after the respondents had failed to repay the US$30,000= which they were obliged to repay in terms of the compromise.

Whether the applicant or the respondents breached the compromise is a question of fact.

There is a dispute as to whether it was the applicant who breached the agreement by failing to supply flour or the respondents by failing to make repayments timeously. The respondents say that supplies of flour ended on 1 September 2010 and payments stopped on 14 September 2010, implying that it was the applicant who was in breach. The respondent states that they had been paying at the rate of US$6,000= per day every five day week, making a total of US$30,000= per week. These figures are reflected in the reconciliation prepared by the respondents and filed of record as Annexure “F”. The reconciliation indicates both the new debts (after compromise) and the old debts. The respondent says both the old and the new debts were being serviced together.

The factual dispute between the parties is one that cannot be resolved without hearing viva voce evidence. The applicant ought to have foreseen the emergence of this factual dispute. I am inclined to dismiss this application for this and other reasons outlined above.

Accordingly, it is hereby ordered as follows:

1. That the application be and is hereby dismissed.

2. That the applicant pays the costs.

HH38-10 : LUCIA MUNYANYI vs LIMINARY INVESTMENTS AND ISRAEL GUMUNYU N.O.
Ruled By: MAKARAU JP

Counsel for the first respondent sought to argue that the applicant waived her right to retain the premises until the date of transfer by allowing the first respondent occupation of the same prior to that date. In my view, waiver is not the correct legal principle applicable in this matter. Waiver is usually pleaded as a ...

HH102-12 : GRAEME CHADWICK vs JG CONSTRUCTION
Ruled By: MATHONSI J

The applicant…, instituted summons action against the respondent company.., for payment of a sum of US$88,000= together with interest at the prescribed rate and attorney and client costs. In his declaration, the applicant averred that he sold and delivered to the respondent a UD Nissan 15 ton truck for a price of US$68,000= about 2006 or ...

The applicant…, instituted summons action against the respondent company.., for payment of a sum of US$88,000= together with interest at the prescribed rate and attorney and client costs.

In his declaration, the applicant averred that he sold and delivered to the respondent a UD Nissan 15 ton truck for a price of US$68,000= about 2006 or 2008 which amount the respondent failed to pay. He averred, further, that on 23 August 2010 the respondent acknowledged indebtedness in that sum but still did not pay. Instead, after negotiations, in February 2011, the respondent offered to pay that capital amount together with an additional US$20,000= as fixed interest in recognition of the lengthy delay in payment, hence the claim of US$88,000=….,.

The applicant maintains that…, the respondent signed an acknowledgement of debt in the capital sum of $68,000= and went on to make an offer, in writing, to pay fixed interest of $20,000= which offer was also accepted in writing.

The acknowledgement of indebtedness, signed by the parties on 23 August 2010, with the respondent represented by the applicant's erstwhile friend, Jacobus Andrew Summerfield, has been submitted and it is on the respondent's very own letterhead. It reads, in part, thus:

“We hereby agree that J G Construction owes Mr Graeme Chadwick US$68,000=. Any other acknowledgement of debts between J G Construction, Mr Graeme Chadwick, and Mr Jacobus Andries Summerfield are now null and void except for this one.”

In addition to that, on 18 February 2011, Jacobus Andrew Summerfield sent a written offer to the applicant, again, on the respondent's letterhead, in the following:

“I can offer you 88K as soon as you would like it and in one payment.”

This was followed by another dated 25 February 2011 which states;

“I think that you have misunderstood, Graham, I can only offer you $88K in total but can arrange for that payment immediately.”

The offer was accepted by the applicant by letter dated 17 June 2011 which also explains the route the parties took to arrive at the figure. The applicant wrote:

“I accept the offer of $88,000= in your email of 18 February 2011 and 21 February 2011 as the full and final amount owed by J.G. Construction (Pvt) Ltd to me for the UD15 ton truck and trailer sold to J G Construction in about 2006 or 2008.

We agree that this amount includes the capital amount of $68,000= contained in the acknowledgement of debt dated 23 August 2010 and remaining $20,000= is the final amount agreed (offered and accepted) as interest on the capital even though you had originally indicated that you would pay me interest at 15% per annum, which is US$10,200= interest per year, or $30,600= interest from 2008 or $51,000= interest from 2006. In the end you only offered me US$20,000=. I accept it as the total interest from 2006 or 2008 to date.”…,.

Counsel for the respondent half-heartedly tried to argue that the interest claimed violates the Money Lending and Rates of Interest Act [Chapter 14:14]. He did not develop that argument at all and could not even cite the rate of interest that was applied.

I agree with counsel for the applicant that whatever interest was agreed by the parties was a compromise. A compromise is a settlement of disputed obligations. See R H CHRISTIE, Business Law in Zimbabwe, 2^nd ed…,. A party sued on a compromise is not entitled to raise defences to the original cause of action. Moyo & Anor v Intermarket Discount House Ltd 2008 (1) ZLR 268 (S).

HH64-10 : STATIONERY BOX (PVT) LTD vs NATCON (PVT) LTD and FARAI NDEMERA
Ruled By: MAKARAU JP

This is an application for summary judgment. On 6 October 2009, the plaintiff issued summons against the defendants claiming the sum of US$4,568=85 in respect of certain goods allegedly sold and delivered at the first defendant's special instance. In its declaration, the plaintiff alleged that during the period 22 April to 20 May 2009, the plaintiff supplied stationery ...

This is an application for summary judgment.

On 6 October 2009, the plaintiff issued summons against the defendants claiming the sum of US$4,568=85 in respect of certain goods allegedly sold and delivered at the first defendant's special instance.

In its declaration, the plaintiff alleged that during the period 22 April to 20 May 2009, the plaintiff supplied stationery to the first defendant valued at $9,932=85. On 20 May 2009, the second defendant bound himself as co-principal debtor and surety for the debt due by the first defendant, which, at the date of the suretyship, stood at $8,700=. It was further alleged that the first defendant made several payments to the plaintiff leaving the balance claimed in the summons.

On 13 October 2009, the defendants filed an entry of appearance to defend, prompting the plaintiff to file this application for summary judgment.

The application was opposed.

In opposing the application, the second respondent, who deposed to the affidavit on behalf of both respondents, denied that the first respondent had purchased the stationery from the plaintiff. He averred that the first respondent received an order from its client for the stationery, and it, in turn, sourced the stationery from the plaintiff. When its client failed to pay for the stationery, mainly chalk it would appear, the first respondent advised the plaintiff of the fact. The plaintiff however refused to accept the chalk back. It is further averred that an agreement was reached between the parties in terms of which the first respondent would sell the chalk, presumably to other of its customers and remit periodic payments to the applicant. This the first respondent had been doing prior to the issuing of summons.

At the hearing of the application, the applicant applied for leave to file an answering affidavit. In terms of the rules, the proper term for this affidavit should be “supplementary affidavit” and not answering affidavit. The name of the affidavit is to be derived from the wording of Rule 67 of the High Court Rules 1971, which I refer to below, which grants discretion to the court to allow a plaintiff to supplement his founding affidavit. No answer is permissible in summary judgment proceedings.

In the affidavit, the plaintiff denied that it sold the stationery to the first defendant on consignment. It maintained that it had sold the stationery to the first respondent outrightly and further denied the alleged arrangement between the parties to the effect that the purchase price would be remitted to the applicant as and when the first respondent was able to sell the stationery to its customers.

The filing of a supplementary affidavit is restricted, in the discretion of the court, to instances where a defence that was not anticipated by the applicant is raised in the opposing affidavit. See Beresford Land Plan (Pvt) Ltd v Urquhart 1975 (1) RLR 260 (G) and Omashah v Karasa 1996 (1) ZLR 584 (H).

As stated above, paragraph (c) to the proviso to Rule 67 of the High Court Rules, 1971 grants power to the court to permit the plaintiff to supplement his founding affidavit with a further affidavit dealing with either matters raised by the defendant which the plaintiff could not reasonably be expected to have dealt with in his first affidavit or the question whether, at the time the application was instituted, the plaintiff was or should have been aware of the defence.

Rule 67 provides as follows:

“No evidence may be adduced by the plaintiff otherwise than by the affidavit of which a copy was delivered with the notice, nor may either party cross-examine any person who gives evidence viva voce or by affidavit:

Provided that the court may do one or more of the following —

(a) Permit evidence to be led in respect of any reduction of the plaintiff's claim;

(b) Put to any person who gives oral evidence questions —

(i) To elucidate what the defence is; or

(ii) To determine whether, at the time the application was instituted, the plaintiff was or should have been aware of the defence;

(c) Permit the plaintiff to supplement his affidavit with a further affidavit dealing with either or both of the following —

(i) Any matter raised by the defendant which the plaintiff could not reasonably be expected to have dealt with in his first affidavit; or

(ii) The question whether, at the time the application was instituted, the plaintiff was or should have been aware of the defence.”

In casu, I allowed the filing of the answering affidavit on the turn and indicated that my reasons would follow. It is convenient that I now set them out.

The plaintiff's claim against the defendant is for the sum of $4,568=85 in respect of goods sold and delivered. Correspondence between the parties, prior to the issuance of summons, which are attached to the founding affidavit, indicated that the defendants had failed to collect the purchase price from their customer and were in the process of collecting the chalks back. The sale agreement between the parties was not denied in any of this correspondence. Liability was also not specifically or impliedly denied at this stage. The logistical arrangement relating to the return of the chalk was informed of the plaintiff - not as a defence to the claim. It was simply by way of information with a request that the defendants be granted two weeks to finalise (this arrangement).

In my view, it was therefore not reasonably expected of the plaintiff to deal with the issue of the return of the chalk in its founding affidavit as such return was a mere logistical arrangement that the defendants felt they had to attend to. It was not suggested as a defence to the claim for the payment of the balance of the purchase price.

In opposing the application for summary judgment, the defendant used the return of the chalk as a defence and the plaintiff needed to deal with this unexpected alleged defence.

It is on the basis of the above that I allowed the supplementary affidavit, wrongly headed “Answering Affidavit”, to be filed.

The test to be applied in summary judgment applications is clear and settled on the authorities.

The defendant must allege facts which, if he can succeed in establishing them at the trial, would entitle him to succeed in his defence. Obviously implied in this test, but oft overlooked by legal practitioners, is that the defendant must raise a defence. His facts must lead to and establish a defence that meets the claim squarely. If the facts that he alleges, fascinating as they may be and which he may very well be able to prove at the trial of the matter do not amount to a defence at law, the defendant would not have discharged the onus on him and summary judgement must be granted.

In casu, the defendants allege that after they had obtained the chalk from the plaintiff, and having, in turn, delivered the chalk to their own customer, they failed to get the customer to pay for the chalk. This may very well be true and I have no doubt that the defendant may be able to prove that this is what happened.

The issue to be determined is whether this amounts or constitutes a defence to the claim raised by the applicant for the balance of the purchase price of the chalk.

The general rule is that once the parties are in agreement over the merx and the payment of the purchase price payable for the merx, a valid contract of sale comes into being between the parties. The contract them casts upon the seller the obligation to deliver the merx sold and upon the purchaser, the obligation to pay the purchase price. To defend a claim under an agreement of sale, then, the purchaser must attack either the existence of the agreement itself or the fact that the goods sold were not delivered to him.

The defendants before me have denied that they purchased the chalk from the plaintiff. Such denial is not only bare but is contradicted by their further averments that they indeed received the chalk from the plaintiff and that they have paid part of the purchase price to the plaintiff. In the face of such an admission, the defence that there was no agreement of sale between the parties in untenable and the plaintiff must succeed.

The plaintiff has generously interpreted the facts alleged by the defendant in the opposing affidavit as raising a contract of consignment. I say generously because the defendants have not so alleged in their papers.

At this stage, I believe that it is pertinent that I set out, in full, the contents of what I regard as the operative part of the defendants' opposing affidavit. In response to the averments verifying the plaintiff's cause of action and the fact that the defendants had entered appearance to defend solely for the purposes of delay, the defendants had this to say in paragraph 4 of their joint affidavit:

“This is disputed. The applicant did not supply any stationery to the first respondent. The brief facts are that:-

4.1 The first respondent obtained an order for chalks from its customer Kingstones which it, in turn, sourced from the applicant.

4.2 After receiving the chalks, Kingstones failed to pay for them and returned the chalks; the applicant was advised and the Applicant refused to accept the chalks back.

4.3 An agreement was reached with the applicant in terms of which the respondent would sell the chalk and remit payments to the applicant as and when any quantity was sold.

4.4 The 1^st respondent has been selling the chalks and remitting the proceeds of the sold quantities to the applicant.

4.5 Indeed, the Applicant's Annexure “A” confirms this arrangement.”

As was remarked by McNALLY JA in Mbayiwa v Eastern Highlands Motel (Pvt) Ltd SC139-86…,:

“…, while the defendant need not deal exhaustively with the facts and the evidence relied on to substantiate them, he must at least disclose his defence and material facts upon which it is based with sufficient clarity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence.”

I find the contents of the defendants opposing affidavit contradictory, confusing, and lacking the sufficient clarity and completeness that McNALLY J A referred to.

Whilst the defendants deny that the applicant delivered to them any chalk, they proceed to concede that they sourced for chalk from the applicant which somehow ended up with their customer. In this regard, for instance, it is not clear whether the defendants are setting up the defence of agency, in which case they would not be liable for the purchase price of the chalk. The defendants do not clearly raise agency as a defence and it would appear from their subsequent averments that the relationship was not between the plaintiff and Kingstones directly but that Kingstones was a customer of the defendants only.

Similarly, it is equally not clear whether the facts alleged by the defendants, as detailed above, raise a contract of consignment.

I do not think so.

I do not read any allegation of a contract whereby the plaintiff, as one trader, entrusted the chalk to the first defendant for the chalk to be sold by the first defendant on behalf of the plaintiff.

The opposing affidavit spells out, clearly in my view, that the defendants obtained an order from their own customer for the chalk. They then approached the plaintiff for the chalk. The plaintiff did not seek the defendants out for them to sell its chalk on consignment in which event the plaintiff would be obliged to accept back whatever portion of the consignment remains unsold. Rather, the defendants appear to me quite clear that it was only after their customer had failed to pay for the chalk that they approached the plaintiff with the news and sought to return the chalk to the plaintiff.

In my view, the facts alleged by the defendant do not in themselves constitute a defence. If it was the intention of the defendant to deny liability for the purchase price of the chalk, and, instead to allege that the customer who failed to pay for the chalk was actually liable for the payment of the chalk directly to the plaintiff, on the basis of either agency or consignment, such must have been alleged clearly.

In my view, it is not the function of the court to put words into the defendant's mouth and thereby establish a possible defence on his behalf when the defendant fails to do so in his opposing affidavit.

I have also considered whether the alleged subsequent agreement between the parties, that the defendants would proceed to sell the chalk and remit periodic payments to the plaintiff, would constitute a defence to a claim for the purchase price of the chalk. In this regard, I have considered whether this subsequent arrangement, if proved, would constitute a variation of the terms of the original agreement between the parties.

It would have assisted me greatly had this been pleaded or argued before me.

Instead, even the original agreement of sale is denied in the defendants' papers. How then can I, mero motu, hold that the defendants are raising a possible defence to the plaintiff's claim to the effect that the terms of the original agreement were varied by a subsequent agreement in the circumstances?

HH75-10 : A.C. CONTROLS (PVT) LTD vs EMMANUEL MIDZI and ALPADETAIL (PVT) LTD t/a E AND Z ENTERPRISES P/L
Ruled By: UCHENA J

The applicant is a company duly incorporated in terms of the laws of Zimbabwe. It carries on the business of electrical engineering. The first respondent was its employee. He was its Chief Executive Officer. He tendered his letter of resignation on 8 February 2010.

The second respondent is the first respondent's company duly registered in terms of the laws of Zimbabwe. It, like the applicant, carries on the business of electrical engineering.

In terms of clause 16.1 of the applicant and first respondent's contract of employment the first respondent is restrained from competing with the applicant. Clause 16.1 provides as follows:

“You are required to devote your attention at work to the affairs of A C Controls. You may not be involved, either directly or indirectly, during or after business hours, in any undertaking that is adverse to, prejudicial to or competing with the interests of A C Controls. All business interests must be declared at commencement of this appointment, and approval for subsequent outside business interest must be obtained from the Chairman.”

The first respondent, believing he had resigned and was no longer bound by clause 16.1, on 8 March 2010, wrote to Netone, on behalf of the second respondent, seeking to be put on its contractors list.

The request was brought to the applicant's attention by Netone. Net One is the applicant's client. The first respondent, in his capacity as the applicant's CEO, used to communicate with it on the applicant's behalf.

The applicant, believing the first respondent was still its employee, filed this application to stop the first and second respondents from competing with it. It sought a provisional order on the following terms:

“(a) That the first and second respondents are hereby interdicted from engaging in any business in competition with the applicant.

(b) That the first and second respondents are barred from providing any service to Netone.”

The applicant's counsel submitted, that, the second respondent, though not the applicant's employee, is being sued on the understanding that it is the first respondent's alter ego.

The respondents opposed the applicant's application, raising the defence, that, the first respondent is no longer the applicant's employee, as he resigned from its employment on 8 February 2010.

This case depends on the interpretation of clauses 16.1 and 23.4 of the applicant and the first respondent's contract of employment, and the determination of whether or not the first respondent's letter of resignation, dated 8 February 2010, terminated the employer/employee relation which existed between the applicant and the first respondent.

Counsel for the applicant submitted that clause 16.1 is still binding between the applicant and the first respondent because the first respondent, in spite of the purported resignation, is still the applicant's employee. He argued that the unilateral resignation violates the terms of clause 23.4 of the contract of employment which reads as follows;

“Where neither party is in breach, but termination is desirable, this shall be settled by mutual agreement.”

Counsel for the respondents submitted, that, the relationship between the applicant and the first respondent was terminated by the first respondent's letter of resignation. He further submitted, that, resignation is a unilateral act which need not be accepted by the employer. He further submitted that there was breach of contract which led to the first respondent's resignation.

Clause 16.1and 16.2

Clause 16.1 clearly deals with a situation where the employee is still in the employer's employment. It does not extend to a period after the employee's resignation.

Once the employer/employee relationship has come to an end it ceases to be of any effect.

Counsel for the applicant sought to argue, that, the first respondent is a director of the applicant and a shareholder of its subsidiary, and is therefore, by virtue of those positions, still barred from competing with the applicant.

That argument is not tenable.

It does not fall within the terms of clause 16.1 and 16.2, and the first respondent's acceptance of those positions has not yet been agreed.

In his letter of resignation, the first respondent sought to be informed of the terms on which he was being offered those positions. This means there is no agreement on those positions. The applicant's argument cannot succeed because clause 16.1 does not restrain trade for the first respondent's directorship or his being a shareholder of the applicant's subsidiary, and, the agreement between the parties on these appointments has not yet been finalized.

Clause 23.4

The applicant's counsel submitted, that, this clause was not breached, and because there was no breach therefore the applicant's letter of resignation did not terminate the contract of employment.

Counsel for the respondents submitted, that, the first respondent's letter of resignation clearly states that there was breach of contract and specifies the aspects of the contract which were breached. He, on p1 of the letter of resignation, said;

“I also indicated that the current revenue base does not allow the company to pay for my family's (immediate and extended) needs and basic survival. Since October 2009 I had to liquidate family assets to survive. I should underline that I have no ill feelings on the company for this situation. The business environment dictated the present situation.”

The letter of resignation is complaining of the applicant's failure to meet its contractual obligations. The fact that he says he understands the underlying reasons for the breach does not mean that there was no breach.

In the circumstances, the applicant breached the first respondent's conditions of service, resulting in his having to liquidate his family assets to survive. The applicant cannot, in these circumstances, be heard to say that there was no breach and the first respondent had to resign by mutual agreement in terms of clause 23.4. The first respondent was entitled to resign in the manner he did because there was a breach of contract by the applicant.

HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA
Ruled By: MAKARAU JP

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…, that I do not believe his testimony in ...

HH124-09 : MAXWELL TAWODZERA AND MARGARET TAWODZERA vs DANNY MASUKUMA
Ruled By: MAKARAU JP

To be fair to him, I did not understand the defendant to testify, or suggest, that there was a defect attendant upon the formation, or execution of the first Agreement of Sale. His contention, rather, was that the parties discarded and abandoned the Agreement on the advice of his legal practitioner when it emerged that neither ...

HH160-09 : SMART GONONDO vs ALICE MUTEPFA and PORTIA NYAMAROPA and CITY OF MUTARE (DIRECTOR OF HOUSING)
Ruled By: MAVANGIRA J

On 15 November 1996 the applicant and the first respondent entered into an Agreement of Sale in terms of which the applicant purchased from the first respondent an immovable property known as Stand No.6670 Chikanga 3, Mutare. The purchase price was agreed at $18,000=. Of this amount, $10,000= was paid on the date of the ...

In terms of clause 2 of the agreement, commencement of payment of the balance of the purchase price, in the sum of $8,000=, was to be paid after a grace period which extended from the date of signature up to 30 June 1997. A monthly payment of $750= was to be made with effect from 1 July 1997, and, thereafter, the same amount was to be paid by the first day of each succeeding month until full payment was made.

In terms of clause 3, the seller, being the first respondent, was to deliver vacant possession of the property to the buyer, that is the applicant, within 7 (seven) days from the date of payment of the final instalment. Transfer of the property to the purchaser was to be effected at the same time.

In terms of clause 4, the purchaser was to pay all charges in respect of the property with effect from the month of December, presumably of the year 1997, onwards. The purchaser was also required to develop the property to the level or stage at which the third respondent would approve transfer (cession) of the property, in terms of its by-laws.

In terms of clause 5 of the agreement, the purchaser would pay the monthly instalments into the seller's POSB account, the details of which account would be furnished to the purchaser by the seller. The clause then further provides as follows:

“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 concluding paragraph is to the effect that the meaning and import of the agreement has been explained to the parties in the Shona language and they have understood the same.

The applicant avers that he paid the full purchase price of the property as evidenced, firstly, by clause 1 of the agreement which acknowledges payment of the initial $10,000=, and, secondly, by receipts, copies of which he attached to his founding affidavit. He also avers that he prepared plans which were approved by the third respondent. In this regard, Annexure C1 to his founding affidavit is a document dated 2 January 2003 addressed to the applicant by the third respondent's City Engineer's department and in respect of the Stand in issue. It informs the applicant that his plans, which were submitted in respect of the Stand in question, have been approved subject to the relevant Municipal Bye-laws and certain conditions stated therein.

Annexure C2, dated 21 June 2005, is also addressed to the applicant by the third respondent's City Engineer's department in respect of the same Stand. It also informs the applicant that one copy of his plan has been “pre-approved” on condition that he adheres to certain conditions also stated therein. It further states that the “pre-approval” is valid for one year from the date stamped on the plans.

Annexure D to the founding affidavit reflects copies of two inspection logs. One is dated 27 July 1999 showing approval by the City Engineer's Department of the stage referred to as “Brickfooting.” The other is dated 27 August 1999 showing approval of the stage referred to as “Hardcore.”

The applicant also avers that he commenced to build on the undeveloped and vacant Stand and has erected a house which is at window level. Then, sometime in June 2005, the first respondent began to interfere with the applicant's access to the premises. This led to the applicant's legal practitioners writing a letter, on 7 July 2005, to the first respondent, and, amongst other things, giving her fifteen days' notice to effect cession of the property into the applicant's name as well as two (2) months' notice to vacate the property.

The first respondent did not cede the property to the applicant. However, the applicant then received a water bill dated 17 July 2006 addressed in the name of the second respondent. This prompted him to make inquiries with the third respondent and he then ascertained that the first respondent had ceded the property into the name of the second respondent. The second respondent was un-cooperative when he approached her. The first respondent became evasive.

The applicant contends that the second respondent ought to have known that the applicant was the new owner of the property as his builders were on site and the plans for the house that was being erected on the property were in the applicant's name. He also contends that the second respondent was reckless and was not diligent in not making inquiries as she would not have purchased the property which he had already purchased. He contends that the cession to the second respondent was done maliciously by both the first and the second respondents.

The applicant prays for an order in the following terms:-

“That:

1. The first and second respondents be and are hereby order and directed to attend at third respondent and cede their rights and title in House No. 6670 Chikanga Phase 3 (St Joseph) Mutare within fourteen (14) days from the date of service of this court order.

2. In the event of the first and second respondents failing to comply with paragraph 1 above the Deputy Sheriff be and is hereby ordered to sign all relevant cession papers for and on behalf of the first and second respondents and the cession papers with the third respondent who is obliged to accept them and effect the cession into applicant's name.

3. Alternatively, the first respondent pays he applicant ten million (10,000,000,000=) or the current market value of the house as approved by two evaluators which ever figure is higher.

4. The first respondent pays the applicant's costs of suit.” (sic)

The first respondent opposes the application and avers that the applicant failed to pay the balance of the purchase price, in the sum of $8,000=, claiming that the payments reflected in the receipts attached as annexures B1, B2, B3, and B4 to the applicant's founding affidavit were meant for supplementary charges and not for instalments towards the liquidation of the balance as alleged.

The applicant claims that if these were instalments meant to go towards the liquidation of the balance of the purchase price, as claimed by the applicant, the applicant would not have paid the higher amount of $1,000= per month instead of the agreed $750= per month. She further alleges that the building plans could not have been in the applicant's name as the Stand was registered in her name and cession had not yet been effected.

The first respondent also alleges that although the applicant built a house to window level, when she started to demand payment of the balance and of water bills and supplementary charges which he had stopped paying, the applicant then ceased building. Then, in February 2005, the applicant stated that he had purchased another Stand in Harare and was no longer interested in developing the Stand in question. She alleges that the applicant then said that all that he wanted from her was $15,000,000= “for the Stand at its state” so that she could have the Stand back from him. She claims that they reached an agreement, and, in pursuance thereof, she raised the $15,000,000=. However, when she tried to contact the applicant so that she could make the payment to him, he could not be found. On two occasions she went to his rural home but failed to find him. When she finally made contact with him, in August 2005, he promised to come and collect the money but never did.

The first respondent contends that the applicant breached their agreement by failing to pay the balance of the purchase price and the supplementary charges and that the property thereby reverted to her. She disputes that the applicant had any building material at the Stand and further disputes that she used such material to construct an outbuilding as alleged by the applicant. As the property reverted to being hers she then sold it to the second respondent in November 2005 and ceded it to her. She further states on her opposing affidavit that as the applicant failed to collect his money, as detailed above, she was thus tendering it.

The first respondent agrees that the applicant was the first purchaser. She however claims that they later agreed that she retain her property, which she did “after having managed to raise the agreed purchase price”. She then thereafter sold the property to the second respondent who was a bona fide purchaser. She claims that she was, at that stage, at liberty to sell the property to anyone.

In supplementary heads of argument filed on behalf of the first respondent, the point is raised, in limine, that the applicant's cause of action is prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11].

She submitted therein that the agreement between the applicant and the first respondent having been entered into on 15 November 1996, when this court application was filed on 10 October 2006, it was long after the expiry of three years and as there had been no judicial interruption during the interceding period, the claim had since prescribed. On the merits, it is submitted that there are irreconcilable disputes of fact which no matter how robust the court is, it cannot possibly resolve without hearing viva voce evidence.

The first respondent thus prays for the dismissal of the application with costs.

The second respondent, despite being served with the court application, has filed no opposing papers….,.

THE MERITS

It is true that there is a dispute of fact regarding whether or not the applicant paid the purchase price in full. The payments reflected on the receipts annexures B1, B2, B3, and B4 were made into the first respondent's POSB account, and, in terms of the agreement were meant to be payments of instalments for the balance outstanding in the sum of $8,000=, the initial payment or deposit of $10,000= having been made at the time of the signing of the agreement.

The fact that the applicant paid instalments in the amount of $1,000 per instalment and not $750 as per agreement cannot possibly be a cause for complaint by the seller. Rather, the payment of the outstanding balance was completed in a shorter period than would have been the case had the instalments been paid in the agreed amount. In any event, it cannot be by coincidence that the payments reflected in the said receipts amount to a total of $8,000 which is also the amount of the balance of the purchase price after the initial payment of $10,000.

It is highly improbable that the applicant would give priority to the payment of supplementary charges and water bills whilst neglecting payment of the balance thereby placing himself in breach of a material term of the agreement. Furthermore, the payments having been made into the first respondent's POSB account were also, barring the quantum of each instalment paid, made in accordance with the provisions of the agreement regarding payment of the balance. The payments reflected in the receipts referred to above commenced on 1 July 1997 which date is also stipulated in the agreement as the date of the payment of the first instalment which was to be made after a grace period of about nine and half months that is from 15 November 1996 to 1 July 1997. Other charges in respect of the property were to be paid by the applicant as from December.

For the above reasons, the first respondent's version and claim that the payments in question were not payments towards the liquidation of the balance of the purchase price but rather were for water and supplementary charges is highly improbable in the circumstances. Thus, the dispute of fact is not one that is incapable of resolution on the papers.

On a balance of probabilities the applicant has proved that he paid the purchase price in full. He did not breach the agreement as alleged by the first respondent. The subsequent sale of the property by the first respondent to the second respondent was therefore improper and unlawful. She had no authority to sell it nor title to pass.

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.

HH49-10 : HENRY NYOKA vs JENNIFER MUREZA
Ruled By: MAVANGIRA J

The plaintiff issued summons for the ejectment of the defendant from House No.14 Msasa Park Drive, Msasa Park, Harare. The basis of the plaintiff's claim is that he is the sole owner of the immovable property.

He avers that upon the termination of an unregistered union between him and the defendant, the defendant, who had resided at the said premises during the subsistence of and on the basis of the unregistered customary union, refused to vacate the plaintiff's house and remains in unlawful occupation thereof.

The defendant counterclaimed for a fair division and distribution of all the assets which the parties acquired during the subsistence of their unregistered customary union.

The basis, as amended, of the defendant's counter-claim is that the nature of their customary union was such that it formed a tacit universal partnership and should thus be governed by General Law as opposed to Customary Law. The defendant further avers that in the event that customary law governs the proprietary interests of the parties the plaintiff would be unjustly enriched should he retain as his sole property the assets acquired through the joint and complementary efforts of the parties during the subsistence of their union. It would also cause an injustice to the defendant who contributed both directly and indirectly to the acquisition of the movable and immovable property.

The defendant's claim regarding the immovable property known as Stand No.700 Chadcombe Township, Salisbury Township, commonly known as House No.14 Msasa Drive, Msasa Park, Harare, is that it be shared equally between the two parties with each party getting a fifty percent (50%) share. She also has an itemized proposed distribution of the movable property.

An amended joint pre-trial conference minute dated 9 September 2009 and signed by both parties' legal practitioners records the following as the issues referred for trial:

“1. Whether or not the following movable property should be shared between the parties -

(a) 5 door frames.

(b) 1 window frame.

2. What percentage of the value of House No.14 Msasa Park Drive, Msasa Park, Harare should be paid to the defendant before she vacates the property?”

It also records the following admissions:

“(a) Both parties admit that a tacit universal partnership existed during the subsistence of their union.

(b) Both parties accept and admit that an order for the distribution of their movable property be made in accordance with the settlement contained in the 'minutes of settlement' dated 18 August 2009 and filed of record.”

A document headed 'Minutes of Settlement Conference' dated 9 September 2009 and signed by both parties' legal practitioners records and itemizes the movable assets that the parties agreed ought to be awarded to each party and this will be reflected in the court's order.

It also records that the parties failed to agree on how to share five door frames and one window frame.

It records that both parties agreed that House No.14 Msasa Park Drive, Msasa Park, Harare should be distributed and shared between the two of them. It records that the parties agreed that the immovable property was valued at USD45,000. It also records that the parties agreed that the defendant should vacate the property upon being paid her share therein. It records that the plaintiff's stance was that the defendant's share in the immovable property does not exceed eight percent (8%) of its aforesaid agreed value while the defendant's stance was that her share is 40% of the agreed value. It also records that this issue remained unresolved by the parties.

It is clear, from a perusal of the amended joint pre-trial conference minute, that the parties came to an agreement that a tacit universal partnership existed during the subsistence of their unregistered customary law union. It appears that it is on that basis that they proceeded to negotiate and agree on the distribution of the movable assets as listed in their 'Minutes of Settlement Conference'.

It is noted that this is so despite the stance taken by the plaintiff, in his pleadings, particularly in response to the defendant's counterclaim wherein he disputed that there was a tacit universal partnership between them and further contended that the defendant had no claim to the property which he claimed was all acquired through his single-handed efforts and without any contribution from the defendant. It is also noted that it is on the same date when this agreement was reached that the defendant's amendment to her counterclaim was filed so as to plead tacit universal partnership or unjust enrichment in the alternative.

In view of the agreement between the parties, I shall proceed to determine the defendant's counterclaim on the basis of the principles applicable to tacit universal partnerships.

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

Veronica Nechitima conceded, on behalf of all of the respondents that they knew they had been retrenched and they also accepted payments from their retrenchment packages. If indeed there were any irregularities..., the respondents should have proceeded by way of review in this court. They did not do so, and thereby waived their right to challenge the retrenchment package. In Chidziva & Ors v Zimbabwe Iron & Steel Company Co. Ltd 1997 (2) ZLR 368 (S) KORSAH JA had this to say regarding the issue of waiver -

“The effect of the waiver of a legal right is to extinguish that right and any concomitant obligation: Laws v Rutherford 1924 AD 261. In order to establish a waiver, all that one must show is that the party has taken some step which is only necessary, or only useful, if the objection to the irregularities has been actually waived or has never been entertained. However, the intention, or conduct, of the party waiving a right must be conveyed to the other party...,.

In the present case, the conduct of the majority of the retrenched employees, by accepting the retrenchment package, was inconsistent with the enforcement of the right to have the matter referred, in terms of s3(6) of the Regulations, to the Retrenchment Committee, and clearly evinced an intention to surrender that right. The respondent acted upon their intention to accept the retrenchment package, and paid them the benefits of the agreed package. With acceptance of each payment the rights of the appellants perished...,.

It is true that delay in enforcing a right does not per se amount to waiver. Mahaber v Sharman N.O. & Anor 1985 (3) SA 729 (A) 736J-0737A. But, as INNES CJ observed in New York Mutual v Ingle supra at 551:

'Neglect to enforce a right timeously may, under certain circumstances, have the same effect as a waiver of it, even though the period of prescription has not elapsed. Such cases come very near the line of estoppel. As pointed out by the Privy Council in Lindsay Petroleum Co. v Herd (LR5 PC Appeals at p240), where a man has, by his conduct and neglect 'though perhaps not waiving the remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted' then lapse of time becomes of great importance. When a person entitled to a right knows that it is being infringed, and, by his acquiescence, leads the person infringing it to think that he has abandoned it, then he would, under certain circumstances, be debarred from asserting it.” See also Fungura & Anor v Zimnat Insurance Co. Ltd 2000 (1) ZLR 379 (H).

The principles of law enunciated in the paragraphs quoted above apply in casu.

The application was filed on 7 July 2009. The respondents accepted that their employment contracts were terminated at the end of May 2006. The respondents accepted their retrenchment packages. The respondents only started formally raising the issue of irregularities attaching to the Ministry of Public Service, Labour and Social Welfare-approved packages on 26 August 2009 in their notice of opposition to this application. Clearly, they had long lost their chance to approach this court for review. The conduct of the respondents since 31 May 2006 does not help their argument pertaining to irregularities attaching to the retrenchment package(s).

HH236-10 : NATIONAL SOCIAL SECURITY AUTHORITY vs ALEC RYALS AND SKOTRIL (PRIVATE) LIMITED and ALEC KAGURU
Ruled By: MUTEMA J

In the heads of argument the respondents argued that “..., even assuming that there are arrear rentals, which is denied, the applicant waived its right to cancel the lease agreement by accepting subsequent payments.” To buttress this proposition they relied on Parkview Properties (Pvt) Ltd v Chimbwanda 1998 (1) ZLR 409 (H). The ratio in ...

The ratio in the Parkview Properties (Pvt) Ltd v Chimbwanda 1998 (1) ZLR 409 (H) case ..., is premised on the ratio in Masukusa v Tafa 1978 RLR 167(A). The issue in these authorities was whether a landlord could successfully invoke a non-waiver and non-variation clause where the landlord had previously accepted late payments of rental without reservation and had not made his election to cancel the lease within a reasonable time, and, at the latest, when the next payment is tendered. The answer was found to be in the negative. In other words, an attempt by a landlord to go back in time to previous months' defaults after acceptance of subsequent timeous payments enables the lessee to resist a claim for ejectment by raising the exceptio doli against the landlord notwithstanding the provisions of a non-waiver and non-variation clause in the lease agreement.

However, the Parkview Properties (Pvt) Ltd v Chimbwanda 1998 (1) ZLR 409 (H) case ..., is distinguishable from the present case. What was held therein does not detract from the operation of the non-waiver and non-variation clauses for where the lessee, again, makes late payment the following month and the lessor cancels within that month or before any remedy of the breach is done, the lessee cannot, because of these clauses, be heard to argue that previous late payments have been accepted in circumstances amounting to waiver or estoppel. To hold otherwise would definitely yield iniquitous results.

In the instant case the first respondent's last late payment of rentals was on 30 September, 2009, having made only three other late payments from March 2009. By the time the letter of cancellation was effected, on 7 December 2009, no rentals had been paid from September 2009. The facts are therefore not on all fours with those in the Parkview Properties (Pvt) Ltd v Chimbwanda 1998 (1) ZLR 409 (H) case ...,. In the event the notion of waiver is not applicable in casu. The landlord was accordingly perfectly entitled to invoke the non-waiver and non-variation clauses in the lease agreement.

In the event I have no difficulty in finding that the first respondent breached the terms of the lease agreement alluded to above, thereby entitling the applicant to cancel the lease and retake possession of the leased premises amongst a whole range of other rights it is entitled to. The respondents simply have no legal defence to the breach.

HB63-10 : SALLY MAPLANKA vs B. A. NCUBE HOLDINGS
Ruled By: NDOU J

As soon as the rent is not paid by midnight on the 7th of the month the landlord acquires the right of cancellation. Whether rent is then paid on the 8th or 9th or 10th does not affect this legal position except in those circumstances where the acceptance of the rent amounts to a ...

HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT
Ruled By: MATHONSI J

Finding himself in serious difficulty in that regard, counsel for the applicant submitted that by consenting to the appointment of Thwasile Ngwenya as heir, Georgina Ngwenya (Nee Nleya) had signed away her right to inherit the estate and therefore could not unilaterally renege from the agreement….,.I tend to agree with counsel for the first respondent ...

I tend to agree with counsel for the first respondent that the fact that the interested parties found it necessary to get Georgina Ngwenya (Nee Nleya) to sign an affidavit in which she purported to give the house to Thwasile Ngwenya was a realisation that she is the one who was entitled to inherit from her late husband. There is nothing in the papers to suggest that her consent was irrevocable and she gave a satisfactory explanation that she had been tricked into signing away her right when she thought she was signing to get transfer of the house to her name.

I therefore conclude that Georgina Ngwenya (Nee Nleya) was entitled to challenge the appointment of Thwasile Ngwenya as heir - and did successfully do so.

Having come to that conclusion it means that Georgina Ngwenya (Nee Nleya) was entitled to have the house transferred to her name after the death of her husband - and she did secure that transfer. Coupled with the fact that Thwasile Ngwenya did not lodge a claim when the late Willi William Ngwenya's estate was dealt with and did not challenge the appointment of Georgina Ngwenya (Nee Nleya) as heiress, his challenge has come rather late in the day.

Thwasile Ngwenya was therefore not entitled to the order granted to him on 5^th July 2007 which itself is riddled with its own problems of enforcement and meaning. That order cannot stand and the first respondent's rescission of judgment application in Case No. HC376/08 has merit.

It must follow that Thwasile Ngwenya cannot successfully challenge the order granted in favour of the first respondent in Case No. HC956/07 which should stand. Accordingly, Thwasile Ngwenya's rescission application in Case No. HC 258/08 is without merit and cannot succeed…..,.

In the result, the following order is made, namely that:

1. The application for rescission of the judgment of this Court made on 26^th July 2007 filed as Case NO. HC258/08 be and is hereby dismissed with costs.

2. The application for rescission of the judgment of this Court made on 5 July 2007 filed as Case No. HC376/08 is granted with costs and the order made under Case No. HC633/07 is hereby rescinded.

HB128-11 : BEITBRIDGE BULAWAYO RAILWAY (PVT) LTD vs ZIMBABWE AMALGAMATED RAILWAY WORKERS UNION
Ruled By: NDOU J

Further, by receiving the retrenchment packages, the respondent's members seem to have compromised and waived any claims for salary pending review. For as long as the respondent's members have retained their packages they cannot, at the same time, claim or be paid arrear salaries.

HB180-11 : MORROS DLAMINI and MAY MAHLANGU vs LEAH MPANDE and NATHANIEL SIBANDA and DEPUTY SHERIFF
Ruled By: NDOU J

Further, the parties attempted to settle the matter after the service of the summons. They concluded some written agreement. The applicants said the round table meeting between the parties led them to believe that there was no need for them to defend the case. With these factors in mind, I find that the application ...

HH327-14 : TM SUPERMARKET (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and THE SHERIFF OF ZIMBABWE
Ruled By: CHATUKUTA J

The applicant further attempted to explain that the letter, despite the highlighted portions, was not a reflection of the applicant's intention to vacate the premises. Mr Beaumont was said to have expressed intentions “to share ideas” regarding the property and according to the applicant this meant that the applicant had not consented to vacate the ...

It was not clear whether there was any “sharing of the ideas” intimated between 2010 and 2013. The applicant did not allude to any “sharing of ideas” about the property. All that was placed before me relating to that period are letters from the applicant, dated 19 March 2013, and from its legal practitioners, dated 27 November 2013, to the applicant restating the notice being given to the applicant to vacate the premises at the expiration of the lease agreement. In both letters, the first respondent expresses its intention to repossess the premises. It is further clear in the letter dated 25 February 2014, from the first respondent's legal practitioners to the applicant's legal practitioners, that the applicant had, in fact, consented to the first respondent accessing the premises with its engineers and architects to prepare for the rehabilitation of the premises in anticipation of the applicant vacating the premises on 28 February 2014.

It is my view, as submitted by counsel for the first respondent, that the applicant waived its rights to have the dispute resolved by arbitration by consenting to vacate the premises at the expiration of the lease on 28 February 2014. The arbitration clause cannot survive the lease. The applicant cannot now seek to rely on the provisions of the lease to oust this court's jurisdiction to determine the matter.

The judgment in case no. HC1747/14 was, in my view, properly obtained.

The applicant did not dispute the first respondent's claims that it has already engaged engineers and architects who have commenced working on the redevelopment and rehabilitation of the premises. This work has been commenced under the watch of the applicant, and with its consent, and in anticipation of the applicant vacating the premises on 28 February 2014. The first respondent obtained an order of this court on the strength of these facts and it would be unjust to prevent the applicant from enjoying the benefits of that order.

The application is accordingly dismissed with costs.

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

The first respondent owns a building formerly known as Toppers Building, situate at corner Fort Street and 13th Avenue, Bulawayo [the premises].The applicant leased the premises for several years carrying on the business of manufacturing and retailing school uniforms and other items of school wear. During that period, the applicant ...

SC31-15 : WECTOR ENTERPRISES (PRIVATE) LIMITED vs LUXOR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, HLATSHWAYO JA, and MAVANGIRA AJA

Further, the appellants alleged that there was no need for the appellants to enter appearance to defend because upon receipt of the summons they approached Luxor and “the parties reached an agreement that the court process be stayed as an agreement to settle the rental arrears was reached.” One notes, in passing, that the fact ...

HB94-16 : ARENEL SWEETS AND BISCUITS (PVT) LTD vs ALEXANDER FORBES RISKS SERVICES ZIMBABWE
Ruled By: MAKONESE J

In my view, an attempt to resolve a matter out of court does not interrupt the running of prescription. It is usually the case that parties to a dispute will engage each other in spite of pending legal suits. In this instance, the plaintiff was not prevented from instituting legal action against the defendant within the prescribed ...

HB120-16 : BRYGGEN MOTELS (PVT) LTD vs PURE TREATMENT INVESTMENTS (PVT) LTD
Ruled By: MAKONESE J

In any event, the written lease agreement provides that any indulgence which may be shown to the lessee by the lessor shall not be taken as a waiver of the lessor's rights to cancel the agreement by reason of a material breach of the terms of the lease. See the case of Agricultural Finance Corporation v Pocock 1986 (2) ...

HB157-16 : NRZ CONTRIBUTORY PENSION FUND vs JOSRO ENTERPRISES (PVT) LTD t/a ASCOT PUB & GRILL
Ruled By: TAKUVA J

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. This contention is devoid of merit ...

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.

This contention is devoid of merit in light of the carefully and extensively worded provisions of sub-clause 40.1 of the lease agreement which 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.”…,.

HH169-15 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and STANBIC BANK and MNISTERS OF MINES AND MINING DEVELOPMENT and MINERALS MARKETING CORPORATION OF ZIMBABWE
Ruled By: MAKONI J

Waiver and Estoppel Counsel for the first respondent submitted that in the event of the court finding in favour of the applicant in respect of the rate of the royalty, the court must find that the applicant abandoned any reliance on the Mining Agreement to the extent that it set the rates of the royalties payable. For a period ...

Waiver and Estoppel

Counsel for the first respondent submitted that in the event of the court finding in favour of the applicant in respect of the rate of the royalty, the court must find that the applicant abandoned any reliance on the Mining Agreement to the extent that it set the rates of the royalties payable.

For a period of over six (6) years the applicant paid the higher and legislated rates. During the entire period it was aware of its rights in terms of the Mining Agreement. It did not insist on the enforcement of such rights. The first respondent is therefore entitled to regard the conduct of the applicant as a clear and unequivocal abandonment of any perceived rights to pay reduced rates of royalties in terms of the Mining Agreement. The non variation clause and the waiver clause will not assist the applicant.

Counsel for the applicant submitted that as a result of an error on the part of the applicant it paid royalties in terms of the legislated rates. This did not amount to estoppel in view of Clause 29.2 of the Mining Agreement.

The Mining Agreement contains a non-variation clause and a non-waiver clause in Clauses 29.1 and 29.2 respectively. The clauses are carefully and extensively worded. What is the combined effect of such clauses in a contract?

The head note 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 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.”

Clause 29.2 provides a complete answer to the issue raised by the first respondent. It cannot place reliance on the unilateral conduct of the applicant of departing from the written Mining Agreement as such conduct will not preclude the applicant from thereafter enforcing the right or provision of the agreement being indulged. There is nothing on the papers to show that the Mining Agreement has been varied. The first respondent cannot, therefore, successfully rely on either waiver or estoppel. The effect of Clause 29.2 is to negate both defences.

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

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

The defence of estoppel was explained by McNALLY JA in Mashave v Standard Bank of S.A. Ltd 1998 (1) ZLR 436 (SC)…, as follows:

“The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him as against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-C.

The innocent purchaser's only defence is estoppel.

Estoppel depends upon an allegation that a representation was made by the owner/claimant. In Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A), Corbett JA (as he then was) said at 291:

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

See also Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 (3) SA 420 (A)…,.; Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A); Oakland F Nominees (Pty) Ltd v Gelria Mining & Invstm Co Ltd 1976 (1) SA 441 (A); Jones & Ors v Trust Bank of Africa Ltd & Ors 1993 (4) SA 415 (C)…,.; Basson t/a Repcomm Community Repeater Svcs v Postmaster General 1994 (3) SA 224 (SE)…,.; RABIE, The Law of Estoppel in South Africa…,.; MILLER, The Acquisition and Protection of Ownership…,.; VISSER and G POTGIETER, Estoppel: Cases and Materials….,.; SILBERBERG & SCHOEMAN's The Law of Property 3ed…,.; GIBSON's SA Mercantile & Company Law 6ed…,.

Counsel for the applicant submitted that by virtue of classifying some components for base stations as duty free, the respondents waived an intention not to impose duty on the class of goods so specified.

This is sufficient to invoke estoppel. He further submitted that the applicant published its financial statements over the years based on this information and it had impact on the public. Therefore, the respondents must be estopped from re-classifying the components.

Counsel for the respondents countered this argument by submitting that the respondents have an unfettered right to conduct post clearance audits within six years….,.

Just as the argument on estoppel, I find merit in the argument advanced by the respondents. The people who signed the letters referred to are officers of the first respondent as defined in the Customs and Excise Act. It is those officers who made the classifications of the imports in terms of section 87(1) of the Customs and Excise Act. It is clear that the classification was not made by the second respondent. In that event the applicant's recourse was either to appeal to the second respondent (if the classification was made by an officer) or to appeal to the Fiscal Appeal Court (if the classification was made or varied by the second respondent). See section 87(3) of the Customs and Excise Act [Chapter 23:02].

The duty to classify goods rests with the first respondent's officers or the second respondent. In the event of error in the classification of such goods, such classification can be varied by the Commissioner General who is the second respondent. Therefore, an erroneous classification of goods cannot be viewed as waiver of duty payable on the class of goods affected by such erroneous classification. The respondents would be failing in their statutory obligations were they to turn a blind eye to the need to rectify any anomaly exposed by a post-clearance audit.

A party relying on waiver has the onus to show that the other party had full knowledge of its rights and abandoned such rights expressly or impliedly. See Barclays Bank of Zimbabwe v Binga Products 1984 (2) ZLR 26 (SC). The classification of goods in their correct tariff cannot be viewed as a right. It is a duty and where it is not done correctly, it must be rectified.

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

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

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ

I now move on to the other aspects of the application. In Zimbabwe Open University v Magaramombe and Anor 2012 (1) ZLR 397 (S), I had occasion to comment as follows…,: “In this Chamber application, as I have already stated, the University seeks the relief that the appeal be set down on an urgent basis and that the execution of the ...

I now move on to the other aspects of the application.

In Zimbabwe Open University v Magaramombe and Anor 2012 (1) ZLR 397 (S), I had occasion to comment as follows…,:

“In this Chamber application, as I have already stated, the University seeks the relief that the appeal be set down on an urgent basis and that the execution of the arbitral award be stayed pending the hearing of the appeal. Two issues fall for determination in this Chamber application –

(1) Whether or not this matter should be set down on an urgent basis; and

(2) Whether or not the University is entitled to the interim relief of a stay of execution of the arbitral award pending the determination of the appeal.

I will deal with the second issue first, namely, the entitlement of the University to the interim relief of a stay of execution.

The factors to be taken into account in considering the grant of interim relief are now well settled. These are –

(1) Whether or not the party seeking the relief has a prima facie right; in casu, whether the University has a prima facie right to stay the execution of the sale of the attached property pending the determination of the appeal;

(2) Whether or not the applicant, in this case the University, will suffer irreparable harm if execution of the arbitral award is not stayed and the appeal succeeds; and

(3) The balance of convenience.”

The first aspect would relate to the presence or otherwise of a prima facie right.

The writ in question…, was issued pursuant to a default judgment. There is no reasonable explanation for the default in the application before me. The relationship between the applicant and the first respondent was governed by a lease which terminated by effluxion of time on 28 February 2014. The prima facie right can only arise if there was some right for the applicant to stay on the first respondent's premises beyond 28 February 2014.

The applicant claims it became a statutory tenant after 28 February 2014. The first respondent claims that the applicant could not have become a statutory tenant because there was a prior agreement that the applicant would vacate its premises on 28 February 2014 and that there would be no renewal of the lease. There is, therefore, a need to look at the circumstances surrounding the interactions of the parties to get to understand the true nature of the relationship between the parties.

On 1 October 2010, one B J Beaumont wrote to the first respondent, on behalf of the applicant, indicating that it would not contest the first respondent's right to take back its premises upon the expiry of the lease, that is, on 28 February 2014. The subsequent letters by the applicant's legal practitioner to the first respondent, indicating that the applicant would not vacate the property, are clearly at variance with the position indicated on 1 October 2010. The first respondent strenuously resisted the applicant's claims that there would be a lease beyond 28 February 2014.

In light of the indications made in 2010, and in light of the first respondent's resistance of a further lease, whether by way of statutory tenancy or otherwise, the only reasonable conclusion is that there was an understanding between the parties that their relationship would end on 28 February 2014. That being the case, the applicant had no right to occupy the premises post the expiry of the lease on 28 February 2014.

The applicant has not shown a prima facie right to protect here. It needed to show that, on the face of it, it was entitled to occupation of the premises beyond 28 February 2014….,.

It is on the understanding of the letter of 1 October 2010 that the eviction order, albeit granted in default, was premised. The applicant waived any right it had to occupation of the premises beyond 28 February 2014. One cannot, by use of stay of execution, seek to revive a right that it gave away by lawful process.

In Chidziva & Ors v Zimbabwe Iron & Steel Co Ltd 1997 (2) ZLR 368 (SC) muchechetere ja said…,:

“In the present case, no real attempt was made to show that the appellants abandoned their rights with full knowledge of those rights. All that was submitted was that the appellants accepted the retrenchment packages. The respondent should have gone further to show that they did this with full knowledge that they were abandoning their rights. On this, I also cite, with approval, the passages at p489 of Christie's above cited book (The Law of Contract in South Africa, 3ed) where the learned author said:

'…, there is ample other authority that it must be clearly proved that the person who is alleged to have waived his rights knew what those rights were. A party who fails to prove this necessary ingredient of waiver may still be able to raise the defence of estoppel against any attempt to enforce the rights in question. When it cannot be proved that the party alleged to have waived knew what his rights were it may appear that his ignorance is properly classified as ignorance of law. It can now be regarded as settled, despite van den Heever j's decision to the contrary in Schwarzer v John Roderick Motors (Pty) Ltd 1940 OPD 170 at 185, that in this connection ignorance of the law is excusable provided it is iustus et probabilis' - justifiable and probable. This is especially so since Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A) which equates mistake of fact and mistake of law for purposes of the condicto indebiti; Murray j's words, in Ex p Sussens 1941 TPD 15 at 20, may be taken as a correct statement of law:

'The necessity for a full knowledge of the law in the case of waiver follows from the principle that waiver is a form of contract, in which one party is taken deliberately to have surrendered his rights: there must therefore be proof of an intention as to surrender, which can only exist where there is knowledge both of the facts and the legal consequence thereof.'

The necessity to prove knowledge of the rights allegedly waived, before it can be said that conduct in question amounts to waiver, applies equally to a case where the act of alleged waiver has been performed, not by the party to the contract himself, but by his agent (Pretorius v Greyling 1947 (1) SA 171 (W) at 177)'.”

Assuming for a moment that the applicant had the right to stay on as a statutory tenant beyond 28 February 2014, this right was unequivocally waived by the contents of the 1 October 2010 letter authored on behalf of the applicant by one B J Beaumont.

In light of this incontrovertible fact, it becomes difficult to understand how the applicant can assert a prima facie right to the relief sought. By virtue of the letter, the applicant renounced any right it had, or could have, to the occupation of the premises beyond 28 February 2014. The applicant simply has not shown that it has a prima facie right to occupation of the premises.

I agree with what Carlisle j said in Watson v Hunter & Another 1948 (3) SA 1106 (D & CLD)…,:

"Now, it seems to me that the applicant must come to Court with a very strong case before the Court will stay the execution of its judgment."

Appealed
SC34-19 : NJZ RESOURCES (HK) LIMITED vs ANDREW ZINYEMBA AND 18 OTHERS
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

Although Mine Mills (Pvt) Ltd had initially opposed the appellant's claim for ownership and return of the property, its shareholders, Kevin Makoni and Charles Chisango, later signed resolutions acknowledging that Mine Mills breached the contract and agreeing to return the property to the appellant. These are the two men whom the appellant avers had taken over ...

HH183-15 : ZB BANK LIMITED vs ERIC ROSEN (PVT) LTD and ERIC ANTHONY ROSEN and ELIZABETH ROSEN
Ruled By: MAFUSIRE J

In terms of the Consumer Contracts Act [Chapter 8:03], the rights conferred by it cannot be waived by agreement unless such waiver is made during the proceedings….,. The Contractual Penalties Act [Chapter 8:04] ends by outlawing any purported waiver of any rights or benefits conferred under it.

HH43-06 : ZIMBABWE DEVELOPMENT BANK vs NAGA SALONS and NYARAI CHIWAURA and BETTY CHIWAURA
Ruled By: KUDYA J

In Georgias Anor v Standard Chartered Finance Zimbabwe Ltd 1998 (2) ZLR 488 (S), GUBBAY CJ…,…, stated as follows:- “Reverting to the considerations behind the in duplum rule, they are correctly summarised and stated to be based on: 'A policy to protect a debtor who has not serviced his loan from facing an unconscionable claim for accumulated interest and ...

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

The terms of the agreement between the parties included the following:…,. In clause 3, the defendant tells us that she “expressly renounces the benefits of no cause for the debt, error in calculating the revision of accounts, no value added, and no value received, and no value recorded; the meaning of which I acknowledge is understood ...

HH06-18 : SIMBARASHE PASIPAMIRE vs GLOBAL PROPERTY ADVISORY & TECHNICAL SERVICES
Ruled By: MANGOTA J

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 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 marriage, the applicant and his former wife filed a consent order with the mentioned court. They did so on 6 February 2013. Paragraph 11 of the consent order is relevant to the present application. It regulates the parties' division of property post their divorce. It reads:

“II. TRANSFER OF PROPERTY CONDITIONAL UPON PAYMENT OF LUMP SUM

(a) The Petitioner shall transfer to the Respondent, upon payment of the lump sum referred to in paragraph 10 above, all his legal estate and beneficial interest with full title guarantee in the freehold property 16 Southfield Close, Leicester LE 29 NW registered at the Land Registry under title number LT 131537 subject to the mortgage secured thereon in favour of HSBC.

(b) The Respondent shall transfer to the Petitioner all her legal estate and beneficial interest within the properties known as “Marandellas” 2,346 square metres, Zimbabwe and Good Hope Stands, Lot 11, West Gate, Zimbabwe on or before the 28^th day of February 2013…,.”

It is mentioned, in passing, that the applicant was the petitioner and his ex-wife the respondent in the consent order which was filed with the court.

Paragraph 10 of the order, it is observed, made reference to a lump sum order. The respondent was, in terms of the paragraph, enjoined to pay or cause to be paid to the petitioner a lump sum of €20,000=. She was to pay or cause to be paid to him the sum in question on or before 28 February 2013.

It was on the basis of clause 11(b) of the consent order that the applicant filed this application. He claimed that he is the sole owner of the property. He drew what he termed an addendum to the Agreement of Sale which his ex-wife and him concluded with the respondent on 12 February 2004. He moved the court to:

(i) Declare that the respondent infringed on his right to the property when it refused to sign the addendum to reflect that he is the sole owner of the property; and

(ii) Compel the respondent to sign the addendum to the agreement of sale so as to give effect to his rights as the sole owner of the property…,.

In applying as he did, the applicant placed reliance upon the consent order. He submitted that his former wife fell out of the equation by virtue of the same. He stated, in paragraph 12 of his answering affidavit, that:

“12. My former wife no longer has any interest in the property, given the order already issued out by the Leicester County Court. The consent paper is akin to an agreement between the parties and there is no reason for the respondent's refusal to simply disregard the same.”

The respondent did not mince its words. It challenged the authenticity of the consent order. It did so in its opposing affidavit which it filed with the court on 21 March 2017.

The applicant became aware of the respondent's challenge of the consent order when he received the latter's opposing affidavit. He, for reasons known to himself, did not move to address that concern of the respondent. All he did was to state, in paragraph 12 of his answering affidavit, that:

“If the Respondent's refusal to sign the addendum arose from a concern regarding the authenticity of the document, it ought to have advised me of the same and l would have dealt with that concern accordingly.”…,.

The question which begs the answer is; has he addressed the respondent's concerns?

He filed his answering affidavit on 17 May 2017. He filed his heads of argument on 21 June 2017. The application was heard on 25 October 2017. What the respondent raised in March 2017 remains un-addressed to date. That fact alone places the applicant's abovementioned statement into some very serious doubt….,.

The respondent is not privy to the divorce proceedings which took place at Leicester County Court. It stated, and correctly so, that it does not know the authenticity or otherwise of the consent order. Where the order is not authentic and the respondent signs the addendum, as the applicant insists it should, it runs the risk of having to content with his ex-wife for having disposed of her one-half share in the property without her consent or authority….,.

The consent order which the applicant relies upon does not suffice. A fortiori when, as in casu, the respondent challenges its authenticity. Some statement from the applicant's former wife stating her attitude to the issue of the parties' contract of February 2004 and the transfer of the property into the applicant's name is a sine qua non aspect to the resolution of the present matter.

The application was prematurely brought before the court. It has a lot of loose ends to it. It cannot succeed. It is, therefore, dismissed with costs.

HH50-12 : CHEMATRON PRODUCTS ZIMBABWE (PVT) LTD vs TENDA TRANSPORT (PVT) LTD and REGISTRAR OF DEEDS
Ruled By: BERE J

At the conclusion of this trial l granted the following order: “It is ordered as follows: (a) That the first Defendant be and is hereby ordered to transfer the ownership of Stand No.4 of subdivision B of Subdivision B of Prospect to Metachem Industries (Pvt) Ltd as requested by the Plaintiff by its letter of 17 November 2006 ...

At the conclusion of this trial l granted the following order:

“It is ordered as follows:

(a) That the first Defendant be and is hereby ordered to transfer the ownership of Stand No.4 of subdivision B of Subdivision B of Prospect to Metachem Industries (Pvt) Ltd as requested by the Plaintiff by its letter of 17 November 2006 within 14 days from the date reasons of this judgment are delivered, failing which the Sheriff of Zimbabwe or his lawful Deputy be and is hereby authorised to attend to such transfer by signing all the relevant papers which would ordinarily be signed by the 1^st Defendant.

(b) That the 1^st Defendant's counter-claim be and is hereby dismissed.

This suit has been prompted by the following facts which are largely common cause:

On 13 July 2006, the plaintiff and the first defendant entered into a written agreement of sale for property referred to as Stand No. 4 of subdivision B of Subdivision B, Prospect with the purchase price of the property being pegged at Z$15,000,000= (fifteen million Zimbabwe dollars).

It is not in dispute that the parties, at the request of the plaintiff, who felt uncomfortable with the interest related to the mortgage bond which was supposed to be secured through Beverley Building Society, mutually agreed to vary the original agreement of sale on 4September 2006 after they had agreed on new terms of payment.

It is also common cause that at the time the parties mutually agreed on variation of the contract agreement the agreed initial deposit and other substantial sums of money towards the purchase price had been paid by the purchaser.

It is also not in dispute that after the meeting by the parties, on 4 September 2006, a new contract was drafted by the first defendant's legal practitioners which the plaintiff declined to sign for a number of reasons, and, further, that as at the time the parties dragged each other to court no new agreement had been signed by the parties.

It is the plaintiff's case that despite not having signed the agreement it duly completed its part of the bargain to the extent that transfer ought to have been made in its favour.

The first defendant was of an entirely different view.

Its position was that there was never a valid agreement between it and the plaintiff, and, alternatively, that if there was one, the plaintiff had breached the terms and conditions of such an agreement justifying its cancellation and retaining any moneys paid by the plaintiff as damages….,.

The plaintiff's case was built around the evidence of its Managing Director, Mr Killian Kufahakurambwi….,.

It was Mr Killian Kufahakurambwi's testimony that the meeting that was held on 4September 2006 was attended by a representative from the plaintiff, the first defendant's Legal Practitioners, and a representative from the first defendant. His evidence was that the purchase price of the property would remain unchanged at the old price of Z$15,000,000= (fifteen million Zimbabwe dollars) but that the terms of payment would have to take into account the deposit initially made and the subsequent various payments paid by the plaintiff towards the purchase of the property.

It was also the witness' testimony that the interest on the bond to be registered on the property would be pegged at 125%. It was also agreed that the new agreement should contain a clause to allow the purchaser to discharge its liability much earlier if it secured the money. In view of these mutually agreed changes, the first defendat's legal practitioners, Messrs T.K Hove and Partners, were tasked to draw up a new Agreement of Sale which would be presented to the purchaser for signing on the following day, 5 September 2006.

The witness went further to state that there was a terrible delay by the first defendant's legal practitioners in drawing up the new agreement and that it was only on 17 October 2006 that the new agreement was availed to the plaintiff. The witness testified that despite this delay he maintained communication with the first defendant's legal practitioner, Mr Hove, and the first defendant's representative, Mr John Thompson Mungwari, both of whom advised him to keep on paying, which he gladly did.

It was the plaintiff's further evidence that when the agreement was eventually availed to it a substantial amount of money had been paid towards the acquisition of the property as evidenced by exhibits 2, 4, 5, 6 and 7 tendered in these proceedings. It was his uncontroverted evidence that the bulk of the payments were made directly to the first defendant's company. The exhibits tendered confirm these payments.

The witness stated that when the varied agreement was presented to the plaintiff for signing he noted a number of discrepancies and quickly engaged Mr T.K. Hove, the first defendant's legal practitioner who advised him to pay the remaining outstanding balance of three billion Zimbabwe dollars directly to the first defendant's company which he again did. Exhibit 9 confirms such payments.

It was the witness's testimony that on 17 November 2006 he discussed the question of interest with the first defendant's legal practitioner who advised him to go back and do the computation of interest and pay the amount to pave way for the transfer of the property in question which he did. Exhibit 10 confirms the discussion in question and also the payment of a sum of Z$650,000= as interest and how it was computed.

According to the witness, this last payment was followed by a pro forma invoice of transfer fees from the first defendant's legal practitioners which put the transfer fees for the purchased property at Z$1,210,002= (revalued) which amount the plaintiff paid into the trust account of the lawyers as advised by the first defendant's legal practitioners.

The witness said that when his company demanded transfer of the property the case took a dramatic turn when he was advised that the first defendant was now claiming interest on the whole purchase price at a rate of 600% per annum compounded interest, the argument being that the first defendant had borrowed money from its own bankers, NMB Bank, and sought to pass on the cost of borrowing that money to the plaintiff.

The plaintiff, naturally, objected to this approach as it signified a complete departure from the mutual discussion of 4 September 2006….,.

The witness explained that there was no need to sign the second agreement because it had come into the picture late and had been superceded by various payments made by the plaintiff and accepted by both the first defendant and his legal practitioners….,.

I accept the position of the plaintiff's counsel that the first defendant, having quietly accepted the various payments made by the plaintiff, must be taken to have waived any alleged breach of the agreement.

HH167-12 : ZIMBABWE DEVELOPMENT BANK vs GENERAL ACCIDENT INSURANCE COMPANY
Ruled By: CHIWESHE J

At the hearing of this matter the plaintiff Bank was in default. Counsel for the defendant sought and was granted leave to argue the matter on the merits. Judgment on the merits of the case was granted in favour of the defendant with costs. I indicated that my reasons for judgment would follow. At the pre-trial conference ...

At the hearing of this matter the plaintiff Bank was in default.

Counsel for the defendant sought and was granted leave to argue the matter on the merits. Judgment on the merits of the case was granted in favour of the defendant with costs. I indicated that my reasons for judgment would follow.

At the pre-trial conference it was declared that this matter be referred to trial as a Stated Case. The agreed facts were as follows;

1. On 14 February 1992, the plaintiff and African Savanna Touring (Pvt) Ltd entered into an agreement in terms of which the plaintiff lent to African Savanna the sum of Pound Sterling 102,063= which sum was repayable on certain terms and conditions which are not mentioned in the instant case.

2. By way of written guarantee dated 27 August 1992, the defendant guaranteed the indebtedness of African Savanna Touring in an amount not exceeding Z$600,000=.

3. African Savanna Touring having breached the agreement entered into between itself and the plaintiff; the plaintiff instituted legal proceedings and obtained judgment in the sum of Z$2,300,743=90. This judgment remains unsatisfied.

4. By way of letter dated 21 June 1994, the defendant gave the plaintiff notice of termination of the said guarantee with effect from 21 July 1994.

5. On 11 October 1994, Northridge (Private) Limited (Insurance Agents), representing African Savannah Touring Company, wrote to the plaintiff requesting a copy of the old Financial Guarantee Bond 6260327187.

6. By way of letter dated 20 October 1994, the plaintiff forwarded to Northwood (Private) Ltd a copy of the guarantee. The plaintiff retained the original guarantee.

The plaintiff sues the defendant for payment of the sums indicated in the guarantee in satisfaction of the judgment it obtained against African Savanna Touring. The plaintiff contends that as the guarantee is a guarantee in respect of only one transaction, and not a continuing guarantee, the defendant was not entitled, at law, to withdraw from the said guarantee and is therefore liable to effect payment.

On the other hand, the defendant contends that it was entitled, as of law, to withdraw from the said agreement and that even if it was not, the plaintiff, in any event, accepted the defendant's termination of the suretyship. Further, the defendant contends that, in any event, the plaintiff's claim is prescribed.

At the pre-trial conference, the parties adopted the following issues:

1. Was the defendant entitled, at law, to terminate the guarantee on notice?

2. Did the plaintiff accept the termination?

3. Has the plaintiff's claim prescribed?

The guarantee under consideration relates to a single transaction. As such, at law, the defendant cannot resile from the arrangement.

In Lennard Clothing Manufacturing (Pvt) Ltd v Van Rhyn Interiors (Pvt) Ltd 1974 (1) RLR 207 the principle was established that where the obligation of a guarantor relates to a single contract, such guarantee cannot be terminated upon due notice. The answer to the first issue, therefore, is that, at law, the defendant was not entitled to terminate the guarantee.

The guarantee was for an indefinite period. In other words, it would hold for as long as the plaintiff remained indebted. For that reason, the question of prescription cannot arise. In my view, the third issue must therefore be decided in favour of the plaintiff; namely, that the guarantee could not have prescribed.

However, the plaintiff would appear to have accepted the cancellation of the guarantee and must therefore be held to have waived any rights he might have legally exercised in enforcing the same.

The letter of termination, dated 21 June 1994, was forwarded to the applicant, and, it would appear, was received by them on 23 June 1994, as evidenced by their date stamp that appears on a photocopy of that letter. In addition, the applicants were duly advised by their agents, Northridge Insurance Agents, of the cancellation. The plaintiff's conduct, in not challenging the purported cancellation, and, indeed, in returning the old guarantee, which had been requested as a result of the purported cancellation, indicates that they had indeed accepted the fact of cancellation.

It was for these reasons that judgment was granted in favour of the defendant with costs.

HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

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 ...

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

In the celebrated case of Ais Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A)…, the court had this to say: “The essence of the doctrine of estoppels by representation is that a person is precluded, i.e. stopped, from denying the truth of a representation previously made by him to another person if the latter, believing ...

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA
Ruled By: MAKARAU J

In my view, it is not necessary that I make a finding relating to the negotiations between the parties to settle the dispute between them before the matter came before me. Such negotiations have no bearing to the real dispute between the parties that I have tried to define.

SC48-09 : HALWICK INVESTMENTS t/a WHELSON TRANSPORT vs GARAI NYAMWANZA
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against the decision of the Labour Court setting aside the proceedings of a disciplinary committee constituted by the appellant and remitting the matter for a re-hearing before a different panel.

The background leading to the institution of disciplinary proceedings against the respondent is common cause.

The respondent was employed by the appellant as a driver. At the time the incident giving rise to the disciplinary proceedings took place, he was driving a truck belonging to the appellant carrying fertilizer destined for Zambia. There were also a number of other trucks belonging to the appellant carrying fertilizer to Zambia. At Chirundu Border post there was a delay in clearing the truck as one bill of entry was missing. The respondent then telephoned a Chief Superintendent Mandipaka of the Zimbabwe Republic Police and made a report to the effect that the appellant's clearing agents were smuggling fertilizer out of Zimbabwe. As a result of that report some sixteen trucks, some belonging to the appellant, were delayed at the border post whilst the police investigated the report made by the respondent.

Upon full investigation, however, the missing bill of entry was found and it was established that there was no intention on the part of the appellant, or its agent, to smuggle the fertilizer out of the country.

The appellant's clearing agent, thereafter, wrote a letter of protest to the appellant highlighting the inconvenience caused by the report and the expenses which the company had been forced to incur to have the matter resolved.

Against that background, the appellant instituted disciplinary proceedings against the respondent on a number of allegations of misconduct.

The disciplinary committee found the respondent guilty of misconduct and determined that his employment be terminated with effect from 14 December 2005. The respondent appealed to the appellant's Managing Director, who, by letter dated 23 December 2005, upheld the decision of the disciplinary committee. On 30 December 2005, the respondent filed a notice of appeal with the Labour Court, Harare, seeking a review of the proceedings. On 3 January 2006, however, the respondent and the appellant executed a document that read as follows:

“I, NYAMWANZA GS, in my capacity as Driver being duly authorized hereto, hereby confirm that I have, on this 03/01/06 day of Jan 2006, accepted from WHELSON TRANSPORT the sum of $15,168,014,179 in full and final settlement of my/our claim/entitlement arising out of Terminal Benefits and I confirm that my/our acceptance of the aforesaid amount determines finally my/our claim and that I/we have no future/retrospective claims against WHELSON TRANSPORT of any nature whatsoever, including interest costs, collection commission arising out of the subject matter aforesaid, or otherwise.

I therefore do hereby sign as acknowledgement and in agreement with the above without alterations or cancellations.”

The document was signed by the respondent.

Notwithstanding the above document, the respondent proceeded with his appeal before the Labour Court. He sought a review of the proceedings before the disciplinary committee on three grounds. These were;

(i) Firstly, that his senior, a Mr Ndoro, played the dual role of chairperson of the disciplinary committee and witness during the disciplinary hearing;

(ii) Secondly, that no hearing actually took place; and

(iii) Thirdly, that he was not given the opportunity to be heard.

In its submission before the Labour Court, the appellant raised two issues. These were;

(i) Firstly, that having executed the document dated 3 January 2006, the respondent waived any rights he may have had to challenge the decision to dismiss him whether by way of appeal or review.

(ii) Secondly, that the respondent had not established good legal ground for setting aside the dismissal.

The court a quo did not consider the issue of waiver raised. It only dealt with the question of procedural irregularity.

In determining that there had been a procedural irregularity and that the matter be remitted for a hearing, the Labour Court remarked:

“In this case, there was a serious procedural irregularity in that the Chairman of the Committee was the witness. He led evidence from the bench. Obviously, there was a real risk of bias in the findings by the Committee. However, from the facts of the matter which are follows:

Appellant was employed as a driver with the respondent. On the day in question, appellant was driving one of the respondent's trucks ferrying fertilizers to Zambia. When the appellant got to Chirundu Border Post and had found that one bill of entry form was missing he phoned the police and advised that respondent was smuggling fertilizers outside the country. As a result of the report 16 trucks belonging to respondent were delayed at the border whilst the police were carrying on investigations.

Respondent lost time and money. The investigations revealed the report was false.

The appellant was charged and dismissed from employment. Since the facts are common cause, to some extent, I will not order reinstatement of the appellant as he clearly has a case to answer.”

The appellant attacks the decision of the Labour Court on four grounds. These are:-

1. That the Labour Court misdirected itself by not dealing with the defence of waiver raised by the appellant.

2. The Labour Court misdirected itself by coming to the conclusion that the rules of natural justice were violated in that the chairman of the disciplinary committee was both the chairman and the only witness.

3. The Labour Court misdirected itself by disposing of the matter on a technicality when it was possible for it to dispose of the same on the merits on the available evidence.

4. The Labour Court misdirected itself by finding that there was a real risk of bias in the findings of the disciplinary committee.

I proceed to deal with the issue of waiver which is the first ground of appeal raised by the appellant.

Reference has already been made to the document signed by the respondent in which he accepted payment of a sum of money in full and final settlement of all his claims and in which he confirmed that his acceptance of the money finally determined any claim he may have had of any nature whatsoever.

In its heads of argument before the court a quo, the appellant specifically raised the issue of waiver.

It was the appellant's contention that by entering into the above agreement the respondent had waived his right to appeal or to take on review the termination of his employment. The appellant had further contended that the ordinary grammatical meaning of the agreement was that the respondent had made an undertaking that the execution of the agreement determined finally any claims of any nature whatsoever.

Despite the fact that the issue had been raised, the court a quo did not consider it at all and made no reference to the submission in its judgment.

This, in my view, was a misdirection.

I would agree with the appellant that the failure to deal with a defence raised by one of the parties amounts to a failure to hear and determine the matter according to law.

The question that necessarily arises at this stage is how the misdirection should be corrected.

The appellant has suggested that, since the facts are common cause and all that needs to be done is to determine whether, on the facts, waiver was established, this Court should itself determine the matter since all that is involved is the construction of a contract.

Unfortunately, this branch of the law is not as clear as the appellant would seem to suggest.

The position is now settled that it is not permissible for an Appellate Court to interfere with the discretionary power vested in a lower court unless it is shown that the lower court had committed such an irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision – the Civil Practice of the Supreme Court of South Africa by HERBSTEIN & Van WINSEN, 4ed…,.

In the case of Johnsen v AFC 1995 (1) ZLR 65 (S)…, GUBBAY CJ further clarified the position when he remarked as follows…,:

“…, clearly, a distinction was drawn between the position of an Appellate Court where, on the one hand, the court of first instance had not exercised a judicial discretion at all, and, on the other, where it had exercised the discretion - but wrongly.

In the latter occurrence, the Appellate Court is not inhibited from setting aside the original discretion. It must examine, anew, the relevant facts and circumstances in order to exercise a discretion itself by way of review, which may uphold, reverse or vary, the order made by the court below.

In re J (an infant) 1981 (2) SA 330 (Z) at 335D-E, I ventured to state the principle, as I understood it, thus:

'If the (primary) court erred in the exercise of its discretion, and as all the facts relevant thereto are undisputed, this Court is now free to exercise its own discretion…,. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it makes mistakes of fact, if it does not take into account some material consideration, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution - provided always it has the materials for doing so.'”

In Johnsen v AFC 1995 (1) ZLR 65 (S) the appellant had sought an order declaring, inter alia, that the AFC was not entitled to recover any amount claimed to be due in respect of an escalation of expense, however caused, of the equipment for the purchase of which the loans were granted.

The learned Judge who heard the application was of the view that this was not a proper case for the grant of a declaratory order because;

(a) Firstly, what was sought was a legal opinion from the Court;

(b) Secondly, that such relief, if granted, would not bring litigation between the parties to finality; and

(c) Thirdly, that there was an alternative remedy by way of an interdict.

This Court rejected that finding and came to the conclusion that the omission of the court a quo to have regard to the terms of the agreement of loan as a factor to be weighed in the exercise of its judicial discretion constituted a misdirection. This Court remarked…,:

“In my view, the failure by the court a quo to construe the agreement of loan caused it to overlook that a declarator, though not necessarily ending all litigation over the issue of liability between these parties, nonetheless would have achieved finality on the applicability of the summary execution procedures….,.”

This Court then decided to exercise its judicial discretion since the same materials that were before the court a quo were also before it.

The position was also aptly summarized by STEGMANN J in Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd & Anor 1989 (4) SA 31…, when he stated:

“1. There is no rule of law to the effect that in every appeal against the exercise of any discretionary power vested in court of first instance the Court of Appeal has no jurisdiction to interfere with the decision appealed against unless such decision is shown to have been un-judicial in one of the respects mentioned in Ex parte Neethling and Others 1951 (4) SA 331 (A) at 335D-E.

2. In an appeal against the exercise of a discretionary power by a court of first instance, the first task of the Court of Appeal is to examine the nature of the discretionary power, and to decide whether it belongs to the category of discretionary powers contemplated by the decision in Ex parte Neethling and Others.

3. If the power is found to belong to such category, the Court of Appeal has no jurisdiction to interfere with the exercise of the power decided on by the court of first instance unless such decision is shown to have been unjudicial in one of the respects mentioned in Ex parte Neethling and Others, ie that such decision was capricious; that it was based on a wrong principle; that it was not reached by unbiased judgment; or that it was not based on substantial reasons.

4. If the discretionary power is not found to belong to such category, the Court of Appeal must decide to what category it does belong.

One possibility is that it may be found to belong to the same category as the discretionary power in Mahomed v Kazi's Agencies (Pty) Ltd and Others 1949 (1) SA 1162 (N).

5. If the power is found to belong to the last-mentioned category, the function of the Court of Appeal is to hear all such arguments as may be addressed on the basis of the record before it, and to give due consideration to the decision of the court of first instance.

6. In some cases, it may be possible to conclude that the exercise of the discretionary power by the court below was 'wrong' in some sense other than the sense of 'un-judicial' contemplated by Ex parte Neethling and Others.

However, discretionary powers being what they are, there is usually no objective criterion according to which the exercise of such power can be judged to be 'right' or 'wrong'. The criteria according to which it may be judged to be 'judicial' or 'unjudicial' are dealt with in Ex parte Neethling and Others.

However, there are always criteria according to which the exercise of a discretionary power may be judged to be 'appropriate' or 'in-appropriate'. Such criteria depend upon the circumstances of the particular case. In the very nature of things, therefore, when the subject matter of an appeal is the exercise of a discretionary power of the kind referred to in para 5 above, the Court of Appeal is not bound to uphold the decision of the court below unless satisfied that such decision was 'wrong'.

7. In an appeal against the exercise of such a discretionary power, the function of the Court of Appeal is to consider whether, in the light of all relevant factors, the exercise of the power by the court of first instance was appropriate to the circumstances of the particular case. If it was, the appeal must fail. If it was not, the Court of Appeal must exercise the discretion anew, and must substitute its own discretion for the discretion of the court below.”

I am satisfied that the authorities referred to above correctly reflect the law on this aspect.

There was a failure by the court a quo to determine an issue that had been properly raised by the appellant.

The Court completely ignored the issue of waiver raised and proceeded to determine the matter on the basis of procedural impropriety. There was a failure by the court a quo to appreciate that the question of waiver could finally determine the issues between the parties, depending on the interpretation that would be given to the agreement reached between the two sides.

The contents of the agreement are not in dispute.

In these circumstances, I am satisfied that no purpose would be served by remitting this matter to the court a quo for it to place an interpretation on the contents of the agreement entered into between the two parties. Since the contents of the agreement are common cause, the only issue that arises is whether the facts establish waiver.

It has never been suggested that the document was the result of duress, mistake or undue influence.

I hold the view, therefore, that this Court can properly determine the issue without the need to remit the matter to the court a quo.

The issue that arises as a result of the conclusion I have reached above is whether the respondent waived any rights he may have had to take this matter either on appeal or review.

That question necessarily raises the question: What is waiver?

“When one of the parties, by his words, actions or inaction, has evinced an intention not to enforce one or more or all of his rights under the contract we select whichever word seems most appropriate from a list which includes abandonment, acquiescence, release, renunciation, surrender and waiver. Of these words by far the most commonly used is waiver, which is regarded in many of the cases as interchangeable with any of the other words…,.” – See R H CHRISTIE, The Law of Contract in South Africa, 3ed…,.

The law is also settled that there is a presumption against waiver and that it must be clearly proved that the person who is alleged to have waived his rights knew what those rights were.

The respondent in this case was fully aware of the dispute between him and the appellant. He had filed a notice of appeal with the Labour Court seeking the review of the disciplinary proceedings. About four days after doing so he then signed the document, part of the subject of this appeal. In that document he acknowledges receipt of a sum of money in full and final settlement of any claims he may have had against the appellant. In the document he further confirms that his acceptance of the amount determines, finally, his claim and that he has no future or retrospective claims against the appellant of any nature whatsoever.

Clearly, the respondent accepted payment of a sum of money in full and final settlement of any claims he may have had against the appellant. That meant that, as at that date, he had waived any right of action he may have had to challenge his dismissal.

Having entered into this agreement, he no longer had any rights to pursue. His decision to proceed with the appeal thereafter can only be described as dishonest.

I am satisfied, in all the circumstances, that the respondent waived any rights he may have had against the appellant who was his employer. The appellant's submission in this regard must therefore succeed.

In the light of the above conclusion, it becomes unnecessary to consider and determine the other grounds of appeal raised. The appeal must therefore succeed.

It is accordingly ordered as follows:

1. The appeal is allowed with costs.

2. The judgment of the Labour Court is set aside and in its place the following is substituted:

“The appeal is dismissed with costs.”

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the entire judgment of the High Court, sitting at Harare, handed down on 8 May 2019, in which the following order was granted:

1. The appointment of the 2nd and 3rd respondents as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null and void.

2. The appointments of the 2nd respondent, as Acting President and President of the Movement for Democratic Change party, were unconstitutional and therefore null and void.

3. All appointments and/or re-assignments and actions of the 2nd respondent, in his purported capacities as Deputy/Acting or incumbent President, were unconstitutional and therefore null and void.

4. The 1st respondent be and is hereby ordered to hold an Extra-Ordinary Congress after the lapse of at least one month after the date of this Order.

5. The respondents are ordered to pay the applicant's costs of suit, jointly and severally, the one paying the others to be absolved.

The Background

The first appellant is the Movement for Democratic Change, a political party which has capacity to sue and be sued in its own name (“the Party”).

The remaining protagonists are members of the Party who were cited as follows in the court a quo;

The second appellant is the President of the Party, while the third appellant is its National Chairman.

The first respondent, who was the applicant a quo, is the Organising Secretary for the Gokwe Sesame District. The second respondent is the Deputy President, the third respondent is the Acting President and the fourth respondent is the Secretary General of the Party.

The facts relating to this matter are as follows;

On 15 July 2016, the second appellant and the second respondent were appointed Deputy Presidents of the Party by the founding President, the late Dr Morgan Richard Tsvangirai. At the time these appointments were made, the post of Deputy President was occupied by the third respondent, having been elected as such at the Party's Congress held in October 2014.

Following the death of Dr Tsvangirai, on 14 February 2018, a special National Council meeting was convened, on 15 February 2018, whereat the second appellant was confirmed as the Acting President of the Party.

On 24 September 2018, the first respondent launched an application in the High Court challenging the validity of the President's appointment of the second appellant and second respondent as Deputy Presidents of the Party. He averred that such appointments were made ultra vires the Party's constitution as they were not done via an election by Congress. The first respondent argued that the meeting of 15 February 2018 was a non-event as the National Council did not have powers to ordain an Acting President or a President of the Party. He further emphasised that Article 9.21.1 of the Party's constitution was clear that, upon the death of the President, the Deputy President assumed the role of Acting President. As such, he argued that the third respondent, as the duly elected Deputy President of the Party, became Acting President upon the death of Dr Tsvangirai, and was obliged to call for an Extraordinary Congress within a year.

The third appellant opposed the application and deposed to an affidavit on behalf of the first and second appellants as well as the second and fourth respondents. He took four preliminary objections to the application;

(i) Firstly, he contended that the first respondent did not have locus standi to represent the first appellant as he had not produced a solemn declaration reflecting proof of acceptance of his membership of the Party.

(ii) Secondly, he stated that the first respondent's delay in raising his complaints was inordinate and would cause prejudice as many developments had occurred since the appointments under challenge. Further, he claimed that the first respondent had waived his rights to challenge the appointments.

(iii) Thirdly, he argued that the first respondent ought to have exhausted internal remedies provided in the Party's constitution by noting an appeal to its Appeal's Tribunal.

(iv) Lastly, the third appellant contended that the order directing the first appellant to hold an Extra-Ordinary Congress was incompetent relief in an application for a declaratur.

Regarding the merits of the application, the third appellant disputed the validity of the Constitution relied on by the first respondent. He submitted that the “true Constitution” was attached to the late President's opposing affidavit in the case of Patson Murimoga & Anor v Morgan Richard Tsvangirai & Ors HC7453/16.

The third appellant also argued that the appointments by the late President were made in terms of Article 9 of the Constitution which gave the President power to appoint deputies to “officers of Congress” on the instructions of the National Executive and the National Council. It was submitted that the appointments were made on the instructions of the National Council and ratified by the same in terms of Article 18 of the Party's constitution.

The third appellant further submitted that the subsequent occupation, by the second appellant, of the office of Acting President, was valid as it was the result of unanimous assent and was based on the second appellant's valid election as Deputy President.

In his replying affidavit, the first respondent challenged the validity of the third appellant's opposing affidavit. He stated that, in the absence of a mandate from the other parties, the third appellant could not depose to solemn facts on their behalf.

Further, he contended that the third appellant had not shown that he was authorised to represent the Party.

Lastly, the first respondent took the position that the first appellant, together with the second, third, and fourth respondents, were barred for having failed to file their opposition to the application.

Determination of the Court A Quo

On the preliminary objections raised by the parties, the court a quo made the following rulings;

It held that the first appellant was barred for having failed to file an opposing affidavit, as the third appellant, who purported to act on its behalf had failed to show proof of his authority. The court also held that the second and fourth respondents were barred for having failed to file their own opposing papers, while the third respondent was barred for having failed to oppose the application.

In relation to the first respondent's locus standi to institute the proceedings, the court held that his membership card was sufficient proof of his membership of the Party.

Regarding the issue of exhaustion of internal remedies, the court a quo reflected that the relief sought by the first respondent would not be competently granted by the Party's appeals tribunal. The court reasoned that it was more probable that the appeal would not be heard in an impartial manner due to the composition of the Appeals Tribunal.

On the issue of waiver of the first respondent's right to challenge the appointments, the court found that the first respondent had timeously approached the court after he became aware of his rights through a legal opinion furnished to the Party.

On the merits of the application, the court held that the appointments of the second appellant and second respondent, as Deputy Presidents of the Party, having by-passed the electoral process, were ultra vires the Party's constitution.

The court reasoned that the Constitution clearly provided that a Deputy President could only hold office by virtue of an election by Congress. This position was fortified by the court's interpretation of several provisions of the Party's constitution. The court considered the provisions of Article 6.4.4, which relate to the composition of the National Standing Committee. In particular, Article 6.4.4.1 was clear that a member could only occupy the office of Deputy President pursuant to an election at Congress. The late President had acted contrary to this provision by “picking” the second appellant and the second respondent as Deputy Presidents. The court also had regard to Article 9 of the Constitution which provides for the functions of various office bearers, including Deputy Presidents. In particular, Article 9.14 stipulates that all office bearers hold office by virtue of winning an election in Congress in terms of Article 6.4.4. The court highlighted that the President's powers of appointment, in terms of Article 9.1.4, had to be exercised “where such is provided for in the Constitution.” Thus, the President could only appoint the Secretary for Elections in terms of Article 6.4.4(k). The court further indicated that Article 9 listed office bearers and the Deputy President in the singular. In light of this, the court reasoned that the mention of Deputy Presidents in the plural was a typographical error.

The court further considered the powers of the National Council, in terms of Article 18 of the Constitution, to cure an oversight or omission in the appointment of office bearers. The court held that the contention that the National Council had delegated to the late President the power to make the contested appointments was not supported by the evidence. The oversight or omission sought to be cured was not identified in the papers pertaining to the deliberations of the National Council in 2016. Accordingly, Article 18 could not aid the appellants' case. Neither the President nor the National Council could bypass the requirement of holding an election at a Congress to fill those offices that were already provided for under the Constitution.

Additionally, the court took the view that the Party was founded on constitutionalism and social democracy, as per Article 3.1. Thus, the imposition of Deputy Presidents, by the late President, and the imposition of the second appellant as Acting President, acting in concert with the National Council, at its meeting on 15 February 2018, was contrary to those founding values.

In light of these considerations, the court a quo held that the contested appointments were unconstitutional and granted the order aforementioned.

Consequently, the court applied the provisions of Article 9.2.1(b) of the Constitution, in terms of which the Deputy President becomes the Acting President, where the President is unable, for any reason, to perform his or her powers, functions, or administrative duties. The court accordingly concluded that at the time of the late Dr Tsvangirai's death, the third respondent was the Deputy President and ought to have assumed presidential duties, pending the holding of an Extra Ordinary Congress to elect a new President, in terms of Article 9.21.1 of the Constitution.

Grounds of Appeal

There are numerous grounds of appeal herein, some of which are repetitive or should have been conjoined. They are reproduced verbatim as follows:

1. The court a quo erred in coming to the conclusion that first appellant was barred for failing to file an opposing affidavit and so erred in treating a valid affidavit deposed to by the third appellant as pro non scripto, and, in proceeding to determine the matter without hearing the first appellant.

2. A fortiori, the court a quo erred in proceeding in a manner which is in violation of the first appellant's constitutionally-protected right to be heard before an independent and impartial court as envisaged by section 69(2) of the Constitution of Zimbabwe, 2013.

3. Having found that the Constitution relied upon by the appellants at least contemplated the appointment of Deputy Presidents, the court a quo misdirected itself in concluding, without hearing evidence on this material issue, that the reference to Deputy Presidents in that Constitution was a typographical error.

4. A fortiori, the court a quo erred in writing a Constitution for the first appellant and in irregularly bringing it under the authority of such a document.

5. The court a quo erred in not concluding that the appointment of Deputy Presidents in the first appellant was in accordance with the Constitution of that party, had been mandated by congress and the highest decision making organ outside congress, and was, for all purposes, valid as a unanimous decision of a voluntary association.

6. Having been addressed on the law governing voluntary organisations and its effect on the subject before it, the court a quo misdirected itself in not pronouncing itself on that issue and in not deciding a question which was material to the decision required of it.

7. The question of the proper Constitution for the first appellant having been previously resolved in terms of an extant judgment in a matter which involved the same parties and/or at least their privies, the court a quo erred in allowing that issue to be re-opened and in founding its judgment on a Constitution which is foreign to the first appellant.

8. The court a quo erred in treating, without a valid legal or factual basis, the domestic remedies set out under the first appellant's Constitution as ineffectual and in not requiring, in accordance with superior court authority, the exhaustion of those remedies ante the bringing of the matter to court.

9. The court a quo misdirected itself, such misdirection amounting to an error in law, in not finding that the first respondent's participation in the activities of the first appellant, under the leadership of the second appellant, and duration of same, estopped him from contending against the validity of his appointment to the prejudice of the first appellant.

10. The ordinary congress for the first appellant having become due, the court a quo erred in finagling upon that party an extra ordinary congress and so erred in creating a totally untenable position which is at variance with the first appellant's Constitution and is totally unworkable either in fact and/or in law.

11. The court a quo erred in intervening, without a valid legal or factual basis, in the workings of a voluntary association and in subordinating its statutes and unanimous assent to the whims of a dishonestly disgruntled individual....,.

Issues for Determination

Before commencing his submissions, Mr Mpofu indicated that he was abandoning the tenth ground of appeal which avers that the court a quo had “finagled” upon the Party an Extra-Ordinary Congress which was at variance with the Party's constitution.

In my view, he should also have been forthright in abandoning the related seventh ground of appeal which impugns the court a quo for having founded its judgment on a Constitution which was “foreign” to the first appellant. Clearly, this latter ground simply cannot be sustained given the position eventually accepted, and confirmed, by his co-counsel that the document availed by the Court, which was identical to that contained in the appeal record as well as that attached to Dr Tsvangirai's opposing affidavit in Case No. HC7453/16, is the only true and authentic Constitution of the Party for present purposes.

It is that very document which was also relied upon by the court a quo in formulating its judgment.

It follows that the seventh ground of appeal must also be jettisoned. It is accordingly ordered that both the seventh and the tenth grounds of appeal be struck out.

I now turn to the remaining nine grounds of appeal.

As I have already intimated, some of the grounds of appeal ought to be combined so as to rationalise their disposition. On that basis, I consider the following to be the salient issues for determination in casu:

(a) Whether the first appellant was correctly barred a quo, and, consequently, denied the right to be heard.

(b) Whether the first respondent should have exhausted the domestic remedies afforded by the Party constitution before instituting the application a quo.

(c) Whether the first respondent was estopped from challenging the validity of the second respondent's appointment as the leader of the Party.

(d) Whether the reference to Deputy Presidents (in the plural) in the Party constitution was a mere typographical error.

(e) Whether the appointment of the second appellant and the second respondent, as Deputy Presidents of the Party, and the subsequent appointment of the second appellant as its Acting President, were valid as being in accordance with the Party constitution.

(f) Whether there was any valid legal or factual basis for the court a quo to intervene in the workings of the Party as a voluntary organisation....,.

Estoppel

As regards the question of estoppel, Mr Mpofu contends, quite correctly, that quiescence usually amounts to acquiescence.

Many developments have taken place within the Party since the second appellant was appointed as Deputy President, and, later, as Acting President, and, more recently, as the Party President. The first respondent allowed this position to continue and only reacted to challenge that position several years later....,.

As regards the estoppel argument, I am again dis-inclined to interfere with the findings and decision of the court a quo.

The learned judge found that the first respondent came to realise his right to challenge the Party leadership after he had read a legal opinion rendered by senior counsel, on the instructions of the Party, when a dispute arose between the three Deputy Presidents.

Based on this finding, I agree with the learned judge that it cannot necessarily be inferred that the first respondent was aware of and acquiesced, by his conduct, to the appointment of two additional Deputy Presidents in 2016. He only became aware of the relevant Constitutional legalities in 2018 and acted within a reasonable time to mount the application a quo in September 2018.

In the premises, I take the view that the eighth and ninth grounds of appeal are devoid of merit and legally unsustainable. They are accordingly dismissed.

View Appeal
HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI
Ruled By: MUSHORE J

The applicant is a member of the Movement for Democratic Change [hereinafter “MDC” or 'the party”) having joined the party in 2000. He is also currently the Organising Secretary for the Gokwe Sesame District of the party.

The respondents were cited by the applicant as follows;

(i) The first respondent is the Movement for Democratic Change Party.

(ii) The second respondent is Nelson Chamisa, who is cited in his capacity as the President of the party.

(iii) The third respondent is Elias Mudzuri, who is cited in his capacity as Deputy President of the party.

(iv) The fourth respondent is Thokozani Khupe, who is cited in her capacity as the Acting President of the party.

(v) The fifth respondent is Douglas Togaraseyi Mwonzora who is cited in his capacity as the Secretary General of the party.

(vi) The sixth respondent is Morgan Komichi, who is cited in his capacity as the Acting Chairman of the MDC.

This is an application for declaratory relief declaring;

(a) The second and third respondents appointments as Deputy Presidents of the MDC unconstitutional and thus null and void; and

(b) Declaring that the second respondent is not the Acting President/President of the party; and

(c) Declaring all appointments, re-assignments and actions done by the second respondent as the Acting President/President of the party null and void.

The applicant is also desirous of obtaining an order compelling the party to hold an Extra–Ordinary Congress.

It is a common cause that the late President of the party, Dr Morgan Richard Tsvangirai appointed the second and third respondents as Deputy Presidents in 2016. It is also common cause that Dr Morgan Richard Tsvangirai passed away on 14 February 2018. It is not in dispute that thereafter, on 15 February 2018, a day after the late President's passing, at a meeting of the Executive Committee and the National Council, the second respondent (who described himself in the minutes as being the Acting President), was, by a resolution of the meeting, appointed as the President of the party. It is also common cause that the fourth respondent was elected Deputy President at a National Congress which was held in 2014.

However, it is the manner by which the second respondent ascended to his position of President that has driven the applicant to make the present application challenging that present status quo of the leadership within the party, combined with a challenge to the manner by which the second and third respondents rose to their Deputy Presidential posts, sometime in 2016, without being elected into office.

The applicant has described his concerns as follows in his founding papers;

According to him, the late President, Dr Tsvangirai, did not have any powers conferred to him in terms of the MDC Constitution to appoint two Deputy Presidents as he did in 2016. He alleges that the late President acted ultra vires the Constitution. Thus, according to the applicant, any such appointments, by choice, were unconstitutional, and thus void for unconstitutionality. He produced the booklet version of the Constitution of the Party with his papers and referred to various provisions in the Party's Constitution in support of his contentions.

Insofar as the fourth respondent is concerned, it is the applicant's case that according to the Party's Constitution, she is the only person who is eligible to be the Acting President by virtue of her being elected Deputy President at a Congress in 2014; and by virtue of her has continued to hold that position up until the date of Dr Tsvangirai's demise.

Regarding the second respondent becoming President of the party, the applicant is alleging that the assumption, by the second respondent, to the position of President of the Party, was in defiance of the provisions of the Constitution of the Party. He alleges that that rise to the position of President, by the second respondent, is void for unconstitutionality.

Using the applicant's own words he describes the events leading to the second respondent assuming the Presidency of the Party as being a “well–choreographed move to usurp the throne.”

The applicant casts doubt on what he describes as being “second respondent's ascendancy to the title of President of the party” which he states was done in breach of the Constitution.

The applicant alleges that on 15 February 2018, the second respondent purported to call a meeting of the National Executive Committee and the National Council at which resolutions were made 'to ordain' the second respondent as President of the party. He attached minutes of the meeting convened by the second respondent at which he states that neither House made such a resolution and that both Houses, and I quote, “pretended to accept the second respondent as the President of the party.”

The applicant also stated that prior to launching the present application he took legal advice after reading a legal opinion on the issue of the legality of the Presidency. The legal advice he received encouraged him to file the present application. He also stated that he learned, from such legal advice, that the meeting which took place on 15 February 2018, a day after the death of Dr Tsvangirai, did not have constitutional powers to ordain either an acting or substantive President.

The applicant also complained that he had not been invited to the meeting of 15 February 2018 in circumstances where he should have been invited in his capacity of a delegate to that Congress. The applicant also pointed out that the meeting of 15 February 2018 was just an Ordinary Congress and that it is a meeting of an ExtraOrdinary Congress in which such party business pertaining to leadership should be discussed and not just an Ordinary Congress as was the case in the present matter.

The applicant stated that the hastily convened meeting, by the second respondent, of the party's Standing Committee; the National Executive Committee and the National Council, on 15 February 2018, was void for unconstitutionality because the second respondent had no such powers to convene such a meeting.

The application is opposed....,.

The sixth respondent stated that the booklet Constitution which the applicant had produced as evidence, did not accurately reflect what the sixth respondent calls 'the true Constitution”. However, the sixth respondent did not attach the version of the “true Constitution” which he was making reference to; save by referring the court to examine another court record in the case of Patson Murimoga and Anor v Morgan Richard Tsvangirai & Ors HC7453/16.

I noted that even though the sixth respondent paid homage to another version of the Constitution, the sixth respondent still relied on the booklet Constitution which was the applicant's version of the Constitution when he made his legal submissions. It seems he then forgot to point out the differences between the applicant's version and his version of the Constitution for the remainder of his submissions.

The sixth respondent submitted that the late President had powers conferred on him by virtue of Article 9 to appoint the Deputy Presidents (as he did in 2016) and that, as such, Article 9 validated the legitimacy of the appointments of the second and third respondents as Deputy Presidents by Dr Tsvangirai. The sixth respondent then went on to state that the late President's actions, in appointing the second and third respondents as Deputy Presidents, were as a result of the National Council has delegated its authority to the late Dr Tsvangirai to appoint those deputies with its approval, in terms of Article 18 of the MDC Constitution. The sixth respondent pointed to the mention of Deputy President(s) in the plural in Article 6.4.4.1(a) as being “evidence that the Constitution allowed for more than one Deputy President to the party.”

With respect to the appointment of the second respondent as President of the party, the sixth respondent justified the appointment of the second respondent by stating that the second respondent was “the preferred choice” of all three Deputy Presidents and that the appointment was unanimous.

He also added that the applicant accepted that appointment by the applicant having continued to be an active member of the party....,.

(iii) Whether or not the applicant has waived his rights to the order sought

The respondents submit that because the applicant is complaining about “events which were initiated by Dr Tsvangirai in 2016” he sat on his rights and is thus prevented from challenging the appointments by his silence all along.

I disagree.

The applicant's rights to bring the present matter have not prescribed by law. The principle relied upon by the respondents, of waiver by neglect, in New York Mutual v Ingle, is inapplicable to the present application. In that matter, INNES CJ stated that:

“Neglect to enforce a right timeously may, under certain circumstances, have the same effect as a waiver of it, even though the period of prescription has not lapsed. Such cases come very near the line if estoppel.

As pointed out by the Privy Council in Lindsay Petroleum Co v Herd (LR 5 PC Appeals…,.) where a man has, by his conduct and neglect 'though perhaps not waiving the remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted' then lapse of time becomes of great importance.

When a person is entitled to a right knows that it is being infringed, and by his acquiescence leads the person infringing it to think that he has abandoned it, then he would, under certain circumstances, be debarred from asserting it.”

The applicant's initial cause of complaint was with the second respondent's “ascension to the Acting President/President” at a meeting called by the second respondent a day after Dr Tsvangirai's death on 15 February 2018.

The applicant became perturbed when that happened and also by the fact that, as a member of Congress, he was not invited to that Congress when he ought to have been invited to have a say in the matter.

From his submissions, I have been able to glean that he was concerned from the speed of which the matter developed.

However, it appears that the applicant came to realise his rights after he had read a legal opinion, which had been rendered by senior counsel on the instructions of the party at the time when a dispute arose between the three Deputy Presidents. The applicant does not say when exactly he came into possession of the legal opinion and learned of his rights, but, it appears, from his submissions, that it was after 15 February 2018 and before 24 September 2018 when he filed the present matter.

From that opinion, the applicant learned that he could possibly challenge the constitutionality or otherwise of the second respondent's appointment as Acting President/President of the party. He also learned, from the opinion, that the prior actions of the late President, in 2016, in appointing the second and third respondents as Deputy Presidents, could have been unconstitutional.

It cannot be inferred, therefore, that he was aware and acquiesced, by conduct, to the actions by the late actions of Dr Tsvangirai's of appointing two Vice Presidents in 2016.

According to his submissions, he became aware of all the legalities sometime in 2018. He engaged the services of a legal practitioner and filed the present application on 24 September 2018 with a view of an order compelling the respondents to call an Extraordinary Congress within the year provided for in the Constitution from the death of Dr Tsvangirai - which is by 14 February 2019.

It cannot be said that the applicant sat on his rights.

In fact, in my view, the applicant acted within a reasonable time of becoming aware that he could possibly challenge the constitutionality of the second respondent's ascendancy to the Presidency of 15 February 2018.

View Appeal
HB179-18 : YUSUF GAIBIE and MAHMOUD GAIBIE vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA
Ruled By: MAKONESE J

The defendants have made an application for absolution from the instance at the close of the plaintiffs case.

The defendants contend that the plaintiffs had failed to lead evidence upon which a court might find in favour of their claims. The application is made on the basis that an essential of the claim, an alleged breach of contract, was not proved in sufficient evidence. Further, the plaintiffs alleged right to cancel the agreement was not proved. The defendants aver that the evidence led by the plaintiffs was fraught with glaring inconsistencies and unacceptable variance with the plaintiffs' pleaded case.

The plaintiffs are opposing the application for absolution from the instance.

The plaintiffs' aver that taking into account the applicable law, and evaluating all the evidence adduced on behalf of the plaintiffs, the pleadings filed of record, the exhibits, and all the discovered documents as well as the viva voce evidence, the application for absolution from the instance is unsustainable and ought to fail with costs.

The plaintiffs aver that they have established a prima facie case of breach of contract and the plaintiffs' right to cancel the contract as a result of such breach. The plaintiffs alleged that the application for absolution from the instance is premised on a mis-interpretation of the terms of the Agreement of Sale, as amended, and a misconception of the consequences at law of the defendants' failure to pay the full purchase price after they were called upon to remedy their breach.

The Factual Background

On the 25th of January 2006 the parties entered into an Agreement of Sale in terms of which the plaintiffs sold to the defendants an immovable property for the agreed price of Z$11,5 billion, subject to certain terms and conditions as set out in the agreement. The plaintiffs alleged that the defendants breached the agreement by failing to pay the purchase price in full despite the extension of time to pay by the 28th of February 2006 in terms of an addendum to the Agreement of Sale signed on the 16th of February 2006.

The defendants deny having breached the agreement of sale and state that they have paid the purchase price in full. They aver that the Capital Gains Tax was paid to the plaintiffs' legal practitioners, who, incidentally, were also the defendants' legal practitioners at the relevant time in accordance with the Agreement of Sale.

The joint pre-trial conference memorandum filed by the parties' legal practitioners set out the following issues for trial;

1. Whether the defendants are in breach of contract.

2. Whether the plaintiffs' cancellation of the Agreement of Sale was in terms of the Contractual Penalties Act [Chapter 8:04].

3. Whether the plaintiffs' attempted to restitute the amount paid by the defendants towards the sale due to breach.

4. Whether the plaintiffs are entitled to cancel the agreement based on the defendants' breach of contract.

5. The onus on the plaintiffs on all the issues.

The Pleadings and Burden of Proof

This being a cause based on breach of contract, the onus of proof rests on the plaintiff to prove breach and the nature thereof. The plaintiffs not only have to allege breach in sufficiently clear terms in their pleadings, but also to prove such breach in evidence. In their pleadings, the plaintiffs allege breach in the following respects:

(a) Failure by the defendants to pay a balance of Z$1,2 billion.

(b) Failure by the defendants to pay the sum of Z$2,3 billion to the conveyancers. The breach, as alleged, is mentioned in paragraphs 4, 5, 6, 7 and 9 of the declaration.

(c) Failure to pay interest in the sum of Z$54,208,814.

In their plea, the defendants denied breaching the terms of the agreement and contend that they have complied fully with the Agreement of Sale.

Assessment of evidence

The plaintiffs filed both the Agreement of Sale and the addendum as part of their case. During the course of the proceedings, the plaintiffs also produced, as exhibit 2a, a schedule showing the defendants' payments totaling Z$9,2 billion made to the first plaintiff, and exhibit 3, a letter from Joel Pincus, Konson and Wolhuter, legal practitioners who were then legal practitioners for the plaintiffs.

The plaintiffs led oral evidence from two witnesses. The first plaintiff confirmed, wholesale, together with all and any defects therein, the evidence, beliefs, and recollections of the second plaintiff.

The evidence of the first plaintiff that he confirmed and adopted the evidence of the second plaintiff was of little probative value to the court.

The first plaintiff had no independent recollection of the matter and did not corroborate the second plaintiff's evidence in any material respects.

It has to be noted that corroboration can only be supplied by independent evidence of a witness giving independent recollections of an incident at issue.

Only one question was put to the first plaintiff, under cross-examination, which question elicited new evidence from the witness. The following exchange occurred between the first plaintiff and the defendants' legal practitioners;

“Q. Who is the registered owner of the property?

A. I am. I gave it to my brother, but I am not the registered owner.”

The only independent aspect of the witness' evidence was that he and not the second plaintiff, and not him and the second plaintiff is the registered owner of the property. The witness, under cross examination, suddenly wept copiously in court. He then informed the court that he and his father had worked hard to acquire the building at issue. He indicated that it was not proper for the property, to “just go like that”. The witness asked the court for a “good judgment”. The first plaintiff certainly displayed his emotions in a rather exaggerated manner.

The second plaintiff gave evidence central to the plaintiffs' claims. He was the single and key witness in this matter.

Clause 1.2 of the Agreement of Sale provides as follows:

“It is recorded herein that the purchase price has been determined and agreed in the context of the prevailing Midrate of Exchange between the Zimbabwean and United States Dollar…,.”

The second plaintiff confirmed that the price was set by him at an equivalent of US$120,000 which was a reasonable price and acceptable to him at the time. The second plaintiff accepted that the midrate only changed between 25 and 3 March 2006.

The suggestion that the purchase price was eroded by the slide of the Zimbabwean dollar, in a period of two months, is baseless.

The second plaintiff confirmed that he signed both the Agreement of Sale and the addendum and he signed both in his own name, and on behalf of the first plaintiff. This is evident from an examination of both documents.

The second plaintiff testified that he co-owns the building with the first plaintiff.

The witness testified that the defendants failed to pay the purchase price by the 27th of January 2006 as stipulated in the Agreement of Sale. Initially, the witness stated that he tried to pursue the defendants to no avail. He stated, further, that upon chasing the defendants he reached no agreement with them. He later conceded that he had signed the addendum with the defendants. After the addendum was signed the witness averred that the defendants were given up to the 28th of February 2006 to settle the balance.

By 28 February, the defendants had not paid the entire purchase price.

He then approached his lawyers who issued a notice to remedy the breach. By the time the notice and demand was issued, the defendants had paid a total of Z$9,2 billion. Such payments were recorded and agreed by the parties prior to issuance of summons.

The witness affirmed that his claim was for cancellation of the contract and that he was tendering a refund of all monies paid by the defendants against such cancellation.

Under cross-examination, an entirely different picture began to emerge.

The plaintiff was moving away and in some instances contradicting his initial evidence. The witness sought to allege that when the addendum was signed, on 16 February 2006, the defendants had already breached the Agreement of Sale by failing to pay the sum of Z$10 billion into his account by 27 January 2006. The witness admitted that, on the face of it, the addendum did not give the sellers the right to cancel the agreement on account of non-payment with the extended time limits. The witness conceded that the addendum gave the sellers the right to levy interest at the rate of 80% or at the NMB Bank investment rate for any further delays in paying off the purchase price. The witness emphatically denied, under cross examination, that he had advised the defendants how much they needed to pay on account of Capital Gains Tax, to the nominated conveyancers, Ben Baron & Partners. The witness repeatedly disputed that the figure of Z$2.3 billion as the amount of Capital Gains Tax in spite of a demand having been made to settle that amount. When it was put to the witness that his lawyers had pleaded on his behalf that Capital Gains Tax was in the sum of Z$2,3 billion the witness stood firm that there was no way he could calculate and demand capital gains tax from the defendants.

Under cross-examination, the witness contradicted his pleadings on the amount, excluding capital gains tax, which remained due to him under the agreement. He pleaded mistakes in the calculations.

The witness further contradicted the terms of the Agreement of Sale and the addendum in material respects.

One glaring contradiction is that the witness sought to argue that capital gains tax was not, contrary to clause 4.5 of the Agreement of Sale, and contrary to the wording of the notice and demand written by his legal practitioners, and the pleadings on record, payable directly to the conveyancers. The witness kept insisting that the money was his money and that it should have been paid to him. Later, in his cross-examination, the witness had departed from his earlier evidence and sought to assert that he had indeed “estimated” capital gains tax in the sum of Z$2,3 billion.

The witness conceded that, up to the time demand was made by his legal practitioners, he had not opened a file at Ben Baron & Partners or supplied the firm with an irrevocable power of attorney as required by the Agreement of Sale.

The witness conceded that the following payments were made to the plaintiffs by the defendant:

(a) Z$9.2 billion into the first plaintiff's account which was nominated in the Agreement of Sale.

(b) Z$2,3 billion in various instalments to Joel Pincus, Konson and Wolhuter.

(c) Z$54,208,844 on account of interest to Joel Pincus, Konson and Wolhuter.

It was accepted, by the second plaintiff, that at the time the last two payments were made, the plaintiffs still did not have an account with the nominated conveyancers for payment of capital gains tax.

Sufficiency of evidence at the close of plaintiffs case

The defendants argue that at the close of the plaintiffs case the plaintiffs failed to lead evidence upon which a court might return a judgment in their favour.

The plaintiffs, however, do not agree.

The plaintiffs urge the court to dismiss the application for absolution from the instance as it is wholly without merit. The plaintiffs argue that they have made a prima facie case for breach of contract, entitling them to cancel the Agreement of Sale. Further, it is alleged by the plaintiffs that there is abundant evidence upon which a court, directing its mind reasonably to such evidence, could or might find for the plaintiffs.

I shall examine the sufficiency or otherwise of the evidence presented by the plaintiffs at the close of their case.

(a) Firstly, the breach of contract pleaded by the plaintiffs was not proved.

In his evidence, the second plaintiff could not explain how the sum of Z$1,2 billion which was stated in his pleadings, and which the defendants were said had failed to pay was calculated or arrived at. The defendants are alleged to have failed to pay such amount in the plaintiffs' pleadings. That the plaintiffs relied on the defendants' failure to pay that amount is clear from the plaintiffs' declaration, which states, in paragraph 4, as follows:

“In breach of the aforesaid terms of the agreement, defendants only paid the plaintiffs' the amounts detailed in annexure 'B' hereto, leaving a balance of $1,200,000,000 plus accumulated interest on all outstanding amount.”

The obligation to pay the sum of Z$1,2 billion, which was termed a material breach, was not proved nor explained by the plaintiffs at all.

(b) Secondly, in their pleadings, the plaintiffs based their allegations of breach of contract upon the alleged failure by the defendants to pay the sum of Z$2,3 billion in respect of Capital Gains Tax on time and as provided under the Agreement of Sale.

In his evidence, the second plaintiff conceded that after payment of Z$9,2 billion into the second plaintiff's account, the defendants met with a Mr Lunat, the plaintiffs accountant, and enquired about the plaintiffs representation at Ben Baron & Partners. What was admitted, however, was that when the defendants intended to pay the Capital Gains Tax, the plaintiffs had no file or account at the nominated conveyancers. It was therefore not possible for the defendants to pay the amount at the offices of the seller's nominated conveyancers.

In the event, the plaintiffs cannot be allowed to rely on the delay in payment of Capital Gains Tax. To do so would be tantamount to allowing the plaintiffs to benefit from their own tardiness or wrongdoing which is not permissible at law.

(c) Thirdly, the plaintiffs, according to their own admission, were in breach of the contract.

Under cross-examination, the second plaintiff conceded that the plaintiffs were in breach of clause 4.7 of the agreement of sale which provides as follows:

“Upon signing of this agreement, the sellers shall furnish the conveyancers herein with an irrevocable power of attorney authorising them to do all such things and sign all such papers as might be necessary to give effect to the transfer.”

The plaintiffs, having breached the terms of the Agreement of Sale, which breach occurred prior to the alleged breach by the defendants, ought not to be permitted to profit from such breach. See Chioza v Siziba SC04-15 where the Supreme Court held that:

“It will seem quite clear that the appellant seeks to benefit unjustly from the transaction. Having sold the property and received the proceeds through his agent, he now seeks the return of the property and thus, so to speak, 'have his cake and eat it'. The respondent, on the other hand, has parted with the full value of the property and stands to incur great financial prejudice if an order for eviction is granted in terms of the counter claim. It would appear then, that the court a quo was correct in its finding that the appellant sought to benefit from its own wrongdoing…,.”

In this instance, the plaintiffs admittedly received the full market value of the property, as set out and accepted by them as at the time of the sale. I make the observation that the plaintiffs ensured that the fluctuating Zimbabwean dollar was pegged at the mid-rate of the United States dollar at the relevant time.

The plaintiffs received the full purchase price for the property.

It is crucial to note that the addendum to the Agreement of Sale provided for a punitive rate of interest of 800% for any late payment.

The second plaintiff, under re-examination, sought to clarify his case on the alleged breach. He stated that there were various instances of breach, the first occurring on the failure to pay by the 27th of January 2006, the second one by failure to pay by the 28th of February 2006 following the delivery of the demand.

The plaintiffs' evidence was clearly at variance with the pleaded cause of action.

The evidence was also contrary to any correct reading of the addendum.

Under re-examination, the second plaintiff stated that, by the end of the notice period, only Z$9,2 billion had been paid to him out of Z$11,5 billion. The defendants had indeed paid the total amount, exclusive of Capital Gains Tax. The witness made reference to a failure to pay Z$10 billion by the 27th of January 2006. This argument presents an inconsistency in the contract of sale.

Under clause 4.2 and 4.3, a total of Z$10 billion was to be paid into an account nominated by the sellers. This account turned out to be the sellers personal account. In terms of clause 4.4 of the agreement the last payment of Z$1,5 billion was only to be made upon the buyers obtaining occupation. The second plaintiff could not state when occupation was taken by the defendants, but conceded that this could not have been in November 2006. No interest, therefore, would have become due and payable before the last payment of Z$1.5 billion became due. Clause 4.5 inconsistently required that the amount required for Capital Gains Tax was to be held by the conveyancers. The pleadings allege that this amount was Z$2,3 billion. Given the amount, it becomes difficult to determine how the defendants could be said to have failed to pay Z$10 billion to the second plaintiff. The amount, less the Z$2,3 billon, came to Z$9,2 billion which was admittedly paid to the plaintiffs.

The second plaintiff conceded that the Agreement of Sale was drafted by himself.

It follows that the second plaintiff is the proferens in this matter, therefore, by operation of the contra proferentem sale, any obscurity, vagueness and lack of clarity around the issue of what clause was breached must be resolved against the plaintiffs; see Blumo Trading (Pvt) Ltd v Nelmah Milling Co and Anor HH39-11.

In concluding the analysis of the evidence led by the plaintiffs, I find that the plaintiffs' evidence fell far short of establishing a prima facie case for breach of contract.

The plaintiffs' evidence was so discredited under cross-examination that no reasonable court examining the evidence could or might find in its favour. The plaintiffs' pleaded case contradicted the viva voce evidence in material respects. The alleged breach was not established.

The second plaintiff departed from the pleaded case in several respects. His evidence is not reliable.

By choosing to extend the true limits, and signing an addendum to provide expressly for penalties for late payment and not reserving the right to cancel the Agreement of Sale, the plaintiff exercised an election to remain in the agreement and to receive the full market value for the property.

There is sufficient evidence that the plaintiffs received, in full, the value of the property at the relevant time, pegged against the United States midrate at the time. The plaintiff is attempting to have his cake and eat it at the same time.

The Law applicable

One of the leading case law authority, in this jurisdiction, on the test to be applied when deciding whether to grant an application for absolution from the instance at the close of the plaintiffs' case is United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 where GUBBAY CJ stated as follows…,;

“The test in deciding an application for absolution from the instance is well settled in the jurisdiction. 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…,. Moreover, in considering an application for absolution, the court should lean favour of continuing the case rather the dismissing it…,.”

See; Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (AD) and Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H).

The test to be applied in this instance is whether, at the close of the plaintiffs' case, there is any evidence upon which the court, directing its mind reasonably to such evidence, could or might find in favour of the plaintiffs. The court must also examine whether the plaintiff has failed to adduce any evidence or adduced insufficient evidence to establish an essential element of the claim. The court is enjoined to make an overall assessment of all the evidence adduced on behalf of the plaintiffs and the pleadings filed of record together with exhibits and annexures, as well as viva voce evidence to establish whether the evidence is sufficient to proceed to hear the case for the defendants.

I am satisfied, that, in applying the applicable law to the facts of this dispute, it becomes evident that the plaintiffs case is full of glaring inconsistencies and unacceptable variance with the pleadings filed of record. The second plaintiffs' evidence, by all accounts, was at direct variance with the pleadings. The plaintiffs sought to correct his evidence under re-examination. The net result was that this court concluded that the plaintiffs failed, at the close of the plaintiffs' case, to establish a prima facie case.

In the result, and accordingly, absolution from the instance is granted. The plaintiffs are ordered to pay costs of suit.

Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the whole judgment of the High Court handed down on 24 September 2018 wherein it granted the first respondent's claim against the appellant.BACKGROUND FACTSThe following facts are common cause;The second respondent, Bernard Chiswa (“Bernard”), entered into a car hire agreement with the first respondent, Car ...

This is an appeal against the whole judgment of the High Court handed down on 24 September 2018 wherein it granted the first respondent's claim against the appellant.

BACKGROUND FACTS

The following facts are common cause;

The second respondent, Bernard Chiswa (“Bernard”), entered into a car hire agreement with the first respondent, Car Rental Services (Private) Limited (“Car Rental Services”), in October 2015. In terms of the agreement, he was issued with a motor vehicle, a Ford Everest, and was expected to make payments as per the vehicle hire agreement. He failed to do so until the motor vehicle was withdrawn from him.

The first respondent sought the services of the police for the second respondent to return the motor vehicle by laying criminal charges against him.

The appellant, sister to the second respondent, offered to settle the debt and the criminal charges were withdrawn. She signed an acknowledgement of debt and a payment plan. In due course, she withdrew the offer to settle the debt. The first respondent thereafter caused summons to be issued against the appellant and Bernard, jointly and severally, claiming the sum of US$13,868=90.

The appellant applied for the appointment of a curator ad litem on behalf of Bernard on the grounds that he was not of sound mind. On 17 March 2017, a provisional order was granted and a curator ad litem was appointed.

The matter was not prosecuted further.

As a result of the provisional appointment of a curator ad litem, the first respondent withdrew its claim against Bernard and proceeded against the appellant.

PROCEEDINGS BEFORE THE COURT A QUO

Car Rental Services sued the appellant, and Bernard, jointly and severally, for the payment of US13,868=90 for the rental charges due to it. The basis for the claim, in respect of Bernard, was that he had entered into an agreement with Car Rental Services for the hire of a motor vehicle and had failed to pay in terms of the agreement.

In respect of the appellant, it was averred that she had agreed “to take over the debt due by the first defendant (Bernard) and had assumed full responsibility of it which undertaking the plaintiff (Car Rental Services) agreed and accepted (sic).”

In their joint plea the appellant and Bernard disputed liability.

Bernard pleaded that he did not have the requisite mental capacity to enter into a contract. The appellant put in issue the validity of the acknowledgement of debt she signed on the basis that the initial agreement, which gave rise to the acknowledgement of debt, was void ab initio.

TWO ISSUES WERE REFERRED TO TRIAL, NAMELY:

1. Whether or not the agreement entered into between Bernard and Car Rental Services was valid.

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

Regarding the first issue, the court found that the agreement of sale between Car Rental Services and Bernard was invalid for the reason that he was not compos mentis at the time he entered into the contract.

In respect of the second issue, the court a quo quoted from the declaration the basis of the appellant's liability as follows:

“The second defendant (appellant) herein agreed, on 2 March 2016, to take over the debt due by the first defendant (Bernard) and assumed full responsibility of it which undertaking the plaintiff agreed and accepted.”

The court found that the validity or otherwise of the agreement between Car Rental Services and Bernard is irrelevant.

The appellant, after being advised of how investigations proceeded in respect of mentally incapacitated persons, offered to pay the debt to avoid the incarceration of her brother.

It opined that the debtor was replaced and that it was a case of delegation. It defined delegation as a form of novation in which, by agreement between all parties concerned, a third party is introduced as a debtor in substitution of the original debtor, who is discharged. It further opined that the new agreement was not dependent on the validity of the agreement between Car Rental Services and Bernard. It, therefore, found the appellant liable and made an order that she pays the respondent the amount due in terms of that agreement.

Aggrieved by this decision, the appellant noted an appeal to this Court seeking an order reversing the decision of the court a quo.

THE APPEAL

The appellant attacks the judgment of the court a quo on the following grounds: I quote these verbatim;

“1. The Honourable court a quo erred when it found, as it did, that the second defendant was liable to the plaintiff in the sum of US$13,868=90 with interest at the rate of 3.5 percent from 1 April 2016 after having made the finding, as she did, that the agreement between the plaintiff and the first defendant was invalid due to his mental incapacity to contract.

1.1 For the stronger reason that once a finding was made that the initial agreement was null and void, the subsequent agreement, which purported to replace the non-existent agreement, was itself null and void, it being premised on a nullity.

2. The Honourable court a quo erred at law when it found, as it did, that the parties had novated the initial agreement by delegation.

2.1 For the stronger reason that novation by delegation requires agreement of all parties to the initial agreement, which the first defendant, in his mental state, could not possibly give. To that end, there was no novation to talk about.

3. The Honourable court a quo erred at law when it concluded, as it did, that the plaintiff had sued the second defendant based on the novated agreement when the summons and declaration clearly show that the defendants were sued jointly and severally with one paying the other to be absolved.

3.1 For the stronger reason that if the plaintiff was suing the second defendant based on the subsequent agreement, it would not have sued the first defendant or demanded judgment against them jointly and severally, and, more important, it would have been apparent from the pleadings.

4. The court a quo erred when it found, as it did, that the second defendant was liable for payment of anything or at all when regard is had to the fact that she unilaterally offered to pay the debt and subsequently unilaterally withdrew the offer which fact was not disputed by the plaintiff.”

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant submitted as follows;

The court a quo could not competently come to the conclusion that there was a delegation. Delegation is a novation which pre-supposes that there is a pre-existing agreement which is binding - which was not the case in this matter. It found that the agreement between the respondent and Bernard was not binding. No rights or obligations could be transferred from the agreement. It could not be novated. In any event, for delegation to take place, all the parties have to agree. This could not competently take place as when the acknowledgement of debt was signed, Bernard was admitted into a mental institution. The acknowledgement of debt is a unilateral document. It cannot be an agreement which falls in the confines of delegation.

Counsel for the respondent filed extensive heads of argument where he advanced argument that there was a compromise in the circumstances of this matter. In the last paragraphs of the heads of argument, under the heading: “Whether the court order can be supported on grounds which were rejected by the trial court” he advanced argument that when the second respondent signed the Acknowledgement of Debt an expromissio occurred. He concluded by submitting that the doctrine of compromise was applicable in the circumstances of the present matter. Alternatively, the judgment of the court can be supported on the basis of expromissio.

In his submissions before this Court, he totally abandoned the argument in respect of the doctrine of compromise.

His submissions were as follows:

The appellant interposed herself as between the first and second respondents. This is where an outsider intervenes between two parties and undertakes to satisfy that which is demanded by one party from the other party. Such an undertaking is independent of the underlying obligations or issues between the parties. He relied on the authority of Baker NO vs Total South Africa (Pvt) Ltd 1990 (3) SA 159 for this proposition. It is a step through which a novation can be achieved. The one who originally owed can plead that the debt was extinguished by the interceder. This arrangement does not depend on whether the underlying agreement was valid or not.

On being engaged by the court regarding the issue of the doctrine of compromise, he conceded that there was no involvement of Bernard when the new agreement was entered into. He could not, therefore, argue, with confidence, that a proper compromise was concluded when the original debtor was not involved. He could not argue that the acknowledgement of debt was a compromise but rather that it was an expromissio.

In rebuttal, counsel for the appellant took note of the concession made that there was no compromise in the circumstances of this matter....,.

With the argument regarding the doctrine of compromise having been abandoned, the issue for determination is whether the doctrine of expromissio applied to the circumstances of this matter....,.

The court, in Hamilton v Van Zyl 1983 (4) SA 379 (ECD)…, in distinguishing between novation and compromise stated:

“In pointing out the difference between novation and compromise (transactio) WESSELS on The Law of Contract in South Africa, 2nd ed. Vol. II para. 2458 states:

'There is a great similarity between transactio and novation, and, as a rule, the principles which apply to the latter apply to the former. (Voet 46.2.3).

There is, however, this difference between the two;

When parties novate they intend to replace a valid contract by another valid contract, and, if therefore the novated contract is invalid, the novating contract is, as a general rule, of no effect. If, however, a claim is made upon a contract, about the validity of which the defendant has a doubt, and a transactio follows, the defendant cannot upset the compromise on the ground that the agreement which was compromised was in fact invalid.'”…,.

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

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

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

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

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

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

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

This trial therefore relates to the second defendant only.

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

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

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

The plaintiff led evidence through two witnesses.

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

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

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

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

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

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

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

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

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

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

He confirmed that the undertaking was made on the understanding that Bernard was mentally unstable....,.

The court, in Leader Tread Zimbabwe (Pvt) Ltd v Smith HH131-03, cited the sentiments of L.R CARIEY in Law of Novation…, that;

“A compromise (transactio) is a novation, with a difference, however, that a novation on an invalid contract in itself is invalid, but, if a compromise is made about a contract the validity of which is in doubt, this cannot be upset on the ground that the contract which was compromised was invalid; the purpose is to replace uncertainty with certainty.

It is a novation designed to effect settlement of a dispute and may be arrived at by novation in the narrower sense of the word or by delegation.”...,.

Delegation is a form of novation in which, by agreement between all parties concerned, a third party is introduced as debtor in substitution of the original debtor, who is discharged; R H CHRISTIE in Business Law in Zimbabwe, 1998…,.

SC82-20 : YAKUB MAHOMED vs JOHN BREDENKAMP and TANYARADZWA MASHAYAMOMBE N.O.
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

This is an appeal against the whole judgment of the High Court which set aside the decision of the Taxing Master, the second respondent, to allow an advocate's fees at taxation.

The facts of the matter are, to a large extent, common cause. They are as follows;

The appellant sued the first respondent for the recovery of a debt under HC8103/14. The first respondent counter claimed for damages for malicious prosecution. After a 3 day trial, the court found for the appellant and awarded him costs on a legal practitioner/client scale. The first respondent appealed against that decision and the appeal was resolved on the basis of a settlement that left the order of costs intact.

There was a dispute over the appellant's costs claim. This obliged the appellant to tax the bill.

To that end, the parties appeared before the second respondent. Among other disputes, that are no longer relevant, the first respondent did not accept item no.124 of the bill which was a claim for the recovery of US$170,000 alleged to be a fee payable to the advocate who appeared in the three-day trial.

The second respondent dismissed the objection and allowed the recovery on the basis that the fee had been incurred.

Aggrieved by the decision of the second respondent, the first respondent sought a review of that decision before the court a quo. His grounds for review, in the relevant part, were as follows;

“First respondent's decision to allow Counsel's fees as a disbursement in the total sum of US$170,000 on the mere presentation of counsel's invoice, by second respondent, was grossly unreasonable as first respondent failed to apply her mind to the necessity or reasonableness of such fee.

The disbursement allowed in item 124, as counsel's fee, was grossly excessive, was not reasonably incurred, and could not have been allowed had the first respondent applied her mind to the question.”

The issue that was before the court a quo was whether or not the second respondent had proceeded irregularly by failing to enquire into whether or not it was proper to allow the appellant to recover the alleged fee from the first respondent merely on the basis that it had been found to have been incurred.

The court a quo found that the allegation that the second respondent ruled that the appellant was entitled to recover the alleged sum merely because it was paid and that she had no power to enquire into the reasonableness of the fees remained unchallenged throughout the proceedings before it.

It further found that failure to enquire into the reasonableness of the disbursement was an abrogation of the second respondent's role. The second respondent committed a grave irregularity by failing to satisfy herself of the reasonableness of the disbursement.

The court a quo further discounted the appellant's arguments that the first respondent agreed that the fee was recoverable on the basis that the agreement produced was not signed by the first respondent, and, further, that the issue was not raised at the taxation. It further discounted the argument that the fee was a contingency fee on the basis that it was not raised at taxation and that in any event the contingency fee agreement was not produced.

The appellant was dissatisfied with that judgment and appealed to this Court on the following grounds:

1. The Learned Judge misdirected himself in finding that the second respondent was clearly wrong in her decision to allow Advocate Mpofu's fee.

2. The Learned Judge misdirected himself in finding he had the legal right to overturn the second respondent's decision to allow the fee.

3. The Learned Judge erred in failing to accept that the respondent's legal practitioners had paid the fee directly to Advocate Mpofu and hence accepted the fee's reasonableness.

4. The Learned Judge erred in overturning the fee in the circumstances.

Counsel for the appellant contended that this was purely an academic exercise by the first respondent as the impugned fee was paid to counsel. The first respondent had accepted the reasonableness of the fees by making the payment....,.

Per contra, counsel for the respondent submitted that the sum of US$170,000 was paid after taxation and as a result of execution of the Taxation Order.

HH454-18 : YAKUB MAHOMED vs JOHN BREDENKAMP
Ruled By: CHIKOWERO J

This is an opposed summary judgment application.The law on the relief of summary judgment is settled.In sum, it is to enable a plaintiff with a clear case to obtain quick judgment against a defendant who has no real defence against the claim.The plaintiff's claim must be unanswerable both on the ...

HH39-11 : BLUMO TRADING (PVT) LTD vs NELMAH MILLING COMPANY (PVT) LTD and NELSON MAHUPETE
Ruled By: PATEL J

The plaintiff in this matter claims the sum of US$24,100 as special damages, being loss of profits arising from an alleged breach of contract by the defendants.It also claims restitution of US$10,000 paid as a deposit to the first defendant under the same contract.The defendants deny any breach on their ...

The plaintiff in this matter claims the sum of US$24,100 as special damages, being loss of profits arising from an alleged breach of contract by the defendants.

It also claims restitution of US$10,000 paid as a deposit to the first defendant under the same contract.

The defendants deny any breach on their part and allege that it was in fact the plaintiff that acted in breach of contract.

Evidence for the Plaintiff

Wayne Victor Moss is the Chief Executive Officer of the plaintiff company which, together with CCC Pigs (Pvt) Ltd, is a subsidiary of Colcom Foods Limited. He testified as follows:

On the 18th of January 2010, he signed the Agreement in casu with the defendants. In essence, the Agreement was for the sale of 500 tons of maize (at US$235 per ton) for a total purchase price of US$117,500. The maize was to be sourced by the first defendant from the Grain Marketing Board (the GMB).

On the same date, the second defendant signed a contract of suretyship guaranteeing the delivery of maize in terms of the Agreement. He said that the first defendant had a credit facility with the Grain Marketing Board (GMB) for 2,000 tons.

On the 21st of January, he withdrew a total of US$100,000 from the bank. He paid the agreed deposit of US$10,000 to the second defendant and then proceeded with him to the Grain Marketing Board (GMB) with US$90,000 in cash.

The Grain Marketing Board (GMB) was not aware of the transaction and had no release orders in the name of the first defendant. He was told by the GMB's Credit Controller (Mawanza) that he could obtain only 300 tons of maize at a higher price of US$300 per ton if he paid the US$90,000 into the first defendant's account with the GMB. This was because the first defendant's facility was for a maximum of 300 tons and because its account with the GMB was in debit at that time.

The second defendant then undertook to resolve the matter the following day.

The witness subsequently visited the Grain Marketing Board (GMB) on four consecutive days and was given the same explanations by Mawanza. He then met the GMB Marketing Manager (Mandizvidza) who cautioned him against dealing with the first defendant. Mandizvidza later furnished a letter confirming the first defendant's credit standing with the GMB at the relevant time.

The plaintiff did not proceed with the transaction as it became evident that the first defendant did not have the capacity to deliver as agreed.

The Agreement was cancelled on the 2nd of February and this was confirmed by the plaintiff's lawyers in their letter of the 4th of March to the first defendant. The defendants offered to restitute the US$10,000 deposit in January and October 2010, but have not made any payment to date.

The plaintiff had a contract with CCC Pigs (Pvt) Ltd, signed immediately after the Agreement with the defendants, for the onward supply of 500 tons of maize at a price of US$290 per ton. This represented a profit margin of US$55 per ton equating to a total profit of US$22,500. The plaintiff had arranged for the transportation of the maize at a cost of US$200 per truck. In order to meet its contract with CCC Pigs the plaintiff had to order 508 tons of maize from South Africa at a price of US$317 per ton.

Under cross-examination, the witness conceded that the deposit of US$10,000 was not paid on signature of the Agreement but on the 21st of January and that the sum of US$90,000 was not deposited into the GMB's bank account as agreed. The payments were a few days late and not strictly in accordance with the terms of the Agreement. However, this was not unreasonable in the circumstances of the transaction and the second defendant had accepted the delays. Moreover, the witness did not have the Grain Marketing Board's (GMB) bank account details.

Odson Dzanga is the plaintiff's Financial Manager. He accompanied Wayne Victor Moss to the Grain Marketing Board (GMB) on the 22nd of January 2010. He confirmed that the GMB would only have released 300 tons of maize upon payment of the US$90,000 in cash. He added that the first defendant's account with the GMB was in arrears standing at about US$54,000 as at the 8th of January 2010.

Emson Mandizvidza has been employed by the Grain Marketing Board (GMB) as its Marketing Manager since 2003. His duties include checking the credit facilities of customers, and, in conjunction with the Credit Controller, authorising release orders on credit sales. He corroborated the testimony of Wayne Victor Moss and Odson Dzanga regarding their visit to the GMB on the 22nd of January and his discussion with Moss in the presence of the second defendant. He also confirmed the contents of his letter of the 13th of May 2010 concerning GMB prices and the first defendant's credit status.

Between the 18th and 22nd of January 2010, the first defendant's credit facility was on hold because of its outstanding arrears of US$54,000, and, in any event, that facility did not enable it to buy 500 tons of maize from the Grain Marketing Board (GMB). At that time, the first defendant's credit facility was limited to 300 tons per month.

In practice, a credit customer wishing to increase its credit limit would have to apply, in writing, and the application would then be assessed by the Risk Management Committee (the RMC) which meets once a week.

In December 2009, the first defendant applied to increase its credit limit to 2,000 tons per month. This application was turned down by the Risk Management Committee (RMC) before the 18th of January. As at that date, there was no application from the first defendant to increase its credit limit. Even if it had lodged an application, this would only have been processed the following week and it would not have been possible to approve any increase on the 22nd of January. The Grain Marketing Board (GMB) sued the first defendant for the outstanding US$54,000 in April 2010 in Case No. HC2191/10. At the present time, the first defendant is no longer a credit client of the Grain Marketing Board (GMB).

Wanda van den Bergh is a grain broker. Her evidence was that she introduced Wayne Victor Moss to the second defendant in January 2010. The agreement between them was for the first defendant to supply maize to the plaintiff for onward sale to CCC Pigs (Pvt) Ltd. She was not aware of the first defendant's credit facility with the Grain Marketing Board (GMB).

Evidence for the Defendants

Nelson Mahupete, the second defendant, is the Chairman and Managing Director of the first defendant.

His evidence was that in December 2009 he applied to the Grain Marketing Board's (GMB) credit controllers (Mawanza and Pfumbidza) to increase the first defendant's credit facility from 300 tons to 2,000 tons per month. They agreed to increase the facility to 1,500 tons - provided the outstanding debt of US$54,000 due to the GMB was cleared.

After the Agreement was concluded with the plaintiff, Wayne Victor Moss only paid the deposit of US$10,000 after three (3) days. Moreover, he did not effect transfer of the US$90,000 into the Grain Marketing Board's (GMB) account but arrived at the GMB offices with the cash equivalent. He then declined to pay that amount towards the first defendant's account with the GMB. If he had done so, the first defendant would have fulfilled the contract to deliver 500 tons of maize.

As regards the debt of US$54,000 owed to the Grain Marketing Board (GMB), the first defendant has already paid US$33,250 towards this and the balance is to be cleared as per an agreed payment plan.

Under cross-examination, the second defendant conceded that the 500 tons of maize in question was for pig feed but denied that it was intended for CCC Pigs (Pvt) Ltd.

He disputed the averment to that effect made by Mandizvidza in his statement to the CID Serious Fraud Squad on the 12th of February 2010.

As regards the release orders for 500 tons of maize, he admitted that he did not have them in his possession on signature of the Agreement on the 18th of January or at the Grain Marketing Board (GMB) offices on the 21st of January.

He has been charged with fraud in respect of the present contract. The criminal trial has commenced and is yet to be completed.

Vavavirayi Mawanza has been the Grain Marketing Board's (GMB) Credit Controller since January 1999.

His evidence was that Grain Marketing Board (GMB) release orders are first signed by him and then by the Marketing Manager before they are issued. In August 2009, the first defendant applied for a credit facility, and, in September, it was granted a facility for 150 tons per fortnight or 300 tons per month. In December 2009, the GMB released a total of 268 tons of maize to the first defendant. The latter then applied for a facility of 2,000 tons per month. On the 18th or 19th of December, he verbally advised the second defendant that he could only approve a facility of 1,500 tons on condition that the first defendant paid an additional US$200,000 towards its account with the GMB.

As at the 8th of January 2010, the first defendant's account was in debit of about US$54,000. On the 22nd of January 2010, Wayne Victor Moss came to the Grain Marketing Board (GMB) wanting to pay US$90,000 into the first defendant's account. The witness refused his request and said that the first defendant should make the payment itself. Moreover, it would not have been possible for Moss to have paid the GMB through its own bank account.

In his statement to the CID Serious Fraud Squad, dated the 15th of February 2010, he declared that “the accused (second defendant) has a buying limit of 150 tonnes at a time.”

There was no mention of an increased limit of 1,500 tons having been conditionally approved.

Tatenda Pfumbidza is an Assistant Credit Controller with the Grain Marketing Board (GMB).

He confirmed that an existing credit client must apply, in writing, for any increase in its credit facility and that, if its application is approved, the Marketing Department and the client must be advised of the increased limit in writing.

When the first defendant applied for an increased limit of 2,000 tons, in December 2000, it was told to make an additional payment of “more than US$100,000” towards its account with the Grain Marketing Board (GMB). This application was not approved because the additional payment was not made.

In February 2010, the second defendant approached him for a credit reference. He then wrote two reference letters dated the 5th and 8th of February. He conceded that the letters were silent as to the conditions of release and the tonnage that could be released to the first defendant. Moreover, he accepted that the letters were not addressed to the plaintiff or to Wayne Victor Moss and that they were written after the events giving rise to the plaintiff's action in casu.

Breach of Agreement by Plaintiff

It is a fundamental premise of every contract that both parties will duly carry out their respective obligations. See Green v Lutz 1966 RLR 633; ESE Financial Services (Pty) Ltd v Cramer 1975 (2) SA 805 (C)…,.

As is explained by CHRISTIE: Business Law in Zimbabwe…,.:

“There is a presumption that in every bilateral or synallagmatic contract, i.e. one in which each party undertakes obligations towards the other, the common intention is that neither should be entitled to enforce the contract unless he has performed or is ready to perform his own obligations….,.

…,. Conversely, a party who has caused the other to commit a breach cannot found a claim on the breach…,.”

In terms of clause 3 of the Agreement in this case, the plaintiff undertook to pay a deposit of US$100,000 “upon the signing of this agreement”, US$90,000 into the bank account of the Grain Marketing Board (GMB) and US$10,000 in cash to the defendants.

It is common cause that Wayne Victor Moss did not pay the deposit of US$10,000 and did not transfer the sum of US$90,000 into the Grain Marketing Board's (GMB) bank account upon signature of the Agreement. Instead, he paid the US$10,000 deposit only on the 21st of January, and, on the same date, tendered US$90,000 in cash to the GMB.

It is therefore clear that the plaintiff did not perform its obligations strictly in accordance with clause 3 of the Agreement.

However, it is equally clear that the defendants accepted the late payment of the US$10,000, and, furthermore, they actively attempted to pressurise Wayne Victor Moss to pay the US$90,000 in cash to the Grain Marketing Board (GMB), particularly as it was not practically possible for him to make that payment into the GMB's bank account.

At that stage, he was obviously willing and able to make both payments in performance of the plaintiff's obligations.

Given the attitude and conduct of the parties, the delay of three (3) days in tendering the payments and the departure in the mode of payment to the Grain Marketing Board (GMB) were not material to the plaintiff's undertakings under the Agreement; and, although the plaintiff did not strictly comply with its payment obligations, such non-compliance was accepted by the defendants.

In short, they positively acquiesced in that non-compliance and are therefore estopped from raising it as a defence to the plaintiff's claim.

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against the judgment of the High Court, Harare handed down on 13 July 2005 in which the High Court granted with costs an application by the respondents declaring, inter alia, that they were entitled to payment of a mileage allowance of 4,000 kilometres per month calculated at the Automobile Association of Zimbabwe (AAZ) rates.

The facts of this case are these:

The respondents were employed by the appellant as Assistant Director, Credit Risk and Assistant Director, Debt Recovery, respectively. Both respondents signed revised contracts of employment in the year 2000 which stipulated their conditions of employment. The contract of employment provided, in paragraph 3, as follows:

“3. Motor Vehicle Use

You are entitled to the use of an Agribank company car under the prevailing terms and conditions. You are required to familiarize yourself with the existing rules and regulations for the use and disposal of the motor vehicle.

Or

You are entitled to purchase a motor vehicle under the prevailing motor vehicle scheme. You will use the car for business and claim in accordance with the existing rules and as amended from time to time. You are also entitled to a mileage allowance based on a mileage of 4,000 kilometres per month at the applicable standard AAZ rates.”…,.

The underlined portion of paragraph 3 is at the centre of the dispute in this matter.

By letter dated 30 August 2001, the appellant's Human Resources Manager wrote to the respondents advising them that, following the restructuring of management grades, the appellant's Board had approved the conversion of the company car scheme to a personal car scheme under the managers and field staff motor vehicle scheme with effect from 1 September 2001.

The conversion to a personal car scheme was done without reference to the respondents.

The conversion meant that the use of a company car was being done away with and the respondents would no longer access fuel and other facilities previously offered by the Bank in this regard. The respondents were offered a loan equivalent to the purchase price of their existing company vehicles and a monthly allowance of $30,300 to assist in “the cost of running the motor vehicle.”

It appears the respondents were not happy with the conversion to the new scheme, and, on 3 September 2001, wrote a letter to management raising various issues on the matter and threatening legal action because of what they perceived as a breach of contract.

One of the issues raised was their entitlement to an allowance based on a monthly mileage of 4,000 kilometres.

The response by the Managing Director of the appellant was that such an allowance “would ultimately be too expensive for the Bank to sustain” and that the change had been “influenced by the magnitude of the vehicle allowance cost and its sustainability.”

Thereafter, the parties engaged in considerable exchange of correspondence on the matter. The respondents continued to insist that they were entitled to the allowance. The appellant maintained that it could not justify payment of such a huge allowance.

The appellant eventually stated, by letter dated 14 April 2004, that the allowance had been included by mistake and that the intention had been to allow the respondents to use their personal vehicle and submit claims for such use under the Bank's prevailing terms and conditions.

In June 2004, the respondents then filed a court application seeking, inter alia, a declarator that they were entitled to payment of the allowance.

After hearing both parties, the High Court granted the application with costs. It is against that decision that the appellant has appealed to this Court.

The decision of the court a quo is attacked on four bases. These are:

(i)...,.;

(ii) Secondly, that the court a quo erred in dismissing the appellant's defence of waiver;...,.

THE QUESTION OF WAIVER

The appellant has argued that the court a quo should have dismissed the application on the ground that the respondents had, by their conduct, waived whatever rights they might otherwise have had.

In terms of the common law, there is a presumption against waiver. R H CHRISTIE in the Law of Contract in South Africa, 3ed states…,:

“Having gone to all the trouble to acquire contractual rights people are, in general, unlikely to give them up. There is therefore a presumption, even, in some cases, a strong one, against waiver. That means not only that the onus is upon the party asserting waiver to prove it, but that although, as in all civil cases, the onus may be discharged on a balance of probability, it is not easily discharged…,.

To this it is only necessary to add that it has repeatedly been held that clear proof is required, especially of a tacit as opposed to an express waiver…,.”

Attention is also drawn to the judgment of this Court in Philemon Chidziva & 4 Ors v Zimbabwe Iron & Steel Company SC137-07.

In dealing with this argument, the trial Judge stated…,:

“The respondent further submitted that the applicants must be held to have waived their rights by not bringing up the matter to court timeously.

The submission is clearly devoid of any merit when regard is had to correspondence filed of record in which the respondent admits that the applicant never manifested any signs of abandoning their rights. On 25 September 2001, the Managing Director acknowledged that the applicants' memorandum raised the issue of 'legal action insinuated because of perceived contractual agreement violation'. On 5 June 2003, the Human Resources Manager, in response to another communication from the second applicant, also acknowledged that the matter was first raised in 2001, and, as far as the Bank was concerned, it had been deliberated upon to its finality then.

The above statement was clearly misleading. The Bank never said it had made a mistake at that stage. The issue was therefore very much alive.

Finally, the Bank, in the final memorandum of 14 April, acknowledged that the matter had been brought up on a couple of times since 2001.

In such circumstances, it cannot be said that the applicants abandoned their rights when the requirements of a waiver were not met at all.”

I agree with the trial Judge in this respect.

At no stage did the respondents suggest that they were abandoning their entitlement to the allowance. They immediately wrote to management, on 3 September 2001, voicing their concern at what they considered was a breach of their contract of employment - and even threatened legal action.

Although it appears that they did request for the extension of the period within which to repay their loans - at no time did they waive their entitlement to the allowance.

It is also not correct, as suggested by the appellant, that the respondents did not assert their rights for more than twenty months. The correspondence on file shows that the respondents immediately complained, and, as already noted, even threatened to take legal action.

Even if it were to be accepted, for a moment, that there was such a delay, our law is clear that:

“Delay in enforcing a contractual right is not necessarily a waiver of the right. One can go further and say that delay, of itself and without more, can never deprive a party of a contractual right except by prescription…,.:” R H CHRISTIE in the Law of Contract in South Africa, 3ed…,.

This ground of appeal must also fail.

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Variation of Contracts re: Deed of Settlement, Compromise Agreement iro Waiver, the Presumption Against Waiver & Estoppel

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