The first plaintiff is a farmer who owns Ziswa Farm (“the farm”) otherwise known as Farm 23 of Lawrencedale Estate in the District of Makoni, Rusape which farm he prefers to rent out while staying on it, as he currently rents it out to his neighbour, he having rented it out to the first defendant prior to that and yet to another person before the first defendant came in.
The second plaintiff is his wife, who, apart from the fact that she was cited as a party along with the first defendant in a joint venture agreement concluded between the couple and the first defendant, on 9 January 2009, has been cited in these proceedings in extremely unclear circumstances.
The first defendant is a commercial farmer, a tobacco grower of note, conducting such business generally at Landos Farm, Halfway House in Headlands and is a director of the second defendant, a duly incorporated company.
The plaintiffs instituted proceedings against the defendant, and, in their summons and declaration, they set out an array of claims, thirteen (13) in all, arising out of a lease agreement signed between the first plaintiff and the first defendant on 9 January 2009 on which date a second agreement titled “Memorandum of Joint Venture Agreement” was also signed between the first and second plaintiffs on the one hand and the first defendant on the other hand.
The plaintiffs averred, that, sometime in 2008 they had entered into a long term development lease agreement with the defendants for the use of the farm and that although the first defendant had signed as the tenant, the actual farming was done through the second defendant.
In terms of the lease agreement, the defendants were expected to put up and maintain infrastructure at the farm, like the construction of 44 houses for workers, dam, and barn construction.
The relationship between the parties deteriorated over time resulting in the defendants cancelling the lease agreement on 2 July 2012 before vacating the farm without notice.
The plaintiffs averred further, that, when the defendants vacated the farm they unlawfully removed certain items of property belonging to the plaintiffs valued at US$186,701 which amount they claimed.
The defendants badly damaged the plaintiffs property valued at $15,905.
They removed fences and gates as they vacated, whose value is $7,600.
During the tenancy, the defendants damaged four (4) barns which were falling at the time they left, while two (2) barns were badly cracked and supported by poles. This was in breach of the agreement of the parties requiring the defendants to keep the barns in good and perfect condition and to repair them to usable state when vacating.
The plaintiffs claimed $5,008 being the costs of repairing the barns.
In further breach of the agreement, the defendants left the farm without removing and destroying tobacco stalks from the land and seed beds which exercise the plaintiffs had to undertake at a cost of $780 including a fine paid to the Environmental Management Agency.
The plaintiffs claimed a sum of $26,313 being the value of their property and machinery including overhead water storage tank and pipes, workers houses, underground cables, water reservoir, cast iron pipes, pump unit, electricals at boreholes and at transformers.
The plaintiff averred further, that, in terms of the lease agreement, the defendants were obliged to deliver to them certain quantities of maize but failed to deliver 50 metric tonnes of maize worth $15,000 which amount the plaintiffs claimed.
They claimed a sum of $45,000 damages for loss of income for the 2012-2013 farming season they would have realised if the defendants had not prematurely terminated the lease agreement and without notice.
A sum of $64,160 was claimed for arrear rentals for the 2011-2012 tobacco crop, being 8% of the gross turnover in respect of crops produced at the farm in terms of the agreement given that 220,000kgs of tobacco were produced during that cropping season.
A sum of $1,980 refund of what the plaintiffs paid for rates and levies to Makoni Rural District Council was claimed, which should have been paid by the defendants in terms of the lease agreement.
The plaintiffs claimed $5,500 being their share of the hailstorm insurance claim made by the defendants to their insurers for the 2009-2010 and 2010-2012 seasons.
A sum of $67,506 was claimed as the value of a centre pivot and generator, which, although purchased by the defendants, they should have left at the farm for the plaintiffs benefit as part of the long term development of the plaintiffs farm.
They claimed $4,240 being 8% of the tobacco seedlings grown on their farm by the defendants.
The defendants have contested the claims, and, in their plea, they took issue with the citation of the second defendant as a party to the proceedings given that there was no agreement, of whatever nature, between the plaintiffs and the second defendant.
In respect of the first defendant, they averred that he complied with all the terms of his agreement with the plaintiffs and denied owing the plaintiffs any money.
The relationship between the parties suffered as a result of the plaintiff's endless interference with farming operations and peaceful enjoyment of the property resulting in a court order being sought and granted interdicting such interference.
The first defendant had to cancel the lease agreement after the plaintiffs had preferred false and malicious criminal charges against him.
The defendants averred that at the termination of the lease, a verification exercise was conducted by the parties which established that all the plaintiffs property had been accounted for, and, as such, none was removed or damaged.
In addition, the fact that the plaintiffs had forcibly taken possession of the farm and equipment, meant that the defendants could not be expected to account for the damage to any property during that period.
They denied vacating the farm secretly or removing fences and gates in the process, especially as the parties were aware of the termination and the defendants vacation of the farm. They denied vandalising any property and that the plaintiffs were entitled to any damages for loss of income.
The parties agreed on the issues for trial at the pretrial conference, which are captured in their joint pre-trial conference minute as:
(a) Whether there was an agreement between the parties as pleaded by the plaintiffs;
(b) Whether the defendants fully complied with the terms and conditions of the agreement;
(c) Whether some of the plaintiffs claims have prescribed, if so, which ones specifically; and
(d) Whether the plaintiffs are entitled to the claims set out in the summons.
Only the first plaintiff gave evidence while the second plaintiff chose not to. They also called witnesses, namely, Assistant Inspector Nixon N'andu, Canaan Nyamombe, and Fanuel Phange.
It was the evidence of the first plaintiff (Ziswa) that prior to the first defendant (Chadwick) approaching him in 2008 he had been leasing his farm to someone else, and that, after Chadwick left unceremoniously in July 2012, he again let out the farm to a neighbour of his, Mr Coleman of Mersy Farm, who, upon taking over, repaired the eight (8) barns which Chadwick had left in a falling condition.
Himself and Chadwick negotiated the lease agreement, which was reduced to writing; the latter having printed a standard form agreement obtained from the National Tobacco Association out of his computer.
He stated that they negotiated every clause, and, as they did so, they added annotations in long hand, which unfortunately were not initialled or counter-signed by the parties, although every page was initialled at the bottom.
After signing the lease agreement, they also prepared and signed a Joint Venture Agreement (JVA) at the instance of Chadwick who wanted it to be signed to protect the parties, given that politically leasing farms was unacceptable while joint venture agreements were tolerated.
As far as he was concerned, the real agreement between the parties was a lease and not a joint venture, which is why the Joint Venture Agreement (JVA) also spoke of a lease and rentals. He referred to both agreements which are part of exhibit 1.
Although both agreements were signed with Chadwick, the witness insisted that they were concluded with both Chadwick and the second defendant, Landos Farm (Pvt) Ltd (Landos) - a claim which is difficult to sustain given that Landos, as an incorporation, was not cited at all in both agreements.
He sought to hold Landos Farm (Pvt) Ltd liable because Chadwick introduced himself as its director and used its letterhead in correspondence.
Some payments were made by Landos.
His claim is based on both agreements.
He explained, that, while the written agreements were signed on 9 January 2009 he had already allowed the defendants to commence farming in August 2008 and that the written agreements only recorded what the parties had agreed.
It is significant that the lease agreement does not necessarily contain some of the necessary details, with the first clause omitting the name of the farm and its hectarage. It also omits the lease period and the date of commencement.
It only has the date of termination entered in pen.
On the various additions to the document, appended in barely legible ink, Ziswa said some were entered by himself while some were made by Chadwick as the two negotiated the terms of the agreement.
The lease provides, in clause 2, that the land was leased for purposes of growing tobacco on 30 hectares, maize on 40 hectares, 20 hectares of wheat or another crop agreed between the parties.
Ziswa said, practically, Chadwick only grew maize during the first year and did not do so for the remainder of the time he was on the farm, electing to concentrate on tobacco farming. He never grew wheat or any other crop for that matter.
The payment of rent is provided for in clause 3 which reads:
“The rent payable by the Lessee to the Lessor shall be 6% on the US$ of the gross turnover in respect of the crops produced on the said land, and, payment of such rent/lease shall be secured by means of direct payment into a FCA given by the lessee in favour of the Company against proceeds of tobacco sold through the Lessee's contract, and, in the case of other such as maize/wheat in equivalue (sic) it shall be executed and registered as soon as may be after the signing of this lease. An advance payment shall be discussed if necessary.”
Despite this provision, Ziswa testified that his claim was for 8% of the gross turnover which he justified by reference to a letter written by Chadwick, on a Landos letterhead, on 22 February 2011, which reads:
“Dear Mr Ziswa
RE: JOINT VENTURE OFFER FOR 2010-2011 SEASON FOLLOWING
I am writing to present my offer on the subject stated above. I am hoping my proposal will be acceptable to you and will be effective for the next three seasons.
I am proposing that I pay you 8% of the gross realisation from the tobacco sales as my joint venture offer. This will be for the sole use of your whole farm.
Please consider that this is the best that I can do. May I refer you to the cost of production document that I sent you earlier on. If I go beyond this offer, the whole enterprise ceases to be viable. I believe this offer presents a win win situation for both parties.
This really is the best that I can do. May you please inform me of your decision by or before 15 March so as to enable me to make preparations for the coming season.
Yours faithfully
Greame Chadwick”…,.
Although Ziswa said he accepted the offer, he did not say when and how this was done.
He did not produce any document of acceptance, neither did he expand on where the acceptance was communicated to Chadwick.
This gives credence to Chadwick's argument, that, his offer was never accepted and that the 6% contained in the lease agreement remained in force.
It is noteworthy that Chadwick appeared to have been writing in his personal capacity even though he used Landos's letterhead.
Ziswa said that the lease was to subsist for an initial period of 5 years but they then “moved to 8 years” and that it was “a developmental lease agreement” enjoining Chadwick to embark on improvements of a permanent nature on the farm, like the construction of dams, staff housing, improving barns and other infrastructural development.
He never did, except for the construction of 11 staff houses out of an agreed total of 44 houses. Even the 11 constructed were not completed. He only repaired one barn which had been burnt down prior to the commencement of the lease. Even in respect of that one, the parties did it together, with Ziswa providing the bricks. Chadwick, however, left the barns falling and supported by poles.
He said the failure to insert the lease period on the agreement was an oversight. So was the failure to insert the name of the leased farm and the date of commencement of the lease, but, it was 1 September 2008 while termination was at the end of August 2018 at the completion of 10 years.
It turns out it was not 5 years, neither was it 8 years, but, Ziswa did not explain when the lease period changed to 10 years.
He stated, that, at the commencement of the lease, they were to hand over to Chadwick their assets located at that farm which the latter was to use for his farming activities.
In that regard, and in the process of identifying and handing over those assets, they produced an inventory at entry point listing these assets. He made reference to p20 to 26 of exhibit 1, the inventory in question, saying all the listed assets were handed over in good working order.
The inventory has a column with the title “Quantity” which he says is where they endorsed not only the quantity of the items involved but also the condition of the items so that if the item was not in good order that would be stated in that column. The fact that there would be no comment on an item meant that it was in good order.
A look at that inventory shows only a couple of comments.
The first relates to diesel tanks with the comment “on stand”. The second relates to an MF tractor with the comments “1 No Wheels.” Other than the description of the disc harrow as “1 red in colour” nothing supports Ziswa's claims on the condition of the items whose state was not given throughout.
Both parties kept their copy of the inventory.
Ziswa went on to say, that, although most of his claims are not based on the written agreements, they had a lot of discussions which resulted in agreements not reduced to writing.
As far as he is concerned, a verbal agreement is also binding. He referred, in that regard, to the agreement on the construction of dams.
After going through the list of items which he said were handed over to Chadwick, including what he said were new “flue pipes not fitted to the barns but kept at the sheds” as well as his own stock of fertilisers not for use by Chadwick, Ziswa went on to say that the tenant had taken over the items and grew tobacco for four (4) years with him being paid due rentals for 2009, 2010, and 2011. He was however not paid anything for the last year the tenant was at the farm, which is 2012.
The claim for arrear rent therefore relates to the 2011 to 2012 tobacco growing season.
In arriving at the 8% of the tobacco produced for that season (as opposed to 6% stated in the agreement), he had to estimate using the sale sheets of Landos which he obtained.
He went through those sale sheets stating that he had to resort to estimation because the tenant did not give him the information.
Based on the sale sheets, and the other information on the tobacco that was produced, they computed that 220,000kgs of tobacco was sold during that year and his 8% of it is the sum of $64,160 being claimed as arrear rental for the 2011-2012 growing season.
When the plaintiffs wrote a letter of demand to Chadwick, on 23 July 2012, they stated that 205,800kgs of tobacco had been realized at the farm during that period, which had been sold at $4=10 per kg giving a gross of $843,780. They were entitled to 10% of it which is $84,378.
It is not clear where 10% cropped up from, but, they claimed it all the same.
In their summons, the claim was reduced to 8% of the gross turnover estimated at 220,000kgs giving the $64,160 being claimed.
Ziswa stated, that, in terms of the parties agreement, the tenant was obliged to pay rates and levies due to Makoni Rural District Council which, for the year 2011-2012, was $1,980. As the tenant did not pay in January 2012, he was forced to pay on their behalf. He would like to be reimbursed that amount.
He stated, that, although he received a receipt upon payment, he was unable to produce it.
In support of his claim, that the tenant was obliged to pay rates, Ziswa made reference to a letter written by Chadwick, again on the Landos letterhead, on 9 November 2010, which reads, in relevant part, as follows:
“Dear Mr Ziswa
RE: RESPONSE TO YOUR LETTER DATED 5/11/10
1. Landos Farm agrees to make a payment of: $1,440 (that had been paid for rates); $750 (for 50 cords of wood @ $15); $350 (barn fire); Total 2,540.
The money will be paid in on Wednesday the 10th of November 2010. The proof of payment will be on the farm on Thursday the 14th of November 2010 as well as for you to collect.”
Unfortunately, Ziswa did not see the need to produce the letter of 5 November 2010 which was being responded to.
He however maintained that the payment of rates was the responsibility of the tenant - even though the lease agreement had no such provision.
In respect of the claim for $5,500, Ziswa stated that the tenant was obliged to insure the tobacco crop against hailstorm destruction. In the event that the tobacco crop is destroyed by hailstorm, the insurer would pay for it.
Hailstorm destroyed the tobacco crop and the tenant claimed from his insurance and was paid, but he did not transmit to him 8% share due in terms of the lease agreement. He is entitled to a percentage of the gross turnover and would also be entitled to the same percentage of insurance payment made for destroyed crops. He is not aware of the exact amount involved because Chadwick refused to give him the figures.
He has had to estimate the figure based on the investigations which he carried out involving his discussions with the employees of the insurer who came to the farm for an inspection.
He did not disclose what those investigations revealed, only stating that he estimated the figure based on his experience and the damage he observed on the crop - an explanation not helpful at all.
Asked as to why the claim for hailstorm insurance, involving a 2009-2010 crop, would be made by summons served on 26 November 2012, outside the prescriptive period of three (3) years, Ziswa dithered.
He then said that “in the heat of things” there was a typing error in the summons because his hailstorm claim is for the 2011-2012 cropping season and not 2009-2010 claimed in the summons.
Significantly, no attempt was made to amend the pleadings....,.
It is trite that pleadings, and in particular, a claim, may be amended by evidence...,.
I have stated that the first plaintiff maintains that their claim is based on the two (2) written agreements complementing each other which contain a non-variation clause.
Writing about the subject of restriction and non-variation clauses, the learned author K.H. CHRISTIE, in his book Business Law in Zimbabwe, ed 2, Juta & Co Ltd…, said:
“The parties may restrict their own power to vary or discharge their contract by subsequent, and some such restriction is very desirable in any contract between the parties, such as companies that may be represented by any one of a number of authorised agents, in order to reduce the scope for argument about whether a formal written contract has been subsequently varied or discharged. The restriction may be in the form of a restriction clause providing that no subsequent agreement between the parties on a specified topic (e.g. subletting, cancellation) shall be valid unless it is in writing, or it may be in the form of a non-variation clause providing that no variation of any of the terms of the contract, including the restriction clause, if any, and the non-variation clause itself shall be valid unless it is in writing.
After some years of controversy, the effect of such clauses was settled by the South African Appellate Division in 1964: SA Centrale Ko-op Graanmaats Chappy Bpk v Shifren 1964 (4) SA 760 (A).
In the result, effect will be given to a restriction clause, but it may be cancelled or varied by express agreement, formal or informal, unless entrenched by a non-variation clause which may be cancelled or varied only by the formal method it specifies.”
SA Centrale Ko-op Graanmaats Chappy Bpk v Shifren 1964 (4) SA 760 (A) is in Afrikaans, but, its ratio, that a non-variation clause could not be altered verbally, was adopted by this court in Fillanion v Esat & Anor HB106-03.
In my view, the moment the plaintiffs decided to rely on the written agreements of the parties, they brought themselves under the provisions of those agreements - including the non-variation clauses.
They could not, in the same breath, seek to import further intricate provisions, imagined or real, not contained in the written agreement which were purportedly concluded in breach of the formal method of doing so contained in the non-variation clause.
They simply cannot have it both ways or have their cake and eat it at the same time.
I therefore agree with counsel for the defendants, that, any claim which is not provided for, or is not in terms of the written agreement, should, of necessity, fail.
