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 due course, a Mazda 3 was procured and allocated to the plaintiff.

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.

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 of suit.”

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.

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.

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.

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).

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.