MAFUSIRE
J:
This
was an opposed court application that I heard on 16 September 2013.
Soon after argument I issued the following order:
“1.
The Respondent's objections in limine are dismissed.
2.
The Applicant's application to delete “(Private)” in the name
of the Respondent [and] in its place to substitute “(Zimbabwe)”
is granted.
3.
It is hereby declared that the Applicant is entitled to purchase
[the] motor vehicle, namely a Mazda Familia Registration number AAM
7769 at 10% of its market value.
4.
The Respondent is directed to cause an evaluation of the said motor
vehicle to establish its open market value and to sell to the
Applicant the vehicle at 10% of the market value so established.
5.
The Respondent shall pay the costs of suit.”
I
gave reasons for my order ex tempore. I suggested that if any party
wanted them in writing I would do so upon written request. I heard
nothing further until more than a year later. On 2 October 2014 the
record was placed on my desk with a letter from the Registrar of this
court advising that an appeal had been noted and that the reasons for
judgment were being requested. In due course I sat down to write this
judgment. It was then that I saw a letter from the respondents'
legal practitioners dated 26 November 2013 tucked at the back of the
record. The letter advised of the respondent's intention to appeal
and it requested the reasons for my “judgment”.
That
explains the delay.
In
this matter the applicant sought an order declaring, in the main,
that she was entitled to purchase a certain Mazda Familia motor
vehicle, registration no. AAM 7769 (hereafter referred to as “the
motor vehicle” or “the vehicle”), at 10% of the market value.
The facts were largely common cause. They were these.
The
applicant had just resigned from employment with the respondent after
five years. The motor vehicle had been a company car issued to her in
terms of the respondent's motor vehicle policy. She applied to buy
it. Initially the sole dispute was whether the applicant was entitled
to buy the vehicle at 10% of the market value as she contended, or at
the market value, less 10%, as the respondent contended. The
applicant based her claim on a document that she said was the
relevant motor vehicle policy that governed her employment.
The
respondent based its contention on another document that it said was
the amended policy that had been introduced during applicant's
tenure of employment and which, allegedly, had replaced the
applicant's document.
With
time the dispute escalated to include the argument that the sale of
any company vehicle to incumbent holders was at the discretion of the
respondent as the employer and owner of such vehicles and that in the
applicant's case, the respondent had decided against selling. It
was also argued that when initially the respondent had communicated
its offer to her the applicant had purported to accept something else
which had not been in the respondent's offer. The fallacy in these
latter arguments will become apparent shortly.
The
respondent took two points in limine.
The
first was that until she had paid in full the costs awarded against
her in previous proceedings concerning the same parties and relating
to the same subject matter, the applicant was disbarred from
proceeding with her current application.
None
of the parties tendered any substantive details concerning this
previous matter. But both agreed that the court had a wide discretion
to allow or stay a matter if indeed the costs of a previous matter
between the same parties in respect of the same subject matter
remained outstanding. The applicant tendered some evidence to show
that she was paying those costs in instalments. She then argued that
the respondent had other remedies and that therefore she could not be
non-suited on that account.
I
dismissed the respondent's first point in limine.
It
is a very serious thing to withhold the court's jurisdiction from
anyone. The speedy determination of civil rights and obligations by
courts of law is one of the fundamental human rights and freedoms
enshrined in the Constitution. Obviously the right is not, and cannot
be, absolute. Very few things in life are absolutes. But there ought
to be exceptional reasons why someone's right of access to the
courts should be impeached. None existed in this case. No proper case
was made out that the applicant had breached an obligation to
reimburse the respondent of its costs in a previous case. On the
contrary, there was evidence that she indeed was paying. Furthermore,
even if the applicant was in breach of any order of costs against
her, the respondent could have them taxed and then initiate recovery
proceedings.
The
respondent's second point in limine was that the applicant had sued
a non existent entity.
It
said its correct name was “P. G. Industries (Zimbabwe) Limited”,
and not “P. G. Industries (Private) Limited” as on the
applicant's citation.
The
applicant reacted by applying to remove “(Private)” wherever it
appeared on the respondent's name, and to substitute it with
“(Zimbabwe)”. The respondent raised the issue of the alleged
non-existent entity in the notice of opposition.
That
prompted the applicant, in the answering affidavit, to give notice of
intention to apply for an amendment. The respondent then went on to
devote some ten or so paragraphs in its heads of argument, and
further, some appreciable time during oral submissions, arguing that
the applicant's claim should be dismissed on account of the alleged
misspelling. But on no occasion was it mentioned how such an
amendment would prejudice the respondent.
In
terms of Order 20 Rule 132 the court or a judge may at any stage of
the proceedings allow a party to alter or amend its pleadings. The
alteration should be on such terms as may be just and for the purpose
of determining the real question in controversy between the parties.
The Rule is worded as follows:
“132.
Court may allow amendment of pleading
Subject
to Rules 134 and 151, failing consent by all parties, the court or a
judge may, at any stage of the proceedings, allow either party to
alter or amend his pleadings, in such manner and on such terms as may
be just, and all such amendments shall be made as may be necessary
for the purpose of determining the real question in controversy
between the parties.”
The
general rule is that an amendment of a pleading will always be
allowed unless the application is mala fide or the amendment will
cause an injustice or prejudice to the other party which may not be
compensated by an order of costs; Commercial Union Assurance Co Ltd v
Waymark NO 1995 (2) SA 73 and UDC Ltd v Shamva Flora (Pvt) Ltd 2000
(2) ZLR 210 (H).
In
Old Mutual Asset Management (Pvt) Limited v F & R Travel Tours
and Car Sales HH 53/2007 the plaintiff was cited as “Old Mutual
Asset Management (Pvt) Limited”. In the declaration it was
described as “Old Mutual Properties (Pvt) Limited”. Plaintiff
moved to amend its name as cited in the declaration, by the deletion
of “Properties” and the substitution thereof with “Asset
Management”. Citing Stewart Scott Kennedy v Mazongororo Syringes
(Pvt) Limited1
, GOWORA J, as she then was, first noted, inter alia, that a
declaration, where it differs from the summons, automatically amends
the summons to the extent of that difference. She then dismissed the
application on the basis that in that case it was not just a question
of the mis-spelling of the plaintiff's name but that the pleading
commencing action was null and void because the purported plaintiff
was non-existent. However, in passing the learned judge had noted as
follows2:
“It
is trite that an amendment, even where it is intended to substitute a
party, will be granted unless the application to amend is mala fide
or would cause prejudice to the other side which cannot be cured by
costs.”
I
agree with such an approach.
The
situation in both the Old Mutual and the Stewart Scott Kennedy cases
was materially different from that in the present case. In those
cases there was, in law, no process before the court, a non-existent
entity having purported to bring the proceedings. In casu, it was not
the plaintiff who was said to be non-existent. It was the respondent.
There was proper process before me. But the respondent's name had
been mis-spelt. The mis-spelling was, in my view, something rather
innocuous.
In
the founding affidavit the applicant had described the respondent as
“P. G. Industries '(Pvt)' Ltd, a company duly incorporated in
terms of the laws of the republic ………… whose address of
service for purposes of these legal proceedings is care of their
legal practitioners of record Messrs Mawere & Sibanda ….”
In
the notice of opposition the respondent, duly represented by its
legal practitioners of record, Mawere and Sibanda, first claimed that
there was no legal entity called P.G. Industries (Private) Limited,
and then went on to name and describe itself as “P. G. Industries
'(Zimbabwe)' Limited, a company duly registered in terms of the
laws of Zimbabwe which (sic) capacity to sue and be (sic) sued in its
own name.” (my underlining).
The
respondent was a juristic person. The two words “Private” and
“Zimbabwe” are merely descriptive. A company with “Private”
as part of its name denotes that it is a private company with certain
restrictions on some of its rights. For example, in terms of section
33 of the Companies Act [Cap 24:03] the right to transfer shares, the
right to have members that are less than two or more than fifty, the
right to invite members of the public to subscribe for shares or
debentures, etc. are all restricted in respect of private companies.
On the other hand, a company with “Zimbabwe” as part of its name,
and without “Private”, may suggest that it is a public company
listed on the local stock exchange.
In
the case of the respondent, the words “Private” or “Zimbabwe”
were not, in my view, an intrinsic part of the name. They were not
the root. The root, in my view, was “P. G. Industries”. That is
why the substitution of the one word with the other would not in the
least cause any prejudice. And the respondent never said that its
objection was based on any perceived prejudice.
I
therefore dismissed that point in limine too.
The
crux of the matter before me was which of the two documents touted by
the parties as the motor vehicle policy governed the applicant's
employment at the relevant time?
Two
other issues, raised somewhat belatedly, were;
(1)
whether or not the respondent had agreed to sell the motor vehicle to
the applicant; and
(2)
if it had, at what price?
I
had no hesitation in dismissing the respondent's document. In my
view, it was a clumsy counterfeit.
Both
documents were fairly extensive and comprehensive. One remarkable
thing about them was that the print, the font, the graphics, the
design, the layout and virtually everything else, was identical. Even
the wording was identical, except only in the one clause germane to
the dispute. That was clause 11.0. In my view, that was where the
respondent got caught out. I shall demonstrate this.
The
heading on the applicant's document, in upper case, was “MOTOR
VEHICLE POLICY NO. 1 OF 2008”. The respondent argued that this
document had been amended or replaced in May 2011. Incidentally,
applicant had resigned from employment in June 2011. If the
applicant's document had been amended or replaced in May 2011, one
would reasonably expect the amending or replacement document to
reflect the date of its own inception or, at least, to say something
different somewhere. But except for clause 11.0, it did not.
The
respondent's document was also headed, in identical font and case,
“MOTOR VEHICLE POLICY NO. 1 OF 2008”. The second part of the
heading of the applicant's document read “AMENDMENT NO. 1 OF
JANUARY 2011”. The respondent's document was also headed
“AMENDMENT NO. 1 OF JANUARY 2011”.
How
could both documents purport to be the same amending document and
purport to be amending the same old policy?
But
that was not all.
On
the applicant's document, after the headings, there followed some
twelve main clauses, some with sub-clauses. These were spread over
some nine pages, starting with clause 1.0, up to clause 12.0. The
contentious clause 11.0, headed “DISPOSAL”, was towards the
bottom of page nine on applicant's document. It was exactly the
same on the respondent's document; the only difference being that
in the case of the respondent's document, clause 11.0 occupied a
slightly larger space and consequently left no enough room for the
next clause, namely cause 12.0. Both documents indicated that they
went up to page ten. However, page ten of applicant's document was
not attached. But this was immaterial. It was not even an issue. The
dispute centred on clause 11.0.
I
shall come to it in a moment. For now I continue with my analysis of
the other areas so as to place clause 11.0 in context.
Clause
1.1 on the applicant's document said; “This amended policy shall
be effective from 1st May of 2011 and its implementation will not be
in retrospect.”
The
corresponding clause on the respondent's document said exactly the
same thing. On the foot of every page on applicant's document were
boxes with names and signatures of two of respondent's officials
who had prepared and approved the policy. In the boxes, apart from
the names and the signatures, were three inscriptions stating that it
was Motor Vehicle Policy no.1 of 2011, which was effective from 1 May
2011 and was replacing Policy no. 1 of 2008. It was exactly the same
thing on the respondent's document.
The
respondent continued to argue that its document replaced the
applicant's document in May 2011 but gave no exact date when this
had been. I rejected that contention. It was manifestly untruthful.
How could respondent's document be effective from the same date as
that of the applicant's?
The
respondent accepted the applicant's document as genuine.
So,
if applicant's document had been first in time, as respondent
acknowledged, how then could its own document apply retrospectively
given that clause 1.1 in both documents was against retrospective
application?
Applicant
maintained that the respondent's document was a fabrication. She
said if at all it had been brought in at some stage, then it could
only have been after her departure as nobody had brought it to her
attention during her tenure.
That
sounded plausible enough to me.
The
next clause after clause 11.0 on applicant's document was an
incomplete clause 12.0 headed “EXISTING VEHICLES”. Its sub-clause
[i.] was accommodated on the bottom of page nine. The whole of clause
12.0 on respondent's document was on page ten. None of its
sub-clauses could be accommodated on page nine. That was because on
respondent's document clause 11.0, the bone of contention, had some
words altered, some added in and a whole new sub-clause inserted. On
applicant's document clause 11.0 read as follows:
“11.0
DISPOSAL
(i.)
On the attainment of 120,000km mileage, comprised of monthly
allowable business and private mileage or upon attaining of 5 years
of age, provided the vehicle has been in use for a minimum of 3
years, the vehicle may be offered to the employee for purchase.
(ii.)
An employee whose vehicle is being replaced will have the right of
first refusal offer to purchase the vehicle at 10% of open market
value or at book value, whichever is the lesser.”
On
the other hand, clause 11.0 on respondent's document read like
this:
“11.0
DISPOSAL
(i.)
Upon the attainment of 5 years of age, provided the vehicle has been
in use for a minimum of 3 years, the vehicle may [author's
emphasis] offered to the employee for purchase.
(ii.)
The vehicle may be purchased at market value less 10% or depreciated
net book value, whichever is the lesser.
(iii.)
The Group Chief Executive Office will approve the disposal of all
company cars.”
It
was not difficult to see that the new clause 11.0 in respondent's
document had far reaching changes which constituted a serious
diminution of rights and benefits accorded to employees under the old
policy. Demonstrably, those changes were meant to ward off
applicant's claim.
For
example, and to begin with, applicant's clause 11.0 only had two
sub clauses. Respondent's had three. Next, the reference to a
mileage of 120,000 kilometres in applicant's document was
completely scrapped off in respondent's. It was common cause that
the applicant's vehicle had clocked over 165,500 kilometres on the
dash board. Furthermore, by highlighting, in the respondent's
document, the word “may” in the obligation to offer the vehicle
for sale, it was obviously meant to emphasise the discretion of the
employer in that regard. That was the bulwark of the respondent's
argument at the hearing.
However,
and more importantly, the price at which the vehicle could be sold
was increased phenomenally from 10% of the open market value to a
market value less 10%. The whopping difference was dramatized by the
figures that were disclosed in the papers. After some three
valuations the vehicle's open market value had been agreed at
$3,500-00. The applicant had tendered $315-00, being the 10% of the
market value, less another 10%. The respondent rejected that and
demanded a purchase price of $3,150 which was the market value less
the 10%. Finally, in the new document, the respondent's highest
office would now have to be involved in the disposal of such
vehicles, something that was not there in the applicant's document.
There
was nothing to suggest that clause 11.0 in the respondent's
document was a genuine amendment. Even if it was, there was nothing
to show that it had been effected during the applicant's tenure of
employment, or that it had been brought to her attention and that she
had consented to it. What I found probable was that clause 11.0 in
respondent's document had been inserted after the fact. Therefore,
that document was not the actual motor policy vehicle that was in
place during applicant's tenure of employment. It was partly for
that reason that I found for the applicant.
But
there were other reasons.
As
pointed out before, the respondent's argument was further developed
to say that it had the sole discretion to sell or not to sell company
vehicles to incumbent users and that it was not obliged, in terms of
the motor policy, to sell to the applicant.
Predictably
the spotlight was on the word “may” to stress the discretion
reposed in the respondent in that regard.
The
respondent's argument was also developed to say that even if I
found that it had agreed to sell to the applicant, the sale was not
perfecta, allegedly because what the respondent had offered is not
what the applicant had accepted. It was put this way in the
respondent's heads of argument:
“6.2
Further, for a contract to be formed it is necessary that the offeree
must, in agreeing, accept the exact terms offered by the offeror.
Where the offeree makes a counter-offer or signifies a qualified
acceptance of the offer, the offer is taken to have been refused and
no contract is formed – see Orion Investments (Private) Limited v
Ujaama (sic) Investments (Private) Limited 1987 (1) ZLR (sic).
6.3
The Applicant was made an offer to purchase the vehicle, the
Applicant accepted an offer that was not made to her and as such no
contract came into existence.”
The
fallacy in the respondents' two arguments above is exposed by the
detail. It was abundantly clear from the motor vehicle policy that,
among other things, the possession of a company vehicle for both
business and private use for certain grades was an integral
employment benefit. It was said company vehicles were provided for
those grades as part of a competitive, market related package to
cater for the employees' specific operational needs so as to
capture best and modern reward practices. Clause 3.1 was more
succinct:
“3.1
There are two reasons why the Company issues motor vehicles to
employees. The first is due to seniority of the employee, such as a
manager, in order that he or she can undertake the work necessary at
the level at which that person is employed and also as part of the
remuneration package of that individual. These will be issued with
Company cars.”
I
am not suggesting for a moment that the right of an employee to a
company vehicle entails the right to buy it. But in this case, it was
against the philosophy of the respondent on company vehicles as set
out above that I had to consider clause 11.0. It was the clause that
provided for the sale of company vehicles to incumbent holders. That
philosophy was further elucidated in clause 4.3 as follows:
“4.3
A 'company car' is one allocated to an individual in recognition
of one's managerial status. It is a benefit accruing to an
individual as part of his or her conditions of service. The employee
is entitled to use it for both company and personal business, subject
to the provisions of this policy.” (my emphasis)
Thus,
in a nutshell, and in my own words, at respondent's company,
company vehicles were a reward or benefit for certain senior grades.
They were an integral part of the conditions of service.
The
applicant had been employed by the respondent as Group Audit Manager.
It was common cause that her grade entitled her to a company car. It
was also common cause that for her grade, and in particular in terms
of clause 11.0, she was entitled to expect the respondent to sell her
the vehicle after it had clocked a mileage of 120,000 kilometres, or
had reached the age of five years if it had been in use for not less
than three years. The applicant was also entitled to expect that when
the respondent offered her to purchase the vehicle the purchase price
would be 10% of the market value.
In
my view, such expectation could not be taken away unilaterally by the
respondent. To take it away as the respondent had purported to do
with its document would amount to an unlawful diminution of the
applicant's conditions of service: see Administrator, Transvaal and
Ors v Traub and Ors 1989 (4) SA 731; Dube v Chairman, Public Service
Commission & Anor 1990 (2) ZLR 181 (H); Health Professions
Council v McGowan 1994 (2) ZLR 392 (S); Affretair (Pvt) Ltd &
Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S); Taylor v Minister
of Education & Anor 1996 (2) ZLR 772 (S); Kanonhuwa v Cotton Co
of Zimbabwe 1998 (1) ZLR 68 (H) and Air Zimbabwe (Pvt) Ltd v Zendera
& Ors 2002 (1) ZLR 132 (S).
However,
in the present case, my decision to grant the applicant the relief
that she sought was predicated on a finding that not only had it been
the position that the conditions precedent to the right or obligation
to sell the vehicle had come to pass, which was common cause, but
also that the respondent, as a matter of fact, had sold the vehicle
to the applicant. In other words, contrary to the argument that the
offer that the respondent had made was not the one the applicant had
accepted, I found that there had been an acceptance of the terms
offered and in the mode prescribed. The formula for arriving at the
purchase price, namely 10% of the market price, was known. It was
common cause. That the respondent sought to clutter that position
with irrelevancy, or that its own calculation of the actual amount
payable in dollars and cents, was skewed, could not deprive the
applicant of her right to buy the vehicle at 10% of the market price.
This appears crisply from the relevant correspondence between the
parties. On 30 June 2011 the applicant wrote to the respondent's
Group Chief Executive Officer tendering her resignation from
employment. She also applied, or offered to buy, the vehicle. The
relevant portion of her letter was as follows:
“I
am also in possession of two company assets, my company car which I
have offered to buy as guided by the motor vehicle policy and your
good office, and my laptop which I'd also be prepared to buy if the
company allows.”
On
10 August 2011 the respondent's Group Chief Executive Officer
responded as follows:
“Dear
Gladys,
RE:
PURCHASE OF COMPANY VEHICLE
Reference
is made to our conversation regarding the above matter. We have taken
due consideration to your request to purchase certain company assets
allocated to you during your employment with us. We are pleased to
inform you that, in terms of the PGIZ Motor Vehicle Policy, you may
purchase the motor vehicle that is currently in your possession for
10% of market value less 10% or at Net Book Value, whichever is he
(sic) lesser. In your case, the average market value for the vehicle,
Mazda Familiar (sic) Registration Number AAM 7769, is $3,500.00 while
the depreciated net book value is $3,990. Therefore in line with the
new vehicle policy above, you may purchase the vehicle for $3,150.00.
Please note that you are required to pay this purchase price in full
at the time of your departure. However, your offer to purchase the
laptop computer allocated to you for work purposes has not been
accepted. It will be reallocated to another member of staff in the
Department.” (my emphasis)
There
can be no question that the respondent, through its Group Chief
Executive Officer, had offered to sell the vehicle to the applicant.
The
method of fixing the purchase price had all been set out in the
policy in advance. Therefore, once the market price had been
established it was all rather superfluous for the respondent's
Group Chief Executive Officer to have gone to mention the actual
figure. Unfortunately, he got entangled in the process. But he had
correctly recited the formula, namely, 10% of the market price. But
his mind had undoubtedly been clouded by the illegitimate new clause
11.0. He had also purported to recite the new illegitimate formula,
namely, the market price less 10%, and to fix an amount on that
basis.
That
was wrong. Applicant was not bound by that.
There
was no question of the applicant having accepted terms that were
different from those of the offer, or of her having made a counter
offer, as argued by the respondent. The material portion of her
letter of response on 16 August 2011 was as follows:
“Dear
Mr. H. M. Munyati
RE:
Purchase of Mazda 323 Familia Registration Number AAM7769
Reference
is made to your letter dated 10 August 2011, reference number
HM/CM10082011 regarding the above matter. With reference to paragraph
2, lines 2 to line 4 where you state; 'We are pleased to inform you
that in terms of the PGIZ Motor Vehicle Policy, you may purchase the
motor vehicle that is currently in your possession for 10% of market
value less 10% …', I have accepted this offer and have paid the
sum in full into the PG Stanbic account number 0222020998050 as per
your instructions in paragraph 3 where you say the purchase price is
to be paid in full at the time of my departure. Copies of deposit
slip number 522141 and cash deposit advice number 1879264 are
attached …”
The
applicant then went on to tabulate and show that 10% of US$3,500-00
would be US$350-00 and that 10% less of that amount would be
US$35-00. She had then gone on to deduct the US$35-00 from the
US$350-00 to remain with a net figure of US$315-00. That is what she
said she had deposited into the respondent's bank account. The
applicant concluded her letter by requesting the respondent to
facilitate the change of ownership of the vehicle into her name.
The
respondent stated that where a mode of communication of the
acceptance of an offer is prescribed, the offeree is bound to accept
in the mode so prescribed.
To
me that is what the applicant did.
The
respondent had directed her to pay the purchase price in full at the
time of her departure. Of course, to the respondent that amount was
US$3,150-00, not US$315-00. But I have already shown that the Chief
Executive Officer had been mistaken or wrong on that score. However,
the applicant having correctly adverted to the correct formula for
arriving at the purchase price as set out in the genuine motor
vehicle policy, was, in my view, and with all due respect to her,
mischievous in going further to deduct US$35-00 from the US$350-00.
It was plainly a typing error by the respondent's Chief Executive
Officer to have said, in his letter of 10 August 2011 “…for 10%
of market value less 10% or …”. The applicant could not
reasonably have understood that as anything else other than a patent
mistake. Such a formula was not provided for anywhere else. Applicant
could not seek to bind the respondent to such a mistake, which was,
in the scheme of things manifestly harmless.
It
was on the basis of the foregoing reasons that I granted the relief
sought.
Scanlen
& Holderness, applicant's legal practitioners
Mawere
& Sibanda, respondents' legal practitioners
1
1996 (2) ZLR 565
2.
At p 2 – 3 of the cyclostyled judgment
