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HH444-18 - TAPIWA NALOMWE vs NICHOLAS VAN HOOGSTRATEN

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Law of Contract-viz debt re contractual debt iro refund.
Damages-viz contractual damages.
Law of Contract-viz verbal contract.
Law of Contract-viz oral agreement.
Agency Law-viz agency relationship re nominees.
Procedural Law-viz rules of evidence re compellable witness iro supporting affidavit.
Procedural Law-viz rules of evidence re competent witness iro supporting affidavit.
Procedural Law-viz rules of evidence re onus iro burden of proof.
Procedural Law-viz rules of evidence re onus iro standard of proof.
Procedural Law-viz rules of evidence re findings of fact iro assessment of evidence.
Procedural Law-viz rules of evidence re documentary evidence.
Procedural Law-viz rules of evidence re findings of fact iro witness testimony.
Procedural Law-viz rules of evidence re prevaricative evidence.
Procedural Law-viz rules of evidence re evidence derived from previous litigation.
Procedural Law-viz rules of evidence re evidence of oath iro sworn affidavit.
Procedural Law-viz rules of evidence re evidence on oath iro sworn affidavit.
Procedural Law-viz evidence of oath re sworn affidavit iro perjury.
Procedural Law-viz evidence on oath re sworn affidavit iro perjury.
Procedural Law-viz rules of evidence re signatures iro the caveat subscriptor rule.
Procedural Law-viz rules of evidence re unchallenged evidence.
Procedural Law-viz rules of evidence re undisputed averments.
Procedural Law-viz rules of evidence re uncontroverted submissions.
Procedural Law-viz pleadings re admissions.

Agency Law re: Acting on Behalf of Another iro Agency Relationship, Independent Contractor & Quasi-Mutual Assent Doctrine


The plaintiff instituted the summons in casu claiming the following relief against the defendant:

“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant in pursuance an asset swap agreement which agreement was cancelled due to the defendant's breach.

2. Alternatively, and in the event that the defendant no longer has possession of the 167, 275 Old Mutual Public Limited Company shares, an order for payment of damages equivalent to the market value of 167,275 Old Mutual Public Limited Company shares at the date of judgment.

3. Costs of suit.”

The claim is contested by the defendant.

The plaintiff's case, as pleaded, is as follows;

In 2008, he entered into a verbal agreement in terms of which the defendant agreed to deliver to him an immovable property at 4 Wroxham Road, The Grange, Harare. In consideration of that the plaintiff would transfer to the defendant 167,275 Old Mutual Public Limited Company shares and 110,000 shares in a company known as PPC. Transfer of title in the property would be registered in favour of the plaintiff upon delivery of the Old Mutual shares. The PPC shares would be transferred to the defendant after the transfer of the property to the plaintiff.

Pursuant to the agreement, the plaintiff delivered the 167,275 shares to the defendant.

The defendant, however, breached the agreement by failing to transfer the immovable property into the name of the plaintiff. Consequently, the plaintiff cancelled the agreement and demanded the return of his Old Mutual shares which demand the defendant failed to comply with hence the instant proceedings.

The defendant denies the alleged agreement and states that he only received the 167,275 shares from the plaintiff in his capacity as agent for a company known as Zimcor Limited in which he was neither Director nor shareholder. The share certificates were in the name of Zimcor Limited.

Four issues were referred to trial. These are;

(1) Whether or not the defendant entered into an Asset Swap Agreement with the plaintiff;

(2) Whether or not the defendant was acting in his personal capacity;

(3) Whether or not, as a result of the said agreement, the defendant had 167,275 Old Mutual shares transferred to him by the plaintiff; and

(4) If so, whether or not the defendant is liable to transfer the aforementioned shares to the plaintiff, or, upon failure to do so, the value of the shares.

The plaintiff gave evidence in support of his claim. In addition to stating the facts as stated in his declaration, the plaintiff stated that he was introduced to the defendant by one Brian Machengo, an estate agent who was acting as the defendant's agent. The agreement, the terms of which are detailed in the plaintiff's declaration, was then concluded. The defendant advised the plaintiff that he had purchased the immovable property which he would deliver to the plaintiff from the Sheriff of the High Court at an auction. The defendant instructed the plaintiff to transfer the shares into the name of Zimcor Limited, a company which the plaintiff was made to understand belonged to the defendant.

Having transferred the shares into the defendant's nominee through his brokers, New Africa Securities, the plaintiff presented proof of such transfer to the defendant who duly signed to acknowledge receipt while Brian Machengo signed as a witness.

Thereafter, attempts were made by the plaintiff, acting through Brian Machengo, to obtain vacant possession of the immovable property which the defendant had agreed to deliver to the plaintiff. Those efforts yielded nothing.

The defendant gave evidence himself. He stated that he did not know the plaintiff but then said that he had met him two or three times before in 2008. He categorically denied entering into an agreement in terms of which he agreed to swap the immovable property referred to above for shares as alleged by the plaintiff.

His evidence was that at some point an estate agent advised him that a potential client wanted to buy the immovable property in question but the property could not be sold as it was the subject of a dispute and was not available for disposal.

He denied ever receiving the Old Mutual shares from the plaintiff or directing the plaintiff to transfer the shares to Zimcor Limited. His evidence was that he only received the documents pertaining to the shares on behalf of the “owners” of Zimcor Limited who had moved to South Africa at that time.

The standard of proof required in this case, being a civil matter, entails a comparative rather than a quantitative test.

The onus, in this case, is on the plaintiff to prove his case on a balance of probabilities.

The degree of proof is expressed in the following statement of lord denning in the case of Miller v Minister of Pension [1947] 2 All ER 372…,:

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

This test has stood the test of time, and has been consistently applied; see Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 157D; Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (S) at 503E-504D.

This is a case in which the versions of the plaintiff and the defendant are mutually destructive.

The approach of the court in the face of such a scenario is as stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…,:

“Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199:

'Where there are two stories mutually destructive; before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that, in this case, absolute reliance can be placed upon the story as told by A Gany…,.'

I entirely agree with the learned JUDGE OF APPEAL.”

The plaintiff's evidence is simple and supports the averments in his declaration. He tendered proof of transfer of the Old Mutual shares. He also explained why the shares were transferred into the name of Zimcor Limited rather than in the defendant's name. The company was the defendant's nominee for the purpose of receiving the payment. The plaintiff owed no obligation to that company which would have underpinned transfer of shares into its name.

The link between the transfer of shares and the existence of an immovable property which the defendant had purchased from the Sheriff's auction is established by evidence.

There is no way that the plaintiff would have known that the defendant had purchased that property from an auction.

The plaintiff also testified on the efforts which were made to recover the immovable property from the judgment debtor who was the owner of the property.

The documents on record show the involvement of a firm of attorneys, Ziumbe & Mtambanengwe, in the efforts to get the property from the judgment debtor. From the documentary evidence adduced by the plaintiff, the defendant gave written authority to Brian Machengo to recover possession of the property from the owner of it.

The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive, and, in some instances, deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008.

When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe - even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit.

The defendant's statement that he received the proof of share transfers as agent of Zimcor Limited cannot be accepted.

He conveniently endorsed on one of the documents that he was receiving on behalf of Zimcor Limited so that he would point to that endorsement as a ground to wriggle out of his contractual obligations.

The defendant did not call any witness from that company to support his story.

He inadvertently admitted that he is in the habit of not registering assets in his own name which would explain why he directed the plaintiff to transfer the shares into the name of Zimcor Limited.

The defendant made inconsistent statements about whether he had appointed Brian Machengo to be his agent.

In one instance, he disputed that fact before he admitted it with some qualification. This was so notwithstanding the availability of a handwritten document which he authored and signed appointing Brian Machengo to be his agent and the fact that when the plaintiff gave evidence on the appointment of Brian Machengo to be the defendant's agent he was never challenged.

The defendant's demeanour, punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts, presented him as a witness who was seeking to mislead the court.

This court is convinced that the plaintiff has established, on a balance of probabilities, that he entered into an agreement with the defendant and that pursuant to that agreement he transferred his Old Mutual shares to the defendant. The defendant failed to perform in terms of the agreement. The plaintiff, as he was entitled to do, cancelled the agreement.

He is entitled to the return of his shares or payment of the value of the shares.

It was submitted, on behalf of the defendant, that Old Mutual PLC is no longer listed on the Zimbabwe Stock Exchange.

That fact is not a bar to an order that the value of the shares be calculated as at the last day that that company traded in Zimbabwe.

In the result, IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff and against the defendant for:

(a) Delivery to the plaintiff of 167,275 Old Mutual Public Limited Company shares within ten days of the date of this order; or, alternatively;

(b) Payment of damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last date that that company traded in Zimbabwe.

2. Defendant shall pay the costs of suit.

Subpoena Ad Testificandum or Witness Summons re: Competent or Compellable Witness, Claim of Privilege & Rule of Relevance


The plaintiff instituted the summons in casu claiming the following relief against the defendant:

“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant in pursuance an asset swap agreement which agreement was cancelled due to the defendant's breach.

2. Alternatively, and in the event that the defendant no longer has possession of the 167, 275 Old Mutual Public Limited Company shares, an order for payment of damages equivalent to the market value of 167,275 Old Mutual Public Limited Company shares at the date of judgment.

3. Costs of suit.”

The claim is contested by the defendant.

The plaintiff's case, as pleaded, is as follows;

In 2008, he entered into a verbal agreement in terms of which the defendant agreed to deliver to him an immovable property at 4 Wroxham Road, The Grange, Harare. In consideration of that the plaintiff would transfer to the defendant 167,275 Old Mutual Public Limited Company shares and 110,000 shares in a company known as PPC. Transfer of title in the property would be registered in favour of the plaintiff upon delivery of the Old Mutual shares. The PPC shares would be transferred to the defendant after the transfer of the property to the plaintiff.

Pursuant to the agreement, the plaintiff delivered the 167,275 shares to the defendant.

The defendant, however, breached the agreement by failing to transfer the immovable property into the name of the plaintiff. Consequently, the plaintiff cancelled the agreement and demanded the return of his Old Mutual shares which demand the defendant failed to comply with hence the instant proceedings.

The defendant denies the alleged agreement and states that he only received the 167,275 shares from the plaintiff in his capacity as agent for a company known as Zimcor Limited in which he was neither Director nor shareholder. The share certificates were in the name of Zimcor Limited.

Four issues were referred to trial. These are;

(1) Whether or not the defendant entered into an Asset Swap Agreement with the plaintiff;

(2) Whether or not the defendant was acting in his personal capacity;

(3) Whether or not, as a result of the said agreement, the defendant had 167,275 Old Mutual shares transferred to him by the plaintiff; and

(4) If so, whether or not the defendant is liable to transfer the aforementioned shares to the plaintiff, or, upon failure to do so, the value of the shares.

The plaintiff gave evidence in support of his claim. In addition to stating the facts as stated in his declaration, the plaintiff stated that he was introduced to the defendant by one Brian Machengo, an estate agent who was acting as the defendant's agent. The agreement, the terms of which are detailed in the plaintiff's declaration, was then concluded. The defendant advised the plaintiff that he had purchased the immovable property which he would deliver to the plaintiff from the Sheriff of the High Court at an auction. The defendant instructed the plaintiff to transfer the shares into the name of Zimcor Limited, a company which the plaintiff was made to understand belonged to the defendant.

Having transferred the shares into the defendant's nominee through his brokers, New Africa Securities, the plaintiff presented proof of such transfer to the defendant who duly signed to acknowledge receipt while Brian Machengo signed as a witness.

Thereafter, attempts were made by the plaintiff, acting through Brian Machengo, to obtain vacant possession of the immovable property which the defendant had agreed to deliver to the plaintiff. Those efforts yielded nothing.

The defendant gave evidence himself. He stated that he did not know the plaintiff but then said that he had met him two or three times before in 2008. He categorically denied entering into an agreement in terms of which he agreed to swap the immovable property referred to above for shares as alleged by the plaintiff.

His evidence was that at some point an estate agent advised him that a potential client wanted to buy the immovable property in question but the property could not be sold as it was the subject of a dispute and was not available for disposal.

He denied ever receiving the Old Mutual shares from the plaintiff or directing the plaintiff to transfer the shares to Zimcor Limited. His evidence was that he only received the documents pertaining to the shares on behalf of the “owners” of Zimcor Limited who had moved to South Africa at that time.

The standard of proof required in this case, being a civil matter, entails a comparative rather than a quantitative test. 

The onus, in this case, is on the plaintiff to prove his case on a balance of probabilities. 

The degree of proof is expressed in the following statement of lord denning in the case of Miller v Minister of Pension [1947] 2 All ER 372…,:

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

This test has stood the test of time, and has been consistently applied; see Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 157D; Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (S) at 503E-504D.

This is a case in which the versions of the plaintiff and the defendant are mutually destructive.

The approach of the court in the face of such a scenario is as stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…,:

“Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199:

'Where there are two stories mutually destructive; before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that, in this case, absolute reliance can be placed upon the story as told by A Gany…,.'

I entirely agree with the learned JUDGE OF APPEAL.”

The plaintiff's evidence is simple and supports the averments in his declaration. He tendered proof of transfer of the Old Mutual shares. He also explained why the shares were transferred into the name of Zimcor Limited rather than in the defendant's name. The company was the defendant's nominee for the purpose of receiving the payment. The plaintiff owed no obligation to that company which would have underpinned transfer of shares into its name.

The link between the transfer of shares and the existence of an immovable property which the defendant had purchased from the Sheriff's auction is established by evidence.

There is no way that the plaintiff would have known that the defendant had purchased that property from an auction.

The plaintiff also testified on the efforts which were made to recover the immovable property from the judgment debtor who was the owner of the property.

The documents on record show the involvement of a firm of attorneys, Ziumbe & Mtambanengwe, in the efforts to get the property from the judgment debtor. From the documentary evidence adduced by the plaintiff, the defendant gave written authority to Brian Machengo to recover possession of the property from the owner of it.

The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive, and, in some instances, deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008.

When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe - even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit.

The defendant's statement that he received the proof of share transfers as agent of Zimcor Limited cannot be accepted.

He conveniently endorsed on one of the documents that he was receiving on behalf of Zimcor Limited so that he would point to that endorsement as a ground to wriggle out of his contractual obligations.

The defendant did not call any witness from that company to support his story.

He inadvertently admitted that he is in the habit of not registering assets in his own name which would explain why he directed the plaintiff to transfer the shares into the name of Zimcor Limited.

The defendant made inconsistent statements about whether he had appointed Brian Machengo to be his agent.

In one instance, he disputed that fact before he admitted it with some qualification. This was so notwithstanding the availability of a handwritten document which he authored and signed appointing Brian Machengo to be his agent and the fact that when the plaintiff gave evidence on the appointment of Brian Machengo to be the defendant's agent he was never challenged.

The defendant's demeanour, punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts, presented him as a witness who was seeking to mislead the court.

This court is convinced that the plaintiff has established, on a balance of probabilities, that he entered into an agreement with the defendant and that pursuant to that agreement he transferred his Old Mutual shares to the defendant. The defendant failed to perform in terms of the agreement. The plaintiff, as he was entitled to do, cancelled the agreement.

He is entitled to the return of his shares or payment of the value of the shares.

It was submitted, on behalf of the defendant, that Old Mutual PLC is no longer listed on the Zimbabwe Stock Exchange.

That fact is not a bar to an order that the value of the shares be calculated as at the last day that that company traded in Zimbabwe.

In the result, IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff and against the defendant for:

(a) Delivery to the plaintiff of 167,275 Old Mutual Public Limited Company shares within ten days of the date of this order; or, alternatively;

(b) Payment of damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last date that that company traded in Zimbabwe.

2. Defendant shall pay the costs of suit.

Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach


The plaintiff instituted the summons in casu claiming the following relief against the defendant:

“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant in pursuance an asset swap agreement which agreement was cancelled due to the defendant's breach.

2. Alternatively, and in the event that the defendant no longer has possession of the 167, 275 Old Mutual Public Limited Company shares, an order for payment of damages equivalent to the market value of 167,275 Old Mutual Public Limited Company shares at the date of judgment.

3. Costs of suit.”

The claim is contested by the defendant.

The plaintiff's case, as pleaded, is as follows;

In 2008, he entered into a verbal agreement in terms of which the defendant agreed to deliver to him an immovable property at 4 Wroxham Road, The Grange, Harare. In consideration of that the plaintiff would transfer to the defendant 167,275 Old Mutual Public Limited Company shares and 110,000 shares in a company known as PPC. Transfer of title in the property would be registered in favour of the plaintiff upon delivery of the Old Mutual shares. The PPC shares would be transferred to the defendant after the transfer of the property to the plaintiff.

Pursuant to the agreement, the plaintiff delivered the 167,275 shares to the defendant.

The defendant, however, breached the agreement by failing to transfer the immovable property into the name of the plaintiff. Consequently, the plaintiff cancelled the agreement and demanded the return of his Old Mutual shares which demand the defendant failed to comply with hence the instant proceedings.

The defendant denies the alleged agreement and states that he only received the 167,275 shares from the plaintiff in his capacity as agent for a company known as Zimcor Limited in which he was neither Director nor shareholder. The share certificates were in the name of Zimcor Limited.

Four issues were referred to trial. These are;

(1) Whether or not the defendant entered into an Asset Swap Agreement with the plaintiff;

(2) Whether or not the defendant was acting in his personal capacity;

(3) Whether or not, as a result of the said agreement, the defendant had 167,275 Old Mutual shares transferred to him by the plaintiff; and

(4) If so, whether or not the defendant is liable to transfer the aforementioned shares to the plaintiff, or, upon failure to do so, the value of the shares.

The plaintiff gave evidence in support of his claim. In addition to stating the facts as stated in his declaration, the plaintiff stated that he was introduced to the defendant by one Brian Machengo, an estate agent who was acting as the defendant's agent. The agreement, the terms of which are detailed in the plaintiff's declaration, was then concluded. The defendant advised the plaintiff that he had purchased the immovable property which he would deliver to the plaintiff from the Sheriff of the High Court at an auction. The defendant instructed the plaintiff to transfer the shares into the name of Zimcor Limited, a company which the plaintiff was made to understand belonged to the defendant.

Having transferred the shares into the defendant's nominee through his brokers, New Africa Securities, the plaintiff presented proof of such transfer to the defendant who duly signed to acknowledge receipt while Brian Machengo signed as a witness.

Thereafter, attempts were made by the plaintiff, acting through Brian Machengo, to obtain vacant possession of the immovable property which the defendant had agreed to deliver to the plaintiff. Those efforts yielded nothing.

The defendant gave evidence himself. He stated that he did not know the plaintiff but then said that he had met him two or three times before in 2008. He categorically denied entering into an agreement in terms of which he agreed to swap the immovable property referred to above for shares as alleged by the plaintiff.

His evidence was that at some point an estate agent advised him that a potential client wanted to buy the immovable property in question but the property could not be sold as it was the subject of a dispute and was not available for disposal.

He denied ever receiving the Old Mutual shares from the plaintiff or directing the plaintiff to transfer the shares to Zimcor Limited. His evidence was that he only received the documents pertaining to the shares on behalf of the “owners” of Zimcor Limited who had moved to South Africa at that time.

The standard of proof required in this case, being a civil matter, entails a comparative rather than a quantitative test. 

The onus, in this case, is on the plaintiff to prove his case on a balance of probabilities. 

The degree of proof is expressed in the following statement of lord denning in the case of Miller v Minister of Pension [1947] 2 All ER 372…,:

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

This test has stood the test of time, and has been consistently applied; see Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 157D; Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (S) at 503E-504D.

This is a case in which the versions of the plaintiff and the defendant are mutually destructive.

The approach of the court in the face of such a scenario is as stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…,:

“Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199:

'Where there are two stories mutually destructive; before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that, in this case, absolute reliance can be placed upon the story as told by A Gany…,.'

I entirely agree with the learned JUDGE OF APPEAL.”

The plaintiff's evidence is simple and supports the averments in his declaration. He tendered proof of transfer of the Old Mutual shares. He also explained why the shares were transferred into the name of Zimcor Limited rather than in the defendant's name. The company was the defendant's nominee for the purpose of receiving the payment. The plaintiff owed no obligation to that company which would have underpinned transfer of shares into its name.

The link between the transfer of shares and the existence of an immovable property which the defendant had purchased from the Sheriff's auction is established by evidence.

There is no way that the plaintiff would have known that the defendant had purchased that property from an auction.

The plaintiff also testified on the efforts which were made to recover the immovable property from the judgment debtor who was the owner of the property.

The documents on record show the involvement of a firm of attorneys, Ziumbe & Mtambanengwe, in the efforts to get the property from the judgment debtor. From the documentary evidence adduced by the plaintiff, the defendant gave written authority to Brian Machengo to recover possession of the property from the owner of it.

The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive, and, in some instances, deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008.

When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe - even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit.

The defendant's statement that he received the proof of share transfers as agent of Zimcor Limited cannot be accepted.

He conveniently endorsed on one of the documents that he was receiving on behalf of Zimcor Limited so that he would point to that endorsement as a ground to wriggle out of his contractual obligations.

The defendant did not call any witness from that company to support his story.

He inadvertently admitted that he is in the habit of not registering assets in his own name which would explain why he directed the plaintiff to transfer the shares into the name of Zimcor Limited.

The defendant made inconsistent statements about whether he had appointed Brian Machengo to be his agent.

In one instance, he disputed that fact before he admitted it with some qualification. This was so notwithstanding the availability of a handwritten document which he authored and signed appointing Brian Machengo to be his agent and the fact that when the plaintiff gave evidence on the appointment of Brian Machengo to be the defendant's agent he was never challenged.

The defendant's demeanour, punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts, presented him as a witness who was seeking to mislead the court.

This court is convinced that the plaintiff has established, on a balance of probabilities, that he entered into an agreement with the defendant and that pursuant to that agreement he transferred his Old Mutual shares to the defendant. The defendant failed to perform in terms of the agreement. The plaintiff, as he was entitled to do, cancelled the agreement.

He is entitled to the return of his shares or payment of the value of the shares.

It was submitted, on behalf of the defendant, that Old Mutual PLC is no longer listed on the Zimbabwe Stock Exchange.

That fact is not a bar to an order that the value of the shares be calculated as at the last day that that company traded in Zimbabwe.

In the result, IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff and against the defendant for:

(a) Delivery to the plaintiff of 167,275 Old Mutual Public Limited Company shares within ten days of the date of this order; or, alternatively;

(b) Payment of damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last date that that company traded in Zimbabwe.

2. Defendant shall pay the costs of suit.

Findings of Fact re: Witness Testimony iro Approach & the Presumption of Clarity of Events Nearer the Date of the Event


The plaintiff instituted the summons in casu claiming the following relief against the defendant:

“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant in pursuance an asset swap agreement which agreement was cancelled due to the defendant's breach.

2. Alternatively, and in the event that the defendant no longer has possession of the 167, 275 Old Mutual Public Limited Company shares, an order for payment of damages equivalent to the market value of 167,275 Old Mutual Public Limited Company shares at the date of judgment.

3. Costs of suit.”

The claim is contested by the defendant.

The plaintiff's case, as pleaded, is as follows;

In 2008, he entered into a verbal agreement in terms of which the defendant agreed to deliver to him an immovable property at 4 Wroxham Road, The Grange, Harare. In consideration of that the plaintiff would transfer to the defendant 167,275 Old Mutual Public Limited Company shares and 110,000 shares in a company known as PPC. Transfer of title in the property would be registered in favour of the plaintiff upon delivery of the Old Mutual shares. The PPC shares would be transferred to the defendant after the transfer of the property to the plaintiff.

Pursuant to the agreement, the plaintiff delivered the 167,275 shares to the defendant.

The defendant, however, breached the agreement by failing to transfer the immovable property into the name of the plaintiff. Consequently, the plaintiff cancelled the agreement and demanded the return of his Old Mutual shares which demand the defendant failed to comply with hence the instant proceedings.

The defendant denies the alleged agreement and states that he only received the 167,275 shares from the plaintiff in his capacity as agent for a company known as Zimcor Limited in which he was neither Director nor shareholder. The share certificates were in the name of Zimcor Limited.

Four issues were referred to trial. These are;

(1) Whether or not the defendant entered into an Asset Swap Agreement with the plaintiff;

(2) Whether or not the defendant was acting in his personal capacity;

(3) Whether or not, as a result of the said agreement, the defendant had 167,275 Old Mutual shares transferred to him by the plaintiff; and

(4) If so, whether or not the defendant is liable to transfer the aforementioned shares to the plaintiff, or, upon failure to do so, the value of the shares.

The plaintiff gave evidence in support of his claim. In addition to stating the facts as stated in his declaration, the plaintiff stated that he was introduced to the defendant by one Brian Machengo, an estate agent who was acting as the defendant's agent. The agreement, the terms of which are detailed in the plaintiff's declaration, was then concluded. The defendant advised the plaintiff that he had purchased the immovable property which he would deliver to the plaintiff from the Sheriff of the High Court at an auction. The defendant instructed the plaintiff to transfer the shares into the name of Zimcor Limited, a company which the plaintiff was made to understand belonged to the defendant.

Having transferred the shares into the defendant's nominee through his brokers, New Africa Securities, the plaintiff presented proof of such transfer to the defendant who duly signed to acknowledge receipt while Brian Machengo signed as a witness.

Thereafter, attempts were made by the plaintiff, acting through Brian Machengo, to obtain vacant possession of the immovable property which the defendant had agreed to deliver to the plaintiff. Those efforts yielded nothing.

The defendant gave evidence himself. He stated that he did not know the plaintiff but then said that he had met him two or three times before in 2008. He categorically denied entering into an agreement in terms of which he agreed to swap the immovable property referred to above for shares as alleged by the plaintiff.

His evidence was that at some point an estate agent advised him that a potential client wanted to buy the immovable property in question but the property could not be sold as it was the subject of a dispute and was not available for disposal.

He denied ever receiving the Old Mutual shares from the plaintiff or directing the plaintiff to transfer the shares to Zimcor Limited. His evidence was that he only received the documents pertaining to the shares on behalf of the “owners” of Zimcor Limited who had moved to South Africa at that time.

The standard of proof required in this case, being a civil matter, entails a comparative rather than a quantitative test. 

The onus, in this case, is on the plaintiff to prove his case on a balance of probabilities. 

The degree of proof is expressed in the following statement of lord denning in the case of Miller v Minister of Pension [1947] 2 All ER 372…,:

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

This test has stood the test of time, and has been consistently applied; see Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 157D; Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (S) at 503E-504D.

This is a case in which the versions of the plaintiff and the defendant are mutually destructive.

The approach of the court in the face of such a scenario is as stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…,:

“Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199:

'Where there are two stories mutually destructive; before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that, in this case, absolute reliance can be placed upon the story as told by A Gany…,.'

I entirely agree with the learned JUDGE OF APPEAL.”

The plaintiff's evidence is simple and supports the averments in his declaration. He tendered proof of transfer of the Old Mutual shares. He also explained why the shares were transferred into the name of Zimcor Limited rather than in the defendant's name. The company was the defendant's nominee for the purpose of receiving the payment. The plaintiff owed no obligation to that company which would have underpinned transfer of shares into its name.

The link between the transfer of shares and the existence of an immovable property which the defendant had purchased from the Sheriff's auction is established by evidence.

There is no way that the plaintiff would have known that the defendant had purchased that property from an auction.

The plaintiff also testified on the efforts which were made to recover the immovable property from the judgment debtor who was the owner of the property.

The documents on record show the involvement of a firm of attorneys, Ziumbe & Mtambanengwe, in the efforts to get the property from the judgment debtor. From the documentary evidence adduced by the plaintiff, the defendant gave written authority to Brian Machengo to recover possession of the property from the owner of it.

The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive, and, in some instances, deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008.

When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe - even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit.

The defendant's statement that he received the proof of share transfers as agent of Zimcor Limited cannot be accepted.

He conveniently endorsed on one of the documents that he was receiving on behalf of Zimcor Limited so that he would point to that endorsement as a ground to wriggle out of his contractual obligations.

The defendant did not call any witness from that company to support his story.

He inadvertently admitted that he is in the habit of not registering assets in his own name which would explain why he directed the plaintiff to transfer the shares into the name of Zimcor Limited.

The defendant made inconsistent statements about whether he had appointed Brian Machengo to be his agent.

In one instance, he disputed that fact before he admitted it with some qualification. This was so notwithstanding the availability of a handwritten document which he authored and signed appointing Brian Machengo to be his agent and the fact that when the plaintiff gave evidence on the appointment of Brian Machengo to be the defendant's agent he was never challenged.

The defendant's demeanour, punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts, presented him as a witness who was seeking to mislead the court.

This court is convinced that the plaintiff has established, on a balance of probabilities, that he entered into an agreement with the defendant and that pursuant to that agreement he transferred his Old Mutual shares to the defendant. The defendant failed to perform in terms of the agreement. The plaintiff, as he was entitled to do, cancelled the agreement.

He is entitled to the return of his shares or payment of the value of the shares.

It was submitted, on behalf of the defendant, that Old Mutual PLC is no longer listed on the Zimbabwe Stock Exchange.

That fact is not a bar to an order that the value of the shares be calculated as at the last day that that company traded in Zimbabwe.

In the result, IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff and against the defendant for:

(a) Delivery to the plaintiff of 167,275 Old Mutual Public Limited Company shares within ten days of the date of this order; or, alternatively;

(b) Payment of damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last date that that company traded in Zimbabwe.

2. Defendant shall pay the costs of suit.

Shareholding re: Allotment, Issue, Equity Transactions, Alienation or Disposal of Corporate Assets and Notifiable Mergers


The plaintiff instituted the summons in casu claiming the following relief against the defendant:

“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant in pursuance an asset swap agreement which agreement was cancelled due to the defendant's breach.

2. Alternatively, and in the event that the defendant no longer has possession of the 167, 275 Old Mutual Public Limited Company shares, an order for payment of damages equivalent to the market value of 167,275 Old Mutual Public Limited Company shares at the date of judgment.

3. Costs of suit.”

The claim is contested by the defendant.

The plaintiff's case, as pleaded, is as follows;

In 2008, he entered into a verbal agreement in terms of which the defendant agreed to deliver to him an immovable property at 4 Wroxham Road, The Grange, Harare. In consideration of that the plaintiff would transfer to the defendant 167,275 Old Mutual Public Limited Company shares and 110,000 shares in a company known as PPC. Transfer of title in the property would be registered in favour of the plaintiff upon delivery of the Old Mutual shares. The PPC shares would be transferred to the defendant after the transfer of the property to the plaintiff.

Pursuant to the agreement, the plaintiff delivered the 167,275 shares to the defendant.

The defendant, however, breached the agreement by failing to transfer the immovable property into the name of the plaintiff. Consequently, the plaintiff cancelled the agreement and demanded the return of his Old Mutual shares which demand the defendant failed to comply with hence the instant proceedings.

The defendant denies the alleged agreement and states that he only received the 167,275 shares from the plaintiff in his capacity as agent for a company known as Zimcor Limited in which he was neither Director nor shareholder. The share certificates were in the name of Zimcor Limited.

Four issues were referred to trial. These are;

(1) Whether or not the defendant entered into an Asset Swap Agreement with the plaintiff;

(2) Whether or not the defendant was acting in his personal capacity;

(3) Whether or not, as a result of the said agreement, the defendant had 167,275 Old Mutual shares transferred to him by the plaintiff; and

(4) If so, whether or not the defendant is liable to transfer the aforementioned shares to the plaintiff, or, upon failure to do so, the value of the shares.

The plaintiff gave evidence in support of his claim. In addition to stating the facts as stated in his declaration, the plaintiff stated that he was introduced to the defendant by one Brian Machengo, an estate agent who was acting as the defendant's agent. The agreement, the terms of which are detailed in the plaintiff's declaration, was then concluded. The defendant advised the plaintiff that he had purchased the immovable property which he would deliver to the plaintiff from the Sheriff of the High Court at an auction. The defendant instructed the plaintiff to transfer the shares into the name of Zimcor Limited, a company which the plaintiff was made to understand belonged to the defendant.

Having transferred the shares into the defendant's nominee through his brokers, New Africa Securities, the plaintiff presented proof of such transfer to the defendant who duly signed to acknowledge receipt while Brian Machengo signed as a witness.

Thereafter, attempts were made by the plaintiff, acting through Brian Machengo, to obtain vacant possession of the immovable property which the defendant had agreed to deliver to the plaintiff. Those efforts yielded nothing.

The defendant gave evidence himself. He stated that he did not know the plaintiff but then said that he had met him two or three times before in 2008. He categorically denied entering into an agreement in terms of which he agreed to swap the immovable property referred to above for shares as alleged by the plaintiff.

His evidence was that at some point an estate agent advised him that a potential client wanted to buy the immovable property in question but the property could not be sold as it was the subject of a dispute and was not available for disposal.

He denied ever receiving the Old Mutual shares from the plaintiff or directing the plaintiff to transfer the shares to Zimcor Limited. His evidence was that he only received the documents pertaining to the shares on behalf of the “owners” of Zimcor Limited who had moved to South Africa at that time.

The standard of proof required in this case, being a civil matter, entails a comparative rather than a quantitative test. 

The onus, in this case, is on the plaintiff to prove his case on a balance of probabilities. 

The degree of proof is expressed in the following statement of lord denning in the case of Miller v Minister of Pension [1947] 2 All ER 372…,:

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

This test has stood the test of time, and has been consistently applied; see Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 157D; Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (S) at 503E-504D.

This is a case in which the versions of the plaintiff and the defendant are mutually destructive.

The approach of the court in the face of such a scenario is as stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…,:

“Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199:

'Where there are two stories mutually destructive; before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that, in this case, absolute reliance can be placed upon the story as told by A Gany…,.'

I entirely agree with the learned JUDGE OF APPEAL.”

The plaintiff's evidence is simple and supports the averments in his declaration. He tendered proof of transfer of the Old Mutual shares. He also explained why the shares were transferred into the name of Zimcor Limited rather than in the defendant's name. The company was the defendant's nominee for the purpose of receiving the payment. The plaintiff owed no obligation to that company which would have underpinned transfer of shares into its name.

The link between the transfer of shares and the existence of an immovable property which the defendant had purchased from the Sheriff's auction is established by evidence.

There is no way that the plaintiff would have known that the defendant had purchased that property from an auction.

The plaintiff also testified on the efforts which were made to recover the immovable property from the judgment debtor who was the owner of the property.

The documents on record show the involvement of a firm of attorneys, Ziumbe & Mtambanengwe, in the efforts to get the property from the judgment debtor. From the documentary evidence adduced by the plaintiff, the defendant gave written authority to Brian Machengo to recover possession of the property from the owner of it.

The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive, and, in some instances, deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008.

When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe - even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit.

The defendant's statement that he received the proof of share transfers as agent of Zimcor Limited cannot be accepted.

He conveniently endorsed on one of the documents that he was receiving on behalf of Zimcor Limited so that he would point to that endorsement as a ground to wriggle out of his contractual obligations.

The defendant did not call any witness from that company to support his story.

He inadvertently admitted that he is in the habit of not registering assets in his own name which would explain why he directed the plaintiff to transfer the shares into the name of Zimcor Limited.

The defendant made inconsistent statements about whether he had appointed Brian Machengo to be his agent.

In one instance, he disputed that fact before he admitted it with some qualification. This was so notwithstanding the availability of a handwritten document which he authored and signed appointing Brian Machengo to be his agent and the fact that when the plaintiff gave evidence on the appointment of Brian Machengo to be the defendant's agent he was never challenged.

The defendant's demeanour, punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts, presented him as a witness who was seeking to mislead the court.

This court is convinced that the plaintiff has established, on a balance of probabilities, that he entered into an agreement with the defendant and that pursuant to that agreement he transferred his Old Mutual shares to the defendant. The defendant failed to perform in terms of the agreement. The plaintiff, as he was entitled to do, cancelled the agreement.

He is entitled to the return of his shares or payment of the value of the shares.

It was submitted, on behalf of the defendant, that Old Mutual PLC is no longer listed on the Zimbabwe Stock Exchange.

That fact is not a bar to an order that the value of the shares be calculated as at the last day that that company traded in Zimbabwe.

In the result, IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff and against the defendant for:

(a) Delivery to the plaintiff of 167,275 Old Mutual Public Limited Company shares within ten days of the date of this order; or, alternatively;

(b) Payment of damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last date that that company traded in Zimbabwe.

2. Defendant shall pay the costs of suit.

Verbal or Oral Agreement, Undocumented Transactions and Unsigned Draft Agreements or Informal Contracts


The plaintiff instituted the summons in casu claiming the following relief against the defendant:

“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant in pursuance an asset swap agreement which agreement was cancelled due to the defendant's breach.

2. Alternatively, and in the event that the defendant no longer has possession of the 167, 275 Old Mutual Public Limited Company shares, an order for payment of damages equivalent to the market value of 167,275 Old Mutual Public Limited Company shares at the date of judgment.

3. Costs of suit.”

The claim is contested by the defendant.

The plaintiff's case, as pleaded, is as follows;

In 2008, he entered into a verbal agreement in terms of which the defendant agreed to deliver to him an immovable property at 4 Wroxham Road, The Grange, Harare. In consideration of that the plaintiff would transfer to the defendant 167,275 Old Mutual Public Limited Company shares and 110,000 shares in a company known as PPC. Transfer of title in the property would be registered in favour of the plaintiff upon delivery of the Old Mutual shares. The PPC shares would be transferred to the defendant after the transfer of the property to the plaintiff.

Pursuant to the agreement, the plaintiff delivered the 167,275 shares to the defendant.

The defendant, however, breached the agreement by failing to transfer the immovable property into the name of the plaintiff. Consequently, the plaintiff cancelled the agreement and demanded the return of his Old Mutual shares which demand the defendant failed to comply with hence the instant proceedings.

The defendant denies the alleged agreement and states that he only received the 167,275 shares from the plaintiff in his capacity as agent for a company known as Zimcor Limited in which he was neither Director nor shareholder. The share certificates were in the name of Zimcor Limited.

Four issues were referred to trial. These are;

(1) Whether or not the defendant entered into an Asset Swap Agreement with the plaintiff;

(2) Whether or not the defendant was acting in his personal capacity;

(3) Whether or not, as a result of the said agreement, the defendant had 167,275 Old Mutual shares transferred to him by the plaintiff; and

(4) If so, whether or not the defendant is liable to transfer the aforementioned shares to the plaintiff, or, upon failure to do so, the value of the shares.

The plaintiff gave evidence in support of his claim. In addition to stating the facts as stated in his declaration, the plaintiff stated that he was introduced to the defendant by one Brian Machengo, an estate agent who was acting as the defendant's agent. The agreement, the terms of which are detailed in the plaintiff's declaration, was then concluded. The defendant advised the plaintiff that he had purchased the immovable property which he would deliver to the plaintiff from the Sheriff of the High Court at an auction. The defendant instructed the plaintiff to transfer the shares into the name of Zimcor Limited, a company which the plaintiff was made to understand belonged to the defendant.

Having transferred the shares into the defendant's nominee through his brokers, New Africa Securities, the plaintiff presented proof of such transfer to the defendant who duly signed to acknowledge receipt while Brian Machengo signed as a witness.

Thereafter, attempts were made by the plaintiff, acting through Brian Machengo, to obtain vacant possession of the immovable property which the defendant had agreed to deliver to the plaintiff. Those efforts yielded nothing.

The defendant gave evidence himself. He stated that he did not know the plaintiff but then said that he had met him two or three times before in 2008. He categorically denied entering into an agreement in terms of which he agreed to swap the immovable property referred to above for shares as alleged by the plaintiff.

His evidence was that at some point an estate agent advised him that a potential client wanted to buy the immovable property in question but the property could not be sold as it was the subject of a dispute and was not available for disposal.

He denied ever receiving the Old Mutual shares from the plaintiff or directing the plaintiff to transfer the shares to Zimcor Limited. His evidence was that he only received the documents pertaining to the shares on behalf of the “owners” of Zimcor Limited who had moved to South Africa at that time.

The standard of proof required in this case, being a civil matter, entails a comparative rather than a quantitative test. 

The onus, in this case, is on the plaintiff to prove his case on a balance of probabilities. 

The degree of proof is expressed in the following statement of lord denning in the case of Miller v Minister of Pension [1947] 2 All ER 372…,:

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

This test has stood the test of time, and has been consistently applied; see Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 157D; Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (S) at 503E-504D.

This is a case in which the versions of the plaintiff and the defendant are mutually destructive.

The approach of the court in the face of such a scenario is as stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…,:

“Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199:

'Where there are two stories mutually destructive; before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that, in this case, absolute reliance can be placed upon the story as told by A Gany…,.'

I entirely agree with the learned JUDGE OF APPEAL.”

The plaintiff's evidence is simple and supports the averments in his declaration. He tendered proof of transfer of the Old Mutual shares. He also explained why the shares were transferred into the name of Zimcor Limited rather than in the defendant's name. The company was the defendant's nominee for the purpose of receiving the payment. The plaintiff owed no obligation to that company which would have underpinned transfer of shares into its name.

The link between the transfer of shares and the existence of an immovable property which the defendant had purchased from the Sheriff's auction is established by evidence.

There is no way that the plaintiff would have known that the defendant had purchased that property from an auction.

The plaintiff also testified on the efforts which were made to recover the immovable property from the judgment debtor who was the owner of the property.

The documents on record show the involvement of a firm of attorneys, Ziumbe & Mtambanengwe, in the efforts to get the property from the judgment debtor. From the documentary evidence adduced by the plaintiff, the defendant gave written authority to Brian Machengo to recover possession of the property from the owner of it.

The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive, and, in some instances, deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008.

When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe - even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit.

The defendant's statement that he received the proof of share transfers as agent of Zimcor Limited cannot be accepted.

He conveniently endorsed on one of the documents that he was receiving on behalf of Zimcor Limited so that he would point to that endorsement as a ground to wriggle out of his contractual obligations.

The defendant did not call any witness from that company to support his story.

He inadvertently admitted that he is in the habit of not registering assets in his own name which would explain why he directed the plaintiff to transfer the shares into the name of Zimcor Limited.

The defendant made inconsistent statements about whether he had appointed Brian Machengo to be his agent.

In one instance, he disputed that fact before he admitted it with some qualification. This was so notwithstanding the availability of a handwritten document which he authored and signed appointing Brian Machengo to be his agent and the fact that when the plaintiff gave evidence on the appointment of Brian Machengo to be the defendant's agent he was never challenged.

The defendant's demeanour, punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts, presented him as a witness who was seeking to mislead the court.

This court is convinced that the plaintiff has established, on a balance of probabilities, that he entered into an agreement with the defendant and that pursuant to that agreement he transferred his Old Mutual shares to the defendant. The defendant failed to perform in terms of the agreement. The plaintiff, as he was entitled to do, cancelled the agreement.

He is entitled to the return of his shares or payment of the value of the shares.

It was submitted, on behalf of the defendant, that Old Mutual PLC is no longer listed on the Zimbabwe Stock Exchange.

That fact is not a bar to an order that the value of the shares be calculated as at the last day that that company traded in Zimbabwe.

In the result, IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff and against the defendant for:

(a) Delivery to the plaintiff of 167,275 Old Mutual Public Limited Company shares within ten days of the date of this order; or, alternatively;

(b) Payment of damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last date that that company traded in Zimbabwe.

2. Defendant shall pay the costs of suit.

Debt re: Contractual and Judgment Debt iro Approach, Proof of Claim, Execution, Revalorization and Civil Imprisonment


The plaintiff instituted the summons in casu claiming the following relief against the defendant:

“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant in pursuance an asset swap agreement which agreement was cancelled due to the defendant's breach.

2. Alternatively, and in the event that the defendant no longer has possession of the 167, 275 Old Mutual Public Limited Company shares, an order for payment of damages equivalent to the market value of 167,275 Old Mutual Public Limited Company shares at the date of judgment.

3. Costs of suit.”

The claim is contested by the defendant.

The plaintiff's case, as pleaded, is as follows;

In 2008, he entered into a verbal agreement in terms of which the defendant agreed to deliver to him an immovable property at 4 Wroxham Road, The Grange, Harare. In consideration of that the plaintiff would transfer to the defendant 167,275 Old Mutual Public Limited Company shares and 110,000 shares in a company known as PPC. Transfer of title in the property would be registered in favour of the plaintiff upon delivery of the Old Mutual shares. The PPC shares would be transferred to the defendant after the transfer of the property to the plaintiff.

Pursuant to the agreement, the plaintiff delivered the 167,275 shares to the defendant.

The defendant, however, breached the agreement by failing to transfer the immovable property into the name of the plaintiff. Consequently, the plaintiff cancelled the agreement and demanded the return of his Old Mutual shares which demand the defendant failed to comply with hence the instant proceedings.

The defendant denies the alleged agreement and states that he only received the 167,275 shares from the plaintiff in his capacity as agent for a company known as Zimcor Limited in which he was neither Director nor shareholder. The share certificates were in the name of Zimcor Limited.

Four issues were referred to trial. These are;

(1) Whether or not the defendant entered into an Asset Swap Agreement with the plaintiff;

(2) Whether or not the defendant was acting in his personal capacity;

(3) Whether or not, as a result of the said agreement, the defendant had 167,275 Old Mutual shares transferred to him by the plaintiff; and

(4) If so, whether or not the defendant is liable to transfer the aforementioned shares to the plaintiff, or, upon failure to do so, the value of the shares.

The plaintiff gave evidence in support of his claim. In addition to stating the facts as stated in his declaration, the plaintiff stated that he was introduced to the defendant by one Brian Machengo, an estate agent who was acting as the defendant's agent. The agreement, the terms of which are detailed in the plaintiff's declaration, was then concluded. The defendant advised the plaintiff that he had purchased the immovable property which he would deliver to the plaintiff from the Sheriff of the High Court at an auction. The defendant instructed the plaintiff to transfer the shares into the name of Zimcor Limited, a company which the plaintiff was made to understand belonged to the defendant.

Having transferred the shares into the defendant's nominee through his brokers, New Africa Securities, the plaintiff presented proof of such transfer to the defendant who duly signed to acknowledge receipt while Brian Machengo signed as a witness.

Thereafter, attempts were made by the plaintiff, acting through Brian Machengo, to obtain vacant possession of the immovable property which the defendant had agreed to deliver to the plaintiff. Those efforts yielded nothing.

The defendant gave evidence himself. He stated that he did not know the plaintiff but then said that he had met him two or three times before in 2008. He categorically denied entering into an agreement in terms of which he agreed to swap the immovable property referred to above for shares as alleged by the plaintiff.

His evidence was that at some point an estate agent advised him that a potential client wanted to buy the immovable property in question but the property could not be sold as it was the subject of a dispute and was not available for disposal.

He denied ever receiving the Old Mutual shares from the plaintiff or directing the plaintiff to transfer the shares to Zimcor Limited. His evidence was that he only received the documents pertaining to the shares on behalf of the “owners” of Zimcor Limited who had moved to South Africa at that time.

The standard of proof required in this case, being a civil matter, entails a comparative rather than a quantitative test. 

The onus, in this case, is on the plaintiff to prove his case on a balance of probabilities. 

The degree of proof is expressed in the following statement of lord denning in the case of Miller v Minister of Pension [1947] 2 All ER 372…,:

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

This test has stood the test of time, and has been consistently applied; see Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 157D; Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (S) at 503E-504D.

This is a case in which the versions of the plaintiff and the defendant are mutually destructive.

The approach of the court in the face of such a scenario is as stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…,:

“Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199:

'Where there are two stories mutually destructive; before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that, in this case, absolute reliance can be placed upon the story as told by A Gany…,.'

I entirely agree with the learned JUDGE OF APPEAL.”

The plaintiff's evidence is simple and supports the averments in his declaration. He tendered proof of transfer of the Old Mutual shares. He also explained why the shares were transferred into the name of Zimcor Limited rather than in the defendant's name. The company was the defendant's nominee for the purpose of receiving the payment. The plaintiff owed no obligation to that company which would have underpinned transfer of shares into its name.

The link between the transfer of shares and the existence of an immovable property which the defendant had purchased from the Sheriff's auction is established by evidence.

There is no way that the plaintiff would have known that the defendant had purchased that property from an auction.

The plaintiff also testified on the efforts which were made to recover the immovable property from the judgment debtor who was the owner of the property.

The documents on record show the involvement of a firm of attorneys, Ziumbe & Mtambanengwe, in the efforts to get the property from the judgment debtor. From the documentary evidence adduced by the plaintiff, the defendant gave written authority to Brian Machengo to recover possession of the property from the owner of it.

The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive, and, in some instances, deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008.

When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe - even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit.

The defendant's statement that he received the proof of share transfers as agent of Zimcor Limited cannot be accepted.

He conveniently endorsed on one of the documents that he was receiving on behalf of Zimcor Limited so that he would point to that endorsement as a ground to wriggle out of his contractual obligations.

The defendant did not call any witness from that company to support his story.

He inadvertently admitted that he is in the habit of not registering assets in his own name which would explain why he directed the plaintiff to transfer the shares into the name of Zimcor Limited.

The defendant made inconsistent statements about whether he had appointed Brian Machengo to be his agent.

In one instance, he disputed that fact before he admitted it with some qualification. This was so notwithstanding the availability of a handwritten document which he authored and signed appointing Brian Machengo to be his agent and the fact that when the plaintiff gave evidence on the appointment of Brian Machengo to be the defendant's agent he was never challenged.

The defendant's demeanour, punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts, presented him as a witness who was seeking to mislead the court.

This court is convinced that the plaintiff has established, on a balance of probabilities, that he entered into an agreement with the defendant and that pursuant to that agreement he transferred his Old Mutual shares to the defendant. The defendant failed to perform in terms of the agreement. The plaintiff, as he was entitled to do, cancelled the agreement.

He is entitled to the return of his shares or payment of the value of the shares.

It was submitted, on behalf of the defendant, that Old Mutual PLC is no longer listed on the Zimbabwe Stock Exchange.

That fact is not a bar to an order that the value of the shares be calculated as at the last day that that company traded in Zimbabwe.

In the result, IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff and against the defendant for:

(a) Delivery to the plaintiff of 167,275 Old Mutual Public Limited Company shares within ten days of the date of this order; or, alternatively;

(b) Payment of damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last date that that company traded in Zimbabwe.

2. Defendant shall pay the costs of suit.

Damages re: Contractual Damages, Damages In Lieu of Specific Performance & Contractual Effects of Breach of Contract


The plaintiff instituted the summons in casu claiming the following relief against the defendant:

“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant in pursuance an asset swap agreement which agreement was cancelled due to the defendant's breach.

2. Alternatively, and in the event that the defendant no longer has possession of the 167, 275 Old Mutual Public Limited Company shares, an order for payment of damages equivalent to the market value of 167,275 Old Mutual Public Limited Company shares at the date of judgment.

3. Costs of suit.”

The claim is contested by the defendant.

The plaintiff's case, as pleaded, is as follows;

In 2008, he entered into a verbal agreement in terms of which the defendant agreed to deliver to him an immovable property at 4 Wroxham Road, The Grange, Harare. In consideration of that the plaintiff would transfer to the defendant 167,275 Old Mutual Public Limited Company shares and 110,000 shares in a company known as PPC. Transfer of title in the property would be registered in favour of the plaintiff upon delivery of the Old Mutual shares. The PPC shares would be transferred to the defendant after the transfer of the property to the plaintiff.

Pursuant to the agreement, the plaintiff delivered the 167,275 shares to the defendant.

The defendant, however, breached the agreement by failing to transfer the immovable property into the name of the plaintiff. Consequently, the plaintiff cancelled the agreement and demanded the return of his Old Mutual shares which demand the defendant failed to comply with hence the instant proceedings.

The defendant denies the alleged agreement and states that he only received the 167,275 shares from the plaintiff in his capacity as agent for a company known as Zimcor Limited in which he was neither Director nor shareholder. The share certificates were in the name of Zimcor Limited.

Four issues were referred to trial. These are;

(1) Whether or not the defendant entered into an Asset Swap Agreement with the plaintiff;

(2) Whether or not the defendant was acting in his personal capacity;

(3) Whether or not, as a result of the said agreement, the defendant had 167,275 Old Mutual shares transferred to him by the plaintiff; and

(4) If so, whether or not the defendant is liable to transfer the aforementioned shares to the plaintiff, or, upon failure to do so, the value of the shares.

The plaintiff gave evidence in support of his claim. In addition to stating the facts as stated in his declaration, the plaintiff stated that he was introduced to the defendant by one Brian Machengo, an estate agent who was acting as the defendant's agent. The agreement, the terms of which are detailed in the plaintiff's declaration, was then concluded. The defendant advised the plaintiff that he had purchased the immovable property which he would deliver to the plaintiff from the Sheriff of the High Court at an auction. The defendant instructed the plaintiff to transfer the shares into the name of Zimcor Limited, a company which the plaintiff was made to understand belonged to the defendant.

Having transferred the shares into the defendant's nominee through his brokers, New Africa Securities, the plaintiff presented proof of such transfer to the defendant who duly signed to acknowledge receipt while Brian Machengo signed as a witness.

Thereafter, attempts were made by the plaintiff, acting through Brian Machengo, to obtain vacant possession of the immovable property which the defendant had agreed to deliver to the plaintiff. Those efforts yielded nothing.

The defendant gave evidence himself. He stated that he did not know the plaintiff but then said that he had met him two or three times before in 2008. He categorically denied entering into an agreement in terms of which he agreed to swap the immovable property referred to above for shares as alleged by the plaintiff.

His evidence was that at some point an estate agent advised him that a potential client wanted to buy the immovable property in question but the property could not be sold as it was the subject of a dispute and was not available for disposal.

He denied ever receiving the Old Mutual shares from the plaintiff or directing the plaintiff to transfer the shares to Zimcor Limited. His evidence was that he only received the documents pertaining to the shares on behalf of the “owners” of Zimcor Limited who had moved to South Africa at that time.

The standard of proof required in this case, being a civil matter, entails a comparative rather than a quantitative test. 

The onus, in this case, is on the plaintiff to prove his case on a balance of probabilities. 

The degree of proof is expressed in the following statement of lord denning in the case of Miller v Minister of Pension [1947] 2 All ER 372…,:

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

This test has stood the test of time, and has been consistently applied; see Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 157D; Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (S) at 503E-504D.

This is a case in which the versions of the plaintiff and the defendant are mutually destructive.

The approach of the court in the face of such a scenario is as stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…,:

“Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199:

'Where there are two stories mutually destructive; before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that, in this case, absolute reliance can be placed upon the story as told by A Gany…,.'

I entirely agree with the learned JUDGE OF APPEAL.”

The plaintiff's evidence is simple and supports the averments in his declaration. He tendered proof of transfer of the Old Mutual shares. He also explained why the shares were transferred into the name of Zimcor Limited rather than in the defendant's name. The company was the defendant's nominee for the purpose of receiving the payment. The plaintiff owed no obligation to that company which would have underpinned transfer of shares into its name.

The link between the transfer of shares and the existence of an immovable property which the defendant had purchased from the Sheriff's auction is established by evidence.

There is no way that the plaintiff would have known that the defendant had purchased that property from an auction.

The plaintiff also testified on the efforts which were made to recover the immovable property from the judgment debtor who was the owner of the property.

The documents on record show the involvement of a firm of attorneys, Ziumbe & Mtambanengwe, in the efforts to get the property from the judgment debtor. From the documentary evidence adduced by the plaintiff, the defendant gave written authority to Brian Machengo to recover possession of the property from the owner of it.

The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive, and, in some instances, deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008.

When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe - even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit.

The defendant's statement that he received the proof of share transfers as agent of Zimcor Limited cannot be accepted.

He conveniently endorsed on one of the documents that he was receiving on behalf of Zimcor Limited so that he would point to that endorsement as a ground to wriggle out of his contractual obligations.

The defendant did not call any witness from that company to support his story.

He inadvertently admitted that he is in the habit of not registering assets in his own name which would explain why he directed the plaintiff to transfer the shares into the name of Zimcor Limited.

The defendant made inconsistent statements about whether he had appointed Brian Machengo to be his agent.

In one instance, he disputed that fact before he admitted it with some qualification. This was so notwithstanding the availability of a handwritten document which he authored and signed appointing Brian Machengo to be his agent and the fact that when the plaintiff gave evidence on the appointment of Brian Machengo to be the defendant's agent he was never challenged.

The defendant's demeanour, punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts, presented him as a witness who was seeking to mislead the court.

This court is convinced that the plaintiff has established, on a balance of probabilities, that he entered into an agreement with the defendant and that pursuant to that agreement he transferred his Old Mutual shares to the defendant. The defendant failed to perform in terms of the agreement. The plaintiff, as he was entitled to do, cancelled the agreement.

He is entitled to the return of his shares or payment of the value of the shares.

It was submitted, on behalf of the defendant, that Old Mutual PLC is no longer listed on the Zimbabwe Stock Exchange.

That fact is not a bar to an order that the value of the shares be calculated as at the last day that that company traded in Zimbabwe.

In the result, IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff and against the defendant for:

(a) Delivery to the plaintiff of 167,275 Old Mutual Public Limited Company shares within ten days of the date of this order; or, alternatively;

(b) Payment of damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last date that that company traded in Zimbabwe.

2. Defendant shall pay the costs of suit.

Evidence of Oath, Evidence Derived from Previous, Concurrent or Criminal Litigation, Perjury & Submissions from the Bar


The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive, and, in some instances, deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008.

When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe - even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit….,.

Prevaricative or Inconsistent Evidence and Approbating and Reprobating a Course in Proceedings


The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive, and, in some instances, deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008.

When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe - even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit….,.

The defendant made inconsistent statements about whether he had appointed Brian Machengo to be his agent.

In one instance, he disputed that fact before he admitted it with some qualification. This was so notwithstanding the availability of a handwritten document which he authored and signed appointing Brian Machengo to be his agent and the fact that when the plaintiff gave evidence on the appointment of Brian Machengo to be the defendant's agent he was never challenged.

The defendant's demeanour, punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts, presented him as a witness who was seeking to mislead the court.

ZHOU J: The plaintiff instituted the summons in casu claiming the following relief against the defendant:

“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order being shares which the plaintiff transferred to the defendant in pursuance an asset swap agreement which agreement was cancelled due to the defendant's breach.

2. Alternatively and in the event that the defendant no longer has possession of the 167, 275 Old Mutual Public Limited Company shares, an order for payment of damages equivalent to the market value of 167,275 Old Mutual Public Limited Company shares at the date of judgment.

3. Costs of suit.”


The claim is contested by the defendant.

The plaintiff's case as pleaded is as follows;

In 2008 he entered into a verbal agreement in terms of which the defendant agreed to deliver to him an immovable property at 4 Wroxham Road, The Grange, Harare. In consideration of that the plaintiff would transfer to the defendant 167,275 Old Mutual Public Limited Company shares and 110,000 shares in a company known as PPC. Transfer of title in the property would be registered in favour of the plaintiff upon delivery of the Old Mutual shares. The PPC shares would be transferred to the defendant after the transfer of the property to the plaintiff.

Pursuant to the agreement the plaintiff delivered the 167,275 shares to the defendant.

The defendant, however, breached the agreement by failing to transfer the immovable property into the name of the plaintiff. Consequently, the plaintiff cancelled the agreement and demanded the return of his Old Mutual shares which demand the defendant failed to comply with hence the instant proceedings.

The defendant denies the alleged agreement and states that he only received the 167,275 shares from the plaintiff in his capacity as agent for a company known as Zimcor Limited in which he was neither director nor shareholder. The share certificates were in the name of Zimcor Limited. Four issues were referred to trial. These are;

(1) Whether or not the defendant entered into an Asset Swap Agreement with the plaintiff;

(2) Whether or not the defendant was acting in his personal capacity;

(3) Whether or not, as a result of the said agreement, the defendant had 167,275 Old Mutual shares transferred to him by the plaintiff; and

(4) If so, whether or not the defendant is liable to transfer the aforementioned shares to the plaintiff or, upon failure to do so, the value of the shares.

The plaintiff gave evidence in support of his claim. In addition to stating the facts as stated in his declaration, the plaintiff stated that he was introduced to the defendant by one Brian Machengo, an estate agent who was acting as the defendant's agent. The agreement the terms of which are detailed in the plaintiff's declaration was then concluded. The defendant advised the plaintiff that he had purchased the immovable property which he would deliver to the plaintiff from the Sheriff of the High Court at an auction. The defendant instructed the plaintiff to transfer the shares into the name of Zimcor Limited a company which the plaintiff was made to understand belonged to the defendant.

Having transferred the shares into the defendant's nominee through his brokers, New Africa Securities, the plaintiff presented proof of such transfer to the defendant who duly signed to acknowledge receipt while Brian Machengo signed as a witness.

Thereafter attempts were made by the defendant acting through Brian Machengo to obtain vacant possession of the immovable property which the defendant had agreed to deliver to the plaintiff. Those efforts yielded nothing.

The defendant gave evidence himself. He stated that he did not know the plaintiff but then said that he had met him two or three times before in 2008. He categorically denied entering into an agreement in terms of which he agreed to swap the immovable property referred to above for shares as alleged by the plaintiff.

His evidence was that at some point an estate agent advised him that a potential client wanted to buy the immovable property in question but the property could not be sold as it was the subject of a dispute and was not available for disposal.

He denied ever receiving the Old Mutual shares from the plaintiff or directing the plaintiff to transfer the shares to Zimcor Limited. His evidence was that he only received the documents pertaining to the shares on behalf of the “owners” of Zimcor Limited who had moved to South Africa at that time.

The standard of proof required in this case, being a civil matter, entails a comparative rather than a quantitative test. The onus in this case is on the plaintiff to prove his case on a balance of probabilities. The degree of proof is expressed in the following statement of lord denning in the case of Miller v Minister of Pension [1947] 2 All ER 372 at 374:

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


This test has stood the test of time, and has been consistently applied; see Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 157D; Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (S) at 503E-504D.

This is a case in which the versions of the plaintiff and the defendant are mutually destructive. The approach of the court in the face of such a scenario is as stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140 (S) at 143A-C:

“Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199:

'Where there are two stories mutually destructive, before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that in this case absolute reliance can be placed upon the story as told by A Gany . . .'

I entirely agree with the learned JUDGE OF APPEAL.”


The plaintiff's evidence is simple and supports the averments in his declaration. He tendered proof of transfer of the Old Mutual shares. He also explained why the shares were transferred into the name of Zimcor Limited rather than in the defendant's name. The company was the defendant's nominee for the purpose of receiving the payment. The plaintiff owed no obligation to that company which would have underpinned transfer of shares into its name.

The link between the transfer of shares and the existence of an immovable property which the defendant had purchased from the Sheriff's auction is established by evidence.

There is no way that the plaintiff would have known that the defendant had purchased that property from an auction.

The plaintiff also testified on the efforts which were made to recover the immovable property from the judgment debtor who was the owner of the property.

The documents on record show the involvement of a firm of attorneys, Ziumbe & Mtambanengwe, in the efforts to get the property from the judgment debtor. From the documentary evidence adduced by the plaintiff, the defendant gave written authority to Brian Machengo to recover possession of the property from the owner of it.

The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive and in some instances deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008. When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit.

The defendant's statement that he received the proof of share transfers as agent of Zimcor Limited cannot be accepted.

He conveniently endorsed on one of the documents that he was receiving on behalf of Zimcor Limited so that he would point to that endorsement as a ground to wriggle out of his contractual obligations.

Defendant did not call any witness from that company to support his story.

He inadvertently admitted that he is in the habit of not registering assets in his own name which would explain why he directed the plaintiff to transfer the shares into the name of Zimcor Limited.

The defendant made inconsistent statements about whether he had appointed Brian Machengo to be his agent.

In one instance he disputed that fact before he admitted it with some qualification. This was so notwithstanding the availability of a handwritten document which he authored and signed appointing Brian Machengo to be his agent and the fact that when the plaintiff gave evidence on the appointment of Brian Machengo to be the defendant's agent he was never challenged.

The defendant's demeanour, punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts presented him as a witness who was seeking to mislead the court.

This court is convinced that the plaintiff has established on a balance of probabilities that he entered into an agreement with the defendant and that pursuant to that agreement he transferred his Old Mutual shares to the defendant. The defendant failed to perform in terms of the agreement. The plaintiff, as he was entitled to do, cancelled the agreement.

He is entitled to the return of his shares or payment of the value of the shares.

It was submitted, on behalf of the defendant, that Old Mutual PLC is no longer listed on the Zimbabwe Stock Exchange.

That fact is not a bar to an order that the value of the shares be calculated as at the last day that that company traded in Zimbabwe.

In the result, IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff and against the defendant for:

(a) Delivery to the plaintiff of 167,275 Old Mutual Public Limited Company shares within ten days of the date of this order; or, alternatively;

(b) Payment of damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last date that that company traded in Zimbabwe.

2. Defendant shall pay the costs of suit.









Kantor & Immerman, plaintiff's legal practitioners

Mushoriwa Pasi, defendant's legal practitiopners

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