The defendant called two witnesses namely...., who were employed as General Manager Distributions: Branch Sales and Services and Business Relationship Manager, respectively....,. The witness categorically indicated how the plaintiff utilized all the funds in his account..., the witness also evinced that it was also unlawful to do what the plaintiff says the defendant's employee undertook. The Reserve Bank of Zimbabwe Guidelines applicable at the time..., did not allow the conversion of Zimbabwe Dollar investments into foreign currency. All foreign currency required by individuals to be bought using Zimbabwe Dollars had to be authorized by the Reserve Bank.This testimony was substantially corroborated by that of...,.

The testimony of Agasi Wala was largely a reflection of his personal opinion.

It was not based on personal experience as he was not part of the management team that negotiated the sale or disposal of the housing units. He did not sit on the Board where the issue was debated and resolved. He did not have access to the minutes of the Board where the issue was recorded. While he has been chosen to be the mouthpiece of the defendant, he cannot testify as to the intention of the defendant when the two agreements were concluded. He cannot know what the defendant intended as he was not part of the defendant's representatives when such decisions were being made….,.

It is trite, in my view, that it is not every employee who can give evidence on behalf of a corporate body such as the defendant which has a Board of Directors and an Executive Management. The employee who gives evidence on behalf of a corporate litigant must be suitably placed within the corporate governance structures of the defendant to have knowledge of the facts that they testify of. This knowledge can be derived from the employee's personal contact with the transactions in issue or from their position in the corporation that allows them access to the memories of the corporate body.

Agasi Wala had neither.

On his testimony alone, I therefore cannot find that it was the intention of the defendant to enter into separate lease agreements with the same employees that it had agreed to dispose of its housing units to. He has no personal knowledge of what the defendant's intention was. He is not so placed within the structures of the defendant to have known from accessing records as to what the intention of the defendant was.

The plaintiff issued summons against the defendant on 10 September 2009 claiming the following:

1. Payment of the amount of US$52,579=51 with interest thereon capitalized monthly at the rate of 12% per annum from 7 September 2009 to date of payment in full;…,.

To the application was attached an affidavit deposed to by one Sinikiwe Elizabeth Mukondiwa (“Mukondiwa”), the plaintiff's Back Office Operations Manager. In her affidavit, Mukondiwa deposes that she is duly authorized to depose to the affidavit on behalf of the plaintiff and that the facts deposed to in the affidavit are within her personal knowledge.

Sinikiwe Elizabeth Mukondiwa proceeds to state, boldly, and baldly in my view, that she verifies the plaintiff's cause of action in the matter and the amount claimed by the plaintiff. She, however, does not state how the amount claimed is arrived…,.

In opposing the application, the defendant alleged that…, the amount of the claim was incorrectly stated as he borrowed $50,000= and not the $52,579=51 that is being claimed….,.

While I am not determining the application for summary judgment itself, it appears to me that it is inadequate for a deponent to an affidavit verifying the plaintiff's claim and amount claimed, if any, to simply state boldly and badly that they verify the claim and the amount claimed without giving details. Verifying the claim, in my view, denotes more than restating the claim and amount claimed in the same language employed in the pleadings. It requires, in the case where an amount is claimed, to break down the amount, where appropriate, and to show how the total amount of the claim is arrived at, especially in matters where there is an accounting element.

In my view, had the deponent to the verifying affidavit in this matter correctly verified the claim and detailed how the amount of the claim was arrived at, appropriating the payments already made by the defendant to either capital or interest, the plaintiff would have realized that the amount of the interest claimed in the summons was understated and may have taken corrective steps much earlier.

The plaintiff did not testify...,. The plaintiff's son testified...,. His mother is the defendant's sister.

He alleged that he had personal and intimate knowledge, of his father and uncle's business operations.

The plaintiff's son established, through the valuation reports...., the joint ownership of these four properties. This is apparent from the titled deeds that are part of these evaluation reports that were compiled..., by a registered, and experienced, valuator...,.  

It was the evidence of Nicholas Bakaris that Tawona of Galway Estate was purchased by, and transferred to, the parties on 15 June 1989...,. The parties obtained a permit, on 30 September 1997, to subdivide the farm..., for residential and commercial development. He stated that, initially, he sold the thirty stands with the help of his sister and Andrew Brown of Instamac (Pvt) Ltd. The proceeds were banked into the Jewel Bank account held by the parties. The money was used to develop infrastructure at the site, and to purchase pipes for water and sewage reticulation, and bitumen for road construction.

The plaintiff's son relied on the table prepared by Anthony Derek Lamb..., as the basis for the plaintiff's claim for the partitioning of the four properties. The estimated values were first calculated in July 2007. These were updated for November 2007, in a bid to provide for the time value of money in our hyperinflationary environment...,.

Lot 4 of York of Galway Estate..., was transferred to the parties on 10 March 1989...,. Subdivision B of York of Galway Estate was transferred to the parties on 13 September 1989...,. Stand 244 of Mangula Township 2 of Lot 1 of Plateau, Mhangura was transferred to the parties on 20 June 1986...,.

The estimated value of the movable property was arrived at by Anthony Derek Lamb was...,. The accounts that were used to arrive at this figure were set out by Anthony Derek Lamb...,. The share of profit for each party is set out...,.

The plaintiff son's also relied on the information..., from TSW Project Managers and Consulting Engineers to arrive at the estimated cost of completing Tawona Phase One. The consultants used the Consumer Price Index (CPI), and the Old Mutual share price variation, to arrive at the estimated cost of $475 billion as at November 2007, using April 2007 base of $10 billion. They could not use the Consumer Price Index because the data for the months of May to July 2007 was not available.

This witness collated information which he either made available to, or was produced by experts whom he commissioned, to justify the mainstay of the plaintiff's claim. When Stand 244 of Mangula Township 2 Lot 1 of Plateau, Mhangura, was bought, he was ten years old. At that time, he could not have known the nature of the agreement that existed between the parties. It was clear that as a layman in the development project, the plaintiff's son relied heavily on the opinions of the experts that he engaged. He uncritically accepted those opinions, as demonstrated by his reliance on the table prepared by Anthony Derek Lamb. He accepted the use of the Old Mutual Implied Rate (OMIR) to calculate the time value of money in a hyperinflationary environment which characterizes the Zimbabwean economy. He accepted the valuations that were carried out by both Nicky Masaya and Trenly Miles. He paid a blind eye to the incongruous valuation by the experts which placed a worth of $80 billion on five and a half stands against $104 billion on one hundred and four stands. The basis for the disparity in value was that one was developed while the other was farmland, a distinction that, in reality, did not exist.

Counsel for the defendant, sought to persuade me to find that the plaintiff's son was arrogant, rude, evasive and self-opinionated.

I however found him to be malevolent and dishonest...,.

He ambushed the defendant by leading evidence that was divorced from his pleadings. The weaknesses in the expert evidence also affected his testimony.

The defendant was also represented by his twenty-four year old son, Nicholas Kattavenos, who was his only witness.

He was born on 28 January 1983.

He has always been involved in the running of his father's business since he was sixteen years old, and commenced to do so in his own right at nineteen years of age...,. His evidence rested on exhibit 12 and what his father told him...,.

When Lot 4 of York of Galway Estate, and Subdivision B of York of Galway Estate, were purchased in 1986, he was a toddler of three years of age. When they were transferred to the parties, in 1989, he was six years old...,. He was too young to understand the nature of the business relationship between the parties...,. The defendant's son was simply not privy to the arrangements between the parties...,.

The witness spoke with a forked tongue.

Counsel for the defendant accepted that the defendant was a poor witness. In my view, he was overawed in cross-examination.

The plaintiff is a male adult resident at House Number 2365 St Marys Chitungwiza. The defendant is the Minister of Defence cited in his official capacity.

On 14 November 2003, the plaintiff filed a suit against the defendant for damages in the sum of Z$500,000. The plaintiff alleged, that, on 19 March 2003 he was asleep at his mother's house, House Number 2365 St Marys Chitungwiza when he was awakened by a knock on his door. When he went outside in response to the knock, he was assaulted by members of the Zimbabwe National Army during the course and scope of their employment with the defendant. He therefore claimed damages in the sum of Z$500,000 as a result of the injuries he sustained from the assault.

At trial, the plaintiff amended his claim. He now claimed a total of US$685 made up as follows:

1. US$311 being damages for shock, pain and suffering.

2. US$187 being damages for loss of amenities of life.

3. US$187 being damages for contumelia.

The defendant denied that any member of the Zimbabwe National Army assaulted the plaintiff on the date in question. The defendant contended, that, the Zimbabwe National Army (herein referred to as “ZNA”) members were only deployed in the plaintiff's area of residence on 20 March 2003 up to 26 March 2003.

The issues for determination were essentially two, namely:

1. Whether the plaintiff was assaulted by members of the Zimbabwe National Army (ZNA); and

2. Whether the plaintiff is entitled to the quantum of damages as per summons as amended.

The plaintiff gave evidence after which he called his wife, Rossy Domingo, as his only witness. The defendant's case was testified to by Emmanuel Matatu. At the time of the incident in question he was the Brigadier General Operations based at the ZNA Headquarters.

The defendant's Managing Director gave evidence to the effect that his company relined the pool in accordance with the standard application for such product, as recommended by the manufacturer of the product, Cemcrete South Africa.

It is needless to say he is not qualified to give that kind of evidence because he was not present when the job was done. He therefore has no personal knowledge as to how his employees performed their duties. None of those employees who actually did the job was called to substantiate whether or not all the intricate procedures laid down in the Pool Start-Up Guide were followed.

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.

The plaintiff asserted that he entered into the agreement with the first and second defendants on the other hand through the agency of PMA Real Estate Agency (Pvt) Ltd.

The first defendant denied that he ever entered into an agreement of sale with the plaintiff. He denied authorising PMA Real Estate Agency to sell his rights and interests in House No.5706 Muroro Crescent Glen Norah B, Harare.

The first defendant, Zondai Chimbwanda, and the second defendant, Givemore Karimazondo, are joint holders of certain personal rights and interests in the property known as No.5706 Muroro Crescent, Glen Norah B, Harare in equal shares. As holders of equal shares in the said property they agreed between themselves to dispose of their rights and interests in the property. Pursuant to this understanding, the second defendant approached PMA Real Estate and granted them a mandate to sell the said rights and interests.

At the material time, the first respondent was out of the country in Botswana.

In completing the mandate to sell form, the second defendant endorsed both the first and second defendants names as holders of rights and interests in the property.

That form was however signed by the second defendant only.

PMA Real Estate Agency proceeded to advertise the property and the plaintiff expressed interest. On 16 August 2005, the plaintiff executed an irrevocable offer and acceptance form in which he offered a purchase price of $220 million. On 17 August 2005, the second defendant appended his signature to that form in acceptance of the offer as seller.

Thereafter, on 18 August 2005, an agreement of sale was drawn up by PMA Real Estate Agency. The agreement of sale was executed by the plaintiff and the second defendant.

The plaintiff paid a deposit of $214 million to PMA Real Estate and the balance was to be paid in instalments.

The purchase price was subsequently revised upwards to Z$260 million.

The plaintiff paid the balance of the purchase price to PMA Real Estate Agency. The agreement of sale was amended to reflect the new purchase price of Z$260 million (see exb. 5).

It is common cause that when the parties entered into the agreement of sale they knew that the agreement was conditional on the first defendant ratifying the agreement upon his return from Botswana.

The first and second defendants subsequently sold the same rights and interests in the property in question to the third defendant, in September 2005, for the price of Z$350 million.

The third defendant duly paid the purchase price and has since taken occupation of the property.

His effort at obtaining cession was stalled when PMA Real Estate Agency advised the fourth respondent that the same property had been sold to the plaintiff and so no cession should be effected.

The plaintiff therefore brought this suit against the first and second defendants seeking:-

(1) Cession of Stand No.5706 Muroro Crescent, Glen Norah B, Harare into his name, alternatively;

(2) The sum of Z$15 billion being the cost of a house similar to Stand 5706, as at the date of the summons, being 14 November 2007.

The first defendant denied that he had ever agreed to the purchase price purportedly paid to PMA Real Estate by the plaintiff and he also contended that he never ratified the agreement of sale.

The second defendant, in his plea, conceded that he had entered into that agreement conditional on the first defendant ratifying it.

The issues for determination were essentially three, namely:-

(1) Whether there was a binding agreement of sale between the plaintiff and first and second defendants or not;

(2) If the answer to the above is in the affirmative, whether the third defendant was himself an innocent third party purchaser.

(3) If so, who between the two purchasers has dominant rights over the property in dispute.

It is pertinent to note that a conditional sale can only be valid/binding where the condition precedent has been fulfilled.

It is the fulfilment of the condition that gives life to such an agreement.

In casu, the plaintiff and PMA Real Estate were made aware that whatever they were entering into with the second defendant was conditional upon the second defendant ratifying such agreement.

In this regard, it may be noted that ratification is the act of adopting a contract or other transaction by a person who was not bound by it originally: see Osborne's Concise Law Dictionary, 6th Edition, by J. BURKE.

The prerequisite of ratification may be stated as follows:-

“1. The contract must be professedly made on behalf of the principal.

2. There must be a competent principal at the time of the contract.

3. The contract must not be void.

See CHESHIRE, FIFOOT and FURMSTAN's Law of Contract, 11th Edition…,.

Ratification may be express or tacit. Ratification may be implied from an act or conduct showing an interest to adopt the contract.

In casu, the plaintiff alleged that the first defendant ratified the agreement of sale that had been entered on his behalf as joint-holder of rights and interest by the second defendant.

In support of his case, the plaintiff gave evidence and called two witnesses from PMA Real Estate Agency, namely, Simon Mukondo and Jerry Ndemera.

The first defendant gave evidence. The second defendant did not avail himself for trial though he had participated in the proceedings up to the pre-trial conference stage.

In his evidence, the plaintiff alluded to the fact that he himself never came into contact with the first defendant. His assertion that the first defendant ratified the agreement of sale was based on reports he received from PMA Real Estate Agency. He thus could not vouch for certainty that the first defendant, either by word of mouth or in writing, ratified the agreement.

All the documentary exhibits he tendered in support of his case did not have the first defendant's signature.

The conduct that he could only refer to was again based on reports he received from PMA Real Estate that the first defendant had given his consent to the agreement of sale subject to an upward increase in the purchase price.

He had no direct evidence of the first defendant ratifying the Agreement of Sale.

Mr Simon Mukondo gave evidence next. He is a co-shareholder in PMA Real Estate Agency. He is also the Principal Registered Agent of PMA Real Estate Agency.

His evidence was to the effect that PMA Real Estate Agency was given mandate to sell by the second defendant. The second defendant had made it clear the rights and interests were jointly held. That mandate to sell was signed by the second defendant as seller. The co-holder of rights and interests, the first defendant, did not sign the mandate to sell and did not, in his own right, give such mandate.

The second defendant did not provide a power of attorney, or some other written authority, from the first defendant, for him to dispose the first defendant's rights and interests in the property in question.

Despite this omission, PMA Real Estate Agency proceeded to advertise and sell the rights and interests as instructed by the second defendant. This, PMA Real Estate did on the second defendant's word that he had such mandate and that the first defendant would ratify the agreement of sale upon his return from Botswana.

The agreement of sale was executed on 18 August 2005.

It was Mr Mukondo's evidence that on the next day after execution, Mr Jerry Ndemera and the second defendant approached him in his office. They advised him that the two of them had been in touch with the first defendant on the phone who was still in Botswana. They advised that the first defendant had dictated terms for them to re-do the agreement. They had the dictated terms on a piece of paper. That piece of paper was tendered into evidence as part of the plaintiff's bundle of documents. The document in question is on page 7 of the said bundle. The terms on the document were that:

1. That the selling price should be increased to Z$260 million;

2. That the payment would be strictly cash of Z$220 million and balance of Z$40 million would be paid in two instalments in the months of September and October; and

3. That the seller who was present tenant would vacate when schools calendar for 3rd term 2005 ended;

4. The last point was that once the last payment was done, in October, the seller would become a tenant paying rent.

As at that stage, when these terms were brought to his attention, Mr Mukondo had not seen or spoken to the first defendant.

Mr Mukondo said that he saw the first defendant for the first time when the first defendant came with the second defendant in the company of a woman he thought/believed was the first defendant's wife.

When this trio came, the first defendant demanded to be paid the purchase price. They refused to release the money to him contending that they could not do so before cession. The first defendant had then offered that cession be done that same day but this was not done. The first defendant had then said that if he was not paid on that day then the purchase price would go up.

The first defendant was not made to sign the Agreement of Sale or any other document relating to the Agreement of Sale of his rights and interests in the property in question.

The next witness was Mr Jerry Ndemera. At the material time he was employed by PMA Real Estate Agency as Sales Manager.

In his evidence, Mr Ndemera confirmed that PMA Real Estate Agency dealt with the second defendant upon the second defendant's word that he had the mandate to sell from the co-holder of rights and interests in the property.

There was no request or insistence on the second defendant furnishing the requisite power of attorney or and other written authority from the first defendant.

PMA Real Estate Agency were spurred to act simply on the second defendant's assurance.

It was not till after the Agreement of Sale had been concluded that he saw the first defendant.

On his first meeting with the first defendant, the first defendant did not agree with what had been entered into. According to Mr Ndemera, the first defendant came to see him on the day page 7 of the plaintiff's bundle of documents was written.

Mr Ndemera contradicted Mr Mukondo's evidence on how this document came to be.

His evidence was to the effect that this document was written by the first defendant on the day the first defendant came to their offices. He is the one who in fact provided the first defendant with the piece of paper to write on when the first defendant indicated there were some terms to be changed.

The contradiction was in that Mr Mukondo had said Mr Ndemera had indicated to him that the first defendant had dictated those terms on the phone from Botswana and not that the first defendant had come to their offices.

Despite Mr Ndemera's contention that this document was written by the first defendant, he was unable to explain why the first defendant did not append his signature thereto. Instead, the signature thereon is that of Mr Ndemera, just as he had signed for the second seller in exhibit. 1, the Agreement of Sale.

If indeed the first defendant had, on this occasion, ratified the Agreement of Sale, albeit with an increased purchase price and additional terms, he would at least have signed on this document to signify his approval of the transaction, if those terms were accepted by the plaintiff.

It was Mr Ndemera's evidence that the first defendant must have come to their offices on 2 or 3 times. Somehow, he was not made to sign the Agreement of Sale which the plaintiff says he had ratified.

It may also be noted that both Mr Mukondo and Mr Ndemera indicated that when the first defendant came to PMA Real Estate offices he demanded payment. When asked to sign the Agreement of Sale, the first defendant said he wanted to be paid before he could sign.

This, in my view, is inconsistent with a party who had ratified the agreement and had assumed his obligations as contained in the Agreement of Sale.

Further, both Mr Mukondo and Mr Ndemera admitted, that, when the first defendant came in the company of his wife, this was after a PMA Real Estate employee had been to the first defendant's residence with an armed police officer. At that residence, they had forced the first defendant's mother to append her signature to a document tendered in as exhibit. 8.

That document invited the first and second defendants to come and activate the process of transfer.

The visit by the first defendant and his wife was therefore to complain about that visit by a PMA Real Estate employee and the armed police officer. This is the visit Mr Mukondo apparently recalled.

It is clear to me, that, though the first defendant visited PMA Real Estate Agency offices he never signed the Agreement of Sale or any document showing that he consented to the sale of his rights and interests in the property in question.

He never ratified the Agreement of Sale in writing.

The tacit ratification that Mr Mukondo and Mr Ndemera alluded to needed to be proved.

The conflict in the evidence of Mr Mukondo and Mr Ndemera, as key witnesses to the issue of ratification, on such aspects as who authored the document on page 7 of the plaintiff's bundle of documents, the number of visits made by the first defendant to PMA Real Agency, and the fact of a PMA Real Estate Agency employee visiting the first defendant's residence in the company of an armed police officer to force matters, creates doubt on the credibility of their testimony.

They did not impress me as reliable witnesses.

They may have had cause to believe the second defendant when he told them that he had the first defendant's mandate to sell and that the first defendant would ratify the Agreement of Sale, but, that was not adequate. They ought to have obtained consent or mandate from the first defendant himself to proceed with the sale.

They could easily have demanded that the second defendant furnishes them with a Power of Attorney for them to action the second defendant's mandate to sell.

Equally, when the first defendant availed himself at their offices, they ought to have clarified the issue by ensuring that he ratified the agreement in an unequivocal manner. To seek to rely on tacit ratification or consent to the agreement was always going to be difficult.

The onus is on the plaintiff to prove, on a balance of probabilities, that the first defendant ratified the Agreement of Sale for it to be binding on him.

A careful analysis of the evidence adduced in court on this issue does not show that the plaintiff discharged such onus.

The evidence showed that when the second defendant entered into the Agreement of Sale he made it clear that he was also doing so for and on behalf of his co-holder of rights and title and that the co-holder would have to come and ratify the agreement. The first defendant was a competent co-holder to ratify the agreement had he wanted to. The Agreement of Sale was not void. It was capable of ratification.

The failure is on the fact that the plaintiff has not proved, on a balance of probabilities, that the first defendant adopted the agreement of sale.

As the Agreement of Sale was conditional upon the first defendant's ratification, it follows that there was no valid agreement of sale to bind the first defendant.

In the circumstances, the first defendant was free to enter into a sale agreement with anyone that the joint holders of rights and interests in the property preferred.

In this case, they sold their rights and interests to the third defendant. There was no legal impediment to such a transaction.

The plaintiff's remedy, if at all he felt hard done, is against those who led him to part with his money when the agreement had not been ratified.

Accordingly, the plaintiff's claim is hereby dismissed with costs.

The defendant opened its case by calling one Martin Mahlamvana (“Mahlamvana”). He is a Sales Clerk with the defendant and has been in the employment of the defendant for a commendable thirty years. He was the first contact that the plaintiff made with the defendant.

His evidence was also to large extent a narration of the events that are common cause in this suit as to how the plaintiff was given a quotation for the steel he required and how payment was made some days later. Regarding whether or not the Y12 and ANN wire were in stock at the time the plaintiff sought the quotation and subsequently made his payment, the witness was adamant that the plaintiff was advised by Mr Mano, the Harare Branch Manager that these two were not in stock. He denied that he had personally assured the plaintiff that such were in stock. He further testified that, in his presence, the plaintiff was told, at the time he made payment, that these two types of steel were not in stock but that an order for them had been placed by the defendant's head office in Bulawayo. It was his evidence that the plaintiff was advised that the defendant was waiting for the local supplier to supply the steel. The plaintiff agreed to wait.

Finally, the witness testified that, currently, the defendant is not selling any steel products as these remain unavailable from the local supplier.

The witness gave his evidence in a measured manner. So measured was he in his manner of speech that at times he appeared slow. He would not exaggerate and would defer questions to his superior where these fell out of the ambit of his duties. He was not shaken under cross examination. I gained a favourable impression of him as a truthful and reliable witness….,.

Mr Boyina Mano, the defendant's Harare Branch office manager, also gave evidence. He has been in the employment of the defendant for the past twenty-eight years.

His testimony was similar to that of Martin Mahlamvana. He testified that he personally advised the plaintiff that Y12 and ANN wire were not in stock and the plaintiff assured him and Martin Mahlamvana that he would wait until the two items were in stock.

The witness was shown an order that the defendant had placed with ZISCO Steel for steel lengths, including the Y12 and ANN wire in dispute in this suit. He identified the order, dated 18 June 2007 which was then adduced into evidence by consent. He also identified a schedule that was prepared by the defendant showing that no Y12 and ANN wire were delivered from ZISCO Steel on the order in June 2007. The witness further confirmed that application was made to the defendant's Bank for the allocation of foreign currency to import the steel from South Africa. Had this happened, the cost price of the steel, as given on the quote, would have been affected and this is why the defendant had indicated on the quote that prices were subject to change.

Finally, the witness testified that the supply of steel had not improved since 2007 due to viability problems at ZISCO Steel, the main supplier. Currently, the defendant does not have the Y12 and ANN wire in stock and will only get these once the supplier starts rolling out the products.

The witness gave his evidence well. He was refreshingly clear and was easy to follow in his answers to questions put to him in cross-examination. I gained the impression that he was telling the truth when he testified that he informed the plaintiff that Y12 and ANN wire were not in stock when the plaintiff made his payment. He was, at that time, confident that since the defendant had placed an order for the steel, such would be delivered, and, in my view, he would have spread this confidence to the plaintiff. At that stage, there was no reason to doubt that delivery would be effected, and, in my view, it is highly improbable that the witness would have hidden that fact from the plaintiff.

The defendants led evidence from Regis Jamba, the Managing Director of both defendants.

He has been the Managing Director of both companies since 1997.

In the main, Regis Jamba's evidence was a confirmation of what the plaintiff's witness told the court. Regis Jamba said after their offer of US$2= per square metre, which was made on 17 February 2009, he had remained in constant communication with Messrs. CB Richard Ellis (Pvt) Ltd. He had consistently been phoning Darlington Tapiwa Mandaza, and at one time he spoke to a Mr. Matondo who had expressed surprise as to why the rent issue had remained unresolved. The said Matondo had promised action but had never gone back to them (defendants) with a solution.

Regis Jamba said on 8 April 2009 the defendants had requested for rental statements which the plaintiff was no longer sending them.

He maintained that the real issue separating the parties was the rent dispute. He, however, said the issue had been resolved by the owner of the premises, namely Minister Goche. He said Minister Goche had indicated that he was not interested in the legal proceedings. This was, however, quickly dismissed by the plaintiff's legal practitioner who said his instructions were to proceed with the action.

Regis Jamba went on to say that in March 2009 the defendants' accounts were suspended.

The defendants had, however, made the following payments in October 2009:

“(a) First defendant    : US$2,560=.

(b) Second defendant: US$   350=.”

The payments, he said, were based on US$3= per square metre and were accepted by the plaintiff.

Under cross-examination, Regis Jamba agreed that the payments were accepted under a receipt with the endorsement “without prejudice”.

He also confirmed that since January 2009, the plaintiff had never interfered with the defendants' occupancy of the premises. He said at a meeting held on 8 October 2009, the defendants new proposal, of US$3= per square metre, had been accepted and the defendants were now waiting for details regarding the outstanding amounts.

The Evidence

At the trial of the matter, the plaintiff called one Webster Nhamo Dongo as its first witness. At the time he testified, he was the plaintiff's Purchasing Manager. In that position, he was responsible for all the purchases of the plaintiff, including that of fuel. At the time of the transactions between the parties giving rise to the claim he was the Senior Purchasing Officer; he, and the then plaintiff's Purchasing Manager, set the transaction up with the defendant.

The witness gave a detailed account of the processes that were involved in the transactions between the parties from the generation of a proforma invoice through to the delivery of the product. He also testified that an audit carried out by the plaintiff revealed the shortfall that forms the plaintiff's claims.

Next to testify on behalf of the plaintiff was one Caspa Mangwiro, the plaintiff's Materials and Logistics Officer.

During the relevant period, he was responsible for monitoring the fuel that was delivered to the plaintiff's depots. He investigated the matter of the alleged shortfall in the diesel delivered by the defendant. In carrying out this investigation he computed the telegraphic transfers that reflected payment for the fuel ordered together with the invoices that the plaintiff received from the defendant. He obtained information from the plaintiff's various depots concerning the deliveries made. He then reconciled the proforma invoices against the deliveries to come up with the shortfall.

It was his testimony that for each delivery received the plaintiff would raise a goods received voucher. This was done by the Store's person at each of every plaintiff's depots throughout the country.

The witness adduced into evidence, as Exhibit “1”, a summary of the reconciliation that he did for all the plaintiff's depots. He compiled the Exhibit personally. In compiling this Exhibit, he used invoices from the defendant and copies of telegraphic transfers from the plaintiff's bank on one hand, and the goods received vouchers from the plaintiff's depots and the delivery notes from the defendant on the other. These mismatched to the extent of the shortfall.

Under cross-examination, the witness admitted that the plaintiff could, at times, collect diesel from the defendant. He testified that he had not prepared a schedule showing any such collections - and these did not form part of his reconciliation. He also admitted that at one stage the plaintiff ordered diesel on behalf of its Chairman but could not confirm whether delivery of such fuel had been effected directly to him by the defendant, in which case, such delivery would not be captured on any “goods received voucher” issued by the plaintiff.

Also under cross-examination, the witness was shown an assessment that had been carried out by the defendant on the documentation relating to two depots of the plaintiff. The assessment revealed that a total of 38,000 litres delivered to the plaintiff had not been captured in the plaintiff's schedule. This he conceded. He also conceded that the summary of transactions that he had compiled may not be entirely correct.

When it was suggested to him, in cross-examination, that he did not complete the reconciliation in that orders that were made in December 2001 could have been delivered in January or February 2002, he testified that he went by a certain cut-off date, and that diesel delivered after the cut-off date, if any, was not taken into account. The cut-off date, as captured on the reconciliation schedule, is 31 December 2001.

The first defendant called one Benjamin Matanda as its only witness. He is employed by the second defendant as Customer Care Manager.

At the relevant time, he was employed by the first defendant in the same capacity.

He is familiar with the business relationship and arrangements that obtained between the plaintiff and the first defendant. To the best of his knowledge, the defendant delivered all the diesel that the plaintiff ordered from it. The deliveries were completed in 2002. Again, according to his knowledge, some of the invoices were not paid on by the plaintiff. These are, however, included in the plaintiff's schedule as outstanding deliveries.

The witness also testified that the defendant carried out an independent investigation into the matter of the alleged short deliveries, and examined ledger cards availed to it by the plaintiff. From his personal examination of the ledger card relating to Bindura depot, he established that the total volume of diesel delivered, as recorded on the plaintiff's reconciliation schedule for this depot, was understated. The same was found to be true for Gokwe and Kadoma depots. The witness also compared the documents that he had for the Chinhoyi depot and found that 77,000 litres of diesel that had been delivered to the depot was not captured and recorded in the plaintiff's reconciliation schedule.

He did not agree with the suggestion by Caspa Mangwiro, on behalf of the plaintiff, that such had been mis-recorded on the ledger card as the invoice numbers appear to have dropped by one digit. He testified that it was quite normal for one customer to pick up the same volume of diesel twice a day on two different, but consecutive, invoices, as delivery depended on the configurations of the delivery truck.  

Evidence of the Plaintiff

Mario de Angelis is the Managing Director of the plaintiff company, and his evidence was as follows.

On 11 February 2003 the plaintiff succeeded in a counterclaim for breach of contract against the defendant in the High Court of Malawi. However, the plaintiff was aggrieved by the fact that only general damages were awarded by the High Court, and immediately appealed against that determination. On appeal to the Supreme Court of Appeal, the plaintiff was awarded general as well as special damages equating to the amount claimed on the summons in casu. The award of US$848,662=50 was by way of special damages for loss of profits from 1994 to 1999 stemming from the drastic reduction of the plaintiff's share of the market occasioned by the defendant's breach of contract. According to the plaintiff's attorneys, the rate of 5% interest claimed on that amount arises by operation of law, viz. the Malawi Courts Act...,. The sum of MK241,957= represents damages for loss of profit on the specific contract between the parties. The sum incorporates the interest component specifically awarded but doubled up to the maximum claimable under the in duplum rule. The defendant paid a sum of ZW$50 billion through this court on 13 April 2008. The plaintiff rejected this payment as being valueless. The contract between the parties was initially invoiced in UAPTA's but after that currency lapsed the parties agreed to deal in United States Dollars. The Zimbabwe Dollar was never mentioned as part of the Agreement, and the plaintiff had no need to use that as it is a wholly Malawian company with no business interests in Zimbabwe. Under cross-examination, the witness conceded that on 16 February 2004 the defendant transferred a sum of MK4,817,862=25 to its own attorneys in Malawi....,. The bulk of this money, though he could not state exactly how much, was received by the plaintiff and retained by it thereafter. He also accepted the contents of a letter from the defendant's Bank, dated 27 October 2003..., confirming Exchange Control approval to remit that amount to satisfy the 2003 judgment of the Malawi High Court. The witness could not confirm with any certainty whether the Supreme Court of Malawi had taken that payment into account in calculating its award of special and general damages.

Evidence on Behalf of the Defendant

Icy Chasara is the Chief Executive Officer of William, Smith & Gourock which, at the relevant time, was the trading division of the defendant. He testified as follows.

The plaintiff called three witnesses. The first witness, Washington Moyo, now an Investment Analyst with the plaintiff, said that at the material time he was in the employ of the plaintiff as a Property Manager assigned to manage the plaintiff's Avondale properties. He was responsible for negotiating lease agreements and rentals attaching to such leases. He said the parties (plaintiff and defendant) had, indeed, entered into a lease agreement, which he produced...,. The said lease agreement, which was renewable, commenced on 1 April 2005. Washington Moyo said he had dealt with the defendant from April 2008 to May 2009 (i.e. the period during which he was the plaintiff's Property Manager). He said rental negotiations with the defendant were conducted in a cordial manner. He also confirmed the issuance by him of the notice of 30 May 2008, which he produced...,. Washington Moyo said the request from CABS was made on 19 May 2008 i.e. before the plaintiff's notice of 30 May 2008. He said, through CABS, a Michael Chikanda had inspected the premises on 22 May 2008 upon notice of that inspection having been given to all tenants on 20 May 2008. The witness said on 23 May 2008 Michael Chikanda had then advised the plaintiff that they (CABS) had identified Shops 1 and 2 for their banking needs (i.e. Shop No.2 being the one leased to the defendant). He confirmed that to date the plaintiff was still pursuing the eviction of the defendant. Under cross-examination, Washington Moyo said there had never been an intention to renew the lease agreement. He said the negotiations were aimed at getting a return for the months of May 2008 to July 2008. He did not know the exchange rate when the lease was due to expire. He said the negotiations were in terms of the Zimbabwe dollar and not foreign currency. He agreed that as at 27 May 2008 when the parties had failed to agree on new rentals the plaintiff had not yet advised the defendant about CABS. Washington Moyo said he had never spoken to Mr.Terry, the Managing Director of CABS. He had only dealt with Michael Chikanda and was not aware of any discussions between the defendant and Mr.Terry. He maintained that the plaintiff needed the premises for its own use through its subsidiary (CABS). He could not comment on the fact that the defendant had since been given a new lease as from February 2010 to December 2010.

The second witness called by the plaintiff was Michael Anthony Finnigan of CABS. He said he was the General Manager responsible for Retail Banking since the 1990's and was in charge of CABS branch operations, including Avondale Branch, which fell under the supervision of Michael Chikanda who reported directly to him. He said Avondale Holdings had given CABS notice to vacate the premises where CABS Avondale Branch operated from. To that end, he produced exhibits 6 and 7. Exhibit 6, from Avondale Holdings (Private) Limited, directed to CABS, and dated 6 May 2008, reads as follows –

“We hereby give you three months notice to vacate the premises you occupy in Avondale Shopping Centre effective from 1 June 2008 to 31 August 2008.

Your lease expires at the end of this month and we will not be renewing it as the premises are required for owner own use.”

The above exhibit was received by CABS on 8 May..., and on it are the following handwritten endorsements: “SM,OK,OM

-Target Stanley House

-Relocation of Avondale

-CABS requirements.”

The above endorsements were made on 20 May 2008, and from the endorsements it appears, as at that date, CABS were targeting Stanley House for their requirements.

Exhibit 7, also from Avondale Holdings (Private) Limited, dated 11 June 2008, and directed to CABS, reads as follows -

“We refer to our letter of 6 May 2008 in which we gave you notice to vacate the premises by 31 August 2008, and which was delivered to CABS, Avondale and to Old Mutual via their Mutual Centre collection point.

We have had no response to this letter from CABS or from Old Mutual and we now confirm the notice to vacate the premises at Sammar Galleries in the Avondale Shopping Centre reiterating that the reason for the cancellation of the lease is that the owner wishes to have it for her own use.”

Michael Anthony Finnigan said it was because of the above communications that CABS, as part of the plaintiff's Group of Companies, had approached the plaintiff for rental premises in Avondale. He said after visiting the offices occupied by the defendant, in the company of Michael Chikanda, he had then instructed Michael Chikanda to proceed with negotiations with the plaintiff for the conclusion of a lease agreement over the premises occupied by the defendant. He said correspondence had then ensued between the parties, as indicated in exhibit 8 which was a collection of emails exchanged between officials of CABS and the plaintiff. Michael Anthony Finnigan said CABS was 100%-owned by the plaintiff – who had a final say in matters relating to CABS. He also said CABS still wanted to operate in Avondale and hence the need for the premises occupied by the defendant.

The third witness and last witness called by the plaintiff was Miss Olga Maulana, the plaintiff's Senior Portfolio Manager. She said she was aware of the dispute between the parties. Her department was responsible for rent reviews and was therefore responsible for drawing up exhibit 11 - which was signed by the defendant on 29 January 2010. She, however, said the letter had been dispatched to the defendant by mistake and she only realised the mistake when payment had been effected.

THE EVIDENCE

Blazio Nyariri, the plaintiff's Managing Director, gave evidence for the plaintiff, and basically his evidence was, in all material respects, consistent with the summary of the plaintiff's case as outlined above.

The plaintiff called the evidence of its Director Pauline Muyambo and an assistant to the driver who delivered the loads in question, Peter Mahachi. The defendant relied on the testimony of its Managing Director Maurice Chinyani.

Pauline Muyambo stated that the plaintiff company is a coal merchant. She solicited for business from the defendant company through one of its managers called Shalimar. At that time, she had samples of the coal in a paper bag. A white colleague of Shalimar indicated to her that the defendant had never used that kind of coal before but were interested in testing its efficacy. The defendant proceeded to order 30 tonnes for a trial run. She brought the 30 tonnes to the defendant. At the defendant's premises, one of its boilermen took a bucket full of the coal and threw the contents onto a conveyor belt which carried it to the furnace. She was advised that the coal would be suitable if the intensity of the fire in the furnace did not diminish. Having passed the test, the defendant took delivery of the 30 tonnes and paid for it. It placed an order for 300 tonnes. The plaintiff supplied 216 tonnes of that order and was paid for 120 tonnes. The defendant did not pay for the remaining 95,32 tonnes which constituted the last deliveries made on 23 and 24 September 2009, and which are the subject of the present claim. She sought payment from the defendant for these deliveries and for two weeks she was assured that payment had been made into the plaintiff's bank account. When no payment was forthcoming she sought the assistance of the police in Chitungwiza to recover her money. She was referred to the defendant company's Chairman, a Mr. Somana, who indicated that she would not be paid for delivering rubbish, which would be consigned to the rubbish heap. Her efforts to collect her rubbish were rebuffed. She set out the procedure used by the defendant in taking a delivery. The truck carrying the coal parks at a reserved parking lot outside the defendant's premises. The driver is referred by the guards manning the gates to Shalimar. Shalimar issues the driver with a paper which he takes to the boilerman. The boilerman proceeds to the truck with an empty bucket which he fills with the coal from the truck. The boiler man takes the coal and returns after 30 to 40 minutes. He then returns with a paper and instructs the guards to let the truck into the defendant's premises. The truck proceeds to the weighbridge where its loaded mass is taken. It is driven to the offloading bay where the coal is offloaded by shovels by some of the defendant's employees. The vehicle returns to the weigh bridge where its empty mass is recorded. Thereafter a weighbridge ticket containing the names of the defendant, plaintiff, the product delivered, the loaded weight, empty weight, and the weight of the coal, the name and signature of the weighbridge clerk, and the name and signature of the driver are recorded. The truck leaves the premises and the plaintiff is paid its dues the following day.

She averred that this was the process that was followed when the three deliveries in issue were made. She read from the three weighbridge tickets of the deliveries in question though she did not produce them in evidence. The product was identified as coal dwarf in each of the weigh bridge tickets.

Under cross examination she stated that she knew the coal required by the defendant was coal dwarf. She described it by reference to its size. She revealed that 120 tonnes were delivered on 7, 14, and 18 September 2009. She indicated the tonnages that were delivered on each of these days. She stated that all the 216 tonnes were sourced from Gypsum in Masasa Harare which used to fire its boilers using coal but had switched over to diesel generators. She was adamant that the plaintiff supplied coal dwarf. She maintained that the fact that the defendant allowed the deliveries into its premises after conducting its internal tests; off loaded it using shovels, and for two weeks promised the plaintiff that payment had been made, demonstrated that the correct type of coal had been delivered. The plaintiff refused to collect the coal that the defendant claimed was rubble, after the plea was filed, because it had no way of knowing whether that was the coal it had delivered.

The defendant called the evidence of its Managing Director, Maurice Chinyani. He came to know the plaintiff's Director when she came with the police seeking payment for the coal delivered by her company. Until that time he was not aware of her claim. He acted on the information that he received from his General Manager in charge of Operations. He took her to the grey heap of sand, stones and residue from a coal furnace that was on his company's premises. He averred that the heap constituted the deliveries that had been made by the plaintiff. He stated that the defendant extracts cooking oil from soya bean and cotton seed and produces stock feed from the residue cake meal. The defendant uses 25 tonnes of either dwarf or peas coal a day, and about 1,000 tonnes a month, to fire its boilers to the appropriate temperature required to extract edible cooking oil and cake meal. He set out the defendant's standard operating procedure for accepting deliveries. He stated that for coal, the identity of the product is confirmed visually and is then off loaded. Dwarf coal is consistently black and shiny and is not grey. A certified boilerman receives the coal for use. He takes a bucket and pours the coal onto a conveyor belt. He assesses its suitability and stops its use if it does not meet the requisite standards. In the instant case, the heap consisted of grey sand, stones and ash as opposed to shiny black coal mined in Hwange. He revealed, in cross examination, that the deliveries supplied by the plaintiff were purchased by the defendant's General Manager in charge of Operations. He was not aware of the procedure involving the sampling of coal using a bucket that was highlighted by the plaintiff's witness. All he knew was that the guard at the gate did a visual inspection that the product at the gate resembled coal before receiving permission from the General Manager Operations to allow the truck into the premises.

On 29 July 2008, the plaintiff issued summons against the defendant for the following relief:-

“(a) Payment of the sum of US$750,000.

(b) Interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment.

(c) Costs of suit.”

The background to the relief sought can briefly be narrated as follows:-

The plaintiff is a manufacturer and supplier of exclusive range of cables for the transmission and distribution of energy and communications involving entities like the Zimbabwe Electricity Supply Authority, the Rural Electrification Agency, and Tel-One.

The plaintiff's business caters for both domestic and export markets. As at end of 2003, 50% of its sales volumes were largely in exports.

In October 2004, the plaintiff approached the defendant for assistance. The defendant was then operating a foreign currency auction system. Through that system, the defendant made available, each week, from 25% of export proceeds, an amount of foreign currency for which commercial banks would submit bids for their customers. On the basis of those bids, allocations would then be made to the highest bidder(s).

In line with the auction system, on 24 October 2004, the defendant, through its Governor, informed the plaintiff, that, if it (plaintiff) submitted bids to the auction, the defendant would ensure that it (plaintiff) succeeded to the extent of US$150,000 per week to enable it to pay for essential inputs in its operations.

That process was indeed put into place on a weekly basis as from 14 January 2005 up to June 2005.

This was a special arrangement where the plaintiff would, instead of placing a bid, it would merely be advised, through a telephone call, each week, from the defendant's officials, that, the said allocation of US$150,000 was ready. All the plaintiff was required to do, in turn, was to pay the Zimbabwe dollar equivalent within 24 hours. The plaintiff would then, in turn, transfer, through a Commercial Bank, the requisite Zimbabwean dollar amount and details of the foreign suppliers to be paid in foreign currency (i.e from the US$150,000 allocated to the plaintiff).

The allocation of US$150,000, was, with effect from 16 June 2005, increased to US$250,000.

Weekly allocations, at that new level, were made to the plaintiff until the end of July 2005.

The allocation system was continued in August 2005 resulting in the plaintiff making three transfers of undisputed payments in Zimbabwe dollars for the equivalent of the amount of US$750,000 - now being claimed by the plaintiff.

The payments were, in each case, accompanied by details of external creditors to be paid by the defendant.

Notwithstanding the payment of the equivalent amount in Zimbabwe dollars by the plaintiff, the defendant has, to date, not forwarded the foreign currency to the plaintiff's external creditors or refunded the plaintiff with the said amount of US$750,000. In fact, the plaintiff has already, through other sources, paid its suppliers.

The above, in brief, explains why the plaintiff has resorted to this court action claiming the said amount of US$750,000.

With both the plaintiff and the defendant having amended their pleadings at the pretrial conference, it was agreed that the issues for trial were:-

“(a) Whether defendant is contractually obliged to pay plaintiff the sum of US$750,000;

(b) Whether defendant is estopped from denying its obligation to pay plaintiff the sum of US$750,000;

(c) Whether defendant's tender to repay the sums of Zimbabwean currency paid to it by plaintiff is a proper tender which plaintiff is obliged to accept.”

At the commencement of the trial, I indicated to both parties that, given the fact that both parties were generally agreed on what transpired, my view was that the matter could be determined through merely hearing arguments from both sides.

The plaintiff was, however, opposed to that approach and preferred to lead evidence. The defendant then also adopted the same stance.

I therefore had no option but to allow the parties to lead viva voce evidence.

The plaintiff's only witness, Mr E.W. Turina (Turina) said he was the Chief Executive Officer of the plaintiff at the time of the purchase of US$750,000 from the defendant. He had, however, left the employ of the plaintiff in June 2006.

Mr Turina's evidence was, in the main, a confirmation of what was already contained in the pleadings.

He said due to the scarcity of foreign currency, the plaintiff had reached an agreement with the defendant whereby bids from the plaintiff would be given preferential treatment.

He confirmed, that, the information on the allocations was done telephonically and that once an allocation (ie the initial US$150,000 rising to $250,000) was made, the plaintiff was required to pay the equivalent in Zimbabwe dollars within twenty-four hours (24) hours.

The arrangement had worked well from January 2005 until August 2005 when the defendant failed/neglected to disburse US$750,000 to the plaintiff's customers/suppliers despite the fact that the plaintiff had paid the defendant the equivalent in Zimbabwe dollar as per the standing arrangement.

The Zimbabwe dollars had been paid in three transfers on 1, 11, and 19 August 2005. This was to cater for the increased weekly allocation of US$250,000.

He said when the first allocation was not released, after payment of the equivalent Zimbabwe dollars, the plaintiff had asked for an explanation but was promised that the money would be released.

The same had happened with respect to the two subsequent payments.

After failure by the defendant to forward payment to its suppliers, the plaintiff had then borrowed money from other sources so as to meet supplier requirements. This had led to the withdrawal of invoices from the defendant, which invoices were produced as exhibits 1, 2 and 3.

Mr. Turina confirmed, that, before he left the employ of the plaintiff, in 2006, negotiations for settlement were in progress and that the defendant had indicated that it would secure the US dollars at a later stage for the plaintiff or reimburse the plaintiff in Zimbabwe dollars.

He said some of the discussions were not directly conducted with him.

He had, however, later learnt, that, the defendant was not going to pay the US$750,000.

It was his view, that, once the plaintiff effected payment of the equivalent Zimbabwe dollar amount of the allocated foreign currency “the contract was completed.”

He said the company had opted to wait because the Zimbabwe dollar had become worthless.

Mr Turina stuck to his story under cross-examination.

The defendant also called only one witness, a Mr B. Musoso (Musoso).

The witness said he was employed by the defendant as its Head of Treasury Operations. He said the Treasury Division was responsible for settlement and payment of allocations. The auction system, he said, was run by a separate unit which was responsible for the allocations. The role of his department was to communicate with companies and advise them on foreign exchange rates.

He was aware of a list of special allotees who received payment on a weekly basis. These were companies considered key to the national economy. These included the plaintiff.

He said there were thirty-six (36) companies on the special list and the allocations were made by the auction unit. Some of these were Boc Gases, Quest Motors, Unilever, Olivine Industries, Dunlop, National Oil Company of Zimbabwe (NOCZIM) and the fertilizer companies.

Mr. Musoso said there were no formal contracts with the companies on the special list.

The role of his department was to effect payment when funds were made available.

The witness said his department dispatched foreign exchange quotations to various interested companies. The quotations were meant to enable companies to mobilize the necessary funds before allocations were made. He said payment to allotees depended on instructions from what he called “the front office” and the availability of foreign currency.

He said the non-availability of foreign currency explained why the three payments made by the plaintiff, in August, were not honoured.

Mr. Musoso said when the auction system ceased, in August 2005, there were many unpaid beneficiaries from the special list and the defendant decided to reimburse them in Zimbabwe dollars.

He said he had heard that the plaintiff wanted reimbursement in US dollars instead of the Zimbabwe dollar. It was his evidence, that, in reimbursing beneficiaries, the defendant did not take into account the devalued value of the Zimbabwe dollar because there was no financial obligation: “We were just returning whatever had been paid,” he said.

Under cross examination, Mr. Musoso maintained, that, the successful execution of the arrangement relied solely on the availability of foreign currency.

In addition to Mr. Musoso's evidence, the defendant also relied on responses by Dr G. Gono (Governor of the Reserve Bank of Zimbabwe) and Patience Aisam (Manager Compliance–Treasury Division) to the plaintiff's interrogatories filed on 29 September 2009.

Both responses to interrogatories were filed on 17 November 2009.

In his response, Dr Gono stated that he had, upon the specific request and representations from the plaintiff, advised that he would endeavour to source foreign currency for the plaintiff in the amounts mentioned (i.e initially US$150,000 rising to US$250,000).

He said this was in recognition of the strategic role played by the plaintiff in the national economy.

There was, however, no formal binding agreement.

He said he had indeed been advised that “the plaintiff had made payments totaling Z$13,535,110 being the quoted equivalent at the auction rate of US$750,000”, now being claimed by the plaintiff.

However, he said “due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency not only to the plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

It was his evidence that his officers had informed him, that, during August 2005, no disbursements were made to any applicant for foreign currency under the auction system.

In response to the plaintiff's interrogatories, Miss Patience Aisam confirmed, that, from “14 January 2005 to August 2005, she would, on a weekly basis, telephone or instruct that plaintiff be telephoned advising it that its application for foreign currency allocation had been approved.”

She also confirmed, that, the approved amounts were US$150,000 per week from 14 January 2005 to mid-June 2005. Thereafter, the amount was increased to US$250,000 per week….,.

Counsel for the plaintiff submitted that the plaintiff's case was clear and did not warrant argument.

He submitted, that, the undisputed evidence of Mr. Turina had confirmed, that, upon approaching the Governor of the Reserve Bank, Dr Gono, for assistance in obtaining foreign currency, the plaintiff had been granted the status of a permanently successful bidder at the weekly foreign currency auctions.

The plaintiff, with that status, did not need to place bids at the auction, but, was merely telephonically advised of the agreed weekly allocations.

The practice, it was submitted, had been successfully operational from January 2005 to July 2005.

Payment(s) requirements were availed to the plaintiff who complied at all times by effecting the payment(s) of the equivalent amount of the foreign currency in Zimbabwe dollars.

The only condition was that “foreign currency will only be released after receipt of Zimbabwean dollars.”

Counsel for the plaintiff submitted, that, after the foreign currency amounts were not paid, in August 2005, the Deputy Governor, Mr Ncube, of the defendant, offered the plaintiff the choice of having the money paid by the plaintiff refunded in local currency or waiting for the foreign currency to be made available. That evidence was not contradicted.

I agree.

Counsel for the plaintiff further submitted, that, in practice, there were two initial contractual arrangements:

(i) The first was the undertaking by the defendant that the plaintiff would be allocated foreign currency without the need to make bids at the auction system.

(ii) The second was that once the plaintiff effected payment of the Zimbabwean dollars within twenty-four hours (ie equivalent of the foreign currency) the foreign currency allocated would be made available.

The plaintiff had, in all three instances in August 2005, complied with the payment requirements.

Counsel for the plaintiff said the third contractual arrangement, novating the August contracts, occurred when the defendant promised to pay the plaintiff the foreign currency when it became available.

The plaintiff had, in turn, agreed to wait for payment until it became necessary to institute these proceedings.

In support of the need for the plaintiff to institute legal proceedings, counsel for the plaintiff quoted from Asharia v Patel 1991 (2) ZLR 276 where the relevant part of the judgment of the former Chief Justice reads as follows:

“The general applicable rule is that where time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon as thereafter as is reasonably possible in the circumstances.

But, the debtor does not fall into mora ipso facto if he fails to perform forthwith or within a reasonable time. He must know that he has to perform.

This form or mora, known as mora ex persona, only arises if, after a demand has been made calling upon the debtor to perform by a specified date, he is still in default.

The demand or interpellatio, may be made either judicially by means of a summons or extra-judicially by means of a letter of demand or even orally; and to be valid it must allow the debtor a reasonable opportunity to perform by stipulating a period for performance which is not unreasonable. If unreasonable, the demand is ineffective….,.”

The promise to refund was made in 2005 and summons was issued on 29 July 2008.

It was counsel for the plaintiff's submission, that, the evidence of the defendant's witness (Mr. Musoso) was irrelevant since he had no direct dealings with the auction system. He said the defendant had failed to call witnesses who could have given meaningful testimony as to what actually happened.

The only credible evidence available was that of Mr Turina, he argued.

Counsel for the plaintiff concluded by submitting as follows:

“1. That, it was the uncontradicted and unchallenged evidence on plaintiff that Deputy Governor Ncube gave an undertaking to pay plaintiff US$750,000 at a future unspecified date.

2. That, this undertaking was accepted by plaintiff and formed a binding contract.

3. That, the binding contract so formed created an obligation on defendant to perform within a reasonable time.

4. That, after the lapse of a time, that defendant has never claimed is unreasonable, plaintiff made interpellation by the issue of summons, calling for the enforcement of the contract.

5. That, in the alternative, the second contractual event is binding on the parties.

6. In any event, defendant so conducted itself between January2004 and July 2005 as to cause plaintiff to believe that it had a contractual relationship on an occasion by occasion basis; that plaintiff did so believe, and, as a result of defendant's actions and words, plaintiff altered its position to its detriment.

7. That, in enforcing specific performance of a contract, the court is to treat the State like any other individual.

8. That, in the circumstances, defendant has done nothing to prevent plaintiff from being granted a judgment in terms of the summons.”

Counsel for the defendant submitted, that, due to the scarcity of foreign currency, the plaintiff and thirty-six (36) other complainants were placed on a list of companies considered as strategic in the national economy.

Depending on availability, the defendant then agreed to allocate foreign currency to these companies – which included the plaintiff.

He said no formal contracts were drawn in respect of the arrangements.

He said the plaintiff had been offered a refund of the money it had paid upon failure by the respondent to source the requisite foreign currency.

Counsel for the defendant emphasized the point, that, the arrangement between the parties was always subject to the availability of foreign currency which the defendant could disburse.

Arguing that there was no contractual obligation, on the part of the defendant, to pay the plaintiff the amount claimed, counsel for the defendant said it was never the consensus of the parties that the payment of the Zimbabwe dollars sealed the contractual arrangements.

The payment, he said, was subject to the availability of foreign currency.

The defendant, he submitted, could not have guaranteed payment because it did not know how much foreign currency would be generated from the auction system.

Counsel for the defendant said the defendant's witness had confirmed that his department had not been allocated with foreign currency for disbursement.

In the main, counsel for the defendant submitted, “the plaintiff had been favoured with an allocation that it be given foreign currency of US$250,000 per week if the same was available. There was no intention to create contractual obligations.”

He said quotations sent to the plaintiff were not offers.

Counsel for the defendant further submitted, that, the plaintiff had failed to prove that foreign currency was available at the time the allocations were made.

He blamed the plaintiff for refusing to accept a refund in Zimbabwean dollars as had been done by the other companies.

In conclusion, counsel for the defendant had this to say:

“The issue of who was a better witness between plaintiff and defendant's witness is, with respect, of no great moment.

Material facts are common cause. The court should take a holistic approach in the matter and determine what the intentions of the parties were and what relationship was created.

It is submitted, that, it could not have been within the contemplation of the parties, that, a failure by the defendant to disburse foreign currency to the plaintiff due to non-availability would ground a cause of action for specific performance.

In all the circumstances, the plaintiff's claim should be dismissed with costs and it is noted it has refused the tender of the refund in Zimbabwe dollars.”

I fully agree with counsel for the defendant, that, in casu, the material facts are common cause and I made that observation at the commencement of the hearing of this matter.

My assessment is that, apart from merely confirming what is already contained in the pleadings, nothing much turns on the oral evidence from the witnesses called by both parties.

However, my view, on the one hand, is that the evidence of the defendant's witness was totally irrelevant because he was clearly a distant player in what took place in the actual allocation process.

On the other hand, I find that Mr. Turina's evidence buttressed the respondent's responses to the interrogatories.

The responses do not deny the practice that operated smoothly from January 2005 to July 2005. The only issue highlighted is that the arrangement was anchored on the availability of foreign currency.

That is undeniable, and, indeed, no allocation could have been made without the availability of foreign currency.

However, the main issue, in my view, is whether by allocating to the plaintiff US$150,000 and later US$250,000, from the auction system, the defendant then became obligated to release the money to the plaintiff upon payment by the plaintiff, within twenty four (24) hours, of the Zimbabwe dollar equivalent at the defendant's instruction.

The plaintiff called its Managing Director.

He established that his company was owed US$37,873=10. He disputed that the plaintiff owed the defendant US$62,724=42 or US$29,850=90 or any sum of money. He denied that the plaintiff overstated any tonnage on any one of its deliveries to the defendant during the period from 2 June to 7 July 2009 or at all. He did not dispute the information in all the exhibits that were produced by the defendant. He established that the plaintiff had been doing business with the defendant for close to ten years. The plaintiff was a commodity broker. Its modus operandi was that it would purchase maize from farmers.  The plaintiff benefitted from the commissions it charged on both the farmer and the defendant. He hired Felfar Transport to carry maize for the plaintiff if the farmer did not have his own transport. He had been using the trailer from Felfar since 2004.  From June 2009, he was contracted by the defendant to supply 300 tonnes of bulk maize per week. He sub-contracted ten trucks to do so. During the period covered by the counter–claim he purchased maize from farmers in Mashonaland Central. He relied on the tonnage provided by the defendant in the Goods Received Note of the defendant and Delivery Note in the plaintiff's name, as shown in the two documents produced…,. The tonnage would tally with that in the Product–In Weighbridge ticket…,.  He would present exhibit 10 the defendant's Head Office who would pay after checking its accuracy with its mill.

He confirmed that on 8 July 2009 he attended at the defendant's premises at the behest of David Irvine and George Economou. The two were in the company of Cletos Makono. They informed him about the overstatement. They did not make any allegations of impropriety against him. He was willing to assist them with their investigations but his offer was rebuffed. He, thereafter, made the deliveries of wheat feed and soya meal, the subject of the main claim. Angela and Shannon, the defendant's employees who made payments, promised payment once the defendant was in funds. When the agreed time for payment elapsed he wrote a letter of demand. It was ignored and he issued summons. He was surprised to receive the counterclaim alleging that the plaintiff had overstated the tonnage of the bulk maize delivered to the defendant.

Under cross-examination, he disputed that the capacity of the 30 tonne truck he hired from Felfar Trasnsport was 13,840 tonnes when full of bulk maize. He denied that the trailer was full to the brim during the spot check of 8 July 2009. He denied conniving with the defendant's employees. He disputed deriving benefit from the alleged overstatements. He denied that there were any such overstatements during the period set out in the counter claim. He was taken through exhibit 7. He admitted that the entries that related to his trucks were odd. He denied the actions of the defendant's employees were initiated by the plaintiff.

The Managing Director of Felfar Transport, Christopher Luwinda and his driver, Maxwell Takavadiyi, testified for the plaintiff.

It was common cause that Maxwell Takavadiyi was the driver of the vehicle whose tonnage was overstated on 8 July 2009. The driver was not privy to the internal workings of the defendant's systems, nor did he connive with any of the defendant's employees.

The second witness for the defendant was one Tichaona Masike.

He is the defendant's employee who worked on the motor vehicle in question. At the time, he was a panel beater. He has since risen to panel beater class 1, and is the defendant's Workshop Foreman.

The defendant called the evidence its manager, Eddington Zhou, based at Zengeza 5 Spar, the supermarket which received the consignment of 3,000 bags from the plaintiff. He confirmed that the defendant received 3,000 bags of mealie meal from the plaintiff. He further confirmed that the defendant sold 516 of those bags leaving a balance of 2,484 bags. He further stated that the defendant returned 1,689 bags of the original consignment to the plaintiff. He produced exhibit 2, the delivery note which showed that the defendant delivered 1,689 bags of mealie meal to the plaintiff on 12 May 2009. The plaintiff signed on the delivery note acknowledging receipt of these bags. He averred that the 1,689 bags were delivered to the plaintiff by Marongwe Transport at the cost of US$600=. He averred that the defendant was authorised to return the bags by the plaintiff's Marketing Manager, one Tafadzwa.  He averred that of the remaining 795 bags, Tafadzwa authorized the defendant to destroy 645 bags that had gone bad. The defendant sold the remaining 150 bags which it set-off against the cost of the return of 1,689 bags. He produced exhibit 1, a credit note raised by the defendant on 22 July 2009 which indicated that Tafadzwa had authorised it to dispose of 645 bags of mealie meal.

The plaintiff called one witness, a Mr Weston Munashe Makwara...,.. He said he is employed by the plaintiff as an Executive Director (Corporate and Investments Banking). His duties involved looking after customer relationships- particularly large customers. He was aware of the loan agreement between the plaintiff and the defendant; he then produced exhibit 1 containing the facility letter ...,. Mr Weston Munashe Makwara said under the Agreement the defendant would request the plaintiff to pay its (defendant's) customers/suppliers for imports. The plaintiff would then make direct payments to the defendant's suppliers. Mr Weston Munashe Makwara confirmed the seven drawdowns indicated at p2 of this judgement and said that out of the total of those drawdowns a balance of USD88,452=05 was still owing from the defendant as at 26 April 2010. Mr Weston Munashe Makwara said the facility enjoyed the authority of the Reserve Bank of Zimbabwe as confirmed by its letter of 9 February 2010. It was his evidence that prior to the issuance of the summons there was no dispute on the amount(s) owing from the defendant. Under cross examination, Mr Weston Munashe Makwara said he could not understand why the defendant could deny that drawdowns were made when repayments by the defendant were actually made by the defendant against the drawdowns. He did not agree that the plaintiff's figures were inaccurate. He agreed that the defendant had challenged the libor rates used. He also admitted that in an attempt to settle the dispute, changes were made relating to the amount owing. That, he said did not change the actual indebtedness of the defendant as reflected in the plaintiff's court papers. He said the plaintiff had, where necessary, addressed the defendant's queries. Mr Weston Munashe Makwara said payments were made to the defendant's customers as per its instructions. Mr Weston Munashe Makwara said the summons issued by the plaintiff was supported by schedules to prove the plaintiff's claim.

The second and last witness called by the defendant was Mr Neil James Bruce...,..

He said he holds a Bachelor of Commerce degree in Marketing and Economics. He joined the defendant in 2002 as a Sales and Transport Manager and rose to the position of Managing Director in 2008. He was aware of the facility letter and of the documentation required in the execution of the loan facility. Mr Neil James Bruce said the plaintiff had since paid US$233,000= towards the loan. He said that although he was advised of the seven draw downs, he had not seen documentary proof of the same. He, however, admitted that he had not worked in the department that dealt with loans. As Managing Director, Mr Neil James Bruce said he had asked for documentary proof relating to the loans. He had not yet received certificates signed by a Financial Manager in the plaintiff to show the extent of the defendant's indebtedness. He said  when the facility expired on 30 November 2003 it was extended in June 2004 and thereafter there were four(4) drawdowns for which the plaintiff was never sued....,. He said settlement negotiations had collapsed and the offer in the plaintiff's letter of 29 October 2010 had also fallen away.

Under cross examination Mr Neil James Bruce repeated that he had never worked in the Finance Department where accounts were settled. He had a Finance Director and the sum of US$233,000= was paid before he took over as Managing Director. He said he himself could not dispute that drawdowns were made but he had no proof of the same. He agreed that the dispute only arose when he took over as Managing Director. His predecessor had been paying towards the debt. His own calculations had given him a balance of US$35,000= instead of US$78,603=08 initially demanded by the plaintiff. He agreed, though, that in the plea the defendant had denied owing any money at all.

The plaintiff called the evidence of its Territory Manager, Lovemore Tichaona Kuwana, and produced two documentary exhibits.

Graham Pierce Mommsen, the Managing Director of Battery World, testified.

He was not involved in the day to day operations of the town branch. He spoke to the general policy of his company on quotations in the hyperinflationary environment that characterized the Zimbabwean economy at the time. He stated that at the material time prices for the 42 range of batteries that his company traded in was fixed by the National Income and Pricing Commission. His testimony that his company gave out quotations that were valid for 24 hours was contradicted by his Town Manager, Mrs Jennifer Anne Jayne, who said the quotations were valid for 48 hours. While he spoke to Godwin Dingwiza when he came to complain and demand for the 50 batteries in September 2008, his averments that he was briefed directly by Mrs Jennifer Anne Jayne on the issue was disputed by her as she stated that she only dealt with the Group Sales and Marketing Manager, Mr Fourie. His averment that the scrap of paper was a price list, though confirmed by Mrs Jennifer Anne Jayne in her evidence, was at variance with Mrs Jennifer Anne Jayne's acknowledgment in her reply to Godwin Dingwiza's letter on 1 September 2008 that it was a quotation. He produced new price list of 5 September as exhibit 2. He agreed that prices were fixed by price controls until 5 September.

Vincent Bushu was called next.

He testified to the following effect. He is a sales representative of the plaintiff company - and has been so for 7 years. The defendant has been their customer for two years and was on a 7 day account. The witness would first collect from the defendant the money for the previous invoice which had to be settled first before he could supply him with any further stock that he may then order and which would be reflected on the next invoice. On 22 September 2010, the witness supplied the defendant's manager, one Kaunda, with stock after he had settled the previous invoice. On 2 October 2010, at Pamuzinda Lodge, he met with the defendant's manager who paid for part of the consignment supplied on 22 September 2010, leaving a balance of US$1,717=. As Kaunda wanted more stock, the witness contacted his superiors and was given the go-ahead to give him another supply as he had paid a large proportion of the amount owed on that invoice. He had paid US$10,430=. Kaunda asked for a receipt for him to show his employer, the defendant, that there was an unpaid balance. After talking to the defendant on the phone, Kaunda told the witness to come to the shop on the Monday to receive payment of the balance. When the witness supplied the stock to Kaunda, Kaunda did not sign for it. The witness spoke to the defendant over the phone and asked if he could sign for the invoices to show that he agreed with the stock supplied and the balance on the previous invoice. The defendant asked the witness to come to the shop on the Monday for him to sign the documents. The witness said that on the Monday he went to the defendant's shop where the defendant signed for the invoices and agreed on the balance for the previous invoice as well as the then current one. The defendant did not pay the balance owing citing poor sales at the shop. The defendant advised the witness to contact him on the Wednesday - which he did. The witness said that on the Wednesday the defendant said that he had no money and that he was working out a plan to raise the money so that he could pay his debt. The witness then sought advice from his employer's offices. Eventually the last witness, Elijah Michael Chiwara, was advised and he arranged to meet with the defendant at his shop.

The first witness called by the plaintiff, Mr Alvin Dumisani Ncube, had testified that he was the Managing Director of the plaintiff.

He said because of the nature of his equipment, he had, from the commencement of the lease agreement, in 2005, indicated to the first defendant the need for security and had even offered to assist in identifying a security firm. He said a Mr Chihota had informed him that the landlord (first defendant) would indeed provide security for the leased premises. The landlord had, from 2005 up to the time of the break-in on 18 April 2008, billed the plaintiff for its portion of the security costs. In support of his evidence, Mr Alvin Dumisani Ncube referred the court to receipts and statements of account appearing on pp1-4 of the document he produced as exhibit 1.

Mr Alvin Dumisani Ncube said when the burglary occurred police were informed. The matter, according to him, was then left in the hands of the police and the two defendants.

Mr Alvin Dumisani Ncube also testified that in 2008 there was a change of management in the first defendant. He said that despite the new management denying the existence of a lease agreement, the first defendant continued to bill the plaintiff for security services. He confirmed that goods listed on page 2 of this judgment were indeed stolen after the burglary.

Under cross examination, Mr Alvin Dumisani Ncube said that although the plaintiff could provide invoices and receipts as from 2005 it had thought the few it produced in exhibit 1 were sufficient to prove its case.

The first defendant…, called its first witness, a Mr Martin Kwaramba.

The witness said he had been employed by the first defendant for 18 years as a Buyer. He said he knew of the arrangements relating to security. He said that at the material time all tenants were responsible for their security in respect of premises let out to them. The landlord only collected payment for onward transmission to the security companies concerned. He said the Tenants Association had agreed that payments should be made through the first defendant. He had heard about the burglary of 18 April 2008 but argued that the first respondent was not responsible since security matters were the plaintiff's responsibility. He did not agree with the value placed on the plaintiff's goods.

Under cross examination, Mr Martin Kwaramba said as a Buyer he only got to know something relating to security arrangements during budget meetings. He said, unlike others, Kingsport had its own security arrangements in place. He said the first defendant never contracted with the second defendant for security. He said when it was agreed that the first defendant should make arrangements for security, some tenants did not pay, and, as a result, there was no security as from 2007 to 2008. He said the second defendant was never asked to guard any premises.

The second defendant called one witness.

It called Mr Sephen Partze Musha who said as at 18 April 2008 the second defendant was only contracted to Kingsport. He said the second defendant was not responsible for security in the plaintiff's area. He therefore did not know why the second defendant was being dragged into court.

Sharon Samushonga put herself in the most unenviable situation of having to testify on issues that allegedly happened long before she came into the picture.

The accepted evidence is that the defendant took occupation of the leased property in 2002 and that Sharon Samushonga joined the plaintiff as its Chief Operations Officer in June 2008. The improvements and construction of the new structures on the leased property took place long before Sharon Samushonga joined the plaintiff and naturally her evidence on the claimed improvements and construction work by the defendant natural limitations.

Evidence for the plaintiff was led from its Director, Sales Manager, Property Negotiator as well as the Health and Safety Manager of Total Zimbabwe (Private) Limited….,.

Phillip Mugadza, a Director of the plaintiff was the next to testify.

He stated that he was not involved in negotiations for the sale of Chibuku House. He referred to an occasion when he and Mr Ndizeye, a legal practitioner, went to the first defendant's offices and held discussions with Mr Mapani in the presence of Mr Vera. They discussed the possible financing of fertiliser procurement and the first defendant's officials referred them to BancABC. He specifically denied discussing the issue of properties and in particular Chibuku House. He further stated that on their way out Mr Vera had indicated that they had funds to purchase surrounding buildings in order to establish NSSA Park. He denied ever going to the first defendant's offices in the company of Anthlem Tafirei Gwedegwe and Angeline Musarurwa.

Under cross-examination, Phillip Mugadza stated that he only visited the first defendant's offices once. He denied ever calling Mr Mapani despite having been given his business card. According to him, it was Mr Ndizeye who called Mr Mapani in connection with the fertiliser issue. The call was made from his office, which he gave as Market Giant. Philip Mugadza was asked about his mobile phone number and stated it as…,. He denied texting Mr Mapani in connection with Chibuku House on 9 December 2009.

It was put to him that there was a text message that emanated from his phone and he stated that because of time lapse he could not recall everything.

Angline Musarurwa, who used to be the plaintiff's property negotiator, testified that a representative of the first defendant, Mr Matiza, informed her that they were interested in Chibuku House. She was referred to Mr Chidhuza, again a representative of the first defendant, who confirmed the same. Mr Chidhuza told her to verify if the property was on sale, and, if so, the price. She was also told to establish if the seller was giving a mandate.

Angeline Musarurwa briefed Anthlem Tafirei Gwedegwe. Both of them went to see Mr Chidhuza to confirm whether the property was on sale. Mr Chidhuza confirmed so but told them Total Zimbabwe (Private) Limited was not giving a mandate. He told them to make an offer of US$2,500,000=. They were also told to get their commission separately. Anthlem Tafirei Gwedegwe went to Total Zimbabwe (Private) Limited but the offer was turned down. Instead, Total Zimbabwe (Private) Limited indicated they wanted a written offer from the first defendant. Angline Musarurwa then took an offer form to Mr Chidhuza for confirmation. Subsequently, a second offer was made to Total Zimbabwe (Private) Limited on behalf of the first defendant.

The last witness to testify was Josphat Kafuka, the Transport and Safety Manager for Total Zimbabwe (Private) Limited.

The plaintiff called one witness, one Simbarashe Nhopi in support of its case. He is its Administration Manager.

He testified that the plaintiff used to run a butchery from a leased property along Fort Street and 13^th Avenue. The said premises have been recovered by the landlord thus necessitating the plaintiff to seek alternative premises to operate its butchery business. The plaintiff decided to recover its premises from the defendant hence the notice. The decision was informed by the fact that the premises were ideally located near Unit Village Flea Marketing and further near a busy public transport drop off/pick up point. The butchery would therefore be exposed to many people. Further, the premises had an extra room which would be ideal for fitting a coldroom. He conceded that there were attempts to raise rentals during the period 2003 to 2010 and also that at some stage the plaintiff instituted proceedings to evict the defendant for rent arrears. He, however, distanced those issues from the current matter. He said the current matter is premised on business considerations. He said that in 2010 the parties reached an agreement on increased rentals which the defendant failed to honour. 

I am satisfied that Simbarashe Nhopi gave a credible explanation why the plaintiff seeks to recover the premises. His testimony has adequately proved that the plaintiff has good and sufficient reasons to recover its premises.

The defendant dwelt a lot on the history of the relationship of the parties between 2003 and 2010. 

In this long period of around seven years one would expect rent increases, especially bearing in mind that the substantial part of that period was during the hyperinflation era. The plaintiff's conduct has to be viewed in that context. The same goes to the previous legal proceedings instituted by the plaintiff against the defendant. These actions do not impeach the genuineness of the plaintiff's desire to reclaim the premises for its own use. In her own evidence, the defendant states that she withheld part of the agreed rental to induce the plaintiff to effect repairs on the premises. The legal proceedings to recover perceived rent arrears have to be viewed in that context and have nothing to do with the current proceedings.  In the circumstances, the plaintiff made out a case for the relief sought….,.

Accordingly, it is hereby ordered that:

(1) The termination of the lease agreement between the parties is confirmed.

(2) An order is granted for the eviction of the defendant and all those claiming through her from Number 4 Derby House, Bulawayo within fourteen days of service of this order.

(3) In the event that the defendant fails to comply with the order in paragraph 2, above, the Deputy Sheriff, Bulawayo be and is hereby ordered and directed to evict the defendant and all those claiming through her from the above-mentioned premises.

(4) The defendant pays the plaintiff costs of suit on the ordinary scale.

Nevison Nyamhute also testified as the last witness on behalf of the plaintiff.

The witness, an employee of the Ministry of Rural Resettlement, Mutoko, left the court wondering if the Ministry is aware their face is in such incapable hands in Mutoko.

One would only gape in amazement as he recounted events that unfolded at his office. His office played the overseer of land issues on behalf of the Government. The office had the responsibility of issuing out land and keeping registers for villages in Mutoko. He narrated how the defendant approached him on 5 May 2008 with a court extract judgement from the Magistrates Court. The defendant advised him that the court had ordered that she stays at Plot Number 8. She notified she was having problems with the plaintiff, her late husband's son. The witness sought to have the court believe that the fact that the defendant was coming from court made him comply with a “court order”, that plaintiff's claim had been dismissed and hence he went to the register and deleted Enerst Chakanetsa Mazarura's name and in its place endorsed the defendant's name as shown on the register exhibit tendered in court. He did not get any death certificate to confirm the death of the deceased. He told the court that out there at Mutoko if something is coming from the court then they just comply. He did not bother to read the court judgment or extract because if he had it was clear the purported, one Enerst Chakanetsa Mazarura, had testified as a witness in court and was not dead. It is clear from the magistrate's judgment that the plaintiff was seeking to evict the defendant from Plot 8 and it is that claim which was dismissed. There is no indication in the judgement of the Mutoko court which was tendered as an exhibit…, to show that the court was dealing with a deceased estate. The witness knew that his office had confirmed ownership of Plot 8 in question to the defendant and yet again the same office went ahead to confirm subsequent ownership to the plaintiff. The witness clearly showed a carefree attitude in the manner he carries about his duties. His evidence was incredible. Even though he tried very hard to convince the court that the defendant had misled him for him to change ownership it could not be accepted given the court extract he stated he religiously complied with showed the defendant's husband was alive.

The evidence of the former employee of Mbaba Mine is only helpful to the extent that it proves what is already common cause, to wit, that Mbada Mine was the importer of the equipment. He could not positively state whether Mbada Mine had purchased the equipment before it was imported or paid for it at any time thereafter.

At the appeal hearing, the appellant called the testimony of six witnesses….,.

Three of the witnesses flew from the headquarters of the foreign based Banking group that controls both the appellant and the related party. These were the Group General Counsel, who has been with the group since 2002, the Financial Controller, who has been with the Banking group since 2008, and the Head of Central Finance and Chief Finance Officer of the Africa Division of the Banking group. The last three witnesses were the Chief Finance Officer and the Head of Global Markets and Treasury of the appellant and a tax consultant with a local firm of chartered accountants.

Having failed to obtain its money from SM Tyres (Pvt) Ltd, the respondent then issued summons in March 2014 out of the High Court against the appellant for payment of the amount owing because SM Tyres had failed to pay the judgment debt. It sued on the strength of a surety document. It alleged that the appellant and Shadreck Mawire stood as sureties on behalf of SM Tyres as was required of SM Tyres when it signed the marketing licence agreement. The appellant denied having stood surety for SM Tyres and the matter proceeded to trial.

The respondent's sole witness, Esther Verenga, the General Trade Manager for Total Zimbabwe, testified that the respondent entered into an agreement with a company called SM Tyres (Pvt) Ltd trading as Nyamapanda Service Station. She averred that she was not responsible for the preparation of the surety document because a template was used. She further testified that she was not present when the document was signed neither was she aware of who was present at the signing of the agreement. She however stated that the surety document had a signature belonging to the appellant and his contact details. She stated the amount that was owing and how it had accrued.

At the end of the respondent's case, the appellant applied for absolution from the instance. The appellant's argument was that the respondent's witness was not present when the surety document was either prepared or signed therefore the evidence she presented before the court could not be relied upon…,.

3. Whether the respondent's single witness was credible?

In the proceedings a quo, the respondent (who was plaintiff a quo) led evidence from a single witness, Ester Verenga. It was submitted, on behalf of the appellant, that the court a quo erred in holding that the respondent's sole witness was credible and lacked probity. He further averred that the sole witness's credibility was negated by the fact that she proffered no direct evidence with regards to the facts in issue.

In my view, the presence or otherwise of the respondent's witness when the surety agreement was either prepared or signed is inconsequential. What is clear is that the appellant failed to produce evidence that substantiated his defence.

The entire respondent's case was based on the evidence of a single witness, Ester Verenga, the General Trade Manager for the respondent. The appellant challenged the credibility of this witness on the grounds that she was not present when the agreements were signed.

The law relating to a single witness was set out in R v Mokoena 1956 (3) SA 81 (A)…,. It was held that:

“The uncorroborated evidence of a single witness should only be relied upon if the evidence was clear and satisfactory in every material respect. Slight imperfections would not rule out reliance on that evidence but material imperfections would…,. However, in the latter case of S v Sauls & Ors 1981 (3) SA 172 (A) the Appellate Division stated that there was no rule of thumb to be applied when deciding upon the credibility of single witness testimony. The court must simply weigh his evidence and consider its merits and demerits. It must then decide whether it is satisfied that it is truthful, despite any shortcomings, defects or contradictions in that testimony. The approach adopted in the Sauls case was followed in the case of Nyabvure SC23-88. See also Worswick v State SC27-88; S v Mukonda HH15-87; S v Nemachera SC89-86; and S v Corbett 1990 (1) ZLR 205 (S).”

The evidence of a single witness was also discussed by BECK JA in his article in the 1986 Vol 1 No.1 Prosecutors Bulletin…,. where he says:

“In assessing the quality of the single witness' evidence, to decide whether the accused should be convicted on the basis of this evidence, the court should be most attentive to the nature of the witness, looking at his apparent character, his intelligence, his capacity for observation, his powers of recall, his objectivity and things like that. The evidence should be carefully weighed against the objective probabilities of the case, and against all the other evidence which is at variance with it. The court must have rational grounds to conclude that the evidence of the single witness is reliable and trustworthy and is a safe basis for convicting the accused.”

The court a quo stated, on page 3 of the judgment, as follows:

“The respondent's witness maintained her story under cross examination. The witness gave her evidence well. Although this was a single witness case, the evidence of the witness was clear, truthful and satisfactory. Her version was corroborated by the contents of the surety document and other documents produced. She was a credible witness and I believed her.”

It is trite that an Appellate Court will not lightly interfere with findings of credibility by a lower court unless such findings are clearly unreasonable and not supported by the evidence led. This is because the trial court will have had the opportunity to see the witness and make its assessment.

In casu, the evidence adduced by the respondent's witness was clear and unequivocal. She stated that at the time the respondent entered into the agreement with SM Tyres (Pvt) Ltd she was not yet the General Trade Manager but the Retail Manager. She further stated that she was aware of the agreement that was entered between the respondent and SM Tyres as well as the surety agreement entered on behalf of SM Tyres by the appellant and Shadreck Mawire. Although she was not present when the agreement was drafted and signed she confirmed that the agreement was available and produced it before the court. Her evidence was in accordance with the undisputed evidence that was before the court and it accordingly was satisfied that she was a credible and reliable witness.

On the other hand, the court a quo found that the appellant was not a candid witness. The court found that considering his level of education he should have grasped the repercussions of entering into a surety agreement in the manner that he did. His failure to write Limpopo Investments and attributing the failure to an oversight was not truthful. The only conclusion that this court can make is that the appellant was well aware to whom he was standing as surety.

The trial opened with the plaintiff calling its General Trade Manager, Ester Verenga. She was the plaintiff's sole witness. She testified that when the transaction in issue was entered into she was the Retail Manager for the plaintiff…,.

The witness acknowledged, under examination, that she is not the one who prepared the Deed of Suretyship as a template is used. She was not present when it was signed and she did not try to find out who the witnesses were and who was present when it was signed….,. The former Retail Manager, Mr Chiunda, is the one who put these papers together…,.

The defendant submitted that the evidence of the sole witness to the plaintiff's case revealed that the surety document was signed for Limpopo Investments and not SM Tyres (Pvt) Ltd. The defendant contended that the witness did not prepare the surety agreement on which the plaintiff's case is based and she did not know how both the Marketing License Agreement and Surety Agreement found themselves together….,.

The witness gave her evidence well. She maintained her story under cross examination. Although this is a single witness case, the evidence of the witness was clear, truthful and satisfactory. Her version was corroborated by the contents of the surety document and other documents produced. She was a credible witness and I believed her.

The plaintiff called the evidence of its Credit Controller, one Dumisani Sibanda and produced three (3) documentary exhibits in a bid to prove its claim…,.

The witness failed to express himself clearly on the discount rate. He confused himself by seeking to equate it with interest when it was not interest….,.

The defendants sought clarification not only on how the rate which was used (of 29.7%) was arrived at but on whether or not it was accurate.

In my view, this obliged the plaintiff to lead evidence on what each rate was on each day of the 30 day period and then demonstrate how the rate which resulted in the sum of $74,340,879=86 was arrived at. Dumisani Sibanda failed to do so….,. The onus lay on the plaintiff to do so, and not on the defendants.

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

To counter the evidence of the plaintiff was the evidence of Mr John Thomson Mungwari, the Managing Director of the first defendant.

The plaintiff's case was presented through the evidence of its head of Human Resources Division, Elliot Short Rwatirera, who has been so employed for 14 years, and its Senior Executive Support Services, Francis Tamanikwa….,.

The two (2) gentlemen who testified on behalf of the plaintiff gave their evidence extremely well supported by documentation which they explained very clearly. In the process, they made up a very good and clear case for the plaintiff in respect of ownership of the vehicle. What they failed to do, though, is justify the claim for damages….,.