Lastly, the applicant's defence is that he holds eight shares in the third respondent and that the respondents acquiesced to this allocation of the shares as per the letter dated 8 June 1995.

I have already alluded to the argument raised by both parties as regards the interpretation to be accorded to the contents of the letter of 8 June 1995. It is common cause that the late Ettore Pietro Fumia is the one who built the sole asset owned by the third respondent, Stand Number 981 Kariba Township, which is the centre of dispute. It is not disputed that during his lifetime the late Ettore Pietro Fumia had rights and interests in Stand Number 981 Kariba Township. The late Ettore Pietro Fumia also claimed majority shareholding in the third respondent during his lifetime. This defence, at this stage, is clearly available to the applicant.

The sum total of all the factors considered above establish that the applicant has shown good and sufficient cause, in terms of Rule 63, which warrants the rescission of the default judgment. The issues raised by the applicant are real issues which the court would have to deal with in this case in order to achieve justice.

Accordingly, I make the following order:

Counsel for Mrs Muringani further submitted that Mrs Muringani was challenging the authenticity of the court judgment that preceded the sale in execution, the authenticity of the transfer documents signed by the Messenger of Court and the authenticity of the distribution schedule that the Messenger of Court had prepared showing, among other things, that after payment to his creditors, Anthony Anesu Muringani (the deceased) had been paid the balance of the purchase price, amounting to $137,327=28….,.

Mrs Muringani's approach was to doubt the series of the events and the transactions starting with the court judgment right up to the transfer. She denied that the deceased had received the balance of the purchase price. She alleged that the transfer was “tainted with fraud.”…,.

To accept her argument to the contrary I would need to ignore the judgment that was never rescinded; I would need to believe that the sale in execution never happened; I would need to ignore the subsequent sale by private treaty; I would need to ignore the fact that that sale had subsequently been confirmed and I would need to believe that Efrolou [Private] Limited had never paid the full purchase price despite the documents to the contrary.

That would be stretching it too far….,.

Even from her own documents, it appears that the transfer documents were signed by the Messenger of Court who went on to prepare a schedule of distribution from which Anthony Anesu Muringani (the deceased) received 82% of the sale proceeds.

However, in argument, it was submitted that the transfer was fraudulent.

Whether the defendants held out that Barato Holdings Limited had the ability to repay the principal debt

The evidence of Jayesh Shah was that Christopher Goromonzi held out that Barato Holdings Limited was able to pay the loan amount. He agreed to the security but because of the inherent volatility in the value of shares at any period that the plaintiff might be forced to exercise the security he demanded a loan cover of 1½ times the value of the security and personal guarantees from the three Directors of Barato Holdings Limited. He stated that the loan cover formed the basis for the disbursement of US$1, 9 million. He further stated that Christopher Goromonzi assured him that the three Directors were personally involved in foreign ventures which would enable them to raise at least US$150,000= each month. When he was cross-examined, these averments were not challenged. When Christopher Goromonzi testified, he was vague on the sources of payment. He was unsure of what he said to Jayesh Shah. He was certain that in his own mind payment would be made in full before 30 December 2004 from the proceeds received from the sale of the security to African Export Import Bank. He further believed that dividend pay outs would be used to reduce the debt and if the worst scenario happened the security would retire the debt.

Tapera William Nyemba's contribution on the first issue was that the agreement was a routine and standard one. Barato Holdings Limited was prepared to provide more than three guarantees at the plaintiff's request. He was not personally involved in the negotiations but was aware of them.

Josphat Sachikonye averred that he was not aware of the negotiations or the agreement. He, however, knew of the existence of Barato Holdings Limited whose executive operations were in the hands of the other two defendants.

Christopher Goromonzi, by virtue of his intimate involvement in the negotiations leading to the agreement, knew more than did the other co-defendants. The other co-defendants mandated him to conduct the negotiations. All three were Directors of Barato Holdings Limited. The agreement was in the name of Barato Holdings Limited. Christopher Goromonzi stated that before Josphat Sachikonye signed the guarantee he briefed him on its essence. Josphat Sachikonye admitted that he signed without reading the document after Christopher Goromonzi advised him that it concerned Blantyre Asset Management Company (Pvt) Ltd. Josphat Sachikonye referred to the existence of round robin resolutions which were circulated after the Directors had discussed an issue. When Christopher Goromonzi stated that he discussed the essence of the guarantee with Jospaht Sachikonye there is no reason to doubt that he was being truthful. He was simply executing a principle of operation that was well-known to the two Directors. Christopher Goromonzi's testimony would be the most credible of the three defendants on what was said in negotiating the agreement with Jayesh Shah. Jayesh Shah was more credible than Christopher Goromonzi in relating what Christopher Goromonzi said. Christopher Goromonzi used words such as I think, I cannot confirm, which indicated his uncertainty.

The Agreement contains three features that confirm Jayesh Shah as a truthful witness. The loan amount was not in the sum of US$3,1 million that Barato Holdings Limited sought. The loan amount did not constitute 1½ times cover of US$4 million that Christopher Goromonzi and Tapera William Nyemba alleged was the value of the Ariston Holdings Limited shares. The Agreement contains a personal guarantee clause. Lastly, it sets out the five instalments that were to be paid to reduce the loan. The first was due on 15 February 2004 in the sum of USD433,000= and the remaining four were to be paid in four equal installments of USD447,500= on 31 March, 30 June, 30 September and 30 December 2004, respectively. By providing in the agreement for specific instalments payable on specific dates, Barato Holdings Limited was clearly holding out its ability to repay the loan.

I answer issue number 2 in the affirmative.

Whether the principal debt was to be paid solely from dividend payments due to Barato Holdings Limited and Blantyre Asset Management and from the realization of security handed to the plaintiff

The answer to the third issue must be in the negative.

Whether the plaintiff purchased the property in question from the second defendant

On this issue, the evidence of the second defendant is clear and straight forward while that of the plaintiff rings hollow. If anything, the plaintiff (may his soul rest in peace), was a crook, who, after lending the second defendant the Z$224,000= to top up the balance needed by the third defendant, subsequently shifted goal posts and coerced the second defendant to agree to the bizarre arrangement that if the flat were ever sold the two of them would share the proceeds on a 50 – 50 basis. That the plaintiff purchased the flat from the second defendant on 2 November 2005 and paid for it on 3 November 2005, with the second defendant acknowledging receipt of the purchase price in writing, constitute not only bald allegations but the mendacity thereof has been exposed.

Both witnesses for the plaintiff had no first hand knowledge of the alleged purchase. They both said they were told about it by the plaintiff after his release from Remand Prison in June 2007. Apart from the hearsay complexion, one wonders why, from November 2005 to June 2007, the plaintiff was keeping the alleged purchase of the flat under wraps. In paragraph 7 of his declaration, the plaintiff avers that he purchased the flat on 2 November 2005 in terms of a written Agreement of Sale and paid the full purchase price on 3 November 2005 and the second defendant accepted and acknowledged receipt thereof. No such Agreement of Sale was produced in evidence. No mention of the amount of the purchase price allegedly paid by the plaintiff to the second defendant; and no acknowledgment of receipt of the payment by the second defendant was produced. All this goes to show that the alleged purchase is a sham which must be dismissed as such.

That the documents were taken by the plaintiff's third wife, one Margret Mtetwa, is also hearsay by Daniel Madziva and it does not detract from the alleged purchase being a sham. The court was not appraised of Margret Mtetwa's whereabouts and why she was not called to come and produce the alleged documents.

Perhaps calling Margret Mtetwa to produce the alleged documents was not at all necessary because there never was such purchase. This conclusion is fortified, firstly, by exhibit 2, the provisional order dated 12 January 2007 in case number HC105/07 in which the plaintiff and Evelyn Mashura were granted an interdict against the second defendant and Keystone Real Estate from selling the applicants' half share in Flat 4 Block 40 Odzi Flats, and, secondly, by exhibit 4, the order the plaintiff and Evelyn Mashura were seeking in case number HC1471/07 against the first and second defendants and two others in March 2007, which was later withdrawn, wherein they sought, inter alia, that they “be given the option to be the first purchasers or to buy out” the second defendant. The question is; how could the plaintiff, who alleges to have purchased the flat in toto from the second defendant in November 2005 claim, in 2007, to still own a half share in the same flat or to be given the option to be the first purchaser or to buy out the second defendant? This is where the entire case for the plaintiff crumbles and I am constrained to castigate the plaintiff's counsel for unprofessional conduct in bringing such a disabled suit to court when it was clear as day follows night that the case had no leg to stand on!

The inevitable conclusion I reach on this issue is that the plaintiff never purchased the property in question from the second defendant.

Whether the agreement between the first and second defendants is valid

On this issue, I have no hesitation, whatsoever, in finding that the Agreement is valid. Firstly, the second defendant, as owner of the property, did not require the plaintiff's consent to sell the Flat. Secondly, out of sheer courtesy due to the fact that the second defendant had reluctantly agreed to share the proceeds of the sale of the Flat with the plaintiff on a 50 – 50 basis in the event of its sale, the second defendant did inform the plaintiff of his intention to sell it and the plaintiff gave his blessings. The second defendant's version on the aspect is corroborated by the probabilities as well as the relevant documentary evidence. Page 4 of exhibit 3 constitutes prima facie conclusive evidence that Mary Zivurawa received the plaintiff's half share of the proceeds from the sale of the Flat as per the agreement between the plaintiff and the second defendant. Mary Zivurawa is a Form 2 dropout and urbanised. She is therefore not an illiterate woman and this is a proper case to invoke the doctrine of caveat subscriptor against her. I also believe the first and second defendants who witnessed her signing the acknowledgement of receipt of the Z$80 million dollars and disbelieve her and Daniel Madziva when they denied that the amount was received. Mary Zivurawa and Daniel Madziva are family and I could discern from their demeanour that they had contrived to strive to have the Flat as part of the plaintiff's deceased estate as this is the plaintiff's dependants' sole abode.

Also, page 7 of exhibit 3 buttresses the second defendant's version. This is an affidavit deposed to by the plaintiff while in Remand Prison after Evelyn Mashura had refused to vacate the Flat in question. Mr Mucheche, who commissioned the affidavit, gave clear and straight forward evidence that it was deposed to by the plaintiff and no other person. I have no reason to disbelieve him. Daniel Madziva, who claimed to have signed that affidavit, was clearly lying. One needs no questioned document examiner to compare the signature of the deponent on that affidavit with the one on exhibit 1 to safely conclude that it belongs to Wilson Madziva. It is strange that in exhibit 1 the plaintiff was, a month later, reprobating what he had stated on page 7 of exhibit 3. One can only conclude that the plaintiff was a person who had no regard for the truth.

In the result, the first and second defendants have proven that the Agreement of Sale they concluded is valid.

Ranoth Matshazi (the plaintiff):

He said Mlotshwa neither married nor bore children. Mlotshwa brought him up. He said after Mlotshwa discussed the issue of the farm with other family members he approached him with a proposal. At that time he was no longer staying with Mlotshwa. He had his own family at Old Lobengula, Bulawayo. He discussed the proposal with his wife and she agreed to go stay on the farm.  He said Mlotshwa proposed that he (and his family) stay on the farm until his (Mlotshwa's) death. He proceeded to the farm in 1991. It was a bushy area. He cleared the area and built the homestead. He first constructed two huts. He, thereafter, constructed a further three huts. One hut is pole and dagga and the rest are made of moulded bricks. These are all grass thatched. There is also a four roomed grass thatched house. He also built a flat asbestos roofed house comprising two bedrooms and a living room. He said he was responsible for the resources for the construction of these dwellings. He also erected contour ridges. He also cleared the bushes and established two fields. He also created an orchard wherein he planted oranges, mangoes and peach trees. He disputed Mlotshwa's assertion that when he got to the farm in 1991 there were improvements. He, however, testified that he is unable to place a value on the improvements until he is given time to do so.

Under cross-examination, he conceded that there was no agreement between him and the defendant entitling him to a right of first refusal in the event that the farm is sold. He, however, stated that he should have been offered the farm first in recognition of his labour since he moved onto the farm in 1991 and the above-mentioned improvements were made even in the absence of a specific agreement of right of first refusal. He further said that his agreement with the defendant was that he (plaintiff) builds a hut for the defendant and thereafter build other huts for use by family members when they visited the farm. He conceded that the defendant built the toilet on the farm and rectified another house which was built by another builder. He said the life usufruct arrangement was witnessed by his wife when the defendant approached him at his house in Lobengula. He conceded that the defendant gave him two cows in 1996 but disputed that this was a compensation for his effort in looking after the farm. He said for his labour in looking after the farm he expected forty (40) head of cattle. The plaintiff was adamant that he was given the two head of cattle as a token of appreciation by the defendant and not as compensation for looking after the farm. He said after he started staying on the farm he took a scotch cart there in 1992. There was already another scotchcart on the farm belonging to the defendant. He said the two cows that the defendant gave him multiplied. He said he used the same earmark as the defendant's for his cattle. He said he was not paying lease fees for staying on the defendant's farm because the defendant asked him to stay there as a member of the family. It was for that reason that he went on to build dwellings on the farm. He said he is prepared to pay US$10,000= for the farm if it is sold to him.

Sibekiwe Matshazi:

She is the plaintiff's wife. She basically confirmed what the plaintiff said that the defendant approached them. He invited them to go and reside on his farm until he passes on or they pass on - whichever occurred first. She said the defendant told them that he had already had a meeting with the Mlotshwas and it was agreed that the plaintiff should go and stay on the farm to prevent it from being sold. She then went to the farm and started the improvements referred to by the plaintiff using resources from the plaintiff. She assigned her nephew, Nkululeko, to build the huts. The latter built two huts. Thereafter, the defendant introduced her to one Philip Nxumalo who constructed three (3) dwellings. One of the houses had a defect and she asked the defendant (who is a builder) to correct the defect. He did that. She described a total of seven structures built on the farm. She said she stayed on the farm whilst the defendant would visit occasionally as he was ordinarily resident in Bulawayo. She said the reason why they invested so much resources on the farm was because the defendant said they could stay there as long as he lived. It was her understanding that the defendant and the plaintiff agreed that the farm would not be sold until such time that they died. When asked what they agreed in the event that the defendant pre-deceased the plaintiff, she said it was agreed that the farm would not be sold but would remain the property of the Mlotshwa family. About the two cows referred to by her husband, she said the defendant, in fact, gave the two cows to her as a token as she was his daughter-in-law. She said the defendant was not supposed to sell the farm without consulting other members of the Mlotshwa family. She concedes that the farm belonged to the defendant. She did not give any basis why he had to consult other relatives before selling his farm. In her testimony, nothing is said about the right of first refusal that the plaintiff is claiming to have.

Nkululeko Mhlanga:

He is related to the parties. He used to stay on the farm with his late father and other members of his immediate family. He remained on the farm after the death of his father until 1991 when the defendant evicted him and the rest of his family. Thereafter, the plaintiff's wife came to the farm and started clearing the land. She, thereafter, put up structures already described above. He confirmed what the last witness said about the erection of structures. He built two huts at the behest of the plaintiff for free. He said the defendant inspected the huts when he was busy constructing them. He has no knowledge about the alleged agreement between the plaintiff and the defendant in terms of which the latter took occupation of the farm.

Leonard Mlotshwa:

He is the plaintiff's cousin and they grew up together. The defendant is his paternal uncle. The little that he knows about the matter is that the plaintiff was staying on the defendant's farm as per their agreement. He was not privy to the agreement. His testimony does not take the matter any further.

Raymond Mlotshwa:

He gave a brief history of how the defendant became the owner of the farm in question. He was not one hundred percent sure of the dispute between the parties. He said he was, however, involved in certain processes by the family to try and ensure that there was accommodation between the parties.  He had been approached by his cousin, Absalom Mlotshwa, to try and settle the dispute. He had occasion to discuss the issue with the parties. He called a family meeting for that purpose. These meetings, and the resolutions therein, have no legal consequences. They were held when the dispute had already arisen, and, in any event, do not confer any legal rights to the plaintiff.

For the defendant's case, the following witnesses testified.

Joel Mlotshwa (the defendant):

He claimed ownership of the homestead on the farm. He said that the plaintiff built some of the structures without his consent. He said had the plaintiff and his wife treated him well he would have let them stay on the farm until his death. He decided to sell the farm on account of the plaintiff's behavior of failing to properly look after it and the above-mentioned ill-treatment. He said that there was no need to compensate the plaintiff for the improvements on the farm as he had stayed on the farm for years without contributing anything.

His version of how the plaintiff ended up settling on his farm can be summarized as follows:

The plaintiff owned a house in Lobengula. He later got married and decided to have a rural home as well. He sought a rural homestead in Emaguswini without success. He (i.e. defendant) had a farm but had no wife, or children, so a relative suggested that he let the plaintiff and his family settle on the farm until such time that they get their own rural homestead. He agreed to the suggestion as his farm would not remain vacant as he had just evicted members of the Mhlanga family. When the plaintiff moved onto the farm he moved into his (defendant's) homestead. He said when the plaintiff pegged a new homestead away from the Mhlanga homestead he and the plaintiff's family were staying together. He said he built the homestead with the assistance of the plaintiff. He said the plaintiff built a big dwelling structure outside the homestead. Except for this latter structure, the defendant claims all the other huts in the homestead.

Under cross-examination, he said when he told the plaintiff to go and settle on the farm the agreement was the following:

“A - When I told him to go and settle, I was anticipating that when I got old I would proceed to stay on the farm with them (plaintiff and his family). They were going to look after me and the farm.  But on the contrary, they did not look after me well as a result I sold the farm.

Q - If they had treated you well and lived with you well you wouldn't have sold the farm?

A - I would not have sold it….,.

Q - Your explanations are consistent with a set up whereby you and plaintiff did not anticipate the farm would ever be sold.

A - Yes I did not anticipate that and neither did I have anyone to sell the farm to. The reason I sold it was due to ill-treatment.”

Headman Mlotshwa:

The plaintiff is his cousin and the defendant his paternal uncle. He said that he knows, as a fact, that the defendant built a four roomed structure and a kitchen hut. The defendant approached him to fit doors onto these structures. The doors were carved by his (witness') father at the behest of the defendant. He, however, said he does not know who built the rest of the structures on the farm.

Priscillah Dax Moyo:

The plaintiff is her cousin. There was a time that the defendant asked her and another relative to accompany him to the farm to collect his farm title deeds. At the farm, they found the plaintiff present.  At that meeting, the defendant requested that he be given back the title deeds of the farm. The plaintiff declined to hand over the title deeds alleging that they were not in his custody. He said they were in the custody of his wife and undertook to bring them to Bulawayo. The plaintiff did honour his promise. There was a meeting of the Mlotshwa family occasioned by the parties' dispute. The meeting was in Mzilikazi and she attended. The defendant informed the meeting of his intention to sell his farm. There was no resolution to whom he should sell the farm to.

I am satisfied that the plaintiff constructed some of the structures on the farm and the defendant others. As the plaintiff had his family in occupation, it is without doubt that he built most of the structures for their benefit. As the defendant did not have a wife or children he would have no reason to build many structures. The two structures mentioned by Headman Mlotshwa were, on a balance of probability, built by the defendant. That explains why he had doors made for them and contracted the Headman to fit them.

Counsel for the plaintiff has rightly conceded that the plaintiff has not adduced evidence on the existence of the right of first refusal. It is unlikely that the parties, on their own, would have negotiated and concluded a verbal right of first refusal. In any event, the parties are close relatives and were accommodating each other in that context. Even the plaintiff's wife, Sibekiwe Matshazi, who was privy to most of the meetings, never mentioned the existence of a right of first refusal. All she said was that the family agreed that the farm would remain a Mlotshwa property [and not Matshazi property]. She said it was agreed that the defendant would not sell the farm without consulting the rest of the Mlotshwa family.

There is no evidence of an agreement of life usufruct either.

In any event, if the plaintiff seriously wanted to exercise such right he would have to cite and involve the purchaser, Pardon Mbondia, in these proceedings. The latter seems to be a bona fide third party purchaser. If the plaintiff believed otherwise, he would have joined him in these proceedings.

Analysis of the issues and evidence

There has been a lot put into this trial. So many witnesses have testified and several exhibits totaling 49 have been produced. Not everything is relevant in determining the issues as agreed upon by the parties. However, I remain cognizant of the following; that the meeting at Tsholotsho on 12 January 2005 and the function at Dinyane Secondary School on 18 November 2004 are central to this trial. This is so because it was in Tsholotsho on 12 January 2005 that the first defendant was alleged to have uttered the offending and defamatory words. Secondly, it was the function at Dinyane Secondary School and the subsequent gathering at Rainbow Hotel, Bulawayo on 18 November 2004 which appeared to have ruffled senior members of ZANU (PF) - who included the first defendant. I also did not lose sight of the fact that because this trial involved two fairly senior politicians the gathering of evidence was never going to be easy especially given the fact that all those people who gave evidence bore some form of allegiance to the two litigants given their political association.

In my effort to determine the issues, I remained alive to the fact that the plaintiff did not himself attend the Tsholotsho meeting of 12 January 2005 where the alleged defamation took place. Equally true is the fact that the defendant did not attend the Dinyane function. Both litigants did not have first hand knowledge about what took place at these places respectively. They had to rely to a large extent on reports they received from supposedly “reliable sources.”

Having made these observations, I now wish to proceed and deal with the issues as set out by the parties in the joint pre-trial conference minute.

Was the meeting of 12 January 2005 a public one?

This issue arose because of the two diametrically opposed positions taken by the plaintiff and the defendant. The plaintiff's position was that this was a public meeting whereas the defendant maintained it was an exclusively ZANU (PF) DCC meeting, and, therefore, a private one.

I am relieved that both parties recognize and are agreed that exhibit 47 (the minutes of the DCC meeting held in Tsholotsho) should not be religiously accepted because of its notable limitations.  Both parties are agreed that the minutes, on their own, are inadequate and that they scream for qualified acceptance. The minutes do not tell the whole story of what took place at Tsholotsho. This is basically because the original minutes were not availed to the court and more importantly the fact that even the tendered minutes were not confirmed to be a true record of what happened on 12 January 2005. Equally notable is the fact that the minutes, as presented, did not tally in many respects with evidence given by the witnesses both from the plaintiff and defendant side. Having gone through the minutes and having had the benefit of hearing viva voce evidence with regards to the meeting of 12 January 2005 which culminated in the compilation of those minutes, I am satisfied that not all those people who attended that meeting were members of ZANU (PF). The witnesses who testified, and in particular, Believe Gaule, was able to single out individuals like Nicholas Ncube, S T Nleya, James and other members of the security agents who were not members of ZANU (PF). This evidence was not challenged to the satisfaction of the court. In addition, it was also made clear that there was no security put in place to ensure people who had nothing to do with ZANU (PF) had no access to the meeting. Really, such a meeting could not qualify to be an exclusively ZANU (PF) meeting. It was a public meeting despite those from the defendant's stable desiring it to be regarded as an exclusive ZANU (PF) meeting.

If the argument is that the plaintiff could not have been defamed in an exclusively ZANU (PF) meeting, that argument does not appeal to me because such a gathering would certainly not enjoy the same privilege as afforded to Parliament.

Whichever way one looks at it I am satisfied that the meeting of 12 January 2005 was a public one.

Did defendant utter the words complained of on 12 January 2005?

The plaintiff's evidence in this regard centered on four (4) witnesses, namely, Rose Masuku, Virginia Ndlovu, Joram Ndlovu and Believe Gaule. At the time they testified, Rose Masuku and Virginia Ndlovu were still active members of the defendant's political party ZANU (PF).

Virginia Ndlovu, who was the second witness to testify for the plaintiff with regards to the alleged defendant's utterances, noted that it was the defendant who was picking up people from the floor starting with Believe Gaule. The people were being asked by the defendant to explain, in detail, what happened at Dinyane on 18 November 2004. The critical part of her evidence was that after people had spoken the defendant said:

“…, it would appear you did not know what you were doing, you were exploited….,. I see my fellow men you were being exploited you did not see what was happening because what you were involved in is that you wanted to stage a coup against the President…,. The trouble with you is that you get led by the nose. This young man, a “mafikizolo”, has led you into a bad thing because it was a smart coup. We brought this young man in, you do not know where we got him…, this smart coup continued to the Rainbow but you, as simple villagers, did not know there had been something like that at Rainbow.”

When subjected to a lengthy cross-examination she generally stuck to her story. The thrust of her evidence did not change.

Rose Masuku, another active member of ZANU (PF) at the time, told the court that after Believe Gaule had spoken the defendant commented that Believe Gaule had not said anything and went on to say:

“You do not know, you do not know, a coup was to be done and completed here in Tsholotsho. The coup was in its phase I. Jonathan and company were going to carry out this coup. It was going to be said Nkomo out, Msika out and it was going to remove all members of ZAPU. From there it was going to go on to phase two. The phase 2 was to force and remove the President.”

The witness said the defendant's utterances were complemented by the comments of Dabengwa who said, among other things, the plaintiff did not go to war and that he had brought him from South Africa.

The witness said political slogans demeaning the plaintiff were then made by the defendant. The slogans were along the following “viva ZANU, forward with ZANU (PF). Down with Jonathan the sell out.”

The evidence of Joram Ndlovu, to a large extent, corroborated that of the two witnesses….,.

Of all the witnesses who testified, Believe Gaule appeared to be more sophisticated in terms of his status. He also appeared to be more enlightened. He opened his testimony by humbling himself before the court and emphasizing that he held both the defendant and Dabengwa in high esteem because of their illustrious history in both pre and post independent Zimbabwe and that he felt awkward that he had to give evidence against these two illustrious politicians, the politicians he adored and respected from his childhood. He adored Dabengwa to the extent that he named one of his sons, who was then in Grade Six, the name Dabengwa….,. He took the court through both the function at Dinyane Secondary School and the meeting at Tsholotsho of 12 January 2005, giving the court the background of both meetings. The witness captured the words uttered by the defendant as follows;

“I have now realized that you do not know….,. This thing which was happening here did not start here.  It started at other places including Ntalale and it was meant to conclude at Dinyane. This thing was about Nkomo out, Chinamasa in, Msika out, Mnangagwa in, then Lesabe in. The plot would be in two phases. Phase two was going to force the President to retire and someone would take over. All this was a smart coup. For all this plan they used Professor Jonathan Moyo. That young man was used by these people. This was a way of destroying ZAPU.”

The witness was subjected to a lengthy cross-examination. The cross-examination was thorough and searching. I did not detect any traces of variation or inconsistencies in his testimony.

It occurs to me that the general tenure of the witness' testimony is that the defendant did utter the words as captured above. However, these words did not quite fit into the elaborate version given by the plaintiff himself when he, in his testimony, tried to summarise what he was told by Believe Gaule.

The emphasis in all the witnesses' testimony was that the plaintiff was linked to the smart coup to change the leadership of this country….,.

In response to the alleged utterances of 12 January 2005, the defendant completely denied what all the plaintiff's witnesses said about him. He denied ever chairing the meeting despite the minutes…, and the evidence by the witnesses suggesting that, in essence, he literally chaired the meeting, particularly if one considers the fact that the minutes, despite their inadequacies, suggest he gave the opening remarks and that it was him who would choose the people when they spoke.

It is not normal in a meeting that the choice of speakers at any given time is given to anyone other than that remaining as the prerogative of the Chairperson.

It appeared the thrust of the defendant's approach was to deny virtually everything that put him closer to the alleged utterances. It was also clear that he did not respect the plaintiff even for the work he did for his party before he left that party. The defendant had the audacity to accuse the plaintiff of being hostile to the private media during his reign as Information Minister and forgot he was bound by Cabinet collective responsibility. The doctrine presupposes that the defendant must either fall or stand with the plaintiff for whatever the plaintiff did whilst he was in office. The evidence of Dabengwa provided another dimension to the whole episode. For the first time, the court was told that when the meeting of 12 January 2005 was held there were members of the press who, however, were advised to stay away from the venue of the meeting. These people must then have been milling around the venue of the meeting. The press reports which followed the meeting of 12 January 2005 must clearly be looked at within this context.

The difficulty with Dabengwa's testimony was that on critical issues relating to the defendant he pleaded loss of memory or offered unwarranted explanations which were obviously calculated to protect the defendant.

When questions were put to him by the plaintiff's counsel concerning the offending words contained in the declaration he proffered answers not only for himself but also for the defendant despite not having been asked to comment on the defendant's behalf.

When questioned on the origins of the “smart coup” phrase he seemed to suggest this had emanated from the politburo meeting of 30 November 2004 yet a close examination of the extract of minutes of that meeting show clearly there was no specific reference to “smart coup”…..,. Questioned further, he then shifted and suggested that one of the DCC members had initiated the term “smart coup.” Compare this with the evidence of Believe Gaule who was emphatic this was initially said by the defendant.

Perhaps one needs to understand why this witness's sympathy would lie with the defendant. The two have come a long way together. According to Dabengwa, the two first met in Zambia in the early 70s and worked together in both pre and post independent Zimbabwe. There is no doubt the two have an illustrious political history. They both regard the plaintiff as not having participated in the liberation war and as a “mafikizolo” in politics in general and in ZANU (PF) in particular. It is only natural and understandable that Dabengwa would sympathise more with the defendant as opposed to the plaintiff.

Josephine Moyo's testimony demonstrated her determination to support the defendant at all costs.  The court was completely taken aback when the witness attempted to deny that the plaintiff had not been unanimously elected by the Tsholotsho DCC to represent Tsholotsho in the then impending elections of 2005. Her denial was made despite there being overwhelming evidence pointing to the contrary and suggesting that herself, as a member of the Tsholotsho DCC, had actively participated in choosing the plaintiff. It was only when minutes to do with the election of the plaintiff were produced that she subsequently made some concessions. There was yet another significant aspect of her testimony which heightened the court's caution in dealing with her evidence on the events of 2 January 2005. She attended the Lupane Provincial Election Directorate armed with her curriculum vitae despite her full knowledge that the plaintiff had been chosen by her own DCC to represent Tsholotsho as the Member of Parliament. She struck me as one of those women who went to Tsholotsho having been clandestinely advised to be ready with her curriculum vitae because of the political circus that had gripped her party at the time. This was despite her being fully aware that the selection of aspiring Members of Parliament could not have been initiated at the provincial but at the district level. She kept all these secret happenings in the party to herself instead of grabbing the first opportunity to at least notify the then DCC Chairperson of these developments. She participated in the ad hoc committee's deliberations to ostensibly declare Tsholotsho a preserve of aspiring women candidates despite what appears to the court that a decision had already been made before the meeting of 2 January 2005 to remove the plaintiff from participating in elections on the ZANU (PF) ticket.

This witness' testimony of what transpired on 18 November 2004 and 12 January 2005 had to be looked at with extreme caution. I agree with the plaintiff's characterization of this witness' evidence of the events of 18 November 2004 that it only showed her paranoiac inclination. In short, the witness did not acquit herself well in these proceedings. Her own interpretation of the events at Dinyane Secondary School was frightening to say the least….,.

Patrick Ngwenya portrayed himself as a cunning fellow. He went on a rampage to suspend fellow party members from DCC Tsholotsho for attending the Dinyane function and forgot to suspend himself since he had also attended the meeting and at one stage acted as the master of ceremony before handing over the function to Mudenda. The witness' testimony, as presented, will show that he was the kind of person who would do anything to please people like the defendant in the hope that in the process he would carve his own political career. This explains why he offered himself to have been the person who coined the term “smart coup” despite overwhelming evidence presented to this court showing that the defendant was the first person to have used the term at the gathering of 12 January 2005 in Tsholotsho. His hatred for the plaintiff was shown by his constant sloganeering against the plaintiff. His closeness to the defendant was also demonstrated by the fact that according to the witnesses who testified he was granted more opportunity to talk at Tsholotsho on 12 January 2005 than any other participant. The witness' apparently biased testimony against the plaintiff did not edify or bolster the defendant's case….,.

Despite the defendant's denial that when he mentioned, on 12 January 2005, that the party had taken a decision not to allow certain individuals not to contest elections on the ZANU (PF) ticket, such individuals included the plaintiff, I am more inclined to say that in fact the plaintiff was one of such targets. This conclusion was arrived at in the light of the hostile attitude which the defendant exhibited against the plaintiff throughout these proceedings and in particular the language of hate he persistently used against the plaintiff in Tsholotsho on 12 January 2005. The defendant showed he had a very low opinion of the plaintiff. He was not even prepared to give the plaintiff the benefit of the doubt by accepting that he went to Tanzania during the liberation struggle despite it being common knowledge that there may not have been waterproof or reliable records showing those who actually went to or actually participated during the liberation movement of this country.

The events of Lupane on 2 January 2005, as explained by Believe Gaule and accepted by this court, clearly demonstrated that by addressing the Women's League first together with a few selected individuals, the defendant was determined to ensure nothing would go wrong in ensuring that the plaintiff was locked out of the ZANU (PF) political system. The defendant did not acquit himself well in his defence when he tried to argue that one of the lady witnesses who testified against him was a direct beneficiary of tablets supplied to her by the plaintiff to combat her HIV medical condition. He also suggested that Believe Gaule had testified against him because of finances given to him by the plaintiff. These allegations were made at a time the two witnesses had given their evidence in chief and vacated the witness stand after extensive cross-examination by the defendant's counsel. The witnesses were obviously deprived of the opportunity to defend themselves because they had no opportunity to do so. This was most unfortunate and it portrayed the defendant in bad light.

I am…, mindful of the fact that in August 2000 the parties had agreed on a revaluation of the house.

In her evidence, the plaintiff alleged that she paid $325,000= local currency which was in compliance with a valuation of $650,000= made by Brian Bell Estate Agents in December 1999. However, in the fourth defendant's record, which has been made available to me, there is indeed another valuation report made by Brian Bell Estate Agents on 9 October 2000 placing the value of the house at $800,000=. I have no reason to disbelieve that when Lazarus and Sarif stated, on 18 October 2000, that they were then holding the money they had not taken into account that the plaintiff was then required to pay $400,000= instead of $350,000=. On a balance of probabilities, I believe that as a result of the passage of time, the plaintiff may have overlooked that detail.

I therefore find that indeed the plaintiff paid the executor for the remaining ½ share of the house and is therefore entitled to the relief that she seeks.

The matter should ideally end there but even if I am wrong in that finding, I am fortified in my conclusion that the plaintiff is entitled to the relief she seeks because, for a start, the parties appeared to labour under the mistaken belief that the Supreme Court had crowned the first defendant heir to the estate. Nothing can be furthest from the truth and it is difficult to comprehend why that mistake was perpetuated for such a longtime. I propose to trace the background of the Supreme Court's involvement so as to demonstrate the fallacy in that notion. The matter came before the Supreme Court under case No. SC676/94 by virtue of an appeal noted by Ben Baron and Partners representing the first defendant. This was after the District Court, sitting as an appellate Court, per Mr Mkandla, had burnt its fingers by issuing an order recognising the plaintiff's marriage ahead that of the first defendant and then seeking to reverse its own decision.

The appeal was noted on the following grounds:

“BE PLEASED to take notice that the Appellant wishes to note an appeal against the decision of the district Court held at Bulawayo on the 3^rd October 1994. Appellant will aver that the learned Provincial Magistrate was wrong in fact and in law in holding that customary law applied. Appellant will further aver that the learned Provincial Magistrate was wrong in fact and in law in holding that Appellant's civil marriage contracted in 1992 did not take precedence over the customary union contracted by the first respondents in 1968 and registered by the first respondent in 1977.”

The matter eventually came before the Supreme Court and the results from that Court are contained in an order issued on 1 April 1997, the essential part of which reads:

“An appeal from the judgment by the Magistrate at Bulawayo on the 3^rd day of October 1994.

Bulawayo: Tuesday the 1^st day of April 1997.

Before the Honourable Mr Justice Korsah, Judge of Appeal and the Honourable Mr Justice Muchechetre, Judge of Appeal.

J Dyke, for the appellant

No appearance for the respondents.

WHEREUPON, after reading documents filed of record and hearing counsel,

IT IS ORDERED:

That the appeal be and is hereby allowed.

That the orders by the magistrates are set aside.

That the matter is referred to the Assistant Master for the administration of the Estate of the Late Kenneth Kudzaishe Pamacheche.

That any party lodges whatever claim he or she deems fit in respect of the said Estate of the late Kenneth Kudzaishe Pamacheche, which claim shall be adjudicated upon by the Assistant Master.

That the appellant's costs of this appeal be borne by the Estate.

BY THE COURT

NL.B MACHAKAIRE

ASSISTANT REGISTRAR.”

Turning to the evidence of the parties, it is common cause that the plaintiff was struck on the leg resulting in a fracture. It was also established that the defendant was injured on the left ear. That is why he was X-rayed on the head. What needs careful consideration is how the incident started and what really happened between the parties.

The plaintiff was leading a group of 20 people armed with axes and knobkerries. They were driving the defendant's cattle. That background reveals a potentially dangerous situation. An element of violence cannot be ruled out in the circumstances. The plaintiff was playing a leading role, and was ahead of the group carrying sticks. He says after telling the defendant that they were driving the defendant's cattle to his farm, all of a sudden, the defendant started assaulting him with a log. He was hit three (3) times with the log. He tried to block the blow with a stick that he had. He said the blows were directed to his head but he managed to block them. He says he then fell down. He does not say what made him fall. He says the defendant eventually fell too. He could not say what caused the defendant to fall. He says while he was on the ground he tried to get hold of him and the defendant's employees hit him on the arms. The defendant was given a knobkerrie by one of his employees and hit him with it on the thigh and this caused the fracture. He later noticed a deep cut on the left leg but did not know what caused it. Surprisingly, he reported to the police that he had been shot by the defendant. His earlier reference to the defendant firing a shot did not allege being shot on any part of his body. It is strange that he told the police, later, that the defendant shot him with a pistol.

The plaintiff made a report to the police before he was taken to the hospital. His evidence that he was unconscious and only recovered at the hospital reveals that the plaintiff's evidence is untruthful and very much exaggerated. It is also highly improbable that the blows he blocked with a stick fell him to the ground. It seems the evidence of the defendant; that after being attacked by the plaintiff the defendant retaliated by hitting the plaintiff on the thigh and causing him to fall is more probable than that of the plaintiff….,.

In assessing the evidence of the parties, I am convinced that the plaintiff was the aggressor. He hit the defendant first and the defendant's evidence is more credible when he says he retaliated by hitting the plaintiff with the hoe handle on the thigh and this caused the plaintiff to fall. The defendant says once the plaintiff was on the ground he hooked the defendant with his legs and the defendant also fell backwards then sat up facing the plaintiff. That is why the defendant could not move. When the crowd tried to join in the fight the defendant's son fired two shots into the air. This accounts for the two (2) empty cartridges that were recovered by the police at the scene. The plaintiff further tarnished his evidence by alleging that a bullet had been removed from him. 

This was false. 

In his declaration, the plaintiff had alleged that the plaintiff and the defendant were engaged in a cattle grazing dispute and went on to say the defendant attacked him without any provocation. His evidence does not support an attack without provocation as he alleges. 

Where a party, in an attempt to support his claim, gives evidence that is found to be clearly false it becomes difficult for a trial court to establish which part of the party's evidence is true besides what is found to be common cause or what is supported by some other credible evidence.

The group of 20 were driving the defendant's cattle to his farm. The plaintiff was the leader of the group. He was armed with sticks and his colleagues with axes and knobkerries. When they met the defendant, the plaintiff was obviously in a fighting mood, hence the insult he hurled at the defendant in the form: “You Cloet…, makhiwa.” The injury on the defendant's left ear supports his evidence that he got that blow before he retaliated with the hoe handle. Where a party starts a fight with another, in such a situation, he risks injury to himself in self-defence by the other party as there is no prior knowledge or limit to how the other party will retaliate. The court cannot, in such a case, determine liability by comparing the injuries of the parties and awarding damages to the party who suffered worse injury than the other unless a clearly dangerous or lethal weapon capable of causing serious injury dangerous to life was used. In circumstances exceeding self defence it is unfortunate that the plaintiff was worse off at the end of the fight - but this was as a result of his own actions. It is to be expected that in a fight the parties never inflict equal harm to each other. The fact that a fracture resulted cannot be used to determine any balance in the injuries. Both were injured, one a bit better, the other rather worse. This cannot be a criteria to determine liability. The fact that the defendant was convicted and fined for assault at the Magistrates' Court does not assist the plaintiff's case. In the result, the plaintiff has not established entitlement to damages. 

Conclusion

This application must fail because of the following findings by the court:-

1) This matter should not have been brought to court by way of a court application as there were glaring serious disputes of fact;

2) The applicant failed to provide written proof of any company resolution giving authority to negotiate the alleged transaction;

3) The applicant failed to provide any written reference to the agreement to split the property;

4) The applicant failed to show what form the transfer would take i.e. was it a sale, donation or scheme of reconstruction;

5) The alleged transaction falls foul of the provisions of section 39(1)(b) of the Regional and Town Planning Act [Chapter 29:12].

6) The evidence placed before the court was contradictory for the court to make a reasonable judgment. For instance, Vernon Lapham was unable to locate detailed information relating to the transaction and confessed that his recollection would be somewhat vague while Daphne Ritson stated that she had been through her file and could not find any written reference to the agreement to split the property.

In the light of the foregoing findings, I hold the view that this is a proper case where an award for costs on an attorney and client scale is appropriate.

Without necessarily delving in detail into the merits of this case for the obvious reason that the matter has been disposed of by points in limine; it is worth noting that if the first applicant was in a relationship to Dzikamai Katsidzira and bore a child, Tafadzwa Chelsea Katsidzira, there is no issue of marriage to the late Godfery Zakeo Mahenga, and there is no debate about pinning a claim on the respondents or even the estate of the late Godfrey Zakeo Mahenga.

It is apparent that about nine (9) years after the winding up of an estate, the applicants sought to approach the court for reopening of the “Estate of Late Godfrey Zakeo Mahenga” which party is not cited in the proceedings. The squabble is centred on property which the applicants feel has to be redistributed. From both written and oral submissions, it became apparent that the first applicant's matter could not be entertained beyond the raised points in limine. The respondents clearly, and conclusively, showed the matter had not only prescribed but that there was a snag of non joinder of the relevant parties. Further, in respect of the second applicant, the application has not only been rendered fatal by prescription but also non-joinder and the fact that the matter is res judicata. The same question was decided on and the matter involved the same parties. It is clear from the foregoing there is no need to go beyond the points in limine as they have conclusively disposed of the matter.

Accordingly, it is ordered that the applicant's claim -

(1) Be and is hereby dismissed.

Priscila Misihairambwi-Mushonga stated that the Movement for Democratic Change was a political party and a body corporate in terms of its Constitution and was first established in September 1999. The third congress of the party was held in Harare on 8 January 2011. The congress was attended by 4,428 delegates representing party structures from all the 12 provinces of the party in Zimbabwe. A new leadership for the party was elected.

The respondent did not stand for election at the congress but fully participated in the proceedings.

Since the respondent did not avail himself for re-election as the party president, Mr Welshman Ncube was elected President of the party with his Deputy as Edwin Mushoriwa, Goodrich Chimbaira and Frank Chamunorwa were elected National Chairman and Deputy, respectively, while Priscila Misihairambwi-Mushonga and Moses Mzila Ndlovu were elected Secretary-General and Deputy Secretary, respectively, to name but a few top officials of the party. A total of 80 office bearers of the party were elected.

On 7 January 2011, the MDC National Council held a meeting whereat 10 members of the National Council walked out. The 10 members, later that day, around 5pm, delivered a petition to the then Secretary-General of the party objecting to the holding of the congress, which was due to commence the next day, alleging that there were some irregularities. The ten were subsequently joined by three others and filed an application in the High Court in Harare in case number HC612/11 wherein they seek an order setting aside the congress and its resolutions. The MDC has opposed the application and has filed its opposing papers.

On 23 January 2011, the party's National Standing Committee met in Harare, and, inter alia, resolved to reshuffle its cabinet members, including the position of Deputy Prime Minister to the position of Minister of Regional Integration and International Cooperation. The party's new president, Professor Welshman Ncube, was reassigned from the position of Minister of Industry and Commerce to the position of Deputy Prime Minister. The deponent was reassigned to the position of Minister of Industry and Commerce. The decisions were allegedly taken in terms of section 20.1 of the Global Political Agreement as read with the Constitution of Zimbabwe Amendment Act No.19. The decisions made by the National Standing Committee were communicated to Professor Arthur Mutambara, “the respondent”, on the same day. The respondent allegedly then requested the new President of the MDC to make representations on his behalf to the party's Standing Committee to allow him to remain in the position of Deputy Prime Minister until June 2011 to enable him to complete the programmes such as the branding programme he alleged he was still working on. His request was conveyed to the National Standing Committee which did not accede to it.

Welshman Ncube swore to an affidavit confirming that the respondent had indeed requested him to convey the request on his behalf.

The deponent averred that on 20 January 2011, the respondent approached her at her house and asked her, in her new capacity as Secretary-General of the party, to convene a meeting with the new President of the party to discuss his (respondent's) role in the Inclusive Government. He allegedly made a variety of suggestions which would enable him to remain as Deputy Primary Minister but which would also enable the new President of the party to play his role as the Principal under the Global Political Agreement. She agreed to convey the suggestions to the new President of the party, which she did. She averred that at no time during those discussions did the respondent question or dispute the validity of the congress or the elections of the party's leadership. She was, in fact, surprised why he had suddenly turned round to say he did not recognize the very leadership from which he had frantically sought to be allowed to remain in his position as Deputy Prime Minister until June 2011.

More astounding things were still to come from the respondent.

On 7 February 2011, he issued a press statement in which he advised that he was not prepared to be re-assigned, that he would remain in his position, as Deputy Prime Minister, and that in view of the fact that court proceedings had been launched by others challenging the legality of the congress he would not be prepared to accept the authority of the new national leadership pending the outcome of the High Court application to which he was not a party.

On 8 February 2011, the Vice-President of the party, acting on instructions from the National Executive wrote to him, inter alia, giving him notice of an urgent meeting of the National Council of the party scheduled for 10 February 2011 at the party's national headquarters in Harare, but the respondent, on 9 February 2011, issued a further press statement in which he purported to dismiss the new party President, Professor Welshman Ncube, when, in fact, he had no power to do so in terms of the Constitution of the party. The National Council of the party met at the party's headquarters in Harare as scheduled on 10 February 2011. In attendance at the meeting were 105 members of the new National Council elected at the January congress, and, accordingly, the required quorum by the party's Constitution was met. Chief on the agenda of the meeting was the discussion of the respondent's conduct. The Vice President of the party presented the letter addressed to the respondent and his two press statements for discussion. After a debate centered on them, a resolution was unanimously taken to expel the respondent from the MDC party. A letter addressed to the respondent was written by the deponent on 11 February 2011 advising him of his fate.

The letter was delivered to him at his offices on 14 February 2011 in the morning.

The deponent averred that in her view it was clear that from the purported action of the respondent in attempting to dismiss the President of the party and from the wording of his press statement issued on 9 February 2011 he had unilaterally and unlawfully assumed the role of the leader of the MDC party. It was reasonable to assume that he had no intention of changing his stance in that regard and may well attempt to use his purported position as an alleged leader of one of the parties to the Global Political Agreement to exercise considerable powers in terms of the Agreement. Furthermore, whatever actions he would purport to take would be clearly against the wishes of the members of the MDC party as had been expressed at the congress in January 2011. Whatever actions he intended to take would be without the mandate of the party and could therefore be detrimental to the interests of the party….,.

The applicants averred that their application came at a particularly crucial stage of Zimbabwe's history and in the life of the transitional Inclusive Government formed as a result of the Global Political Agreement. Elected leaders of the MDC National Executive, including its President, Professor Welshman Ncube, were key players in the process and played roles nominated by the party as negotiators, Cabinet Ministers, and Principals, on behalf of the MDC party. Accordingly, the effective and accurate communication of the stance and policies of the party with regard to Government policy and the transition itself was dependent on those nominated by the party respecting the decisions taken by the party. The respondent had not been expelled from the party. It was, accordingly, asserted that very serious and irreparable damage would be done to the interests of the party and its members if the respondent continued to exercise a mandate he had not been given.

His actions clearly demonstrated that he was trying to obtain a position he voluntarily withdrew from in December 2010. What was pertinent to observe was that after a decision was taken by the party on 8 December 2010 to hold its 3^rd National Congress in January 2011 he had initially indicated that he would contest the position of President of the party and the applicants in case number HC612/11 were all part of his campaign team. Indeed, prior to the meeting of the Harare Province was called to nominate candidates, his name was put forward to the meeting as a nominee for the position of President of the party and the applicants in case number HC612/11 were all parties of his campaign team. However, in that nomination meeting he was badly beaten and was only able to secure 13 votes out of the 52 eligible voters who attended the meeting. The respondent subsequently, as realization that he did not have sufficient support to sustain a nomination, publicly announced that he was no longer going to contest for the Presidency and that he would continue as a simple card-carrying member of the party. His statement in that regard was widely carried by the press in Zimbabwe. For instance, the Chronicle Newspaper quoted him saying the following on 20 December 2010 in Victoria Falls when addressing diasporans gathered in the resort town:-

“I am stepping down as the leader of my party MDC. I am not running – it's done. We are going for a congress in January and I have said that I am not contesting for any party post but I will still be a member of the party.”

Despite having said the above, the respondent had turned round and was then telling all those who were prepared to listen to his story, that he would soon be announcing a cabinet reshuffle of the MDC Ministers in the Inclusive Government by replacing the existing team with his nominees. He, in fact, had, in that regard, approached several party Members of Parliament offering them ministerial appointments. The simple truth was that he was no longer the party President after the party's 3^rd National Congress of January 8 and 9 of 2011 and no longer had authority to reshuffle the party's Ministers.

Furthermore, there were at least two forthcoming meetings of the Presidents of the three (3) political parties in the Global Political Agreement, commonly referred to as Principals, to discuss two important issues referred to them by the cabinet and the National Security Council respectively, being the proposed amendments to the electoral laws and inter-party political violence in the country.The  respondent was claiming that he would represent the party at those important meetings, when, in fact, he had no mandate to do so.

There was also, at that time, a forthcoming meeting of the SADC Organ Troika on Defence and Security at which the facilitator of the Zimbabwe Dialogue, President J.Z. Zuma would present his report on the outstanding issues in the implementation of the Global Political Agreement. Since the respondent was claiming to be the President of the party and purported to dismiss the legitimate President of the party, the well founded fear was that he would seek to represent the party at the meeting when he had no lawful right to do so.

In conclusion, the applicants had this to say:-

“The respondent's preposterous and bizarre actions and antics are causing irreparable damage to the image of the party and are bringing the party's name into disrepute. They are also causing immense confusion within the party and the country.”

Two press statements issued by the respondent on 7 February 2011 and 9 February 2011 were filed of record as annexures “E” and “H” respectively. Annexure “I” is a cutting from the Chronicle Newspaper of 20 December 2010 wherein the respondent is reported addressing diasporans in Victoria Falls informing them that there would be a congress of the MDC but he was going to stand down as its President and would be not contesting for any party post but would remain a party cadre.

In his opposing affidavit, the respondent sought to dispute that the gathering of 4,428 delegates of the MDC party on 8 and 9 January 2011 was a congress of the party. He went along the lines raised by the 13 applicants in case number HC612/11 and adopted the averments therein to oppose the confirmation of the provisional order.

In vehemently denying that the meeting was a party congress, he averred that the MDC party congress was going to be preceded by the National Council meeting scheduled for 7 January 2011.  But, when the meeting commenced, there arose disputes centered on the constitutionality of the party's congress scheduled for 8 to 9 January 2011. Disagreements allegedly arose regarding procedures and other issues relating to the Constitution. A sizeable number of the National Council members then walked out in protest disabling the organ from discharging its mandate. In particular, the Chairman of the National Council meeting who was the national Chairman of the party, Mr Joubert Madzimure, walked out, together with the Chairperson of the Women's wing, Chairperson of the Youth wing and a number of portfolio secretaries. It then became necessary for the respondent to chair the National Council meeting. The respondent then claimed to have advised those present to take note of the concerns of those that had walked out and further alleged that he told the remaining members of the National Council meeting that the meeting was no longer a National Council meeting. The meeting then allegedly proceeded as an ordinary meeting. The respondent claimed to have advised the remaining council members of that fact.

In the result, so the averment went, there was no proper or lawful National Council meeting on 7 January 2011, as the meeting did not satisfy the requirements of the party's Constitution. Hence, there was no legal basis for a National Congress on 8 and 9 January 2011.

The respondent stated that on 8 and 9 January 2011 he had attended a gathering of persons who intended to hold an MDC congress. He alleged that his objective was to encourage healing and reconciliation among the party members, and to plead with colleagues to pay attention to the constitutional requirements for holding a National Congress. The Chairperson did not attend despite the fact that he was constitutionally mandated to preside over the congress. The meeting ended up being presided over by the National Organising Secretary, in violation of the constitutional requirements for a proper and legal congress. In the light of that, he allegedly addressed delegates and stated to them that the gathering was not an MDC congress but an ordinary meeting of the party. He also allegedly implored delegates to take into account the fact that a sizeable number of leaders (13) had boycotted and that the delegates should address the concerns of those that had walked out of the National Council meeting and had also boycotted the gathering of 8 and 9 January 2011. His aim was to make party leaders to return to constitutionalism and not to destroy the party. To the respondent's disappointment, all his efforts were frustrated. His advice was ignored and certain individuals put themselves in certain positions when the congress of the party, on 8 and 9 January 2011, was not proper and lawful. It was, allegedly, not in terms of the MDC Constitution and was, ipso facto, a nullity and so was what was decided and done thereat since one cannot put something on nothing and expect it to stand, it will fall. There was no election to stand for.

In conclusion, on the issue of the party's congress, the respondent reiterated that he had allegedly told the 4,428 delegates that in light of the concerns raised by the 13 Council members on 7 January 2011, the meeting of 8 and 9 January 2011 could not be a congress.

In response to the issue of the National Council meeting of 7 January 2011, and the party's congress of 8 and 9 January 2011, the applicants had the following to say;

The applicants stated that at that time the National Council was made up of 105 members 87 of those members attended the meeting of 7 January 2011. Ten of those members walked out of the meeting leaving a total of 77 members. In terms of the party's Constitution, a quorum for any National Council meeting is formed by 50% of Council members. After the ten had walked out, the remaining 77 members formed the required quorum.

The applicants said there was no truth in the suggestion by the respondent that the ten walked out of the meeting because of disputes centered on the constitutionality of the impending party congress.  The correct position was that the acting National Chairman, Mr Joubert Madzimure, had allegedly pre-arranged a press conference for 3pm on that day. When confronted on the matter, he denied any knowledge of it. But at about 2.45pm, before any item on the agenda was discussed, the ten stormed out of the meeting. The acting National Chairman complained that he had not been accorded the respect that he deserved by the then Secretary-General and the deponent who had gone out to answer calls on their mobile phones. The truth of the matter was that the ten stormed out of the meeting because it was nearly time for them to go and address a press conference. Since the acting National Chairman had walked out of the National Council meeting, the respondent volunteered to chair the meeting and the Council accepted his suggestion to chair the meeting. However, the applicants stated that his averments that he advised the National Council meeting to take note of the concerns of those that had walked out and that the meeting was no longer a National Council meeting were clearly false as he had never said so. They asserted that the meeting proceeded as a National Council meeting and went on to consider and approve the following:-

(a) The proposed amendments to the party's Constitution to be presented to the congress for approval;

(b) All the petitions on the nominations of persons for elections at the congress;

(c) The respondent himself formally tabled his withdrawal from contesting the position of president of the party. The National Council meeting which he chaired accepted his withdrawal.

It was the applicants' assertion that the National Council meeting had the requisite quorum and satisfied all the provisions of the party's constitution relating to the holding of National Council meetings contrary to the bald assertions by the respondent that provisions of the party's Constitution were not satisfied. He was unable to name the provisions which he claimed to have been violated.  Similarly, the respondent made a bald assertion that there was no legal basis for holding a National Congress on 8 and 9 January 2011 without laying a foundation for such an assertion by naming the provisions of the party's constitution which were contravened.

The applicants concluded that the respondent was just being untruthful when he was suggesting that the National Council meeting had ceased being such when the ten members walked out of it.

The applicants were justified in arriving at that conclusion. This court finds that the meeting made its deliberations as a National Council meeting. The respondent lacked candour and was being untruthful by suggesting otherwise….,.

The Party's National Congress

The applicants averred that a resolution was made, at the National Council chaired by the respondent, that due to the fact that the National Chairman of the party had walked out of the meeting and would not be attending the National Congress of the party, the national Organising Secretary would chair the congress of the party.

The holding of the party's congress could not be cancelled because the National Chairman and his colleagues were not going to attend. Compared to 4,428 delegates who attended. There was nothing unconstitutional about the National Organizing Secretary chairing the event in the absence of the National Chairman.

The respondent attended the congress and delivered, what one would term a keynote address, to the delegates. He, however, has sought to disassociate himself from it. He said what he addressed was just a gathering of party members but not a party congress. He claimed to have told the 4,428 delegates that what they were attending was not a party congress but an ordinary gathering of the party.

The applicants responded by saying that the respondent was just being blatantly untruthful. The respondent repeatedly referred to it as the party's congress in his opening address, and in his very opening sentences wherein he said the following:-

“Pamusoroi vakuru veparty varipano. Pamusoroi our dignitaries, our distinguished guests to our congress. Pamusoroi varidzi veparty, delegates to the congress of our party. We are very grateful that our guests were able to come and join us today. We are grateful that the delegates found their way to Harare and today we are convening this congress of our party. We are very thankful for the support that has been shown to this congress.

Now, we are holding this congress of co-operation, a dispensation of working together. Zimbabwe is being run by an Inclusive Government of three political parties. This is the environment, the situation under which we are holding our congress.

…, saka nhasi uno mauya ku congress of the most important party in the country, mauya ku congress yeparty irikutonga Zimbabwe.”

The above utterances by the respondent illustrate beyond any doubt that the respondent was convinced in his own mind, at that time, that he was attending and addressing the party's 3^rd congress. Consequently, he was simply being untruthful when he turned around and suggested he had addressed the delegates and clearly stated to them that the gathering was not an MDC congress but an ordinary meeting of the MDC. He further perjured himself when he averred that his advice was ignored and some individuals put themselves in certain positions as if the gathering was the MDC party congress when it was not.

The correct position is that the gathering was the 3rd congress of the MDC party where the new leadership of the party was elected. The respondent withdrew from the contest.

This court makes the following specific findings:

(a) The gathering of 4,428 delegates on 8 and 9 January 2011 was the 3^rd congress of the MDC party.

(b) The respondent knew and believed that he was addressing the 4,428 delegates to the 3^rd congress of the MDC party.

(c) The congress elected a new leadership at that congress. The respondent freely and voluntarily withdrew from the contest.

(d) The respondent took active participation at the congress and fully accepted the outcome of the congress and that outcome remains valid until declared otherwise by a court of law.

(e) The respondent perjured himself when he averred that what he had repeatedly termed the party's congress in his address to the 4,428 delegates was, in fact, an ordinary party meeting.

Who then is the present party president?

The respondent averred that he had never officially indicated that he was not contesting the MDC presidency. As matters stood, there had been no opportunity for him to contest the MDC presidency as no lawful congress had been held. In the result, he remained the MDC President.

The respondent was again being untruthful because not only did he withdraw from the party's presidential contest by personally advising the various Provincial Chairpersons of his withdrawal on 7 January 2011, he advised the then National Working Committee, and, later, the National Council, of his official and formal withdrawal. He went further and gave a full explanation at the congress on 8 January 2011. The applicants then quoted verbatim what he said as captured in Disc 1. He spoke in the Chishona and English languages. What he said was to the following effect:-

“I, as a leader, made a personal decision to unite my people so that they can move forward and work well. Also, I decided that others should get an opportunity to lead. That is what I said as Mutambara.

Mutambara made a decision before the provincial councils. The provincial councils of the party met after Mutambara had said we want people to unite, we want the party to move from one leader to another leader. We are building a new culture in our party.

Mutambara made a personal decision before the provincial councils made their choices. No provincial council decided to nominate him thinking that he was still in the contest. Mutambara said he wanted people to unite. Mutambara said he wanted leadership renewal to take place in our party. That is the culture of our party. That is the philosophy of our party…,.

Although I will hold no position, I will be a soldier in the party. I will be a soldier in Zimbabwe.”

The above quotation is found at pages…., of the application.

The above clearly demonstrates that the respondent further perjured himself when he said he did not officially withdraw from the race and was still the party President. This court finds that the respondent freely and voluntarily withdrew from contesting for the presidency of the party or any position in the party. A new leadership of the party was elected with Professor Welshman Ncube emerging as the President of the party.

In the result, Professor Welshman Ncube and the team elected at the congress of 8 and 9 January 2011 remain in control of the party until a court of law declares that the congress was irregularly held.

This court further finds that Professor Welshman Ncube immediately became the Principal in the Global Political Agreement upon his election as president of the MDC party. The respondent ceased to be a Principal when he freely and voluntarily relinquished the presidency of the party on 8 January 2011.

The respondent initially accepted the outcome of the congress and the leadership elected thereat. He however, suddenly changed his stance after about 4 weeks and began to allege that there was no lawful party congress at which a new leadership could have been elected. He claimed to have re-assumed the party's presidency and even purported to dismiss the legitimate President of the party who was popularly elected at the congress. In his press statement of 9 February 2011 he had this to say:-

“Consequently, as the president of the party, the key authority of the party in between main party meetings such a National Council, National Executive and Standing Committee I have had to take drastic remedial action. With immediate effect, Professor Welshman Ncube is summarily dismissed from the MDC party. As a non member he has no authority to organize, participate, or speak on behalf of the party.

We will organize a National Council meeting of the party in accordance with our constitution, at which meeting this decision will be ratified. I took this decision after careful consideration, thorough examination, soul-searching, analysis and consultation.

Although I have been silent in public from 8^th January 2011 to 7^th February 2011, privately I have been continuously in touch with Prof Ncube, trying to encourage him to heal and reconcile the party. He has been doing the opposite. I have been urging him to respect the rule of law in the country, the party's constitution, and the country's legal system. He has not listened. He has left me with no choice but to take the above measures in order to salvage the image of the party and re-establish its dignity.”

The respondent's conduct is difficult to follow and understand in the light of the fact that he had attended the party's congress and addressed it as such. He had participated in full and accepted the outcome for at least 4 weeks and then suddenly issued press statements claiming to have re-assumed the party presidency and thereafter purports to dismiss the legitimate president of the party.  Further, the respondent had allocated to himself powers which even the legitimate president of the party does not have in terms of the party's Constitution. The legitimate pesident of the party does not have powers to dismiss party members.

The applicants were justified in launching this application in order to restrain the respondent from persisting with his strange and dangerous behaviour.

As stated earlier on in this judgment, the outcome of the congress remains valid until and unless it has been set aside by a court of law. Until and unless that happens, the applicants have a clear right to the leadership elected at the congress and for that leadership alone to run the affairs of the party.

The conduct of the respondent is causing irreparable harm to the MDC party.

He purports to still act as its President when he freely and voluntarily relinquished the presidency at the congress on 8 January 2011. Persist to want to act as the Principal of the party when he is no longer its President. The applicants have no other satisfactory remedy by which they could secure their rights. Finally, the balance of convenience clearly favours the applicants in this case. See Setlogelo v Setlogelo 1914 AD 221…, and Flamelily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd and Another 1980 ZLR 378 for the requirements of an interdict….,.

In the light of the foregoing findings, this court holds the view that the applicants are entitled to the final order they seek in terms of the amended draft.

The plaintiff, Ellen Majola, led evidence in support of her claims.

She denied ever selling Stand 20339 Pumula South, Bulawayo to the defendant or to her husband. She explained that the defendant's husband, Ambrose Majola, was like a son to her and her late husband. She testified that after she had finished the construction of the house she asked Ambrose Majola to go and look after the property with her children who resided there. At that stage, Ambrose Majola was not yet married to the defendant. Her evidence was that the defendant only moved into the house around 2003 when the house had already been erected. The late Ambrose Majola died a shortwhile afterwards during the year 2004. The plaintiff stated that after the demise of her own husband she purchased building materials slowly through her proceeds from farming and the sale of livestock. She refuted the defendant's assertions that the Stand was almost re-possessed by the City Council because she had failed to pay rates for the property….,.

The second witness called by the plaintiff is Getrude Lusinga.

She confirmed that she was a sister to both the late Njani Majola and Ambrose Majola. She regarded both the plaintiff and the defendant as her sisters-in-law. She testified that Stand 20339 Pumula South, Bulawayo was purchased by Njani Majola during his lifetime. She was emphatic that the late Ambrose Majola never purchased the Stand in question and never constructed a house upon the Stand. She stated that Ambrose Majola was looked after by the plaintiff as “a son”. The witness went further to indicate that Ambrose Majola was only requested to move into a completed house. She asserted that Ambrose Majola did not have the financial ability to purchase the Stand. He came in and out of the country and spent most of his time in South Africa where he did odd jobs. Getrude Lusinga indicated that the defendant joined the late Ambrose Majola when the house was already complete in 2003. Ambrose Majola died the following year in 2004. She went further to point out that she assisted the plaintiff to secure a builder and that the plaintiff erected the house using proceeds from her farming activities and sale of her cattle. She flatly denied the suggestion that Ambrose Majola or the defendant had purchased the property from the plaintiff….,.

In support of her case, the defendant gave evidence.

She said that sometime in the year 2000, she, together with her late husband, purchased Stand 20339 Pumula South from the plaintiff after the death of the plaintiff's husband. They proceeded to develop the Stand. The plaintiff undertook to transfer the property into the defendant's names after winding up her husband's estate. The plaintiff failed to do so, and, instead, instituted proceedings to evict the defendant from her lawfully acquired property. The defendant swore that she witnessed the plaintiff being handed the sum of Z$20,000= by the late Ambrose Majola. She stated that she was the only witness to the transaction. The defendant conceded that she moved in to cohabit with the late Ambrose Majola sometime in 2003. Her husband died the following year in 2004. The defendant averred that the plaintiff never came to the property and resided in the rural areas. She, however, confirmed that when the plaintiff attempted to evict her from the premises, she resisted those attempts. The defendant alleged that the late Ambrose Majola had, at the time of his death, approached the City of Bulawayo to change the account name on the water and rates bills. The defendant's contention was that because the rates and water bills were in the name of Ambrose Majola proved that he had acquired ownership in the property. The defendant further alleges that the plaintiff is taking advantage of the fact that the Agreement of Sale was verbal and that the defendant's husband is now late. 

I found the evidence of the defendant difficult to believe for the following reasons:

(a) The defendant said she married and moved in to cohabit with the late Ambrose Majola in 2003.

(b) The evidence of the plaintiff and Getrude Lusinga clearly shows that the house was constructed between the year 2000 and 2003.

(c) The late Ambrose Majola was being looked after by the plaintiff as “a son” and could not have had the financial means to purchase the property.

(d) The alleged verbal agreement had no witness except the defendant herself.

(e) If the defendant commenced co-habiting with the late Ambrose Majola in 2003 she would not have been party to the construction of the property. The house was erected when she moved in.

In S v Gijima 1986 (1) ZLR 33 DUMBUTSENA CJ said:

“In this case, the fact that the appellant lied or gave false evidence is a factor to be drawn when drawing inferences of his guilt. In Broadhurst v Reginam [1964] All ER 111 at 120A-B, LORD DEVLIN, when considering inferences which may be drawn about the accused's conduct and state of mind, said:

The matter turns on the story in, or behind, the relevant documents…,.

That is where the defendant fell short.

This court must weigh the probabilities arising from the evidence tendered and all the circumstances of the case in order to determine which of the two versions…, is more probable.

See Selamolele v Makhado1988 (2) SA 372 (V)…,.

The contentions and submissions by counsel for the respondent are not supported by the evidence led in this court.

Whether the Late Dzingayi Kashumba paid the balance of the purchase price

The applicants said the Late Dzingayi Kashumba never paid the balance of the purchase price. They said all the payments that he tried to make after the order of 9 May 2001, including that cheque for $337,178=77, had been rejected and returned to him. On the other hand, Ceciliah maintained that none of the cheques was returned.

Thus, there appeared to exist a dispute of fact. But I will take a robust approach to resolve it. I believe there is sufficient information on the record to enable me to do so.

The approach on apparent disputes of facts has been set out in a number of cases. In Zimbabwe Bonded Fibreglass [Pvt] Ltd v Peech 1987 [2] ZLR 338 [SC] GUBBAY JA…, stated 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.”

See also Room Hire Co [Pty] Ltd v Jeppe Street Mansions [Pty] Ltd 1949 [3] SA 1155 [T]…,.; Masukusa v National Foods Ltd & Anor 1949 [3] SA 1155 [T]…,.; and Van Niekerk v Van Niekerk & Ors 1999 [1] ZLR 421 [SC].

In the present case, the evidence tendered on this point was in the form of contemporaneous correspondence between the parties' respective legal practitioners. It showed that each time the Late Dzingayi Kashumba sent a cheque, it would be returned. The first applicant was steadfast in her view that she had cancelled the Deed of Sale (DOS). Whether this view was right or wrong is not the point. The point is that, on a balance of probabilities, all the cheques were returned.

A trial in a civil case involves making findings or inferences of facts by balancing probabilities and selecting a conclusion which seems to be the more natural or plausible one from several other conceivable ones, even though that conclusion may not be the only reasonable one: see Joel Melamed and Hurwitz v Cleverland Estates (Pty) Ltd; Joel Melamed and Hurwitz v Vorner Investments (Pty) Ltd 1984 (3) SA 155.

The first of the first applicant's cheques was for $337,178=17 in May or June 2001 which was the Late Dzingayi Kashumba's attempt to comply with the 30 day deadline in the court order of 9 May 2001. Munangati & Associates returned it. The next cheque was for $454,037=93 in July 2002, after the arbitrator had ruled that there had still been a balance outstanding. Mudambanuki & Associates returned it. The next one was for $773,443=72 in June 2005 soon after the judgment of Hungwe J confirming the bar against the first applicant's notice of opposition to the Late Dzingayi's third application for condonation. Mutamangira & Associates returned it. In paragraph 14 of his opposing affidavit the Late Dzingayi acknowledged that Mutamangira & Associates rejected this cheque but claimed that it had not been returned. He said he later learnt that his bank account had been debited with the amount of the cheque.

The amounts on all these cheques represented the Late Dzingayi's unilateral calculation of the balance of the purchase price and the interest accrued. But, in spite of his assertion regarding the last cheque for $773,443=72, I still consider that the probabilities favour a finding that that the cheque had also been rejected and returned.

I do not believe that having been so resolute in her belief all along that the Deed of Sale (DOS) had been cancelled the first applicant would then suddenly veer so late in the day and accept such payment.

Secondly, the Late Dzingayi Kashumba's evidence that the cheque had not been returned was his lawyer's letter and his own bank account showing a debit of the amount when it was withdrawn. That was hardly proof that the cheque had not been returned subsequently.

Thirdly…, as late as September and October 2007 the parties were still haggling over some other cheque payment the amount of which was not disclosed. Mutamangira & Associates, on Kantor & Immerman's suggestion, finally returned it directly to the Late Dzingayi Kashumba. Thus, if the cheque for $773,443=72 had been tendered as being the full balance of the purchase price, as had been the case with the previous cheques that had been returned, there would have been no reason why, in September or October 2007, more than two years after his account had been debited, the Late Dzingayi Kashumba would still be sending yet another cheque. But even then, this last cheque was still returned.

Therefore, it is my finding that apart from the payments that he made prior to his cheque for $337,178=17, the Late Dzingai Kashumba did not pay the final balance of the purchase price and the interest accrued.

Synthesis

It is nearly an impossible situation now. It has been sixteen years of protracted wrangling. In my disposal of the matter, I have to avoid a half-baked solution that will leave the parties thirsting for more answers. Except, perhaps, for the third respondent, the Master of the High Court, and to an extent the fourth respondent, none of the other parties are free from blame.

I have to defer to the proverbial wisdom of Judge Jackal in African folklore.

One day as he is wandering about, he chances upon Leopard and Man in mortal argument. Leopard wants to eat Man. Man cannot understand Leopard's morbid ingratitude, insatiable greed and profound selfishness. Both Leopard and Man implore Judge Jackal to be judge over their cause. Judge Jackal agrees. He soon establishes the facts. Man had been on about his duties in the forest. He had come across Leopard languishing in a trap or snare. Leopard had been seven days and seven nights trapped like that. He had been seven days and seven nights without food or drink. Feeling sorry for him Man had freed Leopard. Thereupon Leopard had jumped upon Man wanting to eat him.

That is the case before Judge Jackal. But he pretends not to have fully comprehended the circumstances. He orders an inspection in loco and a return to the status quo ante. Leopard is impatient. He is hungry. He wants to have his meal but grumpy Judge Jackal is dragging the case. Judge Jackal will not be hurried. The status quo ante has to be restored. To expedite the proceedings Leopard leaps back into the trap. Judge Jackal quickly snaps it shut. He then turns to Man and asks him what exactly he had been doing when he had chanced upon Leopard in the trap. “I was walking along this footpath here”, Man replies. “Then do carry on walking along this footpath here and do never come back!”

The case ends.

My findings in this judgment throw the parties back to the position that they were in on 9 May 2001 when BARTLETT J issued his first order. This means that the Deed of Sale (DOS) had not been cancelled; the Late Dzingayi Kashumba had not paid the balance of the purchase price, and no transfer of the original property to the Late Dzingayi had yet taken place, let alone the subsequent transfer of Stand 533 to the fourth respondent.

In my view, the donation transfer from the first applicant to applicants 2 to 4 was of no real consequence, even though at that stage the property had become res litigiosa. Among other things, the property had remained with the applicants. It had remained in the family.

I have to dispose of this matter in a manner that brings closure to the endless disputes, or failing that, a manner that considerably narrows down any further argument. It is time litigation comes to an end.

In a nutshell, in my judgment, the applicants must, in principle, get back their properties. The first respondent must be given the chance to pay off what her husband, or the estate that she represents, ought to have paid, but failed, or neglected to pay, or was prevented from paying. If the first respondent pays, she keeps “her” property. The transfers stand. In this regard, the fourth respondent's fate is tied up with that of the first respondent. However, if after being given the chance to pay, the first respondent fails or neglects to do so, then the Deed of Sale (DOS), by a mere declaration by the applicants, irrevocably and finally gets cancelled. The current title deeds get set aside. The first and fourth respondents must surrender the properties. The issues of compensation for improvements, if any, would have to be the subject of debate or judgment another day.

So here is how I dispose of the matter, my order of costs reflecting the attitude that I have taken of the conduct of the parties:

DISPOSITION

1. It is hereby declared as follows:

1.1 That the Deed of Sale between the first applicant and the Late Dzingayi Kashumba [hereafter referred to as “the deceased”] on 11 and 12 May 1999 in respect of the property described as Stands 552 and 553 Quinnington Township of Subdivision A of Subdivision F of Borrowdale Estate, measuring 3,999 square metres and 4,002 square metres respectively [hereafter referred to as “the original property”], was never cancelled.

1.2 That the balance of the purchase price due and owing by the deceased to the first applicant, as at 9 May 2001, in respect of the Deed of Sale aforesaid, was never paid.

1.3 That the transfer on 3 May 2006, in favour of the deceased, of the two properties known as certain pieces of land situate in the District of Salisbury, respectively measuring 4,001 and 4,002 square metres, and respectively called Stands 552 and 553, Quinnington Township of Subdivision A of Subdivision F of Quinnington of Borrowdale Estate, respectively on Deeds of Transfer Nos.3030/2006 and 3031/2006 [hereafter referred to as “Stands 552 and 533 Quinnington Township”], was unlawful and therefore invalid.

1.4 That the subsequent transfer of Stand 553 Quinnington Township, on Deed of Transfer No.773/2011, on 17 February 2011, in favour of Tafirenyika Kambarami, was unlawful and therefore invalid.

1.5 That the balance of the purchase price outstanding, due and owing by the deceased to the first applicant as at 9 May 2001 in respect of the sale and purchase of the original property was in the sum of ZW$503,573=02, being the total of ZW$337,178=77, reflected on the deceased's cheque subsequently rejected by the first applicant, and ZW$166,394=25 subsequently found by the arbitrator to have been the shortfall on the cheque amount aforesaid.

2. Notwithstanding the declaration of invalidity of the transfers referred to in paragraph 1 above, but subject to paragraphs 3, 4, 5 and 6 below, if the first respondent pays, or causes to be paid, to the applicants, or one or other of them, the one receiving payment, the others to be bound, the equivalent of the balance of the purchase price referred to in paragraph 1.5 above in the functional currency current at the time of payment, together with interest thereon as envisaged herein, then the title deeds in respect to which the transfers aforesaid have been declared unlawful and invalid shall not be set aside, and the declarations of invalidity herein shall automatically lapse.

3. Unless the equivalent amount of the balance of the purchase price referred to in paragraph 1.5 above is otherwise agreed to in writing within thirty [30] calendar days of the date of this order, or such other extended period not exceeding a further thirty [30] calendar days as they may agree to in writing, the parties shall engage the Commercial Arbitration Centre in Harare solely to determine the equivalent amount of that balance, in any of the functional currencies, and the decision of the arbitrator shall be final and binding.

4. The first respondent shall pay the equivalent amount of the balance of the purchase price referred to above within thirty [30] days of the date the amount is ascertained, either by agreement between the parties, or through determination by arbitration as contemplated by paragraph 3 above, together with interest thereon at the prescribed rate from the date of such agreement or determination, whatever the case might be, to the date of payment.

5. In the event that the first respondent fails or neglects to pay as envisaged in this order, then the applicants, or one or other of them, shall ipso facto, forthwith have the right to declare, in writing, the immediate and automatic cancellation of the Deed of Sale aforesaid and, without prejudice to any other rights they might have at law, shall be entitled to keep as rouwkoop all such monies as they might have received as purchase price for the original property.

6. Subject to any rights to compensation for improvements that they might have, in the event that the title deeds mentioned herein have been cancelled as aforesaid, the first and fourth respondents, and all those claiming occupation through them, shall, within thirty [30] calendar days of the date of such cancellation, vacate the respective properties occupied by them, failing which the Sheriff for Zimbabwe, or his lawful deputy or assistant deputies, or such of his agents as might be duly authorised by him, shall be empowered, authorised and directed to evict the aforesaid respondents and all those claiming occupation through them.

7. Save and except for the fourth respondent whose costs of suit shall be borne by the first and second respondents, jointly and severally, the one paying the other to be absolved, each party shall bear its own costs.

The Zimbabwe Electoral Commission proved, through the V11 Forms produced, that the allegations that some forms had been signed and not populated was false. There appeared to have been a deliberate fabrication of evidence with an intent to mislead the Court….,.

The applicant sought to present misleading evidence to prove the allegation that polling stations were created on the polling day. He pointed to what are referred to as “1HRDC” and “2HRDC” as examples of created polling stations. It turned out that these were in fact not polling stations. They were Ward 1 Hurungwe Rural District Council and Ward 2 Hurungwe Rural District Council.

To the extent that the allegation that polling stations were created was based on false information, it remained an unfounded allegation….,.

The applicant's G-series documents alleged that a polling station at Mandara Primary School in Bikita West Constituency had 809 people who voted in the Presidential election out of a total registered voter population of 447. Contrary to the applicant's assertions, the V11 Forms in respect of Mandara Primary School polling station recorded that 371 people voted in the Presidential election.

The applicant's G-series alleged that at a polling station at Bikita Minerals Primary School in Bikita West Constituency 831 people voted in the Presidential election when the voter population was 341. Contrary to the applicant's assertions, the V11 Form for Bikita Minerals Primary School polling station recorded that 309 people voted in the Presidential election.

The applicant's G-series alleged that at a polling station at Nharira Primary School in Gutu North Constituency 536 people voted in the Presidential election out of a voter population of 271. Contrary to the applicant's assertions, the V11 Forms for Nharira Primary School polling station recorded that 236 people voted in the Presidential election.

The trend was the same in respect of polling stations in the G-series, which was produced as proof of the allegations of over-voting. The conclusion by the Court was that the information contained in the documents produced as G-series was false.

In Ruturi v Heritage Clothing (Pvt) Ltd 1994 (2) ZLR 374 (S), this Court found that to make any finding in the absence of evidence is to err.

In his counter-claim, the defendant stated that to the best of his knowledge No.6 Rose friars, Avondale is not part of the matrimonial estate and that he is not connected to it in any way. It was only later during the trial that exhibit 3 was produced and the defendant alleged the property is owned by Bret Lang. There is no explanation as to why the defendant did not disclose this fact which should have been known to him at the time of filing the defendant's plea and counterclaim. Medeline Van Gruenen's evidence, which I have no reason not to accept, is very clear on how the defendant played a key role in the acquisition of No. 6 Rosefriars, Avondale and clearly shows that the defendant has not been candid with the court but keen to pursue his scheme of obfuscation.

I am unable to read much into the fact that the Agreement of Sale, exhibit 3, refers to an unnamed third party moreso when the reference to that third party was only endorsed, clearly belatedly, by the defendant in a different shade of ink different from the rest of the agreement. Other than the defendant's word that No. 6 Rosefriars is owned by Bret Lang there is no evidence to support that. There is no reason as to why Bret Lang has not taken ownership of the flat or place any evidence to show that he owns this flat. The inference which I should rightly make is that No.6 Rosefriers is an asset of the parties and should be distributed.

This is a court application for a transfer of property whose relief is couched as follows:

“It is ordered that:-

The Respondent be and is hereby ordered, directed, authorized and compelled to proceed with the transfer of Stand No.7204, Nketa 9 Township, Bulawayo from 1st Respondent to Applicant's names notwithstanding any pending cases under HC113/03, HC1549/03, HC131/03 and HC176/07 and any other form of objections by 2nd Respondent.”…,.

It should also be pointed out that the first respondent could not be served with the said court application as he was always avoiding service upon himself by the Deputy Sheriff.

The applicant's version that the equipment was to be stored for free is more probable.

I see no reason why the third respondent would want to enter into a lease agreement for property not belonging to him and when the partnership had dissolved. There is no reason why the third respondent would enter into the lease agreement himself, in his name, when the applicant was available and in the absence of any authority to do so. What was his benefit?

The indications are that he stored the equipment for free and is conniving with the second respondent and the sub-lease is a sham.

In this matter the plaintiff's claim is for a declaratory order in the following terms:

“(a) An order that the defendant be declared the true and lawful owner of the Mercedes Benz Sprinter, registration number ACQ 0587.

(b) An order that the defendant surrender the Mercedes Benz Sprinter, registration number ACQ 0587 together with its registration documents to plaintiff within 48 hours of the order.

(c) An order that the defendant pays the costs of suit on an attorney and client scale.”

The defendant opposed the claims and contended that the Mercedes Benz Sprinter (hereinafter referred to as the motor vehicle) is hers. The defendant avers that the motor vehicle in dispute was purchased by the plaintiff on behalf of the defendant. She further averred that the defendant gave the plaintiff a total sum of ZAR120,000 after the plaintiff had convinced the defendant that it would be better for her to purchase a Sprinter omnibus instead of a 7 tonne truck she had intended to purchase.

To prove that the motor vehicle was indeed hers the defendant stated that the plaintiff had registered the vehicle in her names.

At the curtailment of pleadings, the parties agreed that the issue to be determined at trial was as follows:

“Whether or not the plaintiff is the true owner of the Mercedes Benz Sprinter, registration number ACQ 0587.”

It was resolved that the onus of proof was on the plaintiff to establish that he was the true owner of the vehicle and not the defendant.

Plaintiff's case

The plaintiff was the first to testify before calling three other witnesses in support of his claims. His testimony was essentially to the effect that he was employed by the defendant as a driver until this dispute arose. He had been employed as such for a period of more than ten years prior to the dispute. He narrated that problems started when he was involved in a road traffic accident whilst driving the defendant's Toyota Quantum on 23 July 2013. The said Quantum motor vehicle, though belonging to the defendant, was registered in the names of one F. Ndlovu.

The plaintiff maintained that the Mercedes Benz Sprinter is his and that he bought it from one Lethu Phepheta Ncube in October 2012. A written agreement of sale was entered into between Lethu Phepheta Ncube and the plaintiff's wife Sanelisiwe Viki Nyamambi.

At the time the agreement was concluded, the plaintiff was in South Africa, and his wife signed the agreement of sale on the plaintiff's behalf.

The Agreement of Sale was tendered into the record. The agreed purchase price was US$10,000 and a deposit of US$8,000 was paid to the seller leaving a balance of US$2,000 which is still to be paid.

The written agreement of sale tends to confirm the version of events as chronicled by the plaintiff in his evidence in chief. The plaintiff further testified that he attended to certain repairs on the motor vehicle until it became roadworthy. He did the upholstery of the vehicle and purchased an engine from one Sipho Hadebe and replaced the one reflected in the registration book of the vehicle. The old engine was, at the time of the hearing, with the mechanic.

The plaintiff testified that he paid US$5,000 for the engine and a written agreement of sale was produced in court to corroborate the plaintiff's testimony.

The plaintiff informed the court that the source of funding for the motor vehicle in dispute was from a sale of a Toyota Hiace motor vehicle and a loan obtained from his wife's Bank. Documents were tendered into evidence to support the plaintiff's version. The plaintiff stated that whilst he was busy fixing the motor vehicle he visited the defendant whilst driving the motor vehicle. That is when the defendant proposed that he could register the vehicle in her (defendant's) names so that he could use the vehicle to ply the busy Bulawayo – Johannesburg route.

The defendant gave the plaintiff her identity document in order to use it to register the vehicle in his name. The plaintiff advised the seller of the vehicle, Lethu Phepheta Ncube about the arrangement. The plaintiff stated that that everything was done in good faith. The plaintiff averred that he paid all the costs for the change of ownership and related registration expenses, including insurance fees. Once he had secured all the papers for the permit, the plaintiff had employed Nkosilathi Mkhizwana to drive the vehicle to and from South Africa. The plaintiff said the arrangement was that the defendant would receive a commission in the form of the entire fee for one trip in every four trips.

The plaintiff stated that the practice of using other persons' names is common place in that particular trade or business.

The plaintiff testified that after he was involved in an accident with the defendant's Toyota Quantum, the defendant became very bitter and she expressed displeasure and ordered that the plaintiff should repair the vehicle. When the plaintiff pointed out that the insurance should cover the costs of repairs, the defendant swore that she would fix the plaintiff by claiming ownership of the Mercedes Benz Sprinter since it was registered in her names.

The plaintiff testified that when he came back from one of the trips in South Africa, the motor vehicle was seized by the defendant who used the Criminal Investigations Department to dispossess him of possession of the motor vehicle. This happened in August 2013 - almost a year after he had been in peaceful possession of the motor vehicle. This event, according to the plaintiff, marked the start of a long and protracted legal battle to recover his motor vehicle.

The next witness for the plaintiff was Sanelisiwe Viki Nyamambi. She is married to the plaintiff. She testified that she is the one who handed the US$8,000 as a deposit for the vehicle to Lethu Phepheta Ncube. She said the agreement of sale was prepared by Lethu Phepheta's wife. She signed the agreement on the plaintiff's behalf because at the time he was away in South Africa.

The witness confirmed that when the vehicle was delivered it was repaired before it was considered roadworthy. She confirmed that she took a loan from her Bank and contributed a sum of US$1,500 towards the deposit. She further asserted that it was always known to the defendant that the motor vehicle belonged to the plaintiff. The driver was surrendering all the monies at her house when the vehicle commenced work.

The third witness called by the plaintiff was Lethu Phepheta Ncube. He is a mature man who gave the following evidence:

He confirmed that as far as he was concerned he sold the motor vehicle to the plaintiff and did not know the defendant at all. He seemed baffled by the suggestion that the defendant was the owner of the vehicle. He stated that the plaintiff had told him that he was unable to pay the balance on the purchase price because the defendant had taken the vehicle from him (plaintiff) by force. He corroborated the plaintiff and his witness was not challenged by the defendant at all.

The plaintiff's last witness was Nkosilathi Mkhizwana. He confirmed that he was employed by the plaintiff to drive the Mercedes Benz Sprinter in dispute. When he came back from a trip he would hand over the takings to the plaintiff or his wife. He confirmed that he believed that the motor vehicle belonged to the plaintiff. The evidence of this witness was not contested at all.

Defendant's case

The defendant opened her case by giving viva voce evidence. She stated that there existed a relationship of trust between herself and the plaintiff spanning a period of over ten years. She testified that the motor vehicle in dispute is hers. She denied that it had been registered in her names for the sake of expedience. She told the court that she raised the sum of ZAR120,000 which she forwarded to the plaintiff for the purchase of the vehicle.

The money was handed to the plaintiff in cash and there was no written proof for the transaction.

The defendant averred that it was not necessary for her to be involved in the actual purchase of the vehicle as she trusted the plaintiff; and the plaintiff had previously conducted various transactions on her behalf. She confirmed that she was not involved in the change of ownership of the motor vehicle in dispute.

The defendant portrayed the picture of a successful businesswoman operating shops, a bottle store in Plumtree and a commuter omnibus operator. The defendant advised the court that whatever the plaintiff did in relation to the Mercedes Benz Sprinter was done on her behalf.

The gap that exists in the evidence of the defendant is that she does not explain why from the year 2012 the plaintiff exercised full control over the motor vehicle without her involvement.

The next witness called by the defendant was Tshenjelani Ndlovu. She was called to confirm that the plaintiff was given money amounting to ZAR70,000 for the purchase of the vehicle. She also stated that the plaintiff had brought the motor vehicle to the defendant's house in order to show it to her.

The last witness for the defendant was Nigion Majohana Moyo. He testified that the defendant had advised him that she had bought a Mercedes Benz Sprinter and that a dispute had arisen after the defendant discovered that the plaintiff was using the vehicle and making trips to South Africa. The main feature of this witness's evidence is that the information he gave in court is based on what the defendant had told her. He did not have an independent knowledge of the details of the matter.

Analysis of evidence

In this matter, I have to assess the credibility of the witnesses and assess the probabilities of the plaintiff's version as against the defendant's account. There are issues that are common cause in this dispute and they are these:

(a) The plaintiff purchased the Mercedes Benz Sprinter from Lethu Phepheta Ncube.

(b) The plaintiff concluded the entire agreement of sale without the involvement of the defendant.

(c) The plaintiff changed ownership of the motor vehicle and proceeded to register it in the defendant's names.

(d) The plaintiff effected repairs on the motor vehicle and immediately started using it, plying the Bulawayo – Johannesburg route.

(e) The plaintiff employed a driver, Nkosilathi Mkhizwana, who worked for the plaintiff and surrendered all takings to the plaintiff or his wife.

(f) The defendant's Toyota Quantum motor vehicle was involved in an accident whilst being driven by the plaintiff in July 2013.

(g) A dispute arose when the plaintiff refused to effect repairs on the defendant's Toyota Quantum motor vehicle.

(h) The defendant repossessed the motor vehicle in question in August 2013 through the intervention of the Criminal Investigations Department, Bulawayo. The motor vehicle was reposed from the plaintiff by the CID and handed to the defendant.

The plaintiff's testimony is supported by documentary evidence. He produced the Agreement of Sale signed by his wife and Lethu Phephetha Ncube. There is no argument that what Lethu Phepheta Ncube stated in court represents the truth of what transpired. The plaintiff further produced the loan agreement relating to the loan secured by the plaintiff's wife. The circumstances under which the vehicle was registered in the names of the defendant were adequately explained.

During the trial, it became apparent that the practice of registering vehicles under another person's name is a very common in the Cross-Border Transporters Industry.

What became also clear is that one can only ply the Bulawayo – Johannesburg route if one is registered as a member of an organization known as Zimbabwe International Long Distance Taxi Association. That organization controls its members who queue officially and load passengers in Johannesburg, South Africa to Zimbabwe. The relevance of the organization is that the plaintiff could not have plyed that route without being a member, or, alternatively, by using someone else's name.

I find the following to be inconsistencies in the defendant's version:

(a) The defendant stated, in her evidence in chief, that she did not pay for the repairs for the Quantum motor vehicle, but, under cross-examination, she failed to explain why she issued a letter of demand, through her lawyers, for the costs of repair.

(b) The defendant clearly had no knowledge whatsoever about how the motor vehicle in question was purchased.

(c) The defendant sought to persuade the court to believe that she put up a huge amount of ZAR120,000 for the purchase of a motor vehicle she had never seen, when she testified that previously she went all the way to Durban, South Africa to identify and purchase a vehicle.

(d) The defendant produced no document at all to support her case. It is quite telling that the only documents she sought to rely on were documents seized from the plaintiff by members of the Criminal Investigations Department.

(e) The defendant's assertion that she reported the matter to the police because she had discovered that the motor vehicle was undertaking trips to South Africa is in direct conflict with her earlier contention that the takings from the trips were initially surrendered to her and for her benefit.

I am therefore satisfied, that, on the evidence led in court and on close examination of all the documentary evidence admitted into evidence, the plaintiff has managed to prove his case on a balance of probabilities.

In civil cases, the burden of proof is discharged as a matter of probability. The standard is often expressed as requiring proof on a “balance of probabilities”, but that should not be understood as requiring that the probabilities should do no more than favour one party in preference to another. What is required is that the probabilities in the case be such that, on a preponderance, it is probable that the particular state of affairs existed.

In the case of Milner v Minister of Pensions 1947 2 ALL ER 372…, LORD DENNING expressed the civil standard of proof as follows:

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

It is my finding that the plaintiff and the defendant operated on the basis of mutual trust. They both took each other into the other's confidence. I make the specific finding that the plaintiff plyed the Bulawayo-Johannesburg route using the Mercedes Benz Sprinter for a period extending from about October 2012 to August 2013. The plaintiff collected all the cash from the trips and handed the defendant the equivalent of one trip in every four trips. The defendant accepted the money without question and must have known that the plaintiff was operating the Mercedes Benz Sprinter for his exclusive financial benefit, save for the fee she received for facilitating the arrangement.

I have established, and it is beyond dispute, that problems only emerged after the defendant's Toyota Quantum was involved in an accident in July 2013. It cannot be mere incidence that, that was the same time the defendant seized the Mercedes Benz Sprinter and laying claim over it. If indeed the defendant was the owner of the vehicle in dispute one would have expected to see her involvement in the purchase of the vehicle and her participation in the repairs to the motor vehicle. If the vehicle belonged to her, one wonders why she did not employ her own driver on her own terms and why the driver was not surrendering the cash from the trips to her.

In the result, it is ordered as follows:

1. The plaintiff be and is hereby declared to be the true and lawful owner of the Mercedes Benz Sprinter bearing registration number ACQ 0587.

2. The defendant is ordered and directed to surrender to the plaintiff the Mercedes Benz Sprinter, bearing registration number ACQ 0587 together with its registration documents within 48 hours of this order.

3. The defendant is ordered to pay the costs of suit.

The standard of proof in civil proceedings is proof on a balance of probabilities.

What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff's claim against the defendant's defence. It necessitates a decision of which of their versions of events is more likely to be true. In other words, which version is more believable, or most likely to have transpired, than the other?

It is my view that the preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's, or vice versa. In making this determination, we look at the pleadings, at the documentary evidence, at what the parties' representatives said and did when they were in the witness stand, and, finally, at what the law says in light of the evidence that we will have accepted. Then we determine what ought to be done in order to do justice between the parties.

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

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

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

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

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

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

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

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

The plaintiff then claims the existence of a verbal agreement in terms of which the defendant would repurchase the vehicle at a stipulated price. The plaintiff claims that the defendant breached the agreement and therefore prays for its cancellation and payment to the defendant of monies not paid under the first agreement and a refund to the defendant of monies paid under the second agreement.

Most of the facts are common cause. The dispute relates to the payment of the instalments by the plaintiff due on the written agreement.

It is common cause that the parties entered into a verbal agreement in respect to the vehicle, and the question for determination is what the terms of that verbal agreement were. Each of the parties has a version which differs from the version rendered by the other.

At the commencement of the trial the parties agreed to some of the issues agreed to at the pre-trial conference and captured in a joint pre-trial conference minute filed by them. The only issues left for determination at the trial were the following therefore:

(a) What were the material terms of the verbal agreement between the parties?

(b) Whether the defendant breached the verbal agreement by failing to pay the deposit timeously?

(c) Whether the defendant is entitled to the return of the motor vehicle?

(d) Whether the defendant has suffered any damages and whether the plaintiff is liable to the defendant in the amount claimed or any other sum at all?

There were no issues to be decided on the written agreement, but, in the presentation of their evidence, it would seem as if the parties were focused on issues mainly to do with the written agreement.

The defendant, in its counter claim, alleges breach of the agreement by the plaintiff and denies the existence of a verbal agreement involving a buy back of the vehicle. The plaintiff, in turn, claims ownership of the vehicle based on the written agreement.

If the plaintiff premises its claim on the written agreement, the dispute, it appears to me, cannot be resolved without an examination, at the outset, of what the terms of the written agreement were and what rights the parties retained in the vehicle pursuant thereto.

It is clear, therefore, that the terms of the written agreement then are an issue for determination as to whether the defendant is entitled to a return of the vehicle or if ownership, by virtue of the agreement, vested in the plaintiff.

I propose to deal with the matter by examining each of the issues in turn based on the evidence adduced by the parties.

What were the terms of the written agreement?

The pertinent terms of the contract are contained in clause 2 of the written agreement. The clause is in the following terms;

“2. The parties have agreed on the following terms:

(i) The first agreed deposit payable on signing of this agreement shall be $300,000,000= (old currency) (Three Hundred Million Dollars) shall be paid in cash i.e.

(a) $192,000,000= directly to Legacy Financial Services, No.13 Van Praagh Avenue, Milton Park, Harare to clear a debt incurred with them by Mr Ndenda; and

(b) A cheque in favour of Old Mutual Properties for $50,000,000=. The balance of $58,000,000= shall be paid in cash to Mr Ndenda on the day of signature of this agreement.

(ii) The balance of $400,000,000= shall be paid at a rate of $200,000,000= (two hundred million dollars) after the first two weeks and the last payment from the third week of the second payment or at such time as shall be agreed by the parties and in a manner determinable and agreed and documented by the parties.

(iii) The parties to this agreement agree that ownership of the said vehicle shall pass on to the buyer on signing of this agreement of sale.”

The first two sub-clauses do not, in my view, require any examination as they are clear. They deal with the terms of the payment and it is obvious from the evidence of the parties that each of the parties understood the times within which the purchase price had to be paid by the plaintiff.

It is the clause providing for the passing of ownership that is at the root of the dispute.

Each of the parties is claiming the right of retention of the vehicle on the basis that it is the owner. Any rights that the plaintiff claims to ownership of the same can only have been acquired by virtue of the agreement of sale, and, specifically, clause 2(iii). The defendant, on the other hand, would claim that he owned the vehicle and that ownership of the same was not transferred to the plaintiff by virtue of the written agreement.

According to the plaintiff, the agreement in respect of the sale by the defendant of the vehicle to the plaintiff was a credit sale, and, as a result, bearing in mind the provisions of clause 2(iii), ownership passed when the agreement was signed and delivery made to the plaintiff.

In written submissions filed on its behalf, the plaintiff poses a further question as to whether, in the event that ownership passed on 6 June 2006, it would revert to the defendant assuming that the defendant has proved breach of the written agreement on the part of the plaintiff.

The defendant's view is however that the agreement was not a credit sale and that ownership did not pass to the plaintiff on delivery of the vehicle. It is accepted by the defendant that the agreement was not one for hire purchase. The stance by the defendant is that what was concluded was not a credit sale but a sale by installment and that, as such, ownership in the vehicle did not pass to the plaintiff until the full purchase price would have been paid. In his evidence, the defendant's stance was that ownership in the vehicle never passed to the plaintiff.

The defendant did not, in pleading to the summons and declaration filed and served upon him by the plaintiff, allege or aver that the agreement was an instalment sale governed by the provisions of the Act.

In the written submissions, the defendant accepts that ownership had passed to the plaintiff but that the agreement was cancelled due to breach on the part of the plaintiff.

This is one of those matters where the pleadings do not bring out clearly and concisely the facts upon which the cause of action is based.

It would have been appropriate for the plaintiff to have pleaded that ownership had passed in terms of the agreement of sale and the defendant would then have responded appropriately. The question of whether or not ownership had passed is central to the resolution of the dispute and should have been one of the issues extracted for trial. Unhappily it was not. However, with the defendant having accepted that ownership did pass, it then becomes necessary to determine if the agreement that was concluded was an instalment agreement as contended by the defendant.

In the written submission made on his behalf, it appears that a concession is made that ownership did pass but that the agreement, being an agreement of sale by installment, then, in the event of breach, the defendant would be entitled to the return of the vehicle.

The defendant has submitted that the court should tell the parties the nature of the agreement that they entered into. I take that to mean that the court is being asked to interpret the agreement placed before it. It cannot mean that the court should, in such exercise, rewrite the contract for the parties.

The defendant seeks reliance on a passage from WILLIE and MILLIN's Mercantile Law of South Africa 16ed…, which is as follows;

“If credit is given for part of the purchase price on condition that the balance is paid in cash, the sale is one for cash and delivery does not pass the ownership. It is otherwise if the sale is on credit for there the ownership of the goods passes to the buyer on delivery to him though he has not paid the price.”

The passages quoted by counsel for the defendant refers to the cases decided in South Africa but I have not been referred to any authorities in this jurisdiction dealing with installment sales other than those governed by the Hire Purchase Act in our jurisdiction. At page 164 of their book, WILLIE and MILLIN's Mercantile Law of South Africa 16ed, the learned authors state:

“Installment sale agreements are defined as agreements of sale where ownership passes on delivery and the price is to be paid in instalments, two or more of which are payable after delivery, and the buyer is prohibited from alienating or encumbering the goods sold until the purchase price has been paid in full, or, the full purchase price becomes payable if the buyer alienates or encumbers the goods sold, or the seller is entitled to return of the goods if the buyer fails to comply with any one or more of the provisions of the contract: section 1.”

A closer reading of that passage leads me to conclude that the learned authors were discussing a section of the South African Hire-Purchase Act.

That passage cannot have the meaning ascribed to it by counsel for the defendant that any agreement within this jurisdiction where payment has been provided for in instalments is an installment sale as provided for by the Hire Purchase Act of South Africa.

As I have mentioned earlier on, our own Hire Purchase Act [Chapter 14:09] makes reference to instalment sale agreements. These are defined, in section 3 of the Hire Purchase Act, as follows;

“Instalment sale agreement means any contract of sale under which -

(a) The ownership in the goods sold passes either before or upon delivery; and

(b) The purchase price is to be paid in installments of which one or more are payable after delivery; and

(c) The seller is entitled to the return of the goods sold if the purchaser fails to comply with any of the provisions thereof;

and includes any other contract which has, or contracts which together have the same import, whatever form such contract or contracts may take.”

A perusal of the Hire Purchase Act reveals that it is meant to apply to specified agreements whose provisions are regulated by the Act. A feature of these agreements is that there should be reservation about the passing of ownership to the buyer. Whereas in an agreement for Hire-Purchase the purchaser obtains ownership after payment in full of the purchase price, in an instalment sale agreement, the Hire Purchase Act provides that ownership passes to the purchaser on delivery whether or not an installment has been paid. In the event of breach on the part of the purchaser the seller is entitled to return of the goods that are the subject matter of the sale.

It is the submission of counsel for the defendant that in defending the claim, by implication, the defendant claimed the return of the vehicle when the plaintiff failed to pay the last instalment.

I do not think that the submission can stand scrutiny.

The agreement executed by the parties did not provide that in the event of breach on the part of the plaintiff ownership in the vehicle would revert to the seller. Instead, the plaintiff was granted unreserved right to ownership upon the signing of the agreement. No conditions were placed upon the passing of such ownership and it is my view that the conditions upon which the parties intended to perform their contract is different to the conditions or provisions governing an installment sale agreement as stipulated in the Hire Purchase Act. In an instalment sale, even if ownership passes, there is a reservation on the passing of such ownership and the Hire Purchase Act provides for the seller to be able to recover the property which is the subject of the contract upon breach by the purchaser. I do not regard the agreement as falling in the category or form of agreements that are described in the Hire Purchase Act as instalment sale agreements.

The next question is whether this agreement can be termed a credit agreement as claimed by the plaintiff.

Neither of the legal practitioners who appeared before me was able to point me to an authority in this country where the court had to decide what constitutes a credit sale. I have not been able myself to find one within this jurisdiction.

According to CHRISTIE, Business Law in Zimbabwe…, the contract for sale does not always state whether it is for cash or credit so the law presumes that the sale is for cash, which presumption is not rebutted by the mere fact that the seller has made delivery without receiving immediate payment.

In casu, ownership was to pass to the plaintiff upon the signing of the agreement. It was therefore not a cash sale. The agreement itself does not, despite that ownership is to pass to the plaintiff upon signature, state that the agreement is one for credit or that the plaintiff has been given credit for the payment of the purchase price. In the absence of the parties having made specific averment as to whether or not the contract is one for credit, the court would have to examine the contract and deduce what the intention of the parties was.

I was referred to a plethora of authorities from South Africa. It is clear from the South African authorities that I have had to consider that the courts have not always found it an easy task to decide whether or not an agreement is one for credit or when it is that ownership is said to have passed. It appears that the matter first received attention from the courts in South Africa in the cases of Daniels v Cooper (1 E.D.C. p. 174), Sadie v Standard Bank (7 J. 87), and Quirk's Trustees v Assignees of Liddle & Co (3 J. 322) which are referred to in Laing v South African Milling Co. Ltd 1921 AD 387.

I have not been able to access the earlier authorities. It would appear however that those cases are the ones that settled the law as regards sales on credit in South Africa according to the dicta in Laing v South African Milling Co. Ltd 1921 AD 387. JUTA JA…, summarized the law thus:

“The authorities in our law were fully considered in the cases of Daniels v Cooper (1 E.D.C. p.174), Quirk's Trustees v Assigness of Liddle & Co. (3.J.322.), and Sadie v Standard Bank (7 J.87), and are to this effect; that, on a sale of movables followed by delivery the property does not pass until the purchaser has paid the money or secured the seller for the same, or, unless the sale is on credit. And there is ample authority for the further proposition that in the case of a sale where nothing is said as to ready money or credit and the goods are delivered to and taken away by the purchaser, the property does not pass; in other words, delivery to the purchaser and his taking away of the goods raise no presumption of the sale being on credit. On the contrary, the presumption is that the sale was for cash.”

Laing v South African Milling Co. Ltd 1921 AD 387 was followed by the case of Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another 1973 (3) SA 685 AD, in which the court found that even though there had been delivery to the purchaser and payment had been made by cheque despite the fact that the seller was aware that the vehicle was being sold to another person by the purchaser, the sale was for cash and credit had not been given.

In a cash sale, payment of the purchase price is made against delivery of the merx and where payment is made by cheque, even where it is drawn against a Bank in a different town, it is a cash sale with payment being made only when the cheque has been cleared. Even in these circumstances if the cheque is not met the property does not pass.

On the other hand, a credit sale is one where the purchaser has been given time for payment of the purchase price, which time has been postponed for a substantial period. Where the period for payment has been postponed for an insubstantial period, the courts have held that the sale was for cash and not credit and that therefore ownership had not passed. The courts in South Africa have said that a period of ten days would be a reasonable period to hold that a sale is for cash where the seller has made no attempt to collect payment from the purchaser. A period in excess of that ten days is sufficient for the courts to find that credit had been afforded to the purchaser and that therefore the property had passed. The rule is based on the requirement in the Insolvency Act that an unpaid seller for cash must claim his goods within ten days of delivery.

In terms of our own Insolvency Act [Chapter 6:04] a seller who has not been paid in full after delivery, where the purchaser has gone insolvent, is allowed to reclaim his property if he has given notice within ten days of delivery to the insolvent or the trustee of his intent to reclaim his property.

The principles that have been stated by the courts, therefore, are to the effect that unless there is a specific provision to the contrary, every sale is presumed to be for cash - even where delivery has been made. Where the seller has not granted credit to the purchaser or has not accepted security for payment by the purchaser, the sale is for cash unless the seller has not given the purchaser a period which is not in-substantial for payment of the purchase price.

As to whether or not the seller wanted to pass ownership, the intention of the parties can be gathered from the facts.

Where the seller contracts for passing of the property to the buyer, where payment in full has not been made nor secured, then it is a sale on credit and ownership would pass upon delivery of the goods.

In an instalment sale, even if ownership passes, there is a reservation on the passing of such ownership and the Hire Purchase Act provides for the seller to be able to recover the property which is the subject of the contract upon breach by the purchaser.

In the instant case, the contract provided for the unreserved passing of the property to the purchaser upon the signing of the agreement by the parties. There can be no other meaning to be ascribed to the clause “that ownership shall pass to the plaintiff upon the signing of the agreement.” The wording is clear and unambiguous and this court cannot ascribe any other meaning to that clause. There was no provision for ownership to revert to the defendant in the event of any alleged breach on the part of the plaintiff. There was no provision for the seller to reclaim the vehicle in the event of breach on the part of the buyer. The features of the contract between the plaintiff and the defendant have all the hallmarks of a credit sale.

I can understand the difficulties that counsel for the defendant faced in trying to argue that it was a cash sale. It was not a cash sale.

As to whether it can be termed an instalment sale, I believe the onus was on the defendant to place before the court facts such as would make me conclude that what I had before me was such. That was not done.

Instead, what the facts show is an agreement where one of the parties sold his property to a buyer where the buyer was afforded an opportunity to pay the balance of the purchase over a period in excess of ten days. The only conclusion that the court can come to in such a situation is that the defendant wished to pass ownership to the plaintiff and I find that indeed ownership passed.

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

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

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

In so far as the payment by the plaintiff of the balance of the purchase price is concerned, it is surprising that the defendant did not at any stage prior to the plaintiff bringing these proceedings ever call upon the plaintiff to rectify its breach - if it was in breach.

Despite such alleged breach, having delivered the vehicle to the plaintiff when the agreement was executed, the defendant never demanded the return of the vehicle until the plaintiff sued for the cancellation of the second agreement on the basis that the defendant was in breach thereof.

I turn now to the terms and conditions of the verbal agreement.

According to the plaintiff, the verbal agreement concerned the buy-back of the vehicle by the defendant. The defendant's position however is that because of the breach of the terms of the written agreement the parties agreed to cancel the written agreement and for the defendant to pay back the sum of $570,000 which was the total amount paid by the plaintiff and interest and for the return of the vehicle to him.

I have already found that there was no breach on the part of the plaintiff in paying the installments under the written agreement.

It would therefore make sense for the plaintiff to state that the defendant offered to buy back the vehicle from the plaintiff at the increased price of $3 million, and that, as a result, an oral agreement was concluded whereby the defendant had to pay a deposit of $700,000. This is the only explanation for the deposit of $570,000 in the plaintiff's account by the defendant. According to the plaintiff's witness the deposit of $700,000 should have been made by the 17 July 2006. The defendant was given until 31 July to pay the balance on the deposit and when he failed the plaintiff cancelled the agreement between the parties.

In my view, the probabilities of the case favour the plaintiff's version.

It was in the business of selling vehicles and it would have no problems to sell back to the defendant a vehicle that had belonged to him. All it wanted was to make a profit out of the process. The version by the defendant that the amount deposited into the plaintiff was repayment of the amount paid by the plaintiff under the failed agreement of sale did not ring true.

On the defendant's version, the amount constituted repayment of the initial $300,000 paid by the plaintiff when the agreement was signed and another $100,000 which was paid instead of $200,000 as had been agreed. The additional $170,000 would then constitute interest. The defendant was unable to say what the rate of interest agreed was. As a result, he was not able to state with any conviction what the amount he had deposited represented.

It also turned up in the evidence that the plaintiff had in fact had the vehicle repaired and serviced. The plaintiff had required the defendant to pay for the costs of such repairs under the verbal agreement. The defendant admitted that the vehicle was indeed repaired and he had not reimbursed the plaintiff for the costs thereof.

It would be inconceivable, in my view, for the plaintiff to agree to an arrangement where it returns the vehicle to the defendant against a payment of $570,000. It would, at the least, demand that it be reimbursed for the sums expended on the vehicle, which, according to the evidence of the plaintiff's witness, were far in excess of $570,000.

The only verbal agreement entered into, in my view, is the one that the plaintiff told the court and the terms of which it was able to explain. The defendant was unable to state with certainty the terms upon which he was to have the vehicle returned to him by the plaintiff. He was unable to prove the existence of the verbal contract that he alleged had been formed by the parties….,.

Overall, I find that the version rendered by the plaintiff is to be preferred to the evidence of the defendant and I find for the plaintiff on all the issues. This means that the plaintiff succeeds in its claim and the counter-claim fails.

In the premises I make an order in the following terms:

It is ordered as follows:

1. The verbal agreement concluded between the plaintiff and the defendant on 4 July 2006 be and is hereby cancelled.

2. The plaintiff shall pay to the defendant the sum of $770,000 being the balance due on the purchase price of the vehicle and reimbursement of the amount deposited into the plaintiff's account by the defendant in respect of the second agreement.

3. The defendant's counter claim is hereby dismissed.

4. The defendant shall pay the costs of suit.

This was an opposed court application that I heard on 16 September 2013. Soon after argument I issued the following order:

“1. The Respondent's objections in limine are dismissed.

2. The Applicant's application to delete “(Private)” in the name of the Respondent [and] in its place to substitute “(Zimbabwe)” is granted.

3. It is hereby declared that the Applicant is entitled to purchase [the] motor vehicle, namely, a Mazda Familia Registration number AAM 7769 at 10% of its market value.

4. The Respondent is directed to cause an evaluation of the said motor vehicle to establish its open market value and to sell to the Applicant the vehicle at 10% of the market value so established.

5. The Respondent shall pay the costs of suit.”...,.

In this matter the applicant sought an order declaring, in the main, that she was entitled to purchase a certain Mazda Familia motor vehicle, registration no. AAM 7769 (hereafter referred to as “the motor vehicle” or “the vehicle”), at 10% of the market value. The facts were largely common cause. They were these;

The applicant had just resigned from employment with the respondent after five years. The motor vehicle had been a company car issued to her in terms of the respondent's motor vehicle policy. She applied to buy it. Initially, the sole dispute was whether the applicant was entitled to buy the vehicle at 10% of the market value as she contended, or at the market value, less 10%, as the respondent contended. The applicant based her claim on a document that she said was the relevant motor vehicle policy that governed her employment.

The respondent based its contention on another document that it said was the amended policy that had been introduced during the applicant's tenure of employment and which, allegedly, had replaced the applicant's document.

With time, the dispute escalated to include the argument that the sale of any company vehicle to incumbent holders was at the discretion of the respondent as the employer and owner of such vehicles and that in the applicant's case, the respondent had decided against selling. It was also argued that when initially the respondent had communicated its offer to her the applicant had purported to accept something else which had not been in the respondent's offer....,.

The crux of the matter before me was which of the two documents touted by the parties as the motor vehicle policy governed the applicant's employment at the relevant time?

Two other issues raised, somewhat belatedly, were;

(1) Whether or not the respondent had agreed to sell the motor vehicle to the applicant; and

(2) If it had, at what price?

I had no hesitation in dismissing the respondent's document. In my view, it was a clumsy counterfeit.

Both documents were fairly extensive and comprehensive. One remarkable thing about them was that the print, the font, the graphics, the design, the layout and virtually everything else, was identical. Even the wording was identical, except only in the one clause germane to the dispute. That was clause 11.0. In my view, that was where the respondent got caught out.

I shall demonstrate this.

The heading on the applicant's document, in upper case, was “MOTOR VEHICLE POLICY NO. 1 OF 2008”. The respondent argued that this document had been amended or replaced in May 2011. Incidentally, the applicant had resigned from employment in June 2011. If the applicant's document had been amended or replaced in May 2011, one would reasonably expect the amending or replacement document to reflect the date of its own inception or, at least, to say something different somewhere. But except for clause 11.0, it did not.

The respondent's document was also headed, in identical font and case, “MOTOR VEHICLE POLICY NO. 1 OF 2008”. The second part of the heading of the applicant's document read “AMENDMENT NO.1 OF JANUARY 2011”. The respondent's document was also headed “AMENDMENT NO.1 OF JANUARY 2011”.

How could both documents purport to be the same amending document and purport to be amending the same old policy?

But, that was not all.

On the applicant's document, after the headings, there followed some twelve main clauses, some with sub-clauses. These were spread over some nine pages, starting with clause 1.0 up to clause 12.0. The contentious clause, 11.0, headed “DISPOSAL”, was towards the bottom of page nine on the applicant's document. It was exactly the same on the respondent's document; the only difference being that in the case of the respondent's document, clause 11.0 occupied a slightly larger space, and, consequently, left not enough room for the next clause, namely, cause 12.0. Both documents indicated that they went up to page ten. However, page ten of the applicant's document was not attached. But this was immaterial. It was not even an issue. The dispute centred on clause 11.0.

I shall come to it in a moment. For now, I continue with my analysis of the other areas so as to place clause 11.0 in context.

Clause 1.1 on the applicant's document said; “This amended policy shall be effective from 1^st May of 2011 and its implementation will not be in retrospect.”

The corresponding clause on the respondent's document said exactly the same thing. On the foot of every page on the applicant's document were boxes with names and signatures of two of the respondent's officials who had prepared and approved the policy. In the boxes, apart from the names and the signatures, were three inscriptions stating that it was Motor Vehicle Policy No.1 of 2011, which was effective from 1 May 2011 and was replacing Policy No.1 of 2008. It was exactly the same thing on the respondent's document.

The respondent continued to argue that its document replaced the applicant's document in May 2011 but gave no exact date when this had been. I rejected that contention. It was manifestly untruthful. How could the respondent's document be effective from the same date as that of the applicant's?

The respondent accepted the applicant's document as genuine.

So, if the applicant's document had been first in time, as the respondent acknowledged, how then could its own document apply retrospectively given that clause 1.1 in both documents was against retrospective application?

The applicant maintained that the respondent's document was a fabrication. She said if at all it had been brought in at some stage, then it could only have been after her departure as nobody had brought it to her attention during her tenure.

That sounded plausible enough to me.

The next clause after clause 11.0 on the applicant's document was an incomplete clause 12.0 headed “EXISTING VEHICLES”. Its sub-clause [i.] was accommodated on the bottom of page nine. The whole of clause 12.0 on the respondent's document was on page ten. None of its sub-clauses could be accommodated on page nine. That was because on the respondent's document clause 11.0, the bone of contention, had some words altered, some added in, and a whole new sub-clause inserted. On the applicant's document clause 11.0 read as follows:

“11.0 DISPOSAL

(i) On the attainment of 120,000km mileage, comprised of monthly allowable business and private mileage or upon attaining of 5 years of age, provided the vehicle has been in use for a minimum of 3 years, the vehicle may be offered to the employee for purchase.

(ii) An employee whose vehicle is being replaced will have the right of first refusal offer to purchase the vehicle at 10% of open market value or at book value, whichever is the lesser.”

On the other hand, clause 11.0 on the respondent's document read like this:

“11.0 DISPOSAL

(i) Upon the attainment of 5 years of age, provided the vehicle has been in use for a minimum of 3 years, the vehicle may [author's emphasis] offered to the employee for purchase.

(ii.) The vehicle may be purchased at market value less 10% or depreciated net book value, whichever is the lesser.

(iii) The Group Chief Executive Office will approve the disposal of all company cars.”

It was not difficult to see that the new clause 11.0 in the respondent's document had far reaching changes which constituted a serious diminution of rights and benefits accorded to employees under the old policy. Demonstrably, those changes were meant to ward off the applicant's claim.

For example, and to begin with, the applicant's clause 11.0 only had two sub clauses. The respondent's had three. Next, the reference to a mileage of 120,000 kilometres in the applicant's document was completely scrapped off in the respondent's. It was common cause that the applicant's vehicle had clocked over 165,500 kilometres on the dash board. Furthermore, by highlighting, in the respondent's document, the word “may” in the obligation to offer the vehicle for sale, it was obviously meant to emphasize the discretion of the employer in that regard - that was the bulwark of the respondent's argument at the hearing.

However, and more importantly, the price at which the vehicle could be sold was increased phenomenally from 10% of the open market value to a market value less 10%. The whopping difference was dramatized by the figures that were disclosed in the papers. After some three valuations the vehicle's open market value had been agreed at $3,500. The applicant had tendered $315, being the 10% of the market value less another 10%. The respondent rejected that and demanded a purchase price of $3,150 which was the market value less the 10%. Finally, in the new document, the respondent's highest office would now have to be involved in the disposal of such vehicles, something that was not there in the applicant's document.

There was nothing to suggest that clause 11.0 in the respondent's document was a genuine amendment. Even if it was, there was nothing to show that it had been effected during the applicant's tenure of employment, or that it had been brought to her attention and that she had consented to it. What I found probable was that clause 11.0 in the respondent's document had been inserted after the fact. Therefore, that document was not the actual motor policy vehicle that was in place during the applicant's tenure of employment. 

It was partly for that reason that I found for the applicant.