The applicant was also being untruthful when he stated, in paragraph 4 of his founding affidavit, that what was surprising in this whole matter was that the first respondent had not attached any proof that he owned the garage. Nothing can be further from the truth because the Deed of Transfer filed of record, dated 14 April 1989, which was subject to Notorial Deed M.A.519/89 shows that the garage is part of Leslie Khumalo's flat.  Notorial Deed M.A. 519/89 filed of record also established that the garage is part of the flat owned by Leslie Khumalo.

I must point out at the outset that Annexure 'B' (the Scheme) is only produced in part, starting from paragraph 5.19-5.38. The extract is pulled out from the respondent's Monetary Budget Statement of 26 April 2007.

The table by Interfin Merchant Bank has serious shortcomings.

It provides the cross rate between the US$ and the local currency as having been constant at ZW$250:1 US$ for the period from November 2004 to July 2007. Yet, on page 10 of exhibit 5, the defendants produced an official Reserve Bank of Zimbabwe table that demonstrated that the foreign exchange auction rate was ZWD17,694=15 per USD.

The situation is further compounded by the fact that Innocent Muronzi, who gave evidence on the Valuation Report itself on behalf of the plaintiff is not the one who compiled that report.

A total of 14 exhibits were produced during the trial. I shall, at this stage, briefly comment on each of the exhibits produced.

Exhibit 1 – this is plaintiff Ennety Gunda's birth certificate. It was issued on 18 May 1992 and her date of birth is 23 November 1980. Her father is stated as Aaron Mukoki Gunda and her mother as Cecilia Chigidi (Cecilia Gunda). What is important to note is that exhibit 1 supports the plaintiff's contention that she is the biological daughter of the late Cecilia Gunda. Another important aspect to note is that the plaintiff's birth certificate was only issued out 12 years after her birth.

Exhibit 2 – is the second defendant, Tsitsi Gunda's, birth certificate. She was born on 21 March 1983 to Aaron Mukoki Gunda and Cecilia Chigidi (the late Cecilia Gunda). This birth certificate was issued on 16 December 1988 when Tsitsi Gunda was only 5 years old. It supports the contention that the plaintiff and the second defendant are siblings.

Exhibit 3 – is the late Cecilia Gunda's death certificate. She died on 13 December 2005 due to unnatural causes. The cause of death is stated as Hypovolemic shock due to cut of jugular vein artery and trachea stabbing secondary to assault. This occurred at the property in issue, Number 5417 Glen Norah 'B' Township, Harare. In simple terms, the late Cecilia Gunda had her throat slit open with a sharp object. It has not been disputed during this trial that the late Cecilia Gunda was murdered in a very gruesome way in broad daylight at 5417 Glen Norah 'B' Township, Harare. It is also not in issue that Daison Gunda was arrested for the murder of the late Cecilia Gunda. Daison Gunda has since passed on before his murder trial. Daison Gunda and Anderson Gunda are siblings born to Aaron Mukoki Gunda and his first wife. They regarded Cecilia Gunda as a stepmother.

Exhibit 4 – is the Death Notice in respect of Cecilia Gunda which was completed on 3 February 2006 and filed with the fourth defendant, the Master of the High Court, Estate Notice No. DR265/06. It was completed by the second defendant, Tsitsi Gunda, as the only child of the late Cecilia Gunda. Janita Chigidi is registered as the next of kin. The plaintiff's case is that this was a fraudulent misrepresentation by the second defendant to the fourth defendant in that the second defendant presented herself as the only biological daughter of the late Cecilia Gunda when in fact she is not the only surviving child as per exhibits 1 and 2.

Exhibit 5 – is a letter by the fourth defendant, the Master of the High Court, to the Registrar General dated 7 February 2006 asking for the Registrar General's assistance to the second defendant to obtain a death certificate for her mother the late Cecilia Gunda. The second defendant explained that this was occasioned by the fact that Anderson Gunda had confiscated the death certificate. What is important to note is that in that letter the second defendant is referred to as the only daughter of the late Cecilia Gunda.

Exhibit 6 – is a letter by the third defendant's legal practitioners to Daison Gunda (now deceased) dated 3 October 2008 indicating that the third defendant had bought the property in issue Number 5417 Glen Norah 'B' Township, Harare and has since registered it on 4 September 2008. This letter gave notice to Daison Gunda, who was in occupation of the house, to vacate by 31 January 2009.

Exhibit 7 – is a letter by the fourth defendant, and undated, to the Officer in Charge ZRP Glen Norah to recover Cecilia Gunda's death certificate from her stepsons, Anderson Gunda and Daison Gunda, and hand it over to Mrs Susan Zvinoira who was handling Cecilia Gunda's estate. This may have been written before recourse was sought from the Registrar General as per exhibit 5.

Exhibit 8 – is an advertisement in the Herald Newspaper for the sale of the house in issue, Number 5417 Glen Norah 'B' Township, Harare. This is the advertisement the third defendant alleges he responded to and subsequently purchased the house.

Exhibit 9 – is the Agreement of Sale between Cecilia Gunda's estate, represented by Mrs Susan Zvinoira, and the third defendant for the sale of the property in issue, Number 5417 Glen Norah 'B' Township, Harare at a price of 4 trillion Zimbabwe dollars. It is dated 22 May 2008.

Exhibit 10 – is a mortgage bond in favour of Beverley Building Society in respect of the house, Number 5417 Glen Norah 'B' Township, Harare.

Exhibit 11 – is the Deed of Transfer of the property in issue, Number 5417 Glen Norah 'B' Township, Harare from the estate of the late Cecilia Gunda to the third defendant and is dated 4 September 2008.

Exhibit 12 – is the fourth defendant, the Master's Report, issued in terms of Rule 248 of the High Court Rules in respect of these proceedings, especially the allegation made by the plaintiff.

Exhibit 13 – is the Deputy Sheriff's return of service indicating that on 15 March 2010, Anderson Gunda, Daison Gunda, the plaintiff and other lodgers at Number 5417 Glen Norah 'B' Township, Harare had been evicted.

The plaintiff sought further particulars to the defendant's plea asking if, as the alleged owner, the defendant was paying rates and taxes for the land. His answer was in the affirmative but in the trial he failed to produce such proof.

The plaintiff's explanation for the cheques drawn in his name, as payee, is that the cheques were for payments for their joint enterprise of buying, fattening, dipping and selling cattle. Such explanation is found plausible and is accepted. He averred that the agreement between the parties is one of a lease. He buttressed this by producing the written memorandum to that effect dated 21 January 2006 duly signed by both of them stipulating the terms and conditions of the lease. 

The letter, as well as supporting affidavits by the now late Margaret Munatsi detailing the history of the property were produced as evidence during the trial.

However, none of the documents produced bear a stamp from the Master of the High Court's office confirming that they were received. It was the second defendant's insistence that despite this anomaly in the non-stamping of these documents, they were, in fact, filed….,.

The court a quo dismissed the allegation by the appellant that the letter of 4 March, written on the appellant's letterheads and penned by Cobi Summerfield, was a forgery. If anything, the court a quo found that it was 'clearly an admission of liability by a contrite debtor, well aware of its obligations'.

In any event, the learned Judge added, the respondent was entitled to rely on that admission in terms of Rule 188(1) of the High Court Rules, the appellant having failed to reply to the notice to admit documents.  The Rule provides:

“188 Effect of failure to reply or refusal to admit documents

(1) In the case of failure by the party to reply, within ten days, when called upon to admit that any documents was properly executed or is what it purports to be, then as against such party the party giving the notice shall be entitled to produce the documents specified at the trial without proof other than proof that the documents are the documents referred to in the notice and that notice was duly given, if those facts are disputed.”

In his grounds of appeal, the appellant attacked the court a quo for relying on the photocopies of Immigration and Prison records in coming to the conclusion that he had previously been deported.

In my view, this submission is without merit.

Section 12(2) of the Civil Evidence Act [Chapter 8:01] allows the admission of public documents which are proved to be true copies or extracts or which purport to be signed and certified by a person who has custody of the originals. The Immigration Deportation Record Book was presented as a true copy of the original in the supplementary affidavit filed by Richard Tombandini, a Principal Immigration Officer.

The deportation register at the airport is also verified by Nyatwa Bunya, an Immigration Officer, in his affidavit.

Further, in terms of section 40 of the Immigration Act [Chapter 4:02], any written statement under the hand of an Immigration Officer shall, in any proceedings under the Act, or in any criminal proceedings arising from a contravention of the Act, be prima facie evidence of the facts stated therein. 

On why she could not produce her original or properly certified copy of her marriage certificate, Floppa Leah Mlavu said she used to have the original which she had photocopied and then had it certified by the Master of the High Court, which copy was later photocopied and produced as an exhibit in her bundle of documents. However, the original was taken away from her by the police when she was prosecuted for forgery where it was alleged she had forged a marriage certificate. 

She produced an extract of the criminal record book CRB 593/05, CR B/C 827/11/04 the outcome of which was an acquittal. Floppa Leah Mlavu said the police never gave the certificate back to her.

The explanation on the non-existence of the original marriage certificate or a certified copy is far from satisfactory.

If the police took the original from her upon her arrest and never gave it back as she alleged, that must have been done in November 2004 as shown by the criminal record number (827/11/04). It therefore cannot be correct that she had taken the certificate for certification by the Master of the High Court on 25 March 2008 when the Assistant Master allegedly appended his stamp. Either that or the Assistant Master certified a photocopy without seeing the original which confirms the evidence of Winnie Mpofu that the “lawyer” said he could not remember anything about certification of the marriage certificate.

I also find it strange that Floppa Leah Mlavu, with the assistance of her legal practitioner, could not secure the release of her marriage certificate from the police or from the criminal record at the Magistrates' Court.  One can only draw adverse inferences from that scenario, especially when the copy that she produced records that hers was a first marriage for the deceased when we have confirmation from the custodian of customary marriages that the deceased had been married twice before he met Floppa Leah Mlavu and that Ettah Sibanda's marriage subsisted until the deceased's death.

The background facts are that the plaintiff expressed interest in Stand 5233 Salisbury Township Lands measuring 3,309 square metres which is the property in dispute.

The property belongs to the estate of the late Robert Eric Rae.

An agreement of sale was concluded, on 22 October 2009, between the plaintiff and the Property Shop, the Estate Agent firm which handled the transactions, for the sum of US$220,000.

On mode of payment, the agreement provided as follows:

“The Purchaser shall pay cash deposit of US$100,000 [one hundred thousand United States Dollars] of which US$30,000 [thirty thousand United States Dollars] shall be non-refundable] upon signing of the agreement of sale.

The purchaser shall pay the sum of US$60,000 [sixty thousand United States Dollars] on or before 30 November 2009 and the balance of US$60,000 [sixty thousand United States Dollars] on or before the 31st December 2009.”

The above mode of payment has been the source of the dispute.

The plaintiff claims to have paid theUS$100,000 cash deposit upon signing of the agreement of sale as stipulated by the clause. The first defendant, representing the estate, denies, that any deposit was paid.

The agreed issues for the trial were:

(i) Whether the plaintiff breached the agreement of sale with the first defendant, and, if he did, whether the first defendant cancelled the sale.

(ii) The second agreed issue was whether this was a double sale, with the third defendant as the second purchaser, and, if so, in whose favour did the balance of equities lie.

In my view, the first issue for determination by the court is whether the plaintiff paid the requisite deposit upon signature of the agreement.

The plaintiff's evidence was that he paid US$100,000, in cash, to Felicity Lock, The Property Shop negotiator, after counting the money, at her house, in the presence of Shirley Margaret Rae who represented the seller, who was still alive, by virtue of a Power of Attorney.

He said he did not ask for a receipt, neither did he obtain any other proof of payment from Felicity Lock.

The plaintiff's evidence was that he paid the US$100,000 before he signed the agreement because payment of that amount was a condition precedent to the signing of the agreement.

Felicity Lock denied that any payment was made.

She said she expected the plaintiff to pay soon after signing but then the plaintiff showed her some Kingdom Bank documents and said for him to get the money to pay, he needed to sell his shares first, and, for him to sell the shares, he needed a signed agreement.

She said she then gave him Shirley's Rae's Stanbic Account number and told him to deposit the money into that account. She also gave him a Property Shop Account number for him to deposit the agency commission.

Her evidence was that Shirley Rae signed the agreement first, in the absence of the plaintiff, and, later, she took the agreement to the plaintiff at some agreed meeting place near Hellenic School.

Shirley Rae also denied that any payment was made to her or Felicity Lock in her presence.

Her testimony was that she had not even met the plaintiff when the agreement was executed; she saw him, for the first time, at the pre-trial conference.

The plaintiff told the court that he is an astute businessman aged 35 years. He said he has been in business since he was 22 years old and has about 13 years business experience. He also said he is a qualified accountant and he has experience in the acquisition of properties as he has eleven properties to his name.

The court found it highly improbable that a qualified accountant, and an experienced property investor, would part with US$100,000 cash in the year 2009, when foreign currency was still scarce, without bothering to obtain a receipt or other proof of payment; yet that was the plaintiff's evidence on pages 51 and 52 of the transcribed record;

“Q. Now, before a dispute before the parties erupted, did you ever ask for a receipt?

A. No, from Felicity, no, I never asked for a receipt….,.

Q. It's a simple question, did you ever ask for a receipt?

A. From Felicity Lock.

Q. Did you ever ask for a receipt?

A. No, I have proof of payment.”

When the questioning about not asking for a receipt persisted, the plaintiff, in response, said, Property Shop was operating from home and the office was not running professionally.

All the more reason why he should have asked for a receipt, or some other form of proof of payment, if he knew that Property Shop was not being run professionally.

The plaintiff also told the court, in his evidence, that, paying US$100,000 cash was a condition precedent to the signing of the agreement.

The agreement is part of the court record, and, nowhere does the agreement say payment was a condition precedent.

It is also highly improbable that a qualified accountant would pay US$100,000 deposit before the agreement has been concluded and leave without any proof of payment.

Even if Felicity Lock had no receipts, on account of being “unprofessional” as the plaintiff alleged, the plaintiff himself could have prepared an acknowledgement note.

He knew this was possible:

“Q…., you could have done an acknowledgement of receipt and say I, Felicity acknowledge that I have received US$100 000, you could have done that….,.

A. I could have done that.”…,. (p57 to 58 of the transcribed record)

The plaintiff confirmed, that, he could have done an acknowledgement of receipt himself - but he did not.

He admitted, that, as a businessman, he knew that disputes could arise and that he could have had an independent witness with him to confirm the payment; but, he said he went alone to make this huge cash payment.

On the other hand, Felicity Lock's evidence was that they did not accept cash as a matter of policy; they gave clients account details for them to deposit the money into the appropriate accounts.

She said, in this instance, she gave the plaintiff Shirley Rae's Stanbic account.

She said once the money was deposited into an account, the deposit slip would be sufficient proof of payment.

Her evidence sounded truthful and the court accepted it.

Shirley Rae is an 83 year old lady who was around 78 years at the time of the incident with the plaintiff.

Her evidence was that the plaintiff never paid cash in her presence and never deposited any money into her account.

Her evidence was believable.

Why would an 83 year old lie against the plaintiff and say he did not pay if he had paid? All she wanted was a purchaser who would pay for her husband's property. If the plaintiff had paid, why would she have turned down his money in favour of the third defendant's money when the money tastes the same?

The court therefore accepts her evidence as truthful.

In addition to that, on 27 October 2009, when the plaintiff wrote to the second defendant, through his lawyers, requesting him to put a caveat on the property, he never said he had paid anything.

The third paragraph of that letter stated the following;

“The agreement of sale is to be satisfied within a period of three instalments as it fully appears from the attached copy of the agreement of sale.”

The use of the phrase “is to be satisfied” shows that payment had not yet been done.

If the plaintiff had already paid US$100,000 the letter would have said so.

In view of the above improbabilities in the plaintiff's claims, the court rejects the plaintiff's testimony and accepts that of Felicity Lock and Shirley Rae, that, no US$100,000 cash was ever paid by the plaintiff as a deposit for the property.

The above finding means the plaintiff was in breach of contract from the very day the sale agreement was concluded. He ought to have paid US$100,000 on signing of the agreement - he did not.

That was the first breach.

An order for the consolidation of these two matters was granted by UCHENA J, by consent, with no order as to costs, on 2 June 2006, for hearing before me on 7 June 2006 in Case Number 3157/06.

The first application, Case No. HC5186/05, concerns an order for specific performance while the second one, Case No.5264/05 seeks an order for the provisional liquidation of Zambezi Paddle Steamer (Pvt) Ltd (hereinafter called ZPS).

On 7 June 2006, at the request of the parties, I postponed the hearing to 13 July 2006.

When the hearing resumed, Mrs Wood, for Turner and Sons (Pvt) Ltd, applied for the forced recusal of Mr de Bourbon, for Dobrock (Pvt) Ltd, on the basis that he had been an arbitrator between these parties in 1994.

She referred to Pertisilis v Calaterra & Anor 1999 (1) ZLR 70 (H) as authority for the proposition that the legal practitioner who acted for a former client is precluded from representing a different client in circumstances where a conflict of interest is likely to arise between the former and present client. SMITH J set out the basis of the rule…, as being that:

“A legal practitioner who represents the adversary of his own client in litigation would clearly be violating his or her duty of loyalty and the common law rules against conflict of interest.”

He proceeded to survey American, English, South Africa, and Zimbabwean decided cases on the point at pages 74C–77F.

While he held that neither a partner nor his employee could represent an opponent of a former client in order to fulfill the adage that justice must not only be done but that it must manifestly and undoubtedly be seen to be done, he nevertheless permitted a partner to represent the opponent on the basis that there was no allegation that the other partner had acquired information from the papers in the possession of his firm which could be used to the former client's disadvantage.

Mrs Wood contended, that, justice will not be seen to be done if Mr de Bourbon was allowed to represent Dobrock (Pvt) Ltd, especially on the liquidation case, where Turner and Sons allege a deadlock has manifested itself between the joint shareholders, a fact found by Mr de Bourbon, as arbitrator, to exist in his 25 June 1994 ruling.

She further foresaw a need to call Mr de Bourbon on the deadlock issue in the liquidation case.

Mr de Bourbon countered by contending that he did not represent either Dobrock (Pvt) Ltd or Turner and Sons (Pvt) Ltd but acted in a quasi-judicial capacity.

He knew of no law which debarred him from representing either party as long as he had not possessed confidential information which could be used to the detriment of his client's adversary. He referred to Benmac Manufacturing (Pvt) Ltd v Angelique Enterprises (Pvt) Ltd 1988 (2) ZLR 52 (H).

In that case, Mr de Bourbon accepted a general retainer from Angelique Enterprises in a matter in which that company was involved in a dispute with Albco. He was, at that time, already seized with a retainer for Benmac Manufacturing in its contest with Angelique Enterprises, supra. He had accepted the retainer in the matter against Albco after assurance from his instructing attorney that there would be no conflict of interest.

It was accepted, in that case, by that attorney, that, he had not come into contact with any confidential information which would prejudice Angelique Enterprises in its contest with Benmac. The Law Society, and two other counsel, had absolved him of any impropriety, but, the Managing Director of Angelique Enterprise, Mr Holland, was not satisfied with their findings and advice.

REYNOLDS J held, that, Angelique Enterprises had not shown that Mr de Bourbon had in fact become acquainted with information that could be used to its detriment which would result in real mischief and real prejudice if he continued to act for Benmac Manufacturing. He did express his reservation on a legal practitioner acting for and against his client in the same or different matters.

Mr de Bourbon submitted that he had not acquired any information that he could possibly utilize to the prejudice of Turner and Sons (Pvt) Ltd and that his impartiality in 1994 had not been impugned by any of the parties.

I went through the arbitral award.

It concerned and dealt with the share of each joint shareholder in the extra costs, which were above the original cost of construction of the large commercial houseboat which Zambezi Paddle Steamer (Pvt) Ltd (ZPS) was to own.

Turner and Sons (Pvt) Ltd was not able to show what information Mr de Bourbon accessed which could prejudice its present defence and claim. If anything, I was satisfied that the arbitral award stands on its own and there would be no need to call the arbitrator to testify on it.

I accordingly dismissed the application for the forced withdrawal of Dobrock (Pvt) Ltd's counsel.

I also postponed the hearing sine die and granted, by consent, authority to Turner and Sons (Pvt) Ltd to file a further affidavit in response to Dobrock (Pvt) Ltd's supplementary affidavit.

I further reserved the question of costs in the provisional liquidation claim to which these additional affidavits pertained.

I eventually set down the matter for hearing on 1 November 2006. I directed that the parties argue the specific performance case first and thereafter proceed to argue the liquidation case.

On 12 October 2005, Dobrock (Pvt) Ltd filed the court application for specific performance against Turner and Sons (Pvt) Ltd and two others. It sought the following order:

“1. That, the respondents, jointly as well as severally, the one paying the other to be absolved shall forthwith undertake all that is necessary and required, including making all payments and completion and signing all documents required in order to procure transfer, without delay, by first respondent to applicant of first respondent's entire shareholding in Zambezi Paddle Steamer (Pvt) Ltd.

2. That, immediately upon registration of transfer in the share register of Zambezi Paddle Steamer (Pvt) Ltd (ZPS) applicant shall pay to first respondent the balance of the purchase price for the said shares; such balance being the sum of $138 million.

3. That, the respondents, jointly as well as severally, the one paying the other to be absolved, shall pay the costs of this application on the scale of legal practitioner and own client.”

The application was served on the three respondents on 13 October 2005 (see Peter Dobson's opposing affidavit of 9 November 2005 for which this averment was accepted by Antony Turner on 2 December 2005).

The three respondents filed their opposition papers on 27 October 2005 and prayed for the dismissal of the applicant's case with costs on the higher scale and made reference to the liquidation claim, case number HC5264/2005.

Case number 5264/05 is a court application brought on 17 October 2005 by Turner and Sons (Pvt) Ltd against Zambezi Paddle Steamer (Pvt) Ltd and Dobrock (Pvt) Ltd. It prayed for the winding up of Zambezi Paddle Steamer (Pvt) Ltd and that a liquidator be appointed in the following terms:

“1. That, first respondent, Zimbabwe Paddle Steamers (Pvt) Ltd be provisionally wound up pending the granting of an order in terms of paragraph 3 hereof or the discharge of this order.

2. That, Mrs Theresa Grimmel, of KPMG Chartered Accountants, Mutual Gardens, 100 The Chase, Emerald Hill, Harare be appointed as provisional liquidator of first respondent company with the powers set out in section 221 of the Act.

3. Any interested party appear before this court sitting at Harare on (a date sixty days from the date of the order) to show cause why an order should not be made placing first respondent's company in liquidation and order that the costs of these proceedings all be costs of the liquidation.

4. That, this order shall be published once in the Government Gazette and once in the Herald Newspaper. Publication shall be in the short form annexed to this order.

5. Any person intending to oppose or support the application on the return day of this order shall:

5.1. Give due notice to the applicant at Messrs Byron Venturas & Partners, 2nd Floor Tanganyika House, Corner 3rd Street/Kwame Nkrumah Avenue, Harare.

5.2. Serve on the applicant, at the address given above, a copy of any affidavit which he files with the Registrar of the High Court.”

The application for provisional liquidation was served on the respondents on 17 October 2005, who entered opposition on 31 October 2005 and filed, on that day, their opposing affidavit by fascimile. The actual opposing affidavit was filed on 9 November 2005.

These two applications were consolidated on the bases that the principal parties were the same and that the fundamental issue in each matter related to the ownership and management control of Zambezi Paddle Steamer (Pvt) Ltd (ZPS).

The pleadings in these consolidated matters are voluminous.

The founding, opposing, answering and supplementary affidavits are reinforced by an assortment of attachments which consists of the Memorandum of Association of Zambezi Paddle Steamer (Pvt) Ltd, electronic mail between the parties, and other documents raised by various people who worked for the parties in various capacities.

I have read all these documents.

It is apparent from these documents that there are areas in which the parties agree and others where they are at variance.

It is appropriate that I first deal with the facts as I have determined them to be from the wealth of information that is set out in the pleadings in both these cases.

The preliminary details on the formation of Zambezi Paddle Steamer (Pvt) Ltd (ZPS), on 3 April 1989, are set out in detail by Anthony Turner (Antony) in his founding affidavit in the liquidation matter, case HC5264/05 (Case No.2). Those details were admitted to by Peter Jameson Dobson (Peter) in his opposing affidavit in that case.

Turner and Sons (Pvt) Ltd agreed with Dobrock (Pvt) Ltd, in 1988, on a joint venture to construct and thereafter operate a 'Mississippi River Boat' for commercial use on Lake Kariba.

The concept of the “Southern Belle” was created by Turner and Sons (Pvt) Ltd who approached Dobrock (Pvt) Ltd.

Dobrock (Pvt) Ltd agreed to become its joint partner in the venture and to provide working capital and investment in the project.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated as the special purpose vehicle through which the large commercial houseboat, MV Southern Belle, would be owned and operated.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated in terms of the Companies Act [Chapter 24:03] with an issued share capital of $30,000 divided into 30,000 shares of $1 each fully paid up. Each of the two joint partners subscribed to 15,000 shares of $1 each in Zambezi Paddle Steamer (Pvt) Ltd.

The joint shareholders agreed that Turner and Sons (Pvt) Ltd would first build a model of the craft, and, thereafter, carryout the necessary construction work and interior design of the vessel at a contracted price. Dobrock (Pvt) Ltd would source both local and foreign raw materials for this construction. The total costs of both these operations would be the total cost of the vessel and would be met equally by the joint shareholders.

The agreement was reduced to writing and signed on 31 May 1991.

The arbitral award, of 15 June 1994, indicated that the vessel was completed in 1994. The original construction price was set at $5,950,000.

The issue before the arbitrator centred on the amount by which the original contract price increased, which issue he resolved.

Zambezi Paddle Steamer (Pvt) Ltd was run for 18 months, from the completion of the vessel in 1994, by Turner and Sons (Pvt) Ltd. Dobrock (Pvt) Ltd thereafter took over the management control of Zambezi Paddle Steamer (Pvt) Ltd and appointed a Managing Director, Adamson, to run it.

It was common cause, that, from 2000, the tourism industry went into decline and this affected the bottom line of the MV Southern Belle operations of Zambezi Paddle Steamer (Pvt) Ltd.

There is evidence, in the form of electronic mail exchanged between Peter Jameson Dobson and Anthony Turner, the principal shareholders in Dobrock (Pvt) Ltd and Turner and Sons (Pvt) Ltd, respectively, between 19 January 2003 and 7 April 2004, that, the joint shareholders were prepared to sell their respective shareholdings in Zambezi Paddle Steamer (Pvt) Ltd to the right suitor - if one came along.

On 4 May 2004, Zambezi Paddle Steamer (Pvt) Ltd Managing Director presented a report which highlighted the difficult circumstances the commercial houseboat operations were in. It required urgent maintenance and refurbishment to attain its former glittering glory.

On 6 June 2004, Anthony Turner indicated his decision to sell his shares in the commercial houseboat to Peter Jameson Dobson. This was a clear pointer to his unwillingness to inject funds for maintenance and refurbishment of the houseboat.

On 18 June 2004, Peter Jameson Dobson indicated his willingness to inject $250 million, for this purpose, provided his shareholding in Zambezi Paddle Steamer (Pvt) Ltd increased by 10% while that of Anthony Turner was reduced by the same percentage. He suggested that the houseboat was valued at approximately $3.5 billion. He followed up this by another e-mail of 25 June 2004.

He received a response on that same day (contained in an email wrongly dated as 6 June 2004) from Anthony Turner in which he offered him his shareholding in Zambezi Paddle Steamer (Pvt) Ltd for the sum of $250 million.

Peter Jameson Dobson duly accepted the offer.

He came to Harare, and, during the period 28 June to 14 July 2004, discussed with Anthony Turner on the terms of payment of Antony's entire shareholding.

He agreed to procure payment where and when Anthony Turner wanted.

The purchase price was agreed at $250 million. It was to be paid by Peter Jameson Dobson into the account of Antony's daughter, Jenny, in the United Kingdom, the bank account details of which he received.

The following day, after the terms of payment had been agreed, Anthony Turner requested part payment of the purchase price in local currency.

Peter Jameson Dobson alleged that he made out cheque payments to Chitekeshe of $115 million and to Vretto of $25 million, as part payment, a total of $140 million which Anthony Turner used to buy a pick-up truck.

This averment was not disputed by Anthony Turner, yet, he maintained, in his other affidavits, that, he was paid $138 million and $112 million remained outstanding.

Peter Jameson Dobson, in his prayer, and in Mr de Bourbon's submissions on behalf of Peter's company, accepted that the outstanding purchase price was $112 million.

No cheques or proof of payment in the sum of $140 million was produced.

I am therefore prepared to hold, that, Peter Jameson Dobson paid $138 million and had an outstanding balance of $112 million.

The second respondent further argues that the letter from Mbada Mine to the Sheriff, relied upon by the appellants, was unsigned and was therefore not authentic.

The matter turns on the story in, or behind, the relevant documents…,.

That is where the defendant fell short.

Exhibit 7 does not contain an effective date. It is not signed by any of the members or officials of the plaintiff. There is nothing to authenticate it.

The applicant attached to its application Annexures C1–5.

The annexures are its application for suspension of operation of an arbitral award. Its case number is LC/H/App/823/14. The application was made in terms of section 92E(3) of the Labour Act [Chapter 28:01] and Rule 34 of the Labour Court Civil Rules.

Whilst the application forms part of the papers which the applicant presented before the court, it does not appear to have been filed with the relevant court. It is not stamped with the Labour Court registrar's date stamp. That stamp is, in the court's view, prima facie evidence of a matter having been filed with the court. The absence of the stamp places a doubt in the mind of the court on whether or not the matter which the applicant alleged had been filed with the Labour Court had, indeed, been so filed.

I am of the view that the authenticity of this plan is questionable. The anomalies point to a document that was clearly tampered with.

Counsel for the first respondent went on to submit that the applicant's case failed on the best evidence rule.

He argued that, since the best evidence rule excludes reliance on secondary evidence where primary evidence is available, the applicant ought to have proved his case by way of physical evidence which would show the commission of the irregularities or malpractices he alleged. He argued that primary evidence, in the form of the actual used ballot papers, the original completed polling station returns (the V11 Forms) and other residue ought to have been produced if the applicant's case was to be successful. He submitted that that evidence was preserved by operation of law. It had been available to the applicant but he deliberately chose not to rely on it to prove his case….,.

It is important…, to discuss the primary evidence rule to clearly show that the applicant's failure to resort to section 67A, as read with section 70(4) of the Electoral Act [Chapter 2:13] was detrimental to his case.

The primary evidence was required to be produced in order to prove that the Presidential election result had indeed been rigged. The evidence was to be found in the sealed ballot boxes and the sealed packets.

The earliest statement of the primary evidence rule was in Ford v Hopkins (1700) 1 Salk. 283, 91 E.R. 250, as referred to in DUHAIME's Law Dictionary, where it was stated that “the best proof that the nature of the thing will afford is only required.”

In Omychund v Barker (1745) 1 Atk 21…, as referred to in DUHAIME's Law Dictionary, it was said:

“The judges and sages of the law have laid it down that there is but one general rule of evidence - the best that the nature of the case will allow.”

The primary evidence rule disallows the use of evidence other than the primary evidence - where that evidence is in existence. This was stated in Doe D Gilbert v Ross (1840) 7 M. & W.102…, as referred to in Duhaime's Law Dictionary, as follows:

“The law does not permit a man to give evidence which from its very nature shows that there is better evidence within his reach, which he does not produce.”

The reason behind the primary evidence rule was explained in 1754 by GILBERT “The Law of Evidence” (1^st ed 1754). In that textbook, the author stated…, that:

“The first, therefore, and most signal rule, in relation to evidence, is this, that a man must have the utmost evidence the nature of the fact is capable of; for the design of the law is to come to rigid demonstration in matters of right, and there can be no demonstration of a fact without the best evidence that the nature of the thing is capable of; less evidence doth create but opinion and surmise and does not leave a man the entire satisfaction that arises from demonstration.”…,.

As stated by GILBERT in “The Law of Evidence” (1^st ed 1754), the duty of a court in a matter where factual issues are heavily disputed is to establish the truth. The court becomes a trier of fact. The dispute is, however, between the parties who have the duty to place evidence before the court in order for the truth to be established.

The fact that the V11 Forms were sourced from social media raised doubt about their authenticity.

Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.

During the trial both the plaintiff and the defendant produced the following bundle of documents;

(a) For the plaintiff

Bundle 2.1 pp 1 – 159; Bundle 2.2 pp 160 – 302; Bundle 2.3 pp 303 – 469; Bundle 2.4 pp 470 – 831; Bundle 2.5 pp 832 – 1116.

(b) For the defendant

Bundle 5.1 pp 1 – 310; Bundle 5.2 pp 311 – 659; Bundle 5.3 pp 660 – 874.

All these voluminous bundle of documents contain various documents which include correspondence between the parties or with other persons using various means, documents relating to the properties allegedly owned by the parties, and other information relevant to various factual disputes. Both parties made extensive reference to the documents in both their evidence in chief and in cross examination. There is also reference to these bundle of documents at specific pages by both counsel in the closing written addresses. I have considered the relevant evidence in the bundles and it is beyond the scope of this judgment to deal extensively with the full contents of each bundle of documents.

The following exhibits were produced by the parties;-

Exhibit 1 is the marriage certificate which shows that the parties were married in terms of [Chapter 5:11] on 1 September 1990 when both of them were very young, at 19 years of age.

Exhibit 2.1 to 2.5 are the plaintiff's bundle of documents.

Exhibit 3 is a memorandum of agreement between the Estate Late AMT Pendered (being the seller) and R.J Coumbis, the defendant, (being the buyer) of an immovable property dated October 2008 being 11,000 F class shares in Rosefriars (Private) Ltd at a purchase price of $45,000= which was paid. The share certificate and the share transfer forms of the shares were attached.

What is important to note is that the defendant, as per that agreement, purportedly represents an un-named third party to whom the transfer was to be effected. While the plaintiff alleges that the property belongs to the defendant and therefore should be distributed between the parties, the defendant indicated that the property belongs to a third party, Mr. Bret Lang. Neither party was able to produce the current share certificate relating to this property which is also referred as No.6 Rosefriars Avondale, Harare.

Exhibit 4 is a schedule of the alleged assets of the parties both in Zimbabwe and South Africa which was prepared by one Desmond Tomlinson. It includes the following;

In South Africa:

(a) Unit 182 Shingara Sands (Pty) Ltd which owns the property by the same name.

(b) Section 94 Matumi Sands (Pty) Ltd which owns the property by the same name.

(c) Section 112 Matumi Sands (Pty) Ltd which owns the property by the same name.

In Zimbabwe, the following property is listed;

(a) No.6 Northwood Rise, Mt Pleasant, Harare which is the matrimonial home.

(b) The Right Investments (Pvt) Ltd, a property-owning company which owns property known as Belgravia House.

(c) Opium Investments (Pvt) Ltd, a property owning company which owns property known as No.13 Bates Street, Milton Park, Harare.

(d) No.6 Rosefriars, Avondale, Harare.

(e) Half share in a company called Ramis Traders (Pvt) Ltd, a trading company.

(f) Patchbox Trading (Pvt) Ltd, a trading company.

(g) Stircrazy Investments (Pvt) Ltd, a trading company which also operates Hardware Shops under the Mica franchise in Harare and Bulawayo.

(h) Polifax Traders (Pvt) Ltd, a trading company dealing in furniture.

(i) Bywork Investments (Pvt) Ltd, a trading company dealing in hardware stock….,.

This list, Exhibit 4, was the basis of a bitter dispute between the parties throughout the trial. The plaintiff's position is that all the property listed in Exhibit 4 belongs to the parties and is subject to distribution between the parties. The defendant, on the other hand, alleges that the only asset wholly owned by the parties in Exhibit 4 is the matrimonial home, No.6 Northwood Rise, Mt Pleasant, Harare.

Exhibit 5 relates to the bundles of documents 5.1 to 5.3 produced by the defendant.

Exhibit 6 are 2 e-mails from the plaintiff dated 7 July 2012 and 25 July 2012 to the defendant.

Exhibit 7 is an EEG Test report dated 20 September 2010 for the plaintiff. It is further interpreted in Exhibit 8.

Exhibit 8, dated 6 November 2010, is a Psychiatric Evaluation Report for the plaintiff by Dr Dickson Chibanda….,.

Exhibit 9 (a) – (e) are e-mails dated 28 January 2013 between the plaintiff and members of Triathlon Club….,.

Exhibit 10 is a letter, dated 23 November 2013, by the provisional liquidator to the plaintiff's legal practitioner explaining the difficulties encountered in the provisional liquidation of Stircrazy Investments (Pvt) Ltd which related to inability to trace the assets of the company and to access the company records….,.

Exhibit 11 is a Probation Officer's report dealing with the dispute of the then two minor children, Anton Phillip Coumbis (Anton) and Julian Ronald Coumbis (Julian)….,.

Exhibit 12 is a Protection Order DV489/10, dated 18 August 2010, granted against both parties by the Magistrates Court. It simply reinforces the undisputed fact that the marriage relationship between the parties has irretrievably broken down.

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….,.

Benjamin Nkosentya Kumalo 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.

Exhibit 5, showing the purported reimbursement of $82.5 million on 7 April 2006, through Messrs C Mutsahuni Chikore & Partners, throws mud in the first defendant's story.

The said legal practitioners are not mentioned anywhere in the pleadings….,. That piece of evidence is suspect.

This matter was brought to me in terms of section 9(6) of the Guardianship of Minors Act [Chapter 5:08] by the magistrate sitting as the Children's Court at Masvingo.

After I had ploughed through the papers submitted by the magistrate I raised a number of issues with the presiding magistrate. It may be prudent to quote the query I raised. It reads as follows;

“1. In terms of what provision of the Guardianship of Minors Act [Chapter 5:08] was this order granted.

2. If it is section 9(1) of the said Act, did the trial magistrate have jurisdiction to grant such an order where one of the parents is alive.

3. Why is the affidavit of one Delight Chikohomero written in ink where additional information is added? Is that proper for court records. Who added that information as the handwriting is patently different from the deponent's signature.”

The response by the learned magistrate makes various concessions.

This matter is an application for guardianship in terms of the Guardianship of Minors Act [Chapter 5:08]. The background facts are as follows;

The record of proceedings consists of an affidavit by the applicant, one Washington Fungisai Mudimbu; an affidavit purportedly by the minor's mother, one Delight Chikohomero; a copy of the applicant's passport which is hardly legible; a copy of the minor's birth certificate; certificate of death of the father of the minor; and an illegible copy of the passport of the minor's mother, Delight Chikohomero.

The applicant regards the minor as a nephew as he is a son to his late brother who passed on on 23 November 2004. The applicant's founding affidavit is not of much help. According to the applicant, the minor's mother is married to another man and is now resident in Botswana.

The applicant avers that on an unspecified date the minor was left in the custody of the applicant. The applicant alleges that, on that basis, he has become what he calls “a de facto guardian.” The applicant wrongly avers that since the father of the minor is late and its mother is domiciled in Botswana the minor has no natural guardian. Lastly, the applicant states, without any further elaboration, that it is in the best interests of the minor for him to be awarded guardianship. The main reason proffered by the applicant is that he is the closest available relative of the minor and that he is currently meeting the material needs of the minor who is in his custody.

The applicant does not give any other detail about himself or why he is a fit and proper person to be awarded guardianship.

The affidavit purportedly by the minor's biological mother raises serious ethical questions and puts into doubt as to who authored it. Its authenticity is clearly in doubt. Some important information is written in ink as additional information and is not countersigned. The handwriting is manifestly different from the deponent's signature or handwriting. The magistrate was unhelpful in explaining all this. In order to illustrate this point, I shall reproduce this affidavit and put the additional information written in ink in italics. It reads as follows;

“I, Delight Chikohomero, do hereby make oath and state that:-

1. I am the biological mother of the minor child, Tadiwanashe Blessing Linnel Mudimbu (born 18 August 2004). I attach a copy of my identity document as Annexure “D”.

2. The minor child's father, Blessing Taremeredzwa Mudimbu, died on 23^rd November 2004.

3. Since the death of the minor child's father, I have relocated to Botswana where I am married to another man and have started another family.

4. I left the minor child under the care of his uncle, Washington Fungisai Mudimbu, who is still in charge of the child's affairs to date. The child had no natural guardian nor tutor testamentary since his father is deceased and I have relocated to another country.

5. I have no objection to the court formally awarding guardianship to the minor child to Washington Fungisai Mudimbu as I consider it to be in the best interests of the child. The child lives with Washington Fungisai Mudimbu who cares for him as though it was his own child. Washington Fungisai Mudimbu enrolled the child in boarding school at Mutambara High School where he takes care of all the child's need.

Wherefore I pray for an order in terms of the Draft Order.”

As already said all what is in italics is additional information written in ink and not counter-signed. The handwriting is clearly different from that of the deponent as appears on her signature.

The question which lingers in the mind is who made this additional information and some cancellations in ink. Why was this not counter signed or a proper affidavit redone? Does this not put into doubt the authenticity of this affidavit?

A Magistrates Court is a court of record and all documents filed should be clear and un-altered.

I do not wish to cast any aspersions on anyone but I am alive that our courts are not immune to fraudulent practices. Fake documents and/or orders have been generated in our jurisdiction. There is no plausible reason why such a poorly drafted affidavit was deemed acceptable by the magistrate who handled this matter. It would be a dereliction of duty if I am to also endorse such an anomaly especially where the interests of a minor child are involved and the rights of the biological mother are at stake.

Another anomaly I noted is that the proceedings were held in a very perfunctory manner. The record of proceedings does not inspire any confidence at all. Indeed, advertisements were placed in both the Government Gazette and the Mirror newspaper but no meaningful inquiry was held by the magistrate. All what is recorded is as follows;

“Mr Hwacha – I have filed in the necessary papers. I have checked the record and there is no objection to the application. I therefore pray for the confirmation of the Draft Order.

Ruling

Draft order confirmation as final.”

These are the proceedings I am obliged to review!

In terms of section 9(4) of the Guardianship of Minors Act [Chapter 5:08] the court should hold an inquiry.

In the case of re: Chikombingo & Ors 2014 (1) ZLR 65) (H)…, I had this to say;

“In terms of section 27 of the Children's Act, after holding of the inquiry and granting the order, the Children's Court is enjoined, within seven days, to submit the record of proceedings to the High Court for review. Such a review can only be meaningful where a proper record of proceedings has been kept.

In re: Gonyora 2001 (2) ZLR 573 (H) it was pointed out that the record of proceedings of a Children's Court which is submitted for review (whether in terms of the Guardianship of Minors Act [Cap 5:08] or the Act [Cap 5:06] must include reasons for the court's decision. The reason for this is clear. This court cannot carry out its review powers to determine whether the proceedings were in accordance with real and substantial justice where there is no record of proceedings and no written reasons for the decision made. In the absence of a proper inquiry, the record of proceedings and the reasons for the order made, this court is hamstrung in deciding whether the Children's Court has taken into consideration the principles that bear on the child's best interests.”

In casu, I am equally hamstrung to assess the propriety of the decision taken by the magistrate.

The most glaring misdirection in this matter is that the magistrate had no jurisdiction to grant the order in issue.

The powers of the magistrate are clearly spelt out in section 9(1) of the Guardianship of Minors Act [Chapter 5:08] which provides as follows;

“9. Appointment of Guardian by Children's Court

(1) Without prejudice to the rights, powers and privileges of the High Court as the upper guardian of the minor children, and the Master in terms of section 74 of the Administration of Estate Act [Cap 6:01], the Children's Court may, on application in terms of this section, appoint a fit and proper person to be the guardian of a minor who has no natural guardian or tutor testamentary.”…,.

The minor child in this matter has a biological mother, who, in the absence of the late father, is the natural guardian.

Secondly, the magistrate has not explained at all why the applicant is deemed to be a fit and proper person. The applicant's affidavit does not deal with this issue at all and no inquiry was held to satisfy this requirement. This court, as the upper guardian of minor children, cannot say with certainty whether the applicant's appointment as the minor's guardian is in the interest of the said minor child and whether the applicant is a fit and proper person.

In the result, I am inclined to invoke the powers bestowed upon me in terms of section 28 of the High Court Act [Chapter 7:06] as read together with section 9(7) of the Guardianship of Minors Act [Chapter 5:08]. I shall proceed to set aside the order made by the magistrate as it is ultra vires the powers of the magistrate. The applicant is at liberty to seek a similar order in an appropriate court taking into account the concerns I have raised.

It is ordered that, the order by the magistrate be and is hereby set aside.

This is an opposed application where the applicant seeks that the first respondent be declared to be in contempt of High Court order in HC10776/13. The applicant also seeks that should the first respondent fail to comply with paragraphs(e) and (f) of the judgment in HC10776/13 within seven days of the granting of this order, then its Managing Director be committed to Harare Remand Prison for an indefinite term until the first respondent complies.

In terms of paragraphs(e) and (f) of HC10776/13 this court ordered the following;

“(e) IT IS HEREBY DECLARED THAT TRIANGLE LIMITED has an obligation to cause the determination of the applicants' basic annual salary for purposes of the calculation of applicants pensionable emoluments, from the date of this judgment onwards, in accordance with the TSSPF Rules, and that, this obligation shall be discharged, in full, within (90) ninety days of the date of this order.

(f) CONSEQUENT TO THE ABOVE DECLARATION TO THE ABOVE DECLARATIONS, TRIANGLE is hereby directed, within (90) ninety days of this order, to recommence making its contributions, and to deduct the applicants' contribution for onward transmission to the TSSPF, towards the costs of providing benefits towards the applicants in terms of the TSSPF's rules as determined by the TSSPF's actuary, and approved by the TSSPF Trustees, EXCLUDING any arrears which arose between January 2009 and the date of this order until such time as the TSSPF has been terminated in accordance with the TSSPF Fund Rules.”

Counsel for the first and third respondents raised points in limine.

(i) Firstly, he attacked the validity of the founding affidavit....,.

On page 8 of the proceedings is the signature page of the affidavit. It is apparent the affidavit was sworn to in Triangle on 30 November 2015. That affidavit was the one used in the application in HC11975/15 which application was withdrawn on 18 December 2015. The affidavit of the 30^th of November 2015 did not include the third respondent. The third respondent was then added after the 30^th of November 2015 in the present case.

It follows that the founding affidavit was never commissioned....,.

Of major concern is that certain additions were made to the founding affidavit but it is clear that such changes were not countersigned by the applicants.

When introduction of the third respondent as a party to these proceedings was done, such affidavit with those changes was not commissioned by a Commissioner of Oaths. Such founding affidavit fails to meet the requirements of a valid affidavit.

I am satisfied this matter cannot proceed on the basis of an invalid founding affidavit...,.

The standard of proof in civil proceedings is proof on a balance of probabilities.

What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff's claim against the defendant's defence. It necessitates a decision of which of their versions of events is more likely to be true. In other words, which version is more believable, or most likely to have transpired, than the other?

It is my view that the preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's, or vice versa. In making this determination, we look at the pleadings, at the documentary evidence, at what the parties' representatives said and did when they were in the witness stand, and, finally, at what the law says in light of the evidence that we will have accepted. Then we determine what ought to be done in order to do justice between the parties.

The plaintiff issued summons against the defendant on 24 March 2014 in which it claimed payment of USD$48,000= being the replacement value of soya beans that were lost while in the defendant's custody, interest at the prescribed rate, and costs of suit.

The defendant denied entering into any agreement with the plaintiff for the transportation of soya beans. It admitted that the parties entered into an agreement for the transportation of seed maize which agreement was mutually terminated by the parties.

The matter was referred to trial for the determination of the nature of the agreement between the parties; whether such agreement was terminated; whether the defendant gave instructions for the loading of a truck with soya beans; and, consequently, whether the defendant is liable for the loss suffered by the plaintiff of thirty tonnes of soya beans valued at USD48,000=.

It is common cause that the parties signed a 'Load Confirmation and Rate Agreement' on the 28^th of November 2011 in terms of which the defendant agreed to bear the risk for any loss or damage to the goods carried by it and indemnified the plaintiff against any claims.

The parties agreed that any changes to the contract would be reduced to writing and that the defendant could not subcontract without the express written consent of the plaintiff. It was a term of the contract that collection of the load was confirmation, by the defendant, of the terms and conditions of the parties' contract.

It is common cause that a load of soya beans, as opposed to seed maize, was loaded onto a thirty tonne truck on behalf of the plaintiff. It is common cause that the truck which accepted the plaintiff's load went missing and that the representative of the defendant assisted the plaintiff's representative to search for the truck.

(i) Was the agreement between the parties mutually terminated?

(ii) Was the truck that loaded soya beans a truck which had been sub-contracted by the defendant with the plaintiffs express consent - written or otherwise?

(iii) Did the truck load thirty tonnes of soya beans valued at USD$48,000=, or less or more, or maize seed instead of soya beans?

(iv) When the defendant's representative offered to and did assist the plaintiff's representative to look for the misappropriated truck, was this an acceptance of liability on the part of the defendant?

The contemplation of the possible answers to these questions will assist the court to assess the probabilities in this case and to decide which of the parties' versions is supported by the preponderance of probabilities.

In a civil case, the plaintiff must prove its case on a balance of probabilities. This has been interpreted to mean that:

“It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged; but, if the probabilities are equal it is not.”

See Milner v Minister of Pensions 1947 2 All ER 372…, and Thulisani Dube Nyamambi v Bongani Ncube HB82-15.

In the case of Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (SC) the court said that:

“…,. In a civil case, the standard of proof is never anything other than proof on the balance of probabilities. The reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party and the test for that justice is to balance their competing claims. In a criminal matter, on the other hand, the trial is an attack by the State, representing society, on the integrity of an individual. The main concern is to do justice to the accused. If the prosecution fails, the State does not lose.”

The learned authors, HOFFMAN & ZEFFERTT, in their book, SA Law of Evidence 4ed…, state that;

“There are no exceptions to the rule that all issues in a civil action are decided upon a preponderance of probabilities.''

In JOUBERT, The Law of South Africa, Vol 9…, the learned author says that:

“In civil proceedings, proof is furnished upon a preponderance of probability and this is the case even when allegations of criminal or immoral conduct are to be proved.''

Accordingly, we must balance the plaintiff's claim against the defendant's defence, and, in so doing, decide which of their versions is more likely to be true. In other words, which version is more believable or most likely to have transpired than the other.

The preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's. In making this decision we look at the pleadings, at the documentary evidence, and at what the parties' representatives said.

The evidence shows that the parties willy-nilly and haphazardly changed the terms of their contract verbally, and not in writing. This makes it difficult to assess whether the defendant is being candid when it says that the contract was 'mutually' terminated verbally. It is equally difficult to assess whether indeed the defendant sub-contacted to a third company as alleged by the plaintiff because neither the plaintiff's consent to such a course of action, nor the alleged sub contract itself, is in writing.

This case boils down to a question of the plaintiff's word against the defendant's.

The probabilities are evenly balanced. Unfortunately, in order for the plaintiff to win its case, the preponderance of probabilities must be tilted in its favor.

In this case they are not.

The evidence does not show that the defendant had a hand in giving loading instructions to Seed Co. The evidence shows that it was the plaintiff which faxed loading instructions to Seed Co. A copy of this fax would have assisted the court to determine who gave the instruction, which company was authorised to load, the registration number of the truck, the name of its driver and his identity number.

The plaintiff said that this information was supplied to it by the defendant. It may very well have been. There is insufficient evidence that the defendant supplied this information to the plaintiff pursuant to a subcontract. The terms of the sub-contract were not made clear to the court. There is insufficient evidence, in the absence of the loading instructions, as to the nature of the goods which were loaded onto the truck in question.

Was it soya beans or maize seed? Was it thirty tonnes or less, or more?

It is anybody's guess because there was no evidence placed before the court on which it can base any findings in answer to those questions. It is highly probable that the defendant's version is correct, that, as a player in the transport industry, the defendant referred the plaintiff to another transporter when it was unable to load the plaintiff's goods. If the defendant was unable to load the plaintiff's goods, then, in terms of the plaintiff's own contract, the defendant was not bound by the terms of the contract and not liable to indemnify the plaintiff against loss or damage.

There is no evidence that, even if it were found that the defendant was authorized, verbally, by the plaintiff to sub contract, the terms of the plaintiff and the defendant's initial contract would also be binding on the defendant as a subcontractor. No contract between the defendant and the third party was alluded to, produced, or had its terms, if they were verbal, placed before us.

We come to the inescapable conclusion that the plaintiff did not manage to discharge the onus on it to prove its case on a preponderance of probabilities.

It is more probable that the plaintiff was the victim of fraud, and that, because the alleged fraudsters were referred to it by the defendant's representatives, the plaintiff wishes to hold the defendant to account. The plaintiff cannot do so on the basis of the evidence which it placed before the court. The cause of action is not founded. The evidence before the court is inadequate, and insufficient, to tilt the probabilities in the plaintiff's favor.

For these reasons, the plaintiff's claim is dismissed with costs.

The plaintiff issued summons against the defendants, on 11 September 2012, claiming:

(a) Payment of the sum of US$3,700= being the cost of repairs to his Toyota sprinter motor vehicle registration number AAQ 5021 negligently damaged by the first defendant on 17 December 2011 who was at the time driving a Toyota Land Cruiser registration number AAX 3378 which vehicle, at the material time, was insured by the second defendant in terms of Part (IV) of the Road Traffic Act [Chapter 13:11].

(b) Payment of consequential damages in the sum of US$9,750= being the cost of hiring a replacement vehicle during the period 18 December 2011 to 30 June 2012 while the plaintiff's vehicle was being repaired.

(c) Interest on the sum of US$13,450= at the prescribed rate from the date of summons to date of final payment.

(d) Costs of suit.

In his declaration, the plaintiff averred that a road accident occurred along Alpes Road, between Cambridge and Borrowdale West Harare, on 17 December 2011, between his vehicle and that belonging to the first defendant. He averred, further, that the accident was caused solely by the first defendant's negligence, based on the fact that;

(i) She was driving at excessive speed.

(ii) She made a right turn in the face of oncoming traffic when it was dangerous to do so.

(iii) She failed to keep a proper lookout.

(iv) She drove too fast given the prevailing traffic conditions.

(v) She failed to apply brakes to her vehicle timeously or at all.

(vi) She was driving without due care and attention.

(vii) She failed to keep her vehicle under proper control.

The plaintiff alleged that the defendant paid an admission of guilt fine.

The plaintiff averred that as a result of the accident his motor vehicle sustained damage to the gear box, radiator, bonnet, headlamps and the windscreen. He averred, further, that the vehicle was repaired by H & J Panel Beaters, of Bluff Hill, Harare, at the second defendant's instance. When he took delivery of the vehicle, the plaintiff was not satisfied with the repairs done to his vehicle.

He then procured quotations for sums in excess of US$3,700= from different panel beaters, with a view to restoring his vehicle to the condition it had been in prior to the accident with the first defendant. He obtained a report from the Automobile Association of Zimbabwe (Private) Limited which confirmed that the repairs done to his motor vehicle were not satisfactory. The plaintiff alleged that the second defendant subsequently advised him to surrender his vehicle in return for an amount of US$3,500= which it claimed was the market value of the plaintiff's vehicle.

The plaintiff disputed this and insisted that the value of his vehicle was US$6,300=.

The plaintiff averred that he expected his loss to be mitigated by June 2012, and, because he was deprived of his car he rented a vehicle at US$50= per day from 18 December 2011 to 30 June 2012, when his vehicle was satisfactorily repaired.

The defendants filed their plea to the plaintiff's claim on 18 October 2012. The first defendant admitted to driving without due care and attention but denied any form of negligence.

The defendants put the plaintiff to the proof of the damages allegedly incurred.

The defendants averred that, on 20 January 2012, the plaintiff signed a satisfaction note on completion of the repairs, after signing a release form on 19 January 2012, in which he authorized the second defendant to pay directly to the panel beaters, for the cost of repairs. The defendants averred, further, that on 19 January 2012, the plaintiff signed a release form in which he released the defendants from any further actions or suit emanating from the accident.

On the issue of inadequate repairs to the plaintiff's vehicle, the defendants averred that the plaintiff's concerns had been noted, but, due to the fact that his vehicle had sustained damage from a previous accident, he was asked to contribute to the repairs of his vehicle.

The defendants denied that the plaintiff's motor vehicle was valued at US$6,300= and put him to the proof thereof.

In his replication to the defendants' plea dated 11 December 2012, the plaintiff denied each and every allegation of fact and of law and put the defendants to the proof thereof and joined issue with the defendants.

At the pre-trial conference, on 4 September 2013, the matter was referred to trial on the following issues:

1.Whether or not the plaintiff is entitled to disbursement, the same claim having been settled, and, if so, in what amount?

2.Whether or not the plaintiff was entitled to hire a vehicle, and, if so, the quantum of the hire charges.

Admissions were made by both parties:

1. The defendant admitted liability for the accident.

2. The plaintiff admitted that his vehicle had been involved in another accident prior to the accident in question.

At the hearing of the matter, the plaintiff, a self actor, testified and told the court that: “his vehicle was taken to the panel beaters for repairs on the day of the accident, 17 December 2012, at the first defendant's instance, and a promise was made to him that the vehicle would be repaired the same day. He told the first defendant that he needed his vehicle as a matter of urgency because he intended to travel and she promised him that, because she knew the manager at H & J Panel Beaters, the vehicle would be repaired that very day. He arranged for cover quotations to be done with the assistance of the manager at the panel-beaters.”

The plaintiff then referred to copies of the quotations which he wanted to show the court.

Counsel for the defendants objected to the production of the quotations on the basis that they had not been discovered in terms of the Rules and that the defendants were hearing of the quotations for the first time.

The court sustained the defendants' objection after referring to the schedule of documents discovered and explaining to the plaintiff, who was not legally represented, the reason why it could not admit his quotations into evidence.

The plaintiff continued to testify. He told the court that: “After the cover quotations were done the vehicle was assessed by Mr. Chiunda, an assessor, who wrote a report indicating that plaintiff's vehicle was valued at US$5,000=.”

The report was not tendered into evidence.

The plaintiff told the court that, two days after the accident, his vehicle had not been repaired, and that, on contacting the first defendant she referred him to the second defendant, the insurer of her vehicle.

The plaintiff asked the court if he was allowed to show it text messages exchanged between him and the first defendant at the material time. He applied to have a printout of his phone admitted into evidence. The printout was admitted as exhibit 1. It was dated Friday December 23, 2011, 11:07pm, from the first defendant to the plaintiff, and it read as follows:

“I have no input on that one, Mr. Sibanda. Everything to do with your car is with the insurers and JMC.”

The plaintiff told the court that he was aggrieved by the first defendant's attitude because she had previously assured him that his vehicle would be repaired in one day. He proceeded to hire a motor vehicle to use, and, in his words “…, with the first defendant's knowledge and consent.”

The plaintiff told the court that his vehicle took a month to be repaired, and, consequently, extended the car hire period because he needed a car to go to his rural home that Christmas. After that, he signed some papers at the second defendant's offices which were allegedly explained to him as documents to enable him to collect his motor vehicle from the panel-beaters'. He testified that he signed the documents provisionally, because he had not yet seen the car, and, to demonstrate this, he alleged that the documents he signed were not witnessed, and therefore invalid because he told the second defendant that he would come back after he got his vehicle for the witnessing of the documents.

The plaintiff collected his vehicle on 20 January 2013 and signed a release note at the panel-beaters. He took a ten minute video of the release process.

Next morning, on his way to work, he discovered that the gearbox on his vehicle was not functioning properly, the windscreen wipers were not working, and that the vehicle had a lot of other defects.

Around 22 January 2013, the plaintiff brought his complaints to the second defendant, where he was told that the panel-beaters had already been paid, on his instructions, when he signed the form authorizing the defendant to pay. The plaintiff's letter of complaint to the second defendant, dated 23 January 2012, was admitted into evidence as exhibit 2. In the letter, he asked the second defendant to delay payment to H & J Panel Beaters until the matter was resolved. The second defendant promised to have the vehicle assessed and Mr. Chiunda assessed the vehicle but gave his report to the second defendant. The second defendant then indicated that the vehicle was a write off and offered US$3,500= in full and final settlement.

The plaintiff alleged that he refused this offer because he had valuation reports which showed that his vehicle was valued at US$6,300=.

No application was made to tender the alleged valuation reports into evidence.

In the spirit of assisting an unrepresented litigant the court asked the plaintiff whether he wished to tender the valuation reports in its evidence. The plaintiff replied that the reports had not been discovered.

The plaintiff admitted that his vehicle had been damaged in a previous accident. Under cross examination, the plaintiff told the court that his level of education was Ordinary Level and that he is a self employed freelancer who analyses chemicals for a living. On being asked to provide proof that he communicated to the first defendant his intention to hire a vehicle to use at her expense, he replied that he had no proof, their communication was verbal. He denied that it was a luxury on his part to hire the vehicle and averred that a vehicle was essential to his business.

The plaintiff admitted that his vehicle went to the panel beaters at 3pm on the day of the accident. On being questioned as to how the first defendant could assure him that the vehicle would be repaired the same day given the lateness of the hour, he told the court that although the damage to his vehicle was extensive, it was feasible that repairs could take a short period of time.

He admitted signing the form that authorized the second defendant to release payment to the panel beaters on 19 January 2013 but stated that the signature was provisional because it was not witnessed. He admitted that he had signed a clearance note in which he acknowledged receiving his vehicle in good condition order and repaired to his complete satisfaction but stated that the form was subject to his findings after checking the vehicle.

He reiterated that his vehicle was valued at US$6,300=.

Finally, he told the court that, to mitigate his loss, he hired the cheapest vehicle that was available at the time.

He admitted that his letter of complaint, dated 23 January 2013, came three days after he authorized the second defendant to pay the panel beaters on 20 January 2013. The plaintiff then closed his case.

The defendants applied for absolution from the instance on the basis that the plaintiff had failed to prove a prima facie case, and, that the plaintiff had failed to prove its entitlement to payment of hire charges of a replacement vehicle, and, that, after the second defendant had paid for the repairs, there was no continuing legal liability on it to advance more money to the plaintiff for further repairs or for any other reason.

The issues for determination at trial were whether the plaintiff was entitled to a further disbursement after the second defendant had paid for the repairs to his vehicle, and, if so, in what sum, and whether the plaintiff was entitled to hire a vehicle, and, if so, whether he ought to be reimbursed for the cost of the car hire.

The onus was on the plaintiff to prove his claim on all the trial issues by adducing sufficient evidence to meet the standard of proof in civil cases, proof on a balance of probabilities.

The question that the court must ask itself, in an application for absolution from the instance, in the circumstances of this case, is this: Did the plaintiff place sufficient evidence before the court to show that he was entitled to be paid more money by the defendants after the cost of repairs to his vehicle were paid in full. Secondly, was the plaintiff entitled to hire a vehicle for his use from the date when he expected his vehicle to be repaired to the date when it was repaired?

After a party has closed its case, the defendant, before commencing his own case, may apply for the dismissal of the plaintiff's claim. Should the court accede to this, the judgment will be one of absolution from the instance. See HERBSTEIN & Van WINSEN, The Civil Practice of the Supreme Court of South Africa, 4th ed…,.

The term 'absolution from the instance' is used to describe the finding that may be made at either of two distinct phases of the trial. In both cases, it means that the evidence is insufficient for a finding to be made against the defendant.

At the close of the plaintiff's case, when both parties have had opportunity to present whatever they consider to be relevant, the defendant will be 'absolved from the instance, if, upon an evaluation of the evidence as a whole, the plaintiff's burden of proof has not been discharged'. See SCHWIKKARD Van Der MERWE, Principles of Evidence 3rd ed…,.

In the case of Machewane v Road Accident Fund 2005 (6) SA 72 (T), absolution from the instance was defined as follows:

“It means that the plaintiff has not proved her case against the defendant. It is not a bar to the plaintiff re-instituting the action (provided the claim has not by then prescribed), and, in that respect, it is to be distinguished from a positive finding that no claim exists against the defendant. Absolution is the proper order when, after all the evidence, the plaintiff has failed to discharge the normal burden of proof. Absolution from the instance, in effect, brings the proceedings to an end at that stage because there is no prospect that the plaintiff's claim might succeed, and, in those circumstances, the defendant should be spared the trouble and expense of continuing to mount a defence to a hopeless claim.”

In LH HOFFMAN, DT ZEFFERT, The South African Law of Evidence 4th ed…, it is stated that:

“A decree of absolution from the instance is derived from Dutch Law…,. It is the appropriate order when after all the evidence the plaintiff has not discharged the ordinary burden of proof. Its procedural advantage is that it enables the plaintiff to bring another action on the same facts, a privilege which is denied to the defendant if he fails in an action in which the burden of proof is on him. Its other use is an extension to civil actions of the rules for withdrawing a case. If, at the end of the plaintiff's case, there is not sufficient evidence upon which a reasonable man could find for him, the defendant is entitled to absolution.”

In Gascoyne v Paul & Hunter 1917 TPD 170…, the court stated that:

“The question therefore is, at the close of the case…, was there a prima facie case against the defendant…, in other words, and, was there such evidence before the court upon which a reasonable man might, not should, give judgment against Hunter?”

In the case of United Air Charters v Jarman 1994 (2) ZLR 341 (S) it was held that:

“The test in deciding an application for absolution from the instance is well settled in this 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. See Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 5D-E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B-E.”

In more recent times, in this jurisdiction, in the case of Delta Beverages v Onismo Rutsito SC42-13, an appeal against a High Court judgment dismissing with costs an application for absolution from the instance, the respondent sued the appellant for damages in the sum of US$20,051= and costs of suit on the basis that he had consumed a contaminated coca-cola beverage, and, that further inspection of the bottle had revealed a 'rusting iron nail and brackish foreign substances.'

The appellant was the manufacturer of the beverage in question and the question for determination by the court a quo was 'whether the appellant owed the respondent a duty of care to ensure that the product is safe, clean, healthy and fit for human consumption', or, alternatively, 'whether the appellant had negligently allowed the production and selling of contaminated coke.'

The court was satisfied that 'the respondent did not prove any damage such as would have founded a cause of action under the Law of Delict, and that, 'clearly, whatever distress or anxiety or nervous shock he may have experienced was transitory…, and, in the circumstances, the appellant had no case to answer and that should have been the end of the matter and absolution from the instance ought to have been granted.

At page12 of the judgment, on the alternative claim based on negligence, the court said:

“I am satisfied that for the additional reason that negligence was not proved and a causal link shown between the beverage in question and the appellant, absolution should have been granted.”

See also Mining Industry Pension Fund v DAB Marketing (Private) Limited SC10-11.

Could this court find for the plaintiff on the basis of the evidence which he led?

The test established in terms of the numerous decided cases necessitates an analysis of the evidence led by the plaintiff before he closed his case, and a determination of whether, on the basis of that evidence, the court could give judgment in favor of the plaintiff. In other words, was the evidence enough? Was it sufficient? Did it support the plaintiff's averments with sufficient clarity and particularity?

The degree of proof required is 'proof on a preponderance of probability'.

The plaintiff told the court that his level of education was Ordinary Level. From his testimony, and his responses under cross-examination, the court surmised that he was well aware of the legal implication of the documents that he signed on 19 and 20 January 2013 at the second defendant's offices. He authorized the second defendant to pay the panel beaters for the repairs. He took delivery of his vehicle and indemnified the second defendants against any further claims.

The plaintiff's averments that the documents were not witnessed therefore invalid were not believed by the court. The plaintiff reads and understands English very well. He is so proficient in English that he conducted his own case before the court. He could have endorsed on the documents that he was signing conditionally. He chose not to because the defence he is raising is an afterthought.

The plaintiff signed release forms and indemnity forms before the second defendant with full knowledge of the implications.

The plaintiff's evidence that the first defendant promised him that his vehicle would be repaired within a day after the accident was not believed by the court. He testified that the vehicle made it to the panel beaters by 3 o'clock on the day of the accident. It is difficult to believe, and not supported by the evidence, that the first defendant intended that the plaintiff would have his vehicle, fully repaired, by 3pm the next day after the accident. The plaintiff admitted that the damage to the vehicle was extensive.

A reasonable man on the Mabvuku commuter omnibus would surely not believe that such an extensively damaged vehicle would be repaired within twenty four hours.

The tragedy in this matter is that the plaintiff's conduct of his own trial was a farce and an exercise in futility. He clearly had no idea about the rules of evidence otherwise he would have tendered the necessary documentary evidence required to buttress his case, especially considering that he did not intend to call any witnesses other than himself.

He testified that the vehicle was assessed, but, in the absence of the assessment report, the court was unable to independently verify his claim as to the value of his vehicle. The assessment report, as well as the report allegedly done by the Automobile Association of Zimbabwe, were not discovered in terms of the Rules.

The plaintiff was hamstrung by his ignorance of the High Court Rules.

He failed to place the relevant evidence before the court, which was in his possession, but which he had not discovered in terms of the Rules.

In this opposed matter before me, I find the African proverb that “the best way to eat an elephant in your path is to cut him into little pieces,” metaphorically apt in this instance (I assume, of course, that the proverb relates to a dead elephant). I say this because in order to decide on the matter, at whose nub is the transfer of certain property to the applicant, I must first unpack and deal, bit by bit, with the story within a story that stands in the path of transfer.

An equally rich African proverb that gives context to the dispute, also inspired by the elephant, is one that says “one sees all sorts of knives the day an elephant dies.”

The property at the heart of the dispute is described as Stand Number 1006, Remainder of Hilton Subdivision of Waterfalls of Salisbury measuring 1,987 square metres held under Deed of Transfer No. 7666/2001. The first applicant, Eunice Dzangare (hereinafter referred to as “Dzangare”), bought this property as an undeveloped piece of land through a company called Wish Properties (hereinafter be referred to as “Wish”), then represented by its Director Biriam Wabatagore who is since deceased. This sale is not disputed by Wish Properties. It is confirmed by the late Mr Wabatagore's widow, Audrey Wabatagore, who is now the director of Wish Properties.

At the time of the agreement of sale, and upon payment of the purchase price, Eunice Dzangare was given vacant possession by Wish Properties in 2003. She has remained in undisturbed possession of the immovable property from that time and has since developed the property by constructing a dwelling house.

The problem arises from the fact that the property was not transferred.

She has tried to obtain transfer but it became necessary to join Wish Properties to this application because the agreement with Champion Constructors was not with her but with Wish Properties.

Wish Properties says it had bought the immovable property from the first respondent, Champion Constructors (Private) Limited (hereinafter referred to as “Champion”) under a written agreement of sale. Champion Constructors held a Parent Deed to a property which it was in the process of subdividing into various Stands which included the one that Wish Properties had purchased and subsequently sold to Eunice Dzangare.

The late Mr Wabatagore was also a legal practitioner. Mrs Wabatagore says that the agreement of sale between Wish Properties and Champion Constructors unfortunately cannot be found as the document was misplaced in the takeover of her late husband's law firm. However, she draws on various annexures in support of her claim of the existence of an agreement. The annexures consist largely, though not exclusively, of various correspondence between Wish Properties and Champion Constructor's then legal practitioners, Messrs Mandizha and Partners who were handling the issue of the subdivision of the principal property into Stands.

What Wish Properties seeks is that the sale to it by Champion Constructors be recognised so that it, in turn, can transfer the Stand in question to Eunice Dzangare to whom it has since ceded the property. Wish Properties has ceded its rights to transfer to Eunice Dzangare.

At the core of Wish Properties legal argument is that it has proven its case on a balance of probabilities, this being the standard required in civil proceedings. It regards the denial of the sale by Champion Constructors as an afterthought, spurred by a quest to capitalise on the fact that the agreement cannot be found. Wish Properties points to the improbability that there was no agreement of sale, to Eunice Dzangare's occupation of the property for over nine years, at the very minimum, without any challenge.

Champion Constructor's director is Elizabeth Chidavaenzi and is the second respondent in the matter. She is opposed to the transfer on the basis of Wish Properties failure to produce the agreement of sale.

She says that Wish Properties should be put to the strictest proof of the alleged agreement of sale and that the documents that Mr Wabatagore's widow relies on do not prove the existence of an agreement of sale. The cases of H & Dwitkopipen Agencies & Fourways v De Sousa 1971 (3) SA 941 TPD^; and U-Freight Euromar (Private) Limited v Emmanuel Mutebuka HH05-03 were cited in support of the contention that the authenticity of documents must be proven.

She also argues that, at the very least, the first applicant would have had copies of the agreement of sale.

The undisturbed occupation by Eunice Dzangare is denied on the basis that it has been subject to litigation since 2012 when, instead, of considering an offer to purchase, she instituted legal proceedings. It is also said that Wish Properties failed to prove critical elements of an agreement of sale such as the purchase price and whether it was paid.

At the heart of her legal argument is that the order sought against Champion Constructors, as the respondent, is not competent.

Champion Constructors also premises its argument on the rei vindicatio doctrine, aimed at protecting ownership and based on the principle that an owner cannot be deprived of his property without his consent. Alspite Investments (Private) Limited v Tendai Westerhooff HH99-09; Hwange Colliery Co. v Savanhu 2013 (1) ZLR 555 (H); Hamtex Investments (Private) Limited v King 2012 (2) ZLR 334 (H) were cited in support of the operation of this principle.

She also argued that the cession by Wish Properties of personal rights to the property in question was irregular as it was effected after pleadings had closed and without the approval of the court.

Wish Properties, on the other hand, argue that Champion Constructors's consent was not necessary to effect a valid cession. On its behalf, counsel drew on section 11(1)(v) of the Deeds Registries Act which provides an exception in that the court may validly effect transfer direct to a third person although section 11(2) provides that liability for any duties still remains. He also emphasised that in terms of section 11(1)(a) and (b) departures of transfers of land and cessions from following the sequence of the successive transactions is permitted in exceptional circumstances.

In view of the above, the first issue to be dispensed with in order to decide whether such transfer should be effected against this backdrop of its legal permissibility is whether the explanation for the absence of the agreement is acceptable.

The widow's explanation is that the document was most probably lost in the process involving the take over of her husband's law firm. The circumstances that led to the misplacement of the document are believable and highly probable. Papers and documents may indeed have been moved or became inadvertently destroyed in the takeover of his practice following the death of Mr Wabatagore. Documents do sometimes get lost in lawyers' offices - even without the spectre of re-arrangements necessitated by death. The explanation is therefore not one that stretches the imagination.

As such, secondary evidence can, in my view, be examined to establish whether there was an agreement.

In the case of Absa Bank v Zalvest Twenty (Pty) Limited & Anor 2014 (2) SA 119 (WCC) it was accepted that secondary evidence can be produced of the existence of a contract where the contract had been destroyed or lost. This was explained as follows…,.:

“In regard to the substantive law of evidence, the original signed contract is the best evidence that a valid contract was concluded and the general rule is thus that the original must be adduced. But there are exceptions to this rule, one of which is where the original has been destroyed or cannot be found despite a diligent search. In such a case, the litigant who relies on the contract can adduce secondary evidence of its conclusion and terms (see Singh v Govender Brothers Construction 1986 (3) SA 613 (N) at 616J-617D). There are, in modern law, no degrees of secondary evidence (ie one does not have to adduce the 'best' secondary evidence). While a photocopy of the lost original might be better evidence than oral evidence regarding the conclusion and terms of the contract, both forms of evidence are admissible once the litigant is excused from producing the original.”

Placing the burden on Mrs Wabatagore, as the second applicant's director in this case, to prove that there was an agreement and to recount its terms, aims at reducing the dangers of fraud. I am, however, cognisant of the fact that her late husband was the actual party to the contract and that the only other party who would have the contract is the defendant who denies the existence of the contract.

I examine the evidence chronologically in terms of how it builds up the story or otherwise of the existence of an agreement.

On 7 August 2003 the deceased's law firm, Wabatagore and Company, wrote to Messrs Mandizha & Partners, Champion Constructor's conveyancers, enquiring about the transfer of three Stands from Champion Constructors to Wish Properties. One of these Stands was the Stand in dispute.

The letter indicated therein that the Stands had since been sold and sought to find out whether the Stands had been fully paid for. It must be remembered that this was at the height of the hyper-inflationary environment and it was not unusual for parties to seek clarifying on top ups of what had been paid particular where payment had been in instalments and where transfers were still outstanding. It was also clearly indicated in the letter of 7 August that one of the purchasers desperately needed to start construction.

This letter of 7 August was followed up with another one on 7 November 2003 expressing concern at the non-response to its enquiries and reiterating, again, that the Stands, identified as 1021, 1006 and 1046 had been sold. The letter, like the previous one, was copied to Eunice Dzangare, one Diana Mapingure and one Mercy Moyo. Another letter written on 3 March 2004 again lamented that no response had been received to any of the above-mentioned letters. Again, it demanded to know the transfer requirements for the three Stands.

Notably, Champion Constructors key reaction to this correspondence is not a denial that Messrs Mandizha & Partners were its lawyers. Instead, the denial is premised on whether the letters were ever received at Mandizha and Partners.

Champion Constructors also points out that the threat to report to the Law Society was not carried out.

Further, Champion Constructors says that confirmatory affidavits should have been sought from Mr Mandizha to prove service of these letters.

Champion Constructors also queries why Wish Properties was still asking if it owed anything if it had paid.

I have already stated there was nothing unusual about this enquiry in a hyperinflationary environment of the time. To bolster this view, on 11 May 2004, Champion Constructors itself wrote to Mr Wabatagore advising him that the long-awaited capital gains tax, presumably the cause of the long delay, had now been received from ZIMRA. The letter also outlined the amount that was outstanding, which Champion Constructors explained as owing to the accumulation of administrative costs as a result of inflationary costs for service maintenance. It asked every client on the Uplands Scheme to pay a stipulated additional amount to defray unforeseen costs.

In my view, this further proves that the enquiries to Messrs Mandizha and Partners had been on point.

Looked at in totality, the correspondence is convincing and the letters corroborate each other. They indicate that a sale had indeed taken place between Champion Constructors and Wish Properties and that there was every effort to follow up on transfer. Champion Constructors attack of the letter of May 11, 2004 on the grounds that it was a general circular and that it should, in any event, have been addressed to Wish Properties, and not to Mr Wabatagore, makes little sense since Mr Wabatagore was the Director of Wish Properties who had represented the latter in the agreement.

Furthermore, I agree with counsel for Wish Properties argument that once Mr Wabatagore had received assurances from Champion Constructors concerning the capital gains tax and outstanding sums to be paid, there was no reason to believe that the property would not now be transferred. The letter sufficiently affirms that impediments to transfer had been addressed. The allegation that the letter is possibly fabricated is not supported by any evidence.

Champion Constructors also disputes the Certificate of Development as having been issued on misrepresentation, but, again, nothing tangible is said in support of that contention.

Champion Constructors averments and challenges of these annexures are no more than vague objections.

The nature and content of the letters speak far more loudly and convincingly in support of a sale to Wish Properties than Champion Constructors bare denials of the existence of an agreement.

The inherent improbability of the sale not having taken place to Wish Properties is also supported by the fact that no evidence was placed before this court which shows that Champion Constructors has ever made any effort to vindicate its rights. Instead, at every turn, it has been Eunice Dzangare who has persistently taken action to enforce her rights.

The more recent letter, of August 2013, by Champion Constructors to the Sherriff, in which it indicated that it had long since subdivided the whole property and sold all Stands to individual owners, most who have already developed the Stands, is pertinent.

Champion Constructors cannot now simply wish this letter away because it suits it on the basis that was it written in respect of its Stands which do not form part of this litigation. It is a self-serving denial. Given its position that there was no agreement with Wish Properties regarding the Stand in question, it could just as easily have produced cogent evidence relating to whom it sold the Stand in question to and when.

Champion Constructors would however have had to explain how and why Eunice Dzangare has been on the property since 2003 with no disturbance.

To my mind, Champion Constructors is clearly taking advantage of the lost agreement.

Cases of developers failing to pass transfer have become an increasing headache before the courts. Where evidence supports, on a balance of probabilities, that the property in question was sold to a party, and the sale concluded, the court's primary concern is to ensure that justice is done between the parties.

Rather than lie about what she does not know, Mrs Wabatagore stuck to attesting to facts known to her and to producing what secondary evidence was in her possession.

On a balance of probabilities, the evidence averred points to an agreement between Wish Properties and Champion Constructors. In the circumstances, I conclude that the property should be transferred to Eunice Dzangare.

I grant the order as follows:

1. The application be and is hereby granted.

2. The first respondent shall sign transfer papers and take all necessary steps to pass transfer of the property called Stand 1006 of Certain Piece of Land Situate in the District of Salisbury, called remainder of Hilton of Subdivision A of Waterfall measuring 1,987 square metres, held under Deed of Transfer No. 7666/2001, into the first applicant's name, within 7 days of the service of this court order upon them, failing which the Sheriff for Zimbabwe or his lawful Deputy be and is hereby authorised to sign all transfer papers on the first respondent's behalf.

3. The second respondent shall pay costs of this application on a legal practitioner and client scale.

I believe the year 1989 is a good starting point for the story of one John Chidyiwa, the Managing Director of the plaintiff, and the defendant. Then, the two knew each other as work-mates in the Department of Customs and Excise (as it was then known).

In or about 1993, the two became quite close friends. The friendship grew so close that members of John Chidyiwa's family knew members of the defendant's family and vice versa. The defendant could visit John Chidyiwa's home in Chivhu in the absence of John Chidyiwa and the reverse would also happen. As of May 1997, the friendship between them could be described as excellent. They then went into business together.

In or about May 1997, two Italian nationals approached John Chidyiwa (alone or in the company of the defendant), and encouraged him to start a freighting company. Urgent Services (Private) Limited came into existence. The directors of this company were one Marinella Cernuschi (one of the Italians), John Chidyiwa, and the defendant.

A dispute arose between the parties as to when and how the defendant became a director of Urgent Services (Private) Limited. For the purposes of determining the real dispute between the parties, it is not important that I make a finding in respect of this dispute. In my view, it is sufficient to note that as of May 1997, when Urgent Services (Private) Limited submitted its register of directors and secretaries to the Registrar of Companies, the defendant was listed as a director of the company.

In due course, Urgent Services (Private) Limited became the plaintiff through a change of name in accordance with the provisions of the Companies Act [Chapter 24.03]. John Chidyiwa assumed the position of Managing Director of the company while the defendant became the Operations Manager.

In or about September 1998, six haulage trucks and six trailers were purchased. Three of each were registered in the name of John Chidyiwa with the remainder registered in the name of the defendant. A few days after each registration, the registration of some of the trucks and trailers were amended to add, at the end of each name, the words “trading as U-Freight”.

The circumstances of the purchase and registration of these trucks and trailers form the centrepiece of the legal dispute before me…,.

In or about April 2001, the defendant and the plaintiff parted company. The defendant tendered a letter of resignation, and, upon leaving the plaintiff, indicated, by word and by deed, that he regarded three of the trucks and three of the trailers as his personal property. As a result of this indication by the defendant, few skirmishes occurred on the highways during which trucks were “hi- jacked” by one party from the other, resulting in a number of applications in this and the Magistrates Court, culminating in this action.

The plaintiff has, throughout these applications, maintained that the entire fleet of six trucks and six trailers are its sole and absolute property....,.

I now turn to consider what I believe are the two key issues between the parties;

(a) The first one is whether it was the plaintiff that purchased and acquired ownership of the six trucks and six trailers.

(b) The second is what effect, if any, the registration of the motor vehicles in the individual names of the two directors had on the ownership of the trucks and trailers.

In considering this matter, I have put the onus on the plaintiff to prove that the funds used in purchasing the trucks and trailers were its funds. I have done so in light of the denial by the defendant that such funds belonged to the plaintiff - which denial has had the effect of putting into issue the source of the funds.

In doing so, I have been guided by the general principle of civil procedure to the effect that he who avers must prove.

According to the pleadings filed of record, the plaintiff is averring that it purchased the trucks and trailers using its funds. Applying the general principle on the burden of proof, the applicant therefore bears the onus of proving, on a balance of probabilities, that the funds used in purchasing the trucks and trailers were its own, if it is to succeed in its action.

It is common cause that the defendant went to Dubai towards the end of September 2000 where he collected the money used in paying the deposit for the purchase price of the six trucks from Tyco International. It is further common cause that the sum of US$50,000 was paid to Tyco International as a deposit for the trucks. The balance, in the sum of US$100,000 was transferred into the account of Tyco International by way of telegraphic and Bank transfers emanating from Dubai.

The plaintiff has alleged that when the defendant went to Dubai, he was going to a client of the plaintiff's to collect the money. The evidence to support this contention came from John Chidyiwa, the plaintiff's Managing Director. In this regard, John Chidyiwa testified as follows:

The plaintiff had some money in Dubai. It was owed this money by a client who visited the plaintiff in Harare. He then invited John Chidyiwa to accompany him back to Dubai to collect the money in person. He would have gone himself with the client to collect the money had he not been told that Dubai is very hot. He has a nose-bleeding problem and the hot weather would have exacerbated the problem. He then sent the defendant to collect this money.

Upon his return, the defendant gave him US$50,000. A further sum of US$95,000 was telegraphically transferred into the account of Tyco International on the instructions of the defendant in his capacity as the plaintiff's Operations Manager. A final Bank transfer was effected in favour of Tyco International in the sum of US$5,000 to complete the payment of the US-dollar component of the purchase price for the six trucks.

Regarding the payments that were to be made in local currency, the plaintiff issued a cheque from its Zimbank Account in the sum of $1,443,607=80 for all the six trucks. The monies in this account were all the funds of the plaintiff to which the defendant had not personally contributed in any way.

On this same issue, the defendant's evidence was as follows:

He went to Dubai on the invitation of a personal client, one Ayman Mohamed Suleman (“Ayman”). Ayman owed him the sum of US$230,000 as commission for the sale and export of katambura grass.

Ayman paid for his travel to and from and accommodation in Dubai. He picked up his ticket to Dubai ex Johannesburg Airport to which he had flown at his own expense. In Dubai, he was accommodated at a hotel where Ayman's wife is employed. Ayman gave him the sum of US$65,000 in cash that he brought into the country. Of this money, US$50,000 was paid over to Tyco International while the balance was illegally changed into local currency through unauthorised dealers at above the prescribed exchange rate. It was sold on the “black market”. The proceeds from this illegal exchange were paid into the account of the plaintiff and used to pay for the local currency component of the purchase price of the trucks.

The first factual dispute that I have to deal with is the identity of the person in Dubai who gave the money to the defendant. In the same breath, it is important to determine what the payment was for.

In determining this issue, I take note of the fact that in his evidence in chief, John Chidyiwa did not refer to the identity of the person or persons from whom the money had to be collected. His affidavits filed in case no HC4464/01 are equally silent on this issue. Indeed, he does not indicate the name of the client he was supposed to have accompanied to Dubai to collect the money were it not for his nose-bleeding problem.

Under cross-examination, he testified and maintained that one Ibrahim of the Hayat Al Gad Agricultural Institute made the payment to the defendant for a debt arising out of the sale and export of katambura grass.

To support his contention in this regard, John Chidyiwa made reference to two documents. The first one is an alleged fax from the defendant dated 29 August 2000 and addressed to Khalfan Malfalhil, and marked for the attention of one Mr. Ibrahim. The fax is not signed by the defendant but by someone purporting to sign on his behalf. In the fax, the defendant is informing the recipient that 10,000 kilograms of katambura grass has been sourced and is giving directions as to how the proceeds from the export of the grass should be handled.

The plaintiff has also produced a copy of a fax from one Khalfan M Alfalahi of the Hayat Al Gad Agricultural Institute, dated 10 February 2001 and addressed to the defendant. It purports to be in response to the first document allegedly sent by the defendant in August 2000. In the fax, the sender is advising the defendant as to how certain payments were made for and on behalf of the defendant.

At this stage, I wish to comment briefly that a total of six bundles of documents were prepared by the plaintiff and produced with the consent of the defendant. Amongst the pages making up the bundles were copies of some of the documents. The two documents that I have referred to above were copies and not the originals of the documents. The defendant took no issue with the production of these copies. I accordingly admitted the copies of the documents into evidence in accordance with the provisions of section 11(a) of the Civil Evidence Act [Chapter 8.01].

I now turn to evaluate the evidence before me on this issue.

Firstly, I shall deal with the documentary evidence produced by the plaintiff. While copies of the documents were admitted into evidence, with the consent of the defendant, they were not proven.

It is the law relating to the proof of documents that are not public documents that their authenticity must be proven. The authors HOFFMAN & ZEFFERTH observe that evidence is normally required to satisfy the court as to the authenticity of any tendered document.

In H & Dwitkoppen Agencies & Fourways Est v De Sousa 1971 (3) SA 941 TPD it was held…, that:

“The law in relation to the proof of private documents is that they must be identified by a witness who is either;

(i) The writer or signatory thereof; or

(ii) The attesting witness, or

(iii) The person who found it in possession of the opposite party; or

(v) A handwriting expert, unless the document is one which proves itself,….”

In the matter before me there was no admission as to the authenticity of the documents tendered by the plaintiff. The only consent was to the admissibility of copies in the place of originals.

The defendant did not sign the first document. The person who allegedly signed the document on his behalf was not called to authenticate the document. On this basis, although the document was admitted into evidence, I find that it has not been proved and is therefore not evidence before me.

The same faults can be found with the second document. It has not been proved. No evidence has been led to show that it is authentic. The author of the document was not called to testify. The person who would have custody of the document was not identified and called to testify. John Chidyiwa merely produced the document as part of the bundles I referred to earlier on. No legal basis was laid for me to accept the document as evidence. I therefore reject it as not being authentic.

Assuming that I have erred in rejecting the two documents as evidence on the basis that they have not been proved, I would proceed to reject the evidence in the second document as being hearsay evidence.

The person who purportedly wrote the document was not called as a witness in the trial before me. The document was tendered, not to prove that there was correspondence between the defendant and Ibrahim, but to prove that Ibrahim paid the amounts mentioned in that document to the defendant. The veracity of the evidence purportedly given by the document cannot be tested in any way.

In my view, nothing would offend more against the rule against hearsay evidence than accepting the documents as proof of payment of money to the defendant by Ibrahim.

Regarding the first document, even if I was wrong in holding that it has not been proved, it cannot be said to be evidence that 10 tons of katambura grass were exported to the recipient. The document merely indicates that 10 tons of grass had been found. Additional evidence would be required to show that the 10 tons of grass were actually exported after the document had been sent.

Finally, the first document is clearly false. It purports to intimate that the plaintiff exported 10 tons of katambura grass to Hayat Al Gad Agricultural Institute. The contents of the document are in direct contradiction to the oral evidence of John Chidyiwa that only 8 tons of grass were exported to Hayat Al Gad Agricultural Institute….,.

Regarding the telegraphic and money transfers that were effected in favour of Tyco International by a person in Dubai, John Chidyiwa testified that he did not know who was specifically instructed to do so by the defendant. He maintained that the plaintiff had some clients in Dubai who owed it money.

The plaintiff maintained that it did export and sell some katambura grass to various clients in Dubai, including the Hayat Al Gad Agricultural Institute. Bundles and bundles of documents were tendered in evidence in support of this averment.

At this stage, I wish, again, to briefly comment on the manner in which the plaintiff tendered its documents. This may have been by design or by sheer inadvertence.

No effort was made to link the documents so that they tell a complete story of how a particular load of grass was sourced and then exported, resulting in payment being received or credited to the account of the plaintiff. The documents were not bound in the bundles I have referred to in any discernible order meant to give them high probative value. The plaintiff has only itself to blame for this state of affairs.

In the result, I have documents tending to show that the plaintiff purchased certain tons of grass from individual sources, it exported some of the grass for itself and exported some for its clients. On the basis of such poorly presented evidence, even the plaintiff's Managing Director has not been able to testify as to how much grass the plaintiff exported for its own benefit and for which its clients in Dubai owed it money.

I deal in particular with the alleged export of grass to Hayat Al Gad Agricultural Institute prior to September 2000. The evidence from John Chidyiwa was to the effect that only 8 tons or 8,000kgs of grass was exported to Hayat. This, he admitted, in cross-examination, and after perusing the voluminous exhibits tendered at trial.

I have also perused the exhibits and have satisfied myself that there is no other evidence in the exhibits other than the export admitted to by the plaintiff. In terms of exhibit 2…, the 8,000 tons of grass exported to Hayat Agricultural Institute were only shipped on 26 November 2000. This was after the return of the defendant from Dubai with the money. In any event, it was the evidence of John Chidyiwa that all the exports done by the plaintiff to Hayat were paid for through the Bank and the relevant CD1 forms acquitted. According to the plaintiff's evidence, there was therefore no money in Dubai from Hayat for the defendant to collect.

It is my finding that the plaintiff's evidence on the source of the money in Dubai is unreliable. It is contradictory and inconsistent. For instance, the plaintiff has tendered exhibits on pages 3 and 14 of exhibit 5, being two airway bills relating to the alleged export of 8 tons of katambura grass to Hayat on 20 September and 11 October 2000, respectively. The two exhibits are in direct contradiction with exhibit 2 page 3 which indicates that the 8 tons of grass were shipped to Hayat on 26 November 2000 - after the return of the defendant from Dubai.

No effort was made to explain this discrepancy in the dates.

Further, the plaintiff's Managing Director's evidence, that only 8 tons were exported to Hayat, is in direct contradiction to exhibits at pages 18 and 24 of exhibit 1 tending to suggest that 10 tons were exported to this client, earning the plaintiff a gross of US$135,000.

Again, no effort was made to explain this difference.

It is my finding that some of the documents were tampered with and then tendered as proof that the plaintiff exported grass to clients in Dubai.

In view of the issues between the parties, it was unnecessary for the plaintiff to tender exhibit 2 page 9 which is clearly a tampered-with copy of exhibit 5 page 20. The plaintiff deliberately tendered as an exhibit a document that had been tampered with regarding the details of the exporters and consignee of the grass to give the impression that it was the one exporting the grass.

On the basis of the unsatisfactory nature of the evidence tendered by the plaintiff on this issue, I formed the distinct impression that the plaintiff tried to put together documents that it thought would support one allegation at a time, without taking care to see whether or not such evidence contradicted evidence already tendered or to be tendered on another issue. This it could only do with false evidence.

While the plaintiff may have had clients in Dubai to whom it had sold and exported katambura grass, there is no evidence before me that any one of those clients made the payment to the defendant in September 2000. On a balance of probabilities, I find that the source of the money in Dubai was one Suleman who paid it over to the defendant in the circumstances alleged by the defendant....,.

In an effort to explain why the vehicles were registered in the names of its directors, the plaintiff sought to produce a document purportedly entered into by and between the directors, agreeing that the vehicles were the property of the plaintiff notwithstanding the registration.

The defendant denied signing such an agreement and alleged that the plaintiff had created the document for the purposes of the trial.

It is my finding that the document is not authentic. 

It was not concluded on the date allegedly appearing on its face. One of the signatories to the document has denied signing the document and the other was not called to give evidence authenticating the document. Further, I find the circumstances in which the document is alleged to have been made unconvincing. 

It is on the basis of these unsatisfactory features of the documentary evidence that I reject it.