Consensus Ad Idem re: Mistake, Error, Justus Error or Reasonable Mistake and the Language of Record

HH27-09 : ZIMRE PROPERTY INVESTMENTS LI MITED vs JOANDRISA ANIMAL FEEDS (PVT) LTD
Ruled By: UCHENA J

The applicant is the owner of premises known as Fidelity Life Towers. It bought the property from Fidelity Life Assurance of Zimbabwe Ltd, the previous owner. The respondent leased part of the 4th Floor of these premises from the previous owner. Clause 37 of the lease agreement provides for the termination of the lease agreement by ...

The applicant is the owner of premises known as Fidelity Life Towers. It bought the property from Fidelity Life Assurance of Zimbabwe Ltd, the previous owner. The respondent leased part of the 4^th Floor of these premises from the previous owner. Clause 37 of the lease agreement provides for the termination of the lease agreement by the new owner. It provides as follows;

“37(2) In the event of the Landlord disposing of the building, or the leased premises by sale, or if the building or the leased premises are owned by a company and the identity of the largest or majority shareholder changes, then, in such event, the Landlord or new Landlord as the case maybe, shall have the right to terminate the lease without compensation, on giving six months' written notice to the Tenant.”

The applicant bought the premises sometime in 2007. It therefore became the respondent's new landlord. It, in terms of clause 37.2, by letter dated 20 December 2007, gave the respondent notice to vacate the premises by 31 March 2008. The notice period was to run from 1 January 2008 to 31 March 2008. It specifically advised the respondent that it was giving it notice of three calendar months.

The respondent, by letter dated 27 March 2008, from its legal practitioners to the applicant, acknowledged the fact that the applicant had taken over the ownership and management of Fidelity Life Tower House. It pleaded with the applicant as follows;

“We have been instructed to plead with you for and on behalf of our client as we hereby do that you allow our client to remain in occupation of the building for a further period of six (6) months so that our client can secure alternative office space. Should our client be able to secure alternative space earlier our client would (sic) advise accordingly and vacate your premises.”

Note that the respondent's response came four days before the date on which the applicant had required it to vacate the premises. It required the premises for a further period and had to plead for the three months notice to be extended.

The applicant, by letter dated 25 April 2008, declined to extend the notice period by six months but extended it by a further period of two months, commencing 1 April 2008 to 31 May 2008.

The respondent did not respond to this letter till 20 May 2008, when, through its lawyers, it advised the applicant that it had failed to secure alternative accommodation and sought the extension of its tenancy to 30 September 2008. The applicant, by letter dated 5 June 2008, advised the respondent that it could not grant its request.

It is common cause that the applicant did not give the respondent six months notice as provided by clause 37.2 of the lease agreement. In the absence of any written agreement between the parties altering the provisions of clause 37.2 the notice given by the applicant is invalid and of no force or effect. This is because clause 40.2 provides as follows;

“40.2 This agreement constitutes the whole of the agreement between the parties and no variations or collateral agreements shall be of any force or effect unless and until recorded in writing in a document or series of letters signed by the parties.”

This means any variation or alteration of the terms of the agreement must be by agreement between the parties. The parties' agreement can be proved by each party signing the variation or collateral agreement or series of letters in which such an agreement can be found. In the absence of the above, the parties are bound by the terms of the original agreement.

Counsel for the applicant submitted that the parties agreed to depart from the terms of clause 37.2. He submitted that proof of such an agreement having been reached can be found in the correspondence exchanged by the parties. Counsel for the respondent disputed the existence of such an agreement.

An examination of the correspondence which has already been referred to clearly proves that the parties did not reach a final agreement on anything but continued to negotiate until they disagreed. In its letter of 27 March 2008 the respondent did not agree with the applicant's three months notice, as it sought its extension by a further six months. This proves that the parties were still negotiating as to the appropriate notice period. The applicant's response, of 25 April, did not agree with the respondent's request for a further six months but offered the respondent a further two months. They did not agree as a counter offer to the six months suggested by the respondent was countered by an offer to extend the period to 31 May 2008. By letter dated 20 May 2008 the respondent made a further counter offer by asking that its tenancy be extended to 30 September 2008.

There is therefore no series of correspondence through which the terms of clause 37.2 can be said to have been varied. It is common cause that there is no variation agreement.

Counsel for the applicant also submitted that the original right to six months notice was compromised by the respondent's agreeing to vacate, but pleading to be allowed to stay for longer than the three months given by the applicant because it needed time to secure alternative accommodation.

It is true that the respondent did not challenge the applicant's right to give it notice and to require it to vacate on the basis of a three months notice. It merely pleaded for the extension of the stated period to enable it to find alternative office space. The issue is not on whether or not the respondent conceded the applicant's right to give it three months' notice, but whether that acceptance was with the full knowledge of its right to insist on being given the six months notice provided for in clause 37.2.

The respondent, in its opposing affidavit, said it did not have the lease agreement when it responded to the notice through its legal practitioners. It states that it was, at that time, not aware of its entitlement to six months notice.

The issue is therefore whether or not the alleged compromise or waiver was an informed one.

A compromise is an agreement by the parties to abandon litigation or a disputed position of their rights in favour of the agreement to compromise. Each party alters its claim, rights or defence to reach a compromise. It must do so fully appreciating the rights it will be compromising on. It cannot be arrived at in error.

Counsel for the applicant referred me to the case of Georgious and Another v Standard Chartered Finance Zimbabwe Limited 1998 (2) ZLR 488 (S)…, where GUBBAY CJ said;

“Compromise or transactio is the settlement, by agreement, of the disputed obligations, or of a lawsuit the issue of which is uncertain. The parties agree to regulate their intention in a particular way, each receding from his previous position and conceding something - either diminishing his claim or increasing his liability. See Achalia v Har berev & Company 1905 TS 457 at 462 in fine; Tauber v Von Abo 1984 (4) SA 482 @ 485 G-J; Karson v Minister of Public Works 1996 (1) SA 887 E 893 F-G.

The purpose of compromise is to end doubt and to avoid the inconvenience and risk inherent in resorting to the methods of resolving disputes. Its effect is the same as res judicata on a judgment given by consent. It extinguishes ipso jure any cause of action that previously may have existed between the parties, unless the right to rely thereon was reserved. See Nagar v Nagar 1982 (2) SA 263 (ZH) 268 E-H.

As it brings legal proceedings already instituted to an end, a party sued on a compromise is not entitled to raise defences to the original cause of action.”

Counsel for the applicant however stopped the quotation just before he got to the crucial part for the determination of the dispute between the parties. Immediately after the above, GUBBAY CJ said;

“See Hamilton v Van Zyl 1983 (4) SA 379 (E) at 383H. But, a compromise induced by fraud, duress, justus error, misrepresentation, or some other ground for rescission, is voidable at the instance of the aggrieved party - even if made an order of court.”

It is therefore clear from Georgious and Another v Standard Chartered Finance Zimbabwe Limited 1998 (2) ZLR 488 (S) that a compromise cannot be based on “justus error.”

Counsel for the respondent submitted that the respondent was not, at the time it negotiated for the extension of the three months notice, aware that it was entitled to six months notice as it did not have its copy of the lease agreement. He therefore argued that it neither compromised nor waived its right to six months notice. He therefore relied on the defence of justus error and referred the court to the case of Hepner v Roodepoort - Maraisburg Town Council 1962 (4) SA 772 (A)…, where STEYN CJ said;

“There is authority for the view that in the case of waiver by conduct, the conduct must leave no reasonable doubt as to the intention of surrendering the right in issue. (Smith v Mombery (1895) 12 SC 295 at 304; Victoria Falls and Transvaal Power (Pvt) Ltd v Consolidated Langflaagte Mines Ltd 1915 AD 1 at 62); but, in Martin v De Kock 1948 (2) SA 719 (AD) at p 733, this Court indicated that, that view may possibly require reconsideration. It sets, I think a higher standard than that adopted in Laws v Rutherford 1924 AD 261 at 263 where INNES CJ said;

'The onus is strictly on the appellant. He must show that the respondent, with full knowledge of her right, decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it.'

This accords with the test applied in Kenny's case and was followed in Collen v Rietfontein Engineering Works 1948 (1) SA 413 (AD) at 436, and Linton v Corser 1952 (3) SA 685 (AD) at p 695, (CF Ellis and Others v Laubscher 1956 (4) SA 692 (AD) at p 702).

In my opinion. the test is more correctly stated in these cases.”

I respectfully agree with STEYN CJ's observations, the applicant in this case must, on the balance of probabilities, show that the respondent knowingly abandoned its right to insist on six months notice.

Counsel for the respondent also referred the Court to the case of Ex parte Sussens 1941 TPD 15…, where MURRAY J said;

“The necessity for the full knowledge of the law in the case of waiver follows from the principle that waiver is a form of contract in which one party is taken, deliberately, to have surrendered his rights; there must therefore be proof of an intention so to surrender, which can only exist where there is knowledge both of the facts and the legal consequences thereof.”

It is therefore clear that for the applicant's claim, that the respondent compromised or waived its right to six months notice to succeed, it must prove that it did so expressly or by conduct well knowing the facts and the legal effect of such compromise or waiver.

The facts of this case clearly demonstrate that the respondent persistently wanted more time in the premises, to the extent, of having to plead with the applicant for extensions. If it was aware of its right to six months notice would it have resorted to pleading instead of demanding that it be given the notice provided for by clause 37.2?

In my view, the respondent was, as it alleges, not aware of the facts on its rights to six months notice. It did not therefore knowingly compromise or waive its right to six months notice. There was, therefore, no compromise or waiver of its right to six months notice. It simply responded erroneously believing the applicant's misleading notice to be in accordance with the lease agreement. There was therefore a common error between the parties. If the applicant could itself be in error as to the correct notice period, why should the respondent not be believed when it says it fell into the same error because it did not have a copy of its lease agreement.

I find the respondent's explanation consistent with a mistaken belief that it had been given adequate notice hence the plea for the extension of the notice period.

In the result, the applicant's application is dismissed with costs.

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

The plaintiff sues for the eviction of the defendant from her plot while the defendant counter-sues for the transfer of title, rights and interest in a portion of the same plot….,.Exhibit 1A is a pro forma of an affidavit that is sold at Kingstons Booksellers and Stationers….,. The plaintiff purportedly ...

HH160-09 : SMART GONONDO vs ALICE MUTEPFA and PORTIA NYAMAROPA and CITY OF MUTARE (DIRECTOR OF HOUSING)
Ruled By: MAVANGIRA J

On 15 November 1996 the applicant and the first respondent entered into an Agreement of Sale in terms of which the applicant purchased from the first respondent an immovable property known as Stand No.6670 Chikanga 3, Mutare. The purchase price was agreed at $18,000=. Of this amount, $10,000= was paid on the date of the signing of the agreement, being 15 November 1996, as recorded in clause 1 of the agreement.

In terms of clause 2 of the agreement, commencement of payment of the balance of the purchase price, in the sum of $8,000=, was to be paid after a grace period which extended from the date of signature up to 30 June 1997. A monthly payment of $750= was to be made with effect from 1 July 1997, and, thereafter, the same amount was to be paid by the first day of each succeeding month until full payment was made.

In terms of clause 3, the seller, being the first respondent, was to deliver vacant possession of the property to the buyer, that is the applicant, within 7 (seven) days from the date of payment of the final instalment. Transfer of the property to the purchaser was to be effected at the same time.

In terms of clause 4, the purchaser was to pay all charges in respect of the property with effect from the month of December, presumably of the year 1997, onwards. The purchaser was also required to develop the property to the level or stage at which the third respondent would approve transfer (cession) of the property, in terms of its by-laws.

In terms of clause 5 of the agreement, the purchaser would pay the monthly instalments into the seller's POSB account, the details of which account would be furnished to the purchaser by the seller. The clause then further provides as follows:

“This is the only agreement the parties will go by and no other whatsoever unless this agreement is expressly and in writing otherwise amended or replaced.”

The concluding paragraph is to the effect that the meaning and import of the agreement has been explained to the parties in the Shona language and they have understood the same.

HB24-09 : SIKHULILE MOYO vs THABANI KHUMALO and ESTATE LATE SIBONILE MLILO (represented by Bongani Ndlovu) and ASSISTANT MASTER OF HIGH COURT, BULAWAYO and CITY OF BULAWAYO
Ruled By: CHEDA J

This is an application for an enforcement of a contract. The first respondent is Thabani Khumalo, a male adult who is in the business of contracting, acquiring and developing residential Stands for sale. He resides at House No.8774 Cowdray Park, Bulawayo, which is his address for service. The second respondent is the Executor in the Estate of the ...

This is an application for an enforcement of a contract.

The first respondent is Thabani Khumalo, a male adult who is in the business of contracting, acquiring and developing residential Stands for sale. He resides at House No.8774 Cowdray Park, Bulawayo, which is his address for service.

The second respondent is the Executor in the Estate of the Late Sibonile Mlilo, cited as such in his official capacity. His address for service is Chelmsford Executors and Trust (Pvt) Ltd, Suite 112, 1^st Floor, Parkade Centre, Fife Street, Bulawayo.

The third respondent is the Assistant Master of the High Court of Zimbabwe, Bulawayo, cited in his official capacity as a responsible authority over matters to do with, amongst other things, deceased estates administration. He is overseeing the winding up of the estate of the late Sibonile Mlilo registered in his office under DRBY 267/08.

The fourth respondent is the City of Bulawayo, a municipal body established by law and under whose jurisdiction the property in question presently falls. Its administrative officers are located at the City Hall, Bulawayo, which will be its address for service.

The salient facts of this matter are that the applicant and the first respondent entered into an agreement of sale wherein the first respondent sold and the applicant bought Stand No.5495 Cowdray Park, Bulawayo for $224 billion as the purchase price. The first respondent initially acquired the Stand from one Sibonile Mlilo who has since died and her estate is being handled by the second respondent.

The purchase price was fully paid.

As an indication of his commitment to the agreement, the first respondent handled the agreement between himself and the late Sibonile Mlilo together with the Registration book of his motor vehicle.

All was well until the first respondent began advising the applicant and her husband of his intention to cancel the agreement of sale. The reason for the cancellation is that the purchase price was no longer enough for him to purchase a developed Stand, but, rather, enough to purchase an undeveloped Stand.

Upon receipt of these threats, the applicant applied for an urgent chamber application and obtained a provisional order interdicting the first respondent from selling or transferring the property to any other person pending the finalization of the dispute which first the respondent opposed.

In his opposition, the first respondent argues that the applicant should have, in this urgent application under discussion, disclosed that there was a dispute relating to the estate which was raised at the edict meeting. For that reason, the matter cannot be resolved on the papers. He, however, did not tell the court, what this dispute was about.

It is necessary for the first respondent to have disclosed the nature of the dispute in order to enable the court to assess whether it is the kind of dispute which would necessitate a referral to trial.

The legal position with regards to referral of a matter brought to court by way of an ex parte application is that such a matter can be determined on the basis of affidavits filed of record as long as there is no dispute of facts. In the event of the existence of dispute of facts, the said facts should be such that the matter cannot be determined without resort to oral evidence.

The issue then is; is this the kind of matter which can be resolved on the papers? In my view, it can be.

The dispute, as referred to by the first respondent, is the edict meeting which does not tell the court much. The hurdle as to implementation of this agreement is as a result of the first respondent's second thought about the purchase price.

He freely priced this property and an agreement was reached on that basis. The purchase price was subsequently fully paid. What is left for him is to be honourable enough and fulfil his part of the contract.

The facts are, therefore, very clear, there are no facts which require oral evidence in this matter. The fact that he unilaterally made a mistake about the purchase price, by reason of miscalculation in view of the prevailing inflationary environment is not a legal reason which can justify his resiling from this contract.

This principle was clearly laid down in University of Zimbabwe v Gudza 1996 (1) ZLR (S)…, quoted with approval in Smith v Zesa 2003 (1) ZLR 158 where PARADZA J stated:

“Where an offeror mistakenly makes an offer that is accepted by the offeree, the offeror will only be able to rescind the contract if -

(a) The offer was induced by fraudulent misrepresentation by the offeree; or

(b) The mistake was a material one the offeree knew or ought to have known that the offer had been made in error.”

This was not the position in the present case.

There is no legal justification for the cancellation of this contract. The only reason for the first respondent's conduct is the desire to catch up with the ever escalating cost of immovable properties. This, however, is not a good reason which can justify the cancellation of the contract.

It is not the applicant's duty to educate him about the pitfalls of a failure to foresee economic downturns or upturns in life.

The applicant, as such, was an innocent purchaser and needs to be protected….,.

The provisional order granted on the 2^ndofJuly 2008 be and is hereby confirmed and the following order is made:-

(a) That the first respondent, or, in the alternative, the second respondent, be and is hereby ordered to cede the property called Stand No.5495 Cowdray Park, Bulawayo to the applicant or her duly authorized nominees or agents.

(b) That failing the above the Deputy Sheriff, Bulawayo be and is hereby given leave to do all such things in his powers as to cause the property to be ceded to the applicant by signing all necessary papers at the offices of the fourth respondent.

HH251-10 : STEPHEN PASIPANODYA (In his capacity as the executor in the estate of the late Edna Pasipanodya) vs TRACY RUWIZHI and THE DIRECTOR OF HOUSING MUNICPALITY OF CHITUNGWIZA
Ruled By: BHUNU J

The plaintiff, Stephen Pasipanodya, in his capacity as the executor to the estate of the late Edna Pasipanodya, issued summons against the late Betty Ruwizhi in her capacity as the successor to the estate of the late John Ruwizhi, and the Director of Housing Municipality of Chitungwiza, on 18 November 2003 claiming cession of rights over Stand Number 11192 Rusununguko, Zengeza 4, Chitungwiza, certificate of occupation of the same, an eviction order against the late Betty Ruwizhi and all those claiming occupation through her and costs of suit.

On the other hand, upon Betty Ruwizhi's demise, Tracy Ruwizhi, the daughter of the late John Ruwizhi, was duly appointed as executor to his estate.

The basis of the plaintiff's claim was that he had inherited the property from his late aunt one Edna Pasipanodya.

The plaintiff's claim was vigorously resisted on the basis that the late John Ruwizhi had duly purchased the property from the late Edna Pasipanodya.

When the matter came before me for trial, on 31 May 2010, the plaintiff testified that the matter had, in fact, been amicably settled between him and Tracy Ruwizhi. In short, all what he was seeking now was enforcement of the settlement terms.

It is common cause that the parties hammered out a verbal agreement to settle out their dispute. The terms of the agreement were later reduced to writing but the written document was only signed by the first defendant. The purported settlement document reads as follows -

“________________________________________________________

By Consent

_______________________________________________________

The parties have agree(d) as follows:

(a) That the first defendant shall pay the plaintiff US$9,000= (nine thousand dollars).

(i) $6,000= against the signing of the agreement.

(ii) The balance of $3,000= shall be paid in two installments of US$1,500= each.

(b) That within 48 hours (forty-eight) hours the payment of the US$6,000= the plaintiff and the defendant shall attend at the offices of the second defendant to effect cession in favour of the first defendant of the right, title and interest in Stand 1192 Rusununguko Road, Zengeza 4, Chitungwiza.

In fulfillment of that Settlement Agreement the first defendant proceeded to deposit the amount of US$9,000= into the plaintiff's trust account with his legal practitioners.

Upon payment of that amount the parties proceeded to the second defendant's offices with a view to effect cession in terms of the Settlement Agreement. Upon perusal of the file kept at the first defendant's offices in respect of the property in question the first defendant stumbled upon written documents to the effect that John Ruwizhi had, in fact, paid the whole purchase price to Edna Pasipanodya before their demise. Edna Pasipanodya had acknowledged receipt of the full purchase price in consequence whereof she had completed the necessary forms to effect cession to John Ruwizhi.

The first defendant sought to resile from the Settlement on two grounds. Firstly on the grounds of duress and, secondly, that the Settlement Agreement was induced by a common error to both parties….,.

Turning to the question of error, the first defendant appears to be on firmer ground.

It is clear that had she known beforehand of the existence of the contractual and official documents tending to show that the whole purchase price had in fact been paid, she would not have entered into the Settlement Agreement. For that reason alone I hold that the Settlement Agreement was vitiated by error and to that end null and void. That being the case, there is no basis upon which the plaintiff's legal practitioners can continue to hold onto her money when the reason for which they have been holding onto the money has fallen away.

It is accordingly ordered:

1. That the plaintiff's claim that the matter has been settled be and is hereby dismissed.

2. That the plaintiff's legal practitioners be and are hereby ordered to refund to the first defendant the US$9,000= paid by her into their trust account.

3. That costs be costs in the cause.

HB72-10 : ETTAH NCUBE and CAIN MOYO vs JOEL NCUBE and JULIUS SIBANDA and DEPUTY SHERIFF
Ruled By: NDOU J

Apart from the above alleged duress, it can be discerned from the plaintiff's testimony that she implies that she signed the Agreement of Sale at the offices of Cheda and Partners Legal Practitioners mistakenly. She said in her mind the meeting was about the improvements that the first defendant had made on the disputed property. She ...

Appealed
HH183-14 : MUGUMBATE KENNETH and GOHODZI GOHODZI and MASINIRE RICHARD and MATEKU FUNGISAI and MLAMBO TINASHE and NYAMUZIWA RINASHE vs UNIVERSITY OF ZIMBABWE
Ruled By: MAFUSIRE J

The respondent's decision to downgrade the diploma course from being a postgraduate diploma to a mere diploma, whatever its real reasons had been, could not apply retroactively. If it had been an error, which I reject it was, then it was not a justus error, namely, a reasonable mistake that reasonably might have been induced ...

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

The requirements for this defense, of unilateral mistake, to succeed are stated in National and Grindlays Bank Limited v Yelverton 1972 (1) RLR 364…, where it says: “…, for the defense of justus error to succeed, he must prove that the error was reasonable and justifiable and on a material matter.”…,. Unilateral mistake occurs where ...

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

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 ...

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ

In Chidziva Ors v Zimbabwe Iron Steel Co Ltd 1997 (2) ZLR 368 (SC) muchechetere ja said…,: “In the present case, no real attempt was made to show that the appellants abandoned their rights with full knowledge of those rights. All that was submitted was that the appellants accepted the retrenchment packages. The respondent should have ...

In Chidziva & Ors v Zimbabwe Iron & Steel Co Ltd 1997 (2) ZLR 368 (SC) muchechetere ja said…,:

“In the present case, no real attempt was made to show that the appellants abandoned their rights with full knowledge of those rights. All that was submitted was that the appellants accepted the retrenchment packages. The respondent should have gone further to show that they did this with full knowledge that they were abandoning their rights. On this, I also cite, with approval, the passages at p489 of Christie's above cited book (The Law of Contract in South Africa, 3ed) where the learned author said:

'…, there is ample other authority that it must be clearly proved that the person who is alleged to have waived his rights knew what those rights were. A party who fails to prove this necessary ingredient of waiver may still be able to raise the defence of estoppel against any attempt to enforce the rights in question. When it cannot be proved that the party alleged to have waived knew what his rights were it may appear that his ignorance is properly classified as ignorance of law. It can now be regarded as settled, despite van den Heever j's decision to the contrary in Schwarzer v John Roderick Motors (Pty) Ltd 1940 OPD 170 at 185, that in this connection ignorance of the law is excusable provided it is iustus et probabilis' - justifiable and probable. This is especially so since Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A) which equates mistake of fact and mistake of law for purposes of the condicto indebiti; Murray j's words, in Ex p Sussens 1941 TPD 15 at 20, may be taken as a correct statement of law:

'The necessity for a full knowledge of the law in the case of waiver follows from the principle that waiver is a form of contract, in which one party is taken deliberately to have surrendered his rights: there must therefore be proof of an intention as to surrender, which can only exist where there is knowledge both of the facts and the legal consequence thereof.'

The necessity to prove knowledge of the rights allegedly waived, before it can be said that conduct in question amounts to waiver, applies equally to a case where the act of alleged waiver has been performed, not by the party to the contract himself, but by his agent (Pretorius v Greyling 1947 (1) SA 171 (W) at 177)'.”

Appealed
SC43-19 : AFRASIA BANK ZIMBABWE LIMITED (IN LIQUDATION) vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

The court a quo further found the mistake common to the parties, as alleged by the appellant, had not been established.

View Appeal
HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

The plaintiff does not deny that all the loan agreements state that the principal debtor is Stir Crazy Group of Companies but avers that this was a non-material error common to the parties and which does not vitiate their consensus….,. It cannot be denied that, on the face of the documents in the record, the loan agreements ...

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against the judgment of the High Court, Harare handed down on 13 July 2005 in which the High Court granted with costs an application by the respondents declaring, inter alia, that they were entitled to payment of a mileage allowance of 4,000 kilometres per month calculated at the Automobile Association of Zimbabwe (AAZ) rates.

The facts of this case are these:

The respondents were employed by the appellant as Assistant Director, Credit Risk and Assistant Director, Debt Recovery, respectively. Both respondents signed revised contracts of employment in the year 2000 which stipulated their conditions of employment. The contract of employment provided, in paragraph 3, as follows:

“3. Motor Vehicle Use

You are entitled to the use of an Agribank company car under the prevailing terms and conditions. You are required to familiarize yourself with the existing rules and regulations for the use and disposal of the motor vehicle.

Or

You are entitled to purchase a motor vehicle under the prevailing motor vehicle scheme. You will use the car for business and claim in accordance with the existing rules and as amended from time to time. You are also entitled to a mileage allowance based on a mileage of 4,000 kilometres per month at the applicable standard AAZ rates.”…,.

The underlined portion of paragraph 3 is at the centre of the dispute in this matter.

By letter dated 30 August 2001, the appellant's Human Resources Manager wrote to the respondents advising them that, following the restructuring of management grades, the appellant's Board had approved the conversion of the company car scheme to a personal car scheme under the managers and field staff motor vehicle scheme with effect from 1 September 2001.

The conversion to a personal car scheme was done without reference to the respondents.

The conversion meant that the use of a company car was being done away with and the respondents would no longer access fuel and other facilities previously offered by the Bank in this regard. The respondents were offered a loan equivalent to the purchase price of their existing company vehicles and a monthly allowance of $30,300 to assist in “the cost of running the motor vehicle.”

It appears the respondents were not happy with the conversion to the new scheme, and, on 3 September 2001, wrote a letter to management raising various issues on the matter and threatening legal action because of what they perceived as a breach of contract.

One of the issues raised was their entitlement to an allowance based on a monthly mileage of 4,000 kilometres.

The response by the Managing Director of the appellant was that such an allowance “would ultimately be too expensive for the Bank to sustain” and that the change had been “influenced by the magnitude of the vehicle allowance cost and its sustainability.”

Thereafter, the parties engaged in considerable exchange of correspondence on the matter. The respondents continued to insist that they were entitled to the allowance. The appellant maintained that it could not justify payment of such a huge allowance.

The appellant eventually stated, by letter dated 14 April 2004, that the allowance had been included by mistake and that the intention had been to allow the respondents to use their personal vehicle and submit claims for such use under the Bank's prevailing terms and conditions.

In June 2004, the respondents then filed a court application seeking, inter alia, a declarator that they were entitled to payment of the allowance.

After hearing both parties, the High Court granted the application with costs. It is against that decision that the appellant has appealed to this Court.

The decision of the court a quo is attacked on four bases. These are:

(i) Firstly, that the court a quo erred in finding that the inclusion of the allowance in question was not the result of a mistake;...,.

THE DEFENCE OF MISTAKE

It is the appellant's contention that the allowance was never intended and that it was inserted by mistake.

If, so the appellant argues, the allowance were to be paid, this would result in the respondents being paid twice in the sense that they would be entitled to motor vehicle loans to purchase motor vehicles, and, at the same time, receive allowances for the use of the same vehicles based on a monthly mileage of 4,000 kilometres at standard Automobile Association of Zimbabwe (AAZ) rates.

A party to a contract relying on an error of judgment, who can go further and show that, at the time of the contract, he was labouring under some mis-apprehension, may escape liability under a contract.

The onus, however, is not easy to discharge. As stated by R H CHRISTIE in the Law of Contract in South Africa, 3ed, p353:

“Unless the mistaken party can prove that the other party knew of his mistake, or that, as a reasonable man, he ought to have known of it, or that he caused it, the onus of showing that the mistake was a reasonable one justifying release from the contractual bond will not be easy to discharge.”

The learned author continues at p354:

“However material the mistake, the mistaken party will not be able to escape from the contract if his mistake was due to his own fault. This principle will apply whether his fault lies in not carrying out the reasonably necessary investigations before committing himself to the contract…, and, in fact, in any circumstances in which the mistake is due to his own carelessness or inattention, for he cannot claim that his error is iustus.”

In responding to concerns by the respondents that the appellant had breached the contract of employment, the Managing Director of the appellant made it clear that the appellant had made a mistake as it could not justify these allowances or sustain them. He went on to state that the allowance was almost equivalent to the respondents' monthly salary and was, by implication, too high.

The trial court observed that during a period of two years and eight months the appellant had not, at any stage, alluded to the possibility of such an allowance having been included by mistake. He noted that the appellant made this assertion for the first time on 14 April 2004.

The trial Judge remarked as follows on pp3-4 of the judgment:

“As can be seen from the above memorandum, the respondent was then being categoric that it had made a mistake - a thing it failed to do during the couple of times the matter had been brought up since 3 September 2001.

The matter would not have dragged this far if the respondent had stated, the first time the matter was raised, that the inclusion of the allowances was a mistake.

The suggestion, in the memorandum, that the allowances whose payment the applicants sought, were not intended, and the Bank did not regard them as part of the applicants' contract, is simply untenable. If the respondent did not intend the allowances to be part of the contract, it would have removed them from the contract document at the time it amended the contract by removing the first option which related to the use of company vehicles.

Further, when one examines the contract document filed of record, it reveals that 4,000 kilometres was handwritten while about 99% of the document was type-written. There are also some figures that were hand-written, such as the salary, annual bonus, clothing allowance, the vacation and occasional leave etc. There can be no doubt that these were inserted into the blank spaces after careful thought. It seems to me that the same applies to the 4,000 kilometres.

The suggestion, therefore, that the inclusion of the entitlement of a mileage allowance based on mileage of 4,000 kilometres per month at the applicable standard AAZ rates, was inserted by mistake, is equally untenable.

If at all it had been a mistake, the respondent would have immediately realized it and would have said so when the applicants first raised the issue on 3 September 2001 failing which the respondent would have realized and said so at any other subsequent occasion the applicant raised it in 2001 or early 2002 or even 2003.

It therefore seems to me that if at all the respondent had made a mistake then such mistake was grossly unreasonable.”

I am inclined to agree with the above observations.

It is apparent, in this case, that when the appellant made provision for this allowance in the contract of employment there was no question of mistake at that stage. That allowance was what the appellant was prepared to offer the respondents. Later, however, the appellant had a change of heart because of the amounts involved which were calculated using Automobile Association of Zimbabwe (AAZ) rates. It considered the allowances as too high and unsustainable.

The position is now settled that an offeror cannot escape liability by establishing that he has made a wrong offer which was accepted: University of Zimbabwe v Gudza 1996 (1) ZLR 249 (S)…,.

The offeror will not be permitted to rely on the absence of the consensus if the mistake was due to his own carelessness: University of Zimbabwe v Gudza 1996 (1) ZLR 249 (S)…,.

I accordingly reject the appellant's argument that the court a quo erred in rejecting its claim that the allowance had been inserted by mistake.

Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

INTRODUCTIONThis appeal arises from the judgment of the High Court in which the court a quo ordered the appellant to pay the respondent the sum of US$89,000 with interest at the prescribed rate calculated from 11 December 2012 to the date of full payment.The appellant is a gold mining company. ...

INTRODUCTION

This appeal arises from the judgment of the High Court in which the court a quo ordered the appellant to pay the respondent the sum of US$89,000 with interest at the prescribed rate calculated from 11 December 2012 to the date of full payment.

The appellant is a gold mining company. It is registered in terms of the laws of Zimbabwe. It owns a gold mine located in Shurugwi (Sky Rocket 16485).

The respondent is a private individual of Chinese origin. He is a foreigner investor based in Zimbabwe.

BACKGROUND FACTS

On 13 January 2011, the appellant and the respondent entered into a joint venture agreement. In terms of the agreement, the parties would constitute a new company. The appellant would provide mining claims and the respondent would be responsible for exploration and providing investment of capital and equipment in respect to the mining venture.

In terms of the agreement, the respondent would get 75 per cent and the appellant 25 per cent of the proceeds from the mine.

The respondent was obliged to grant a loan to the new company in the sum of US$150,000. The loan was to be paid back to the respondent through deductions from profits that would accrue to the appellant when such profit was realized by the company.

The respondent had to pay a down payment in the sum of US$50,000 within ten days of coming into effect of the agreement. In return, the appellant would give the respondent 'blocks of claims' certificate and the company certificate “after agreement of signature of ten days.” (sic)

The new company was to be established before 1 March 2011, and, thereafter, the respondent would pay the remaining US$100,000 to the appellant within ten days after 1 March 2011.

Failure by the respondent to bring reasonable mining equipment and to have the project take off by July 2011 would entitle him to be paid back the loaned amount within six (6) months.

Following signing of this agreement, the respondent, through his erstwhile legal practitioners, wrote a letter to the appellant dated 13 May 2011. In this letter, the respondent informed the appellant that there was a misconception on the terms and conditions of the agreement which had been agreed to by the parties on 13 January 2011. As such, the respondent informed the appellant that he was cancelling the agreement and demanded a refund of the sum of US$88,099 which he had paid to the appellant as a loan amount in terms of the agreement.

Following the letter cancelling the agreement, the parties thereafter entered into a new agreement on 3 October 2011.

In terms of the new agreement, the appellant admitted that it owed the respondent the sum of US$89,000. It was also agreed that the full loan amount, as agreed by the parties, was US$150,000.

It was further agreed that the respondent would recover the loan amount through a tribute to operate and extract ores from the mine. The respondent was to take over the appellant's workers and general control of the mine and recover the amount due to him.

Payment of the loan balance of US$61,000 was to be made before the respondent could take up occupation of the mine.

On 11 December 2012, the respondent issued summons against the appellant claiming the sum of US$89,000 being the amount advanced to the appellant as well as interest at the prescribed rate and cost of suit.

In his declaration, the respondent averred that the new agreement between the parties did not come into fruition due to the appellant's (represented by Philemon Mubata who was cited as the second defendant a quo) failure to perform in terms of the agreement by excluding him from the operations at the mine and using the loan contrary to the provisions of the agreement.

The respondent further averred that he had no choice but to cancel the agreement as the appellant had breached it.

In its plea, the appellant did not dispute entering into a joint venture agreement with the respondent but argued, instead, that, the respondent had not sought to recover his money by mining ore equivalent to the loan sum of US$89 000. It was the appellant's argument that according to the agreement, the appellant was entitled to six months in which to repay the loan. The appellant thus stated that the issuance of summons proceedings was premature.

On 20 November 2013, the appellant amended its plea and averred that the respondent had breached the agreement and failed to provide equipment necessary to carry out exploration work at the mine.

Following breach of the first agreement by the respondent, the parties entered into a second agreement.

The appellant further averred that the second agreement had a suspensive provision to the effect that the respondent had to pay the full amount of US$150,000 before he could recover his monies from production on the mine.

The appellant also filed a counter claim against the respondent with the amended plea for the sum of US$61,000 being payment of the balance of the loan in fulfilment of obligations which the respondent had undertaken in order to fulfill the terms of the agreement.

In response to that claim, the respondent alleged that a condition had to be satisfied, prior to the payment of the US$61,000, which condition was his involvement in management and operations at the mine at the inception of the loan agreement. The respondent averred that he was frustrated by the actions of the appellant. This was the reason why he failed to fulfill his obligation and led to the cancellation of the whole agreement.

PROCEEDINGS BEFORE THE COURT A QUO

At a Pre-Trial Conference, the agreed issues for determination were stated as follows:

“(a) Whether or not the plaintiff was, in accordance with the joint venture agreement, obliged to pay the sum of US$150,000 towards financing the gold mining venture.

(b Whether or not the first and second defendants frustrated the contract resulting in non-fulfillment of the terms and conditions of the agreement between the parties.

(c) Whether or not the first and second defendants were in breach of the fundamental terms of the agreement causing the plaintiff to cancel the whole agreement and demand repayment of the loaned sum of US$89,000.”

During the trial the respondent, Ms. Ding (his assistant at the time when the agreement was made) and one Mr. Wei Ren (the respondent's mining manager from 2005 to 2010-2011) gave evidence.

The three witnesses all testified to the effect that the appellant and respondent entered into two agreements which never materialized and that the appellant denied the respondent access to the mine so that he would recover his monies. Ms Ding further clarified that the second agreement was prepared by Mr Mubata. She denied that the respondent had breached any of the terms of the agreement and insisted that it was the appellant which had breached the terms of the agreement by denying the respondent access to the mine.

Two witnesses led evidence on behalf of the appellant.

Mr. Mubata (the second defendant a quo) testified that the agreement failed to materialize because the respondent failed to bring the requisite equipment to the mine and that the respondent cancelled the agreement because the appellant had refused to sell the mine and transfer the registration certificates to him. The second witness was Mr. Mhere, the appellant's Finance and Administration manager. He testified that the respondent failed to pay the full loan amount which had been agreed between the parties leading to the breach of the agreement.

In its judgment, the court a quo found that the respondent had had the agreement explained to him in Chinese and therefore they were valid agreements.

The court believed the evidence of the appellant that the respondent paid the loan in 'dribs and drabs' contrary to the terms of the agreement. The court a quo also found that the respondent was in breach of both agreements.

The court, however, decided to apply the principle of equity on the basis that the respondent's grasp of English was so bad that he may not have understood the terms of the agreement and decided to reimburse the respondent the amount that he had loaned the appellant. The court stated as follows:

“I (sic) persuaded that it would be appropriate to utilize the equitable principle in coming to a resolution of this matter. I hold the view primarily because the court was uneasy with the plaintiff's level of understanding of the terms of both agreements.”

The court made the following order:

“In the result, it is ordered that:

1. The plaintiff's claim against the 2nd defendant be and is hereby dismissed with costs.

2. The defendant's counter-claim against the plaintiff, for payment of USD$61,000, be and is hereby dismissed with costs.

3. Plaintiff's claim, as against the 1st defendant, Big Valley Masters Private Limited, in the sum of US$89,000, is allowed, together with interest thereon at the prescribed rate calculated from 11 December 2012 to the date of payment in full.

4. 1st defendant shall bear the costs of suit.”

The appellant was dissatisfied and appealed on the following grounds:

1. The court a quo erred in law in deeming the partnership dissolved by a letter at a future date contrary to the principle that dissolution of a contract is exercised ex nunc.

2. The court grossly misdirected itself in adjudging that the respondent was entitled to recover US$89,000 when he was in clear breach of the parties' agreement.

3. The court a quo grossly misdirected itself by allowing the respondent to derive a benefit from his own wrong.

4. The court a quo erred in failing to uphold the appellant's defence of the exceptio non adimpleti contractus.

5. The court a quo further erred in allowing interest on the sum of US$89,000 to run up to the date of payment thus contravening the in duplum rule.

6. The court a quo grossly misdirected itself in awarding costs in favour of the respondent where it had failed to fully succeed in the matter.

In my view, from the appellant's grounds of appeal, and from submissions made, the issue that resolves the appeal is the following:

Whether or not the court a quo erred in applying the principle of equity in resolving the matter

SUBMISSIONS ON APPEAL

Counsel for the appellant…, submitted, in the main, that, the court a quo erred in determining the matter before it on the basis of the principle of equity as such principle is not part of the Zimbabwean law.

Counsel argued that the principle could only be resorted to where a statute provides for its application.

It was counsel's submission that the terms of the agreement were clear and should have been complied with. With these submissions, whilst not abandoning the other grounds, counsel prayed that the appeal be allowed.

Per contra, counsel for the respondent…, argued that the court a quo did not misdirect itself when it applied the principle of equity. It was his submission that the principle is part of our law in terms of the common law. Counsel further argued that the breach of the agreement by the respondent could be attributed to the fact that there had been difficulty in communication as the respondent could not communicate fluently in English. Counsel thus submitted that the case was one which justified the application of the principle of equity so as to ensure that the appellant would not be unjustly enriched.

The court a quo found in favour of the respondent on the basis of the principle of equity. The court stated as follows;

“A modern interpretation of the equitable principle, one that takes into account the situation prevailing in our economy, may not favor an insistence that the plaintiff cannot succeed in his claim until he has performed in full, the terms of the October agreement. The court can exercise its discretion in the plaintiff's favor despite his partial performance of the January agreement (by advancing a loan up to US$89,000) and his non-performance of the October agreement.”

The appellant has argued that the court a quo erred in applying the principle of equity in this matter as the principle is foreign to this jurisdiction. With that, the appellant seeks to show that the court misdirected itself in finding for the respondent resulting in him deriving a benefit from his own wrong.

The second agreement had a provision, under paragraph 8, which stated as follows:

“(8) PAYMENT OF LOAN BALANCE ($61,000) SHOULD BE PAID TO SUM IN FULL BEFORE OCCUPATION OF PLANT WILL BE TAKING AFTER MR SHI IS BACK”(sic)

It was not in dispute that the provision under paragraph 8 was not fulfilled by the respondent.

It was also an agreed fact that at no point did the respondent mine or recover any profits from the mine.

The appellant submits that the court a quo erred by ordering it to pay the respondent his money in circumstances where he had breached the contract.

The respondent argued, before the court a quo, that, he was denied entry on to the mine by the appellant. This prevented him from being productive to recover his monies as agreed between the parties in the second agreement. The appellant counter-argued that the respondent was never refused access to the mine from the date when the first agreement was signed to the signing of the second agreement.

The court a quo believed the appellant's arguments and found that the respondent failed to honor some of the provisions of the agreement and was never denied access to the mine.

It is a settled principle that this Court will not easily interfere with factual findings made by a lower court unless the findings are grossly unreasonable: see ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S); Hama v NRZ 1996 (1) ZLR 664 (S); Reserve Bank of Zimbabwe v Corrine Granger and Another SC34-01.

The lower court enjoys the opportunity to see the witnesses on the stand, assess their demeanour and credibility. Such findings of fact cannot easily be interfered with by an Appellate Court as it is limited to the record of proceedings: see Mtimukulu v Nkiwane and Another SC136-01.

The respondent, in making his claim for the amount which had been advanced to the appellant, had to prove that he was owed such money.

It is pertinent to note that the standard of proof in all civil matters is on a balance of probabilities.

The concept of proof on a balance of probabilities was enunciated in British American Tobacco Zimbabwe v Chibaya SC30-19 wherein the court quoted with approval the case of Miller v Minister of Pensions [1947] 2 All ER 372, 374 and explained the concept of balancing probabilities as follows:

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

This was further emphasized in the book, Principles of Evidence, 4th ed (2016) Juta: Cape Town, wherein the authors SCHWIKARD PJ and Van der MERWE SE stated that:

“In civil proceedings, the inference sought to be drawn must also be consistent with all the proved facts, but it need not be the only reasonable inference: it is sufficient if it is the most probable inference.”

The rule on onus of proof was pronounced in ZUPCO Ltd v Pakhorse Services (Pvt) Ltd SC13-17 where the Court stated that:

“The cardinal rule on onus is that a person who claims something from another in a Court of law has to satisfy the Court that he is entitled to it.”

The respondent managed to discharge the onus of proof which was required of him in making his claim.

Indeed, it was conceded, by the appellant, that, the sum of US$89,000 was paid to it by the respondent. It was also conceded that during the subsistence of the agreement the respondent did not mine any gold or recover any profit from the use of that money.

The resultant effect was that the appellant ended up unjustly enriched by the respondent's US$89,000 which the respondent did not benefit from.

The appellant, in motivating the point that the court a quo erred in finding that the respondent could recover money he had paid to the appellant, relied on the ground that the court erred in failing to uphold its defense of exceptio non adimpleti contractus.

This point was not pursued in the appellant's heads of argument and was never pleaded a quo.

Clearly the appellant was wrong in submitting that the court a quo erred by not dealing with the point.

It is a trite principle that it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive as this is a matter of public policy: see Magodora and Others v Care International Zimbabwe SC24-14.

This Court must interpret the second agreement literally.

It can be deduced from the agreement that the respondent had to pay the full loan amount first before taking occupation of the mining claims. The respondent failed to do so and this resulted in a breach of the contract. Once the respondent failed to fulfil his end of the agreement, and a breach occurred, the agreement was terminated and the respondent would ordinarily not be entitled to recover his money.

However, for a wholesome resolution of this matter, it is in the interests of justice that the principle of equity be looked at as that was the basis of the court a quo's decision.

The scholar R.H. CHRISTIE, Business Law in Zimbabwe, 2nd Ed, Juta & Co Ltd…, provides that the principle of equity may be resorted to where there is incomplete performance of a contract. The principle is based on unjust enrichment.

The court, in Carlis v McCusker 1904 TS 917, observed that:

“In view of the well-known maxim of law, that no man should be allowed to enrich himself at the expense of another, this court would not permit a man who had verbally agreed to sell landed property, and had, on the faith of that agreement, received the whole or portion of the purchase price, to retain both the money and the land. It would, under such circumstances, come to the relief of the purchaser,”

See also Matipano v Gold Driven Inv (Pvt) Ltd SC225/12.

This principle is clearly discretionary and is applied by a court on the basis of the particular circumstances of a case which warrant the use of such a principle.

I would, however, venture to suggest that the principle of equity should be sparingly used as it has the effect of undermining the contract entered into between the parties.

In this case, the respondent paid a known sum of money to the appellant on the basis of the first agreement. The respondent never acquired any minerals from the appellant's mine. Although the first agreement was dissolved, the court a quo, in the exercise of its discretion, took into account that the second agreement did not have an operational clause to deal with what would happen if any of the parties breached the agreement.

In the first agreement, it was an agreed provision, that, in the event that the respondent failed to bring equipment to the mine he would be entitled to a refund of his money within six (6) months. The appellant, in its own plea, stated that it was an agreed provision that if there was failure to pay the debt it would settle the debt over a period of six months.

It seems to me that even though the second agreement did not have a provision for settlement between the parties, in the event that the respondent failed to fulfill his obligations, the court a quo was correct to exercise its discretion and be guided by the spirit of the provision in the first agreement. It was quite apparent that the second agreement flowed from the first agreement between the parties.

This is a matter where equity may properly be applied.

It would be unjust for the appellant to remain in possession of the US$89,000 which was paid to it by the respondent when the respondent himself did not get anything from the deal. The agreement between the parties was an investment on the part of the respondent that was going to jointly benefit both parties. The loan paid by the respondent was to be paid back through production on the mine.

Production did not happen.

Despite the respondent's breach of the agreement, justice will be met if the parties are returned to their status quo ante.

The appellant did not, either in its grounds or in argument, seek to challenge the application of discretion by the court a quo in applying the principle of equity in these circumstances.

Indeed, in my view, the appellant would have been hard pressed to make such a submission in view of the concession it had made that it had received the money.

It would appear, however, that an order for interest on the sum is not justified.

The respondent accepted, in his evidence, that he was in breach of the agreement between the parties. He did not fulfil his obligations which would have resulted in him occupying the mine and getting his money back.

He thus cannot benefit by being awarded interest in view of the fact that he did not comply with the terms of the agreement.

However, the special circumstance of the respondent justifies the approach by the court a quo.

The respondent's understanding of the English language was so bad that the court felt the need to intervene. It would be a travesty of justice to hold the respondent to the terms of the agreement in circumstances that clearly show that he did not grasp that he was obliged to pay the full amount before he could recover his money. This was in circumstances where the appellant not only retained the profits from the mining operations but also retained the respondent's money.

DISPOSITION

The court a quo did not err in finding that it was just and equitable for the appellant to return the respondent's loan of US$89,000. Indeed, it was clearly accepted by the appellant that it had received the money from the respondent. The court, however, erred in awarding interest on the sum at the prescribed rate when such interest was not justified where the court was applying principles of equity.

The appeal thus succeeds on this point.

With regards to costs, the respondent has successfully defended the appeal in the main and I thus find no reason why costs should not follow the cause.

In the result, it is accordingly ordered as follows:

1. The appeal be and is hereby partially allowed with costs.

2. Paragraph 3 of the judgment of the court a quo be and is hereby set aside and substituted with the following:

“3. Plaintiff's claim, as against the 1st defendant, Big Valley Masters (Private) Limited, in the sum of US$89,000 is allowed.”

View Appeal
HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA
Ruled By: CHIGUMBA J

Zimbabwe adopted a policy that was dubbed “look east” as a way of combating economic sanctions that were imposed on it by the international community. The “look east” policy encourages a forging of closer business and trade ties with countries in the east as opposed to the west, the traditional former business and trade partners.

When this policy was adopted, a lot of Chinese nationals came to our country in pursuit of business opportunities, especially in the mines and minerals sector. Unfortunately, the language barrier has caused a lot of difficulty in the conclusion of contracts and the implementation of business deals.

The plaintiff is a Chinese national who does not speak English. He relied on the interpretation of a business associate who told him of the terms of the contract that he entered into with a Zimbabwean company called Big Valley Masters (Private) Limited (the first defendant). The company owns gold mining claims in Shurugwi (Sky Rocket Mine 1645). Mr. Phillimon Mubata (second defendant) is a director and shareholder in the first defendant.

The plaintiff issued summons against the defendants on 11 December 2012, claiming payment of USD$89,000 being a sum outstanding in respect of a loan advanced to the defendants, as well as interest thereon at the prescribed rate, and costs of suit.

In his declaration, the plaintiff averred, that, on 13 January 2011 he and the first defendant entered into a written agreement. The first defendant was represented by the second defendant when the agreement was concluded. The terms of the agreement included, among other things, an obligation on the plaintiff's part that he would pay for exploration work at the mine, invest capital and mining equipment, and use the block of claims which constituted Sky Rocket Mine 1645 as surety.

The parties agreed that the block of claims would subsequently be transferred into the name of a new investment company in which they would have equal shares, and which would be exclusively managed by the plaintiff.

The plaintiff averred, further, that, the parties agreed that he would advance a loan in the sum of USD$150,000 to the defendants, subject to repayment on certain conditions, for purposes of discharging pressing debts owed by the first defendant.

On 3 October 2011, the parties entered into a second agreement, in terms of which the defendants allegedly admitted to being indebted to the plaintiff in the sum of USD$89,000 and agreed to repay the loan, while allowing the plaintiff to run the mine.

The plaintiff is aggrieved because none of these undertakings given by the defendants have been honored.

The defendants filed their plea on 15 January 2013.

They did not dispute that the parties had entered into what they called a joint venture agreement relating to gold mining. They averred that the plaintiff breached the terms of the joint venture agreement by failing to provide capital to fund their joint venture, in the agreed sum of USD$150,000.

The second defendant denied that he entered into a loan agreement with the plaintiff, or that he entered into any agreement at all with the plaintiff in his personal capacity. He stated, that, at all times; he dealt with the plaintiff in a representative capacity as a director and shareholder of the first defendant.

In the plea, it was averred that the parties had agreed that any loan sums advanced by the plaintiff would be repaid using the proceeds of production at the mine.

After clearing the loan sums, by offsetting against the proceeds of production, the parties would subsequently enter into a profit sharing agreement.

The defendants averred that the plaintiff breached the agreement by failing to finance production through the agreed USD$150,000, and that this breach caused the collapse of the joint venture.

The defendants averred that the joint venture resulted in loss, which should be borne equally with the plaintiff, as an equal partner in the joint venture.

On 20 May 2013, the defendants filed an amended plea, in which they averred that the terms of the second agreement entered into by the parties were such that the plaintiff was obliged to advance the full USD$150,000, as agreed, before any repayment of that loan could be made.

The averment was that the plaintiff was not entitled to repayment until he paid USD$150,000 to the first defendant in full.

The defendants denied that they prevented the plaintiff from assuming control of the mining operations.

The defendants filed a counterclaim for the payment of USD$61,000 which they alleged was still due and owing to the first defendant in terms of the parties' first agreement.

In his replication to the amended plea and counter claim, dated 22 May 2013, the plaintiff denied being in material breach of the terms of the parties' agreements. In his plea to the counter-claim, he reiterated that the defendants themselves breached the agreement, by refusing to relinquish control of the first defendant's mining operations to him, as agreed.

This matter was referred to trial for the determination of these issues:

1. Whether the plaintiff was obliged to provide USD$150,000 towards the financing of a joint venture agreement.

2. Whether the defendants frustrated the contract and caused the non-fulfillment of its terms and conditions.

3. Whether the defendants breached the contract and caused the plaintiff to cancel it and demand re-payment of the USD$89,000 which he had advanced.

In terms of the joint pre-trial conference minute filed of record, on 29 May 2013, the defendants admitted that they received the sum of USD$89,000 from the plaintiff.

At the trial of the matter, Mr. Shi Jinwu gave evidence and told the court that he met the second defendant in February 2010 at a petrol station. He said that the second defendant told him that he was looking for investors for his mineral claims because he was experiencing financial difficulties, and invited him to form a partnership with him.

The plaintiff said that the second defendant invited him to tour his mining operations. He said that he asked him for a loan of USD$150,000. The loan was to be disbursed in phases. The second defendant offered to give up the certificates to his mining claims as collateral. He offered to let the plaintiff take over the day to day running of the mining activities.

The plaintiff told the court that the parties agreed that if he paid an initial USD$50,000 he would be allowed to take over the mining operations of the first defendant.

He said that he was surprised when the second defendant refused to let him assume control of the mining operations of the first defendant after he had paid the fifty thousand as agreed.

The plaintiff referred to Annexure 'A' to the summons, the agreement which the parties signed on 13 January 2011.

The plaintiff signed on behalf of “Chinese”. The second defendant signed that agreement on behalf of the first defendant. In fact, the plaintiff and second defendant are referred to as representatives.

The plaintiff told the court, that, despite the express terms of the agreement, the defendants refused to let him assume control of the mining operations, and, consequently, he was now seeking re-payment of the USD$89,000 which he had advanced to them.

He referred to a second agreement entered into on 3 October 2011 in which the defendants agreed to let him run the mine for purposes of recovering the USD$89,000 which he had advanced to them.

The plaintiff told the court, that, despite the signature of that second agreement, he was never given a chance to enter the mine.

He said that the defendants never prepared the relevant paperwork towards establishing a tribute agreement. There were no environmental and other requisite mining licenses. The plaintiff said that the second defendant kept on giving him excuses as to why he could not allow him to enter the mine and begin mining operations.

The plaintiff told the court that the spirit of the agreement never materialized.

He decided to cancel the partnership and to get a refund of his USD$89,000.

Finally, the plaintiff told the court, that, in his opinion, the second defendant ought to be bound in his personal capacity because he first knew him in his personal capacity.

During cross examination, the plaintiff told the court that he entered into the agreement with the first defendant in a representative capacity, as a representative of a company which is registered here in Zimbabwe, which he is a director of. He conceded that the name of this company was not part of any of the agreements entered into by the parties.

The plaintiff told the court that the first agreement was drafted by his friend who understands English, and that his friend explained the exigencies of the agreement to him. The plaintiff conceded that due to lack of understanding of the English language, he needed to have the agreements explained to him in Chinese.

He said that he was told of the contents of the agreements before he signed them, so he knew what he was signing for.

He called exhibit 1 a mining partnership agreement.

The plaintiff insisted that the partnership fell apart because he was not allowed to gain entry and to start mining operations.

He denied that the agreement known as exhibit 1 had anything to do with the loan agreement.

The plaintiff told the court that exhibit 1 was never followed that's why the parties entered into a second agreement - which was also never fulfilled.

The plaintiff told the court that the second defendant demanded that he pay USD$100,000 to him before he could allow him to enter and begin mining operations.

The plaintiff could not recall the exact dates when he cancelled the agreements entered into by the parties.

He could not comment on the letter shown to him, of 13 May 2011, from Messrs Danziger & Partners, which letter suggested that the parties had been at cross-purposes from the outset regarding the terms and conditions of their respective agreements.

He was unable to provide a cogent reason why the letter of cancellation did not mention that he had been denied entry to the mine, and suggested that the lawyers possibly misunderstood his instructions because of the language barrier.

The court had no problem following the logic of the plaintiff's evidence.

He was sincere in his belief of the terms of the agreements between the parties as they were explained to him in his language. The court believed that he told the truth as he knew it.

The plaintiff called Ms Hua Ding as his second witness.

She is also a Chinese national currently resident in Zimbabwe and South Africa. She told the court that she and the plaintiff met the second defendant at Gweru service station in December 2010. She was employed by the plaintiff as his assistant at the time. Ms Ding told the court that the second defendant invited them to tour his mining operations in Shurugwi and proposed that he enter into a joint venture agreement with the plaintiff to mine gold. She said that when the parties signed their first agreement, on 13 January 2011, she was not present but she witnessed some of the payments made to the defendants.

Ms Ding told the court that the agreement collapsed because the second defendant frustrated the plaintiff by denying him entry onto the mine site. She said that the second defendant had voluntarily surrendered the registration certificates to the first defendant's mining claims, as collateral against payment in full of the money advanced to the defendants as a loan.

Ms Ding told the court that the second agreement entered into by the parties was prepared by the second defendant.

She denied that the plaintiff breached the terms of this agreement, and insisted that it was the defendants who breached the agreement by failing to allow the plaintiff access to the mining site for purposes of conduction explorations, and to commence mining activities.

During cross-examination, Ms Ding remained steadfast that the plaintiff was denied access to the mine. She was unclear as to the reasons advanced for cancellation of the agreements, but she insisted, that, as far as she knew, the plaintiff was aggrieved when he was denied access to the mine despite clear provisions to the contrary in the two agreements signed by the parties.

Again, the court found this witness to be believable, although she could not shed light on some material aspects of the dispute between the parties. Ms Ding was articulate in English. It's a pity that when some of the material aspects of this matter were taking place she was in South Africa and is unable to assist the court to determine the truth.

The plaintiff's last witness was another Chinese national who is currently resident in Zimbabwe, Mr. Wei Ren.

He told the court that he was the plaintiff's mining manager from 2006 to 2010-2011. He confirmed that he was involved in the signing of the agreement between the plaintiff and the defendants.

Mr. Ren was responsible for structuring the mining partnership agreement.

He confirmed that he personally explained the exigencies of that agreement to the plaintiff, and satisfied himself that the plaintiff had understood the contents, before allowing him to append his signature to the agreement.

Mr. Ren also confirmed that exhibit 10, the second agreement between the parties, had been prepared by the second defendant.

He said that he signed that agreement on the plaintiff's behalf.

Before signing, he had consulted widely with the plaintiff who was in China at the time.

This witness told the court that the second defendant was given a loan by the plaintiff and that, he, in turn, had surrendered the certificates of registration to his mining claims to the plaintiff, as collateral for the repayment of the loan.

Mr. Ren told the court that the partnership collapsed because the second defendant denied the plaintiff access to the mine.

He said that the second defendant kept making excuses, but, at the same time, making requests for money to pay the first defendant's debts, until the plaintiff had disbursed a total sum of USD$89,000 to the defendants.

The witness told the court that the plaintiff lost his confidence in the second defendant because of the numerous lies he was told, and that, consequently, he elected to cancel the agreement of partnership.

He said that the second defendant never gave his permission to the plaintiff to commence mining operations, but, instead, kept on making incessant demands for more money.

Mr. Ren disputed the assertion that it was the plaintiff who breached the agreement between the parties. He insisted that it was the second defendant who failed to hold up his end of the bargain.

During cross examination, Mr. Ren confirmed that the plaintiff understood the entire contents of both agreements.

He told the court that a technical team was denied entry onto the mine after the initial USD$50,000 deposit had been paid. This happened fifteen (15) days after 13 January 2011, when the first agreement was signed.

The witness was unable to give a satisfactory explanation as to why the letter of cancellation of the agreement, dated 13 May 2011, had not mentioned that the plaintiff had been denied entry onto the mine as part of the reasons for cancellation.

When he was pressed, he blamed the legal practitioner for not following the plaintiff's instructions.

When it was suggested to him that the plaintiff's breach of clause 8 of the second agreement was the cause of the failure of the partnership, Mr. Ren denied this strenuously.

The plaintiff then closed its case.

Mr. Phillimon Mubata, the second defendant, testified on behalf of both defendants.

He told the court that it was the plaintiff who approached him and proposed that they enter into a joint venture. He said that this was after the plaintiff had proposed to buy the first defendant's mining claims and he had refused.

The second defendant told the court that the plaintiff was involved in a chrome mining project near to where the first defendant's mining claims were. He said that, contrary to what had been asserted by the plaintiff, the first defendant's legal documents were up to date, and all the requisite mining licenses were in place, and had always been in place.

The second defendant told the court that the parties agreed that a total of USD$150,000 would be paid to the first defendant, with an initial USD$50,000 to be paid, where after the second defendant would go to China with the plaintiff where water purification equipment would be bought, and paid for by the plaintiff, using the balance of USD$100,000.

After that, the parties would mine together using a new company which would be jointly owned.

He said that the parties agreed that the USD$150,000 would be repaid to the plaintiff using the proceeds of their joint mining efforts.

The second defendant told the court that the plaintiff breached the parties' agreement by failing to mount an exploration exercise at the mine. He said that he formed the view that the plaintiff ran out of money and was unable to bring the requisite equipment onto the mine. He also said that the plaintiff failed to bring technical experts onto the mine to conduct viability surveys as agreed.

The second defendant denied that the plaintiff was ever denied access to the mine. He said that at all material times, the plaintiff had personnel from his company present at the mine, taking soil samples, and finishing construction of certain buildings on the mine which they intended to use to accommodate their employees.

The second defendant told the court that the reason why the plaintiff purported to cancel the parties' first agreement was because he had refused to sell the mine to the plaintiff or to transfer the claim registration certificates to him.

On exhibit eleven, the parties' second agreement, the witness told the court that the plaintiff was extensively consulted over the telephone by Mr. Wei, and that he authorized Mr. Wei to sign the agreement on his behalf.

According to the second defendant, part of the problem with this matter is that the plaintiff relied entirely on Mr. Ren's interpretation and understanding of things, and there is a possibility that Mr. Ren could have distorted some things in his interpretation from English to Chinese, because Mr. Ren had ambitions to go into business for himself.

During cross-examination, the second defendant denied that it had ever been the parties' intention that he be personally liable or a party to the agreements in his personal capacity. He denied ever receiving any money in his personal capacity, and insisted that all transactions were done in the name of the first defendant, and that he never bound himself as surety.

Mr. Isaac Mhere testified as the defendant's second witness.

He said that he is employed as a Finance and Administration manager by the first defendant, and that the plaintiff, together with a group of other Chinese investors, came to the mine in January 2011 and asked if they could tour the mine and look at the mining operations.

He knew the plaintiff from the mine next door, so he agreed.

Mr. Mhere asked the second defendant for permission to allow the Chinese investors to tour their mining operations, and permission was granted.

Later, he was involved in the discussions for a joint venture, and present at the signing of the first agreement.

The witness told the court that the plaintiff paid the initial deposit of USD$50,000 in bits and pieces, and not as a lump sum as agreed. He personally receipted the payments. He said that the fifty thousand was not paid by the agreed date; it was paid much later than that.

Mr. Mhere said that the plaintiff was never denied access to the mine. He is in charge of the day to day running of the mine, and, if access was to be denied to the plaintiff, it would have been denied by him because he was in charge at the mine site and the second defendant normally operated from offices in Gweru city.

Mr. Mhere told the court, that, the purpose of the second agreement entered into by the parties was to rescue the first agreement and make it workable.

He said that the plaintiff breached the second agreement by failing to pay USD$61,000 as it stipulated; he failed to form a joint venture company; he failed to bring in equipment; he failed to conduct an exploratory survey; and he failed to provide working capital.

During cross examination, Mr. Mhere was adamant that the plaintiff was allowed access to the mine immediately after the first agreement was signed. He said that daily meetings were held on the site at the mine with the plaintiff's employees. He said the plaintiff was never blocked from coming onto the mine.

The defendant closed its case at this juncture.

The question for determination is a simple one: the Court must decide who is telling the truth between the plaintiff and the second defendant, regarding the question of breach of the parties' respective agreements.

Once the court determines this question, the next matter for consideration will be whether the plaintiff is entitled to be refunded USD$89,000, or whether the defendant is entitled to specific performance, and to payment of USD$61,000.

The law that governs contractual relationships is clear.

In interpreting a contract, a court must determine what the intention of the parties was when they entered into a contract.

In this case, did the parties intend to enter into a joint venture agreement in terms of which the plaintiff loaned one or both the defendants the sum of USD$150,000, or did the parties enter into a mining partnership agreement, in terms of which the plaintiff agreed to loan the partnership USD$150,000 which was to be re-paid from the proceeds of the mining venture?

The evidence shows that the parties had different ideas about their rights and obligations which emanated from both agreements which they entered into.

Were they ever of one mind, or there was never any consensus ad idem?

In researching what the law says on how to interpret the intention of parties to a contract, I came across the following:

In the case of Chikoma v Mukweza 1998 (1) ZLR 541 (SC) the Supreme Court stated that:

“…, the approach that the courts will adopt to the issue of whether a contract is void for vagueness will be to help the parties towards what they both intended rather than obstruct them by legal subtleties and allow one of the parties to escape the consequences of all he has done and all he has intended. The courts will interpret contracts fairly and broadly, without being quick to find defects, following the principle ut res magis valeat quam pereat.”

The court said that:

“Against this scenario, the approach to be adopted to the issue of vagueness must be that expressed by PRICE J in Hoffmann & Carvalho v Minister of Agriculture 1947 (2) SA 855 (T) at 860, namely:

'Where parties intend to conclude a contract, think they have concluded a contract, and proceed to act as if the contract were binding and complete, I think the court ought rather to try to help the parties towards what they both intended rather than obstruct them by legal subtleties and assist one of the parties to escape the consequences of all that he has done and all that he has intended....'”

Not to be overlooked, as well, are the wise words of LORD WRIGHT in Hillas & Co Ltd v Arcos Ltd [1932] All ER Rep 494 (HL) at 503I; (1932) 147 LT 503 (HL) at 514:

“Businessmen often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is, accordingly, the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but, on the contrary, the court should seek to apply the old maxim of English Law, verba ita sunt intelligenda ut res magis valeat quam pereat.”

The mutual intention of the parties, at the time of the contract, will govern the court's resolution of a contractual dispute if that intention can be determined and if that intention is lawful.

If possible, the mutual intent of the parties will be determined only from the written terms of the contract. If the language of the contract is clear and definite, that language will determine the mutual intent of the parties.

It is my view that the language of the parties' first agreement is clear.

It was an agreement to co-operate and operate the mine under the auspices of a new company which was to be incorporated and to be jointly-owned and controlled by the parties. The parties intended to conclude a contract. They thought that they had concluded a contract, and proceeded to act as if the contract were binding and complete.

The plaintiff proceeded to pay USD$50,000 in drips and drabs.

The parties went to China to look for water purification equipment. The plaintiff continued to give the first defendant money when requested to do so until he had paid USD$89,000.

There were no defects in the January agreement.

None were found in the second agreement.

The court discharged its duty and construed both documents fairly and broadly, without being too astute or subtle in finding defects. The court concluded, that, in respect of both documents, there was consensus as to the intention of the parties and a meeting of the minds in regards to the parties rights and obligations.

The evidence on record showed that the plaintiff had all the terms of both agreements explained to him, in Chinese, before appending his signature. Both agreements were valid and binding on the parties.

The court believed the evidence of the defendants that the plaintiff did not pay the initial USD$50,000 by 26 January 2011 as agreed. The evidence was that the plaintiff paid the USD$50,000 in drips and drabs and that, by 1 March 2011, the plaintiff had not fulfilled its obligation to form a joint venture company.

The court accepts, that, the plaintiff failed to pay the balance of USD$100,000 to the first defendant by 11 March 2011.

The court finds that the plaintiff breached the terms of the agreement entered into by the parties on 13 January 2011.

The plaintiff's excuse for non-performance of the contract appears to be an allegation of frustration of purpose.

However, the plaintiff's claims that he was not allowed to enter the mine are not supported by the evidence.

The court believed the first defendant's manager, that, the plaintiff had employees on the ground, immediately after the agreement was signed, who could come and go at their leisure on the site, and that the plaintiff even posted a guard at the gate to the mine to safeguard his interests.

That explanation is the most probable; given that the plaintiff was already operating on a neighboring mine; it would be absurd to find that his employees were barred entry onto the defendant's mine when they had previously come and gone without any hiccups.

The plaintiff was never prevented from entering the mine.

It is more probable that the plaintiff failed to raise the initial USD$50,000 tranche of the loan; he failed to register the joint venture company on time; and he failed to pay the USD$100,000 within the stipulated period.

The parties then decided to complicate matters by entering into a second agreement, which was described by the defendants' witness as “an attempt to rescue the first agreement.”

On 3 October 2011, nine months after the first agreement was entered into, the parties agreed to let the plaintiff operate the mine to recover the USD$89,000 that the first defendant had borrowed in terms of the first agreement.

Clause 3 of the second agreement stipulates that the USD$89,000 would be repaid using the proceeds of production from operating the mine.

It was agreed that the plaintiff would be offered a tribute to operate and extract ore from the first defendant's claims, and that if the USD$89,000 was paid in full before the expiry of the tributary period, then, a “percentage share structure” would be drafted by the parties.

It was agreed that the loan balance of USD$61,000 would be paid before the plaintiff could be given access to the mining area.

The author R. H. CHRISTIE, Business Law in Zimbabwe, 2nd ed, 1998…, has the following to say about reciprocal obligations:

“There is a presumption that in every bilateral or synallagmatic contract, i.e. one in which every party undertakes obligations towards the other, the common intention is that neither should be entitled to enforce the contract unless he has performed or is ready to perform his own obligations. Whether this presumption applies and whether the reciprocal obligations are to be performed simultaneously or consecutively are questions of interpretation of the contract.

See ESE Financial Services (Pty) Ltd v Cramer 1975 (2) SA 805 @ 808-9.

In contracts to which this principle of reciprocity applies, a plaintiff who demands performance without himself having performed, or tendered to perform, may be met with the exceptio non adimpleti contractus in the form of a dilatory plea: see BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A).

What if, in a contract to which the principle of reciprocity applies, the plaintiff has partly, but not completely, performed?

If the wording of the contract makes it very clear that he has no claim until he has performed in full, the defendant will be entitled to rely on the exceptio: Van Rensburg v Straughan 1914 AD 317.

But, in any other case, an equitable principle comes into play, based on unjust enrichment: see Ambrose and Aitken v Johnson and Fletcher 1917 AD 327 and applied in Grizzel v P & W Erection Co (Pvt) Ltd 1972 (2) RLR 68 (A), 1972 SA 449 378, 1972 RLR 21.”

Clearly USD$61,000 was never paid to the first defendant, so, the plaintiff's excuse for non-performance, that of frustration of purpose, does not apply.

In my view, the plaintiff has brought these proceedings in an effort to anticipate the first defendant's repudiation of the contract.

The terms of the second agreement between the parties were clear.

The plaintiff was to pay USD$61,000 before he could be allowed onto the mining site, or be allowed to commence operations, or be granted a mining tribute.

The plaintiff cannot claim that the first defendant breached the second agreement, which superseded the first agreement, when it was clearly a condition precedent to entry on the mine, that the additional sum of USSD$61,000 be paid first.

Novation means the replacing of an existing obligation by a new one, the existing obligation being thereby extinguished.

It could be argued that the October agreement was a novation of the January agreement.

The January agreement is what is governing the parties reciprocal obligations. The wording of the agreement has no provision for breach.

This means that the equitable principle, which is based on unjust enrichment, comes into play.

It is my view that the plaintiff's breach of both agreements went to the root of the agreements.

He failed to pay the USD$50,000 on time; he failed to register a joint venture company within the agreed period; he failed to bring equipment and capital to the venture; he failed to conduct geological surveys as agreed; he failed to pay USSD$150,000 as agreed.

A reasonable person may conclude that the plaintiff repudiated the parties' agreements.

He clearly does not intend to pay the first defendant the remaining USD$61,000.

He told the court that he has lost confidence in the defendants and no longer wants to work with them.

One of the remedies for breach of contract is cancellation.

I find that the plaintiff repudiated the parties' agreements. The first defendant is entitled to cancel the agreements and claim damages.

It has elected, instead, to counterclaim for payment of USD$61,000.

In my view, such a claim, being one for specific performance, is not sustainable where the other party to the contract has repudiated it.

The parties agreements did not provide any breach clauses. They never applied their minds to what would happen in the event of breach.

I am persuaded that it would be appropriate to utilise the equitable principle in coming to a resolution of this matter.

I hold this view primarily because the court was uneasy with the plaintiff's level of understanding of the terms of both agreements.

The plaintiff is a Chinese national who came to invest in the mining business in this country. He does not understand English. He relied on the services of his employees to explain the terms of the agreements to him.

The evidence before the court is that some of the interpretation of the agreements was not entirely bona fide because Mr. Ren wanted to go into business for himself and could have misled the plaintiff on some material aspects of the contracts between the parties.

The court believed that evidence.

The plaintiff seemed adamant that he ought to have been allowed to commence mining operations. The terms of the October agreement are diametrically opposed to this belief.

Contracts are made by agreement. They can be unmade by agreement, but, they cannot be unilaterally varied or discharged: see Strachan v Lloyd Levy 1923 AD 670, 671.

It has been said that:

“…, waiver is a bilateral transaction and does not result from a unilateral declaration or a decision…,.:” see Alberts v Bryson 1976 (2) RLR 193 (A) 198, 1977 (1) SA 857 860.

A modern interpretation of the equitable principle, one that takes into account the situation that is currently prevailing in our economy, might not favor an insistence that the plaintiff cannot succeed in his claim until he has performed, in full, the terms of the October agreement.

The court can exercise its discretion in the plaintiff's favour, despite his partial performance of the January agreement (by advancing a loan up to USD$89,000), and his non-performance of the October agreement.

In weighing the equities, the court was guided by Ambrose and Aitken v Johnson and Fletcher 1917 AD 327 where it was stated that it is not for the court to remake a contract of the parties.

The first defendant would be unjustly enriched if it were allowed to keep the USD$89,000 advanced to it by the plaintiff.

The doctrine of privity in the common law of contract provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it.

Privity is the legal term for a close, mutual, or successive relationship to the same right of property or the power to enforce a promise or warranty: see Coalridge (Private) Limited v Peter Makawu & Mobil Zimbabwe (Private) Limited SC69-04.

It is my considered view that just because the second defendant signed the January agreement as a representative of the first defendant did not mean that he became a party to the agreement.

The evidence before the court was that the mining claim certificates are in the name of the first defendant. It was the first defendant which entered into the January and October agreements with the plaintiff.

Being a juristic person, the first defendant is unable to sign documents; it would have to rely on its director and shareholder, the second defendant, to sign the documents as its officer and on its behalf.

No evidence was led before the court to show that the parties intended that the second defendant be bound as surety with the first defendant for the due performance of its liabilities.

Accordingly, I find that there was no privity between the plaintiff and second defendant, and that there is no evidence of liability against the second defendant.

Having found that the plaintiff was obliged to provide USD$150,000 towards the financing of a joint venture agreement, and that the defendants did not frustrate the contract and cause the non-fulfillment of its terms and conditions, or breach the contract and cause the plaintiff to cancel it, the court finds, nonetheless, that, it would be just and equitable to allow the plaintiff to recover the USD$89,000 which he had advanced to the first defendant.

In the result, it is ordered that:

1. The plaintiff's claim against the second defendant be and is hereby dismissed with costs.

2. The defendant's counterclaim against the plaintiff, for payment of USD$61,000, be and is hereby dismissed with costs.

3. Plaintiff's claim, as against the first defendant, Big Valley Masters (Private) Limited, in the sum of USD$89,000, is allowed, together with interest thereon at the prescribed rate calculated from 11 December 2012 to the date of payment in full.

4. First defendant shall bear the costs of suit.

HHB62-15 : MICHAEL BIDDLECOMBE vs THE STATE
Ruled By: TAKUVA J and MOYO J

This is an appeal against the decision of the Magistrates Court sitting at Gwanda, in which the appellant was ordered to stand trial on allegations of contravening the provisions of section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] (hereinafter “the Act”).

The factual allegations were, that, on 19 May 2006, the State acquired Famona Farm in terms of section 16(B)(2)(a)(iii) of the Constitution of Zimbabwe by publishing General Notice 128 of 2005 in the Government Gazette (Extraordinary) of the 19th of May 2006.

The appellant then failed to comply with the provisions of section 3 of the Gazetted Land (Consequential Provisions) Act. Specifically, it was alleged, that, the appellant failed to vacate the acquired land within 45 days from the fixed date which was the 20th day of December 2006.

Essentially, the charge was, that, the appellant had continued to occupy the farm without lawful authority.

After the ruling, the appellant appealed to this court.

On 9 September 2013, both parties filed what they termed “Stated case on a point of law arising on appeal.” The document states:

“Background and Accepted Facts

1. On the 29th November 2010, the above cited appeal was called before this Honourable Court.

2. Upon hearing the parties briefly, the court directed that counsel for the respondent must investigate the authenticity of the letters filed of record by the appellant.

3. Such letters related to Famona Farm, the farm in respect of occupation of which the criminal charges against the appellant were levelled, which charges the appellant moved, unsuccessfully, to quash, leading to the present appeal.

4. The letters purported that Famona Farm had been transferred from the control of the Ministry of Environment and Tourism.

5. Further, the letters reported that the Ministry of Environment and Tourism desired to leave the farm, for stated reasons, in the control and administration of the appellant and his company, GAMESTONE SAFARIS.

6. Counsel for the respondent had investigated the letters and can confirm before this Honourable Court, that, the letters have been written with the authority of the Ministry of Environment and Tourism and that this Ministry has consented that the appellant and GAMESTONE SAFARIS remain in occupation and control of the farm.

7. The parties, therefore agree that:

7.1 Famona farm has been acquired by the State;

7.2 The State is now the owner of the farm;

7.3 The administration of Famona Farm, however, has been removed from the Ministry of Lands, Agriculture and Rural Resettlement, to the Ministry of Environment and Tourism;

7.4 The Ministry of Environment and Tourism administers the farm on behalf of the State.

POINTS OF LAW

At the present time, with the leave of this Honourable Court, the parties agree that they will, when the appeal is called, argue only the following points of law:

8.1 Whether the letters produced of record by the appellant, emanating from the Ministry of Environment and Tourism, amount to a 'permit' or other legal authority for the appellant to remain on the farm;

8.2 Whether, therefore, the charges against the appellant were incompetent, standing to be quashed by the trial court, by reason that the appellant had lawful authority to remain on Famona Farm.”

The appellant's argument is two-pronged:

(i) Firstly, he argues, that, he had lawful authority in the form of letters from certain Government departments to remain on the farm.

(ii) Secondly, he relies on the defence of mistake of law.

I will deal with these grounds seriatum...,.

As regards the second ground of appeal, the contention is that the appellant was misled into breaching the provisions of the Gazetted Land (Consequential Provisions) Act by Government officials.

The argument is, that, subjectively, the appellant believed, based on what was stated and undertaken to him, that, he had the right to remain on the farm. He believed that all steps requisite to the regularization, or formalization of his stay were being taken. Indeed, a firm decision to transfer control of the farm from one Ministry of another was taken in July 2012.

It is trite law, that, while ignorance of the law is generally not an excuse, a person may be excused from criminal liability where such a person has been misled into breaching the law by Government agents: see S v Davy 1988 (1) ZLR 386 (SC) where GUBBAY JA…, stated as follows:

“It necessarily follows, that, in my opinion, the rule that ignorance or mistake of law is no excuse which judicial officers have applied for so long in this country in conformity with both English Law and the decision of the South African courts prior to the advent of de Blom's case supra remains valid.

Its strength has hardly been shaken.

It is, however, subject to the exception, that, where the accused acted upon incorrect advise as to the law given by a Government official who is primarily responsible for the administration of the particular statute to which the matter relates, his ensuing mistake of law is a good defence: see S v Zemura, supra at 377E–G.

As expressed by LEWIS AJP in S v Bledig & Anor 1974 (1) RLR 100 (AD) at 109A:

'There is something in the nature of an estoppel present when the State prosecutes a person for certain conduct when he has been induced by advice received from a responsible representative of the State to embark on such conduct.'

Clearly, the exception is grounded in reasons of public policy.

Where the State has misled a man into a contravention of the law, as a matter of public policy, he should be entitled to an acquittal. But, care must be taken not to extend the exception beyond the strict limits of Zemura's case, for, to do so, would be 'extremely dangerous and would tend to frustrate the enforcement of statutory provisions:' see Bledig's case supra at 108 in fine.”

In casu, it is clear from the numerous correspondence referred to that the appellant was indeed misled by Government officials into breaching the provisions of the Gazetted Land (Consequential Provisions) Act.

It is unfortunate, that, the Ministry of Environment and Tourism has taken a long time to finalise the 25 year lease with the appellant. However, this bureaucratic delay is not of the making of the appellant, and should, therefore, not place him at any disadvantage: see DPP and Minister of Justice and Constitutional Development v Phillips (803/2011) [2012] ZASCA 140 (28 September 2012).

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI
Ruled By: MAWADZE J and MAFUSIRE J

This was an appeal from a decision of the Magistrate's Court. We dismissed it soon after argument and gave reasons ex tempore. The appellant has now sought written reasons.

In the court a quo, the respondent, hereafter referred to as “the purchaser” where appropriate, sued for specific performance in respect of a property that she had bought from the appellant in terms of a written agreement of sale.

She proceeded by way of a court application.

The draft order, apart from costs, sought an order directing the appellant, hereafter referred to as “the seller” where appropriate, to sign forthwith all the documents necessary to enable transfer of the property to herself, failing which the Messenger of Court should be empowered to stand in his stead and sign.

She said, in terms of the agreement, the parties had consented to the jurisdiction of the Magistrate's Court.

In his notice of opposition, the appellant took a point in limine, that, the remedy sought was not one contemplated by the Agreement of Sale. He said in terms of it, in the event of a breach by himself, the only remedy available to the respondent was cancellation of the agreement upon a prior demand to make good the breach within 14 days, and that this had not been done.

He said specific performance was a remedy alien to the written agreement.

An adjunct to the above objection was that, in terms of the Magistrates Court Act [Chapter 7:10], a Magistrates Court has no jurisdiction to grant specific performance in the absence of an alternative claim for damages. He cited section 14(1)(d) of the Magistrates Court Act.

On the merits, the appellant's basic defence was that the respondent had only paid part of the purchase price; that, as such, she was in breach of the Agreement of Sale; and that therefore she was not entitled to specific performance. He prayed for the dismissal of the application with costs.

The court a quo felt there was a dispute of fact that was incapable of resolution on the papers. It referred the matter to trial.

After a full scale trial, the court a quo found in favour of the respondent and granted specific performance.

The appellant appealed.

We felt the appeal had no merit. We dismissed it as aforesaid....,.

The appellant went to town about a patently harmless error in clause 15 of the agreement of sale which cited a wrong section in the Magistrates Court Act [Chapter 7:10] as being the one in terms of which litigants can consent to the jurisdiction of that court even though the claim might exceed its monetary jurisdictional limit.

Clause 15 of the agreement said in part:

“Both parties hereby consent, in terms of section (13)(1)(c) (sic) of the Magistrate's Court Act Chapter 18 (sic), to the province of Masvingo, held at Masvingo in respect of any action or matter arising out of this Agreement, notwithstanding that such action or the foregoing, the Seller shall have the right to institute such proceedings in the High Court of Zimbabwe should he/she elect to do so.”

To that, the appellant's argument was…,.:

“The parties signed an Agreement of Sale where they consented to a Magistrate's Court sitting at Masvingo in terms of section 13(1)(c) of the Magistrate's Court Act, Chapter 18. The Respondent's lawyers used the copy of the contract to found jurisdiction of the court a quo.

On the date of signing, March 2015, the statutes had been amended and there was no longer section 13(1)(c) of the Magistrate's Court, Chapter 18.

No amendment was done and before the matter was referred to trial, this point was raised by the Appellant but dismissed by the Learned Magistrate.

Hence, in principle, the court a quo, as at the date of hearing the application and trial, lacked jurisdiction to deal with the matter where specific performance was sought without alternative to damages, in contravention of section 14(1)(d) of the Magistrates Court Act (Chapter 7:10).”

The appellant's argument was all mixed-up.

In terms of SI163 of 2012, (Magistrates Court [Civil Jurisdiction] [Monetary Limits] Rules, 2012), the monetary civil jurisdiction of the magistrates is $10,000 for, among others, actions for the delivery of movables or immovables.

In terms of section 11(1)(b)(ii) of the Magistrates Court Act, the magistrate's court is conferred with jurisdiction, where the delivery or transfer of any property, movable or immovable, is claimed, if the value of such property does not exceed such amount as may be prescribed in Rules (i.e. $10,000), whether in lieu of, or in addition to, any other claim, which shall include a claim for the cancellation of any agreement relating to such property.

The appellant made no reference at all to the proviso to paragraph (b) of section 11(1) of the Magistrates Court Act.

That proviso expressly confers jurisdiction on the court to try any action or case referred to in, among others, subparagraph (ii) above, otherwise beyond its jurisdiction if the defendant has consented thereto in writing.

It is all very clear.

But, of course, the appellant's argument was premised on section 14 of the Magistrates Court Act [Chapter 7:10].

This section gives instances when the court has no jurisdiction.

One such is in subsection (1)(d). In terms of it, the court has no jurisdiction where the specific performance of an act is sought without an alternative claim for damages.

But, characteristically, the appellant ignored the proviso thereto. It says:

“Provided that a court shall have jurisdiction to order (among other things) the delivery or transfer of property, movable or immovable, not exceeding such amount as may be prescribed in rules.”

The mistaken reference, in the parties agreement of sale, to a non-existent section 13(1)(c) of the Magistrates Court Act was of no moment.

The fact remains, that, in terms of the Magistrates Court Act, a defendant can consent to the jurisdiction of the Magistrate's Court - even where the plaintiff's claim exceeds that court's monetary jurisdiction.

In the present case, both parties had given their advance consent, on the signing of the agreement of sale, even though their reference to the specific provision as permitting such consent was erroneous.

That could not have been a reason to non-suit the respondent.

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Law Portal
Zimbabwe

Consensus Ad Idem re: Mistake, Error, Justus Error or Reasonable Mistake and the Language of Record

HH27-09 : ZIMRE PROPERTY INVESTMENTS LI MITED vs JOANDRISA ANIMAL FEEDS (PVT) LTD
Ruled By: UCHENA J

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

HH160-09 : SMART GONONDO vs ALICE MUTEPFA and PORTIA NYAMAROPA and CITY OF MUTARE (DIRECTOR OF HOUSING)
Ruled By: MAVANGIRA J

HB24-09 : SIKHULILE MOYO vs THABANI KHUMALO and ESTATE LATE SIBONILE MLILO (represented by Bongani Ndlovu) and ASSISTANT MASTER OF HIGH COURT, BULAWAYO and CITY OF BULAWAYO
Ruled By: CHEDA J

HH251-10 : STEPHEN PASIPANODYA (In his capacity as the executor in the estate of the late Edna Pasipanodya) vs TRACY RUWIZHI and THE DIRECTOR OF HOUSING MUNICPALITY OF CHITUNGWIZA
Ruled By: BHUNU J

HB72-10 : ETTAH NCUBE and CAIN MOYO vs JOEL NCUBE and JULIUS SIBANDA and DEPUTY SHERIFF
Ruled By: NDOU J

Appealed
HH183-14 : MUGUMBATE KENNETH and GOHODZI GOHODZI and MASINIRE RICHARD and MATEKU FUNGISAI and MLAMBO TINASHE and NYAMUZIWA RINASHE vs UNIVERSITY OF ZIMBABWE
Ruled By: MAFUSIRE J

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

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

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ

Appealed
SC43-19 : AFRASIA BANK ZIMBABWE LIMITED (IN LIQUDATION) vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

View Appeal
HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

View Appeal
HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA
Ruled By: CHIGUMBA J

HHB62-15 : MICHAEL BIDDLECOMBE vs THE STATE
Ruled By: TAKUVA J and MOYO J

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI
Ruled By: MAWADZE J and MAFUSIRE J

Categories

Law Portal Zimbabwe

Consensus Ad Idem re: Mistake, Error, Justus Error or Reasonable Mistake and the Language of Record

HH27-09 : ZIMRE PROPERTY INVESTMENTS LI MITED vs JOANDRISA ANIMAL FEEDS (PVT) LTD Ruled By: UCHENA J

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

HH160-09 : SMART GONONDO vs ALICE MUTEPFA and PORTIA NYAMAROPA and CITY OF MUTARE (DIRECTOR OF HOUSING) Ruled By: MAVANGIRA J

HB24-09 : SIKHULILE MOYO vs THABANI KHUMALO and ESTATE LATE SIBONILE MLILO (represented by Bongani Ndlovu) and ASSISTANT MASTER OF HIGH COURT, BULAWAYO and CITY OF BULAWAYO Ruled By: CHEDA J

HH251-10 : STEPHEN PASIPANODYA (In his capacity as the executor in the estate of the late Edna Pasipanodya) vs TRACY RUWIZHI and THE DIRECTOR OF HOUSING MUNICPALITY OF CHITUNGWIZA Ruled By: BHUNU J

HB72-10 : ETTAH NCUBE and CAIN MOYO vs JOEL NCUBE and JULIUS SIBANDA and DEPUTY SHERIFF Ruled By: NDOU J

Appealed HH183-14 : MUGUMBATE KENNETH and GOHODZI GOHODZI and MASINIRE RICHARD and MATEKU FUNGISAI and MLAMBO TINASHE and NYAMUZIWA RINASHE vs UNIVERSITY OF ZIMBABWE Ruled By: MAFUSIRE J

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

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

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ

Appealed SC43-19 : AFRASIA BANK ZIMBABWE LIMITED (IN LIQUDATION) vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

View Appeal HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS Ruled By: CHAREWA J

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

View Appeal HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA Ruled By: CHIGUMBA J

HHB62-15 : MICHAEL BIDDLECOMBE vs THE STATE Ruled By: TAKUVA J and MOYO J

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI Ruled By: MAWADZE J and MAFUSIRE J

Categories

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Law Portal
Zimbabwe

HH27-09 : ZIMRE PROPERTY INVESTMENTS LI MITED vs JOANDRISA ANIMAL FEEDS (PVT) LTD
Ruled By: UCHENA J

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

HH160-09 : SMART GONONDO vs ALICE MUTEPFA and PORTIA NYAMAROPA and CITY OF MUTARE (DIRECTOR OF HOUSING)
Ruled By: MAVANGIRA J

HB24-09 : SIKHULILE MOYO vs THABANI KHUMALO and ESTATE LATE SIBONILE MLILO (represented by Bongani Ndlovu) and ASSISTANT MASTER OF HIGH COURT, BULAWAYO and CITY OF BULAWAYO
Ruled By: CHEDA J

HH251-10 : STEPHEN PASIPANODYA (In his capacity as the executor in the estate of the late Edna Pasipanodya) vs TRACY RUWIZHI and THE DIRECTOR OF HOUSING MUNICPALITY OF CHITUNGWIZA
Ruled By: BHUNU J

HB72-10 : ETTAH NCUBE and CAIN MOYO vs JOEL NCUBE and JULIUS SIBANDA and DEPUTY SHERIFF
Ruled By: NDOU J

Appealed
HH183-14 : MUGUMBATE KENNETH and GOHODZI GOHODZI and MASINIRE RICHARD and MATEKU FUNGISAI and MLAMBO TINASHE and NYAMUZIWA RINASHE vs UNIVERSITY OF ZIMBABWE
Ruled By: MAFUSIRE J

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

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

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ

Appealed
SC43-19 : AFRASIA BANK ZIMBABWE LIMITED (IN LIQUDATION) vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

View Appeal
HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

View Appeal
HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA
Ruled By: CHIGUMBA J

HHB62-15 : MICHAEL BIDDLECOMBE vs THE STATE
Ruled By: TAKUVA J and MOYO J

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI
Ruled By: MAWADZE J and MAFUSIRE J