In 1989, the plaintiff and defendant married each other in terms of customary law. Their marriage was however not registered. After a period of about ten years living together in the manner of husband and wife they decided to have their marriage solemnized in terms of the Marriages Act [Chapter 5:11] of the laws of Zimbabwe. Their marriage was thus solemnized on 11 February 1999 at Harare in terms of the Marriages Act. That marriage still subsists.

Their marriage was blessed with two children who were born in 1991 and 1998 respectively.

After a period of about ten years from the year their marriage was solemnized, some unhappy differences between the parties became unbearable and the plaintiff opted to seek a decree of divorce. On 9 April 2010, the plaintiff sued the defendant for a decree of divorce and other ancillary relief.

The plaintiff alleged that the marriage relationship has irretrievably broken down to an extent that it cannot be restored to a normal marriage relationship for the following reasons:

(1) The defendant is verbally abusive towards the plaintiff and generally disrespectful;

(2) The defendant is not financially responsible;

(3) The defendant has lost all love and affection for the plaintiff; and

(4) The defendant has a child born to an adulterous relationship with another woman.

As a consequence of this, the plaintiff believed the marriage has irretrievably broken down. She therefore sought a decree of divorce.

During the subsistence of the marriage the parties acquired movable property of which she sought to be awarded most of that property.

She also sought an order awarding her custody of the minor child with the defendant being ordered to pay monthly maintenance for the upkeep of that child.

She further sought an order for costs.

The defendant, in his plea, denied being abusive and financially irresponsible. He however did not deny that he fathered a child as a result of an adulterous relationship he had with another woman. He equally did not deny that the marriage has irretrievably broken down.

The defendant raised a claim in reconvention.

In his claim, he sought an order distributing the movable property according to his own schedule. He alleged that the parties also acquired an immovable property, namely, Stand No.458 Glen Norah A, Harare. He thus sought an order awarding him that immovable property.

The plaintiff's plea to the defendant's claim for the immovable property was to the effect that that immovable property was bought by the plaintiff alone and not by the parties. It should therefore be awarded to the plaintiff.

At a pre-trial conference, most of the issues were settled. The parties agreed that:

(1) The marriage between them has irretrievably broken down and so a decree of divorce should be granted;

(2) Custody of the minor child, Charmaine Tadiwanashe Sande (born 30 January 1998), be awarded to the plaintiff with the defendant exercising reasonable rights of access.

(3) The defendant pays maintenance for the minor child at the rate of USD50 per month and that he buys a set of school uniform for the child twice a year;

(4) The defendant shall contribute towards the adult child's University education;

(5) The manner of sharing of all the movable property.

The issues referred for trial comprised:

(1) Whether or not the defendant is entitled to claim a share in the immovable property known as Stand 458 Glen Norah Township of Glen Norah, Harare.

(2) If the defendant is entitled to a share in the said immovable property, what share is he entitled to?

(3) Whether or not there should be an award of costs against the defendant.

The plaintiff gave evidence and tendered a number of documentary exhibits in support of her case. The defendant thereafter gave evidence contending that he is entitled to a 60% share of the immovable property....,.

The contentious issue pertains to the immovable property, namely, Stand number 458 Glen Norah A, Harare.

From the evidence adduced in court it was common cause that the parties' first immovable property was a residential Stand in Ruwa. That Stand was bought after the defendant obtained a loan from his employer. Though the parties are not agreed as to the eventual contribution of each one, they are, however, agreed that the Stand was registered in their joint names and that both of them directly contributed to its purchase price. This Stand was sold after the purchase of Stand 458 Glen Norah A (the immovable property in question).

The immovable property in question was acquired in 1999 whilst the Ruwa Stand was sold, at the earliest, in 2000, as that is the year the defendant's loan towards that Stand was paid off. The parties are however not in agreement on the manner in which the proceeds from the sale of the Ruwa Stand were utilized.

The defendant contended that part of the proceeds went towards clearing the balance of the plaintiff's loan for the purchase of the Glen Norah house, partly towards the purchase of a pick-up truck, and the balance towards improvements to the Glen Norah house.

The plaintiff denied that any of the proceeds went towards the Glen Norah house. She maintained that the defendant used all the proceeds, including her 50% share, towards the purchase and repairs to a pick-up truck the defendant stubbornly bought.

The plaintiff argued that she should be awarded the immovable property because she is the one who bought it and she will be the one staying with the children.

She tendered documents showing that she applied for a mortgage loan from her then employer, Standard Chartered Bank. She was granted the loan in the total sum of $455,000 to enable her to buy Stand number 458 Glen Norah A, Harare. This amount comprised the full purchase price of $435,000 and transfer fees. The loan was to be repaid through deductions from her salary over a period of 300 months. She repaid the loan in about five years due to additional income she got from her employment such as staff bonus and profit sharing scheme that her employer devised for its employees. She argued that during the period of loan repayment the defendant did not assist her at all. The defendant had in fact been against the idea of the plaintiff purchasing the house. The plaintiff categorically refuted the defendant's contention that proceeds from the sale of the Ruwa stand were used to pay off her loan.

The plaintiff also tendered the agreement of sale and the Deed of Transfer both showing that they were in her name as the purchaser and owner.

The defendant's evidence was to the effect that he contributed about 80% of the purchase price for the Ruwa Stand whilst the plaintiff contributed about 20%. For the Glen Norah house, the plaintiff's contribution was about 20% by way of loan from her employer and the balance of the purchase price was from proceeds of sale of the Ruwa Stand. He contended that his contribution in the Glen Norah house must be assessed on the basis of his greater contribution in purchasing the Ruwa Stand which, in turn, was a greater contribution towards clearing the plaintiff's loan. In the circumstances, he believed he deserved a 60% share in the Glen Norah house.

The defendant did not however have any documentary proof of his assertions. The defendant's excuse for lack of such proof was that the plaintiff had destroyed all the documents to do with the Ruwa Stand.

At the end it became a question of his word against the plaintiff's word as supported by her documents.

Whilst the plaintiff's evidence was consistent with his pleadings, the defendant found herself having to alter some aspects of her pleadings in light of what had been accepted as common cause. 

A careful analysis of the evidence adduced in court shows that the defendant's case is fraught with inconsistencies.

The plaintiff, as represented by its Managing Director, Ms Elizabeth Chidavaenzi, issued summons out of this court on 9 June 2008 seeking the ejectment of the defendant from Stand number 3182 of subdivision A of Stand 159 Prospect in Harare ('the property').

On 2 October 2008 the defendant filed her plea and sought the dismissal of the plaintiff's claim on the basis that she was a legitimate possessor and occupier of the property in question, the right, title and interest in the property having been lawfully transferred to her by virtue of “the declaratory order issued by this court under case number HC7594A/06”.

It was further the defendant's contention that she was in occupation of the property pursuant to a sale agreement entered between herself and a company called Champion Constructors (Pvt) Ltd.

Alternatively, it was contended, by the defendant, that the plaintiff was estopped from denying that the seller, Champion Constructors (Pvt) Ltd, was the holder of rights, title and interest in, and was entitled to dispose of the property in the manner it allegedly did.

The Evidence

In support of its contention, the plaintiff relied on the evidence of its Managing Director and representative, Ms Elizabeth Chidavaenzi. Several documentary exhibits were tendered in support of the plaintiff's position which was mainly an unequivocal denial of Champion Constructors (Pvt) Ltd having been authorized to dispose of the property in the manner it did or at all.

The defendant relied on her own evidence together with the testimony of two former workers of Fingold Real Estate Agents which was said to have been mandated by Champion Constructors (Pvt) Ltd to dispose of the property to the defendant. In addition, reliance was also sought on several documentary exhibits…,.

The Issues

At the pre-trial conference which was held on 9 July 2007 the parties were unanimously agreed that the matter be referred to trial on basically two issues, viz;

(1) Whether the defendant has right of occupation over Stand number 3182 of subdivision A of 159 Prospect; and

(2) Whether the plaintiff has the right to evict the defendant from the property in question.

The Plaintiff's Evidence

The thrust of the plaintiff's representative's evidence was to demonstrate to the court that the plaintiff was the registered owner of the property in issue and that no mandate was given to anyone to sell the property.

The evidence, as presented by Ms Elizabeth Chidavaenzi, its Managing Director, who happens to be a major and controlling shareholder in both the plaintiff and Champions Constructors (Pvt) Ltd was that the property in issue was owned by the plaintiff as one of the 39 subdivisions of Stand 159 Prospect. Ms Elizabeth Chidavaenzi produced a title deed to confirm the ownership of this property by the plaintiff….,.

As regards the relationship between the plaintiff and Champion Constructors (Pvt) Ltd, it was Ms Elizabeth Chidavaenzi's testimony that the latter was contracted by the plaintiff to service the land and develop residential houses on the subdivisions and would be paid in kind for its services or in the form of completed houses which it would in turn sell to prospective home owners in order to recoup its expenses.

It was Ms Elizabeth Chidavaenzi's testimony that whilst in the past the plaintiff, through Champions Constructors (Pvt) Ltd, had mandated an estate agent called Fingold Real Estate to dispose two of its properties, it did not sanction the sale of the property in issue. According to this witness's testimony, this explains why the agreement pertaining to the defendant was not signed by the seller. To put it bluntly, she said it was a fraudulent sale which was masterminded by John Chagaresango (an employee of Finglold Real Estate) who is a close relative of the defendant.

Ms Chidavaenzi believed that John Chagaresango acted in collusion with his erstwhile fellow sales agent Ms Mutodi. It was the witness's further testimony that her attention to the 'agreement' signed by the defendant on 26 September 2006 was drawn to her for the first time ever when the defendant's legal practitioners sent her a letter of demand in November 2006 in which the lawyers were demanding that she signs the 'agreement' and that her immediate reaction was simply not to ratify such a fraudulent agreement.

It was significant that, according to this witness's testimony, Fingold Real Estate, the supposed agent of Champion Constructors (Pvt) Ltd did not present the 'agreement' to her for her signature. The witness strongly believed that Fingold sales agents, who had had the privilege of doing work for her company in the disposal of two houses earlier on, took advantage of their inside knowledge of the project to fraudulently 'sell' the property in question to the defendant.

The witness was quite adamant that for the two properties which Fingold Real Estate Agents had been mandated to sell she had herself given Fingold Real Estate Agents written sale instructions on behalf of Champion Constructors (Pvt) Ltd as is the norm in the industry.

Through her testimony, the witness challenged Fingold Real Estate sales agents to produce her written instructions to them authorising them to sell the property in question.

No such written instructions were produced.

It was Ms Elizabeth Chidavaenzi's further testimony that even if one were to lean backwards and accept for a moment that there had been a proper agreement between the defendant and Champion Constructors (Pvt) Ltd, the defendant had not even made the slightest attempt to comply with various provisions of that agreement to the extent that the defendant would not have been able to enforce it. It is significant that this breach was accepted by the defendant and both Ms Mutodi and John Chagaresango, both of whom sought to justify it on the strength of some other oral promises allegedly made by Ms Elizabeth Chidavaenzi.

Ms Chidavaenzi commented on the final order granted in favour of the defendant…, She said this order was confirmed in default and that an attempt was made to oppose the confirmation of this order but failed on some technicality. The witness further said that the poor handling of this particular case was one of the reasons she severed ties with her erstwhile legal practitioners, namely, Messrs Mandizha and Company. Ms Chidavaenzi further explained that, at the time, herself and Champion Constructors (Pvt) Ltd were barred leading to the granting of the final order in question the parties were engaged in negotiations to try and amicably resolve this matter.

Ms Chidavaenzi's understanding was that the final order in question did not give the defendant the right of occupation but the right to enforce the agreement. She stated that from the time the defendant obtained the order in question she has made no attempt to enforce that order and that even if she had attempted to do so she would not have succeeded.

It was further the evidence of Ms Chidavaenzi that having discovered this fraudulent agreement which involved the defendant, purely out of compassion and consideration for the defendant she initiated negotiations to try and resolve the impasse and that the only original but heavily amended (in pen) document from Fingold Real Estate (which bears the name of Betty Kanyuchi as a replacement of Miss Sibongile Kaziboni) must be looked at within this context.

Indeed, correspondence…, confirm there were in fact some discussions which were carried out on a “without prejudice' basis.

The Defendant's Evidence

In summary, the witness's evidence dealt with how she came to be involved in the “purchase” of the property in issue having been assisted to do so by a close family member, John Chagaresango, a son to her elder sister. She said John Chagaresango was working for Fingold Real Estate Agents.

It was her accepted evidence that she had told John Chagaresango that she wanted to buy a house and that having seen a completed sample house and the house now in issue under construction, she was invited by her nephew, John Chagaresango, to sign an agreement of sale on 26 September 2006 which was witnessed by John Chagaresango, Mr Phiri, her advisor, and one Faith Muzungu a younger and literate relative of hers.

It was her testimony that after signing the agreement…, she commenced to pay in three different instalments on 28 September 2006, 9 October 2006 and 3 November 2006 a total Z$32,500,000=. She had difficulties in explaining why she paid an extra Z$500,000= if the price of the property was pegged at Z$32,000,000=.

She said that sometime in November 2006, after she had made three payments, she went to view progress of construction on site where she met Ms Chidavaenzi for the first time. It was her evidence that, on confronting her on delay in the construction, Ms Chidavaenzi commented that the witness was troublesome and that the house would be finished soon. The record of proceedings will show that despite this being a very critical part of the defendant's case, Ms Chidavaenzi was never cross-examined on her alleged encounter with the defendant.

It was the defendant's evidence that the terms of the agreement which she signed were never explained to her and that she was assured by John Chagaresango that Ms Elizabeth Chidavaenzi would sign the agreement upon full payment of the purchase price of the property.

The defendant further explained that she moved onto the disputed property and started making improvements towards finishing the house. Under cross examination she told the court that Ms Chidavaenzi did not authorise her to make any improvements. It was very clear that the defendant blindly signed the agreement of sale….,.

The Evidence of Evis Monica Mutodi

She was the second witness called by the defendant to bolster her case.

The witness has a fairly balanced academic background and her chain of qualifications were given as follows:- a Bachelar's degree in Chemistry and a Certificate in Education (both from University of Zimbabwe), a qualified examiner with Zimsec and a Diploma in Real Estate with the Estate Agents Council of Zimbabwe. She is a member of the Estate Agents Council of Zimbabwe. The witness said she had 4 years experience in real estate.

It was the witness's evidence that at the relevant time she was employed by Fingold Real Estate as a Sales Negotiator and had previously sold two properties on behalf of Champion Constructors (Pvt) Ltd in the same scheme as the house in issue. The witness said she did not know and never dealt with the plaintiff in this case but dealt with Champion Constructors (Pvt) Ltd.

Ms Mutodi said she got to know of the defendant through her then workmate, John Chagaresango, who introduced her as someone who was looking for a house to buy. She said she then telephoned Ms Chidavaenzi who positively responded by referring her to the house in issue as being available for sale. She then drove to the site with the defendant, John Chagaresango, and another member who she could not remember. On site they were cleared to view a completed sample house first before they proceeded to Stand 3182 (the Stand in issue). The defendant, having shown interest, expressed the desire to purchase the property after which the witness said she telephoned Ms Chidavaenzi to advise of the defendant's interest. It was her evidence that she advised Ms Chidavaenzi that John Chagaresango would be reporting to her office in pursuit of this transaction. She understood, thereafter, an agreement was drawn up but she did not take part in drawing up that agreement.

The witness was emphatic in her evidence in chief that she did not deal with the defendant other than driving her to the construction site. She also remembered that when they visited the Stand in question no work had commenced on that Stand.

Under cross-examination, the witness confirmed that when they visited the property in question no work had commenced on it. However, with further probing she appeared uncertain of what the exact position of the property was.

The difficulty with this witness's evidence was that her alleged telephone conversation with Ms Elizabeth Chidavaenzi, important as it was given the nature of the plaintiff's declaration…, was never put to Ms Chidavaenzi in cross-examination.

Secondly, Evis Monica Mutodi's evidence was characterized by unmistakable prevarication.

In her evidence in chief she said the initial instruction to sell the property in question was given to her by Ms Chidavaenzi. When questioned by the plaintiff's counsel in what form the instruction came, she said it was Ms Chidavaenzi's practice to put instructions on an agreement of sale for Fingold Real Estate.

Probed further, she said such instructions had been given to her over the telephone.

When that averment was further tested, under cross-examination, she changed and said the instructions were in fact given to Mrs Alec over the telephone in her presence but conveniently claimed not to have heard everything that was said.

In one breadth she said she was given the instructions in agreement form and that she had herself taken that initial instruction to the defendant's lawyers. When further probed she changed her story and said that those initial instructions to sell the property were in fact given to Fingold Real Estate typists.

The record of proceedings, particularly where this witness was cross-examined, will reveal a sorry state because at the end of her evidence she had presented a hopelessly confusing piece of evidence.

It must be remembered that this witness was very critical to the defendant's case in that she was supposed to provide the nexus between the original instructions to Fingold Real Estate by Ms Elizabeth Chidavaenzi leading to the alleged contractual agreement with the defendant.

That nexus was heavily compromised by the prevarication which characterized Ms Mutodi's evidence.

Against that prevarication is the clear and concise evidence of Ms Chidavaenzi which was to the effect that she did not authorize or mandate Fingold Real Estate or anyone for that matter to dispose of the property in issue.

It is also significant that the much talked about written initial sale instructions to Fingold Real Estate were never tendered in court. Ms Chidavaenzi was quite categoric that there were no such instructions, and, in my view, the probabilities are firmly in her favour.

There were other aspects of Ms Mutodi's evidence which were far from convincing. It is common cause that both Ms Mutodi and John Chagaresango were employed by Fingold Real Estate Agents as sales agents or negotiators. They had worked together for a fairly reasonable length of time. However, when pushed, under cross examination, Ms Mutodi said she did not know whether or not John Chagaresango was a registered estate agent. She also said she did not know John Chagaresango's qualifications.

Further, her evidence under cross-examination was not consistent with that of the defendant even on the purchase price.

The defendant said the purchase price was pegged at Z$32,000,000= but Ms Mutodi said she told the defendant that the price was Z$32,500,000=. Not only that, but Ms Mutodi told the court in her evidence under cross examination that she disclosed to the defendant about some clauses in the sale agreement. Compare this with the defendant's evidence who said she was never told anything including any escalation in the event of delayed payment and any other clause in the agreement. In fact, the defendant's explanation was that when it came to the agreement itself she dealt with her cousin John Chagaresango and not Ms Mutodi.

The witness was categoric that the purchase price of the property was Z$32,500,000 when everyone else involved in this transaction, including the defendant and John Chagaresango, including the written copy of the supposed agreement, reflect Z$32,000,000 as the purchase price.

As the cross-examination took its toll on her, Ms Mutodi reneged from her earlier evidence that she had personally negotiated the agreement itself with the defendant but rather had dealt with John Chagaresango.

There was more confusion when the defendant's counsel sought to put things right in re-examination. The witness again changed her story and stated that the instructions to sell were given to her and she passed them on to John Chagaresango.

I think, in all fairness, it would be extremely dangerous for this court to seek to be guided by the evidence of this witness. She sufficiently discredited herself and the record of proceedings will confirm this observation.

If Evis Monica Mutodi's evidence was so porous and unconvincing then perhaps it is time to move and look at the evidence of John Chagaresango.

The Evidence of John Chagaresango

This witness was the last one for the defendant and is closely related to the defendant in that he is a son to the defendant's older sister.

The witness told the court that he went as far as Standard Six and did undergo some in-house training as a sales agent at Fingold Real Estate. At the time, he had worked for Fingold Real Estate, as a sales agent, for about 3 and a half years.

From his own testimony, it was clear the witness was quite conversant with his work. He said he was involved in advertising houses for sale, taking potential purchasers to view houses for purchase, verifying ownership of houses by checking title deeds through the Surveyor General's office, and handling agreements of sale.

The witness confirmed that the defendant was indeed closely related to him and that she had mandated him to look for a house to purchase.

The witness told the court that he knew Ms Chidavaenzi as they worshipped at the same church and then later interacted with her at Fingold Real Estate as Ms Chidavaenzi was not only a friend of Ms Violet Alec, the owner of Fingold Real Estate, but had given Fingold Real Estate the mandate to sell certain of her properties.

It was the witness's evidence that he was familiar with the sale of the property in question. Throughout his testimony, he referred to the property in question as Stand 1382. However, the truth is that the correct reference of the property is Stand 3182.

It was quite revealing that John Chagaresango vividly remembered Ms Chidavaenzi instructing Fingold Real Estate to dispose three of her properties but conveniently he said he was only involved in the sale of this particular property which incidentally is linked to his aunt and is the subject of this dispute.

In contrast with the evidence of Evis Monica Mutodi, John Chagaresango told the court that prior to the defendant visiting the site for construction Mrs Violet, Ms Mutodi, Ms Chidavaenzi and himself had been to the site.

John further told the court that it was to him that Ms Chidavaenzi disclosed the purchase price of the property in issue. Compare this with the testimony of Ms Mutodi who had earlier on told the court that it was to her that this same disclosure was made.

John vividly remembered that the agreement of sale was prepared at Fingold Real Estate with him and Ms Mutodi present and having some imput in it. This was inconsistent with the evidence of Ms Mutodi who said, among other things, that she handed the original instructions to John and that once she did that she had nothing further to do with that agreement.

There was further confusion created by John Chagaresango's evidence when he suggested that once the agreements were done, he, together with Evis Monica Mutodi took those copies, together with the original instruction copy, to Ms Chidavaenzi at her office at Robinson House to have the copies signed. It was his evidence that Ms Chidavaenzi then asked them to leave those copies for her to scrutinize after which she would telephone them. John went on to say that when he later followed up on those documents, Ms Chidavaenzi told him not to worry as she would sign the documents.

This piece of John's evidence presented quite some challenge to the court for basically three reasons;

(i) Firstly, it was in sharp contrast with the evidence of Ms Mutodi who clearly stated that once she gave the original instructions to John Chagaresango she never had anything to do with this agreement. She did not herself testify on the visit to Robinson House.

(ii) The second reason why the court had difficulties with this evidence was that, important as it appeared in as far as the plaintiff's declaration was concerned, Ms Chidavaenzi, who was subjected to quite some long and searching cross-examination, was never specifically asked about this visit to her offices by both Ms Mutodi and John Chagaresango as well as John Chagaresango's follow ups.

(iii) Thirdly, and more importantly, is the fact that after the trial had started the defendant filed a supplementary summary of evidence in which she undertook to produce “the original draft agreement with handwritten alterations by Miss E Chidavaenzi which alterations she made at the time of sale before the final draft was produced. This is evidence of her mandate from Ms Chidavaenzi.”

The assumption was that this document was available and would be produced in court. Alas! it was never produced and the explanation by John Chagaresango as regards the fate of this document runs contrary to what the defendant's summary made on the 11^th hour with the indulgence of the court sought to portray.

John further told the court, under cross-examination, that he did not explain all the terms of the agreement to his aunt, the defendant. Asked to explain his reasons for not doing so he retorted as follows:

“I did not because the sale of this property was done on trust between Ms Chidavaenzi and myself.”

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

Assuming the agreement was indeed entered into, it was quite curious to the court that given the experience of John Chagaresango in real estate business, he would have failed to appreciate the significance of a written contract, particularly a contract with a variation clause which is as specific as clause 8 of the agreement which is sought to bind the parties in this case.

Surely, if the agreement was to be based on some other verbal assurances by Ms Chidavaenzi, would it have been prudent for a man in the mould of John Chagaresango to encourage his aunt to sign an agreement which was in sharp contrast with such verbal assurances. An inevitable question would then arise, why sign the agreement if one desires not to be bound by the terms above one's signature?

General Assessment of the Evidence

The evidence of the plaintiff's representative and Managing Director of both the plaintiff and the alleged seller, Champion Constructors (Pvt) Ltd, was precise and to the point. The witness was consistent throughout her testimony – firstly, in her plea, followed by her summary of evidence, her evidence in chief, and in her evidence under cross-examination that she did not give Fingold Real Estate, or anyone for that matter, the mandate to dispose of the property in issue and that what happened was tainted with fraud. She was quite clear that she only got to know about the alleged sale which had supposedly taken place on 26 September 2006 in November of the same year when a letter of demand had been dispatched to her by the defendant's legal practitioners and that she decided not to ratify such a fraudulent agreement.

The court was unable detect anything sinister in Ms Chidavaenzi being a major shareholder in both the above entities, that is Champion Constructors (Pvt) Ltd and the plaintiff.

The witness was subjected to a focused and thorough cross-examination, and, in my view, she acquitted herself extremely well and emerged unscathed.

One of the several pointed questions which was thrown at the witness in cross examination which demonstrated her focus and open-mindedness, which, in the court's view, gave some indication as to the possible motives behind the conduct of Evis Monica Mutodi and John Chagarasango in coming up with this idea of this 'sale' is captured in the record of proceedings as follows:-

“Q. Is there any probable reason why Ms Mutodi would go on to sell a specific Stand in respect of which she has no mandate?

A. A human being is not predictable, and, in this case, the most probable reason could have been money because on each sale they made they would earn a commission and Fingold confirms it that Monica Mutodi and John both shared the commission they earned from the unlawful sale.”…,.

As a witness, I found Ms Elizabeth Chidavaenzi focused, emphatic, confident, and convincing throughout the proceedings. Her evidence proclaimed loudly and boldly that there was no contract to talk about between Champions Constructors (Pvt) Ltd and the defendant.

The same cannot be said of the evidence of Evis Monica Mutodi and John Chagaresango. I have already tried to highlight some of the obvious shortcomings in their testimonies. Their evidence, individually and combined, was quite suspect as it failed to tally where it mattered most.

The evidence of the two witnesses was critical to the defendant's case because it was through them or one of them that the defendant's case was supposed to be anchored.

After listening to, and carefully weighing that evidence it became clear to the court that Fingold Real Estate could not possibly have been mandated to sell this property to the defendant by Champion Constructors (Pvt) Ltd or anyone for that matter. If my reading of the evidence is correct (which I am certain it is) then Fingold Real Estate could not possibly have acted as an agent of Champion Constructors (Pvt) Ltd.

We have a scenario where, at most, John Chagaresango acted as an agent of his aunt, the defendant, in looking for a house to purchase. If John abused his position at Fingold Real Estate then the defendant, by initiating this litigation, has targeted the wrong party. She is simply 'barking up the wrong tree.” The defendant's recourse should be against either Fingold Real Estate Agents or its identified former employees, John Chagaresando and Monica Mutodi, if it is true they shared the commission derived from the money paid by the defendant (which allegation incidentally stands unchallenged in the record of proceedings).

The effect of the order of this Honourable Court

That order was an order by default and it was affecting the parties cited therein, viz, the defendant in the instant case, Champion Constructors (Pvt) Ltd and Elizabeth Chidavaenzi.

Paragraph (a) of that order clearly stated that it was “legally binding and enforceable against Champion Constructors (Pvt) Ltd.”

It is common cause that the holder of title of the property in question is the plaintiff in this case, which was not cited in the proceedings of 19^th September 2007. It appears quite clear to me that this order could not possibly have been fully enforced without the citation of the holder of title - the plaintiff.

This might possibly explain why almost three years after obtaining that order the defendant has not attempted to enforce it. The defendant might have fully appreciated the futility of pursuing that route.

In any event, it is doubtful that if the court sitting on 19 September 2007 had been fully armed with the evidence presented in this fully fledged trial would have granted that order. In my view, the court would have been constrained to grant that order given that the title holder was not party to those proceedings. No court desires to be associated with a brutum fulmen decision.

Is the defendant a bona fide possessor?

It is abundantly clear from the evidence that the defendant obtained an order from this court on 19 September 2007 which called upon her to enforce it. The defendant has, from that time, adopted a lackadaisical approach in dealing with that order. She has made no effort to enforce that order and does not seem to be in a hurry to do so.

Instead, as the plaintiff's counsel has correctly observed, the defendant has simply moved onto the property without attempting to properly enforce the order.

The defendant is fully aware that the plaintiff was vehemently opposed to her occupation. Not only that, but when she occupied the property she embarked on unauthorized improvements on the disputed property. I believe that under such circumstances the defendant cannot qualify to be an innocent possessor of the property in question.

In any event, in the light of the findings of the court, the defendant is in a fraudulent agreement masterminded by her own agent, John Chagaresango, and is therefore disabled from deriving any benefit awarded to a bona fide possessor. The defendant must have recourse against either her agent or Fingold Real Estate Agents.

The position the defendant finds herself in was aptly put by RH CHRISTIE, Business Law in Zimbabwe, Juta and Co. Ltd 1985…, in the following:

“But, if the agent fraudulently misrepresents his authority he is liable in delicit for all consequential damages that are not too remote.”

Does the defendant have a right of lien?

The point has been made by the defendant's counsel that the defendant is a bona fide possessor, and, as such, has a lien or ius retentionis to enforce her right to compensation for the improvement she made on the property in issue.

The plaintiff's counsel is of the firm view that the defendant has recourse against her cousin and agent who fraudulently masterminded her entering into an agreement with a non-existent principal.

SILBERBERG and SCHOEMAN, The Law of Property, second edition, published by Butterworth, 1983…, admirably deal with this issue of lien when they state;

“By definition, a lien holder's right lies against the owner of the property which he has maintained, repaired, or improved…,. The headnote of the report states that Brooklyn House case is also authority for the proposition that a person who has improved property of another, in pursuance of a contract with a third party, has the same rights as a person who has merely protected it against loss or damage…,.”

See also Brooklyn House Furnishers (Pvt) Ltd v Knoetze and Sons 1970 3 SA 264 (A) for further guidance on the issue.

It does seem to me that the issue of a lien, not having been pleaded in the alternative or the defendant not having counter-claimed for compensation for the improvements made, that issue falls squarely outside the purview of the enquiry that must seize me. For this reason, this issue which is not part of the pleadings but was only given prominence in court addresses is irrelevant in the enquiry before me. The issue does not call for consideration in this matter for a case is rooted in the pleadings and not in court addresses.

What the plaintiff has successfully established in this case is that it is the holder of title of the property in question and that it did not mandate anyone to dispose of that property. Consequently, the defendant cannot use her improvements as a weapon or defence against her eviction. She can only file a claim if she so desires - but after vacating the premises in question. In this regard, I lean on the reasoning or the ratio in the case of Syfrets Participation Bond Managers Ltd v Estate Co-op Wine Distributors (Pvt) Ltd 1989 (1) SA 106 (T). Although the case involved improvements made by a tenant, I am satisfied that the same principle would apply in the instant case.

Overally, I am satisfied that the plaintiff's case is with merit and judgment is accordingly entered in its favour.

IT IS ORDERED;

1. That the defendant be and is hereby evicted from the property being Stand 3182 of subdivision 'A' of Stand 159 Prospect within seven days from the date of this order.

2. That the defendant pays costs of suit.

The cause of action in this case arises out of an alleged breach of contract by the defendant for the supply of 20 IBM A50 desktop computers (computers) to the plaintiff.

The plaintiff is suing the defendant for specific performance or payment of damages in lieu thereof.

At the commencement of the trial, the plaintiff applied to amend the damages figure or the summons to read $9,792,245,000 000 instead of $7,800,000,000. The amendment was meant to address the effect of inflation on the original figure. Counsel for the defendant did not oppose the application for amendment. I granted the application for amendment, and, consequently, the plaintiff's claim herein is for:

“(a) An order that the defendant supply and deliver to the plaintiff a total of twenty (20) IBM A50 desktop computers forthwith alternatively an order that defendant pays to plaintiff a total of $9,792,245,000,000 representing the current value of the said computers.

(b) Interest on the amount representing the value of the computers from the date of summons to the date of payment; and

(c) Costs of suit.”

It is common cause, that, on 23 February 2005 the plaintiff ordered from the defendant a total of thirty (30) computers. Each computer was quoted at a price of $9,860,400, bringing the total cost, including V.A.T. payment, to $340,183,800. This amount was then paid in full on 28 February 2005. The defendant, however, only managed to deliver ten (10) computers on 2 March 2005. This left a balance of twenty (20) computers.

It is the non-delivery of these twenty (20) computers that has led to this court action.

The defendant explains non-delivery by citing the failure to obtain the requisite foreign currency allocation from the Reserve Bank of Zimbabwe through the auction system which was then in operation. It is the defendant's position that both parties were fully aware that the amount paid by the plaintiff would be utilised for the purchase of foreign currency in order to meet the requirements of the defendant's foreign supplier, namely, a company called 'TriContinental Limited' (Tri-Continental).

However, the plaintiff's position is that delivery was to be effected soon after payment and the total amount paid represented the full payment for the thirty (30) computers ordered.

In view of the different positions taken by the parties, it was agreed that the issues for determination in this trial would be:-

“(1) What were the terms of the Agreement between the parties?

(2) Whether it was agreed, as between the parties, that the defendant would supply the computers upon receiving foreign currency allocation by the Reserve Bank of Zimbabwe.

(3) Whether the plaintiff is entitled to the order sought.

(4) Whether the defendant is liable to the plaintiff in damages.”

The plaintiff called two witnesses to support its case, and, through the witnesses, it submitted a total of nine (9) exhibits.

The first witness called by the plaintiff was Mr Patrick Gwara (“Mr Gwara”) who said he is currently employed by the plaintiff as a Stores Supervisor with the main responsibility of taking care of the plaintiff's stocks.

Mr Gwara testified that upon an evaluation of quotations the defendant was awarded the contract/tender to supply the plaintiff with thirty (30) computers. He said upon being paid the sum of $340,180,800 to cover the total cost of the computers, the defendant delivered ten (10) computers. The ten (10) computers were received by the plaintiff on 2 March 2005. That left a balance of twenty (20) computers already paid for.

It was Mr Gwara's evidence that at the time of placing the order with it, the defendant had indicated that it had twenty-five (25) computers in stock and 'it would get the other five (5)'.

He said, apart from paying the requisite purchase price for the computers, the plaintiff was not aware of the financial arrangements between the defendant and its suppliers.

He went further to say if the plaintiff had known that the defendant would face supply problems, it (plaintiff) would not have placed the order with the defendant. This was so because the computers were needed urgently for its Harare and Bulawayo offices.

Under cross-examination, Mr Gwara said he was not aware that his seniors had moved the delivery date to 1 July 2005 as indicted in the replication. He however maintained, that, as far as he was concerned, delivery was to be made soon after payment. He said that although the plaintiff had in the past accepted long delivery periods with respect to other contracts, this was not the case with respect to the thirty (30) computers because they were needed urgently.

The contract/tender had been awarded to the defendant on the basis that it had the computers in stock.

Mr Gwara denied knowledge of the offer by the defendant to refund the plaintiff. He said as far as he was concerned the plaintiff wanted delivery of the twenty (20) computers.

The second witness called by the plaintiff was Mr Mischeck Chigatse (“Mr Chigatse”). He said he is employed by the plaintiff as a Procurement Officer.

Mr Chigatse was, in that capacity, responsible for the procurement of goods and services for the plaintiff. He was, however, not aware of the issue of the thirty (30) computers since the contract had been entered into before he was employed by the plaintiff.

The witness, however, gave evidence on current prices of computers such as those forming the subject of the dispute herein. He said the prices ranged from $300 billion to $700 billion. His evidence was based on three (3) quotations obtained by the plaintiff. He said based on the quotations, the current price of a similar computer to the one that had been ordered by the plaintiff would be $489 billion.

The defendant called only one witness to support its case.

It called Mrs Doreen Nyamusara (“Mrs Nyamusara”). She said she joined the employ of the defendant in April 2005 as a Finance Manager but was, as from January 2008, promoted to the position of General Manager. She told the court that she was unaware of the details of the contract in issue since she joined the employ of the defendant when the contract had already been concluded. She was, however, involved in negotiations with the defendant's suppliers for the delivery of the remaining twenty (20) computers.

Mrs Nyamusara testified, that, at one stage the defendant had asked the plaintiff to participate in the auctions(s) for foreign currency. The plaintiff had refused to do so. She said after all efforts to obtain foreign currency had failed to produce results, the defendant had offered to refund the plaintiff. The plaintiff had, however, declined the offer, insisting that it wanted delivery of the computers.

Mrs Nyamusara also stated that the parties failed to resolve the matter amicably largely due to differences in the calculation(s) of interest. As a result of the differences, the matter was never resolved amicably. This was notwithstanding the fact that the defendant made a payment of $1,392,000 through the plaintiff's legal practitioners – which payment was still being held by the plaintiff's legal practitioners.

Under cross-examination, she agreed that the sum of $1,392,000 was too little to pay for the twenty (20) computers.

Also admitting that the type of computers originally ordered by the plaintiff had been phased out, Mrs Myamusara said a similar computer (ie A55 Lenovo) would, as per exhibit 24, cost $143,750,000,000.

Counsel for the plaintiff submitted that there was no doubt that delivery was to be effected immediately upon payment of the full purchase price. He said the issue of foreign exchange was only brought up in an effort to justify a clear breach of contract by the defendant. He said, that, in concluding the contract the issue of foreign exchange was never raised. He said the quotations which resulted in the award of the contract were in local currency – with the foreign exchange element having been taken into account. It was his view that if indeed the issue of foreign exchange had been a factor, the parties would have said so upon executing the contract.

He urged the court to dismiss the defendant's defence based on the shortage of foreign currency because it came as an afterthought.

Relying on RH CHRISTIE's The Law of Contract in South Africa 3ed, counsel for the plaintiff submitted that 'an impossibility to perform must be absolute'.

He argued that, in casu, that defence was not available, and, as such, the defendant was clearly in breach and was liable for the prejudice suffered by the plaintiff. To that end, counsel for the plaintiff prayed either for the delivery of the twenty (20) computers or payment of damages representing the current market value of the computers.

Counsel for the plaintiff submitted, that, if payment of damages were to be ordered, the sum of $9,792,245,000,000 would be reasonable because it would enable the plaintiff to procure the computers on its own. That value, he argued, had not been challenged.

The primary aim in asking for damages was to put the plaintiff to where it should have been were it not for the breach of contract by the defendant.

Counsel for the plaintiff further submitted that the issue of money paid to the plaintiff's legal practitioners should not be allowed to cloud the issues before the court. That money could still be recovered.

Counsel for the defendant submitted that the dispute was mainly on the issue of the delivery dates.

She said that the parties were not agreed on what was the delivery date. She, however, agreed that the defendant's only witness could not testify to the terms of the contract since it was concluded before she joined the defendant's employ.

Counsel for the defendant submitted, that, as per the plaintiff's replication, the delivery date in terms of the contract should have been 1 July 2005. That, according to her, meant there was no question of immediate delivery in line with the parties' conduct on previous supply contracts. She went further to suggest that the failure by Mr Gwara to explain the averment in the replication referring to 1 July 2005 supported the defendant's case in the sense that a delay of some four months after payment meant that the computers would be delivered only after the defendant had paid its supplier, namely, Tri-Continental. Payment involved foreign currency.

It was therefore counsel for the defendant's submission that the plaintiff, despite denial, was aware from inception that delivery of the computers would only be effected after the procurement of foreign exchange by the defendant. Accordingly, when that became impossible, it meant the defendant could no longer deliver as had been agreed.

The failure to obtain foreign currency was, in her view, a supervening impossibility which served to extinguish the defendant's obligations under the contract.

She said according to JOUBERT's General Principles of the Law of Contract, the defence of a supervening impossibility was available to the defendant. To that end, she quoted JOUBERT's General Principles of the Law of Contract …,where he states:-

“Performance may become either absolutely or relatively impossible after the conclusion of the contract. In the case of absolute or objective impossibility of performance the rule is undoubtedly that the duty of the debtor to perform is extinguished….,.”

On the basis of the above, counsel for the defendant submitted that it was improper for the plaintiff to insist on specific performance. In so doing, she argued, the plaintiff had contributed to its own loss.

She said the loss would have been mitigated if the plaintiff had accepted the refund offered in May 2005.

The defendant had, all the same, gone ahead to refund the plaintiff with a sum of $1,362,980=32. That money was still being held in trust by the plaintiff's legal practitioners. The amount, it was argued, had been calculated properly, and, therefore, the defendant's view was that the plaintiff had been refunded in full. There was therefore no basis for this action.

On the possibility of the court finding in favour of the plaintiff and ordering payment of damages, counsel for the defendant submitted that the figures quoted by the plaintiff were excessive and did not accurately reflect the current prices for the originally ordered computers.

She said although there was no case for damages, the defendant's own quotation of $143,750,000, would represent a reasonable figure.

The fact that the plaintiff's loss would have been mitigated if it had participated in foreign currency auctions or had accepted the refund as offered in May 2005 could not be ignored. Accordingly damages payable, if any, should be reduced, she argued.

Counsel for the defendant also urged the court to be cautious when evaluating Mr Gwara's evidence. She said this was so because Mr Gwara had denied knowledge of the refund issue yet there was evidence that correspondence on the issue was copied to him.

I shall, taking into account evidence from both parties' witnesses and submissions by their legal practitioners, now deal with the agreed issues for determination….,.

In dealing with this matter, I believe that a finding of whether or not delivery of the computers was subject to the availability of foreign currency to meet the defendant's suppliers' financial requirements will greatly narrow issues for consideration.

In order for that argument to succeed, the court has to be convinced, that, in paying the sum of $340,183,800 the plaintiff was fully aware that this was merely part payment which would go towards the purchase of foreign currency.

There must be evidence that the defendant made it clear to the plaintiff that delivery would be dictated by the availability of foreign currency to meet the requirement of Tri-Continental, its supplier. This is clearly so, because, apart from quotations and payment confirmations, the contract terms were not reduced to writing.

In casu, the evidence from papers and that led in court leads me to the conclusion that the defendant cannot avail itself to the defence of a supervening impossibility.

This is so because it is clear to me that the plaintiff gave the contract/tender to the defendant on the understanding that the computers were in stock and readily available. All what the plaintiff was required to do was to effect full payment and then delivery would follow immediately.

The defendant had indeed indicated to the plaintiff that it had the computers in stock - at least twenty-five (25) of them.

The plaintiff effected full payment on 28 February 2005. Payment was in accordance with the defendant's quotation for the delivery of thirty (30) computers.

Contrary to the defendant's legal practitioner's perception of Patrick Gwara, I found him to be a credible witness who knew exactly what took place when the contract was entered into between the two parties. His failure to know subsequent details of discussions between the plaintiff's senior management and the defendant's representatives, on the issue of delivery times and the refund, should not be allowed to carve a dent into his evidence.

The witness, Patrick Gwara, was adamant that the issue of foreign currency was never raised when the contract was granted to the defendant. He pointed out that if at all the plaintiff knew there would be problems of foreign currency the contract would not have been granted to the defendant. The plaintiff needed the computers urgently and the defendant had indicated that it had twenty-five (25) in stock and would look for the other five (5).

That evidence was never satisfactorily challenged in court.

All the defendant could say was that the computers were in stock at Tri-Continental.

Clearly, if that detail was necessary, the defendant could have revealed it to the plaintiff at the time of concluding the contract.

That was not done, and, as submitted by the plaintiff's legal practitioner, I hold the view that the price quoted in Zimbabwean dollars included the foreign exchange component.

Indeed, even upon the speedy delivery of ten (10) computers, there was no mention of a possible top up to cater for the foreign currency element required for the remaining twenty (20) computers.

It is also significant to note that full payment was made on 28 February 2005, and, within a few days (ie. 2 March 2005) ten (10) computers were delivered.

That reinforces the issue of immediate delivery upon full payment and the availability of computers in stock in Zimbabwe.

As already indicated, the defendant has also argued that failure to procure foreign currency rendered performance impossible, and, hence, the defence of a supervening impossibility.

As correctly argued by the plaintiff's legal practitioner, that defence is not available to the defendant.

Right from the inception of the contract, the defendant made the plaintiff believe the computers were in stock in Zimbabwe. That is why within three (3) days the defendant was able to deliver ten (10) computers.

The issue of foreign currency only came up as an excuse for failure to deliver.

I am, therefore, on a balance of probabilities, satisfied, that, upon making full payment on 28 February 2005, the plaintiff had fully discharged its obligation under the contract. That means, the issue of foreign currency was never raised when the contract was concluded and did not therefore form part of the contract terms.

Upon failure to reach an out of court settlement, the plaintiff remained ready to accept delivery. This remained the plaintiff's position up to the hearing of this matter.

To that end, I would reject the defence of a supervening impossibility because my finding is that, when the contract was made, the defendant assured the plaintiff of immediate delivery upon payment, as evidenced by the delivery of the first ten (10) computers. There was no basis for the plaintiff to ever think or imagine that the remaining twenty (20) computers were not in stock.

The contract was not subject to the defendant being availed foreign currency by the Reserve Bank of Zimbabwe. If indeed that were the case, the contract would have said so.

As was submitted by the plaintiff's legal practitioner, the issue of an agreement becoming impossible of performance is fully covered by R.H. CHRISTIE in his book 'The Law of Contract In South Africa 3ed…, where he writes:-

“The Roman law principle that a contract is a nullity if, at the time it was made, it was impossible of performance forms part of our law.

'By the Civil Law, a contract is void if at the time of its inception its performance is impossible: impossiblium nulla obligatio (D50.17.185).'

But, the principle thus stated may easily be misunderstood and requires immediate qualification in four respects:

(i) First, the impossibility must be absolute as opposed to probable. The mere likelihood that performance will prove impossible is not sufficient to destroy the contract.

(ii) Second, the impossibility must be absolute as opposed to relative. If I promise to do something which, in general, can be done, but which I cannot do, I am liable on the contract.

(iii) Third, the impossibility must not be the fault of either party. A party who has caused the impossibility cannot take advantage of it and so will be liable on the contract.

(iv) Fourth, the principle must give way to the contrary common intention of the parties. This intention may be expressed, as when a seller expressly represents or promises that the merx exists. If it is found not to have been in existence at the time the contract was made, he will be liable for damages for breach of his promises or for his false representation if fraudulent or negligent. Or the common intention of the parties may be implied, as in the case of the sale or lease of a res aliena. The seller or lessor impliedly undertakes to deliver the property or to pay damages if he is unable to do so.”

In casu, there is nothing to suggest impossibility at the time of contracting or to suggest any conditionalities.

There is also nothing to suggest that the issue of foreign currency led to a complete paralysis of the defendant's business. To date, it is still in the business of selling computers.

As already stated, it is my finding that the defendant clearly represented to the plaintiff that he had the computers in stock, and, since the plaintiff needed them urgently, he gave the contract/tender to the defendant.

In breach of contract, and without any fault on the part of the plaintiff, the defendant delivered ten (10) computers only, leaving a balance of twenty (20) computers.

Clearly, therefore, and in line with the principles of law enunciated by R.H. CHRISTIE in the above quoted passage, the defendant is liable for specific performance or damages: see Lupu v Lupu 2000 (1) ZLR 120 (S).

The plaintiff still insists on specific performance or payment of damages to cover the cost of similar computers at today's prices.

I also did not hear the defendant to say it cannot perform.

The defendant is still in the business of selling computers.

Quotations were produced to indicate current prices for similar computers. The defendant produced one quotation and argued that the plaintiff's prices were for superior machines. The defendant said that a computer similar to the one originally ordered would cost $143,750,000,000. The plaintiff, however, believes that, in order for it to be put back to where it would have been had the twenty (20) computers been delivered, a sum of $9,792,245,000,000 should be payable in the event of failure by the defendant to deliver. That amount is based on quotations for each similar computer on exhibits 8 ($382,455,561,600), 9 ($489,622,500,000) and 10 ($776,250,000). Given the effects of inflation, the plaintiff recommended the midway price of $489,622,500,000.

The defendant, on its part, and despite denying liability, insisted that it was possible to procure similar computers at the price it quoted (ie. $143,750,000,000).

Counsel for the plaintiff submitted that the matter of a refund should not be allowed to cloud the real issues before the court.

I agree.

I believe the payment of $1,392,000, through the plaintiff's legal practitioners, only serves to confirm a failed attempt to settle the matter out of court. In any case, Mrs Nyamusara, who testified for the defendant, agreed that the money was too little to cover the cost of twenty (20) computers.

I hold the view that a party that is in clear breach should not be allowed to dictate the amount of damages that should be paid to the party that is not at fault, and, moreso, an innocent party that will have fully met its obligations under a contract. To allow that would be to encourage parties to pull out of contracts on the strength of their capacity to pay damages.

In International Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H), addressing the issue of specific performance, the late ROBINSON J…, had this to say:

“I would wind up by saying, that, if the right of specific performance is to be shown to have real meaning to businessmen, then, the loud and clear message to go out from the courts is: businessmen beware. If you fail to honour your contracts, then, don't start crying, if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract.

In other words, businessmen who wrongfully break their contracts must not think they can count on the courts, when the matter eventually comes before them, simply to make an award of damages in money, the value of which has probably fallen drastically compared to its value at the time of breach. Businessmen at fault will, therefore, in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain, no matter how costly that may turn out to be for them….,.”

I fully endorse the above sentiments.

In view of the foregoing, and having determined all the issues raised…, in favour of the plaintiff, I believe that, in casu, the circumstances demand that the relief prayed for by the wronged party, the plaintiff, should be given favour by this court.

Accordingly, I order as follows:-

1. That the defendant be and is hereby ordered to supply and deliver to the plaintiff twenty (20) IBM A55 (Lenovo) desktop computers forthwith;

2. That, in the event of failure to deliver as indicated in 1 above, the defendant be and is hereby ordered to pay the plaintiff damages in the sum of $9,792,245,000,000 forthwith;

3. That the amount referred to in 2 above shall be payable with interest at the prescribed rate from the date of summons to the date of payment; and

4. That the defendant shall bear the costs of this suit.

Exhibit 1B was purportedly executed on 28 October 1999.

The plaintiff purportedly sold her rights in the portion of the Stand where the main house was to be built for an additional payment of $7,000=. The amounts were to be paid on 30 February and 30 April 2000 in the sum of $4,000= and $3,000= respectively.

Again, the document indicates that the plaintiff signed the document. The defendant averred that it was signed by Eneresi Simon for her mother. The signature in exhibit 1B appears to be similar to the one in exhibit 1A and exhibit 3. The latter was an affidavit filed by the plaintiff for default judgment against the defendant but is different from the one in exhibit 4, an ex parte application for a peace order that she filed on 13 December 2001.

The defendant alleged that exhibit 1B was typed by Tedius Kagande. In his testimony, Tedius Kagande expressed ignorance about it. Unlike the defendant, Kagande alleged that he facilitated the purchase of the larger portion of Stand 1125. The defendant alleged that he paid the $7,000= on the due dates. He did not produce any proof of payment. The agreement records 30 February as a date for the payment of the first installment. Such a date does not exist. The application failed because the plaintiff was not then the registered holder of rights in the property, as averred by Cagewell Muzangaza and not because of the absence of a main house on the Stand, as alleged by the defendant.

The contradictions outlined above call into question the authenticity of exhibit 1B, especially in the face of the denials by the plaintiff and her daughter that they were involved in its creation and execution.

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

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

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

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

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

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

That form was however signed by the second defendant only.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The issues for determination were essentially three, namely:-

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

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

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

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

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

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

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

The prerequisite of ratification may be stated as follows:-

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

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

3. The contract must not be void.

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

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

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

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

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

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

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

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

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

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

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

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

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

The agreement of sale was executed on 18 August 2005.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He never ratified the Agreement of Sale in writing.

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

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

They did not impress me as reliable witnesses.

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

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

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

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

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

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

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

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

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

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

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

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

The plaintiff is a Commissioner in the Zimbabwe Republic Police. The defendant, a duly qualified dental surgeon, was, at the material time, also a member of the Zimbabwe Republic Police. She practiced her dentistry at the Police Camp Hospital and also at her surgery in town.

In June 2007, the plaintiff consulted the defendant complaining of sensitivity to his teeth. She examined him at the police hospital and later invited him to her surgery where she carried out some work on him. The work entailed extracting a tooth that was embedded in his gum. The extraction was not successful and she referred him to Professor Chidzonga, a specialist in the field, who finally extracted the tooth and also found out that, in the process, the plaintiff had suffered a fractured jaw. When the plaintiff's superiors visited him at his house, a decision was made that he be flown to South Africa for further management and treatment. He was duly attended to in South Africa and the fracture was reduced.

On 24 January 2008 the plaintiff issued summons out of this court against the defendant. He alleged that she had been negligent and had caused the fracture in his jaw. He claimed against her the sums of R10,000= for pain and suffering, R10,000= for loss of comfort and R78,000= as special damages.

The suit was defended.

In her plea, the defendant denied that she was negligent as alleged or at all. She further denied knowledge of the injury sustained by the plaintiff, and, in particular, that she fractured his jaw and suggested that this occurred at Professor Chidzonga's surgery where the tooth was extracted.

At the pre-trial conference of this matter, the parties settled the issues for trial as follows:

1. Whether or not the defendant undertook to perform surgery on the plaintiff with such professional skill as is reasonable for a qualified dentist?

2. Whether or not the defendant carried out the surgery on the plaintiff negligently as alleged by the plaintiff?

3. Whether or not the plaintiff suffered damages as a result of the defendant's negligence, and, if so, the quantum thereof.

At the trial of the matter, the plaintiff gave evidence. His evidence was as follows.

In early 2007, he visited the Police Camp Hospital. He was complaining of sensitivity in his teeth. He sought professional assistance from the defendant. She advised him that he required a dental cleaning session and that she needed to examine the exposed roots of his teeth. On the first visit, she applied some medication to his gums. She did not have adequate equipment at the hospital and could offer him treatment at her surgery. He accepted the offer. A week later he visited her surgery and she requested him to have an x-ray. A week later she called him and advised him that she had discovered a buried molar on the right side of his mouth. The tooth had to be extracted. On 26 June, he attended at her surgery for the tooth to be extracted. After taking him through the process, the defendant attempted to extract the tooth using a variety of tools. After some time he grew tired and was also in pain. She advised him that she had almost exposed the tooth. He then felt a sharp pain and told her to stop. He had been on her chair for two and a half hours. She advised him that he now required theater and she would refer him to Professor Chidzonga. She telephoned Professor Chidzonga's surgery and explained to them what she had already done. She wrote him a letter of referral and he left her surgery. He could feel that his jaw was heavy. It was painful.

At Professor Chidzonga's place he was taken into the consulting room, and, by that time, he could not talk. Professor Chidzonga took a small x-ray of the area. He then extracted the tooth in about 20 minutes. He suspected that the plaintiff had fractured his jaw. He could not develop the xray at that time and allowed the plaintiff to go home on a prescription for a mouth wash, a pain killer, and some antibiotics.

As he was driving home, he sent a message on his mobile phone advising the defendant that he was in terrible pain and was suspected of having fractured his jaw. His mouth was now quite heavy and he had to keep on holding his lower jaw. He was also bleeding profusely.

When he reported back to Professor Chidzonga's rooms the following day, the fracture was confirmed. Professor Chidzonga cleaned his mouth and immobilized the jaw. He placed him on a special diet and prescribed more medication.

The Commissioner-General of police visited him at home. At this time his entire face was swollen. He was incoherent. Arrangements were made for him to be flown to South Africa where he was accompanied by his wife.

In South Africa, the wires that had been used by Professor Chidzonga to immobilize his lower jaw were removed and replaced by bracelets. He was placed on a liquidized diet. On 29 July, he returned to the clinic in South Africa where a few of the bands holding his jaw together were removed. He could open his mouth by a fraction and could now use a spoon to eat porridge and yoghurt. In August, all the bands were removed and he was referred for physiotherapy. Around September, he returned to have all the bracelets removed. He was still on physiotherapy. He had to return for reviews in September and December 2007. In January 2008, he attended the final physiotherapy session here in Zimbabwe.

At the time of testifying, he could not chew hard things with his right hand side. He still felt some numbness in the side which he hoped would go away after some time.

The witness then applied to have affidavits by the three medical practitioners who attended to him in South Africa adduced into evidence. Also adduced were various documents, including air tickets from Harare to Johannesburg and invoices for the services rendered him in South Africa.

The witness gave his evidence well. He is fairly articulate. His responses to questions put to him under cross-examination were forthright. He did not seek to exaggerate. It is my finding that the witness was honest and truthful.

The plaintiff called Professor Median Chidzonga. He holds qualifications in dentistry and is a professor in maxillo-facial, oral and dental surgery. He has specialized in facial surgery and has thirty years experience under his belt. His evidence was as follows.

The plaintiff was referred to him by the defendant who wrote a note to him explaining that he should continue with the removal of a wisdom tooth that she had started working on as the plaintiff was now in severe pain.

After sitting the plaintiff in the chair, he took a radiograph of the site and then proceeded to examine him. He saw a socket where an incision had been made. He attempted to remove the tooth and it was during this process that he noticed that the jaw was not moving in unison. He requested the plaintiff to go for an x ray of the jaw. The following day the plaintiff brought back the x-ray and it showed that there was a fracture passing through the socket where he had removed the tooth. He reduced the fracture by wiring. He also obtained the results of the first radiograph he had taken when the plaintiff first visited him. It also showed that there was a fracture. Based on that radiography, he was of the view that the jaw was fractured before he started working on the plaintiff.

He further testified that it is not normal for jaws to be broken during tooth extractions. It is however possible. The possibility of this happening can be assessed through x-rays of the area taken before the extraction.

He was aware that the plaintiff later sought medical attention in South Africa. He was also aware that what was done in South Africa is similar to what he did on the plaintiff in reducing the fracture. The equipment used in South Africa is not available in this country but the expertise is.

Under cross-examination, the witness testified that the breaking of a jaw during a tooth extraction does not, in itself, denote negligence. Each case must depend on its facts. Even where a practitioner exercised all due care, at times, a jaw could still break.

Regarding the plaintiff's subsequent visit to South Africa to seek medical attention, he was of the view that this was not necessary as he could have attended to the plaintiff himself had the deteriorating condition of the plaintiff been brought to his attention.

The evidence of this witness was of great benefit to the court and great reliance shall be placed upon it in the resolution of the matter. He is an expert in his field and I would have been unable to form some of the conclusions I formed in this matter without his expert opinions.

After the evidence of this witness, the plaintiff closed his case.

The defendant testified. She narrated most of the facts that are common cause in this trial as to how the plaintiff approached her for assistance and what she did up to the time she referred the plaintiff to Professor Chidzonga. Regarding the allegation that she was negligent, her evidence was as follows;

The plaintiff's tooth was a difficult one. She did the best that she could to extract it without resorting to surgery. During the process, the plaintiff did not bleed profusely as he alleges. She however was putting water into his mouth during the process.

She was not aware that she had fractured the plaintiff's jaw during the extraction. Had she known, she would have put it in her referral letter to Professor Chidzonga. She only received a report from Professor Chidzonga who stated that, during the time he was extracting the tooth, he felt an abnormal movement to the jaw. She personally did not feel such movement.

The witness also gave her evidence well. Her evidence was, in the main, common cause with that of the plaintiff up to the time the plaintiff left her surgery. I have no reason to disbelieve her.

The defendant also called one Lewis Chidzambwa. He is a Dentist, holding a degree from a university in Finland. He has ten years experience.

The testimony of this witness was of a very general nature. He gave the court his views on what can cause pain to a patient undergoing tooth extraction, how each case is unique, and how fractures can occur in patients.

I found the evidence of this witness to be educative in a very general way.

After this witness was stood down, the defendant closed her case....,.

The plaintiff alleges that the defendant fractured his jaw during a tooth extraction. He further alleges that the fracturing of the jaw was as a result of negligence on the part of the defendant. Finally, the plaintiff alleges that, as a result of the fracture to his jaw, he suffered the various damages whose heads appear in his summons.

The factual issues that fall for determination in this matter present themselves to me as;

(i) Firstly, whether it was the defendant who fractured the plaintiff's jaw; and

(ii) If so, whether such fracturing was as a result of negligence on her part; and, again

(iii) If so, what damages did the plaintiff suffer?

I now turn to the first issue. It is to determine whether the fracture in the plaintiff's jaw was caused by the defendant.

I do not have any direct evidence in answer to this issue. The x-ray that was taken of the tooth area, after the defendant had referred the plaintiff to Professor Chidzonga, was not produced to show whether or not the jaw was fractured before Professor Chidzonga started working on the plaintiff. What was adduced into evidence was a photocopy of the x-ray which did not show anything. The copy of the x–ray was not accompanied by any report explaining the picture, and, as was correctly stated by Professor Chidzonga in his evidence in chief, the photocopy was not useful at all.

The plaintiff was of the firm belief that he suffered the fracture whilst receiving attention from the defendant. He is of this belief because he felt a sharp pain after an hour of drilling and wedging and he stopped the defendant from further proceeding. When he left the defendant's place, he was now holding his lower jaw. He urges me to infer that the sharp pain marked the point when his jaw fractured.

This is a reasonable belief on the part of the plaintiff but it is not the only reasonable inference that one can draw from the facts.

It is common cause that the plaintiff was under a local anesthetic that was now wearing off. The tooth extraction was causing him a lot of pain. The sharp pain could have been pain from the process which would have otherwise been masked by the anesthetic had it been working.

Professor Chidzonga testified that it was during the process of extracting the tooth that he noticed that the jaw was not moving in unison. He did not notice this during the examination of the plaintiff before he commenced the extraction. He then informed the plaintiff that he suspected a fractured jaw. The fracture was only confirmed the following day from xrays.

As indicated above, it would have made my task easier had the plaintiff produced the original x-ray that was taken prior to Dr Chidzonga commencing work on him. The absence of the x- ray and the evidence by Dr Chidzonga that he only noticed the irregular movement of the jaw during the extraction places me in a position where I cannot confidently hold that the jaw was broken at the defendant's surgery. This is compounded by the fact that neither Professor Chidzonga nor the plaintiff asked for leave to and opportunity to replace the useless photocopy with the original x-ray and no explanation was tendered for this omission.

Further, it was Professor Chidzonga's evidence that the x–ray that he took would only show the tooth and nothing much. He was not asked whether it would show the jaw and the fact that he referred the plaintiff to another facility for a bigger picture that would show the jaw seems to suggest to me that the radiograph that he took did not. In any event, neither the plaintiff nor Professor Chidzonga asked for time and opportunity to have the original radiograph adduced into evidence and no explanation was tendered for this omission.

I am unable to come to a conclusion as to where and when the fracture occurred from the evidence adduced before me. It could have occurred at the defendant's surgery. It could have occurred at Professor's Chidzonga's.

On the one hand, I have the testimony of the plaintiff feeling the sharp pain and the testimony of Professor Chidzonga that when he looked at the radiograph that he had taken in his surgery, he observed a fracture. This evidence seems to suggest that the fracture may have occurred at the defendant's. On the other hand, I have the missing radiography and the testimony of the defendant that she did not notice the irregular movement of the plaintiff's jaw when she was working on his tooth or else she would have included that in her written report to Professor Chidzonga.

Further, I have the testimony of Professor Chidzonga that he only noticed the irregular movement of the plaintiff's jaw when he was in the process of extracting the tooth. I also have his evidence that the x-ray he took in his surgery is of a localized nature, showing the tooth area, hence his request to the plaintiff for him to attend the Avenues Clinic for a bigger picture showing the jaw area as well. The learned professor was not asked on whether the localized x-ray he took would show the jaw area as well and to what extent. In my view, the fact that he referred the plaintiff for a bigger picture tends to suggest his one would not show the fracture to the jaw.

I have no crystal ball to gaze into for an answer to this issue. In my view, the balance of probabilities tilts in favour of no party and remains even to the detriment of the plaintiff who bears an onus to establish the facts that he relies on for his claim.

Assuming that I have erred and there is ample evidence upon which a superior court will find that the defendant did indeed fracture the plaintiff's jaw, I will proceed to give my opinion on the next issue which arises. This is to determine whether the defendant was negligent, as alleged, or at all, assuming she did fracture the plaintiff's jaw.

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.

The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.

The applicants challenge the validity of the second respondent's election as Speaker on several grounds.

They originally sought an order setting aside the second respondent's election, and, consequentially, an order nullifying all acts performed by him qua Speaker. However, at the hearing of this case, counsel for the applicants conceded the excessiveness and enormity of the consequential relief sought and opted not to pursue that aspect.

Background

By virtue of section 39(2) of the Constitution of Zimbabwe, the Speaker must be elected in accordance with the Standing Orders of the House of Assembly.

On the 25th of August 2008, following the swearing-in of Members of Parliament (Members), the first respondent announced the procedure for the election of the Speaker. As there was more than one person proposed as Speaker, the election was to be conducted by secret ballot as enjoined by Standing Order Nos. 4 and 6 of the House of Assembly.

According to the applicants, what ensued in Parliament thereafter was chaotic and disorderly and quite contrary to the requirements of a secret ballot.

The first respondent concedes that there was an unprecedented number of Members in the Chamber on that day but denies that the voting process was disorderly or improper. The second respondent supports this position and also raises several preliminary objections to the application, pertaining to locus standi, non-joinder, and the exhaustion of domestic remedies.

The Issues

In the event, the preliminary and substantive issues for determination in this matter, as I perceive them, are as follows:

(i)...,.

(ii)...,.

(iii)...,.

(iv) Whether the first respondent conducted the election of the Speaker properly and procedurally and whether Members belonging to the MDC-T party displayed their votes to their colleagues in Parliament.

(v) Whether the requirements of a secret ballot, as enjoined by the Standing Orders and the Constitution, were violated.

(vi) Whether the above irregularities, if any, justify setting aside the election of the second respondent as Speaker....,.

Conduct of Election

At the beginning of the election in casu, the first respondent laid out, in some detail, the procedure to be followed. However, during the election process, there were several deviations from the procedure prescribed, as appears from the papers and exhibits filed herein. In particular, some Members folded their completed ballot papers outside the polling booth and several MDC-T Members openly displayed their ballot papers to their colleagues. Again, most of the Members did not leave the Chamber after casting their votes.

All in all, it would appear that the first respondent did not stamp his authority on the conduct of the proceedings and was unable to prevent or stop the above-mentioned irregularities.

In his opposing papers, the first respondent explains that the membership of the House of Assembly had increased from 150 to 210 Members, all of whom were now elected and the majority of whom were opposition MDC Members. These factors contributed to a more exuberant atmosphere in the House which affected the dynamics of the election process. However, according to the first respondent, the proceedings were not disorderly or chaotic and all the Members in the House were able to vote freely and without any impediment.

Violation of Secret Ballot Requirements

Counsel for the applicants submits that the displaying of votes by participants in any election, as a matter of principle, violates the secrecy of the ballot because the votes displayed become known and influence the voting behaviour of the other participants.

In the specific case of an election to the position of Speaker, there are several compelling reasons for maintaining the secrecy of the ballot. On the one hand, the person elected to that position should remain unaware of how particular Members voted in order to retain his or her impartiality in the proceedings of the House. On the other hand, Members should be able to elect a Speaker endowed with the requisite authority and independence without fear of sanction from their political party or constituency. Moreover, according to the Lectric Law Library Lexicon (at www.lectlaw.com), the term “secret ballot” is defined as:

“The expression by ballot, voting machine, or otherwise but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.”

As against this, counsel for the first respondent contends that only 6 out of the total number of 208 Members were specifically identified by the applicants as having displayed their votes. Therefore, there was substantial compliance with the secret ballot requirement. In any event, she submits that the definition relied upon by the applicants is overly theoretical and technically deficient. A more functional definition is provided in Webster's New College Dictionary with the following essential elements:-

The provision of official ballot papers printed at public expense; on which the names of the nominated candidates appear; which are distributed only at the polling place; and which are marked in secret.

Again, in Steel and Engineering Industries Federation & Others v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (TPD)…, the requirements for a secret ballot were held to be as follows:-

Only those qualified must vote; the number of votes cast and the votes for and against must be counted; each voter must be able to vote privately and in secret; only the votes of eligible voters must be counted.

In essence, so long as voters are able to cast their votes in secret, they are entitled to voluntarily display their votes to others, in keeping with the freedom of expression guaranteed by section 20 of the Constitution.

Counsel for the second respondent also relies on Steel and Engineering Industries Federation & Others v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (TPD) for the proposition that the requirements of a secret ballot are designed to protect voters from having to display their votes. Therefore, a voter can waive the secrecy of his own vote by free choice. This is a right vested in the voter himself.

In the instant case, the crucial question is whether or not it was reasonably possible for the Members in the House to cast their votes in secret.

In this regard, he submits that all the Members marked their ballots in secrecy within the polling booths provided. None of the Members complained of having been coerced or pressurised to expose their votes. Moreover, the applicants' claim that the majority of the MDC-T Members displayed their votes is not borne out by the evidence. In any event, those Members who did display their votes did so purely voluntarily without complaining that their voting rights had been violated. In short, such voluntary disclosure did not violate the secrecy of the election vote.

Whether Setting Aside of Election Justified

As regards the conduct of the election in casu generally, the papers before the Court evince several conflicts of fact as to what transpired at the time. The applicants' assertions that the proceedings were brazenly unruly are squarely rebutted by the averments of the first respondent.

In this situation, the approach to be adopted was explained by GUBBAY JA in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…, as follows:

“It is, I think, well established that, in motion proceedings, a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently, there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and not merely an illusory dispute of fact.”

Having regard to the overall scenario prevailing in the House on the day in question, it seems reasonably clear that the election proceedings under review were not conducted in an ideal manner. Nevertheless, despite the imperfections alluded to above, it cannot be said that the process was so disorderly as to be utterly chaotic.

On the contrary, all the Members in the House were duly called upon to vote and were able to cast their votes in the polling booths provided. Taking into account the usual volatility associated with the conduct of Parliamentary business generally, 

I am inclined to take the robust view that the election proceedings, as a whole, were sufficiently regulated to enable the election to take place to a satisfactory conclusion.

Factual Assessment of the Evidence

In this regard two documents were tabled in these proceedings for consideration.

The plaintiff gave evidence, and maintained that the Agreement governing the transaction is as endorsed in Exhibit 1 and signed by both parties. According to the plaintiff the original Agreement, which was signed by both parties on 10 October 2007 was to the effect that his motor vehicle would be sold by the defendant, and he would be given USD14,000=. The plaintiff went further to say that the original Agreement was subsequently altered on 4 February 2008 by reducing USD14,000= to USD12,000=, and that when this was done, both parties endorsed their signatures on Exhibit 1.

Exhibit 1, indeed, confirms that both parties to the Agreement signed to confirm the amendments. The plaintiff has urged the court to accept Exhibit 1 as the full text of the parties Agreement.

The defendant's representative, on the other hand, has implored the court to accept that the transaction between the parties was governed by Exhibit 4 – which made reference to the payment in Zimbabwe dollars of the equivalent of US$12,000= which conversion was agreed at Z$96 billion at the time.

The position, as put forward by the defendant, is fraught with a number of challenges. Firstly, Exhibit 4 is a photocopy document, and, in that regard, its evidential value is compromised. There was no convincing explanation given by the defendant as to why the original document could not be produced. It was only when the defendant's representative, Mr. Douglas Tanyanyiwa, was giving evidence-in-chief that he tried desperately to suggest that the plaintiff had taken this Exhibit at a time when Mr. Tanyanyiwa himself was attending to some labour officers who had visited him at his company. Surprisingly, this suggestion was never put to the plaintiff by way of cross-examination.

Whether the defendant failed to deliver all the diesel that the plaintiff ordered.

In my view, the above represents the sole issue that falls for determination in this trial. It is not a legal issue strictu sensu. It is a reconciliation issue. It is my further view that the exercise of reconciling what can be proved to have been ordered, and what can prove to have been delivered, could effectively have been done by the parties' logistical officers prior to trial. It is an issue that should have been settled at pre-trial conference – had all the parties effectively played their role in the matter.

The plaintiff seeks, by oral evidence of its second witness, to prove what was contained in various documents that have since gone missing. The witness purported to testify on orders for diesel that had been placed seven years ago. Such evidence is inherently unreliable especially in view of the fact that some of the documents whose contents he purported to testify on were still awaited from the plaintiff's bank. He had not seen the document. It may not exist. 

In view of the fact that the plaintiff could not prove that it ordered or paid for the diesel in the four transactions under dispute it cannot be said that the first defendant failed to deliver such diesel. The total of the diesel in the four disputed transactions is 338,000 litres. I would have simply deducted this amount from the plaintiff's claim were I satisfied that the plaintiff has accurately proven before me what diesel it received from the first defendant.

I am not.

The plaintiff did not produce before me all the source documents from which it concluded that there had been a shortfall in the delivery of the diesel that it had ordered.

It is common cause that the parties had an arrangement whereby the plaintiff could collect some of the diesel directly from the defendant. In this event, some other documents – and not a “goods received voucher” would be generated. The first witness testified that whilst he was aware of the arrangement he was not aware of any collections that the plaintiff may have made. The second witness, again, admitted knowledge of the arrangement, and testified that he had not taken these into account when he did his reconciliation. He did not prepare a schedule of such collections, which, according to him, were done by the plaintiff's Muzarabani and Glendale depots.

It was also not in dispute that one of the transactions had been for and on behalf of the plaintiff's Chairman. The invoice indicated that delivery would be effected to him. It was not clear from the plaintiff's evidence whether such delivery had been effected directly to the Chairman, in which event there would be no “goods received voucher” generated.

Moreover, as I have indicated earlier, the testimony of the defendant's witness as to the United States Dollar value of the payment of MK4.8 million was entirely unchallenged and untested under cross-examination. The court cannot reject that evidence and must place reliance upon it in the absence of any other evidence to controvert it having been adduced at the trial.

At the time Washington Moyo engaged the defendant for revised rentals it knew CABS's predicament. CABS had been given notice on 6 May 2008, and, as already said, it appears they were targeting Stanley House for their requirements. I am, therefore, on a balance of probabilities, satisfied that Washington Moyo was, just before giving notice, still negotiating the renewal of the lease agreement with the defendant. The negotiations were frustrated by the defendant's refusal to pay rent in foreign currency, an act which, as the defendant correctly observed, would have been against the law prior to February 2009.