MOYO J:
This is an
application for an order compelling payment of the sum of $306 000-00 by
Respondent to the Applicant together with costs of suit.
The facts of the matter are that the
Applicant was the winner of the Star Lotto Jackpot prize of $306000-00 on the
14th of August 2013. Applicant alleges that after winning the
Lotto and complying with Respondent's terms and conditions, Respondent then
insisted that Applicant comes up with a “suitable” investment plan prior to it
(Respondent) meeting its obligations in paying the prize.
Apparently Applicant did try to lay out an
investment plan which investment plan was rejected by Respondent.
Respondent's Counsel concedes that the investment plan is not part of the terms
and conditions of the Lotto.
Respondent on the other hand contends that
Applicant did not comply with the terms and conditions of the Lotto hence he is
not entitled to the payment of the prize.
Respondent raised a point in limine
to the effect that, Respondent company is “Star Lotto Zimbabwe Pvt Ltd” and not
“Star Lotto Pvt Ltd” as originally cited by the Applicant in this
application. Respondent contends that there is no Respondent before this
court hence the application should be dismissed. Applicant after learning
of the misdescription of the Respondent, filed an amendment prior to the
hearing of this matter.
Of concern however, in this regard is that
the Respondent in its agreement with the Applicant dated 21 August 2013, and
Annexed as “B” to the Applicant's papers, referred to itself as Star Lotto Pvt
Ltd. On the page where a Michael Horwitz signed on behalf of the
Respondent, the Respondent's name is also given as Star Lotto Pvt Ltd just
above Michael's signature. The Respondent entered into an agreement for
non-disclosure with Applicant, pursuant to the winning of the prize by
Applicant and presented themselves in that agreement, as Star Lotto Pvt
Ltd. Following non-payment and numerous efforts to pursue the payment,
Applicant then sought to compel payment from Respondent through this
application and he cited the Respondent in the same manner that Respondent had
called themselves in the non disclosure agreement. Can Respondent then
turn around and say that in fact they are not Star Lotto Pvt Ltd in these
proceedings when they themselves had conducted business in that name?
I am persuaded by GOWORA J's findings in Old
Mutual Asset Management Pvt Ltd v F & R Travel Tours and Car sales in
HH 53/07 wherein she stated thus:-
“It is trite
that an amendment even where it is intended to substitute a party, will be
granted unless the application to amend is mala fide or would cause
prejudice to the other side which can not be cured by costs.”
I am
further persuaded by the South African case of Four Tower Investments Pty
Ltd v Andre's Motors 2005 (3) SA 39 (NPD). In that case a full bench
on appeal held that:
“an application
for amendment will always be allowed unless it is mala fide or would
cause prejudice to the other party which cannot be compensated for by an order
for costs or by some other suitable order such as a postponement.”
South
African cases on this point stipulate that where the misdescription of a party
consists of using the wrong name for the party concerned, an amendment is
permissible since this is not tantamount to a substitution of that party and in
effect the right party is brought to court but such a party is not properly
described or named in the proceedings. Refer to the case of Four
Tower Investments supra and in addition the case of Devonia Shipping
Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) 1994 (2) SA 363 at page
369F –I per INNES J wherein the learned judge stated as follows:-
“The general rule
is that an amendment of a notice of motion as in the case of a summons or
pleading in an action, will always be allowed unless the application to amend
is mala fide or unless the amendment would cause prejudice to the
other side which cannot be compensated by an order for costs, or in other
words, unless the parties cannot be put back for the purposes of justice in the
same position as they were when the notice of motion which it is sought to
amend was filed ---. A material amendment such as the alteration or
correction of the name of the Applicant, or the substitution of a new
Applicant, should in my view usually be granted subject to the considerations
mentioned of prejudice to the Respondent. ---. The risk of prejudice will
usually be less in the case where the correct Applicant has been incorrectly
named and the amendment is sought to correct the misnomer than in the case
where it is sought to substitute a different Applicant. The criterion in
both cases, however is prejudice which can not be remedied by an order as to
costs and there is no difference in principle between the two parties.”
In the
case before me, clearly the right party was brought to court with a wrong
description by the omission of “Zimbabwe” in its name. In fact the
Respondent itself entered into an agreement prior to the institution of this
application and omitted the word “Zimbabwe” from its own name. I am of
the view that Applicant's bid to amend its papers and correctly describe
Respondent is not mala fide at all as in fact the Respondent
contributed to the situation that Applicant now finds himself in. Again,
there cannot be any prejudice at all since the correct party has been brought
to court. On the basis of the cases I have alluded to I am not of the
view that the proceedings before me are a nullity for want of Respondent's
proper description.
I accordingly allow the amendment for the
aforegoing reasons.
On the merits of the matter, the
Respondent contends that the Applicant did not comply with all the formalities
of filling in the forms for claiming the prize money. Applicant contends
that he was assisted by an employee of the Respondent and that he duly
completed the forms where he was asked to complete and simply left out that
information that he was advised to leave out as per Respondent's employee's
instructions. Whilst there is a factual dispute here as to what
transpired during the filling in of the relevant forms, coming in handy are the
exchanges made through emails between the Applicant and Respondent's representatives.
These are annexed as Annexure “C” to the Applicant's answering affidavit.
The Applicant on the 16th of September 2013 sent an email to one
Joseph Savanhu, complaining about the non-payment of the prize.
Joseph Savanhu then forwarded Applicant's
email to Miguel Landa, Michael Horwitz, Brian Croock new, Michael Voetsman and
copied same to the Applicant.
A Brian Croock then responded to Applicant
and copied his response to the other parties as well. His response in the
email is as follows:-
“Whilst we do
understand your frustration, there is however a formal process that needs to be
followed. As I clearly explained at the dinner there needs to be a
comprehensive plan presented to the board on how the funds are to be
invested. A proper audit has to be done in order to rule out the
possibility of fraud (This has been concluded).
Unfortunately
the board is not comfortable with the proposal made by yourself. I will
shortly provide you with a proposal of our requirements and suggestions.
Please understand
that whilst this may be a tedious process, it is in the interest of both
yourself and the company to ensure that your winnings are prudently
invested.”
Nowhere in this email does Respondent's
representative allude to the issue of non compliance with terms and conditions
by the Applicant. He in fact dwells on the issue of an investment
proposal, which Applicant also alleges is the hinderance to the payment of his
dues. This email says it all, the reason for non payment is the
lack of a prudent investment plan by Applicant in the eyes of the
Respondent. Respondent's counsel conceded that the investment plan was in
fact not part of the terms and conditions of the Lotto prize. It follows
therefore that reference to the filling in of the forms is just a bid by the
Respondent to clutch at straws in a bid to avoid paying Applicant his dues.
I accordingly find that Respondent should
pay Applicant his dues as there is no basis whatsoever for refusing to do so.
Counsel for the Applicant conceded that
the issue of collection commission could not be justified and he abandoned that
claim.
I accordingly order as follows:
1)
Respondent be and is hereby ordered to pay Applicant the sum of US$306 000-00
being the Star Lotto Jackpot prize of 14 August 2013.
2)
Respondent pays the costs of suit.
T. Hara & partners,applicant's legal practitioners
Chirimuuta
& associates/c/o Job Sibanda & associatesrespondent's
legal practitioners
