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HB16-14 - CASPER TSVANGIRAI vs ZIMASCO (PVT) LTD and BAOBAB REAL ESTATE and THE REGISTRAR OF DEEDS, BULAWAYO

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Law of Contract-viz purchase and sale re purchase price iro terms of payment.
Law of Contract-viz essential elements re consensus ad idem iro condition precedent.
Law of Contract-viz essential elements re consensus ad idem iro suspensive condition.
Law of Contract-viz essential elements re intent iro the parole evidence rule.
Law of Contract-viz essential elements re animus contrahendi iro the integration rule.
Procedural Law-viz rules of evidence re signatures iro the caveat subscriptor rule.
Law of Property-viz proof of title re immovable property iro registered rights.
Law of Property-viz proof of title to immovable property re registered rights iro cancellation of registered rights.
Law of Contract-viz debt re contractual debt iro balance of purchase price.
Procedural Law-viz rules of evidence re documentary evidence.
Procedural Law-viz pleadings re counterclaim.
Procedural Law-viz pleadings re counter application.
Procedural Law-viz pleadings re claim in reconvention.
Law of Property-viz rei vindicatio re claim of right.
Law of Property-viz vindicatory action re claim of right.
Law of Contract-viz essential elements re consensus ad idem iro undue influence.
Procedural Law-viz documentary evidence re alterations to a written document iro countersigning.
Procedural Law-viz documentary evidence re amendments to a written document iro counter-signing.
Procedural Law-viz absolution from the instance.
Banking Law-viz payment systems re Bank transfer.
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 compellable witness iro legal practitioners.
Procedural Law-viz rules of evidence re competent witness iro legal practitioners.
Damages-viz holding over damages re Rule 185 of the High Court Rules.
Procedural Law-viz pleadings re admissions iro Rule 185 of the High Court Rules.
Procedural Law-viz onus re burden of proof iro Rule 185 of the High Court Rules.

Subpoena Ad Testificandum or Witness Summons re: Competent Witness iro Officers of the Court & Judicial Support Staff


The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1. The date of payment of the purchase price and its effect.

It was argued that no reasonable man might find for the plaintiff because the legal position is that if payment is made by cheque or bank transfer, the date of payment when the instrument is subsequently honoured is the date when the application for transfer is made and not when the funds are credited.

The plaintiff conceded that on 11 and 12 June 2008 he did not know what the informal market exchange rate was and he produced no evidence as to what it was.

Without knowing the exchange rate, no reasonable man might find that the amount he was paid was less by an equivalent of US$84,000 as he claims.

I find that the issue regarding the Zimbabwe dollar equivalent needs the first defendant's answer in view of Mrs Matshiya's letter to the plaintiff's legal practitioner dated 17 December 2008 (exhibit 5) wherein she conceded that the Zimbabwe dollar purchase price was equivalent to US$180,000. There is need for the first defendant to also explain what the obtaining exchange rate was on 10 and 11 June 2008.

It is pertinent to note here that Mrs Matshiya is the first defendant's instructing legal practitioner.

Documentary Evidence re: Caveat Subscriptor Rule and Recorded Intent: Unsigned Documents and Active Intent iro Approach


The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1....,. 

2. The caveat subscriptor maxim regarding the signed blank power of attorney does not require comment in extenso at this juncture save to state that fraud is being alleged.

Intent or Animus Contrahendi re: Trade or Past Practices, Parol Evidence Rule, Integration Rule, Rectification & Retraction


The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1....,. 

2. The caveat subscriptor maxim regarding the signed blank power of attorney does not require comment in extenso at this juncture save to state that fraud is being alleged.

Payment Systems and Negotiable Instruments


The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1. The date of payment of the purchase price and its effect.

It was argued that no reasonable man might find for the plaintiff because the legal position is that if payment is made by cheque or bank transfer, the date of payment when the instrument is subsequently honoured is the date when the application for transfer is made and not when the funds are credited.

The plaintiff conceded that on 11 and 12 June 2008 he did not know what the informal market exchange rate was and he produced no evidence as to what it was.

Without knowing the exchange rate, no reasonable man might find that the amount he was paid was less by an equivalent of US$84,000 as he claims.

I find that the issue regarding the Zimbabwe dollar equivalent needs the first defendant's answer in view of Mrs Matshiya's letter to the plaintiff's legal practitioner dated 17 December 2008 (exhibit 5) wherein she conceded that the Zimbabwe dollar purchase price was equivalent to US$180,000. There is need for the first defendant to also explain what the obtaining exchange rate was on 10 and 11 June 2008.

It is pertinent to note here that Mrs Matshiya is the first defendant's instructing legal practitioner.

Absolution from the Instance, Evidential Deficit and the Concept of Prima Facie


The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1. The date of payment of the purchase price and its effect.

It was argued that no reasonable man might find for the plaintiff because the legal position is that if payment is made by cheque or bank transfer, the date of payment when the instrument is subsequently honoured is the date when the application for transfer is made and not when the funds are credited.

The plaintiff conceded that on 11 and 12 June 2008 he did not know what the informal market exchange rate was and he produced no evidence as to what it was.

Without knowing the exchange rate, no reasonable man might find that the amount he was paid was less by an equivalent of US$84,000 as he claims.

I find that the issue regarding the Zimbabwe dollar equivalent needs the first defendant's answer in view of Mrs Matshiya's letter to the plaintiff's legal practitioner dated 17 December 2008 (exhibit 5) wherein she conceded that the Zimbabwe dollar purchase price was equivalent to US$180,000. There is need for the first defendant to also explain what the obtaining exchange rate was on 10 and 11 June 2008.

It is pertinent to note here that Mrs Matshiya is the first defendant's instructing legal practitioner.

Also, the mode of payment employed by the first defendant was not in sync with the relevant clause in the Agreement of Sale.

2. The caveat subscriptor maxim regarding the signed blank power of attorney does not require comment in extenso at this juncture save to state that fraud is being alleged.

3. re: the first defendant's counter-claim.

It is settled law that an order of absolution from the instance does not attract a subsequent plea of res judicata.

In the application, Mr Mpofu, while praying for absolution regarding the plaintiff's claim, also prayed that the first defendant's counterclaim the for plaintiff's eviction, arrear rentals, hold over damages, etc be granted.

He submitted that such a novel claim is competent in terms of Rule 185 and S W M Electrical P/L v Electrical Pulley Component Suppliers P/L 1996 (1) ZLR 696 (S).

The case was thrown in to buttress the plaintiff's seeming concession that reasonable rentals for the house in question are US$250 per month. The first defendant then indicated its willingness to abandon the counter-claimed US$400 per month, settling for the US$250 per month.

While it is difficult to say with any degree of certainty that what the plaintiff said amounts to a confession of indebtedness, no authority falling on all fours with what Mr Mpofu's application seeks particularly regarding the counter-claim has been cited.

It would be a novel precedent if the court were to grant the application in its current form.

Granting it would effectively put the entire dispute to rest, with the plaintiff losing his right to re-institute the suit in the future.

On the totality of the foregoing, the application for absolution from the instance at the close of the plaintiff's case and for the first defendant's counter-claim to be granted be and is hereby dismissed with costs.

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


The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1. The date of payment of the purchase price and its effect.

It was argued that no reasonable man might find for the plaintiff because the legal position is that if payment is made by cheque or bank transfer, the date of payment when the instrument is subsequently honoured is the date when the application for transfer is made and not when the funds are credited.

The plaintiff conceded that on 11 and 12 June 2008 he did not know what the informal market exchange rate was and he produced no evidence as to what it was.

Without knowing the exchange rate, no reasonable man might find that the amount he was paid was less by an equivalent of US$84,000 as he claims.

I find that the issue regarding the Zimbabwe dollar equivalent needs the first defendant's answer in view of Mrs Matshiya's letter to the plaintiff's legal practitioner dated 17 December 2008 (exhibit 5) wherein she conceded that the Zimbabwe dollar purchase price was equivalent to US$180,000. There is need for the first defendant to also explain what the obtaining exchange rate was on 10 and 11 June 2008.

It is pertinent to note here that Mrs Matshiya is the first defendant's instructing legal practitioner.

Also, the mode of payment employed by the first defendant was not in sync with the relevant clause in the Agreement of Sale.

2. The caveat subscriptor maxim regarding the signed blank power of attorney does not require comment in extenso at this juncture save to state that fraud is being alleged.

3. re: the first defendant's counter-claim.

It is settled law that an order of absolution from the instance does not attract a subsequent plea of res judicata.

In the application, Mr Mpofu, while praying for absolution regarding the plaintiff's claim, also prayed that the first defendant's counterclaim the for plaintiff's eviction, arrear rentals, hold over damages, etc be granted.

He submitted that such a novel claim is competent in terms of Rule 185 and S W M Electrical P/L v Electrical Pulley Component Suppliers P/L 1996 (1) ZLR 696 (S).

The case was thrown in to buttress the plaintiff's seeming concession that reasonable rentals for the house in question are US$250 per month. The first defendant then indicated its willingness to abandon the counter-claimed US$400 per month, settling for the US$250 per month.

While it is difficult to say with any degree of certainty that what the plaintiff said amounts to a confession of indebtedness, no authority falling on all fours with what Mr Mpofu's application seeks particularly regarding the counter-claim has been cited.

It would be a novel precedent if the court were to grant the application in its current form.

Granting it would effectively put the entire dispute to rest, with the plaintiff losing his right to re-institute the suit in the future.

On the totality of the foregoing, the application for absolution from the instance at the close of the plaintiff's case and for the first defendant's counter-claim to be granted be and is hereby dismissed with costs.

Purchase Price re: Approach, Terms of Payment, Ad Stipulator and the Actio Venditi


The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1. The date of payment of the purchase price and its effect.

It was argued that no reasonable man might find for the plaintiff because the legal position is that if payment is made by cheque or bank transfer, the date of payment when the instrument is subsequently honoured is the date when the application for transfer is made and not when the funds are credited.

The plaintiff conceded that on 11 and 12 June 2008 he did not know what the informal market exchange rate was and he produced no evidence as to what it was.

Without knowing the exchange rate, no reasonable man might find that the amount he was paid was less by an equivalent of US$84,000 as he claims.

I find that the issue regarding the Zimbabwe dollar equivalent needs the first defendant's answer in view of Mrs Matshiya's letter to the plaintiff's legal practitioner dated 17 December 2008 (exhibit 5) wherein she conceded that the Zimbabwe dollar purchase price was equivalent to US$180,000. There is need for the first defendant to also explain what the obtaining exchange rate was on 10 and 11 June 2008.

It is pertinent to note here that Mrs Matshiya is the first defendant's instructing legal practitioner.

Also, the mode of payment employed by the first defendant was not in sync with the relevant clause in the Agreement of Sale.

2. The caveat subscriptor maxim regarding the signed blank power of attorney does not require comment in extenso at this juncture save to state that fraud is being alleged.

3. re: the first defendant's counter-claim.

It is settled law that an order of absolution from the instance does not attract a subsequent plea of res judicata.

In the application, Mr Mpofu, while praying for absolution regarding the plaintiff's claim, also prayed that the first defendant's counterclaim the for plaintiff's eviction, arrear rentals, hold over damages, etc be granted.

He submitted that such a novel claim is competent in terms of Rule 185 and S W M Electrical P/L v Electrical Pulley Component Suppliers P/L 1996 (1) ZLR 696 (S).

The case was thrown in to buttress the plaintiff's seeming concession that reasonable rentals for the house in question are US$250 per month. The first defendant then indicated its willingness to abandon the counter-claimed US$400 per month, settling for the US$250 per month.

While it is difficult to say with any degree of certainty that what the plaintiff said amounts to a confession of indebtedness, no authority falling on all fours with what Mr Mpofu's application seeks particularly regarding the counter-claim has been cited.

It would be a novel precedent if the court were to grant the application in its current form.

Granting it would effectively put the entire dispute to rest, with the plaintiff losing his right to re-institute the suit in the future.

On the totality of the foregoing, the application for absolution from the instance at the close of the plaintiff's case and for the first defendant's counter-claim to be granted be and is hereby dismissed with costs.

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


The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1. The date of payment of the purchase price and its effect.

It was argued that no reasonable man might find for the plaintiff because the legal position is that if payment is made by cheque or bank transfer, the date of payment when the instrument is subsequently honoured is the date when the application for transfer is made and not when the funds are credited.

The plaintiff conceded that on 11 and 12 June 2008 he did not know what the informal market exchange rate was and he produced no evidence as to what it was.

Without knowing the exchange rate, no reasonable man might find that the amount he was paid was less by an equivalent of US$84,000 as he claims.

I find that the issue regarding the Zimbabwe dollar equivalent needs the first defendant's answer in view of Mrs Matshiya's letter to the plaintiff's legal practitioner dated 17 December 2008 (exhibit 5) wherein she conceded that the Zimbabwe dollar purchase price was equivalent to US$180,000. There is need for the first defendant to also explain what the obtaining exchange rate was on 10 and 11 June 2008.

It is pertinent to note here that Mrs Matshiya is the first defendant's instructing legal practitioner.

Also, the mode of payment employed by the first defendant was not in sync with the relevant clause in the Agreement of Sale.

2. The caveat subscriptor maxim regarding the signed blank power of attorney does not require comment in extenso at this juncture save to state that fraud is being alleged.

3. re: the first defendant's counter-claim.

It is settled law that an order of absolution from the instance does not attract a subsequent plea of res judicata.

In the application, Mr Mpofu, while praying for absolution regarding the plaintiff's claim, also prayed that the first defendant's counterclaim the for plaintiff's eviction, arrear rentals, hold over damages, etc be granted.

He submitted that such a novel claim is competent in terms of Rule 185 and S W M Electrical P/L v Electrical Pulley Component Suppliers P/L 1996 (1) ZLR 696 (S).

The case was thrown in to buttress the plaintiff's seeming concession that reasonable rentals for the house in question are US$250 per month. The first defendant then indicated its willingness to abandon the counter-claimed US$400 per month, settling for the US$250 per month.

While it is difficult to say with any degree of certainty that what the plaintiff said amounts to a confession of indebtedness, no authority falling on all fours with what Mr Mpofu's application seeks particularly regarding the counter-claim has been cited.

It would be a novel precedent if the court were to grant the application in its current form.

Granting it would effectively put the entire dispute to rest, with the plaintiff losing his right to re-institute the suit in the future.

On the totality of the foregoing, the application for absolution from the instance at the close of the plaintiff's case and for the first defendant's counter-claim to be granted be and is hereby dismissed with costs.

Vindicatory Action or Rei Vindicatio re: Approach, Ownership Rights, Claim of Right, Estoppel and Lien


The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1. The date of payment of the purchase price and its effect.

It was argued that no reasonable man might find for the plaintiff because the legal position is that if payment is made by cheque or bank transfer, the date of payment when the instrument is subsequently honoured is the date when the application for transfer is made and not when the funds are credited.

The plaintiff conceded that on 11 and 12 June 2008 he did not know what the informal market exchange rate was and he produced no evidence as to what it was.

Without knowing the exchange rate, no reasonable man might find that the amount he was paid was less by an equivalent of US$84,000 as he claims.

I find that the issue regarding the Zimbabwe dollar equivalent needs the first defendant's answer in view of Mrs Matshiya's letter to the plaintiff's legal practitioner dated 17 December 2008 (exhibit 5) wherein she conceded that the Zimbabwe dollar purchase price was equivalent to US$180,000. There is need for the first defendant to also explain what the obtaining exchange rate was on 10 and 11 June 2008.

It is pertinent to note here that Mrs Matshiya is the first defendant's instructing legal practitioner.

Also, the mode of payment employed by the first defendant was not in sync with the relevant clause in the Agreement of Sale.

2. The caveat subscriptor maxim regarding the signed blank power of attorney does not require comment in extenso at this juncture save to state that fraud is being alleged.

3. re: the first defendant's counter-claim.

It is settled law that an order of absolution from the instance does not attract a subsequent plea of res judicata.

In the application, Mr Mpofu, while praying for absolution regarding the plaintiff's claim, also prayed that the first defendant's counterclaim the for plaintiff's eviction, arrear rentals, hold over damages, etc be granted.

He submitted that such a novel claim is competent in terms of Rule 185 and S W M Electrical P/L v Electrical Pulley Component Suppliers P/L 1996 (1) ZLR 696 (S).

The case was thrown in to buttress the plaintiff's seeming concession that reasonable rentals for the house in question are US$250 per month. The first defendant then indicated its willingness to abandon the counter-claimed US$400 per month, settling for the US$250 per month.

While it is difficult to say with any degree of certainty that what the plaintiff said amounts to a confession of indebtedness, no authority falling on all fours with what Mr Mpofu's application seeks particularly regarding the counter-claim has been cited.

It would be a novel precedent if the court were to grant the application in its current form.

Granting it would effectively put the entire dispute to rest, with the plaintiff losing his right to re-institute the suit in the future.

On the totality of the foregoing, the application for absolution from the instance at the close of the plaintiff's case and for the first defendant's counter-claim to be granted be and is hereby dismissed with costs.

Pleadings re: Approach to Pleadings, Pre-Trial Proceedings, Disparities with Oral Evidence and Unchallenged Statements


The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1. The date of payment of the purchase price and its effect.

It was argued that no reasonable man might find for the plaintiff because the legal position is that if payment is made by cheque or bank transfer, the date of payment when the instrument is subsequently honoured is the date when the application for transfer is made and not when the funds are credited.

The plaintiff conceded that on 11 and 12 June 2008 he did not know what the informal market exchange rate was and he produced no evidence as to what it was.

Without knowing the exchange rate, no reasonable man might find that the amount he was paid was less by an equivalent of US$84,000 as he claims.

I find that the issue regarding the Zimbabwe dollar equivalent needs the first defendant's answer in view of Mrs Matshiya's letter to the plaintiff's legal practitioner dated 17 December 2008 (exhibit 5) wherein she conceded that the Zimbabwe dollar purchase price was equivalent to US$180,000. There is need for the first defendant to also explain what the obtaining exchange rate was on 10 and 11 June 2008.

It is pertinent to note here that Mrs Matshiya is the first defendant's instructing legal practitioner.

Also, the mode of payment employed by the first defendant was not in sync with the relevant clause in the Agreement of Sale.

2. The caveat subscriptor maxim regarding the signed blank power of attorney does not require comment in extenso at this juncture save to state that fraud is being alleged.

3. re: the first defendant's counter-claim.

It is settled law that an order of absolution from the instance does not attract a subsequent plea of res judicata.

In the application, Mr Mpofu, while praying for absolution regarding the plaintiff's claim, also prayed that the first defendant's counterclaim the for plaintiff's eviction, arrear rentals, hold over damages, etc be granted.

He submitted that such a novel claim is competent in terms of Rule 185 and S W M Electrical P/L v Electrical Pulley Component Suppliers P/L 1996 (1) ZLR 696 (S).

The case was thrown in to buttress the plaintiff's seeming concession that reasonable rentals for the house in question are US$250 per month. The first defendant then indicated its willingness to abandon the counter-claimed US$400 per month, settling for the US$250 per month.

While it is difficult to say with any degree of certainty that what the plaintiff said amounts to a confession of indebtedness, no authority falling on all fours with what Mr Mpofu's application seeks particularly regarding the counter-claim has been cited.

It would be a novel precedent if the court were to grant the application in its current form.

Granting it would effectively put the entire dispute to rest, with the plaintiff losing his right to re-institute the suit in the future.

On the totality of the foregoing, the application for absolution from the instance at the close of the plaintiff's case and for the first defendant's counter-claim to be granted be and is hereby dismissed with costs.

Pleadings re: Claims, Counter-Claim, Claim in Reconvention and Counter Application iro Approach


The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1. The date of payment of the purchase price and its effect.

It was argued that no reasonable man might find for the plaintiff because the legal position is that if payment is made by cheque or bank transfer, the date of payment when the instrument is subsequently honoured is the date when the application for transfer is made and not when the funds are credited.

The plaintiff conceded that on 11 and 12 June 2008 he did not know what the informal market exchange rate was and he produced no evidence as to what it was.

Without knowing the exchange rate, no reasonable man might find that the amount he was paid was less by an equivalent of US$84,000 as he claims.

I find that the issue regarding the Zimbabwe dollar equivalent needs the first defendant's answer in view of Mrs Matshiya's letter to the plaintiff's legal practitioner dated 17 December 2008 (exhibit 5) wherein she conceded that the Zimbabwe dollar purchase price was equivalent to US$180,000. There is need for the first defendant to also explain what the obtaining exchange rate was on 10 and 11 June 2008.

It is pertinent to note here that Mrs Matshiya is the first defendant's instructing legal practitioner.

Also, the mode of payment employed by the first defendant was not in sync with the relevant clause in the Agreement of Sale.

2. The caveat subscriptor maxim regarding the signed blank power of attorney does not require comment in extenso at this juncture save to state that fraud is being alleged.

3. re: the first defendant's counter-claim.

It is settled law that an order of absolution from the instance does not attract a subsequent plea of res judicata.

In the application, Mr Mpofu, while praying for absolution regarding the plaintiff's claim, also prayed that the first defendant's counterclaim the for plaintiff's eviction, arrear rentals, hold over damages, etc be granted.

He submitted that such a novel claim is competent in terms of Rule 185 and S W M Electrical P/L v Electrical Pulley Component Suppliers P/L 1996 (1) ZLR 696 (S).

The case was thrown in to buttress the plaintiff's seeming concession that reasonable rentals for the house in question are US$250 per month. The first defendant then indicated its willingness to abandon the counter-claimed US$400 per month, settling for the US$250 per month.

While it is difficult to say with any degree of certainty that what the plaintiff said amounts to a confession of indebtedness, no authority falling on all fours with what Mr Mpofu's application seeks particularly regarding the counter-claim has been cited.

It would be a novel precedent if the court were to grant the application in its current form.

Granting it would effectively put the entire dispute to rest, with the plaintiff losing his right to re-institute the suit in the future.

On the totality of the foregoing, the application for absolution from the instance at the close of the plaintiff's case and for the first defendant's counter-claim to be granted be and is hereby dismissed with costs.

Res Judicata, Cause of Action Estoppel, Issue Estoppel or Subject Matter Estoppel re: Approach


It is settled law that an order of absolution from the instance does not attract a subsequent plea of res judicata.

MUTEMA J: The genesis of the dispute between the parties resides in an agreement of sale entered into in respect of Stand 1004 Redcliff Township owned by plaintiff which 1st defendant purchased on 10 June 2008 via the facilitation of 2nd defendant.

Both 1st and 2nd defendants aver that the purchase price, which was paid in full on 11 June, 2008 was Z$720 trillion. Plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000,00 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the agreement of sale first while 1st defendant was to sign later.

On the same date he signed a power of attorney to make transfer by 2nd defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that 1st defendant and 2nd defendant or one or other of them removed some pages from the written agreement of sale and altered inter alia, the purchase price and inserted plaintiff's initials without his knowledge or consent and attached the forged pages to the last page plaintiff had signed.

Thereafter, 1st defendant paid Z$720,000,00 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to plaintiff, was an equivalent of only US$96,000,00, leaving a balance of US$84 000,00.

In the event, plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No. 1906/08 in favour of 1st defendant in respect of the property and reversal of ownership into plaintiff's name, that he refunds the Z$720,000,00 (revalued) to 1st defendant with interest plus costs of suit on a punitive scale.

Alternatively, plaintiff prays for payment of the outstanding balance of US$84,000,00 with interest and costs on a punitive scale by both 1st and 2nd defendants jointly and severally, the one paying absolving the other.

Both 1st and 2nd defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

1st defendant counter-claimed for plaintiff's eviction from the house, arrear rentals and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the 2nd defendant phoned him asking whether his house was still on sale. He confirmed it still was. Tsikira then went and viewed the house with 1st defendant's representatives. He communicated that his asking price was US$220,000,00. The price was negotiated down to US$180,000,00. He told Tsikira that the purchase price was US$180,000,00 payable in local currency at open market rates.

Tsikira captured that in the agreement of sale that he brought to him.

He told Tsikira that the exchange rate was changing daily due to hyper-inflation that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the agreement of sale and initialed all other pages. Tsikira then left with the agreement documents and the next time he heard from him was on 15 June, 2008 when he received payment in his account.

He told Tsikira that the rate had since changed and amount paid was equivalent to only US$96,000,00. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Tsikira had said 1st defendant required those before it could sign the agreement.

When Tsikira gave him exhibit 2 he discovered that the purchase price of US$180,000,00 had been substituted with Z$720 trillion and the pages preceding the last had been initialed differently on his behalf.

Tsikira told him that he had effected the alterations to the agreement because 1st defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that 1st and 2nd defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000,00 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to 1st defendant which he said was fraudulently done.

He said the amount of US$96,000,00 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that 1st defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the 1st and 2nd defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged viz:

1. the date of payment of the purchase price and its effect.

It was argued that no reasonable man might find for the plaintiff because the legal position is that if payment is made by cheque or bank transfer, the date of payment when the instrument is subsequently honoured is the date when the application for transfer is made and not when the funds are credited.

Plaintiff conceded that on 11 and 12 June, 2008 he did not know what the informal market exchange rate was and he produced no evidence as to what it was.

Without knowing the exchange rate no reasonable man might find that the amount he was paid was less by an equivalent of US$84,000,00 as he claims.

I find that the issue regarding the Zimbabwe dollar equivalent needs first defendant's answer in view of Mrs Matshiya's letter to plaintiff's legal practitioner dated 17 December, 2008 (exhibit 5) wherein she conceded that the Zimbabwe dollar purchase price was equivalent to US$180,000,00. There is need for first defendant to also explain what the obtaining exchange rate was on 10 and 11 June, 2008.

It is pertinent to note here that Mrs Matshiya is first defendant's instructing legal practitioner.

Also, the mode of payment employed by first defendant was not in sync with the relevant clause in the agreement of sale.

2. the caveat subscripto maxim regarding the signed blank power of attorney does not require comment in extenso at this juncture save to state that fraud is being alleged.

3. re: first defendant's counter-claim.

It is settled law that an order of absolution from the instance does not attract a subsequent plea of res judicata.

In the application, Mr Mpofu, while praying for absolution regarding plaintiff's claim, also prayed that the first defendant's counter claim for plaintiff's eviction, arrear rentals, hold over damages etc be granted.

He submitted that such a novel claim is competent in terms of Rule 185 and S W M Electrical P/L v Electrical Pulley Component Suppliers P/L 1996 (1) ZLR 696 (S).

The case was thrown in to buttress plaintiff's seeming concession that reasonable rentals for the house in question are US$250,00 per month. First defendant then indicated its willingness to abandon the counter-claimed US$400,00 per month, settling for the US$250,00 per month.

While it is difficult to say with any degree of certainty that what plaintiff said amounts to a confession of indebtedness, no authority falling on all fours with what Mr Mpofu's application seeks particularly regarding the counter claim has been cited.

It would be a novel precedent if the court were to grant the application in its current form.

Granting it would effectively put the entire dispute to rest, with the plaintiff losing his right to re-institute the suit in the future.

On the totality of the foregoing the application for absolution from the instance at the close of the plaintiff's case and for the first defendant's counter-claim to be granted be and is hereby dismissed with costs.







Messrs Mkushi, Foroma & Maupa, plaintiff's legal practitioners

Messrs Mtetwa & Nyambirai incorporating Wilmot & Bennett, 1st defendant's legal practitioners

Messrs Masawi & Partners, 2nd defendant's legal practitioners

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