MUZOFA
J:
The
plaintiff issued summons against the defendants claiming payment of
US$13,868.90 for car rental charges due to the plaintiff and interest
thereon at the rate of 3.5% from 1 April 2016 to date of full
payment.
The
undisputed facts are that the first defendant entered into a car hire
agreement with the plaintiff in October 2015. In terms of the
agreement he was issued with a motor vehicle a Ford Everest that he
used and was expected to make payments. He failed to do so until the
motor vehicle was withdrawn from him.
The
plaintiff had to seek the services of the police for the first
defendant to return the motor vehicle. The plaintiff laid criminal
charges against the first defendant. The second defendant, a sister
to first defendant offered to settle the debt and the criminal
charges were withdrawn.
In
due course the second defendant withdrew the offer to settle the
debt. It is then that the summons was issued. The second defendant
applied for the appointment of a curator ad litem over the first
defendant.
On
17 March 2017 a provisional order was granted. No final order was
sought by the second defendant.
As
a result of the appointment of the curator ad litem persona plaintiff
withdrew its claim against the first defendant.
This
trial therefore relate to the second defendant only.
At
the pre-trial conference meeting held after the withdrawal of charges
against the first defendant the parties agreed that the following
issues would determine the case.
1.
Whether or not the agreement entered into between the first defendant
and the plaintiff was valid.
2.
Whether the obligation assumed by the second defendant in an
acknowledgement of debt and payment plan dated 2 March 2016 is valid
and binding.
The
plaintiff led evidence through two witnesses.
Trevor
Chakawata “Trevor” gave evidence first; he is the operation
manager at Plaintiff Company.
He
said the first defendant 'Bernard” entered into a monthly rental
contract of a motor vehicle in October 2015 with the plaintiff.
Payments were done on a monthly basis. Bernard went to Binga in
December 2015. He wanted to make a pre-payment but the network was
down, no payment was made. While in Binga Bernard was reminded of the
unpaid bill he advised Trevor to use his credit card he had left with
plaintiff to pay off the amount due however the credit card was
blocked. Trevor said he communicated with Bernard on the phone by
voice calls and text messages. When the payment was not made, Trevor
advised Bernard to return the car. Bernard promised to do so but did
not return the car. He then reported the matter to the police. He
advised Bernard of the police report, Bernard was surprised at this
turn of events as he questioned why the matter was reported yet he
was a reliable customer.
The
police communicated with Bernard who promised to return the car in a
week's time. He did not. The police then opened a docket.
Trevor
then advised Bernard that the matter had been handed over to the
police. Bernard came to Harare in February 2016. He advised the
Police that he had returned the car and promised to settle the bill
the following day. On the following day he did not turn up at the
police station where Bernard and Trevor were supposed to meet. Trevor
and the policeman went to his residence where they were referred to
Mr Chanakira, who also referred them to Mrs Chanakira. They called
Mrs Chanakira who agreed to meet them in Eastlea. At the meeting
after being told about the case Mrs Chanakira the second defendant
advised them that Bernard had a mental problem. When the policeman
advised her of the criminal charges against Bernard and how the
police deal with mentally ill accused persons, Mrs Chanakira offered
to settle the bill.
Trevor
said he advised her to put the offer in writing. This was done; in
terms of that offer she was to pay $1,000 a month from March 2016
until the debt was fully paid. She did not pay anything.
Initially
on being asked about the payment she said she was in South Africa.
However later Mr Chanakira called Trevor and said they should leave
Mrs Chanakira but pursue Bernard who was well and was selling cell
phones in town. Eventually Mrs Chanakira withdrew the offer to settle
the bill.
Trevor
denied that at the time of contracting, Bernard was mentally
incapacitated. He said Bernard knew that every month end he was
supposed to pay and he did. The car that he hired a Ford Everest is a
unique car such that if one is of an unsound mind he could not drive
it, but he did. In December he was double billed and he was able to
pick it this cannot be done by a mentally incapacitated person.
He
also said the acknowledgement of debt by Mrs Chanakira was valid
because she offered to pay the debt. The acknowledgement of debt was
drafted by her lawyers.
Mrs
Chanakira asked them to leave Bernard she would pay the debt. The
police could not confirm Bernard's mental capacity through their
processes because Mrs Chanakira undertook to pay the debt.
Under
cross examination he said he saw Bernard when he signed the initial
agreement and he looked normal. He also said a report from
Parirenyatwa Annex Hospital indicated that Bernard had a history of
mental disorder. He was not sure why the matter was withdrawn against
Bernard. He confirmed that the undertaking was made on the
understanding that Bernard was mentally unstable.
The
second witness was Constable Nelson Mungati whose evidence was to the
following effect.
He
is a member of the Zimbabwe Republic Police with fifteen years in
service stationed at R.G. Mugabe Airport. He received a report in
this case and opened a docket. He phoned Bernard who indicated he was
struck in Gokwe but will return the car. On 7 February 2016 Bernard
phoned him advising that he had returned the car. This was confirmed
by Trevor.
When
the bill remained unsettled he proceeded to Bernard's residence in
the company of Trevor. They were referred to Mr Chanakira who
referred them to Mrs Chanakira. They arranged to meet. When they met,
he advised Mrs Chanakira about the investigations. She advised him
that Bernard was of an unsound mind and offered to settle the bill.
It took some time for the acknowledgment of debt to be drawn up when
it was submitted he advised his superiors. He was advised to check at
Parirenyatwa Annex Hospital if the history is documented. He made a
formal request for the report; he did not get it but was given a
record that showed that Bernard was detained some time at the
hospital.
Under
cross examination he said from his physical appearance Bernard did
not exhibit signs of mental incapacity. He said after explaining the
process of dealing with mentally incapacitated persons to Mrs
Chanakira, Mrs Chanakira offered to settle the bill to save Bernard
from incarceration. He then summarised the docket and closed it.
Eventually
he learnt that Bernard had been hospitalized. The plaintiff then
closed its case.
The
second defendant 'Shaillon' (Mrs Chanakira) called two witnesses
in evidence. She gave evidence first.
She
is Bernard's brother and she was staying with him. On a date she
cannot remember she was phoned by a police officer looking for
Bernard. She was advised that Bernard was wanted for a car rental
matter. She agreed to meet the police officer and Trevor. The police
officer explained that Bernard would be arrested and detained at
Chikurubi until the investigations were over. She did not want to see
her brother detained, she had lost another brother who had a similar
mental condition. He advised the officer that Bernard had a mental
disorder. She then offered to settle the bill to avoid the
incarceration of Bernard.
They
came to an understanding, an acknowledgment of debt was prepared and
signed leading to the release of Bernard.
She
said his mental condition caused him to think that he had a lot of
money and he became irresponsible with money. At one time she met
Bernard at the South African border with an agreement of sale to buy
a house and an agreement to buy a Mercedes Benz in South Africa. He
said he was to pay the money after the British government paid him
his millions of pounds that it owed him.
She
said his mental condition started when he was about 20-22 years and
at the time he was 33 years. He is a Parirenyatwa Annex patient.
She
confirmed that she signed the acknowledgement of debt, but it was
under pressure from the police officer. She later withdrew the offer
after receiving advice that people like Bernard with mental
incapacities are not liable at law.
Bernard
was on medication and when he adhered to his medication he was fine.
If he defaulted he would relapse and became withdrawn, very violent
and would exhibit a lot of strength, at one time he emptied a
swimming pool overnight using a bucket.
After
this incident she caused a curator to be appointed, the court order
was produced as an exhibit. She said she was not indebted to the
plaintiff because she withdrew her offer.
Under
cross examination she said she signed the acknowledgment of debt to
avert the incarceration of Bernard. She said Bernard stayed with her
for about six years; he would do some home chores and escort their
driver on errands. Bernard received a stipend from the family in
cash. He was usually treated in South Africa. She denied that Bernard
operated a cell phone shop. She saw Bernard with the Ford Everest and
was told it belonged to a friend whom Bernard was assisting in a
mining venture. She did not probe further because at that time he had
become withdrawn; he was not bathing, not changing clothes and would
not come home at times.
This
was over three months.
She
could not probe too much about his behaviour because he turned
violent if put under pressure - at one time he stabbed her daughter.
She
could not confirm or deny that Bernard went to Binga and Gokwe.
In
respect of the appointment of the curator she confirmed that she was
the applicant and that after obtaining the provisional order she did
not do anything.
On
re-examination she said it was unnecessary to have a report on
Bernard's capacity since the matter had been withdrawn against him.
The
second witness was Dr Patience Maunganidze. She is a medical doctor,
a psychiatrist based at Parirenyatwa Psychiatrist Unit. She wrote a
letter setting out Bernard's condition based on the examination she
carried out on Bernard in 2016 and the records kept at the Unit. The
letter was produced as an exhibit.
She
said Bernard's condition was called bipolar disorder. It's a
problem with mood. Bernard exhibited mania in that he believed he was
excessively wealthy. Generally such persons should not manage their
affairs or make decisions but they do so. Under cross-examination,
she said when a patient is examined and an opinion is expressed it
relates only to the time of examination. It does not apply in
retrospect or for the future. The assessment in casu was correct only
as on 25 October 2016. She did not examine Bernard between August
2015 and August 2016.
She
expressed an opinion that if Bernard signed a contract for a car hire
and paid the money he could have entered into the agreement with a
sound mind. She also said if a patient adheres to medication he or
she can lead a normal life.
The
defence case was then closed.
I
directed counsel for the parties to file written submissions on
stated dates.
Counsel
for the plaintiff chose not to abide by the timelines. l therefore
write the judgment without the benefit of the submissions.
I
now determine the issues in view of the evidence and the law.
The
first issue turns on whether Bernard had the mental capacity to
contract with the plaintiff.
The
onus to prove such mental incapacity is on the party relying on it.
The
issue whether a contracting party had the requisite mental capacity
is a question of fact to be determined by the court. See Blamire's
Executrix v Milner and Wirsing 1969 NLR 39. It is for the court to
assess the surrounding circumstances of the making of the contract.
In Pheasant v Wayne 1922 AD 481 at p 488 INNES CJ made the following
observation;
“And
a court of law called upon to decide a question of contractual
liability depending upon mental capacity must determine whether the
person concerned was or was not at the time capable of managing the
particular affair in question – that is to say whether his mind was
such that he could understand and appreciate the transaction into
which he purported to enter.”
Case
law has established three principles of testing the existence or lack
of corpus mentis.
The
three principles were summarised succinctly in Executive Hotel (Pvt)
Ltd v Bennet NO SC 2007 (1) ZLR 343 (S) that;
1.
At the time of contracting was the state of mind of the contracting
party whose capacity is at issue such that he was incapable of
estimating what was or what was not a fair and beneficial bargain?
2.
Was the state of mind of the contracting party whose capacity is at
issue such as would in common honesty not make him liable or
responsible for such an act or contract; and
3.
Whether the contracting party whose capacity is at issue was of such
unsound mind as to be incapable of understanding and appreciating the
transaction into which he purported to enter.
In
this case, it is not in dispute that Bernard suffered from a bi-polar
mental disorder. He believed he was an important person with a lot of
money. He was on medication but would have periods of relapses. He
had been admitted into Parirenyatwa Annex Hospital three times. His
condition was not easily discernible unless if it is at its peak.
Although
Trevor gave evidence that he attended to Bernard when he hired the
motor vehicle, I believe Bernard had relapsed.
He
used the allowances from the family to hire a top of the range motor
vehicle a Ford Everest. His source of income was the family which
income was not consistent according to first defendant. He lied about
the motor vehicle to Shaillon defendant.
Shaillon's
evidence on Bernard's conduct while he had the motor vehicle is
important.
She
had stayed with Bernard for about five years and could tell the onset
of a relapse. Bernard's mood at home had charged, she could not
even cross examine him on the motor vehicle he brought for fear he
would turn violent when put under pressure. She was also afraid
because at one point in the past he stabbed her daughter. I do not
doubt Shaillon's evidence on the conduct of Bernard in so far as
his behaviour is concerned and his mental capacity.
However
it was clear that she was truthful when she said she was under
pressure from the police to sign the acknowledgement of debt.
This
is because in her evidence she set out her love and concern for her
brother Bernard, she did not want him arrested. In fact it turns out
now that she did not want the brother to even go through this court
process that is why she applied for the appointment of a curator
which process she did not pursue to its logical conclusion when the
claim was withdrawn against him. It is therefore unbelievable that
the police forced her to sign the acknowledgement of debt. It is my
view that she freely took over the obligation to pay off the debt so
that Bernard would not be held liable.
Indeed
this happened because Bernard was not prosecuted to establish his
liability and was not even before this court.
At
the time that she signed the acknowledgment of debt in March 2016,
Bernard had been admitted at Parirenyatwa Annex Hospital.
It
is my considered view that Bernard's mental incapacity confines
itself to the use of money.
His
belief that he had a lot of money would naturally lead him to
overspend, this case is an example of his mental disorientation, he
rented a car which incurred a bill of $13,600 an amount which can buy
a car. This is exactly the upshot of his mental condition; he
believed he had the money yet he was a man living on inconsistent
allowances from the family.
At
the time of contracting, Bernard believed, due to his mental disorder
that he had money to meet his obligations.
There
was no evidence placed before the court on Bernard's mental
condition at the time of contracting.
However
the evidence by Shaillon which described Bernard's behaviour for
the period proximate to the time of contracting gives me an inclining
that Bernard had relapsed at the time of contracting with the
plaintiff. He knew what he was doing but the knowledge was based on a
mental incapacity which has not been denied. I believe this is where
in common honesty Bernard should not be made liable or responsible
for his conduct as set out in the second principle in the Executive
Hotel case (supra).
To
that extent the agreement between the plaintiff and Bernard is
invalid.
The
second issue is whether the acknowledgment of debt signed by the
second defendant is valid.
From
the plaintiff's declaration, the second defendant's liability is
set out as follows:
“The
second defendant herein agreed on 2 March 2016 to take over the debt
due by the first defendant and assumed full responsibility of it
which undertaking the plaintiff agreed and accepted.”
The
claim is based on the takeover of the debt incurred by Bernard
leading to the signing of the acknowledgment of debt by Shaillon.
Plaintiff
sued second defendant based on the acknowledgement of debt.
It
was submitted for the first defendant that the acknowledgment of debt
resulted in a novation. The Court was referred to the case of Leader
Tread Zimbabwe (Pvt) Ltd v Smith HH131/03 where it was held that an
intention to novate presupposes the existence of a valid existing
obligation.
In
this regard since the agreement between Bernard and the plaintiff is
invalid the offer by the first defendant to settle the debt was void
ab initio.
A
reading of the Leader Tread case (supra) does not support the second
defendant's case in its entirety. The court opined that an
acknowledgment of debt is a compromise. The court refused to consider
the initial agreement because the plaintiff in that case sued on the
acknowledgement of debt and not on the original agreement. The court
in that case cited the sentiments of L.R Cariey in Law of Novation at
page 44 that;
“A
compromise (transactio) is a novation, with a difference, however,
that a novation on an invalid contract in itself is invalid, but if a
compromise is made about a contract the validity of which is in
doubt, this cannot be upset on the ground that the contract which was
compromised was invalid; the purpose is to replace uncertainty with
certainty.
It
is a novation designed to effect settlement of a dispute and may be
arrived at by novation in the narrower sense of the word or by
delegation.”
The
sentiments are apposite in this case.
The
second defendant after being made aware of the police's
investigations and how investigations proceed in respect of mentally
incapacitated persons she offered to pay the debt to avoid the
incarceration of her brother. The debtor was therefore replaced. This
is a case of delegation.
Delegation
is a form of novation in which by agreement between all parties
concerned a third party is introduced as debtor in substitution of
the original debtor, who is discharged R H Christie in Business Law
in Zimbabwe, 1998 at page 110.
Second
defendant entered into a new agreement in which she took over the
debt. The parties came up with a payment plan which she breached in
due course. This agreement is not dependent on the validity of the
agreement between plaintiff and Bernard. Indeed in the Leader Tread
case (supra) the court even declined to consider the illegality or
otherwise of the initial contract because the acknowledgment of debt
was held not to be dependent on it. Similarly the validity or
otherwise of the agreement between Bernard and the plaintiff is
irrelevant.
Accordingly
the following order is made;
1.
That judgment be and is hereby entered in favour of the plaintiff for
the payment of $13,868.90 by the second defendant together with
interest at the rate of 3.5% from 1 April 2016 to the date of payment
in full.
2.
Defendant to pay costs.
Wintertons,
Plaintiff's legal practitioners
Mhishi
Legal Practice, defendant's legal practitioners
