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

HH79-12 : MARIANE SABETA vs COMMISSIONER GENERAL ZIMBABWE REVENUE AUTHORITY
Ruled By: MATHONSI J

This is an application for an order compelling the respondent to assess capital gains tax payable in respect of the sale of Stand 965 Mabelreign Township, Harare and to receive such tax from the Deputy Sheriff for Harare on the pain of costs of the application.The said property is currently ...

HH41-08 : ZODELLA ENTERPRISES (PVT) LIMITED vs LUXMORE NDENDA
Ruled By: GOWORA J

The plaintiff is a duly registered company trading under the name Borrowdale Motor Sales. As the trade name suggests, it, the plaintiff, trades in motor vehicles. On 6 June 2006, the plaintiff entered into an agreement with the defendant, in terms of which the plaintiff agreed to purchase a vehicle owned by the defendant, to wit, a ...

The plaintiff is a duly registered company trading under the name Borrowdale Motor Sales. As the trade name suggests, it, the plaintiff, trades in motor vehicles.

On 6 June 2006, the plaintiff entered into an agreement with the defendant, in terms of which the plaintiff agreed to purchase a vehicle owned by the defendant, to wit, a Ford Taurus registration number 720-532L. A copy of the agreement, which is attached as Annexure A to the summons, reveals that the purchase price of the vehicle was $700,000= (revalued) payable as to a deposit of $300,000= and the balance payable in two installments of $200,000= each within a further period of five months.

In its declaration, the plaintiff avers that it paid the deposit of $300,000 and a further sum of $200,000 being the first instalment. The plaintiff further avers that on tendering the remaining instalment to the defendant, he, instead, made a verbal offer to buy back the vehicle from the plaintiff and that as a result a verbal agreement was concluded for the defendant to buy back the vehicle for the price of $3 million. The plaintiff avers, further, that the defendant breached the verbal agreement by paying a total amount of $570,000 instead of the agreed sum.

The plaintiff has therefore claimed for an order cancelling the verbal agreement with the defendant, and, further to that, for an order that it pay back the sum of $770,000 to the defendant being a reimbursement of the $570,000.00 paid under the verbal agreement by the defendant and the sum of $200,000 being the balance of the purchase price of the vehicle in terms of the written agreement concluded by the parties on 6 June 2006.

The defendant, in his plea, denied that the plaintiff was entitled to the relief being sought, and, instead, averred that the plaintiff had not performed its obligations in terms of the written agreement and has averred that the plaintiff breached the written agreement by failing to pay any of the installments due under the written agreement. Due to such breach, the defendant avers that the parties agreed to terminate the agreement on condition that the defendant would pay back to the plaintiff the sum of $570,000 and the latter would return the vehicle to the defendant.

The defendant further avers that he duly paid the agreed amount to the plaintiff but that the plaintiff refuses to return the vehicle. The defendant therefore has filed a counter-claim in which he prays for the return of the vehicle and payment of damages for unjustified enrichment in the sum of $800,000 for use of the vehicle and for the value lost on the use of the $570,000.

The plaintiff purchased the vehicle from the defendant and paid a deposit of $300,000 upon signature of the agreement. Subsequently, additional other sums, which the plaintiff puts at $200,000, were paid. The defendant puts the amount at $100,000 which amount he states is the first breach by the plaintiff of the terms of the written agreement.

The plaintiff has produced vouchers which bear the signature of the defendant and states that the defendant did receive the amount of $200,000. The defendant denies that he signed the vouchers although admitting the signature to be his....,.

Insofar as the first agreement is concerned, the defendant stated that he had not been paid for the second instalment.

The plaintiff has provided vouchers allegedly signed by the defendant when he was paid the $200,000 which was due under the second installment. The vouchers bear what the defendant confirms is his signature but he claims that the plaintiff superimposed his signature on a document which he had not signed. The documents that were tendered in evidence were all originals. The signature itself has not been disputed but the plaintiff did not adduce evidence to show how his signature was affixed to an original document.

I find that the documents are genuine and show that the defendant was paid in full for the second instalment.

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

The admission of guilt, duly signed by the defendant, raises the presumption that the defendant was aware, at the time of the accident, that his brakes were defective.The defendant contradicted himself on why he signed the admission of guilt form.In his evidence-in-chief, he testified that he signed because he was ...

Appealed
HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI
Ruled By: BERE J

In cross-examination, John Chagaresango was directed to specific clauses of the agreement which were apparently not complied with by the defendant, and all John Chagaresango could do was to repeat that this agreement was not based on what the defendant and himself and others (as witnesses) had signed for but on other verbal assurances by ...

HH93-09 : HAVEN CHIKUMBU vs BRYDEN TECHINICAL SERVICES (PRIVATE) LIMITED AND THE REGISTRAR OF DEEDS AND THE DEPUTY SHERIFF FOR HARARE
Ruled By: CHITAKUNYE J

The first respondent's efforts at pointing to the difference in signatures of Mr. Michael Hanyani on the irrevocable offer letter and acceptance, and other documents, were without merit. As pointed out by the applicant, Mr. Michael Hanyani's manner of signing where his signature was required is not the same, even on those documents that he admitted to ...

HH107-09 : JULIA NDEMERA AND COSMAS NDEMERA vs SIPHELILE MOYO AND TAFADZWA CHITATE AND THE DEPUTY SHERIFF N O
Ruled By: CHITAKUNYE J

On the Agreement of Sale, whilst the two applicants, as purchasers, appended their signatures, and additionally their national identification numbers are endorsed, for the first respondent, it is only a thumb print and an “x”, without any identification as to whose thumbprint it is. The above anomalies create doubts as to who the first respondent is ...

HH111-09 : ELLEN SIMON vs FUNDA SAIMON
Ruled By: KUDYA J

The defendant produced exhibit 5, a letter written to the local Board by the Urban Development Corporation (UDCORP) on 20 December 2007 for Stand 1171. The typewritten Stand number 1171 was cancelled by pen and the number 1125 inserted. The cancellation was not countersigned. It does not refer to any previous correspondence from the ...

The cancellation was not countersigned. It does not refer to any previous correspondence from the local authority. Its authenticity is questionable. In my view, it does not assist the defendant in his case....,.

Exhibit 1A is a pro forma of an affidavit that is sold at Kingstons Booksellers and Stationers. It was common cause that the name of the deponent and her national identity number and address were handwritten by Eneresi Simon. Eneresi stated that she was the one who wrote out the plaintiff's name, national identity card, address and signature in exhibit 1A.

The plaintiff purportedly swore that she had sold a subdivision of Stand 1125 Makomo to the defendant who had paid the full amount of $16,000=. She further indicated that she was granting him change of ownership. The affidavit was purportedly executed on 23 September 1999 before R. Gode, a Commissioner of Oaths.

The defendant did not disclose where exhibit 1A was drawn. He stated that it was signed before the Commissioner of Oaths by Eneresi Simon in the presence of the plaintiff because the plaintiff could not read or write.

The defendant's witness, Tedius Kagande, disclosed that the affidavit was purchased at Kingstons when the parties were on their way to his town offices. Kagande further indicated that the contents of the affidavit were written by his young brother at his town offices and signed by Eneresi Simon before the parties proceeded to a commissioner of oaths. The commissioner of oaths simply confirmed with the plaintiff the contents of the affidavit.

The version of the plaintiff and her daughter differed from that adduced by the defendant. The plaintiff stated that Tedius Kagande brought the affidavit, in the absence of her daughter, and requested her to fill in her personal details and signature ostensibly as a record of the building materials he would purchase for her. The daughter confirmed that when she visited her mother, as she was wont to do at the end of each month, she wrote out her mother's details and signed the affidavit for her. Both mother and daughter were adamant that Eneresi Simon signed a blank document and denied the present contents in the affidavit.

The versions of the defendant and Tedius Kagande were contradictory on whether Eneresi Simon signed the document before a commissioner of oaths or prior to the visit.

A commissioner of oaths worthy his salt would have requested the plaintiff to append her mark and thumb print on the document. He would have known that it was improper for Eneresi Simon to sign as the plaintiff without indicating that she was signing as her duly authorised agent....,.

It does not appear that the plaintiff was ever given a copy of the affidavit in question....,.

The contradictions in the defendant and Tedius Kagande's testimonies and the other shortcomings that I have highlighted show that exhibit1A is a questionable document. I am not satisfied that the defendant has discharged the onus on him to show, on a balance of probabilities, that it was executed by the plaintiff.

HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.

The plaintiff asserted that he entered into the agreement with the first and second defendants on the other hand through the agency of PMA Real Estate Agency (Pvt) Ltd.

The first defendant denied that he ever entered into an agreement of sale with the plaintiff. He denied authorising PMA Real Estate Agency to sell his rights and interests in House No.5706 Muroro Crescent Glen Norah B, Harare.

The first defendant, Zondai Chimbwanda, and the second defendant, Givemore Karimazondo, are joint holders of certain personal rights and interests in the property known as No.5706 Muroro Crescent, Glen Norah B, Harare in equal shares. As holders of equal shares in the said property they agreed between themselves to dispose of their rights and interests in the property. Pursuant to this understanding, the second defendant approached PMA Real Estate and granted them a mandate to sell the said rights and interests.

At the material time, the first respondent was out of the country in Botswana.

In completing the mandate to sell form, the second defendant endorsed both the first and second defendants names as holders of rights and interests in the property.

That form was however signed by the second defendant only.

PMA Real Estate Agency proceeded to advertise the property and the plaintiff expressed interest. On 16 August 2005, the plaintiff executed an irrevocable offer and acceptance form in which he offered a purchase price of $220 million. On 17 August 2005, the second defendant appended his signature to that form in acceptance of the offer as seller.

Thereafter, on 18 August 2005, an agreement of sale was drawn up by PMA Real Estate Agency. The agreement of sale was executed by the plaintiff and the second defendant.

The plaintiff paid a deposit of $214 million to PMA Real Estate and the balance was to be paid in instalments.

The purchase price was subsequently revised upwards to Z$260 million.

The plaintiff paid the balance of the purchase price to PMA Real Estate Agency. The agreement of sale was amended to reflect the new purchase price of Z$260 million (see exb. 5).

It is common cause that when the parties entered into the agreement of sale they knew that the agreement was conditional on the first defendant ratifying the agreement upon his return from Botswana.

The first and second defendants subsequently sold the same rights and interests in the property in question to the third defendant, in September 2005, for the price of Z$350 million.

The third defendant duly paid the purchase price and has since taken occupation of the property.

His effort at obtaining cession was stalled when PMA Real Estate Agency advised the fourth respondent that the same property had been sold to the plaintiff and so no cession should be effected.

The plaintiff therefore brought this suit against the first and second defendants seeking:-

(1) Cession of Stand No.5706 Muroro Crescent, Glen Norah B, Harare into his name, alternatively;

(2) The sum of Z$15 billion being the cost of a house similar to Stand 5706, as at the date of the summons, being 14 November 2007.

The first defendant denied that he had ever agreed to the purchase price purportedly paid to PMA Real Estate by the plaintiff and he also contended that he never ratified the agreement of sale.

The second defendant, in his plea, conceded that he had entered into that agreement conditional on the first defendant ratifying it.

The issues for determination were essentially three, namely:-

(1) Whether there was a binding agreement of sale between the plaintiff and first and second defendants or not;

(2) If the answer to the above is in the affirmative, whether the third defendant was himself an innocent third party purchaser.

(3) If so, who between the two purchasers has dominant rights over the property in dispute.

It is pertinent to note that a conditional sale can only be valid/binding where the condition precedent has been fulfilled.

It is the fulfilment of the condition that gives life to such an agreement.

In casu, the plaintiff and PMA Real Estate were made aware that whatever they were entering into with the second defendant was conditional upon the second defendant ratifying such agreement.

In this regard, it may be noted that ratification is the act of adopting a contract or other transaction by a person who was not bound by it originally: see Osborne's Concise Law Dictionary, 6th Edition, by J. BURKE.

The prerequisite of ratification may be stated as follows:-

“1. The contract must be professedly made on behalf of the principal.

2. There must be a competent principal at the time of the contract.

3. The contract must not be void.

See CHESHIRE, FIFOOT and FURMSTAN's Law of Contract, 11th Edition…,.

Ratification may be express or tacit. Ratification may be implied from an act or conduct showing an interest to adopt the contract.

In casu, the plaintiff alleged that the first defendant ratified the agreement of sale that had been entered on his behalf as joint-holder of rights and interest by the second defendant.

In support of his case, the plaintiff gave evidence and called two witnesses from PMA Real Estate Agency, namely, Simon Mukondo and Jerry Ndemera.

The first defendant gave evidence. The second defendant did not avail himself for trial though he had participated in the proceedings up to the pre-trial conference stage.

In his evidence, the plaintiff alluded to the fact that he himself never came into contact with the first defendant. His assertion that the first defendant ratified the agreement of sale was based on reports he received from PMA Real Estate Agency. He thus could not vouch for certainty that the first defendant, either by word of mouth or in writing, ratified the agreement.

All the documentary exhibits he tendered in support of his case did not have the first defendant's signature.

The conduct that he could only refer to was again based on reports he received from PMA Real Estate that the first defendant had given his consent to the agreement of sale subject to an upward increase in the purchase price.

He had no direct evidence of the first defendant ratifying the Agreement of Sale.

Mr Simon Mukondo gave evidence next. He is a co-shareholder in PMA Real Estate Agency. He is also the Principal Registered Agent of PMA Real Estate Agency.

His evidence was to the effect that PMA Real Estate Agency was given mandate to sell by the second defendant. The second defendant had made it clear the rights and interests were jointly held. That mandate to sell was signed by the second defendant as seller. The co-holder of rights and interests, the first defendant, did not sign the mandate to sell and did not, in his own right, give such mandate.

The second defendant did not provide a power of attorney, or some other written authority, from the first defendant, for him to dispose the first defendant's rights and interests in the property in question.

Despite this omission, PMA Real Estate Agency proceeded to advertise and sell the rights and interests as instructed by the second defendant. This, PMA Real Estate did on the second defendant's word that he had such mandate and that the first defendant would ratify the agreement of sale upon his return from Botswana.

The agreement of sale was executed on 18 August 2005.

It was Mr Mukondo's evidence that on the next day after execution, Mr Jerry Ndemera and the second defendant approached him in his office. They advised him that the two of them had been in touch with the first defendant on the phone who was still in Botswana. They advised that the first defendant had dictated terms for them to re-do the agreement. They had the dictated terms on a piece of paper. That piece of paper was tendered into evidence as part of the plaintiff's bundle of documents. The document in question is on page 7 of the said bundle. The terms on the document were that:

1. That the selling price should be increased to Z$260 million;

2. That the payment would be strictly cash of Z$220 million and balance of Z$40 million would be paid in two instalments in the months of September and October; and

3. That the seller who was present tenant would vacate when schools calendar for 3rd term 2005 ended;

4. The last point was that once the last payment was done, in October, the seller would become a tenant paying rent.

As at that stage, when these terms were brought to his attention, Mr Mukondo had not seen or spoken to the first defendant.

Mr Mukondo said that he saw the first defendant for the first time when the first defendant came with the second defendant in the company of a woman he thought/believed was the first defendant's wife.

When this trio came, the first defendant demanded to be paid the purchase price. They refused to release the money to him contending that they could not do so before cession. The first defendant had then offered that cession be done that same day but this was not done. The first defendant had then said that if he was not paid on that day then the purchase price would go up.

The first defendant was not made to sign the Agreement of Sale or any other document relating to the Agreement of Sale of his rights and interests in the property in question.

The next witness was Mr Jerry Ndemera. At the material time he was employed by PMA Real Estate Agency as Sales Manager.

In his evidence, Mr Ndemera confirmed that PMA Real Estate Agency dealt with the second defendant upon the second defendant's word that he had the mandate to sell from the co-holder of rights and interests in the property.

There was no request or insistence on the second defendant furnishing the requisite power of attorney or and other written authority from the first defendant.

PMA Real Estate Agency were spurred to act simply on the second defendant's assurance.

It was not till after the Agreement of Sale had been concluded that he saw the first defendant.

On his first meeting with the first defendant, the first defendant did not agree with what had been entered into. According to Mr Ndemera, the first defendant came to see him on the day page 7 of the plaintiff's bundle of documents was written.

Mr Ndemera contradicted Mr Mukondo's evidence on how this document came to be.

His evidence was to the effect that this document was written by the first defendant on the day the first defendant came to their offices. He is the one who in fact provided the first defendant with the piece of paper to write on when the first defendant indicated there were some terms to be changed.

The contradiction was in that Mr Mukondo had said Mr Ndemera had indicated to him that the first defendant had dictated those terms on the phone from Botswana and not that the first defendant had come to their offices.

Despite Mr Ndemera's contention that this document was written by the first defendant, he was unable to explain why the first defendant did not append his signature thereto. Instead, the signature thereon is that of Mr Ndemera, just as he had signed for the second seller in exhibit. 1, the Agreement of Sale.

If indeed the first defendant had, on this occasion, ratified the Agreement of Sale, albeit with an increased purchase price and additional terms, he would at least have signed on this document to signify his approval of the transaction, if those terms were accepted by the plaintiff.

It was Mr Ndemera's evidence that the first defendant must have come to their offices on 2 or 3 times. Somehow, he was not made to sign the Agreement of Sale which the plaintiff says he had ratified.

It may also be noted that both Mr Mukondo and Mr Ndemera indicated that when the first defendant came to PMA Real Estate offices he demanded payment. When asked to sign the Agreement of Sale, the first defendant said he wanted to be paid before he could sign.

This, in my view, is inconsistent with a party who had ratified the agreement and had assumed his obligations as contained in the Agreement of Sale.

Further, both Mr Mukondo and Mr Ndemera admitted, that, when the first defendant came in the company of his wife, this was after a PMA Real Estate employee had been to the first defendant's residence with an armed police officer. At that residence, they had forced the first defendant's mother to append her signature to a document tendered in as exhibit. 8.

That document invited the first and second defendants to come and activate the process of transfer.

The visit by the first defendant and his wife was therefore to complain about that visit by a PMA Real Estate employee and the armed police officer. This is the visit Mr Mukondo apparently recalled.

It is clear to me, that, though the first defendant visited PMA Real Estate Agency offices he never signed the Agreement of Sale or any document showing that he consented to the sale of his rights and interests in the property in question.

He never ratified the Agreement of Sale in writing.

The tacit ratification that Mr Mukondo and Mr Ndemera alluded to needed to be proved.

The conflict in the evidence of Mr Mukondo and Mr Ndemera, as key witnesses to the issue of ratification, on such aspects as who authored the document on page 7 of the plaintiff's bundle of documents, the number of visits made by the first defendant to PMA Real Agency, and the fact of a PMA Real Estate Agency employee visiting the first defendant's residence in the company of an armed police officer to force matters, creates doubt on the credibility of their testimony.

They did not impress me as reliable witnesses.

They may have had cause to believe the second defendant when he told them that he had the first defendant's mandate to sell and that the first defendant would ratify the Agreement of Sale, but, that was not adequate. They ought to have obtained consent or mandate from the first defendant himself to proceed with the sale.

They could easily have demanded that the second defendant furnishes them with a Power of Attorney for them to action the second defendant's mandate to sell.

Equally, when the first defendant availed himself at their offices, they ought to have clarified the issue by ensuring that he ratified the agreement in an unequivocal manner. To seek to rely on tacit ratification or consent to the agreement was always going to be difficult.

The onus is on the plaintiff to prove, on a balance of probabilities, that the first defendant ratified the Agreement of Sale for it to be binding on him.

A careful analysis of the evidence adduced in court on this issue does not show that the plaintiff discharged such onus.

The evidence showed that when the second defendant entered into the Agreement of Sale he made it clear that he was also doing so for and on behalf of his co-holder of rights and title and that the co-holder would have to come and ratify the agreement. The first defendant was a competent co-holder to ratify the agreement had he wanted to. The Agreement of Sale was not void. It was capable of ratification.

The failure is on the fact that the plaintiff has not proved, on a balance of probabilities, that the first defendant adopted the agreement of sale.

As the Agreement of Sale was conditional upon the first defendant's ratification, it follows that there was no valid agreement of sale to bind the first defendant.

In the circumstances, the first defendant was free to enter into a sale agreement with anyone that the joint holders of rights and interests in the property preferred.

In this case, they sold their rights and interests to the third defendant. There was no legal impediment to such a transaction.

The plaintiff's remedy, if at all he felt hard done, is against those who led him to part with his money when the agreement had not been ratified.

Accordingly, the plaintiff's claim is hereby dismissed with costs.

HH115-10 : NASSAH MUKOMBERANWA vs VIVIAN MOKOMBERANWA
Ruled By: MUSAKWA J

Although the defendant claimed that the Norton stand belongs to her brother, the probabilities that she used her brother as a front are very high.In the first place, the brother unaccountably failed to attend court to testify as the defendant's witness on the issue. There was also evidence to the ...

HH161-10 : NEVER BVOCHORA vs DOUGLAS TOGARASEI MWONZORA (In his capacity as The executor Dative of the Estate Late I.V. Rukatya)
Ruled By: HUNGWE J

But, the subsequent Agreement was not signed by anyone on behalf of the defendant. It cannot, therefore, be said to exist. That leaves the parties with exhibit 1. But exhibit 1 had been mutually abandoned by the parties. Consequently there was no agreement between the parties. This is so because by the plaintiff's evidence, a subsequent ...

HH147-10 : LAWRENCE SHUMBAYAONDA vs MADHATTER MINING (PRIVATE) LIMITED
Ruled By: HUNGWE J

Mrs Rachel Thorpe is the Wages Administrator of the defendant. She did the calculations on exhibit 6 on Richard Christopher Bridges instruction. The plaintiff signed it. She then drafted exhibit 8 - which she and the plaintiff signed….,. There is no suggestion that exhibits 6 and 8 were signed under duress or induced ...

HH145-10 : TENDAI MUCHENJE vs G. AND M. PANEL BEATERS t/a SUPREME PANEL BEATERS & SPRAY PAINTERS
Ruled By: CHITAKUNYE J

The defendant could also have tendered the document the plaintiff signed showing that he was satisfied with the repair work. This the defendant did not do.

HH202-10 : OBRIDGE ENTERPRISES (PVT) LTD vs PULWICK ENTERPRISES (PVT) LTD
Ruled By: KUDYA J

Eddington Zhou admitted that exhibit 2 was not dispatched to the plaintiff nor was Tafadzwa ever requested to append his signature on it to confirm the alleged authorization for the disposal of 645 bags.

HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

As to why he, Felix Dzumbunu, as witness would, before the first defendant, as seller, sign the Agreement of Sale, Felix Dzumbunu said that that was because he had effective control of the flat as the first defendant had given it to him….,. It was highlighted to him that whilst he signed the agreement as a witness ...

HH240-10 : DOREEN SAGANDIRA vs PATRICK SAGANDIRA
Ruled By: MAVANGIRA J

In any event, there is no indication as to who in the Kasu family the money was handed to; neither is there a signature acknowledging receipt of the stated amount by any such alleged recipient.

HB03-10 : SITHEMBILE SIBANDA vs PUMULO SAYELA and ESTATE LATE MFAKAZI NDLOVU and PLUMTREE TOWN COUNCIL and ASSISTANT MASTER OF THE HIGH COURT, BULAWAYO
Ruled By: KAMOCHA J

The plaintiff gave evidence in an effort to prove her case and called her husband to support her story. Their story is as follows. The plaintiff, Sithembile Sibanda, and Nhlanhla Dube, are married to each other. The husband used to work in Botswana but the couple has got a rural home in Bhambadzi in the Plumtree area. The ...

The plaintiff gave evidence in an effort to prove her case and called her husband to support her story.

Their story is as follows.

The plaintiff, Sithembile Sibanda, and Nhlanhla Dube, are married to each other. The husband used to work in Botswana but the couple has got a rural home in Bhambadzi in the Plumtree area. The couple was looking for a vacant Stand in Plumtree town. They sent word through relatives and friends to that effect. A friend, called Moyo, who used to work for Agritex in Plumtree, contacted the husband about a colleague of his who was selling a Stand in Plumtree. The husband came from Botswana and proceeded to his rural home in Bhambadzi to fetch his wife. The two then proceeded to Plumtree Town to see the friend, Moyo who, unfortunately, is now late. The late Mr Moyo took them to the late Mfakazi Dennis Ndlovu's house. They found the late Mfakazi Dennis Ndlovu with his wife - who is the present defendant. The parties discussed the sale of the Stand and concluded its Sale Agreement. The late Mfakazi Dennis Ndlovu later made an affidavit to that effect which reads thus-

“AFFIDAVIT

I Mfakazi Dennis Ndlovu 08-305325-B39 residing at GP2231 Park Rd Plumtree do hereby solemnly and sincerely swear/declare the following:-

That I sell Stand Number 1401 Dingumuzi Extension pending processing lease agreement which will be transferred to Sithembile Sibanda ID No.56-050824-H56 of Bhambadzi Secondary School P O Box 118 Plumtree….,.”

The above document was signed by Mfakazi Dennis Ndlovu on 6 April 1991 before a Commissioner of Oaths and bears the District Administrator's stamp.

It was suggested to the plaintiff and her husband that the signatures appearing on the two documents allegedly written by the late Mfakazi Dennis Ndlovu were forgeries.

It was even put to them that Mfakazi Dennis Ndlovu did not spell his Ndlovu with an “h”.

The reply from both the plaintiff and her husband was that that was his choice to write it as either Ndlovu or Ndhlovu. They were emphatic that that was his signature and he even wrote his telephone number.

The court observed that the defendant was being untruthful when she made these suggestions. That is so because when the defendant appeared before the Master of the High Court she told him that Mfakazi Dennis Ndlovu was also known as Mfakazi Dennis Ndhlovu.

Quite clearly the suggestion was designed to mislead the court.

HB41-10 : NQOBIZITHA MICHAEL DUBE vs SIPHIWE MTHUPHA and BULAWAYO CITY COUNCIL and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

In any event, I am satisfied that both powers of attorney are actually signed by Sibonginkosi Chidakwa's sister Siphiwe Mthupha as required by section 5 of the High Court (Authentication of Documents) Rules, 1971 which provides thus – “Nothing contained in these rules shall prevent the acceptance as sufficiently authenticated by any court, tribunal or public ...

HB61-10 : LUXION TACHIONA and NONTOKOZO DUBE vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

The dispute: On the one hand, the amount tendered as compensation for the lost room divider is below the market value of the piece of furniture, but the defendant maintains that such an amount is contractually fair and binding against the plaintiffs who freely and voluntarily signed the consignment note. On the other hand, whilst ...

HB145-10 : JANE NYIKA vs THEMBANI MOYO and ALPHEUS NCUBE and REGISTRAR OF DEEDS and CITY OF BULAWAYO
Ruled By: MATHONSI J

The plaintiff challenged the legality of the power of attorney used to pass transfer to the first defendant. Other than her bare denial, there is nothing that has been put forward to question the authenticity of her signature on that document or indeed on the declaration by the Seller. When the Agreement of Sale between ...

The plaintiff challenged the legality of the power of attorney used to pass transfer to the first defendant.

Other than her bare denial, there is nothing that has been put forward to question the authenticity of her signature on that document or indeed on the declaration by the Seller. When the Agreement of Sale between herself and the first defendant was put to her, the plaintiff confirmed that her signature is appended on that document. She did not even deny signing at the back of that document in acknowledgment of receipt of the full purchase price. Of course she sought to say that she signed without reading and that she recalls signing only once.

The significance of her verification of that signature is that there is a striking resemblance between the plaintiff's signature or writing on the Agreement, and on the power of attorney, and the declaration by the Seller. Both documents were produced by consent in the bundle of exhibits for trial. Without the aid of expert evidence to the contrary, which the plaintiff did not bother to elicit, I have no reason to believe that the plaintiff did not sign the power of attorney and the declaration. According to my value judgment, it is the plaintiff who signed those documents.

There is no doubt in my mind that when the plaintiff met the first defendant she had already established a relationship with the second defendant which enabled her to insist on transacting with the first defendant in the presence or with the assistance of the second defendant who was clearly her advisor, if not her agent. I have already concluded that not only did the plaintiff sign the Agreement of Sale, the power of attorney and the declaration by the Seller, she also received money in consideration of the sale of her house.

Accordingly, the plaintiff's signature brings into operation the caveat subscriptor rule. That rule was expressed by R. H. CHRISTIE in Business Law in Zimbabwe …, as follows:

“The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract and if this principle were not upheld any business enterprise would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule, is therefore that a party to a contract is bound by his signature, whether or not he has read or understood the contract….,. And this will be so even if he signed in blank…., or it is obvious to the other party that he did not read the document.”

Having come to the conclusion that the plaintiff knew she was signing an Agreement of Sale, there was no misrepresentation as would entitle the plaintiff to a defence.

HH09-13 : RUSITU AGENCIES (PRIVATE) LIMITED vs PETER FUNGAYI KANGARA
Ruled By: MAVANGIRA J

The defendant said that the signature on the acknowledgment of debt was not his.

HH36-11 : GENESIS VENTURES (PRIVATE) LIMITED vs ROLMAY TRADING (PRIVATE) LIMITED and LARDFAIR TRADING (PRIVATE) LIMITED
Ruled By: BERE J

WAS THE PLAINTIFF COERCED INTO SIGN THE SETTLEMENT AGREEMENT? It is common cause that for a long time the plaintiff had tried to have the first defendant release the 20,000 litres of diesel to it. This followed the collapse of the Joint Venture Agreement between the plaintiff and Muswere Haulage Dynamic. It should be ...

WAS THE PLAINTIFF COERCED INTO SIGN THE SETTLEMENT AGREEMENT?

It is common cause that for a long time the plaintiff had tried to have the first defendant release the 20,000 litres of diesel to it. This followed the collapse of the Joint Venture Agreement between the plaintiff and Muswere Haulage Dynamic. It should be appreciated that the release of the diesel to Muswere Haulage Dynamic was conditional upon its ability to execute the United Nations Food Programme contract. Its Managing Director, Mr Muswere, conceded that that arrangement did not take off the ground as it faced many challenges.

Exhibits 8, 8(a) and 13 must be seen within the context of the initiative taken by the plaintiff and the first defendant's representative, Mr Mahuni, towards the realisation of the objective of having the diesel released to the plaintiff.

No sooner had the Settlement Agreement, exhibit 8(a), been signed by the parties than it met with controversy. The first defendant's representative alleged that “the settlement was arrived at through the unlawful intervention by Senior Assistant Commissioner Chengeta who abused his office by ordering junior officers at the Central Intelligent Unit to arrest him with a view to coercing him to release fuel to the plaintiff”…,..

The allegations raised by the first defendant's representative trigger interesting legal issues and it is pertinent that those be considered before I deal with the evidence led in this regard in this trial.

THE LEGAL POSITION

Exhibit 8(a), being a signed agreement, is governed by the caveat subscriptor rule. This observation was observed and raised by the defendant's counsel in his closing submissions. Commenting on this rule, R.H. CHRISTIE remarked as follows:-

“It is a matter of common knowledge that a person who signs a contractual document thereby signifies his assent to the contents of the document, and if these subsequently turn out not to be his liking he has no one to blame but himself. This general principle is, in our law, usually traced back to Burger v Central SAR 1903 TS 571 where the learned judge INNES CJ is reported to have commented as follows at p578:

“It is a sound principle of law that a man, when he signs a contract, is taken to be bound by the ordinary meaning and effect of the words which appear over his signature”.

R.H. CHRISTIE, The Law of Contract in South Africa, 1^st ed, 1983….,.

It is trite that duress and or undue influence are some of the defences a party can successfully raise in order to repudiate a written contract.

This is precisely what the first defendant has sought to achieve in this trial.

HH49-13 : FIRST CLASS ENTERPRISES (PVT) LTD vs TRYMORE MUCHINGAMI AND 2 OTHERS
Ruled By: MATHONSI J

Trymore Muchingami said that Seargent Tarwirei Kamanura…, confiscated his driver's licence, insurance, registration book and licence disc. He only signed an admission of guilt a month after the accident because the police officers had intercepted him at a road block while he was driving the same bus to Hurungwe and told him that he had ...

HH113-11 : ALSHAMS BUILDING MATERIAL t/a LLC (a company incorporated in the United Arab Emirates) vs TAPERA NYEMBA and CHRISTOPHER GOROMONZI and JOSPHAT SACHIKONYE
Ruled By: KUDYA J

Whether the third defendant is bound by his signature to the guarantee notwithstanding his averments, firstly, that he did not know at the time he signed it that it was a guarantee, and, secondly, that it was discharged by the plaintiff when he agreed to resign his Directorship in Blantyre Asset Management Company (Pvt) Ltd ...

Josphat Sachikonye alleged in his pleadings and evidence that he did not know that he was signing a Deed of Suretyship. The suretyship was signed on 22 December 2003. In his evidence in chief he stated that he was rushing to a Board meeting when was approached in his office by Christopher Goromonzi who asked him to append his signature on a document he said was for the transfer of shares in Blantyre Asset Management Company (Pvt) Ltd. He just signed it on the mention of Blantyre Asset Management Company (Pvt) Ltd in the belief that it was an ordinary resolution since Trust Bank Limited was in the habit of sending round robin resolutions to Directors for approval. Under cross examination, he betrayed his foreknowledge that the shares, the subject of the transfer, were Ariston Holdings Limited shares that were held by Barato Holdings Limited. He stated that Christopher Goromonzi told him that they were to be transferred to a new buyer.

On the other hand, Christopher Goromonzi stated that he sat and discussed the Deed of Suretyship with Josphat Sachikonye in Jospaht Sachikonye's office. Thereafter, Josphat Sachikonye signed it in the full knowledge of what the document entailed….,. In his submissions, counsel for the respondents agreed with counsel for the plaintiff that Christopher Goromonzi gave a more credible version of what transpired.

The Deed of Suretyship in question was signed by Josphat Sachikonye and witnessed by Christopher Goromonzi. Josphat Sachikonye, by stating that Christopher Goromonzi made mention of Blantyre Asset Management Company (Pvt) Ltd, admitted that a discussion first ensued before he signed. It was not clear from his testimony why he believed that he was signing a round robin resolution concerning Trust Bank Limited. He knew he was signing a document which concerned the transfer of shares in Blantyre Asset Management Company (Pvt) Ltd. Blantyre Asset Management Company (Pvt) Ltd was the holding company of Barato Holdings Limited. The Deed concerned surety for Barato Holdings Limited which had pledged its asset in the form of Ariston Holdings Limited shares to the plaintiff. Josphat Sachikonye, together with Christopher Goromonzi and Tapera William Nyemba were the sole Directors of these two entities. Jospaht Sachikonye did not establish the link between Blantyre Asset Management Company (Pvt) Ltd and round robin resolutions of Trust Bank Limited. Neither Josphat Sachikonye nor any of his co-defendants established the link between Blantyre Asset Management Company (Pvt) Ltd and Trust Bank Limited. His story that he signed a document concerning Blantyre Asset Management Company (Pvt) Ltd in the belief that it was a bank round robin resolution was therefore false. While he alleged that he was rushing to a Board meeting, he did not produce proof that there was indeed a Board meeting on that day. In my view, Christopher Goromonzi told the truth that he explained the nature of the document to Josphat Sachikonye who understood what it entailed. Josphat Sachikonye did not give details concerning the identity of the transferee and the reasons for the transfer of the shares. His further version that he only knew of the existence of both the loan agreement and surety in October 2004 was, in the light of Christopher Goromonzi's version, demonstrably false. He was to further complicate matters by averring that he only saw the Deed for the first time after it was attached in the further particulars of 11 January 2006. He failed to satisfactorily explain his attempt, in his letters of 29 October 2004, to cancel the Deed that he was unaware until 11 January 2006.

I find against Josphat Sachikonye and hold that he knew, on 22 December 2003, that he was appending his signature to the Deed of Suretyship.

Indeed, the Deed itself consists of two pages. It is entitled Deed of Suretyship in bold print in capital letters. It is inconceivable that Josphat Sachikonye, even if he were in a hurry, would have failed to scan the contents of the document and thereafter realize that he was signing a guarantee.

HH123-13 : AFRICAN BANKING CORPORATION OF ZIMBABWE LIMITED t/a BANCABC vs PWC MOTORS (PVT) LTD and PETER MARE and WONDER MARE and CHARLES MARE
Ruled By: MATHONSI J

The respondents signed an agreement allowing the applicant to charge the interest that is being claimed. Without disputing the terms of the instrument of debt, the respondents want the interest rate to be referred to trial. They do not show why they should not be bound by what they agreed. These are the ...

HH201-14 : CONSTANCE ZVAMAIDA MANDEWO vs CITY OF HARARE
Ruled By: MAKONI J

The applicant further avers that a person who signs a contract thereby signifies his assent to the contents, and, if these later turn out not to be to his liking, he has no one to blame.

HH338-14 : MAFIRAMBUDZI FAMILY TRUST vs LIBERTY MADZINGIRA and PANNAH NHIWATIWA and THE REGISTRAR OF DEEDS N.O. and THE SHERIFF
Ruled By: TAKUVA J

In any case, the respondents' representative signed that Agreement and surely on that basis they are bound by its terms.

HH568-14 : FBC BANK LIMITED vs DUNLETH ENTERPRISES (PRIVATE) LIMITED and DUNCAN MUKONDIWA and SINIKIWE MUKONDIWA and MARIAN SMEMELWANI MAPANDA and EVA MUZUVA
Ruled By: ZHOU J

The fifth defendant's case is that she believed that her liability was limited to a sum of US$150,000= because of the assurances given to her by the second defendant. But the security was given in favour of the plaintiff not the second defendant. In other words, the agreement was between the fifth defendant and the plaintiff. She does not allege that the plaintiff or its employees ever assured her that her guarantee applied only to a maximum sum of US$150,000=. If any person misled her as to her maximum liability then that person was the second defendant.

The fifth defendant's contention is that because the word “unlimited” had not been inserted at the time that she signed the guarantee form then she is not bound by its contents insofar as they relate to the extent of her liability.

When a party to an agreement signs it in blank and leaves it to the other party to complete the rest then they cannot turn around and claim that they are not bound by the terms of the agreement.

In the case of National and Grindlays Bank Ltd v Yelverton 1972 (4) SA 114 (R), the court considered the implications of signing a contract in blank, where a printed form containing blank spaces was allegedly filled in after signature. Applying the caveat subscriptor principle, the court held that the signatory could escape liability only by raising one of the defences that would have availed if the blank spaces had been filled in prior to the signature, that is, the normal defences which would be available to any signatory. Those defences are misrepresentation, fraud, illegality, duress, undue influence and mistake. See R. H. CHRISTIE, The Law of Contract in South Africa 3^rd Ed….,.; A. J. KERR, The Principles of the Law of Contract 4^th Ed....,.

In relation to suretyship agreements, blanks in written contracts can sometimes be dealt with either on the basis that they could be filled in from another document where there is such a document which is incorporated by reference, or that the clause containing the blank was designed solely for the benefit of one party who, by leaving the blank, has elected not to take the proffered benefit. See First Consolidated Holdings (Pty) Ltd v Bisset 1978 (4) SA 491 (W)…,.; R. H. CHRISTIE, The Law of Contract in South Africa, 3^rd Ed….,.

In casu, the terms of the Deed of Hypothecation were not incorporated into the terms of the guarantee. The fifth defendant does not explain why she did not fill in the sum of US$150,000= if she genuinely believed that figure to represent the full extent of her liability in terms of the Deed of Suretyship. She should, therefore, be taken to be bound by the terms of the guarantee form which she signed.

That, in my view, is the approach which is consistent with the dictates of modern commercial convenience.

Further, I do not believe that the addition of the word 'unlimited' altered the extent of the fifth defendant's liability from what it would be if that word was to be excluded. The document is worded in sufficiently clear terms to mean that in the absence of a figure being mentioned then the liability is unlimited. Clause 1 of the guarantee form signed by the fifth defendant provides, inter alia, that the fifth defendant guarantees and binds herself as surety “for the repayment on demand of all sum or sums of money which the Debtor may now or from time to time hereafter owe or be indebted in to the said Bank…,.”…,.. The unlimited guarantee could only have been limited if a specific amount had been stated in the blank space in which the word “unlimited” is inserted. Indeed, it is clear that the word unlimited does not even grammatically accord with the sentence in which it is inserted, as that space would be relevant where there is a specific figure to be filled in. The words preceding the blank space illustrate that that space is meant for a specific sum of money to be inserted if there is one agreed upon.

The Deed of Hypothecation specifically provided that the liability of the fifth defendant in respect of that security was not to exceed a sum of US$150,000=. But that limit applied only to the security constituted over the fifth defendant's immovable property, Stand 156 Groombridge Township 2 of Lot 39A Mount Pleasant. It does not, in any way, limit the liability constituted through the guarantee form to a sum of US$150,000=.

That conclusion does not at all depend on what the second defendant represented to the fifth defendant.

The two, that is, the Deed of Security and the Deed of Hypothecation, are separate and distinct forms of security; one has a maximum limit of liability while the other one does not limit the liability to a specific amount.

The fifth defendant does not contest the total amount which is owed to the plaintiff by the principal debtor. After all, judgment has already been given against the principal debtor and the other three defendants. That judgment was granted on 28 February 2012. Her contention that the total of the payments made by the first defendant to the plaintiff exceed a sum of US$150,000= does not present a sound defence, as those payments have not cleared the debt….,.

In the result, it is ordered that judgment be and is hereby given in favour of the plaintiff against the fifth defendant for payment of a sum of US$685,442=46 together with interest thereon at the rate of 6.5% per month plus a penalty rate of 5% per month with effect from 1^st June 2011 to the date of payment in full, and costs of suit on an attorney-client scale. The fifth defendant's liability is joint and several with that of the first, second, third and fourth defendants, the one paying the others to be absolved.

HB105-14 : MARIA MANOLAKAKIS vs ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER
Ruled By: MAKONESE J

The Plaintiff's Evidence The plaintiff led evidence from Leonard Nhari a handwriting expert. He produced his curriculum vitae and proof of his qualifications. He presented his report and his findings based on the examination of the questioned document and the standards handed to him. His conclusion was that the questioned document was not authored or signed by the late ...

The Plaintiff's Evidence

The plaintiff led evidence from Leonard Nhari a handwriting expert. He produced his curriculum vitae and proof of his qualifications.

He presented his report and his findings based on the examination of the questioned document and the standards handed to him. His conclusion was that the questioned document was not authored or signed by the late Dr Monalakakis….,.

The plaintiff then led evidence from Dr EL Madawy, a close friend and professional friend of the late Dr Manolakakis. He explained that they both settled in Zimbabwe in the early 1980's and became friends as they both hail from Egypt. This witness produced the standards that were used by Mr Nhari in his forensic examination, namely, a letter dated 16^th November 2005, a compliment slip dated 21 February 2006, and a letter addressed to the Registrar General dated 24 October 2005. Dr EL Madawy testified that when the late Dr Manolakakis died, on the 6^th July 2006, Mrs Patrinos came to inform him of his death. He enquired whether the burial would take place in Greece or Zimbabwe. It was then that the issue of the will was brought up. Mrs Patrinos indicated that the late Dr Manolakakis had prepared a Will. She then produced the Will from one of the cupboards in their flat. At that stage, Dr EL Madawy, his wife, and another friend were present. He looked at the flimsy piece of paper which was the alleged last will and testament and could not believe that the late Dr Manolakakis would not have authored such a will for the following reasons:-

(a) The will was executed at 23:12 hours when the late Dr Manolakakis would have been heavily sedated because he was undergoing an operation the following day.

(b) He would have prepared a proper Will because he had access to competent lawyers and other professional people.

(c) He was familiar with this handwriting as Dr Manolakakis used to refer patients to him and the document purporting to be his Will was not possibly authored by him.

The plaintiff then led the evidence of Mrs EL Madawy (also referred to as Gamila Atwa Ibrahim Yousef El Zont). She was also a close and personal friend of both the late Dr Manolakakis and the late Mrs Patrinos. She tendered the Power of Attorney given to her by the plaintiff. She led evidence of the circumstances surrounding the discovery of the Will. She was present when the Will was opened by her husband in the presence of Mrs Patrinos. She says that she simply laughed at the suggestion that the purported Will was an authentic document from the manner it was written and produced by Mrs Patrinos. The witness conceded that she could not state that Mrs Patrinos was the one who had forged the document.

I found the evidence of Dr EL Madawy and his wife to be credible. They spoke of events they were familiar with and they were very close friends to the late Dr Manolakakis. They knew him to be a sophisticated person who would not have prepared his Will on some piece of paper. He loved his mother and looked after her. They found it strange and impossible that the late Dr Manolakakis would have failed to adequately provide for his aged mother in the purported Will. The late Dr Manolakakis also had three sisters whom he was looking after prior to his death. They were not provided for under the Will.

In examining the evidence presented on behalf of the plaintiff, the following are pertinent observations regarding the evidence of the expert witness, Mr Nhari:-

(a) The plaintiff's expert testimony is based on the examination of the original documents.

(b) The pictures, impression, enlargements and charts contained in the report of Mr Nhari were all produced from the original Will.

(c) The standards which were used by Mr Nhari were originals save for the letter to the Registrar General dated 24 October 2005.

(d) The origins of the standards were verified by Dr El Madawy.

(e) The plaintiff's expert evidence was therefore based on the best evidence available.

(f) A naked eye perusal of the signatures on the standards shows that the letters M and J at the beginning of the signature are always pre-sentenced in the form of a ballon whereas in the questioned document the construction is narrow.

(g) Consistency was also found in the constriction of the letter “o” in the standards but many variations of the same letter exist in the questioned document.

(h) The only reasonable inference is that the author of the questioned document was forgetting how to construct the letters in the process of writing the Will. Such dis-similarities cannot be attributed to natural variations.

The defendant's case was opened by leading evidence from Cecil Greenfield, a handwriting expert based in South Africa.

He confessed that he did not have the advantage of working with original documents. He only saw the original will for the first time a few minutes before he gave his evidence. His report and conclusions was based on photocopies supplied to him. The origin of his standard documents was not disclosed, although the court may reasonably conclude that he obtained them from the fifth defendant….,.

Mr Greenfield stated that, in his expert opinion, the questioned document was authored by the late Dr Manolakakis. He said the variations observed by Mr Nhari are attributed to natural variations….,.

The defence then led evidence from another expert witness, Mrs Louricka Buckley….,.

In casu, both experts for the defence were adamant that the questioned document was in all probability, or with 100% certainty, authored by the late Dr. Manolakakis. Both experts failed to explain how the Will could have been authored at around midnight before a major operation was performed on the author and yet there were no signs in the document that the writer was shaking or was not comfortable. Mrs Buckley explained that the document was written with ease and there was no evidence that the author was struggling. She criticised Mr Nhari's report on the grounds that he only used three standards. She stated that he should have used more standard documents. She however did not comment of the evidence of Cecil Greenfield at all. Mrs Buckley did not produce any charts or diagrams and the basis for her conclusions had no real foundation.

The evidence of the two expert witnesses for the defence is therefore not accepted by this court.

The defence then called Ismail Moosa Lunat to testify.

He confirmed that he was a close friend to the late Dr. Manolakakis and that he worked as his accountant for several years. He had known him for more than 10 years. He also knew the late Mrs Patrinos. He told the court that after the late Dr. Manolakakis had left Milpark Hospital, after his operation, he had confided in him that he had executed a Will. He stated that the late Dr. Manolakakis informed him that he kept the Will in a safe at his flat at Ascot. He says he saw a copy of the Will. He verified that the document was authored by the late Dr. Manolakakis. He said he was familiar with his handwriting because he filed tax returns for him.

The evidence of Mr Lunat is problematic in that he was given a Power of Attorney by the late Mrs Patrinos to bank monies from her businesses. When the late Mrs Patrinos died in Greece he failed to account for all the funds collected on her behalf. He stated quite boldly in court that all the monies he had collected “disappeared with the zeros”, meaning to say all the monies were eroded by the effects of hyperinflation. It is common cause that during the era of hyperinflation various business entities lost monies. Some companies and individuals converted their funds into foreign currency to hedge against inflation. Mr Lunat hopelessly failed to account for all the funds he collected on behalf of Mrs Patrinos. His evidence sounded hollow. He did not impress as an honest witness. His evidence does not pass the credibility test. He initially denied any association with Mrs Patrinos, apart from a mere “friendship”, but when further pressed, he revealed that he was involved with Mrs Patrinos in respect of the estate late Dr. Manolakakis. He is the one who gave a Bond of Security.

I have no hesitation in rejecting his entire evidence as being untruthful in all material respects. His evidence could not be taken seriously at all….,.

I found the evidence of Leonard Nhari to be straightforward and easy to follow….,.

The Law

Section 18 of the Civil Evidence Act [Chapter 8:01], provides as follows:-

“Comparison of any disputed handwriting with any handwriting proved to be genuine may be made by any witness, and such writings and evidence of any any witness with respect to them may be adduced to prove the genuiness or otherwise of the handwriting in dispute.”

In the case of R v Mayahle 1968 (1) RLR 133…, the learned BEADLE CJ dealt with the issue of the evidence of handwriting experts in a criminal case decided on similar principles. He pointed out that:-

“It is desirable, when such experts give evidence, that not only should they produce the photographs supporting their evidence, which show the points of similarity between the accused's handwriting and the handwriting on the questioned documents, but they should point out why they are similarities and their significance.”

In another decision in R v Chidota 1966 (3) SA 428, the learned judge, QUERIET (JP), held in a criminal case, which is also relevant in the present case, that:

“Where the sole evidence concerning an accused with the commission of an offence is that of a handwriting expert, precaution should be taken to remove the possibility of error.”

It is evident that the position to be taken by the court, where evidence of handwriting experts is concerned, is that the court must observe for itself the similarities and differences in the handwritings and then also take into account other relevant circumstantial evidence in the matter. The court must then assess all the evidence before it, including the evidence led from the handwriting experts and satisfy itself that indeed the document was authored by the person who is alleged to have authored it.

It is my view that from all the evidence presented before the court, the circumstances surrounding the writing and discovery of the Will are somewhat suspicious in that the Will is supposed to have been made on the eve of a major operation - at around midnight. This was a Will made when the testator feared that he may not survive the operation. The reality though is that Dr. Manolakakis survived for another year and had ample time to put his affairs in order and write a proper Will. It is highly unlikely that he would have reduced his wishes on a handwritten piece of paper. He made no provision for his family, namely, his mother and sisters whom he was known to have loved, as testified by Dr El Mandawy. The fate of his aged mother was left in the hands of Mrs Patrinos. From visual observations of an untrained eye, it is clear that the manner in which the signature on the questioned document was executed is different from the handwriting in the body of the Will itself. There was no shaking or uneasiness in the signature. It is logical to conclude that the author of the Will took time to insert the signature to the document (an act consistent with forgery), or that the signature was on the piece of paper before the document was prepared.

For the reasons given above, I am of the firm view that the disputed Will was not written by the late Dr. Manolakakis. Further, the plaintiff has proved its case on a balance of probabilities and is entitled to the relief sought in the summons….,.

In the result, I make the following order:-

1) The Will, dated 3 June 2005, purported to have been written by Dr. John Joseph Manolakakis, be and is hereby declared null and void and set aside.

2) It is ordered that the late Dr. John Joseph Manolakakis died intestate.

3) It is declared that the plaintiff is the sole heir to the deceased estate of the late Dr. John Joseph Manolakakis (Estate Number DRB 611/06), and in respect of any other assets wherever situate.

4) It is ordered that the appointment of Evangelia Patrinos as the Executrix Dative of the Estate Late John Joseph Manolakakis be and is hereby set aside.

SC13-17 : ZIMBABWE UNITED PASSENGER COMPANY LIMITED vs PACKHORSE SERVICES (PRIVATE) LIMITED
Ruled By: GARWE JA, GOWORA JA and MAVANGIRA AJA

The caveat subscriptor rule sets out that a party is taken to be bound by the ordinary meaning and effect of the words which appear above its signature; for the other party is entitled to assume that he has signified his assent to the contents of the document. See Mdlongwa v Thembekile Mdlongwa ...

SC60-17 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED vs JAFATI MDALA
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and GUVAVA JA

R. H. CHRISTIE, in his book, Business Law in Zimbabwe…, has this to say: “The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract and if this principle were not upheld any business enterprises would become hazardous in the ...

HB04-16 : PATIENCE MAFU vs FREEMAN BIBA NCUBE and THE BULAWAYO CITY COUNCIL
Ruled By: MATHONSI J

The applicant has challenged the authenticity of the first respondent's signature on the affidavit in support of the application for rescission of judgment without adducing any evidence from a handwriting expert to substantiate that challenge.

HH672-15 : TRINITY ENGINEERING (PVT) LTD vs RUSSELL KARIMAZONDO and MAXIFIX (PVT) LTD and TELECEL ZIMBABWE (PVT) LTD and PEOPLE'S OWN SAVINGS BANK and THE REGISTRAR OF DEEDS
Ruled By: MATHONSI J

The 80 year old Senator Aguy Clement Georgias (Georgias) founded the plaintiff company in 1975. He is the majority shareholder and Board Chairman and talks fondly of his “business empire” which unfortunately he said is crumbling because of his involvement with the first defendant, Russell Karimazondo (Karimazondo), his son born out of wedlock. Of course ...

Of course he has his wife, daughters, and other sons, but it is Russell Karimazondo, whom he did not know of until a few years ago -“about four, five or seven years ago.” Then, Russell Karimazondo had pulled up in a flashy Mercedes Benz ML motor vehicle at his Trinity Engineering offices and introduced himself as his son.

From the very beginning, Senator Aguy Clement Georgias' evidence is at variance with that of Russell Karimazondo who said that he first communicated on the telephone with his father in 1994 when he was doing the first year of his Bachelor of Business Administration at Solusi University. Thereafter, Senator Aguy Clement Georgias assisted in paying his University fees but he engaged him physically for the first time in the year 2000 as his father, although he had seen him before.

Senator Aguy Clement Georgias says he was quite happy to meet his son, who made an immediate impact because he was friendly with his daughters when his other boys from previous marriages did not relate well with his daughters. He was quick to point out that when one has children out of wedlock that is a problem presumably because they do not get along well with the mainstream family. He trusted Russell Karimazondo as he was optimistic that he would look after his other children well after his demise; he being a brilliant young businessman. He was ready to make him an Executive in his business empire.

Russell Karimazondo wanted assistance from him to secure licences for his 20 recharge cards kiosks dotted around town which did not have licences. Senator Aguy Clement Georgias quickly stepped in by approaching Minister Chombo to expedite the licences - which were issued. His son returned with a request for assistance to meet Minister Goche in an effort to get a business deal from Reward Kangai, the head of Netone Cellular. Although he assisted, nothing came out of that.

Karimazondo was not done yet.

He came back with a request to be assisted in meeting Minister Mohadi who was thought to be in a position to persuade James Makamba of Telecel to give the young businessman some money. Although he again took his son to him, Minister Mohadi was not impressed by the story and again nothing came out of that.

Subsequent to that, Russell Karimazondo then made a proposal to him for the sale of airtime cards and vouchers which resulted in an Agreement, exhibit 1, being signed between them on 6 February 2011. The witness confirmed that his signature is appended on that Agreement he having signed on behalf of the plaintiff. Russell Karimazondo signed on behalf of the second defendant.

The preamble to that Agreement recites that the second defendant's core business is the wholesale and retail of cellular airtime recharge cards/vouchers; that it had secured a roll-over facility with the third defendant to access re-charge cards/vouchers against suitable collateral of $1million; and that the plaintiff was “willing to permit a mortgage bond to be registered” over its property in favour of the third defendant as security for the roll-over facility. It further records that the bond would be a second bond after that in favour of People's Own Savings Bank (POSB) and that in return the parties would “profit share in the sale of the stock allotted by Telecel to Maxifix.”

In terms of clause 2 of that Agreement:

“2. Bond Registration

Trinity shall do all such things and sign all such documents as may be required to enable a second bond in the sum of US$1 million to be registered over the property in favour of Telecel. The said bond shall have a fixed term of 12 months (the Bond Tenure) commencing from the date of registration. Maxifix shall bear all costs associated with the bond registration.”

In terms of clause 4, in consideration for the collateral security, the second defendant was, inter alia, to pay the plaintiff $50,000= within 15 working days from the date of initial drawdown, $500,000= within 8 weeks after the initial drawdown and service the first bond in favour of People's Own Savings Bank (POSB) by stop order.

Senator Aguy Clement Georgias denied ever signing the power of attorney to pass a mortgage bond, either in favour of People's Own Savings Bank (POSB) or the third defendant stating that the signature on the power of attorney used by Wintertons to register the bond for the third defendant, while it is strikingly similar to his, is not his but a forgery.

He did not attend at Wintertons to sign it although they are his legal practitioners of longstanding…,.; They also did the conveyancing for his house. When he got to know that they had registered the bond on his property in favour of the third defendant he did not deem it necessary to take any action against them. He did not find it necessary to report what was clearly a criminal offence to the police as he was legally advised that it was not for him to do so but for the third defendant which has been prejudiced.

The witness stated that the existence of a bond in favour of the third defendant was not discovered by himself but his wife and daughter. When the two made the discovery, they went about investigating the issue only to discover that the first defendant already owed the third defendant money which was now secured by the mortgage bond and not that he needed the bond to secure future advances.

When the existence of the third defendant's bond was brought to his attention, he says he confronted the first defendant demanding to know why, as his son, he could do such a thing to him when he had not met the conditions of their Agreement, namely, to pay him the sums set out in the agreement and to allow access to the books of the second defendant among others. He then pressured the first defendant to pay off the debt owed to the third defendant in order to have his property released from encumberment.

It was at that point that the first defendant admitted having forged the witness's signature which admission he demanded in writing. The first defendant was taken to Harare Central Police Station to depose to an affidavit, exhibit 2, making that confession. The affidavit, which was sworn to on 22 January 2012, reads, in relevant part, thus:

“I, RUSSEL KARIMAZONDO, ID NO. 29-162678 M 47, of No. 163 Robert Mugabe Road, Harare, do hereby make oath and swear that:-

1. I am the Director of Maxifix (Private) Limited of 163 Robert Mugabe Road, Harare.

2. I confirm that I forged the signatures of Senator Aguy Clement Goergias to pass two mortgage bonds in favour of Telecel Zimbabwe and People's Own Saving Bank amounting to US$1,250,000=.

3. I also forged Senator Georgias's signatures on the purported minutes of the Board of Directors of Trinity Engineering (Private) Limited authorising the registration of the said bonds.

4. The mortgage bond numbers are 04504/2011and 01533/2011 respectively.

5. For all intents and purposes, it was my intention to pay off the bonds but failed to do so because of Mr James Makamba of Telecel who did not perform his side of the transaction as agreed.

6. I apologise to Senator Georgias for my misdemeanour.”

This is interesting indeed.

A person confessing to having committed a crime of forgery was, even as he made the confession, still blaming someone else for his crime. I shall return to deal with the credibility of the first defendant later.

But for now, let it suffice that Senator Aguy Clement Georgias stated that when the first defendant intimated that he wanted to make arrangements to pay, he advised him to go to his lawyers to do that. The engagement with the first defendant ended, according to the father, with the latter vowing that he never wanted to see his son again.

He has kept his word.

Senator Aguy Clement Georgias denied receiving any payment from the first and second defendants whom he said failed to meet any of the conditions in Exhibit 1. He denied ever attending at the offices of the third defendant to inquire about the status of the account maintaining that it is his wife and daughter who did that. He denied standing as surety and co-principal debtor for the due performance of the second defendant's liability to the third defendant.

Under cross-examination, Senator Aguy Clement Georgias made quite surprising statements regarding the entire dispute. Although both his summons and his exhibit 2 (Russell Karimazondo's affidavit) state categorically that the power of attorney and resolution of the Board of Directors used to register the People's Own Saving Bank (POSB) bond were forged, he was adamant that the People's Own Saving Bank (POSB) bond registration was proper and there was no forgery involved at all.

In fact, he said that the Bond has been paid off through an arrangement he had with CBZ Bank. He literally disowned the contents of his summons and declaration.

But then life can never be that easy.

A party to proceedings is bound by its pleadings. In addition, it is trite that a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings. He cannot have it both ways: S v Marutsi 199 (2) ZLR 370 (S).

The basis of the plaintiff's claim is that both bonds were registered on the strength of forged documents and the pleadings were not amended. It cannot turn around when it suits it, to accept one bond as having been lawfully registered and persist on the other having been a fraud. It is either both were unlawfully registered or not. It is not easy to accept the testimony of a prevaricating witness, and, ordinarily, adverse inferences have to be drawn against such a witness.

Counsel for the plaintiff, of course, tried to give that evidence a new colour in his closing address stating that the plaintiff abandoned the claim against People's Own Saving Bank (POSB) for other reasons than what was stated by the witness.

Counsel cannot give evidence.

Although he claimed to have discovered a crime and to being very angry with Russell Karimazondo, someone he never wanted to see again, he did not find it necessary to report the crime. He left that to the third defendant, a party which was enjoying the benefit of security which it is seeking to enforce. While he accused Wintertons of fraudulently registering a Bond on his property, he says he did not raise any complaint with them and did not find it necessary to sue them because he never dealt with them in the first place and saw no need to “bother them.”

In the end, what was left was his self-serving denial of his signature and the confessions of his son who had made it a point to change his story each time an opportunity presented itself.

On the signature itself, he was requested by counsel for the third defendant to provide a specimen of the signature from the witness box - which he did. He admitted that the signature on exhibit 1, the Agreement with the second defendant, is his, so is the one on the discovery affidavit and the two of them have a striking resemblance not only with the specimen produced in court but also with the signature on the power of attorney used to register the bond.

To my untrained eye, there is absolutely no difference between the signature on the power of attorney and the other three signatures attributed to Senator Aguy Clement Georgias - they are the same.

In that regard, I find it quite strange that Senator Aguy Clement Georgias, whose entire case hinges on him successfully disowning the signature on the power of attorney, with all his years as a businessman of repute, and with the benefit of very competent legal representation, did not bother to enlist the services of a handwriting expert to assist him in his endeavours. Only an expert would have authoritatively dealt with the issues of signatures and told us if his signature was forged, not the mere say so of an extremely conflicted witness.

An adverse inference must be drawn against the plaintiff's failure to adduce the evidence of an expert to resolve the disputed signature.

As I have said, to me, the questioned signature resembles that of Senator Aguy Clement Georgias. His failure to bring an expert can only mean that he was aware that the expert would confirm that he signed the power of attorney - as I hereby find, as a fact, that he did.

I am fortified in my conclusion by the manner in which the whole saga unfolded.

As I have said, it is not Senator Aguy Clement Georgias, of his own volition, who stood up to challenge the Bond in favour of the third defendant. In fact, as reference to the letters from his legal practitioners, dated 1 and 5 August 2011, will show, long after the bond had been registered, he was happy to seek to harvest from the effects of the registered Bond. It is his wife and daughter who took the leading role in raising a red flag. Although Senator Aguy Clement Georgias did not say so in his evidence, according to his summary of evidence, his wife received a summons from People's Own Saving Bank (POSB). When she went to investigate the issue, she discovered there was another bond registered on the property in favour of the third defendant. Problems then started for Senator Aguy Clement Georgias, who was quick to point out himself at the commencement of his testimony that if one has children out of wedlock that creates problems.

I would not want to speculate, but one cannot resist the conclusion that when questioned about the Bond which was benefiting only his newly found son, Senator Aguy Clement Georgias was forced to disown it. It is for that reason that this matter has come up. How else can one explain his insistence on enforcing an Agreement which could only bear fruits upon registration of the bond, long after the Bond had been registered on 7 March 2011? I am here referring to the letters from Gollop and Bank in August 2011, which incidentally did not complain about his signature in the power of attorney?

On 1 August 2011, Gollop and Bank, then representing the plaintiff, complained to Russell Karimazondo thus:

“Senator Goergias advises that he met with you on Thursday 28^th July 2011 to discuss the outstanding issues mentioned in our two previous letters….,. Our instructions are that you undertook to comply with the payment of $500 000= mentioned under Clause 4(ii) of the principal agreement by no later than Wednesday 3^rd August 2011 and that you would also ensure that all payments due by Trinity in favour of the POSB as mention in Clause 4(iii) would be paid up to date. In addition to the above, you gave an undertaking to afford Trinity's representative access to all your company records concerning payments that had been received from Telecel as provided for with reference to Clause 3 and the sub-clauses thereunder forthwith.

We are instructed to write to you to confirm these arrangements which have been entered into and concluded with you by Trinity on a purely 'without prejudice' basis, and, more particularly, in an attempt to keep the agreement alive….,.

In the event that your promised payments are not effected by the close of business on Wednesday 3^rd August 2011our client instructs us that it shall deem the Agreement violated and that cancellation take place. Damages arising from the breach are reserved, and, in addition, our client, in the event that funds do (sic) to it under the Agreement have been diverted, will rise a complaint of fraud, alternatively, theft by conversation with the Zimbabwe Republic Police as a criminal complaint. Hopefully this can be avoided. The delays thus far are completely unacceptable and require immediate rectification.”

In terms of exhibit 1, the third defendant was only going to make advances against suitable collateral of US$1 million and the parties would enjoy “profit share in the sales of the stock allotted by Telecel to Maxifix” - after registration of the Bond. The plaintiff could thus only claim as it did in the above letter after registration for the Bond.

On 5 August 2011, Gollop and Bank addressed another letter, this time to the third defendant, which reads, in part:

“Maxifix approached Trinity with a proposal to share in the profit of the sale of the recharge cards/vouchers which were to be administered by Maxifix. The consideration to profit-sharing was dependant upon Trinity giving authority that its immovable property, 70 Woolwich Road, Willowvale, Harare be released to Maxifix so that it, in turn, could be handed over to Telecel who would register a bond over the property equivalent to the amount of the required security reflected in the principal agreement. Other undertakings by Maxifix are set out in the agreement attached to this letter.

Trinity advise that Maxifix have breached various terms and conditions of the agreement between them. In consequence, Maxifix has been put on terms to remedy its default but thus far has neglected to do so. The Trinity bond's tenure in terms of clause 2 was for a period of 12 months. It is not known whether registration of the bond has taken place. Trinity have requested that steps be taken to cancel the bond which they assert has been registered in consequence of fraudulent representations, clearly evidenced by the default of Maxifix coupled with the conduct of the Managing Director…,.

Are you in a position to confirm whether a bond has been registered in Telecel's favour over Trinity's property? If so, would Telecel agree (to) the cancellation of the bond and return of title to Trinity?”

Of course, the plaintiff may have been laying the groundwork for litigation and experienced legal practitioners give away very little, but rocket science is not required to decipher what was happening here because there can only be one interpretation that can be assigned to this letter. It is that the plaintiff was aware that the Bond was either in the process of being registered or it had been registered hence the need to have it cancelled. Significantly, there is no mention whatsoever of the signature having been forged. In fact, the gist of the “fraudulent representations” was not forging the signature but the default of the second defendant coupled with the conduct of Russell Karimazondo which prompted the plaintiff to put the second defendant 'on terms to remedy its default.'

I therefore come to the inescapable conclusion that the plaintiff agreed to the registration of the bond and that Senator Aguy Clement Georgias signed the documentation to make this possible.

When the second defendant failed to honour its side of the bargain, and realising what a bad business decision it had made, the plaintiff resorted to disowning the Bond.

HB20-16 : JOHN MASEKO vs NOMUSA NDLOVU
Ruled By: MATHONSI J

The plaintiff's claim is based on a handwritten document signed by the defendant on 14 June 2014 before three witnesses who have not been called upon to submit affidavits on the circumstances under which the document was signed - even after the defendant alleged that undue influence was brought to bear upon her to ...

HH749-15 : ALAN BRIGGS vs LAWRENCE BILLIATI and MINESACK INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

It is signed, allegedly, by Alan Briggs and Lawrence Billiati, on 10 October 2013 - which signing was not witnessed….,. The defendant has denied any indebtedness to the plaintiff in the amount claimed or at all. They deny that the first defendant's signature is appended on the documents relied upon which they claim are ...

HB77-16 : TRIANIC INVESTMENTS (PVT) LTD and REOUVEN DRAY vs NQOBILE KHUMALO and FRANCISCA MUFAMBI and THE SHERIFF OF ZIMBABWE, BULAWAYO
Ruled By: TAKUVA J

As regards issue (a)…, that the application is tainted with fraud in that Mr Chikarara's (the deponent) signature on the documents filed is different, while it is true that viewed with a naked eye, Mr Chikarara's signature on page 11 is different from that on page 38, that does not amount to proof of ...

HH49-15 : AMEN SITHOLE vs RINNEX OIL (PVT) LTD
Ruled By: ZHOU J

A payment of $800=, contained in a cash payment voucher no.303, dated 24 December 2010, is not signed for. There is no name written where it states: 'Collected by:' There is therefore no proof that it was paid to the plaintiff or received by him or by some other person on his behalf.

HH57-15 : MACRO PLUMBERS (PVT) LTD vs SHERIFF OF ZIMBABWE N.O. and OWEN CHIGOYA
Ruled By: MATHONSI J

The second point taken in limine on behalf of the applicant is that there is a marked difference in the signature of the second respondent as appears in the opposing affidavit and as appears in the founding affidavit supporting the application for registration of the arbitral award in HC596/12. Again, one is forced to ask the question: So what? A person cannot ...

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

The plaintiff did not provide a sample of Gladys Mutasa's signature nor call expert evidence of a questioned document examiner.

CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS
Ruled By: MALABA CJ

One does not ordinarily append one's signature to a document the contents of which do not represent one's interests. The signature is in itself evidence, in the absence of anything of stronger probative value to the contrary, of the fact that the contents of the document express the true intention of the signatory. In the circumstances, the author ...

HH124-15 : RIMUKA ISLAMIC SOCIETY vs ENOCK MWASHUHWA
Ruled By: ZHOU J

In the absence of signatures it is difficult for the court to accept that the persons whose names are listed attended the meeting and made the resolutions attributed to them.

HH255-14 : FUNGAYI J. NYEMBA vs CBZ BANK and PRAISE PETROLEUM (PVT) LTD and CROSLEY MASHIRI and NOVELTY MASHIRI and FARAI NYEMBA
Ruled By: MATHONSI J

I had occasion, in Nyika v Moyo Anor HB145-10..., to cite with approval the following passage in R H CHRISTIE, Business Law in Zimbabwe...,; “The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract and if this principle were ...

HB236-16 : MERCY MAZVITA NYAMANHINDI vs GIFT CHIVHURAWA
Ruled By: BERE J and MATHONSI J

Parties who are quick to sign documents acknowledging indebtedness must know that first and foremost, the law accepts that they are bound by whatever appears above their signature on the basis of the caveat subscriptor rule. If they allege duress in appending a signature they must satisfy the requirements of the law for vitiating consent to a contract, ...

HH394-13 : SAMUEL MUGANO vs FINTRAC and ZFC LIMITED and ROYAL BANK OF ZIMBABWE
Ruled By: TSANGA J

The first respondent has indicated its willingness to avail its two employees as witnesses as it is unable to deny whether or not they witnessed the document in question….,. Furthermore, since the applicant says he never signed the surety document in question and says the signature is not his, I would imagine that the case calls the ...

SC12-19 : ALPHA MADZIMA vs MARANGE RESOURCES (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, MAVANGIRA JA and BHUNU JA

By appending his signature to the Letter of Undertaking, the appellant vouched for the truthfulness of the contents of the letter.

Appealed
SC14-19 : JUDITH ISHEMUNYORO (NEE MANDIDEWA) vs ANTHONY ISHEMUNYORO and TYNSERVE DISTRIBUTORS (PVT) LTD and THE REGISTRAR OF DEEDS and THE SHERIFF FOR ZIMBABWE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and ZIYAMBI AJA

A perusal of the Deed of Suretyship shows that what the first respondent did was bind himself as surety and co-principal debtor with his company, Manyene Trading (Pvt) Ltd, for the due payment of its debt to the second respondent. It is noted that the Deed of Suretyship purports to have been entered into and signed for ...

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

In this case, the authenticity of the written agreement allegedly entered into by the parties' late husbands was in issue. No handwriting expert was called. The onus was on the appellant, as defendant, to prove that the agreement was genuine. She did not discharge that onus. The court a quo had no choice but to make its own ...

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

It is not in dispute that the appellant signed a surety document. It is also not in dispute that it was the appellant who wrote his name and that of Shadreck Mawire on the surety document. Further, the appellant is the one who entered the name Nyamapanda Service Station on the document. Having done so, ...

It seems to me that the appellant could only have escaped liability if, having realized that he had signed a document on behalf of someone he had not intended, he had sought to rectify the surety document. The remedy for persons who find themselves in a position that the appellant purports to have been, that of signing a document thinking that it is meant for one thing when in actual fact it means another, is the defence of rectification. According to CANEY LR, FORSYTH CF and PRETORIOUS JT, Caney's The Law of Suretyship in South Africa, (Juta and Co, 2010)…, “extrinsic evidence…, in regard to the central issue of consensus may be admissible when one of the parties seeks rectification of the suretyship document.”

In the case of Northern Cape Co-operative Livestock Agency Ltd v John Roderick and Co Ltd 1965 (2) SA 64 (O) it was stated that, with rectification, the party seeking to have the contract rectified claims that the contract does not reflect what the parties agreed on and seeks to have the matter put right.

Clearly, this is a matter of evidence….,.

The appellant could have led evidence in order to rectify the agreement but chose not to do so….,.

In the case of Tesoriero v Bhyjo Investments Share Block (Pty) Ltd 2000 (1) SA 167 the court held as follows:

“Where a party who has signed a contract wishes to escape liability on the ground of justified error as to the nature or contents of the document he must show that he was misled as to the nature of the document or as to the terms of which it contains by some act or omission of the other party.”

In the case of Langeveld v Union Finance Holdings (Pty) Ltd 2007 (4) SA 572 (W), the court held that the onus was on a surety to prove that he was not aware that he was signing a document as a surety.

The court further held that there was a strong praesumptio hominis that anyone who has signed a document, has the animus to enter into the transaction, and, this person was burdened with the onus of convincing the court that he or she had not in fact entered the transaction.

View Appeal
HH222-16 : TOTAL ZIMBABWE (PVT) LTD vs RONALD BAKARI
Ruled By: DUBE J

Where a person has signed a document to enter into a transaction which he later challenges, he is required to explain to the court why he asserts that he did not intend to enter into the transaction….,. The defendant is bound by what he gave out and signed for. A man who signs a contract is taken ...

SC30-19 : BRITISH AMERICAN TOBBACO ZIMBABWE vs JONATHAN CHIBAYA
Ruled By: GARWE JA, GOWORA JA and MAVANGIRA JA

The charge arose after it was discovered that there were two withdrawals of an amount of USD2,605= from the appellant's Standard Chartered Bank account on two occasions, namely, 18 May 2012 and on 31 May 2012 using one withdrawal instruction. The withdrawal of 18 May 2012 was authorised and was made by the respondent. The withdrawal of 31 May 2012 was unauthorised and was deemed fraudulent as the instruction used on 18 May 2012 was the same one which was used again to withdraw money on 31 May 2012. On the face of it, the latter withdrawal was also made by the respondent….,.

A disciplinary hearing was held and the Disciplinary Committee found the respondent guilty as charged on the basis of a forensic report by a forensic scientist, who, after analysing several samples of the respondent's signature, concluded that the signature on 31 May withdrawal slip was consistent with the respondent's standard signature….,.

Aggrieved…, the respondent further appealed to the NEC Grievance and Disciplinary Committee which upheld his appeal and set aside the order by the Works Council. The NEC Grievance and Disciplinary Committee's reasoning in arriving at this decision was that the only evidence which the appellant had relied on, namely, the handwriting expert's report, was unreliable as it was based on photocopies which do not clearly show some of the features and that therefore the appellant had failed to prove its case against the respondent….,.

The expert found that the signature on the withdrawal slip was the same as the appellant's standard signature. The expert's conclusion was based on an examination of photocopies and it was on this score that the respondent challenged the expert's finding as well as the fact that his true signature had no dots as reflected on the signature appearing on the photocopies….,.

Regarding the evidence of the handwriting expert, it is trite that expert opinion evidence is admitted in evidence to assist the court to reach a just decision by guiding the court and clarifying issues not within the court's general knowledge.

In Menday v Protea Assurance Co. Ltd 1976 (1) SA 565…, it was stated that;

“It is not the mere opinion of the expert witness which is decisive but his (or her) ability to satisfy the Court that, because of his (or her) special skill, training and experience, the reasons for the opinion which he (or she) expresses are acceptable.”

In R v Chidota 1966 (3) SA 428 (another criminal matter) the learned judge QUENET (JP) held that:

“Where the sole evidence concerning an accused with the commission of an offence is that of a handwriting expert, precaution should be taken to remove the possibility of error.”

It is trite that, in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion and simply adopt it without questioning or testing it against known parameters.

In S v Zuma 2006 (2) SACR 257, 263 the court held that the expertise of a professional witness should not be elevated to such heights that sight is lost of the court's own capabilities and responsibilities in drawing inferences from the evidence.

In casu, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent's signature. For that reason, the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.

HH654-14 : JAMES GUMBI vs MANDY MARGARET MAJONI
Ruled By: CHIGUMBA J

The plaintiff issued summons (Provisional Sentence on a liquid document), in Form number 5, on 29 September 2014, claiming payment of US$60,000= on the basis of an acknowledgment of debt dated 19 November 2013. The acknowledgment of debt was attached to the summons….,. The agreement was signed before two witnesses….,. It was submitted, on behalf of the plaintiff, that ...

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

HH79-12 : MARIANE SABETA vs COMMISSIONER GENERAL ZIMBABWE REVENUE AUTHORITY Ruled By: MATHONSI J

HH41-08 : ZODELLA ENTERPRISES (PVT) LIMITED vs LUXMORE NDENDA Ruled By: GOWORA J

Appealed HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS Ruled By: CHATUKUTA J

Appealed HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI Ruled By: BERE J

HH93-09 : HAVEN CHIKUMBU vs BRYDEN TECHINICAL SERVICES (PRIVATE) LIMITED AND THE REGISTRAR OF DEEDS AND THE DEPUTY SHERIFF FOR HARARE Ruled By: CHITAKUNYE J

HH107-09 : JULIA NDEMERA AND COSMAS NDEMERA vs SIPHELILE MOYO AND TAFADZWA CHITATE AND THE DEPUTY SHERIFF N O Ruled By: CHITAKUNYE J

HH111-09 : ELLEN SIMON vs FUNDA SAIMON Ruled By: KUDYA J

HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE Ruled By: CHITAKUNYE J

HH115-10 : NASSAH MUKOMBERANWA vs VIVIAN MOKOMBERANWA Ruled By: MUSAKWA J

HH161-10 : NEVER BVOCHORA vs DOUGLAS TOGARASEI MWONZORA (In his capacity as The executor Dative of the Estate Late I.V. Rukatya) Ruled By: HUNGWE J

HH147-10 : LAWRENCE SHUMBAYAONDA vs MADHATTER MINING (PRIVATE) LIMITED Ruled By: HUNGWE J

HH145-10 : TENDAI MUCHENJE vs G. AND M. PANEL BEATERS t/a SUPREME PANEL BEATERS & SPRAY PAINTERS Ruled By: CHITAKUNYE J

HH202-10 : OBRIDGE ENTERPRISES (PVT) LTD vs PULWICK ENTERPRISES (PVT) LTD Ruled By: KUDYA J

HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT Ruled By: MAVANGIRA J

HH240-10 : DOREEN SAGANDIRA vs PATRICK SAGANDIRA Ruled By: MAVANGIRA J

HB03-10 : SITHEMBILE SIBANDA vs PUMULO SAYELA and ESTATE LATE MFAKAZI NDLOVU and PLUMTREE TOWN COUNCIL and ASSISTANT MASTER OF THE HIGH COURT, BULAWAYO Ruled By: KAMOCHA J

HB41-10 : NQOBIZITHA MICHAEL DUBE vs SIPHIWE MTHUPHA and BULAWAYO CITY COUNCIL and THE REGISTRAR OF DEEDS Ruled By: KAMOCHA J

HB61-10 : LUXION TACHIONA and NONTOKOZO DUBE vs NATIONAL RAILWAYS OF ZIMBABWE Ruled By: NDOU J

HB145-10 : JANE NYIKA vs THEMBANI MOYO and ALPHEUS NCUBE and REGISTRAR OF DEEDS and CITY OF BULAWAYO Ruled By: MATHONSI J

HH09-13 : RUSITU AGENCIES (PRIVATE) LIMITED vs PETER FUNGAYI KANGARA Ruled By: MAVANGIRA J

HH36-11 : GENESIS VENTURES (PRIVATE) LIMITED vs ROLMAY TRADING (PRIVATE) LIMITED and LARDFAIR TRADING (PRIVATE) LIMITED Ruled By: BERE J

HH49-13 : FIRST CLASS ENTERPRISES (PVT) LTD vs TRYMORE MUCHINGAMI AND 2 OTHERS Ruled By: MATHONSI J

HH113-11 : ALSHAMS BUILDING MATERIAL t/a LLC (a company incorporated in the United Arab Emirates) vs TAPERA NYEMBA and CHRISTOPHER GOROMONZI and JOSPHAT SACHIKONYE Ruled By: KUDYA J

HH123-13 : AFRICAN BANKING CORPORATION OF ZIMBABWE LIMITED t/a BANCABC vs PWC MOTORS (PVT) LTD and PETER MARE and WONDER MARE and CHARLES MARE Ruled By: MATHONSI J

HH201-14 : CONSTANCE ZVAMAIDA MANDEWO vs CITY OF HARARE Ruled By: MAKONI J

HH338-14 : MAFIRAMBUDZI FAMILY TRUST vs LIBERTY MADZINGIRA and PANNAH NHIWATIWA and THE REGISTRAR OF DEEDS N.O. and THE SHERIFF Ruled By: TAKUVA J

HH568-14 : FBC BANK LIMITED vs DUNLETH ENTERPRISES (PRIVATE) LIMITED and DUNCAN MUKONDIWA and SINIKIWE MUKONDIWA and MARIAN SMEMELWANI MAPANDA and EVA MUZUVA Ruled By: ZHOU J

HB105-14 : MARIA MANOLAKAKIS vs ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER Ruled By: MAKONESE J

SC13-17 : ZIMBABWE UNITED PASSENGER COMPANY LIMITED vs PACKHORSE SERVICES (PRIVATE) LIMITED Ruled By: GARWE JA, GOWORA JA and MAVANGIRA AJA

SC60-17 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED vs JAFATI MDALA Ruled By: ZIYAMBI JA, HLATSHWAYO JA and GUVAVA JA

HB04-16 : PATIENCE MAFU vs FREEMAN BIBA NCUBE and THE BULAWAYO CITY COUNCIL Ruled By: MATHONSI J

HH672-15 : TRINITY ENGINEERING (PVT) LTD vs RUSSELL KARIMAZONDO and MAXIFIX (PVT) LTD and TELECEL ZIMBABWE (PVT) LTD and PEOPLE'S OWN SAVINGS BANK and THE REGISTRAR OF DEEDS Ruled By: MATHONSI J

HB20-16 : JOHN MASEKO vs NOMUSA NDLOVU Ruled By: MATHONSI J

HH749-15 : ALAN BRIGGS vs LAWRENCE BILLIATI and MINESACK INVESTMENTS (PVT) LTD Ruled By: MATHONSI J

HB77-16 : TRIANIC INVESTMENTS (PVT) LTD and REOUVEN DRAY vs NQOBILE KHUMALO and FRANCISCA MUFAMBI and THE SHERIFF OF ZIMBABWE, BULAWAYO Ruled By: TAKUVA J

HH49-15 : AMEN SITHOLE vs RINNEX OIL (PVT) LTD Ruled By: ZHOU J

HH57-15 : MACRO PLUMBERS (PVT) LTD vs SHERIFF OF ZIMBABWE N.O. and OWEN CHIGOYA Ruled By: MATHONSI J

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS Ruled By: KUDYA J

CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS Ruled By: MALABA CJ

HH124-15 : RIMUKA ISLAMIC SOCIETY vs ENOCK MWASHUHWA Ruled By: ZHOU J

HH255-14 : FUNGAYI J. NYEMBA vs CBZ BANK and PRAISE PETROLEUM (PVT) LTD and CROSLEY MASHIRI and NOVELTY MASHIRI and FARAI NYEMBA Ruled By: MATHONSI J

HB236-16 : MERCY MAZVITA NYAMANHINDI vs GIFT CHIVHURAWA Ruled By: BERE J and MATHONSI J

HH394-13 : SAMUEL MUGANO vs FINTRAC and ZFC LIMITED and ROYAL BANK OF ZIMBABWE Ruled By: TSANGA J

SC12-19 : ALPHA MADZIMA vs MARANGE RESOURCES (PRIVATE) LIMITED Ruled By: HLATSHWAYO JA, MAVANGIRA JA and BHUNU JA

Appealed SC14-19 : JUDITH ISHEMUNYORO (NEE MANDIDEWA) vs ANTHONY ISHEMUNYORO and TYNSERVE DISTRIBUTORS (PVT) LTD and THE REGISTRAR OF DEEDS and THE SHERIFF FOR ZIMBABWE Ruled By: GWAUNZA JA, HLATSHWAYO JA and ZIYAMBI AJA

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

Appealed SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

View Appeal HH222-16 : TOTAL ZIMBABWE (PVT) LTD vs RONALD BAKARI Ruled By: DUBE J

SC30-19 : BRITISH AMERICAN TOBBACO ZIMBABWE vs JONATHAN CHIBAYA Ruled By: GARWE JA, GOWORA JA and MAVANGIRA JA

HH654-14 : JAMES GUMBI vs MANDY MARGARET MAJONI Ruled By: CHIGUMBA J

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