MATHONSI
J:
In
HC3216/13 the respondent sued the applicant for payment of $33,856-15
as damages arising out of its breach of a contract allegedly entered
into between the parties about September 2010 together with interest
and costs of suit.
In
its declaration the respondent averred that:
“1.
Plaintiff is KENCOR MANAGEMENT SERVICES (PRIVATE) LIMITED a company
incorporated with limited liability according to the laws of
Zimbabwe, carrying on business under the style 'NATIONAL TESTED
SEEDS' in the sale and supply of horticultural and crop seed of 750
Lorrain Drive, Bluff Hill Harare.
2.
Defendant is KETTEX HOLDINGS (PRIVATE) LIMITED, a company similarly
incorporated, having its registered office at Arlington Estate,
Harare Airport, Harare.
3.
In terms of an agreement entered into between the parties during or
about September 2010, Plaintiff made available quantities of seed to
Defendant on a consignment basis.
4.
The material obligations of Defendant under such agreement were the
following:
4.1
To maintain and store the seed at its centralised storage facility
and all its distribution outlets in a safe, orderly and clean manner,
and in such a way to prevent contamination inter
alia
by water, rodents and other pests;
4.2
To undertake the sale and delivery of the seed in its branches and
distributorship country wide to the best of its ability, at prices
recommended by Plaintiff;
4.3
To make available to plaintiff reconciliations for the consignment
stock on a monthly basis;
4.4
To effect payment in respect of stock sold within seven days of
reconciliations;
4.5
To retain and preserve unsold stock at its premises;
4.6
To return unsold stock to Plaintiff in an orderly, clean,
uncontaminated and undamaged state;
4.7
To pay for any missing or damaged stock on the basis that it was
considered sold.
5.
In breach of the said agreement, defendant failed to take proper and
reasonable steps to ensure;
5.1
the safe, orderly and clean storage of the stock and to prevent its
contamination;
5.2
the return of unsold stock in an undamaged state to plaintiff.
6.
In consequence thereof, defendant became liable to pay plaintiff
damages in the sum of $33,856-15 in respect of the damaged and/or
unreturned stock.
7.
Despite demand, defendant neglects or refuses to pay this amount”.
The
respondent then prayed for judgment aforesaid.
The
applicant must have entered appearance to defend (it is not attached
to the papers) and promptly filed a plea which is not only legendary
by its brevity for one responding to the above clear and incisive
averments, it is also a bare denial of a sort. It pleaded:
“Defendant
pleads to plaintiff's claim as follows:
1.
AD PARA 1-7
No
issues arise
2.
AD
PARA 8
The
defendant denies entering into any form of agreement with the
plaintiff. Plaintiff is thus put to strict proof thereof.”
That
is all the applicant had to say in answer to the averments made by
the respondent.
Let
me mention here that;
(i)
Firstly, there is no para 8 in the respondent's declaration which
the applicant was pleading to and therefore in para 2 of the plea it
was denying nothing at all.
(ii)
Secondly, Mr Zhuwarara
who
appeared for the applicant did not hesitate to concede that para 1 of
that plea was an admission and therefore the fact that the plea was a
confessionary pleading is not in dispute. I shall return to that in a
moment.
It
is common cause that when the matter was lined up for pre-trial
conference, the applicant underwent some metamorphosis. It gave
notice that at the pre-trial conference of the matter it would apply
to amend its plea by a deletion of the entire plea and its
substitution with the following:
“1.
AD
PARA 1-3
Admitted
2.
AD
PARA 4
It
is denied that defendant was obliged to store seed at a centralised
place. The agreement between plaintiff and defendant was that all
seed received by defendant from plaintiff was to be dispatched to the
rural outlets in Mashonaland East and Mashonaland Central. It is
further denied that the defendant agreed to pay for any missing or
damaged stock. The agreement between the parties was that the
defendant would take all reasonable measures to protect plaintiff's
stock at all material times. The agreement between the parties was a
consignment agreement thus the stock was at all material times the
property of the plaintiff.
3.
AD
PARA 5-7
This
is denied. The defendant took insurance to cover plaintiff's stock.
Defendant took all necessary precautions and did everything humanly
possible to prevent and protect plaintiff's stock from
contamination. The defendant made sure that all the store owners were
trained to protect plaintiff's stock by using Delport Fumigation
Services' programme of weevil and pest control. The plaintiff also
supplemented the programme by using other fumigants and pesticides.
The defendant's duty in terms of agreement was to take all
reasonable steps to protect plaintiff's stock, and defendant
dutifully performed its obligations in terms of the agreement. The
plaintiff has also not substantiated its supposed claim for damages.
The plaintiff is put to strict proof thereof.
Wherefore
plaintiff's claim should dismissed with costs”.
From
where I am standing this was not only a drastic transformation from
what the applicant earlier stood for but quite a mouthful as well.
The
case itself has got some unpleasant history arising out of the
existence of 2 companies apparently run by the same director and
bearing a similar name “Kettex” they being Kettex Trading and
Kettex Holdings, one of which was placed under liquidation a few
months after incorporation. The respondent says this was done in
order to confound creditors. It delayed the commencement of
proceedings while the respondent battled to ascertain the true
identity of its debtor.
Whatever
the case, when the applicant could not secure the consent of the
respondent to its proposed amendment of its plea on the eve of the
pre-trial conference, it was forced to make this application for the
amendment to be granted by the court.
In
the founding affidavit of Adam Selby, its managing director, the
applicant stated that the proposed amendment was occasioned by the
fact that when it pleaded originally it had sold its division known
as Feya Feya to one Mark Selby who was required to register another
company known as Kettex Trading (Pvt) Ltd which should have taken
over all the obligations of Feya Feya. For that reason, the applicant
had denied the existence of an agreement between it and the
respondent. It was only after being advised that an obligation cannot
be transferred or ceded that it saw the light and decided to accept
the existence of the agreement but deny liability as appears in the
proposed amendment.
The
applicant asserted that the amendment will assist the court to
properly ventilate the real issues between the parties. The amendment
will not prejudice the respondent in any way.
The
respondent opposed the application on essentially 2 grounds namely;
(i)
that the proposed amendment has come rather late in the day in order
to delay the resolution of the matter; and
(ii)
that it is intended to withdraw an admission already made to the
detriment of the respondent.
Ms
Njerere
for the respondent took a point in
limine
that the deponent of the founding affidavit had not shown that he has
the authority of the applicant to represent it in this particular
application, a point made in the opposing affidavit to which the
applicant had responded by attaching a resolution of a meeting of
directors authorising Selby to represent the company “in all its
legal affairs”.
Ms
Njerere
submitted that the resolution in question was not enough as it did
not specifically authorise Selby to represent the company in this
particular application.
I
have stated before that litigants are now taking the requirement of a
resolution to be produced by a representative of a company too far:
African
Banking Corporation of Zimbabwe Ltd t/a BancABC v PWC Motors (Pvt)
Ltd & Ors
HH123/13.
Where
the deponent of a founding affidavit has stated that he has authority
of the company to represent it, the court has no reason to disbelieve
him and would generally accept that claim. Where the respondent
challenges the deponent to exhibit that authority, it should be
enough to then produce the resolution giving such authority.
The
requirement that a company representative should produce a resolution
is to satisfy the court that it is the company that it litigating and
not some other unauthorised person. Unless the respondent who is
challenging the existence of that authority can point to some
tangible reason pointing to the fact that it is not the applicant
company that is litigating but someone else, it should be enough for
the deponent to state that he has authority and the failure to attach
a resolution cannot possibly defeat the application.
In
casu,
when his authority was challenged, Selby produced a resolution
authorising him to represent the applicant in all its legal affairs.
To then say that such resolution should have specifically authorised
Selby to make this particular application when the making of it falls
squarely under the company's legal affairs, is to stretch that
requirement to ridiculous levels. There is no merit in the point in
limine
which
is accordingly dismissed.
On
the merits of the application Mr Zhuwarara
for the applicant, while accepting that the proposed amendment had
the effect of withdrawing an admission, submitted that the amendment
should be granted;
(i)
firstly because r132 of the High Court of Zimbabwe Rules, 1971 allows
a party to amend a pleading anytime before judgment is delivered; and
(ii)
secondly because a reasonable explanation has been given by the
applicant for seeking the amendment.
It
is because the applicant had made an error in its original plea as it
thought that it had no agreement with the respondent. Upon being
disabused of that erroneous view, it sought the amendment. He relied
on the authority of Whittaker
v Roos & Anor
1911
TPD 1092 at 1102-13 where the court stated that the business of
pleading is not a game where if a mistake is made, the forfeit is
taken. The real dispute between the parties is the main concern of
the court and it must allow an amendment which helps ventilate that.
What
the court has regards to in deciding whether to allow an amendment or
not was set out by Chinhengo J in UDC
v Shamva Flora (Pvt) Ltd
2000
(2) ZLR 210 (H) 217 C-F namely that:
1.
The court has a discretion whether to grant or refuse an amendment.
2.
An amendment cannot be granted for the mere asking but some
explanation must be offered therefor.
3.
The applicant must show that prima
facie
the amendment has something deserving of consideration, a triable
issue.
4.
The modern tendency is that the court will generally grant an
amendment if it facilitates the proper ventilation of the dispute
between the parties.
5.
The party seeking the amendment must not be mala
fide.
6.
The amendment must not cause an injustice to the other party which
cannot be compensated by costs.
7.
The amendment should not be refused simply as punishment to the
applicant for neglect.
8.
A mere loss of time is no reason in itself to refuse the application.
9.
If the amendment is not sought timeously some reason should be given.
See
also Commercial
Union Assurance Co Ltd v Waymark N.O.
1995
(2) SA 73 at 77 F-I; Kingdom
Merchant Bank Ltd v Shah & Anor
HH159/13.
Ms
Njerere
for the respondent submitted that the application is not bona
fide
as it is part of a strategy to delay proceedings.
In
my view the question of delay cannot, on its own, disentitle a party
to an amendment. It matters not that the amendment was sought more
than a year after the original plea was filed. This is because an
amendment can be granted at any stage of the proceedings (r132) and
the loss of time on its own is not a reason for refusing an
application.
However,
I agree with Ms Njerere
that the application is mala
fide
for the simple reason that it cannot be said that what is sought to
be ventilated by the amendment is something which the applicant has
just discovered.
It
would appear that the amendment sought is dishonest.
The
applicant admitted the averments contained in the declaration and as
stated by Uchena J in Mauro
(nee Nyambo) v Mauro
HH365/13
it is presumed that when it did so, it knew what it was doing. There
can be no room for an error except an error in how to evade an
otherwise genuine and indisputable claim.
In
that regard, I am mindful of the provisions of s36 of the Civil
Evidence Act [Chapter
8:01]
that:
“(1)
An admission as to any fact in issue in civil proceedings made by or
on behalf of a party to the proceedings shall be admissible in
evidence as proof of that fact, whether the admission was made orally
or in writing or otherwise.
(2)………………
(3)
It shall not be necessary for any party to civil proceedings to
disprove any fact admitted on the record of proceedings; Provided
that this subsection shall not prevent any such admission being
withdrawn with leave of the court, ……”.
If
the original plea were to remain as it is it would be a confessionary
pleading and therefore taken for granted. It would be unnecessary to
prove those facts that have been admitted: Adler
v Elliot
1988
(2) ZLR 283 (S) 288 C; Copper
Trading Co (Pvt) Ltd v City of Bulawayo
1992
(1) ZLR 134 (S) 144G; Wamambo
v Municipality of Chegutu
2012
(1) ZLR 452 (H) 458E-F; DD
Transport (Pvt) Ltd v Abbot
1988
(2) ZLR 92 (S) 98 F, 99A-B.
Therein
lies the real reason behind the proposed amendment.
The
applicant having realised that the plea will not pass the test at the
pre-trial conference, decided to withdraw an admission in order to
elongate the dispute, a dispute that does not exist at all.
The
whole exercise is mala
fide
and should not be tolerated.
This
matter is one of many, where defendants defend claims and submit
pleas which have no chance of success at the trial as shelter for the
time being until the trial and then capitulate.
I
conclude therefore that no case has been made for the amendment
sought, which is clearly mala
fide.
In
the result the application is hereby dismissed with costs.
Coghlan,
Welsh and Guest, Incorporating Stumbles and Rowe,
applicant's legal practitioners
Honey
and Blackenberg,
respondent's legal practitioners
